Maj Gen Manomoy Ganguly v. Uoi

1. This is a second round of litigation initiated by the Applicant against the Respondents. The case has had a chequered history of litigation both in the first round and second round as well. Before coming to the issues involved in the matter, it would be relevant to give briefly the background of the case.

2. The Applicant was commissioned in the Army Medical Corps on 3 of March, 1980 and in the course of time, was promoted to different ranks from time to time till he attained present rank which he holds as Major General. It is claimed by the Applicant that he has had an outstanding service profile considering his professional and other achievements in comparison with his contemporaries. It is averred by him that he has a legitimate expectation for being promoted to the rank of Lt. General and equivalent. The Applicant was considered by the Special Promotion Board held on 20 of January, 2016 but was not empanelled. The Applicant filed a statutory complaint and on 30 of January, 2017 was given a partial redressal by expunging the entire assessment of TO in the ACR of 2014 with the direction that the Applicant be re-considered by the appropriate Promotion Board.

3. On 21.03.2017, the applicant was considered for Review Special Promotion Board, but was again not empaneled. The grievance of the Applicant was that having got the redressal from the Respondents themselves by way of expunging a part of the ACRs, it thus led to his overall increase in merit and as such the Special Promotion Board ought to have considered his enhanced previous profile in comparison to the other officers and on the touch stone of its cut off marks. However, the Respondents arbitrarily awarded less marks in the value judgment because of which he was not able to earn his promotion to the rank of Lt. General.

4. This had resulted in filing of OA No. 1093/2017 in July, 2017 before the Principal Bench of the Tribunal challenging his non-empanelment. After completion of the pleadings of the aforesaid OA, the Tribunal decided the same on 2 September, 2017 holding that the Special Promotion Board which had taken place on 21.03.2017 has not correctly given the marks in the value judgement, as a consequence of which the assessment of the applicant was not correctly reflected and he was thus not empanelled by the Special Promotion Board. The operative part of the judgment of the Tribunal read as under:—

“10. We have checked and rechecked the records. A plain comparison of the applicant's revised profile after getting redressal will indicate that the applicant with 91.25 quantified marks jumps to seventh place, above Maj Gen Sanjeev Chopra having 91.15 quantified marks, and not 16th/15th as indicated in Note 3 above notes and also stated in the counter affidavit which is totally false. If the two are compared in totality, the applicant is entitled to same Board Marks which were given to Maj Gen Sanjeev Chopra i.e. 1.7 out of two marks and would be higher in merit than Maj Gen Sanjeev Chopra. ……;”

12. We are also cognizant of the fact that the Tribunal cannot sit as a court of appeal on the proceedings of Board and the only thing it can do is direct fair consideration. Certainly, it is within the jurisdiction to correct any arbitrariness. In allocation of quantified grading or marks what is done without any reasoning or logic just to bring an officer down and further interest of the other. Further we would have preferred to wait the outcome of the statutory representation but the impression which has been given in court is that it is moving at a snail pace only to make the rejection of the applicant as a fait accompli.

14. Therefore, in the interest of justice, we quash the proceedings of the Review Special Promotion Board held on 21.03.2017 in respect of the applicant due to wrong Board marks allotted to him in this Board as a result of incorrect data presented to the Board Members by the Secretary of the Board. We also direct that the applicant be put through a fresh Review Special Promotion Board to consider him for promotion to the rank of Lt. Gen in consonance with the parameters of relevant policies and his changed profile after allotting entitled Board marks as pointed out above, and his seniority restored. In the meantime the respondents will refrain from filling up the post of DGMS(Army) falling vacant on 01.11.2017 and will only proceed after the case of the applicant is decided by the Board. We also hope and trust that the concerned officials guilty of misleading the Review Special Promotion Board Members on 21.03.2017 comprising of the three Services Chiefs and the DGAFMS will be looked into and the responsibility fixed so that the procedures streamlines and to eliminate arbitrariness in conduct of such promotion boards in future.

15. The OA is allowed with above orders. No order as to costs. A copy of the order be given DASTI.

(Justice V.K. Shali)

Member (J)”

Lt Gen S.K. Singh)

Member (A)”

5. The aforesaid judgment was challenged by the Union of India in the Hon?ble Supreme Court through an appeal being Civil Appeal No. 17535 of 2017. The Hon?ble Supreme Court upheld the conclusion arrived at by the Armed Forces Tribunal which was to the effect that the Applicant had been wrongly assessed in his low figurative value judgment marks, because of which the proceedings of the Board dated 21.03.2017 deserved to be set aside and a fresh Board ought to be held for the purpose of considering the empanelment/promotion of the Applicant to the rank of Lt. General. The relevant paragraph of the said judgment read as under:—

“19 ). Having said that, insofar as the present case is concerned, we find it difficult to disagree with the conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SDPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.

20) …………. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.

21) In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board. It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the “:overall profile,” when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution of India. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.

22) Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No. 3, the Respondent?s CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. The Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the Respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members.

23) For these reasons, we are not interfering with the directions given by the AFT. We make it clear that in any future selections, it would always be open to the Members of the Board to award the marks (out of 2 marks assigned for this purpose) keeping in view the overall profile of the officers as per Promotion Policy dated 4th January, 2004 and as amended vide letter dated 17th May, 2006.

24) This appeal is, accordingly, dismissed with the direction to the Appellant to take further steps, without loss of time, as stated by the AFT in the impugned judgment.

(A.K. Sikri, J.)

(Ashok Bhushan, J.)

New Delhi;

November 10, 2017.”

6. In view of the aforesaid judgment of the Hon'ble Supreme Court, the Respondents were to conduct a Special Review Promotion Board after giving the correct value judgment marks to the Applicant. It is not in dispute that the Applicant?s aforesaid Promotion Board has taken place on 04.12.2017 and his name was approved for promotion to the rank of Lt. General by the Ministry of Defence on 19th of January, 2018. The case did not end there.

7. The Applicant then filed Misc. Application (MA 109 of 2018) in the earlier OA 1093/2017 to the effect that having been empaneled for promotion by the Ministry of Defence as a Lt. General and being the senior most Major General in the Army Medical Cops, he should be promoted to the rank of Lt. General without any delay. It was further the case of the Applicant that after promotion to Lt. General, in that capacity of being the senior-most serving Lt. General, he ought to be appointed to the post of Director General, Medical Services (Army), [hereinafter referred as DGMS (Army)], but the Respondents have deliberately not recommended his name for the said appointment to the Ministry of Defence.

8. The learned Senior Counsel, vehemently argued on 13.02.2018 that the name of the applicant being senior most officer, ought to have been included in the panel of names forwarded by the DGAFMS for appointment to the post of DGMS(Army) to the competent authority. As per her information, she contended, a proposal has been sent by DGAFMS to the Ministry of Defence, excluding the name of the Applicant from the panel of names and no valid reason has been disclosed for this gross omission.

9. Based on the above submissions, Information was called from the Respondents as to whether the name of the Applicant has been included in the panel of names recommended for the appointment to the post of DGMS (Army). An affidavit was also directed to be filed by the Respondents.

10. The Respondents filed an affidavit that though the Applicant was considered for the appointment to the post of DGMS (Army), however, he was not considered “suitable” and, therefore, the officer next in line, one Lt. General Sanjeev Chopra was recommended for the post by the office of DGAFMS to the Ministry of Defence. It was under such circumstances that a fresh Original Application bearing No. 372/2018 was filed by the applicant.

11. The pleadings of this new OA were also completed and thereafter arguments heard.

12. The case of the Applicant in essence is that despite the fact that the Applicant having been empaneled for promotion to the rank of Lt. General by Ministry of Defence on 19.01.2018, and, therefore, being the senior most eligible officer in the Army Medical Corps, he ought to have been given the appointment of DGMS(Army) as per existing laid down policies and norms. Regretfully, the Senior Counsel contended that this was willfully denied to the Applicant without even giving a due consideration by the Competent Authority and the officer next in line has been recommended for this appointment.

13. In their reply Affidavit, the Respondents have relied upon the circular of 10th July, 1992 to contend that appointment to the office of DGMS (Army) is to be tenated not only by seniority but also by suitability. It is, in this regard, that the Respondents have taken a stand that though the Applicant may be senior, his suitability was considered by the competent authority, namely, DGAFMS, and thereafter his name was not forwarded to the Ministry of Defence. In elaborating on this policy circular, the learned counsel for the respondents emphasized that it clearly envisages a process of selection and that the main criteria is „suitability? which clearly entails a process of deliberations to assess the most suitable amongst the eligible persons. Learned Counsel for the Respondents has further contended that the Applicant cannot claim appointment to a particular post because this post of DGMS(Army) is not the only post to be tenated in the rank of Lt. General officer, there are other posts as well where he can be appointed.

14. While we were in the process of going through the arguments and policies, the learned Senior Counsel highlighted that the Respondents hold a deliberate grudge against the Applicant to deny him his legitimate due. Initially, it was for consideration for promotion and now when he has been empaneled for promotion to the rank of Lt. General, duly approved by the Competent Authority on 19.01.2018, two months have passed and the officer has still not been given orders for his promotion and wearing of new rank and that he continues to move around serving under officers who are actually junior to him. It was pointed out by the learned Senior Counsel that there appears some extraneous factors which are working against the Applicant. On this, our attention was drawn to the judgment where we had commented on the role of DGAFMS being the Secretary of the Selection Board consisting of three service chiefs, wherein it was observed that hewas the ex-officio Secretary of the Board which had allegedly mislead the Selection Board in denying the empanelment of the Applicant to the rank of Lt. General. It was further contended by the learned Senior Counsel that it was the DGAFMS who now had not recommended the Applicant to be appointed to the post of DGMS (Army).

15. We took note of non-promotion of the Applicant to pick up the rank of Lt. General despite empanelment and expressed our anguish and disappointment to the Respondents and advised them to rectify the anomaly. We were given to understand that after much effort, the Applicant was finally promoted and allowed to wear his rank on 01.03.2018 or so.

16. We have heard the Learned Senior Counsel Mr. Ranjit Kumar and Ms. Jyoti Singh appearing for the Applicant and Mr. Harish V. Shankar, learned Counsel appearing for the Respondents. We have also gone through the records and their written submissions.

17. The issues involved in the matter which arise for our consideration is:—

(i) What is the judicial interpretation given by the Court to the concept of seniority cum suitability?

(ii) Whether the post of DGMS (Army) which is to be tenated in terms of the circular of 10 July, 1992 is required to be appointed based on seniority cum suitability, and does it give the option to the Respondents for rejecting a candidate to the post of DGMS(Army) despite he having been otherwise fit and fulfilling all other eligibility criteria;

(iii) Whether an officer who has tenure of less than one year can be appointed by the Respondents despite the minimum tenure prescribed by its own circular.

18. The learned Counsel for the Applicant has referred to the judgment in case titled “B.V. Sivaiah v. K. Addanki Babu, Civil Appeal No. 3798/1996 with connected appeals - (1998) 6 SCC 720 : AIR 1998 SC 2565, to show what is meant by “seniority,” the relevant paragraphs of the said judgment are reproduced as below.

“9. The principle of „merit-cum-seniority? lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal.…

“….. for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.” (p. 801 of SCR) : (at p. 99, para 37 of AIR)

“… 10. On the other hand, as between the two principles of seniority and merit, the criterion of „seniority-cum-merit? lays greater emphasis on seniority. In State of Mysore v. Syed Mahmood, (1968) 3 SCR 363; (AIR 1968 SC 1113), while considering Rule 4(3) (b) of the Mysore State Civil Services General Recruitment Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, this Court has observed that the rule required promotion to be made by selection on the basis of “seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion”. It was pointed out that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he was found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.”

19. In Rajendra Kumar Srivastava v. SamyutKshetriyaGramin Bank, Civil Appeal No. 6691/2001, (2010) 1 SCC 335 : AIR 2010 SC 699. The relevant paragraphs of the judgment is being reproduced as under:—

“7. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : (AIR 1976 SC 490, a seven Judge Bench of this Court defined the concept of seniority-cum-merit. This Court held that “seniority-cum-merit” means that given the minimum necessary merit requisite for efficiency of administration, the senior though the less meritorious shall have priority.” In Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000) 6 SCC 698 : (2000 AIR SCW 2692), this Court observed that “seniority-cum- merit” postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed, and subject to fulfilling the said requirement, the promotion is based on seniority it was pointed out that requirement of assessment of comparative merit was absent in the case of „seniority-cum-merit?.

8. It is also well settled that the principle of seniority-cum-merit, for promotion, is different from the principle of „seniority? and principle of „merit-cum-seniority?. Where promotion is on the basis of seniority alone, merit will not play any part at all. But where promotion is on the principle of seniority-cum-merit, promotion is not automatic with reference to seniority alone. Merit will also play a significant role. The standard method of seniority-cum-merit is to subject all the eligible candidates in the feeder grade (possessing the prescribed educational qualification and period of service) to a process of assessment of a specified minimum necessary merit and then promote the candidates who are found to possess the minimum necessary merit strictly in the order of seniority. The minimum merit necessary for the post may be assessed either by subjecting the candidates to a written examination or an interview or by assessment of their work performance during the previous years, or by a combination of either two or all the three of the aforesaid methods. There is no hard and fast rule as to how the minimum merit is to be ascertained. So long as the ultimate promotions are based on seniority, any process for ascertaining the minimum necessary merit, as a basic requirement, will not mitigate against the principle of seniority-cum-merit

9. In Sivaiah (1998 AIR SCW 2577) (supra), a three-Judge Bench of this Court held that while the principle of seniority-cum-merit laid greater emphasis on seniority, the principle of merit-cum-seniority laid greater emphasis on merit and ability, with seniority playing a less significant role.

10. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary merit is recognized and accepted as complying with the principle of „seniority-cum-merit?. What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority-cum-merit.”

20. In view of the above judgements, where-ever the term “seniority cum merit” is used it means that seniority is to be given prime importance and merely because a person happens to be more meritorious, he cannot be promoted or appointed overlooking the seniority. The usage of the term “merit cum seniority” is totally converse to this. In the latter concept, the merit will prevail over seniority. Another indispensable factor is where-ever the term “merit” is used as a prefix or as suffix, it will entail a comparison of two officers so far as their merit is concerned, but in the case of seniority cum suitability, no such comparison is envisaged. Suitability of an officer is totally dependent on the individual characteristic of the officer concerned. An officer may be senior, but he may be unsuitable because of his competence, integrity or any other reasons, but then he has to be declared as unsuitable or unfit and it is only in such circumstances that his claim to the appointment of a particular post will be overlooked. This would be in our considered view the answer to the first query.

21. Coming back to the facts of the present case, it is not in dispute that the post of DGMS (Army) is to be filled in by an officer on the strength of seniority cum suitability where seniority is a decisive factor and suitability is a secondary factor.

22. We feel that it is not the case of the Respondents, so far as the Applicant is concerned, that he is unsuitable because of any reason whatsoever. As a matter of fact, after seeing the departmental file, we have found that there has been no assessment done by the Respondents in respect of his suitability and he has been simply over looked, so far as his claim for appointment to the post of DGMS(Army) is concerned.

23. It is also factually admitted that the note in which the name of one Sanjeev Chopra was recommended is dated 16.01.2018 and initiated by one Brigadier of the Department of DGAFMS, and approved by DGAFMS although the Applicant was approved by the Special Review Promotion Board for the rank of Lt. General on 04.12.2017. However, as seen from records, the order of approval for promotion to the rank of the Lt. General in the case of the Applicant has been made on 19.01.2018, that is three days later than the date on which the note is initiated.

24. It is also clearly admitted in the note dated 16.01.2018, that the post of DGMS(Army) is to be tenated by the senior most eligible Lt. General in the AMC. It is also noted, though obliquely, we recollect, that the Applicant is the senior most, yet Respondents recommended Lt. General Sanjeev Chopra, though he suffers from another ineligibility namely, having a tenure of less than one year on the date of recommendation. In our considered view, any officer who has a tenure less than a year is ineligible to be considered in the aforesaid appointment. This answers the last query raised herein before.

25. We find that the applicant having been approved for empanelment and promoted to the rank of Lt. General, fulfils the criteria of merit and thus is an eminently suitable candidate whereupon his seniority becomes a decisive factor to make him eligible to be appointed to the post of DGMS (Army). In any case, it is not the case of the Respondents that the Applicant is unfit to hold a particular post.

26. The contention of the learned counsel for the Respondents is that they were well within their right not to appoint the Applicant as DGMS(Army) on account of the fact that he could not claim a right to occupy a specific post or an appointment. It was contended that the policy letter of 1992 talks about interse seniority but also suitability which obviously entails process of selection. Reliance in this regard is placed on a case titled “Union of India v. Lt. Gen Rajendra Singh Kadian (2000) 6 SCC 698 wherein the Hon?ble Apex Court has dismissed the appeal filed by the Union of India. Lt. Gen Rajendra Singh Kadian has claimed the post of Army Commander, being Lt. General on the ground of seniority, the relevant portion at page 713, para 26 P1 (d) of the said judgment is reproduced as under:—

“….. In deciding whether a post is a selection post or not, one of the criteria to be considered is if it involves a comparative assessment of officers, necessarily the element of selection is involved and, therefore, the post with which we are concerned is indeed a selection post although not totally ignoring a senior.”

27. We have gone through the said judgment and in our considered view, Lt. General Kadian?s case is distinguishable from the facts of the present case, simply because in Lt. Gen. Kadian's case it is related to a promotion to the post of Army Commander. An Army Commander being a senior post of promotion and, therefore, Respondents were well within their right to consider whether a particular officer is fit or suitable for promotion to an appointment to command the forces or not. It was in this context that the case of Mr. Kadian was considered to be without any merit. We do not find applicability of the reference to this case. Similarly, we are also not impressed by the submission of the learned Counsel that the policy letter envisages any selection process. In our view, seniority is to be the decisive factor subject to his not being declared unsuitable. Sub-clause (ii) further reinforces this view by saying that if by chance nobody is fit in sub-clause (i) then the post is to be manned by a lower rank officer that is Major General subject to his being suitable.

28. We do not agree with the contention of the learned Counsel for the Respondents that the competent authority is free to choose the best from the officers who satisfy the eligibility conditions. The DGMS(Army) may be adviser to Chief of Army Staff but having attained the rank of Lt. General in itself is the guarantee that he is the best, otherwise, he would not have passed the Selection Board. Now, when there are more than one Lt. Generals, the preference of the Chief of Army Staff or the Competent Authority can not be permitted to over rule the seniority and appoint a junior to the post of DGMS(Army) which has all along been tenated by the senior-most officer in the cadre. By permitting the Respondents to do so, would in effect be compromising the dignity, status and competence of the officer as also would set a rat race among the officers. The Respondents have not been able to name a single instance in the past when the claim of the senior-most has been overlooked and junior empanelled.

29. The judgment which has been relied upon by Learned Senior Advocate, Mr. Ranjit Kumar seemed to be covering the Applicant in as much as the appointment to the post of DGMS (Army) is based on seniority cum merit. Meaning thereby, seniority has a decisive and over-riding provision in selection to the post of DGMS (Army). The Army circular dated 10 July, 1992 also referred to seniority cum suitability instead of merit. The word “suitable” has been made the minimum requirement and conversely, therefore, not having declared any particular officer eligible to be appointed as “unsuitable,” it is to be tenated by seniority cum suitability, meaning thereby among all the suitable candidates, the first right to occupy the position of DGMS(Army), should be the senior most; as in this case, the Applicant, was the senior-most eligible person.

30. At this stage, our attention is drawn to the next question which arises for consideration is that the policy letter dated 10th July, 1992 which has been quoted by the Respondents in its defence has been amended twice by the Ministry of Defence, once in the year 2002, when the minimum period for which a person is to occupy the post of DGMS(Army) was reduced from one year to 06 months, and the second time in the year 2005, it was again increased from 06 months to one year, meaning thereby that the minimum residual service a person must have for being appointed to the post of DGMS (Army), must be one year.

31. In the instant case, we have perused the file on which the case for the appointment of DGMS (Army) has been considered and submitted to the Competent Authority for approval. We find that the Applicant?s name was only considered at the level of DG AFMS within his office, and found “unsuitable” for reasons unknown, and then “not included” in the panel of officers submitted to the Competent Authority for appointment as DGMS (Army).

32. We have also observed in the note which has been sent by the office of DGAFMS clearly indicating that the said post has always been tenated by the senior most serving officer of Lt. General rank in the Army Medical Corps, but surprisingly, nowhere has it been reflected that the applicant being the senior most officer, should tenate that particular post. Nor has it been stated anywhere that he is unfit to hold that position. On the contrary, what has been stated is that the officer next in line has been stated to be „fit? to occupy the post and thus he is recommended for the said appointment. This, despite the fact that, he has a tenure of less than one year which is against the admitted policy of the Respondents that the DGMS (Army) should have minimum tenure of one year. This is thus clearly arbitrary and cannot withstand the realm of justice, as it not only denies the senior-most applicant the “right for consideration” but also smacks of mala fide intentions. We believe that DGAFMS did not have the power to do this „consideration? and „rejection? at his level when he is not the duly constituted Competent Authority to do so. At best, he could have submitted the panel of officers including the name of the applicant with his recommendations, and allowed the competent authority to consider, deliberate and approve the selected person.

33. On perusal of the records on file, we are constrained to add that there has been absolutely no consideration given to the applicant by the competent authority for the appointment to the post of DGMS(Army) as is being projected by the Respondents. Given the facts that have emerged, the name of the applicant was not even included in the panel of officers, despite him being the senior most Lt. General and most eligible, then it is obvious that the Competent Authority (in this case the Ministry of Defence and Raksha Mantri) has not even given any consideration to the claim of the applicant, thus making the selection process clearly flawed and arbitrary.

34. We further note an admitted fact on record that the DGMS (Army) has always been tenated by the senior most officer and Respondents have not cited even a single instance in the past to show that this post has been filled with any officer on the basis of suitability rather than seniority. Selection of the candidate cannot be considered on the ground of suitability by denying him his due on such a basis unless and until there is a specific finding to the effect that under “suitability”, the officer who is to be appointed is unfit to occupy that post, which in the instant case has not been done by the Respondent. Therefore, we feel that the Respondents have committed a serious error in recommending the name of the officer second in line for appointment to the post of DGMS (Army). The said post, as is evident, is to be tenated by the senior most officer in the cadre and the Applicant being senior most cannot be deprived of the same under the special ground of suitability, when he is not only eminently suitable but also on the fact that he has not been declared to be „unsuitable? or „unfit? to occupy the said post of DGMS (Army).

35. Having heard the arguments of the learned Senior Counsels/counsels of both sides and perused the records and notings on file in detail, we are constrained to observe that the Respondents are holding something against the applicant in order to deprive him of his legitimate due In the first instance, his promotion to the rank of Lt. General was possible only with the help of litigation as the Selection Board has not empaneled him to the said post by erroneously reducing the value judgment so as to permit the next in line to get the benefit. Even after quashing that value judgment and directing the Respondents to constitute Special Review Board, wherein he was approved by the Ministry of Defence for empanelment tothe rank of Lt. General as early as 19.01.2018, yet, despite the fact that there were vacancies in the rank of Lt. General, he was not allowed to pick up the rank due to delay in obtaining orders and only did so after due prodding by this Tribunal.

36. These facts indicate extraneous considerations working against the interest of the applicant, and, substantiates our view of another ground for denying him the appointment to the post of DGMS (Army).

37. In normal circumstances, we would have given direction to the Respondents to consider the suitability of the applicant and, thereafter, pass necessary orders. But we feel by doing so, it will give another lever in the hands of the Respondents to instantly declare him un-suitable and overlook his seniority and appoint the next in line as the DGMS (Army).

38. Because of these peculiar facts and circumstances, we feel that the recommendations and consequent approval in the appointment of Lt. Gen. Sanjeev Chopra to the post of DGMS (Army) deserves to be quashed on the ground of being arbitrary, discriminatory, activated by extraneous consideration and a further direction deserves to be issued to the Respondents to appoint the Applicant to the post of DGMS (Army) as expeditiously as possible and certainly not later than one month from today and for that purpose take all necessary consequential steps.

39. The stay directed in the order of 02.09.2017 is thus made absolute till the time judgment dated 07.05.2018 is implemented. So far as MAs in OA 1093/2017 are concerned, they have become infructuous.

40. With these directions, the Original Application is allowed.