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(a) State of Bihar v. Dr. Braj Kumar Mishra and Others5
(b) State of Mysore and Another v. Syed Mahmood and Others6 INTERPRETATION OF “INTER SE SENIORITY AND SUITABILITY”
35) We have bestowed due consideration to various nuances of the issue, as argued by both the counsel for their respective parties.
36) Before adverting to the specificity in which the appellant dealt with the matter of the respondent herein, we deem it appropriate to first go into the parameters which are required for the purpose of considering the appointments to the post of DGMS (Army). The respondent belongs to Army Medical Corps (AMC) which comes under Armed Forces Medical Service (AFMS). In this service, there are ten appointments in the rank of Lt. General (& Equivalent) which are held by Officers belonging to AMC. It has three tier structure. On the top is the post of DGAFMS, who is the head of AFMS. He functions directly under the Government of India, Ministry of Defence and is responsible to the Government for overall medical policy concerning the armed forces. The 5 (1999) 9 SCC 546 6 (1968) 3 SCR 363 functions of the DGAFMS as laid down in Paragraph 18 of the Regulations for the Medical Services of Armed Forces 2010 (Revised Version) (RMSAF) issued under the authority of the Government of India, Ministry of Defence, include inter alia that he is the Cadre Controlling Authority in respect of all officers of the AFMS, and is responsible for terms and conditions of services of all officers including for processing cases and obtaining Government sanction where necessary. Below the DGAFMS, there are three posts of Director General Medical Services, one each for the Army, Navy and the Air Force called the DGMS (Army) DGMS (Navy) and DGMS (Air) respectively. The DGs of the three Services are Medical Advisors to the respective Chief of Staff and are responsible for the day to day administration and proper functioning of the medical services of the Army, Navy and Air Force. The remaining six posts of Lt General or their equivalent are placed in other appointments held in other establishments of the Armed Forces.

37) DGMS (Army) is in the second tier which is treated as higher than DGMS (Navy) or DGMS (Air). The post of DGMS (Army) is normally tenable by an Officer of the rank of Lt. General belonging to AMC and he acts as Principal Medical Advisor to the Chief of Army Staff.

38) As noted above, administrative instructions dated 10 th July, 1992 are issued by the Government of India, Ministry of Defence laying down the specific criteria for appointment to the post(s) of DGMS. We have already reproduced the aforesaid criteria. However, since para (i) is the bone of contention, we reproduce the same hereinbelow for the sake of continuity of discussion:

46) Having made this legal position clear, we advert to the facts of the present case.

47) Some admitted facts which are pertinent for the outcome of the present appeal need to be highlighted at this juncture. These are:

(i) The respondent is the senior most Lt. General
(ii) He fulfils the eligibility criteria for appointment to the post of DGMS (Army).
(iii) DGMS (Army) is treated as better post than other DGs, i.e. DGMS (Navy) and DGMS (AF).

(ii) As on 16th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service’. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer.