LT. GEN. MANOMOY GANGULY, VSM versus UNION OF INDIA AND OTHERS on 29 October 2018

[2018] 13 S.C.R. 703

LT. GEN. MANOMOY GANGULY, VSM

v.

UNION OF INDIA AND OTHERS

(Writ Petition (C) No. 980 of 2018)

OCTOBER 29, 2018

[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]

Armed Forces – Promotion – Appointment to the post ofDirector General Medical Services, Army (DGMS, Army) – Petitionerwas promoted to the rank of Lieutenant General and gainedeligibility for the post of DGMS (Army) – He was also the seniormost person in feeder rank – However, Director General, ArmedForces (Medical) Services (DGAFMS), after considering his casealong with another Lieutenant General ‘S’, recommended ‘S’,though the petitioner was senior to him – Aggrieved, Petitionerapproached Armed Forces Tribunal (AFT), which decided in hisfavour – Appeal was filed by Union of India before the SupremeCourt, which directed by judgment dated 01.08.2018 that the matterbe placed before the Raksha Mantri to consider as to who wouldbe entitled to the appointment to the post of DGMS (Army) – RakshaMantri decided that the post be manned by a person other than thepetitioner – Petitioner filed Miscellaneous Application in the saidappeal – However before the listing of the application, respondentno.4, DGMS (Air) was recommended for appointment of DGMS(Army), who joined the new post on 10.08.2018 – Writ Petition –Held: Government has itself taken decision on 10.7.1992 whichmentions the eligibility conditions for this post and also laid downthe criteria which has to be adopted while deciding the person whowould be eminently suited to hold such a post – In instant case, firstfundamental error had occurred in lateral shifting of respondentno.4, DGMS (Air) and considering his candidature along withothers, it was contrary to the guidelines/decision of Governmentdated 10.07.1992 – The Guidelines permit such a lateral shifting‘only in exceptional circumstances’ and no such exceptionalcircumstances were stated anywhere on basis of which this move oflateral shifting was justified – Furthermore, the guidelines mentionscriteria of ‘inter se seniority’ and ‘suitability’ while deciding the

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Aperson who would be eminently suited to hold such a post –DGAFMS/COAS got a wrong impression from the judgment dated01.08.2018 that “comparative merit” of the officers was to beadjudged and for that purpose better method was Overall AveragePerformance (OAP) – Guidelines do not stipulate the criteria on“comparative merit” – It was categorically stated in judgment datedB01.08.2018 that if the senior most person is competent to hold thepost he is to be given preference – Norm of OAP was wrongly applied– Thus, respondents directed to appoint petitioner as DGMS (Army)and the appointment of respondent no.4 as DGMS (Army) set aside.

Allowing the writ petition, the CourtCHELD: 1. First fundamental error has occurred in lateralshifting of Respondent No.4, DGMS(Air) and considering hiscandidature along with others. It is contrary to the policyGuidelines dated July 10, 1992. The Guidelines permit such alateral shifting ‘only in exceptional circumstances’. No suchDexceptional circumstances are sated anywhere on the basis ofwhich this move of lateral shifting is justified. [Para 30][725-C]

2. It is pertinent to mention here that DGAFMS/COAS intheir earlier notings dated January 23, 2018 had not includedrespondent no.4 in the panel for the post of DGMS (Army) onEthe ground that he had already assumed the post of DGMS(Air)at that time. Again, at that time only the petitioner and LieutenantGeneral ‘S’ were considered and ‘S’ was recommended for thepost. This recommendation had been set aside by the AFT andthat decision was approved by this Court. In such circumstances,Flateral shifting of respondent No.4 is beyond comprehension,more so, when no exceptional circumstances, which is therequirement, are pointed out. These are neither stated whiletaking the decision nor in the counter affidavit filed by the Unionof India. [Para 31][725-D-E]

G3. It has to be highlighted that this Court, no doubt, explainedthe meaning of ‘inter se suitability’ by examining the same onthe basis of caliber, competence, attributes, skills and experienceof the officers. However, these attributes are to be seen in thecontext of ‘suitability of the eligible persons’. Once lateral shiftingis discarded, only the petitioner and Lieutenant General ‘S’ remainH

in the fray. Now, as per the decision dated August 01, 2018 ofthis Court, the criteria is ‘inter se suitability’ and not ‘inter semerit’. Thus, suitability of the persons was to be adjudged withthe adoption of the said criteria. It is for this reason that in thejudgment dated August 01, 2018 it was also recorded: ‘of course,while doing this exercise seniority of an officer is also to be givendue weightage, meaning thereby if senior most person iscompetent to hold the post, he is to be given preference’. Itseems that the COAS got an impression (may be bona fide, butdefinitely erroneous impression) from the judgment dated August01, 2018, that “comparative merit” of the officers is to be adjudgedand for that purpose better method would be to go through theOverall Average Performance (OAP). There is no reason as toon what basis this methodology was thought of, when concededlyACR gradings have never been used as a criteria for posting ofa Lieutenant General rank officer earlier. Guidelines dated July10, 1992 are in place for last more than 26 years. If it has nothappened earlier and there was no such mandate of this Courtalso, as the Court never meant that performance of an officerfrom the beginning of his career is to be adjudged, such an exercisewas unwarranted. The parameters of caliber, competence,attributes, skill and experience are to be looked into, but withthe objective to find out the ‘suitability of a person’. Guidelinesdated July 10, 1992 do not stipulate the criteria on ‘comparativemerit’ and it is not treated as ‘selection’ post. It uses theexpression ‘suitability’. Above all ‘inter se seniority’ is also animportant criteria mentioned in the said policy. It is for this reason,this Court had categorically stated that if the senior most personis competent to hold the post he is to be given preference. Thus,the mechanism of OAP adopted is foreign to the Guidelines datedJuly 10, 1992. [Para 32][725-F-H; 726-A-D]

4. No doubt, judgment in the case of Lt. Gen. Rajendra SinghKadyan throws light on the meaning which is to be given to theexpression ‘fit’ as the Court has said that a person who is to beselected for the post should be ‘fit to be chosen’. However, as isseen, nowhere the respondents have undertaken the exerciseto this effect, namely, fitness or suitability of the petitioner tooccupy the post in question. On the earlier occasion, when he ABC

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706SUPREME COURT REPORTS

Awas considered along with Lieutenant General ‘S’, the latter wasrecommended only on the basis that the petitioner would be newlypromoted from the rank of Major General, he does not have‘previous exposure to the working and environs of the IHQ ofthe MoD’. It was held that it was an extraneous reason and didnot amount to fair and objective consideration of his suitabilityBfor the post of DGMS (Army) as it is not necessary to have workingexperience in IHQ alone. This time, again, nowhere his suitabilityto man the post of DGMS (Army) is adjudged. On the contrary,norm of Overall Assessment Purpose (OAP) is brought in andapplied, which is again foreign to the guidelines dated July 10,C1992. [Para 32][726-F-H; 727-A-B]

5. Thus, the process undertaken by the respondents intaking decision to appoint respondent no. 4 as DGMS (Army)does not stand judicial scrutiny. This Court is constrained to setaside the appointment of respondent no. 4 as DGMS (Army) andDissue mandamus directing the respondents to appoint thepetitioner as DGMS (Army). [Paras 33, 36][727-B; 730-E-F]

Union of India and Others v. Lt. Gen. Rajendra SinghKadyan Indira Jaising v. Supreme Court of India (2017)9 SCC 766; State of West Bengal and others v. ManasEKumar Chakraborty and others (2003) 2 SCC 604 :[2002] 5 Suppl. SCR 72 – referred to.

Chief Constable of the North Wales Police v. Evans(Evans) (1982) I WLR 1155 – referred to.

Case Law Reference

F(2017) 9 SCC 766referred toPara 19[2002] 5 Suppl. SCR 72referred toPara 19

CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition(Civil) No. 980 of 2018GUnder Article 32 of the Constitution of India WITH

M.A. No.2188/2018 in C.A. No. 5800 of 2018.

Kapil Sibal, P. S. Patwalia, Sr. Advs., Prashant Mehta, VijayChawla, Sudarshan Rajan, Ghanshyam Bhati, Adil, Mahesh Kumar,Advs. for the Petitioner.

K. K. Venugopal, AG, Vikramjit Banerjee, ASG, R.Balasubramanian, Amarjeet Singh, Harish V. Shankar, Ms. Aarti Sharma,Arvind Kumar Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. There is a chequered history in this case,which is getting curious with each round of litigation. Present proceedingsare the repeat attempt of the petitioner Major General Manomoy Gangulyto get the position of Director General Medical Services (Army){hereinafter referred to as ‘DGMS (Army)’}, which has alluded him tillnow.

2. First round of litigation started when the petitioner, who wasworking as Major General, was denied the promotion to the next rank ofLieutenant General. The Special Promotion Board (Medical) {hereinafterreferred to as the ‘SPB (Medical)’}, which was constituted to considerthe cases of promotion and held its sitting on 20th January, 2016, did notempanel him for promotion to the said rank. The petitioner filed theOriginal Application (OA) before the Armed Forces Tribunal (hereinafterreferred to as the ‘AFT’) which decided the case in his favour vide itsjudgment dated 2nd September, 2017. The Union of India challenged thejudgment before this Court and the said appeal of the Union of Indiawas dismissed on 10th November, 2017. In the aforesaid judgment ofthe AFT, it had held that the petitioner was wrongly allotted lesser marksthan his entitlement by the SPB (Medical) on account of overall profilewhich resulted in denial of promotion to him. It was categorically heldthat he was entitled to 1.7 marks (out of 2 marks) for ‘Overall Profile’on comparison of his case with Major General Sanjiv Chopra. This Courtwhile upholding the judgment directed the respondents to take furthersteps without loss of time.

3. Notwithstanding the above, in the fresh review by the SPB(Medical) held on December 04, 2017, the petitioner was again given1.5 marks. The petitioner approached the AFT again by means ofMiscellaneous Application in the earlier disposed of OA seeking restraintagainst the respondents from filling up the post of DGMS (Army) for AB

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Awhich he would have become eligible, had he been promoted as LieutenantGeneral. Interim stay was granted. In the meantime, the CompetentAuthority, i.e., the Raksha Mantri, after examining the matter did notapprove the review undertaken by SPB (Medical) awarding 1.5 marksto the petitioner and recommended his promotion. This recommendationmet the approval of ACC as well and, accordingly, the petitioner wasBpromoted to the rank of Lieutenant General on March 01, 2018.

4. After earning his promotion to the rank of Lieutenant Generalwith lot of struggle and legal battle, the petitioner aspired to get theposition of DGMS (Army), for which position he had gained eligibility.He was also senior most person in feeder rank. The Director General,CArmed Forces (Medical) Services, after consideration of his case alongwith one Lieutenant General Sanjiv Chopra, decided to recommendLieutenant General Sanjiv Chopra, though the petitioner was senior tohim. It is important to mention that while making this recommendation,eligible officer from Army discipline only were considered. The petitionerDonce again approached the AFT by means of OA bearing no. 372 of2018. The AFT decided that OA as well in favour of the petitioner videits judgment dated May 07, 2018. This judgment was again challengedby the Union of India in the form of a statutory appeal, i.e., Civil AppealNo. 5800 of 2018 before this Court.

E5.This appeal was decided on August 01, 2018. It was partlyallowed on certain aspects with the direction that the matter be placedbefore the Raksha Mantri to consider as to who would be entitled to theappointment to the post of DGMS (Army). The Raksha Mantri, onexamination of the files and ‘Note’ that was put up before her, decidedthat the post be manned by a person other than the petitioner. When theFpetitioner came to know of the intended move, he immediately rushed tothis Court by filing Miscellaneous Application no. 2188 of 2018 in CivilAppeal No. 5800 of 2018 with the prayer that status quo order be passedagainst filling up of the vacancy for a period of two weeks afterdeclassification of the decision of the Competent Authority to enable theGpetitioner to take a remedial action. This application was mentioned forlisting on August 10, 2018 and was directed to be listed on August 13,2018. However, it transpired that Air Marshal Rajvir Singh, who washolding the position of DGMS (Air) as on that date and had beenrecommended for appointment of DGMS (Army), had joined the newpost on August 10, 2018. In these circumstances, the petitioner filed theH

instant Writ Petition (Civil) No. 980 of 2018 challenging the appointmentof the Air Marshal Rajvir Singh (Respondent no. 4 herein) to the post ofDGMS (Army).

6. The aforesaid events would show that insofar as MiscellaneousApplication No. 2188 of 2018 is concerned, it has been renderedinfructuous. It stands disposed of as such. In the writ petition, therespondents have filed counter affidavit. Arguments have been heardat length and we propose to dispose of the writ petition by this judgment.

7. We may point out at the outset that case of the petitioner is thatin spite of judgment dated August 01, 2018 passed by this Court in CivilAppeal No. 5800 of 2018, the matter has not been examineddispassionately and objectively keeping in view the law laid down thereinas well as the spirit behind the said judgment. According to the petitioner,the respondents are finding one or the other excuse to deny him the postof DGMS (Army). Interestingly, even the respondents rely upon thesame very judgment dated August 01, 2018 and the case set up by therespondents is that fresh exercise has been undertaken strictly inaccordance with law laid down and the observations made in the saidjudgment. It is submitted that ‘inter se suitability’ which is the criterialaid down for appointment to such a post has been followed, as explainedin the said judgment and on that basis since Air Marshal Rajvir Singh hasbeen found to be more suitable than the petitioner, he is assigned the saidpost.

8. Having regard to the aforesaid positions taken by the parties, itbecomes necessary to first note down the laid down criteria forappointment to DGMS (Army) and the interpretation thereto which hasbeen given in the judgment dated August 01, 2018.

The post in question is in an Armed Forces Medical Services(AFMS). At top level, 10 Lieutenant Generals are appointed in theAFMS and placed in different tiers. The structure of AFMS specifyingthese three tiers is as follows:

DGAFMS(1st tier post)

DGMS (Army) DGMS(Navy)

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AComdt Comdt DG Org & Pers DCIDS Comdt DGHSAHRR AMC (C&S) (Med) (AFMS) (AF)

(3rd Tier posts)

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9. The criteria for appointment of DGsMS is laid down in policydecision taken on June 01, 1992, which is stipulated in a Circular issuedby the Government of India, it reads as under:

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Subject:- Appointment of DGsMS of Service-Policy regarding.

Reference your note No. 16972/11/92/DGAFMS/DG IXdated 1st June 1992.

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2. Taking into account various aspects relating to theappointment of DGsMS of Services the following criteria islaid down for their appointment, in future:

(i) The inter-se seniority and suitability of officers in the rankof Lt. Gen(and equivalent) holding the posts of Comdt AMCCentre and School, Comdt AFMC, Pune and the Addl.DGAFMS shall be assessed in the light of their earlierexperience of serving in particular services and they shall beconsidered for appointment as DGsMS of services providedthey have a minimum remainder service of six months, fromthe date of occurrence of the vacancy.

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(ii) If, after the exercise of (i) above, none of the offices arefound suitable for appointment as DGsMS of services, againstavailable vacant posts, officers of Maj Gen (and equivalent)rank, already approved for promotion to Lt. Gen rank, may beconsidered for such appointments.

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(iii) The lateral shifting of DGMS of one Service to anotherService may be considered only in exception circumstances.

3. Government shall review above criteria, for suitablemodification, after the tenure of AMC officers in Lt. Gen (andequivalent) rank stabilise.”

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10. It is the common case of the parties that the aforesaid criteriahas not undergone any change till date and continues to govern theappointment of DGsMS of services. As can be seen from the aforesaidcriteria, ‘the inter se seniority and suitability of officers in the rank ofLieutenant General (and equivalent)’ is to be considered.

11. On the last occasion, when DGAFMS had recommendedLieutenant General Sanjiv Chopra for this post and that was challengedby the petitioner before the AFT, while allowing the O.A. of the petitioner,the AFT had held that the expression ‘inter se seniority and suitability’meant that the post was to be given to the person who is the senior mosteligible officer, if he is otherwise found suitable. In essence, criteria ofseniority subject to fitness was applied. Based on this notion that thecriteria was ‘seniority-cum-suitability’, the AFT had taken the view thatseniority is a decisive factor and suitability is a secondary factor. Thenit proceeded on the premise that since it was not the case of therespondents that the petitioner is unsuitable, he was wrongly overlooked.The AFT also remarked that there was a deliberate attempt to somehowrecommend the name of Lieutenant General Sanjiv Chopra and ignorethe petitioner. It was also found that there have always been a conventionto appoint senior most person to the post of DGMS (Army) inasmuch asthe appellants were not able to cite even a single case in last 20-30 yearswhere the seniority was overlooked. Contrary thereto, name of thepetitioner was not even forwarded by the DGAFMS to the CompetentAuthority for consideration while sending the names of two other officers(including Lieutenant General Sanjiv Chopra). In this way, the petitionerwas wrongly ignored, was the opinion of the AFT.

12. In the appeal filed by the Union of India against the order ofthe AFT, which culminated in the judgment dated August 01, 2018, thisCourt did not approve the said interpretation given by the AFT, namely,criteria laid down in policy decision taken on June 01, 1992 was merely‘seniority-cum-suitability’. On the contrary, it was held that the word‘inter se’ occurring in the aforesaid expression applies both to seniorityas well as suitability. Therefore, apart from the ‘inter se seniority’, ‘interse suitability’ is also to be assessed, which assessment is ‘in the light oftheir earlier experience of serving in a particular service’. The Courtthen defined the meaning of expression ‘inter se suitability’. Discussionon this aspect is contained in paragraphs 40 to 45 of the judgment dated A

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AAugust 01, 2018. Since both the parties rely upon the discussion containedtherein, it would be apt to reproduce these paragraphs in their entirety.

“40. When we read the aforesaid para (i) as a whole, we findforce in the submission of the appellant that the word ‘inter se’applies both to seniority as well as suitability. Therefore, ‘inter sesuitability’ is also to be assessed inasmuch as this assessment is‘in the light of their earlier experience of serving in a particularservice’. As far as consideration on the parameters of ‘inter seseniority’ is concerned, it would mean that a person who is seniorgets precedence. To this extent, there is no quarrel. Question isas to what meaning is to be assigned to ‘inter se suitability’. Twoquestions arise from the above. First, what is the meaning of‘suitability’. Second, how the expression ‘inter se suitability’ is tobe construed, i.e. whether it should be understood as choosing a‘more suitable’ officer for appointment as DGsMS. As far asinter se suitability is concerned, all the eligible officers in the rankof Lt. General (& Equiv), having regard to their earlier experienceof serving in particular services, they are to be considered forappointment as DGsMS of services (i.e. DGMS (Army)).

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41. Let us first consider the meaning of ‘suitability’.

42. In English parlance, the word ‘suitable’ is assigned the meaningas ‘appropriate, fitted for the purpose or acceptable’. The conciseOxford Dictionary defines the word suitable as ‘well fitted for thepurpose; appropriate’. This ordinary meaning is to be given effectto as a general guide, unless this expression is given specialmeaning in a statute or rule in administrative instructions. InR (Quintavalle) v. Human Fertilisation Authority[1], the Houseof Lords remarked that “the word ‘suitability’ is an empty vesselwhich is filled with meaning by context and background.

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43. In service jurisprudence, where the word ‘suitable’ is normallyexamined from the point of view as to whether a particular personis suitable to hold a particular post, it is construed as ‘fit’ to holdthat post. It would mean that the job profile and job requirementof a particular post would be seen and then, going by the calibre,competence, attributes, skill and experience of the candidate, itwould be ascertained as to whether such a person would be able G

to discharge the duties of the post i.e. whether he is suited tocarry out the functions of the post, to the satisfaction of his employer.

44. It, thus, follows from the above that the person to be eligibleshould quality the following conditions:

(i) the officer should be in the rank of Lt. General (& Equiv);

(ii) such an officer should be holding the post of Comdt AMC&C; and

(iii) he should have a minimum remainder service of one yearfrom the date of occurrence of the vacancy.

45. Adverting to the second question, the prefix ‘inter se’ hasalso to be given some meaning as it cannot be rendered otiose.Therefore, whereas while assessing ‘suitability’, it has to be seenthat a particular officer is not unfit for the post, when it comes to‘inter se suitability’, it has reference to assessing the suitability ofall eligible officers and thereafter finding who is more suitable tooccupy such a post. We have to keep in mind that these are veryhigh ranking posts and, therefore, the competent authority issupposed to choose a more suitable officer for such posts. Weare of the opinion that for expressing such an intention, the Circularcould have been worded more appropriately and with clarity toavoid such doubts. However, since the word ‘inter se’ is used, itimplies that the intention behind laying down this criteria was togive these posts to a better suited person after evaluating theirinter se suitability. Of course, while doing this exercise seniorityof an officer is also to be given due weightage, meaning thereby ifthe senior most person is competent to hold the post, he is to begiven preference. Therefore, we conclude that the view of theAFT that the post of DGMS (Army) is to be filled by the officeron the strength of ‘seniority-cum-suitability’, where seniority is adecisive factor and suitability is a secondary factor, is not correct.In the entire discussion resting with the aforesaid view, the Tribunalignored the fact that it is not only seniority and suitability simpliciterbut ‘inter se’ seniority and suitability. The expression ‘inter se’ istotally ignored and there is no discussion thereupon at all, whichhas led the AFT to take wrong view insofar as interpretation ofthe criteria laid down in the Circular dated 10[th] July, 1992 isconcerned, which talks of ‘inter se seniority and suitability’.”

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A13. Thereafter, this Court examined the recommendation of DGMS(Army) to appoint Lieutenant General Sanjiv Chopra and found that theAFT rightly quashed the said recommendation. At the same time, thedirection of the AFT that the petitioner be straightway appointed to thepost of DGMS (Army) was also set aside and it was found that the saiddirection of the AFT was on the basis that the appointment was to beBgiven keeping in view the seniority alone which was not found to be thecorrect position. It is in these circumstances, the matter was remittedback to the Raksha Mantri for taking appropriate decision in the matter.

14. The petitioner contends that his apprehensions that he wouldbe denied the post, come what may, have turned out to be correct. It isCstated that even this Court in its judgment dated August 01, 2018 hadspecifically remarked that the apprehensions of the AFT in regard to thepossible ouster of the petitioner may not be unfounded. Still, reposingfaith in the Competent Authority, matter was remanded back with thehope that petitioner would be treated fairly. The grudge of the petitionerDis that it has not happened and the manner in which the matter is projectedand placed before the Raksha Mantri by the concerned authorities showstheir state of mind which is antagonistic to the petitioner. It is submittedthat Air Marshal Rajvir Singh was empanelled in his second chance, i.e.,the next Promotion Board after the previous Board in which the petitionerwas empanelled for promotion to the rank of Lieutenant General andEwas not even in the zone of consideration in the earlier process ofselection for appointment to the post of DGMS (Army). There was noway he could have now suddenly made it to the said post on the groundof suitability, especially when he is retiring after 7 months. Further, AirMarshal Rajvir Singh is a plain MBBS doctor, who has never served as Fan MG (Medical) of a Command, whilst the petitioner besides being asuper-specialist and a nationally renowned Onco-surgeon, also has themaximum Administrative and Operational experience. Therefore, thepetitioner feels aggrieved by his non-selection for the post of DGMS(Army), declassified vide promotion order dated August 10, 2018.

G15. It is further argued that in case of inter se suitability, thepetitioner is any day a more suitable person as compared to respondentno. 4 which is clear from the following:

(i) The petitioner who is one promotion batch senior to Air MarshalRajvir Singh, is a super-specialist while respondent no. 4 is notHeven a specialist, leave alone a super-specialist. Besides this the petitioner has the maximum Administrative and OperationalExperience, having tenated two Command Appointments as aBrigadier/Major General and four prestigious appointments ofCommandant Officers Training College, MG (Medical) in threedifferent Commands/Armies and Delhi area, whereas as the Headof the Medical Services of these Operational Commands andArmies he has successfully performed the actual work of theDGMS (Army) in half the country.

(ii) In the Special Selection Board for promotion to the post ofLieutenant General held in January, 2016, the petitioner andrespondent no. 4 were considered together. The petitioner wouldbe deemed empanelled in the said Board (after a litigation whichcame upto this Court), as he was considered as a fresh case,whereas respondent no. 4 has been empanelled with the next(Junior) Promotion batch, as a second timer and hence is abatch junior in this rank.

(iii) That as recent as on 23rd January, 2018, the respondents videtheir noting dated January 23, 2018, had only recommended thenames of Lieutenant General Sanjiv Chopra and Surg. V. AdmU.K. Sharma, in the panel for appointment to the post of DGMS(Army), in spite of him being the senior most eligible LieutenantGeneral to tenate the post. This noting was ultimately approvedby the Raksha Mantri (as submitted by the respondents to thisCourt, in the earlier hearings) but was not declassified. This order

was subsequently quashed by this Court. However, at this stage,respondents had not even found respondent no. 4 worthy ofconsideration for appointment to the post of DGMS (Army). Nowall of a sudden, in August, 2018, after 8 months, respondent no. 4has been brought from the Air Force, told to change his serviceand uniform to Army and appointed to the post of DGMS (Army),with the sole purpose of ousting the petitioner from tenating thepost of DGMS (Army). This again proves that the respondentshave always had a fixed agenda of somehow denying theappointment of DGMS (Army) to the petitioner, by all meanspossible and have now achieved their aim by appointing respondentno. 4 in an extremely hasty fashion.

(iv) Respondent no. 4 is being transferred from Air Force to Army,whereas the petitioner is already serving in the Army. Secondly, AB

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Ain the past, like in the case of last two DGMS’s (Army), wheneverlateral transfers from one service to another have taken place, itis only to place the senior most officers as the DGMS (Army) asthis has always been considered as a “better”/higher post, withthe maximum responsibilities, since he is the Head of the ArmyMedical Corps, which comprises over 75 per cent of the AFMSB(Armed Forces Medical Services).

(v) Respondent no. 4 is already tenating the post of DGMS(Air)and is being shifted laterally only to oust/deny the petitioner fromtenating his rightful post of DGMS (Army).

(vi) In fact, in the past couple of decades, only three officers havebeen transferred laterally from the DGsMS of one service (Navy)to Army, because they were the senior most. This includesLieutenant General G. Ramdas and the last two DGsMS(Army), C

i.e., Velu Nair and Bipin Puri (the present DGAFMS).

D16. It is, thus, contended, by Mr. Kapil Sibal and Mr. P.S. Patwalia,learned senior counsel appearing for the petitioner is that insofar as AirMarshal Rajvir Singh is concerned he had already been given the post ofDGMS(Air). There was no question of considering him, now, for thepost of DGMS (Army). Further more, it amounted to lateral shifting ofDGMS of one service to another service, namely, from Air Force toEArmy. According to the policy letter dated July 10, 1992, such lateralshifting could be done only in ‘exceptional circumstances’. However,no such exceptional circumstances were mentioned by the respondents.It was also submitted that a novel exercise was undertaken by therespondents by taking into consideration the ACRs of the officers fromFthe beginning of their career terming it as ‘Overall Average Profile’which was entirely new concept invented by the respondents for thefirst time and outside the policy dated July 10, 1992.

17. Mr. K.K. Venugopal, learned Attorney General for Indiareferred to the discussion contained in paragraphs 40 - 45 of judgmentGdated August 01, 2018 and submitted with much vehemence that theentire exercise was undertaken by the respondents keeping in view theaforesaid interpretation given to the policy letter dated July 10, 1992.He emphasised that this Court very categorically held that while adjudging‘inter se suitability’ it was to be assessed in respect of eligible officers.For this reason, all eligible officers, including Air Marshal Rajvir Singh, H

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were considered. He also submitted that this Court has specificallyobserved that since these are very high ranking posts, the CompetentAuthority is supposed to choose a very suitable officer for such postwho is found to be better suited person, after evaluating the ‘inter sesuitability’. The Attorney General highlighted that the parameters ofsuitability in respect whereof the eligible offices are to be consideredare stipulated in the judgment itself, viz., suitability is to be assessed withrespect to caliber, competence, attributes, skill and experience, withconsideration to ‘inter se seniority’. In this hue, his submission was thatfor considering these aspects, Overall Average Performance (OAP) ofservice ACRs of all eligible General Officers as on November 01, 2017was rightly taken into consideration, as this provided an objective andfair basis for the assessment of the inter se suitability of the officers. Asa result, Air Marshal Rajvir Singh was found to be more suitable thanthe petitioner. It was argued that such an exercise was strictly inconformity with the judgment given by this Court which could not befaulted with.

18. The learned Attorney General emphasised the importance ofDGMS (Army) post by contending that with the vast multitudinousactivities in health and medical care of the personnel of the regular army,and which respondent no. 1 is duty bound to take care, the post ofDGMS (Army) requires for adequate discharge of its functions, highdegree of intellect and experience, having onerous responsibilities, withwide executive powers and not necessarily specialized knowledge inany filed of medicine. Respondent No. 1, in the circumstances therefore,had to make the best possible choice it can, keeping in view the largerinterests of the regular army. Therefore, in exercise of this choice, therespondent no. 1 has selected and transferred respondent no. 4 fromDGMS(Air) to DGMS (Army), but that does not make the transferarbitrary. He submitted that the transfer is made on account of theexigencies of administration and is not with any discriminatory preferencefor respondent no. 4 over the petitioner.

19. He also laid emphasis on the proposition that post of DGMS(Army) can only be filled by an incumbent in whom the State mustnecessarily have the highest confidence, and appointment to the samecannot go by seniority alone as contended by the petitioner. Therefore,once in the opinion of the Raksha Mantri, respondent no. 4 was themost suitable one, it is not open to the petitioner to seek judicial review AB

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Aby filing the writ petition as if it is an appeal over the view taken by theauthority in such a case or substitute the view for that of the authority.

In support of the aforesaid proposition, Mr. Venugopal referred tothe following judgments:

(i) Union of India and Others vs. Lt. Gen. Rajendra SinghBKadyan[2]

“20...Further, the expression “fit” has been brought to our noticeas legally meaning “fit to be chosen” by elaborating the expression“eligible” in Stroud’s Judicial Dictionary, 5th Edn. However, theexpression “fit”, which has different shades of meanings, alsomeans “a person to be appointed shall be legally eligible” and“eligible” has already been explained by us to mean “fit to bechosen”. Again, the expression “select” means “chosen or pickedup”. Therefore, we are of the view that to the post of ArmyCommander, selection has to take place. Of course, consideringthe nature of rigorous standards adopted in the matter of selectionof officers from the stage of Lt. Colonel onwards up to the stageof Lt. General in the usual course it may be that the senior mostofficer is selected as the Army Commander. But that does notdebar the Chief of the Army Staff or the Union of India frommaking the selection of any other person for good reasons whofulfills the necessary criteria. Therefore, we are of the opinionthat it was improper on the part of the High Court to have concludedthat the post of Army Commander is a non-selection post. Further,the conclusion reached by the High Court that appointment to thepost of Army Commander has to be made on the basis of seniorityalone cannot be accepted.”

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(ii) Indira Jaising v. Supreme Court of India[3]

“68. What is merit? Is it the academic qualification or brilliance oris it something more? The matter has been considered earlier bythis Court in K.K. Parmar v. High Court of Gujarat. Placingreliance on an earlier view in Guman Singh v. State of Rajasthanit has been held that: (K.K. Parmar case, SCC pp. 801-02, paras27-28)

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3 (2017) 9 SCC 766

“27. Merit of a candidate is not his academic qualification. It issum total of various qualities. It reflects the attributes of anemployee. It may be his academic qualification. He might haveachieved certain distinction in the university. It may involve thecharacter, integrity and devotion to duty of the employee. Themanner in which he discharges his final duties would also be arelevant factor. (See Guman Singh v. State of Rajasthan.)

28. For the purpose of judging the merit, thus, past performancewas a relevant factor. There was no reason as to why the samehad been kept out of consideration by the Selection Committee. Ifa selection is based on the merit and suitability, seniority may haveto be given due weightage but it would only be one of the severalfactors affecting assessment of merit as comparative experiencein service should be.””

(iii) State of West Bengal and others v. Manas KumarChakraborty and others[4] [Para 17]

“17. The learned Senior Counsel for the first respondent thencontended that if a person moves to a post of greater prestige,duties and responsibilities, honour or status, as compared to theprevious post held, then that movement, even if lateral, wouldamount to promotion, even if both the posts carry the same scaleof pay. Learned counsel relied upon the case of Meera Masseyand Vice-Chancellor, L.N. Mithila University v Dayanand Jhato support the contention urged. Even if the contention is accepted,the fact remains that the second respondent was promoted by thecomposite order dated 23-5-2001 to the substantive rank of DGPand simultaneously posted as DG&IGP. We see no illegality inthis. Secondly, there is no dispute that the post of DG&IGP is aselection post like the other DGPs. The post of DG&IGP being apost of very sensitive nature can only be filled by an incumbent inwhom the State Government must necessarily have the highestconfidence. We are, therefore unable to accept the contention ofthe respondent that deployment of an incumbent in such a postcan go only by seniority. Merit in the nature of past record, thecredibility and confidence which one is able to command with —the Government of the State must play a predominant role in AB

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Aselection of an incumbent to such a post. In the opinion of theappointing authority, the second respondent was the most suitableone. It is not open to the courts to sit in appeal over the viewtaken by the appointing authority in such a case or substitute itsown view for that of the duly constituted authority. TheAdministrative Tribunal, as a matter of comparison of merit, wasBinclined to hold that the second respondent was by far the betterand more meritorious candidate. The High Court has skirted thisquestion and declined to decide this issue. Since we are of theview that there was no legal ineligibility in the second respondentto hold the post of DG&IGP, we must necessarily accept theCcomparative assessment of merit by the first appellant State ofWest Bengal and give credence to its own choice, of a suitableincumbent for being posted, as such.”

20. He further submitted that internal office notings referring thecase for consideration by the Raksha Mantri will bear out the objectiveDexercise undertaken by the respondents and submitted the original recordsfor the perusal of this Court.

21. We have given our thoughtful consideration to the submissionswhich have been made by the learned counsel on both sides. we havealso perused the original records of the case.E

22. File of the Ministry reveals that after the judgment of thisCourt on August 01, 2018, Director (Medical) prepared his ‘Note’ datedAugust 02, 2018 in which the salient aspects of the judgment have beensummarized. It is a fair and objective recording of the gist of the judgment.The Director has even highlighted the ‘admitted facts’ which have beenFculled out in the judgment dated August 01, 2018. After stating thesummary of the judgment, the Director (Medical) in his note pointed outthat as on the date of the vacancy of the post of DGMS (ARMY), i.e.,November 01, 2017, four persons, who were Lieutenant Generals (andequivalent) Officers, were eligible for posting as DGMS (Army). Thesefour names stated in the note are: (a) Lieutenant General ManomoyGGanguly (petitioner herein); (b) Lieutenant General Sanjiv Chopra; (c)Air Marshal Rajvir Singh (respondent no. 4 herein); and (d) Surg VAdm U.K. Sharma. Against each of these officers, Director (Medical)has appended his remark as well in a tabulated form, which is reproducedhereinbelow:

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LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA[A. K. SIKRI, J.]

S.No. Officer's particulars Remarks A(a) Lt. Gen. Manomoy Ganguly, Vide note 23.01.2018, DGAFMS with VSM MG(Med) HQ, SC, Pune the approval of COAS had found him (MR-014141M) to be unsuitable for the post of DGMS (Army) on the ground that he does not Seniority in the rank of Lt. Gen: have previous exposure to the working B1 Sep 2016 environs of the IHQ of the MoD. Date of retirement: 31 May However, these grounds have been 2019 quashed by the Hon'ble Supreme Court (b) Lt Gen Sanjiv Chopra, VSM He has been selected for appointment Col Comdt (MR-04142P) to the post of DGMS (Army) vide note DGHS(AF) 9-10 of preceding note. CSeniority in the rank of Lt. However, the selection has been Gen.: 18 Nov. 2016 quashed by Hon'ble AFT vide its order dated 07.05.2018 and upheld by Date of retirement: 17 Nov Hon'ble Supreme Court vide its order 2018dated 01.08.2018. D(c) Air Mshl Rajvir Singh, VSM ( The officer was not included in the MR-04153F) panel for posting as DGMS (Army) in the letter dated 23.1.2018 by Date of Seniority in the rank : 1 DGAFMS as he had already taken May 2017over as DGMS(Air Force) w.e.f. 9.1.2018 EDate of retirement: 31 Mar 2019(d) Surg V Adm U.K. Sharma, Vide note 23.01.2018, DGAFMS with (MR-04262N) the approval of COAS had not recommended the officer for the post Commandant AH(R&R) Delhi of DGMS (Army) on the ground that FCantt he "is the senior most Medical Specialist and Nephrologist. The Flag Seniority in the rank of Lt. Gen: Officer has been proposed for 1 June 2017permanent secondment to Army in the rank of Lt. Gen for the appointment of Date of Retirement: 30 June Commandant AH(R&R) which is 2019 falling vacant on 31.03.2018. Hence, Ghe is not recommended for the appointment of DGMS (Army)". The officer has since been posted as Commandant AH(R&R) w.e.f. 01.04.2018. H

A23. The matter was placed before the Raksha Mantri, who gavethe following direction on August 03, 2018"

‘in compliance with the Hon’ble Supreme Court’s order, a proposalmay be put up”.

24. On the said direction, DGAFMS/VCOAS were requested byBthe Ministry to submit a proposal. DGAFMS vide his note dated August04, 2018, proposed a panel of five names for consideration for the postof DGMS (Army). Apart from the four names which are noted above,he added name of Lieutenant General Anup Banerji as well. On theabove panel proposed by DGAFMS, the COAS has put his note datedCAugust 08, 2018. He revised the panel by removing the name ofLieutenant General Anup Banerji and considered the suitability of thefour officers. After considering their ACRs of the entire service, heconcluded that “considering the seniority and by also factoring theconditions of suitability; it is apparent that Air Mshl Rajvir Singh, VSMDGMS(Air) is more suited to tenant the appointment of DGMS (Army).”DIn his note while recommending Air Marshal Rajvir Singh, the COASstated that Air Marshal Rajvir Singh has the highest ACR average amongthe officers in the panel. Once this proposal was received by the Ministry,the Director (Medical) appended his note dated August 09, 2018thereupon, incorporating the aforesaid exercise and the recommendationEof COAS. In his note, he also brought out the following three pertinentaspects:- (A) In respect of exercise undertaken by COAS based on theACRs of the officers, while considering their suitability, it isremarked that average of ACR gradings have never been usedFas criteria for posting of Lieutenant General rank officers.

(B) Air Marshal Rajvir Singh was not included in the panel forthe post of DGMS (Army) forwarded by the DGAFMS/COAS intheir earlier note dated January 23, 2018 as he had already assumedthe post of DGMS(Air) at that time. It is also stated in the noteGthat MoD’s guidelines dated July 10, 1992 provided that “lateralshifting of DGMS of one service to another service may beconsidered only in exceptional circumstances.”

(C) The note again points out the observations of this Court in itsorder dated August 01, 2018 to the effect that matter was remittedback to the Raksha Mantri reposing full faith in her and the CourtH

was confident that she would consider the entire matter in totallydispassionate manner, with utmost objectivity and depicting totalfairness. In the process, “the admitted facts culled out in thejudgment would also be placed before the Raksha Mantri”.

25. Raksha Mantri while accepting the recommendation of COAS,remarked that COAS had relied upon the Overall Average Performance(OAP) as per the personal profile sheets (Confidential Reports). It isfurther stated that this Court has clarified that the suitability of a candidateis to be assessed upon the touchstones of caliber, competence, attribute,skill and experience and since the confidential report mechanism of theArmed Forces has been a rigorous and time tested tool to assess thesuitability of officers to hold high command appointments and has aninbuilt assessment of all characteristics specified in the judgment, theexercise of COAS based on OAP could be accepted. It is also specificallyremarked that though ACR gradings have never been used as a criteriafor posting of a Lieutenant General rank officer earlier, this was adoptedto comply with the directions of this Court. It is also mentioned thatguidelines dated July 10, 1992 do provide for “lateral shifting”.

26. On the aforesaid parameters, the Raksha Mantri expressedher agreement with the recommendation of the COAS and approvedthe appointment of Lieutenant General Rajvir Singh as the DGMS(Army).

27. We may record at the outset that the exercise undertaken byRaksha Mantri does not suffer from any element of unfairness and thatRaksha Mantri has endeavored to arrive at the decision, by interpretingthe order of this Court in a particular way. We shall advert to the questionas to whether such an understanding of the order is correct or not.However, the record shows, at least, that the exercise undertaken inarriving at the said decision dated August 10, 2018 is bona fide, at leastinsofar as the Raksha Mantri is concerned. At the same time, we areconstrained to remark that the decision making process suffers fromsome significant errors and it cannot be said to be unblemished.

28. At the outset, we may observe that emphasis of the learnedAttorney General about the importance of DGMS (Army) post isabsolutely correct. The incumbent to this post has the responsibility todischarge his function with high degree of intellect and experience as itcarries onerous responsibility, with wide executive powers, which would A

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Ainclude, but is not limited to, specialised knowledge in any field of medicine.Therefore, the person to be appointed to this post should be one in whichthe State has highest confidence and the appointment cannot go byseniority alone. At the same time, it is also to be borne in mind that theGovernment has itself taken a decision on July 10, 1992 which mentionsthe eligibility conditions for this post and also lays down the criteria whichBhas to be adopted while deciding the person who would be eminentlysuited to hold such a post. To repeat, the criteria is ‘inter se seniority’and ‘suitability’. While adjudging this inter se seniority and suitability,assessment is in the light of their earlier experience and serving inparticular service. Therefore, in this scenario the scrutiny of this CourtCis limited to the aspect as to whether the aforesaid criteria is scrupulouslyfollowed.

29. We are also one with Mr. Venugopal about the scope of judicialreview in such mattes. The court, in exercise of judicial review, is notconcerned with the correctness of the findings of fact on the basis ofDwhich the orders are made so long as those findings are reasonable andsupported by evidence. The court does not substitute its judgment forthat of the legislature or executive or their agents as to matters withinthe province of either. The court does not supplant “the feel of theexpert” by its own review. Undoubtedly, this Court is not sitting as anappellate authority over the decision taken in making such appointmentsEand is not supposed to substitute its view for that of the respondentauthorities. However, scope of judicial review certainly extends toexamining the decision making process and to see as to whetherappropriate process, legally permissible, has been undertaken while takingthe decision. While undertaking this examination, the court can deliberateFand ensure that all relevant factors are taken into consideration and,correspondingly, no irrelevant considerations have crept in in the decisionmaking process. These are, among others, the accepted norms of judicialreview. After all, discretionary powers conferred on the administrationcannot be unguided. No doubt, in such matters, the discretion exercisedby the authorities is to be generally accepted. This does not, however,Gmean that there is no control over discretion of the administration. Allpowers have legal limits. There is distinction between decision makingprocess and the merit of the decision. Whereas in the former, the courtapplies the standard of judicial review, in the latter, it enters into themerits of the matter. In the leading decision of in Chief Constable ofH

the North Wales Police v. Evans (Evans)[5], Lord Hailsham stated:

“The purpose of judicial review is to ensure that the individualreceives fair treatment, and not to ensure that the authority, afteraccording fair treatment, reaches, on a matter which it is authorisedby law to decide for itself a conclusion which is correct in theeyes of the court.

(emphasis supplied)”

30. First fundamental error has occurred in lateral shifting of AirMarshal Rajvir Singh and considering his candidature along with others.It is contrary to the policy Guidelines dated July 10, 1992. The Guidelinespermit such a lateral shifting ‘only in exceptional circumstances’. Nosuch exceptional circumstances are sated anywhere on the basis of whichthis move of lateral shifting is justified.

31. It is pertinent to mention here that DGAFMS/COAS in theirearlier notings dated January 23, 2018 had not included Air MarshalRajvir Singh in the panel for the post of DGMS (Army) on the groundthat he had already assumed the post of DGMS(Air) at that time. Again,at that time only the petitioner and Lieutenant General Sanjiv Choprawere considered and Lieutenant General Chopra was recommendedfor the post. This recommendation had been set aside by the AFT andthat decision was approved by this Court. In such circumstances, lateralshifting of Air Marshal Rajvir Singh is beyond comprehension, more so,when no exceptional circumstances, which is the requirement, are pointedout. These are neither stated while taking the decision nor in the counteraffidavit filed by the Union of India.

32. It has to be highlighted that this Court, no doubt, explained themeaning of ‘inter se suitability by examining the same on the basis ofcaliber, competence, attributes, skills and experience of the officers.However, these attributes are to be seen in the context of ‘suitability ofthe eligible persons’. Once we discard lateral shifting, only the petitionerand Lieutenant General Sanjiv Chopra remain in the fray. Now, weadvert to ‘inter se suitability’ as per the decision dated August 01, 2018of this Court. The criteria is ‘inter se suitability’ and not ‘inter se merit’.Thus, suitability of the persons was to be adjudged with the adoption ofthe said criteria. It is for this reason that in the judgment dated 01-08-2018 it was also recorded: ‘of course, while doing this exercise seniority 5 (1982) I WLR 1155 : (1982) 3 All ER 141 (HL)

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Aof an officer is also to be given due weightage, meaning thereby if seniormost person is competent to hold the post, he is to be given preference’.It seems that the COAS got an impression (may be bona fide, butdefinitely erroneous impression) from the judgment dated August 01,2018, that “comparative merit” of the officers is to be adjudged and forthat purpose better method would be to go through the Overall AverageBPerformance (OAP). We fail to understand as to on what basis thismethodology was thought of, when concededly ACR gradings have neverbeen used as a criteria for posting of a Lieutenant General rank officerearlier. Guidelines dated July 10, 1992 are in place for last more than 26years. If it has not happened earlier and there was no such mandate ofCthis Court also, as the Court never meant that performance of an officerfrom the beginning of his career is to be adjudged, such an exercise wasunwarranted. We state at the cost of repetition that the parameters ofcaliber, competence, attributes, skill and experience are to be lookedinto, but with the objective to find out the ‘suitability of a person’.

Guidelines dated July 10, 1992 do not stipulate the criteria on ‘comparativeDmerit’ and it is not treated as ‘selection’ post. It uses the expression‘suitability’. Above all ‘inter se seniority’ is also an important criteriamentioned in the said policy. It is for this reason, this Court hadcategorically stated that if the senior most person is competent to holdthe post he is to be given preference. Thus, we also find that theEmechanism of OAP adopted is foreign to the Guidelines dated July 10,1992. Having regard to this position contained in the policy decisiondated July 10, 1992, the judgments in the case of Lt. Gen. RajendraSingh Kadyan and Indira Jaising, which have been relied upon by thelearned Attorney General, would have no application. No doubt, judgmentin the case of Lt. Gen. Rajendra Singh Kadyan throws light on theFmeaning which is to be given to the expression ‘fit’ as the Court has saidthat a person who is to be selected for the post should be ‘fit to bechosen’. However, as is seen, nowhere the respondents have undertakenthe exercise to this effect, namely, fitness or suitability of the petitionerto occupy the post in question. On the earlier occasion, when he wasGconsidered along with Lieutenant General Sanjiv Chopra, the latter wasrecommended only on the basis that the petitioner would be newlypromoted from the rank of Major General, he does not have ‘previousexposure to the working and environs of the IHQ of the MoD’. It washeld that it was an extraneous reason and did not amount to fair andobjective consideration of his suitability for the post of DGMS (Army)H

as it is not necessary to have working experience in IHQ alone. Thistime, again, nowhere his suitability to man the post of DGMS (Army) isadjudged. On the contrary, norm of Overall Assessment Purpose (OAP)is brought in and applied, which is again foreign to the guidelines datedJuly 10, 1992.

33. We, thus, are of the opinion that the process undertaken by therespondents in taking decision to appoint Air Marshal Rajvir Singh asDGMS (Army) does not stand judicial scrutiny. We are constrained toset aside the appointment of respondent no. 4 as DGMS (Army).

34. With this, we come to another crucial part, namely, in thiswhole background and scenario when we find that respondent No.4could not have been literally shifted and appointed as DGMS (Army) inthe absence of any exceptional circumstances, what kind of directionscan be issued. Once when lateral shifting is held to be impermissible,two officers remain in the fray, namely, the petitioner and LieutenantGeneral Sanjiv Chopra. Having regard to the fate of Lieutenant GeneralSanjiv Chopra in the first round of litigation, we are left with the petitioner.As already pointed out above, it is not the case of the respondents thatthe petitioner is not suitable for the post of DGMS (Army). After all, hehas not been rejected on this ground. It is also an admitted fact that heis the senior most person. At this juncture, we would like to reiterate theadmitted facts which were taken note of in the judgment dated August01, 2018.

“47. Some admitted facts which are pertinent for the outcome ofthe present appeal need to be highlighted at this juncture. Theseare:

(i) The respondent is the senior most Lt. General.

(ii) He fulfills the eligibility criteria for appointment to the p o s tof DGMS (Army).

(iii) DGMS (Army) is treated as better post than other DGs, i.e.,DGMS(Navy) and DGMS(AF).

(iv) The past practice has been to fill up the post of DGMS (Army)from a senior most officer. Before the AFT, the appellants failedto give any example where seniority was ignored. In the past, i.e.ever since issuance of Circular dated 10[th] July 1992, the practicehas been to appoint the senior most Lt. General from Army. Before A

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the AFT, the appellants could not cite a single deviation to theaforesaid practice. In the appeal, example of one Air MarshalH.K. Maini is given. However, it is adequately answered by therespondent by pointing out that that happened because Air MarshalMaini himself chose not to be posted as DGMS (Army) becauseof his health reasons, which the appellants could not controvert.

(v) Even, in the present case, for appointment of DGMS (Army)the first Note dated 16[th] January 2018 by DGAFMS, in no uncertainterms, stated that the appointment to this post is to be made ‘strictlyon the basis of their seniority’, meaning thereby the senior mostLt. General (& Equiv) is to be posted. That Note was preparedon the assumption that the respondent is not in the reckoning ashis case for promotion to the post of Lt. General was notrecommended.

(vi) It is for the first time that in the Note dated 23[rd] January 2018the question of so-called ‘suitability’ is taken up. We have usedthe expression ‘so-called’ for the reason that (as would bediscussed in some detail afterwards) even this Note dated 23[rd]January 2018 does not reflect that any exercise of “inter sesuitability” is carried out strictly in accordance with the criterialaid down in the Circular dated 10[th] July 1992, i.e. on the touchstoneof ‘inter se seniority and suitability’.

35. Having regard to overall circumstances of the case and themanner in which this case has been dealt with in the past, we are leftwith no alternative but to give the directions ourselves. In adopting thiscourse of action, we would also like to reproduce the following discussionfrom the judgment dated August 01, 2018:

“Apart from the aforesaid admitted facts, we also would like tostate some of the findings as recorded by the AFT, with which weare in agreement. These are listed below:

(i) There has been some attempt (though we are not suggestingas to whether it was deliberate or bona fide) in denying therespondent his claim for promotion to the rank of Lt. General.Events in detail on this aspect have already been narrated above,which need not be reiterated. Suffice it is to mention that evenafter the orders of the AFT and affirmation thereafter by thejudgment of this Court, the Board had stuck to its earlier notion about the respondent. Fortunately for him, the Raksha Mantritook a fair and objective view in the matter and granted him hisdeserved promotion, which was legitimately due to him.

(ii) As on 16[th] January 2018, when DGAFMS prepared his Notefor appointment to the post of DGMS (Army), which had fallenvacant few months ago, he only knew that the Review Board hadagain refused to recommend the case of the respondent in therank of Lt. General Therefore, he proceeded on the basis thatsince the respondent is not occupying the post of Lt. General he isout of reckoning and, accordingly, Lt. General Sanjiv Chopra wasthe senior most officer. Proceeding on the aforesaid presumption,after excluding the respondent from consideration, herecommended Lt. General Sanjiv Chopra for appointment asDGMS (Army) being the senior most in the AFMS cadre. ThisNote went to the extent of recording that not only promotion isstrictly on the basis of their seniority, it was being done even forthe posts of ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who areretained in the order of seniority for administrative reasons. Withinthree days thereafter, when the decision of the Raksha Mantri topromote the respondent to the rank of Lt. General was declassified,in the fresh Note prepared on 23[rd] January 2018, there was acomplete turn around. For the first time, it was mentioned in thisNote that as per the criteria Lt. General (& Equiv) will be assessedfor appointment of DGMS ‘in the light of their earlier experiencein a particular service’. No doubt, this criteria is mentioned in theCircular dated 10[th] July 1992 and, therefore, there may not beanything wrong per se. However, we find substance in thesubmission of the learned senior counsel appearing for therespondent that such a realisation dawned only after coming toknow that the respondent was also in the reckoning for appointmentto the post of DGMS (Army) and he was the senior most officer.

(iii) The manner in which this Note is written leaves a reasonableimpression that the exercise was done to exclude the respondentfrom appointment to the post of DGMS (Army). In the firstinstance, though the criteria of assessment ‘in the light of theirearlier experience in a particular service’ is mentioned in paragraph3 of the Note, it nowhere reproduces the exact criteria, namely,‘inter se seniority and suitability’. Thus, while considering the earlier A

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experience in a particular service, it was to be done in the light ofinter se seniority-cum-suitability is not reflected in the said Note.In fact, there is no such exercise of inter se suitability undertakenin this Note.

(iv) In paragraph 7 of the Note dated 23[rd] January 2018, case ofBthe respondent is discussed. Qua him it is mentioned that sincehe would be newly promoted from the rank of Major General, hedoes not have ‘previous exposure to the working and environs ofthe IHQ of the MoD’. On that basis, he is proposed forappointment as DGHS (AF) instead of DGMS (Army). This,according to us, is not a fair and objective consideration of hisCsuitability for the post of DGMS (Army) as it is not necessary tohave working experience in IHQ alone. Mr. Patwalia hadvehemently argued that the respondent had adequateadministrative experience while working as Major General inSouthern Command, which was equally relevant, doing similarDnature of duties from which he has gained sufficient experiencemaking him aptly suitable for the post of DGMS (Army). He hadalso pointed out that in the past, officers who are appointed to thepost of DGMS (Army) were not necessarily those officers whohad earlier worked in the environs of the IHQ of the MoD. Thisfact also could not be refuted by the appellants. Therefore, weEfind that there has not been any proper and valid consideration inapplying the criteria of inter se seniority and suitability.”

36. As a result, we allow this writ petition and quash orders datedAugust 10, 2018 and issue mandamus directing the respondents to appointthe petitioner as DGMS (Army).F

Necessary orders in this behalf shall be passed within one week.

Ankit Gyan

Writ Petition allowed.

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