IMPORTANT POINTS
Scope of ‘Inter se’ seniority and suitability’ discussed.
Directions based on wrong view point cannot be sustained.

JUDGMENT

A.K. SIKRI, J.

The respondent herein was commissioned in the Army Medical Corps on 3rd March, 1980. By ascending the career ladder, he has reached the position of Lieutenant General (hereinafter referred to as Lt. General), which he occupies at present, though it is a different matter that he had to struggle a lot for claiming his rightful promotion to the rank of Lt. General from that of Major General. Brief factual narration concerning his promotion from Major General to the rank of Lt. General shall be stated at the relevant stage. He is now aspiring to hold the position of Director General Medical Services (Army) [hereinafter referred to as `DGMS (Army)] which has been denied to him by the appellants. Feeling aggrieved, the respondent had approached the Armed Forces Tribunal (for short, ` AFT'), Principal Bench, New Delhi by means of O.A. No. 372 of 2018 which has been allowed by the AFT vide its judgment dated 7th May, 2018. Direction was issued to the appellants to post the respondent as DGMS (Army) "as expeditiously as possible and certainly not later than one month from today and for that purpose take all necessary consequential steps". The appellants have taken exception to the outcome, as they feel that the matter has not been examined in correct legal perspective. This has led to the filing of the present appeal wherein the validity of the aforesaid judgment dated 7th May, 2018 of the AFT is called in question.

2. The cognizable background facts, which require mentioning for the purposes of appreciating the nature of legal controversy and resolution thereof, are recapitulated hereinbelow:

ROUND I : THE EARLIER LITIGATION

3. As mentioned above, the respondent was commissioned in the Army Medical Corps on 3rd March, 1980. He kept on getting promotions from time to time and attained the rank of Major General on 14th November, 2013.

4. When the respondent became eligible for consideration for promotion to the next rank of Lt. General in due course he was considered for promotion to the said rank by the Special Promotion Board (Medical) [for short, `SPB'] on 20th January, 2016 but was not empaneled for promotion. Thereafter, he was considered for promotion to this rank as a 1st review case on 3rd October, 2016, but again not empaneled. He had submitted a statutory complaint dated 22nd June, 2016, after his first consideration to the said post and rejection thereof, to the Government of India wherein he was granted partial redress by order dated 30th January, 2017 inasmuch as it was ordered that the assessment of Technical Officer in the Annual Confidential Report (ACR) for the year 2014 be expunged on the grounds of inconsistency. The expunction of these remarks necessitated special review of his case for promotion to the rank of Lt. General. Review Board again did not empanel him. This led to lodging of another statutory complaint dated 3rd June, 2017, wherein he primarily questioned the award of lesser marks by the three Service Chiefs who were the Members of the SPB under the head "Overall Profile". It may be noted that he was awarded 1.5 marks, out of 2 marks, under the caption `Overall Profile' and his grievance was that he was entitled to better marks under this head. Since disposal of statutory complaint was taking time, the respondent preferred O.A. No. 1093 of 2017 before the AFT assailing his non-selection to the rank of Lt. General. After completion of pleadings, matter was heard and vide judgment dated 2nd September, 2017 the AFT held that he was wrongly allotted less marks by the Board, on account of overall profile. The AFT also refrained the appellants from filling the post of DGMS (Army) (with which this litigation is concerned) that was falling vacant on 1st November, 2017. The appeal against that order of the AFT preferred by the appellant No.1/Union of India, was dismissed by this Court on 1