Holding

The Court held that the lateral transfer and appointment of Air Marshal Rajvir Singh as DGMS (Army) was illegal as it contravened the 1992 policy permitting such transfers only in exceptional circumstances, and therefore the senior-most eligible officer, Lt. Gen. Manomoy Ganguly, must be appointed.

Summary

Lt. Gen. Manomoy Ganguly, after being promoted to Lieutenant General, sought appointment as Director General Medical Services (DGMS, Army). Although senior to other candidates, the Director General Armed Forces Medical Services recommended another officer, and later the Raksha Mantri appointed Air Marshal Rajvir Singh, a lateral transfer from the Air Force, to the post. The petitioner challenged this appointment, arguing that the 1992 policy on DGMS appointments permits lateral transfers only in exceptional circumstances and that the senior-most eligible officer should be preferred if competent. The Supreme Court held that the lateral shift of Air Marshal Singh violated the policy, that the use of Overall Average Performance was not authorized, and that the petitioner, being the senior-most suitable officer, must be appointed. The Court set aside the appointment of the respondent and issued a mandamus directing his appointment as DGMS (Army).

Issues considered

The legality of the lateral transfer of Air Marshal Rajvir Singh to the post of DGMS (Army) under the 1992 policy guidelines.
Whether the criteria of 'inter se seniority and suitability' require giving preference to the senior-most eligible officer and whether the use of Overall Average Performance (OAP) is permissible.
Whether the decision-making process of the Raksha Mantri complied with principles of judicial review and the statutory policy.
Whether the appointment of the respondent violates established practice and the principle of seniority-cum-suitability for DGMS (Army) appointments.

Subjects

Armed ForcesDGMS appointmentsenioritysuitabilitylateral transferjudicial reviewpolicy guidelinesOverall Average Performanceinter se seniorityinter se suitabilityRaksha MantriArmed Forces Tribunalpromotion

Judgment

[2018] 13 S.C.R. 703 703

LT. GEN. MANOMOY GANGULY, VSM A
v.
UNION OF INDIA AND OTHERS
(Writ Petition (C) No. 980 of 2018)
OCTOBER 29, 2018 B
[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]
Armed Forces – Promotion – Appointment to the post of
Director General Medical Services, Army (DGMS, Army) – Petitioner
was promoted to the rank of Lieutenant General and gained
C
eligibility for the post of DGMS (Army) – He was also the senior
most person in feeder rank – However, Director General, Armed
Forces (Medical) Services (DGAFMS), after considering his case
along with another Lieutenant General ‘S’, recommended ‘S’,
though the petitioner was senior to him – Aggrieved, Petitioner
approached Armed Forces Tribunal (AFT), which decided in his D
favour – Appeal was filed by Union of India before the Supreme
Court, which directed by judgment dated 01.08.2018 that the matter
be placed before the Raksha Mantri to consider as to who would
be entitled to the appointment to the post of DGMS (Army) – Raksha
Mantri decided that the post be manned by a person other than the
E
petitioner – Petitioner filed Miscellaneous Application in the said
appeal – However before the listing of the application, respondent
no.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 which
mentions the eligibility conditions for this post and also laid down F
the criteria which has to be adopted while deciding the person who
would be eminently suited to hold such a post – In instant case, first
fundamental error had occurred in lateral shifting of respondent
no.4, DGMS (Air) and considering his candidature along with
others, it was contrary to the guidelines/decision of Government
G
dated 10.07.1992 – The Guidelines permit such a lateral shifting
‘only in exceptional circumstances’ and no such exceptional
circumstances were stated anywhere on basis of which this move of
lateral shifting was justified – Furthermore, the guidelines mentions
criteria of ‘inter se seniority’ and ‘suitability’ while deciding the
H
703
704 SUPREME COURT REPORTS [2018] 13 S.C.R.

A person who would be eminently suited to hold such a post –
DGAFMS/COAS got a wrong impression from the judgment dated
01.08.2018 that “comparative merit” of the officers was to be
adjudged and for that purpose better method was Overall Average
Performance (OAP) – Guidelines do not stipulate the criteria on
“comparative merit” – It was categorically stated in judgment dated
B
01.08.2018 that if the senior most person is competent to hold the
post 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 Court
C
HELD: 1. First fundamental error has occurred in lateral
shifting of Respondent No.4, DGMS(Air) and considering his
candidature along with others. It is contrary to the policy
Guidelines dated July 10, 1992. The Guidelines permit such a
lateral shifting ‘only in exceptional circumstances’. No such
D exceptional circumstances are sated anywhere on the basis of
which this move of lateral shifting is justified. [Para 30][725-C]
2. It is pertinent to mention here that DGAFMS/COAS in
their earlier notings dated January 23, 2018 had not included
respondent no.4 in the panel for the post of DGMS (Army) on
E the ground that he had already assumed the post of DGMS(Air)
at that time. Again, at that time only the petitioner and Lieutenant
General ‘S’ were considered and ‘S’ was recommended for the
post. This recommendation had been set aside by the AFT and
that decision was approved by this Court. In such circumstances,
F lateral shifting of respondent No.4 is beyond comprehension,
more so, when no exceptional circumstances, which is the
requirement, are pointed out. These are neither stated while
taking the decision nor in the counter affidavit filed by the Union
of India. [Para 31][725-D-E]

G 3. It has to be highlighted that this Court, no doubt, explained
the meaning of ‘inter se suitability’ by examining the same on
the basis of caliber, competence, attributes, skills and experience
of the officers. However, these attributes are to be seen in the
context of ‘suitability of the eligible persons’. Once lateral shifting
is discarded, only the petitioner and Lieutenant General ‘S’ remain
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 705

in the fray. Now, as per the decision dated August 01, 2018 of A
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 of the said criteria. It is for this reason that in the
judgment dated August 01, 2018 it was also recorded: ‘of course,
while doing this exercise seniority of an officer is also to be given
B
due weightage, meaning thereby if senior most 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, but
definitely erroneous impression) from the judgment dated August
01, 2018, that “comparative merit” of the officers is to be adjudged
and for that purpose better method would be to go through the C
Overall Average Performance (OAP). There is no reason as to
on what basis this methodology was thought of, when concededly
ACR gradings have never been used as a criteria for posting of
a Lieutenant General rank officer earlier. Guidelines dated July
10, 1992 are in place for last more than 26 years. If it has not
D
happened earlier and there was no such mandate of this Court
also, as the Court never meant that performance of an officer
from the beginning of his career is to be adjudged, such an exercise
was unwarranted. The parameters of caliber, competence,
attributes, skill and experience are to be looked into, but with
the objective to find out the ‘suitability of a person’. Guidelines E
dated July 10, 1992 do not stipulate the criteria on ‘comparative
merit’ and it is not treated as ‘selection’ post. It uses the
expression ‘suitability’. Above all ‘inter se seniority’ is also an
important criteria mentioned in the said policy. It is for this reason,
this Court had categorically stated that if the senior most person
F
is competent to hold the post he is to be given preference. Thus,
the mechanism of OAP adopted is foreign to the Guidelines dated
July 10, 1992. [Para 32][725-F-H; 726-A-D]
4. No doubt, judgment in the case of Lt. Gen. Rajendra Singh
Kadyan throws light on the meaning which is to be given to the
expression ‘fit’ as the Court has said that a person who is to be G
selected for the post should be ‘fit to be chosen’. However, as is
seen, nowhere the respondents have undertaken the exercise
to this effect, namely, fitness or suitability of the petitioner to
occupy the post in question. On the earlier occasion, when he
H
706 SUPREME COURT REPORTS [2018] 13 S.C.R.

A was considered along with Lieutenant General ‘S’, the latter was
recommended only on the basis that the petitioner would be newly
promoted from the rank of Major General, he does not have
‘previous exposure to the working and environs of the IHQ of
the MoD’. It was held that it was an extraneous reason and did
not amount to fair and objective consideration of his suitability
B
for the post of DGMS (Army) as it is not necessary to have working
experience in IHQ alone. This time, again, nowhere his suitability
to man the post of DGMS (Army) is adjudged. On the contrary,
norm of Overall Assessment Purpose (OAP) is brought in and
applied, which is again foreign to the guidelines dated July 10,
C 1992. [Para 32][726-F-H; 727-A-B]
5. Thus, the process undertaken by the respondents in
taking decision to appoint respondent no. 4 as DGMS (Army)
does not stand judicial scrutiny. This Court is constrained to set
aside the appointment of respondent no. 4 as DGMS (Army) and
D issue mandamus directing the respondents to appoint the
petitioner as DGMS (Army). [Paras 33, 36][727-B; 730-E-F]
Union of India and Others v. Lt. Gen. Rajendra Singh
Kadyan Indira Jaising v. Supreme Court of India (2017)
9 SCC 766; State of West Bengal and others v. Manas
E Kumar 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 766 referred to Para 19
[2002] 5 Suppl. SCR 72 referred to Para 19
CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition
(Civil) No. 980 of 2018
G Under Article 32 of the Constitution of India
WITH
M.A. No.2188/2018 in C.A. No. 5800 of 2018.

H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 707

Kapil Sibal, P. S. Patwalia, Sr. Advs., Prashant Mehta, Vijay A
Chawla, 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. B
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 proceedings
are the repeat attempt of the petitioner Major General Manomoy Ganguly
to get the position of Director General Medical Services (Army) C
{hereinafter referred to as ‘DGMS (Army)’}, which has alluded him till
now.
2. First round of litigation started when the petitioner, who was
working as Major General, was denied the promotion to the next rank of
Lieutenant General. The Special Promotion Board (Medical) {hereinafter D
referred to as the ‘SPB (Medical)’}, which was constituted to consider
the cases of promotion and held its sitting on 20th January, 2016, did not
empanel him for promotion to the said rank. The petitioner filed the
Original Application (OA) before the Armed Forces Tribunal (hereinafter
referred to as the ‘AFT’) which decided the case in his favour vide its E
judgment dated 2nd September, 2017. The Union of India challenged the
judgment before this Court and the said appeal of the Union of India
was dismissed on 10th November, 2017. In the aforesaid judgment of
the AFT, it had held that the petitioner was wrongly allotted lesser marks
than his entitlement by the SPB (Medical) on account of overall profile
which resulted in denial of promotion to him. It was categorically held F
that 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 Court
while upholding the judgment directed the respondents to take further
steps without loss of time.
3. Notwithstanding the above, in the fresh review by the SPB G
(Medical) held on December 04, 2017, the petitioner was again given
1.5 marks. The petitioner approached the AFT again by means of
Miscellaneous Application in the earlier disposed of OA seeking restraint
against the respondents from filling up the post of DGMS (Army) for
H
708 SUPREME COURT REPORTS [2018] 13 S.C.R.

A which he would have become eligible, had he been promoted as Lieutenant
General. Interim stay was granted. In the meantime, the Competent
Authority, i.e., the Raksha Mantri, after examining the matter did not
approve the review undertaken by SPB (Medical) awarding 1.5 marks
to the petitioner and recommended his promotion. This recommendation
met the approval of ACC as well and, accordingly, the petitioner was
B
promoted to the rank of Lieutenant General on March 01, 2018.
4.After earning his promotion to the rank of Lieutenant General
with lot of struggle and legal battle, the petitioner aspired to get the
position of DGMS (Army), for which position he had gained eligibility.
He was also senior most person in feeder rank. The Director General,
C Armed Forces (Medical) Services, after consideration of his case along
with one Lieutenant General Sanjiv Chopra, decided to recommend
Lieutenant General Sanjiv Chopra, though the petitioner was senior to
him. It is important to mention that while making this recommendation,
eligible officer from Army discipline only were considered. The petitioner
D once again approached the AFT by means of OA bearing no. 372 of
2018. The AFT decided that OA as well in favour of the petitioner vide
its judgment dated May 07, 2018. This judgment was again challenged
by the Union of India in the form of a statutory appeal, i.e., Civil Appeal
No. 5800 of 2018 before this Court.
E 5.This appeal was decided on August 01, 2018. It was partly
allowed on certain aspects with the direction that the matter be placed
before the Raksha Mantri to consider as to who would be entitled to the
appointment to the post of DGMS (Army). The Raksha Mantri, on
examination of the files and ‘Note’ that was put up before her, decided
that the post be manned by a person other than the petitioner. When the
F petitioner came to know of the intended move, he immediately rushed to
this Court by filing Miscellaneous Application no. 2188 of 2018 in Civil
Appeal No. 5800 of 2018 with the prayer that status quo order be passed
against filling up of the vacancy for a period of two weeks after
declassification of the decision of the Competent Authority to enable the
G petitioner to take a remedial action. This application was mentioned for
listing on August 10, 2018 and was directed to be listed on August 13,
2018. However, it transpired that Air Marshal Rajvir Singh, who was
holding the position of DGMS (Air) as on that date and had been
recommended for appointment of DGMS (Army), had joined the new
post on August 10, 2018. In these circumstances, the petitioner filed the
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 709
[A. K. SIKRI, J.]

instant Writ Petition (Civil) No. 980 of 2018 challenging the appointment A
of the Air Marshal Rajvir Singh (Respondent no. 4 herein) to the post of
DGMS (Army).
6. The aforesaid events would show that insofar as Miscellaneous
Application No. 2188 of 2018 is concerned, it has been rendered
infructuous. It stands disposed of as such. In the writ petition, the B
respondents have filed counter affidavit. Arguments have been heard
at 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 that
in spite of judgment dated August 01, 2018 passed by this Court in Civil
Appeal No. 5800 of 2018, the matter has not been examined C
dispassionately and objectively keeping in view the law laid down therein
as 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 post
of DGMS (Army). Interestingly, even the respondents rely upon the
same very judgment dated August 01, 2018 and the case set up by the
respondents is that fresh exercise has been undertaken strictly in D
accordance with law laid down and the observations made in the said
judgment. It is submitted that ‘inter se suitability’ which is the criteria
laid down for appointment to such a post has been followed, as explained
in the said judgment and on that basis since Air Marshal Rajvir Singh has
been found to be more suitable than the petitioner, he is assigned the said E
post.
8. Having regard to the aforesaid positions taken by the parties, it
becomes necessary to first note down the laid down criteria for
appointment to DGMS (Army) and the interpretation thereto which has
been given in the judgment dated August 01, 2018. F
The post in question is in an Armed Forces Medical Services
(AFMS). At top level, 10 Lieutenant Generals are appointed in the
AFMS and placed in different tiers. The structure of AFMS specifying
these three tiers is as follows:
DGAFMS G
(1st tier post)

DGMS (Army) DGMS(Navy) DGMS(Air)
(2nd Tier post)
H
710 SUPREME COURT REPORTS [2018] 13 S.C.R.

A Comdt Comdt DG Org & Pers DCIDS Comdt DGHS
AHRR AMC (C&S) (Med) (AFMS) (AF)
(3rd Tier posts)
Though, three DGsMS in Army, Navy and Air Force respectively
fall in 2nd tier posts, it is an admitted position that the post of DGMS
B (Army) is considered better than the other two posts, namely, DGMS
(Navy) and DGMS (Air).
9.The criteria for appointment of DGsMS is laid down in policy
decision taken on June 01, 1992, which is stipulated in a Circular issued
by the Government of India, it reads as under:
C
Subject:- Appointment of DGsMS of Service-Policy
regarding.
Reference your note No. 16972/11/92/DGAFMS/DG IX
dated 1st June 1992.
D 2. Taking into account various aspects relating to the
appointment of DGsMS of Services the following criteria is
laid down for their appointment, in future:
(i) The inter-se seniority and suitability of officers in the rank
of Lt. Gen(and equivalent) holding the posts of Comdt AMC
E Centre and School, Comdt AFMC, Pune and the Addl.
DGAFMS shall be assessed in the light of their earlier
experience of serving in particular services and they shall be
considered for appointment as DGsMS of services provided
they have a minimum remainder service of six months, from
the date of occurrence of the vacancy.
F
(ii) If, after the exercise of (i) above, none of the offices are
found suitable for appointment as DGsMS of services, against
available vacant posts, officers of Maj Gen (and equivalent)
rank, already approved for promotion to Lt. Gen rank, may be
considered for such appointments.
G
(iii) The lateral shifting of DGMS of one Service to another
Service may be considered only in exception circumstances.
3. Government shall review above criteria, for suitable
modification, after the tenure of AMC officers in Lt. Gen (and
H equivalent) rank stabilise.”
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 711
[A. K. SIKRI, J.]

10. It is the common case of the parties that the aforesaid criteria A
has not undergone any change till date and continues to govern the
appointment of DGsMS of services. As can be seen from the aforesaid
criteria, ‘the inter se seniority and suitability of officers in the rank of
Lieutenant General (and equivalent)’ is to be considered.
11. On the last occasion, when DGAFMS had recommended B
Lieutenant General Sanjiv Chopra for this post and that was challenged
by 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 most
eligible officer, if he is otherwise found suitable. In essence, criteria of
seniority subject to fitness was applied. Based on this notion that the C
criteria was ‘seniority-cum-suitability’, the AFT had taken the view that
seniority is a decisive factor and suitability is a secondary factor. Then
it proceeded on the premise that since it was not the case of the
respondents that the petitioner is unsuitable, he was wrongly overlooked.
The AFT also remarked that there was a deliberate attempt to somehow D
recommend the name of Lieutenant General Sanjiv Chopra and ignore
the petitioner. It was also found that there have always been a convention
to appoint senior most person to the post of DGMS (Army) inasmuch as
the appellants were not able to cite even a single case in last 20-30 years
where the seniority was overlooked. Contrary thereto, name of the
petitioner was not even forwarded by the DGAFMS to the Competent E
Authority for consideration while sending the names of two other officers
(including Lieutenant General Sanjiv Chopra). In this way, the petitioner
was wrongly ignored, was the opinion of the AFT.
12. In the appeal filed by the Union of India against the order of
the AFT, which culminated in the judgment dated August 01, 2018, this F
Court 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 seniority
as well as suitability. Therefore, apart from the ‘inter se seniority’, ‘inter G
se suitability’ is also to be assessed, which assessment is ‘in the light of
their earlier experience of serving in a particular service’. The Court
then defined the meaning of expression ‘inter se suitability’. Discussion
on this aspect is contained in paragraphs 40 to 45 of the judgment dated

H
712 SUPREME COURT REPORTS [2018] 13 S.C.R.

A August 01, 2018. Since both the parties rely upon the discussion contained
therein, it would be apt to reproduce these paragraphs in their entirety.
“40. When we read the aforesaid para (i) as a whole, we find
force in the submission of the appellant that the word ‘inter se’
applies both to seniority as well as suitability. Therefore, ‘inter se
B suitability’ is also to be assessed inasmuch as this assessment is
‘in the light of their earlier experience of serving in a particular
service’. As far as consideration on the parameters of ‘inter se
seniority’ is concerned, it would mean that a person who is senior
gets precedence. To this extent, there is no quarrel. Question is
as to what meaning is to be assigned to ‘inter se suitability’. Two
C questions arise from the above. First, what is the meaning of
‘suitability’. Second, how the expression ‘inter se suitability’ is to
be construed, i.e. whether it should be understood as choosing a
‘more suitable’ officer for appointment as DGsMS. As far as
inter se suitability is concerned, all the eligible officers in the rank
D of Lt. General (& Equiv), having regard to their earlier experience
of serving in particular services, they are to be considered for
appointment as DGsMS of services (i.e. DGMS (Army)).
41. Let us first consider the meaning of ‘suitability’.
42. In English parlance, the word ‘suitable’ is assigned the meaning
E as ‘appropriate, fitted for the purpose or acceptable’. The concise
Oxford Dictionary defines the word suitable as ‘well fitted for the
purpose; appropriate’. This ordinary meaning is to be given effect
to as a general guide, unless this expression is given special
meaning in a statute or rule in administrative instructions. In
F R (Quintavalle) v. Human Fertilisation Authority1, the House
of Lords remarked that “the word ‘suitability’ is an empty vessel
which is filled with meaning by context and background.
43. In service jurisprudence, where the word ‘suitable’ is normally
examined from the point of view as to whether a particular person
G is suitable to hold a particular post, it is construed as ‘fit’ to hold
that post. It would mean that the job profile and job requirement
of a particular post would be seen and then, going by the calibre,
competence, attributes, skill and experience of the candidate, it
would be ascertained as to whether such a person would be able
1
(2005) UKHL 28
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 713
[A. K. SIKRI, J.]

to discharge the duties of the post i.e. whether he is suited to A
carry out the functions of the post, to the satisfaction of his employer.
44. It, thus, follows from the above that the person to be eligible
should quality the following conditions:
(i) the officer should be in the rank of Lt. General (& Equiv);
B
(ii) such an officer should be holding the post of Comdt AM
C&C; and
(iii) he should have a minimum remainder service of one year
from the date of occurrence of the vacancy.
45. Adverting to the second question, the prefix ‘inter se’ has C
also to be given some meaning as it cannot be rendered otiose.
Therefore, whereas while assessing ‘suitability’, it has to be seen
that a particular officer is not unfit for the post, when it comes to
‘inter se suitability’, it has reference to assessing the suitability of
all eligible officers and thereafter finding who is more suitable to D
occupy such a post. We have to keep in mind that these are very
high ranking posts and, therefore, the competent authority is
supposed to choose a more suitable officer for such posts. We
are of the opinion that for expressing such an intention, the Circular
could have been worded more appropriately and with clarity to
avoid such doubts. However, since the word ‘inter se’ is used, it E
implies that the intention behind laying down this criteria was to
give these posts to a better suited person after evaluating their
inter se suitability. Of course, while doing this exercise seniority
of an officer is also to be given due weightage, meaning thereby if
the senior most person is competent to hold the post, he is to be F
given preference. Therefore, we conclude that the view of the
AFT that the post of DGMS (Army) is to be filled by the officer
on the strength of ‘seniority-cum-suitability’, where seniority is a
decisive factor and suitability is a secondary factor, is not correct.
In the entire discussion resting with the aforesaid view, the Tribunal
ignored the fact that it is not only seniority and suitability simpliciter G
but ‘inter se’ seniority and suitability. The expression ‘inter se’ is
totally ignored and there is no discussion thereupon at all, which
has led the AFT to take wrong view insofar as interpretation of
the criteria laid down in the Circular dated 10th July, 1992 is
concerned, which talks of ‘inter se seniority and suitability’.”
H
714 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 13. Thereafter, this Court examined the recommendation of DGMS
(Army) to appoint Lieutenant General Sanjiv Chopra and found that the
AFT rightly quashed the said recommendation. At the same time, the
direction of the AFT that the petitioner be straightway appointed to the
post of DGMS (Army) was also set aside and it was found that the said
direction of the AFT was on the basis that the appointment was to be
B
given keeping in view the seniority alone which was not found to be the
correct position. It is in these circumstances, the matter was remitted
back to the Raksha Mantri for taking appropriate decision in the matter.
14. The petitioner contends that his apprehensions that he would
be denied the post, come what may, have turned out to be correct. It is
C stated that even this Court in its judgment dated August 01, 2018 had
specifically remarked that the apprehensions of the AFT in regard to the
possible ouster of the petitioner may not be unfounded. Still, reposing
faith in the Competent Authority, matter was remanded back with the
hope that petitioner would be treated fairly. The grudge of the petitioner
D is that it has not happened and the manner in which the matter is projected
and placed before the Raksha Mantri by the concerned authorities shows
their state of mind which is antagonistic to the petitioner. It is submitted
that Air Marshal Rajvir Singh was empanelled in his second chance, i.e.,
the next Promotion Board after the previous Board in which the petitioner
was empanelled for promotion to the rank of Lieutenant General and
E was not even in the zone of consideration in the earlier process of
selection for appointment to the post of DGMS (Army). There was no
way he could have now suddenly made it to the said post on the ground
of suitability, especially when he is retiring after 7 months. Further, Air
Marshal Rajvir Singh is a plain MBBS doctor, who has never served as
F an MG (Medical) of a Command, whilst the petitioner besides being a
super-specialist and a nationally renowned Onco-surgeon, also has the
maximum Administrative and Operational experience. Therefore, the
petitioner feels aggrieved by his non-selection for the post of DGMS
(Army), declassified vide promotion order dated August 10, 2018.
G 15. It is further argued that in case of inter se suitability, the
petitioner is any day a more suitable person as compared to respondent
no. 4 which is clear from the following:
(i) The petitioner who is one promotion batch senior to Air Marshal
Rajvir Singh, is a super-specialist while respondent no. 4 is not
H even a specialist, leave alone a super-specialist. Besides this the
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 715
[A. K. SIKRI, J.]

petitioner has the maximum Administrative and Operational A
Experience, having tenated two Command Appointments as a
Brigadier/Major General and four prestigious appointments of
Commandant Officers Training College, MG (Medical) in three
different Commands/Armies and Delhi area, whereas as the Head
of the Medical Services of these Operational Commands and
B
Armies he has successfully performed the actual work of the
DGMS (Army) in half the country.
(ii) In the Special Selection Board for promotion to the post of
Lieutenant General held in January, 2016, the petitioner and
respondent no. 4 were considered together. The petitioner would
be deemed empanelled in the said Board (after a litigation which C
came 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 a
batch junior in this rank.
(iii) That as recent as on 23rd January, 2018, the respondents vide D
their noting dated January 23, 2018, had only recommended the
names of Lieutenant General Sanjiv Chopra and Surg. V. Adm
U.K. Sharma, in the panel for appointment to the post of DGMS
(Army), in spite of him being the senior most eligible Lieutenant
General to tenate the post. This noting was ultimately approved E
by the Raksha Mantri (as submitted by the respondents to this
Court, 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 of
consideration for appointment to the post of DGMS (Army). Now
all of a sudden, in August, 2018, after 8 months, respondent no. 4 F
has been brought from the Air Force, told to change his service
and uniform to Army and appointed to the post of DGMS (Army),
with the sole purpose of ousting the petitioner from tenating the
post of DGMS (Army). This again proves that the respondents
have always had a fixed agenda of somehow denying the G
appointment of DGMS (Army) to the petitioner, by all means
possible and have now achieved their aim by appointing respondent
no. 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, H
716 SUPREME COURT REPORTS [2018] 13 S.C.R.

A in the past, like in the case of last two DGMS’s (Army), whenever
lateral transfers from one service to another have taken place, it
is only to place the senior most officers as the DGMS (Army) as
this has always been considered as a “better”/higher post, with
the maximum responsibilities, since he is the Head of the Army
Medical Corps, which comprises over 75 per cent of the AFMS
B
(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 from
tenating his rightful post of DGMS (Army).
C (vi) In fact, in the past couple of decades, only three officers have
been transferred laterally from the DGsMS of one service (Navy)
to Army, because they were the senior most. This includes
Lieutenant General G. Ramdas and the last two DGsMS(Army),
i.e., Velu Nair and Bipin Puri (the present DGAFMS).
D 16. It is, thus, contended, by Mr. Kapil Sibal and Mr. P.S. Patwalia,
learned senior counsel appearing for the petitioner is that insofar as Air
Marshal Rajvir Singh is concerned he had already been given the post of
DGMS(Air). There was no question of considering him, now, for the
post of DGMS (Army). Further more, it amounted to lateral shifting of
DGMS of one service to another service, namely, from Air Force to
E Army. According to the policy letter dated July 10, 1992, such lateral
shifting 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 the
respondents by taking into consideration the ACRs of the officers from
F the beginning of their career terming it as ‘Overall Average Profile’
which was entirely new concept invented by the respondents for the
first time and outside the policy dated July 10, 1992.
17. Mr. K.K. Venugopal, learned Attorney General for India
referred to the discussion contained in paragraphs 40 - 45 of judgment
G dated August 01, 2018 and submitted with much vehemence that the
entire exercise was undertaken by the respondents keeping in view the
aforesaid 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
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 717
[A. K. SIKRI, J.]

were considered. He also submitted that this Court has specifically A
observed that since these are very high ranking posts, the Competent
Authority is supposed to choose a very suitable officer for such post
who is found to be better suited person, after evaluating the ‘inter se
suitability’. The Attorney General highlighted that the parameters of
suitability in respect whereof the eligible offices are to be considered
B
are stipulated in the judgment itself, viz., suitability is to be assessed with
respect to caliber, competence, attributes, skill and experience, with
consideration to ‘inter se seniority’. In this hue, his submission was that
for considering these aspects, Overall Average Performance (OAP) of
service ACRs of all eligible General Officers as on November 01, 2017
was rightly taken into consideration, as this provided an objective and C
fair basis for the assessment of the inter se suitability of the officers. As
a result, Air Marshal Rajvir Singh was found to be more suitable than
the petitioner. It was argued that such an exercise was strictly in
conformity with the judgment given by this Court which could not be
faulted with.
D
18. The learned Attorney General emphasised the importance of
DGMS (Army) post by contending that with the vast multitudinous
activities 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 of
DGMS (Army) requires for adequate discharge of its functions, high
degree of intellect and experience, having onerous responsibilities, with E
wide executive powers and not necessarily specialized knowledge in
any filed of medicine. Respondent No. 1, in the circumstances therefore,
had to make the best possible choice it can, keeping in view the larger
interests of the regular army. Therefore, in exercise of this choice, the
respondent no. 1 has selected and transferred respondent no. 4 from F
DGMS(Air) to DGMS (Army), but that does not make the transfer
arbitrary. He submitted that the transfer is made on account of the
exigencies of administration and is not with any discriminatory preference
for respondent no. 4 over the petitioner.
19. He also laid emphasis on the proposition that post of DGMS G
(Army) can only be filled by an incumbent in whom the State must
necessarily have the highest confidence, and appointment to the same
cannot go by seniority alone as contended by the petitioner. Therefore,
once in the opinion of the Raksha Mantri, respondent no. 4 was the
most suitable one, it is not open to the petitioner to seek judicial review
H
718 SUPREME COURT REPORTS [2018] 13 S.C.R.

A by filing the writ petition as if it is an appeal over the view taken by the
authority in such a case or substitute the view for that of the authority.
In support of the aforesaid proposition, Mr. Venugopal referred to
the following judgments:
(i) Union of India and Others vs. Lt. Gen. Rajendra Singh
B Kadyan 2
“20...Further, the expression “fit” has been brought to our notice
as legally meaning “fit to be chosen” by elaborating the expression
“eligible” in Stroud’s Judicial Dictionary, 5th Edn. However, the
expression “fit”, which has different shades of meanings, also
C means “a person to be appointed shall be legally eligible” and
“eligible” has already been explained by us to mean “fit to be
chosen”. Again, the expression “select” means “chosen or picked
up”. Therefore, we are of the view that to the post of Army
Commander, selection has to take place. Of course, considering
D the nature of rigorous standards adopted in the matter of selection
of officers from the stage of Lt. Colonel onwards up to the stage
of Lt. General in the usual course it may be that the senior most
officer is selected as the Army Commander. But that does not
debar the Chief of the Army Staff or the Union of India from
making the selection of any other person for good reasons who
E fulfills the necessary criteria. Therefore, we are of the opinion
that it was improper on the part of the High Court to have concluded
that the post of Army Commander is a non-selection post. Further,
the conclusion reached by the High Court that appointment to the
post of Army Commander has to be made on the basis of seniority
F alone cannot be accepted.”
(ii) Indira Jaising v. Supreme Court of India3
“68. What is merit? Is it the academic qualification or brilliance or
is it something more? The matter has been considered earlier by
this Court in K.K. Parmar v. High Court of Gujarat. Placing
G reliance on an earlier view in Guman Singh v. State of Rajasthan
it has been held that: (K.K. Parmar case, SCC pp. 801-02, paras
27-28)

2
(2000) 6 SCC 698
3
(2017) 9 SCC 766
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 719
[A. K. SIKRI, J.]

“27. Merit of a candidate is not his academic qualification. It is A
sum total of various qualities. It reflects the attributes of an
employee. It may be his academic qualification. He might have
achieved certain distinction in the university. It may involve the
character, integrity and devotion to duty of the employee. The
manner in which he discharges his final duties would also be a
B
relevant factor. (See Guman Singh v. State of Rajasthan.)
28. For the purpose of judging the merit, thus, past performance
was a relevant factor. There was no reason as to why the same
had been kept out of consideration by the Selection Committee. If
a selection is based on the merit and suitability, seniority may have
to be given due weightage but it would only be one of the several C
factors affecting assessment of merit as comparative experience
in service should be.””
(iii) State of West Bengal and others v. Manas Kumar
Chakraborty and others4 [Para 17]
D
“17. The learned Senior Counsel for the first respondent then
contended that if a person moves to a post of greater prestige,
duties and responsibilities, honour or status, as compared to the
previous post held, then that movement, even if lateral, would
amount to promotion, even if both the posts carry the same scale
of pay. Learned counsel relied upon the case of Meera Massey E
and Vice-Chancellor, L.N. Mithila University v Dayanand Jha
to support the contention urged. Even if the contention is accepted,
the fact remains that the second respondent was promoted by the
composite order dated 23-5-2001 to the substantive rank of DGP
and simultaneously posted as DG&IGP. We see no illegality in F
this. Secondly, there is no dispute that the post of DG&IGP is a
selection post like the other DGPs. The post of DG&IGP being a
post of very sensitive nature can only be filled by an incumbent in
whom the State Government must necessarily have the highest
confidence. We are, therefore unable to accept the contention of
the respondent that deployment of an incumbent in such a post G
can go only by seniority. Merit in the nature of past record, the
credibility and confidence which one is able to command with —
the Government of the State must play a predominant role in
4
(2003) 2 SCC 604
H
720 SUPREME COURT REPORTS [2018] 13 S.C.R.

A selection of an incumbent to such a post. In the opinion of the
appointing authority, the second respondent was the most suitable
one. It is not open to the courts to sit in appeal over the view
taken by the appointing authority in such a case or substitute its
own view for that of the duly constituted authority. The
Administrative Tribunal, as a matter of comparison of merit, was
B
inclined to hold that the second respondent was by far the better
and more meritorious candidate. The High Court has skirted this
question and declined to decide this issue. Since we are of the
view that there was no legal ineligibility in the second respondent
to hold the post of DG&IGP, we must necessarily accept the
C comparative assessment of merit by the first appellant State of
West Bengal and give credence to its own choice, of a suitable
incumbent for being posted, as such.”
20. He further submitted that internal office notings referring the
case for consideration by the Raksha Mantri will bear out the objective
D exercise undertaken by the respondents and submitted the original records
for the perusal of this Court.
21. We have given our thoughtful consideration to the submissions
which have been made by the learned counsel on both sides. we have
also perused the original records of the case.
E 22. File of the Ministry reveals that after the judgment of this
Court on August 01, 2018, Director (Medical) prepared his ‘Note’ dated
August 02, 2018 in which the salient aspects of the judgment have been
summarized. It is a fair and objective recording of the gist of the judgment.
The Director has even highlighted the ‘admitted facts’ which have been
F culled out in the judgment dated August 01, 2018. After stating the
summary of the judgment, the Director (Medical) in his note pointed out
that as on the date of the vacancy of the post of DGMS (ARMY), i.e.,
November 01, 2017, four persons, who were Lieutenant Generals (and
equivalent) Officers, were eligible for posting as DGMS (Army). These
four names stated in the note are: (a) Lieutenant General Manomoy
G Ganguly (petitioner herein); (b) Lieutenant General Sanjiv Chopra; (c)
Air Marshal Rajvir Singh (respondent no. 4 herein); and (d) Surg V
Adm U.K. Sharma. Against each of these officers, Director (Medical)
has appended his remark as well in a tabulated form, which is reproduced
hereinbelow:
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 721
[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
1 Sep 2016 environs of the IHQ of the MoD. B
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. C

Seniority 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
2018 dated 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 2017 over as DGMS(Air Force) w.e.f.
9.1.2018 E
Date 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
F
Cantt 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 2017 permanent 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, G
he 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
722 SUPREME COURT REPORTS [2018] 13 S.C.R.

A 23. The matter was placed before the Raksha Mantri, who gave
the following direction on August 03, 2018"
‘in compliance with the Hon’ble Supreme Court’s order, a proposal
may be put up”.
24. On the said direction, DGAFMS/VCOAS were requested by
B the Ministry to submit a proposal. DGAFMS vide his note dated August
04, 2018, proposed a panel of five names for consideration for the post
of DGMS (Army). Apart from the four names which are noted above,
he added name of Lieutenant General Anup Banerji as well. On the
above panel proposed by DGAFMS, the COAS has put his note dated
C August 08, 2018. He revised the panel by removing the name of
Lieutenant General Anup Banerji and considered the suitability of the
four officers. After considering their ACRs of the entire service, he
concluded that “considering the seniority and by also factoring the
conditions of suitability; it is apparent that Air Mshl Rajvir Singh, VSM
DGMS(Air) is more suited to tenant the appointment of DGMS (Army).”
D In his note while recommending Air Marshal Rajvir Singh, the COAS
stated that Air Marshal Rajvir Singh has the highest ACR average among
the officers in the panel. Once this proposal was received by the Ministry,
the Director (Medical) appended his note dated August 09, 2018
thereupon, incorporating the aforesaid exercise and the recommendation
E of COAS. In his note, he also brought out the following three pertinent
aspects:-
(A) In respect of exercise undertaken by COAS based on the
ACRs of the officers, while considering their suitability, it is
remarked that average of ACR gradings have never been used
F as criteria for posting of Lieutenant General rank officers.
(B) Air Marshal Rajvir Singh was not included in the panel for
the post of DGMS (Army) forwarded by the DGAFMS/COAS in
their earlier note dated January 23, 2018 as he had already assumed
the post of DGMS(Air) at that time. It is also stated in the note
G that MoD’s guidelines dated July 10, 1992 provided that “lateral
shifting of DGMS of one service to another service may be
considered only in exceptional circumstances.”
(C) The note again points out the observations of this Court in its
order dated August 01, 2018 to the effect that matter was remitted
back to the Raksha Mantri reposing full faith in her and the Court
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 723
[A. K. SIKRI, J.]

was confident that she would consider the entire matter in totally A
dispassionate manner, with utmost objectivity and depicting total
fairness. In the process, “the admitted facts culled out in the
judgment 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 B
(OAP) as per the personal profile sheets (Confidential Reports). It is
further stated that this Court has clarified that the suitability of a candidate
is to be assessed upon the touchstones of caliber, competence, attribute,
skill and experience and since the confidential report mechanism of the
Armed Forces has been a rigorous and time tested tool to assess the
suitability of officers to hold high command appointments and has an C
inbuilt assessment of all characteristics specified in the judgment, the
exercise of COAS based on OAP could be accepted. It is also specifically
remarked that though ACR gradings have never been used as a criteria
for posting of a Lieutenant General rank officer earlier, this was adopted
to comply with the directions of this Court. It is also mentioned that D
guidelines dated July 10, 1992 do provide for “lateral shifting”.
26. On the aforesaid parameters, the Raksha Mantri expressed
her agreement with the recommendation of the COAS and approved
the appointment of Lieutenant General Rajvir Singh as the DGMS
(Army). E
27. We may record at the outset that the exercise undertaken by
Raksha Mantri does not suffer from any element of unfairness and that
Raksha Mantri has endeavored to arrive at the decision, by interpreting
the order of this Court in a particular way. We shall advert to the question
as to whether such an understanding of the order is correct or not. F
However, the record shows, at least, that the exercise undertaken in
arriving at the said decision dated August 10, 2018 is bona fide, at least
insofar as the Raksha Mantri is concerned. At the same time, we are
constrained to remark that the decision making process suffers from
some significant errors and it cannot be said to be unblemished.
G
28. At the outset, we may observe that emphasis of the learned
Attorney General about the importance of DGMS (Army) post is
absolutely correct. The incumbent to this post has the responsibility to
discharge his function with high degree of intellect and experience as it
carries onerous responsibility, with wide executive powers, which would
H
724 SUPREME COURT REPORTS [2018] 13 S.C.R.

A include, 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 which
the State has highest confidence and the appointment cannot go by
seniority alone. At the same time, it is also to be borne in mind that the
Government has itself taken a decision on July 10, 1992 which mentions
the eligibility conditions for this post and also lays down the criteria which
B
has to be adopted while deciding the person who would be eminently
suited 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 in
particular service. Therefore, in this scenario the scrutiny of this Court
C is limited to the aspect as to whether the aforesaid criteria is scrupulously
followed.
29. We are also one with Mr. Venugopal about the scope of judicial
review in such mattes. The court, in exercise of judicial review, is not
concerned with the correctness of the findings of fact on the basis of
D which the orders are made so long as those findings are reasonable and
supported by evidence. The court does not substitute its judgment for
that of the legislature or executive or their agents as to matters within
the province of either. The court does not supplant “the feel of the
expert” by its own review. Undoubtedly, this Court is not sitting as an
appellate authority over the decision taken in making such appointments
E and is not supposed to substitute its view for that of the respondent
authorities. However, scope of judicial review certainly extends to
examining the decision making process and to see as to whether
appropriate process, legally permissible, has been undertaken while taking
the decision. While undertaking this examination, the court can deliberate
F and ensure that all relevant factors are taken into consideration and,
correspondingly, no irrelevant considerations have crept in in the decision
making process. These are, among others, the accepted norms of judicial
review. After all, discretionary powers conferred on the administration
cannot be unguided. No doubt, in such matters, the discretion exercised
by the authorities is to be generally accepted. This does not, however,
G mean that there is no control over discretion of the administration. All
powers have legal limits. There is distinction between decision making
process and the merit of the decision. Whereas in the former, the court
applies the standard of judicial review, in the latter, it enters into the
merits of the matter. In the leading decision of in Chief Constable of
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 725
[A. K. SIKRI, J.]

the North Wales Police v. Evans (Evans)5, Lord Hailsham stated: A
“The purpose of judicial review is to ensure that the individual
receives fair treatment, and not to ensure that the authority, after
according fair treatment, reaches, on a matter which it is authorised
by law to decide for itself a conclusion which is correct in the
eyes of the court. B
(emphasis supplied)”
30. First fundamental error has occurred in lateral shifting of Air
Marshal Rajvir Singh and considering his candidature along with others.
It is contrary to the policy Guidelines dated July 10, 1992. The Guidelines
permit such a lateral shifting ‘only in exceptional circumstances’. No C
such exceptional circumstances are sated anywhere on the basis of which
this move of lateral shifting is justified.
31. It is pertinent to mention here that DGAFMS/COAS in their
earlier notings dated January 23, 2018 had not included Air Marshal
Rajvir Singh in the panel for the post of DGMS (Army) on the ground D
that he had already assumed the post of DGMS(Air) at that time. Again,
at that time only the petitioner and Lieutenant General Sanjiv Chopra
were considered and Lieutenant General Chopra was recommended
for the post. This recommendation had been set aside by the AFT and
that decision was approved by this Court. In such circumstances, lateral
shifting of Air Marshal Rajvir Singh is beyond comprehension, more so, E
when no exceptional circumstances, which is the requirement, are pointed
out. These are neither stated while taking the decision nor in the counter
affidavit filed by the Union of India.
32. It has to be highlighted that this Court, no doubt, explained the
meaning of ‘inter se suitability by examining the same on the basis of F
caliber, competence, attributes, skills and experience of the officers.
However, these attributes are to be seen in the context of ‘suitability of
the eligible persons’. Once we discard lateral shifting, only the petitioner
and Lieutenant General Sanjiv Chopra remain in the fray. Now, we
advert to ‘inter se suitability’ as per the decision dated August 01, 2018 G
of 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 of
the 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)
H
726 SUPREME COURT REPORTS [2018] 13 S.C.R.

A of an officer is also to be given due weightage, meaning thereby if senior
most 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, but
definitely erroneous impression) from the judgment dated August 01,
2018, that “comparative merit” of the officers is to be adjudged and for
that purpose better method would be to go through the Overall Average
B
Performance (OAP). We fail to understand as to on what basis this
methodology was thought of, when concededly ACR gradings have never
been used as a criteria for posting of a Lieutenant General rank officer
earlier. Guidelines dated July 10, 1992 are in place for last more than 26
years. If it has not happened earlier and there was no such mandate of
C this Court also, as the Court never meant that performance of an officer
from the beginning of his career is to be adjudged, such an exercise was
unwarranted. We state at the cost of repetition that the parameters of
caliber, competence, attributes, skill and experience are to be looked
into, but with the objective to find out the ‘suitability of a person’.
Guidelines dated July 10, 1992 do not stipulate the criteria on ‘comparative
D
merit’ and it is not treated as ‘selection’ post. It uses the expression
‘suitability’. Above all ‘inter se seniority’ is also an important criteria
mentioned in the said policy. It is for this reason, this Court had
categorically stated that if the senior most person is competent to hold
the post he is to be given preference. Thus, we also find that the
E mechanism of OAP adopted is foreign to the Guidelines dated July 10,
1992. Having regard to this position contained in the policy decision
dated July 10, 1992, the judgments in the case of Lt. Gen. Rajendra
Singh Kadyan and Indira Jaising, which have been relied upon by the
learned Attorney General, would have no application. No doubt, judgment
in the case of Lt. Gen. Rajendra Singh Kadyan throws light on the
F
meaning which is to be given to the expression ‘fit’ as the Court has said
that a person who is to be selected for the post should be ‘fit to be
chosen’. However, as is seen, nowhere the respondents have undertaken
the exercise to this effect, namely, fitness or suitability of the petitioner
to occupy the post in question. On the earlier occasion, when he was
G considered along with Lieutenant General Sanjiv Chopra, the latter was
recommended only on the basis that the petitioner would be newly
promoted from the rank of Major General, he does not have ‘previous
exposure to the working and environs of the IHQ of the MoD’. It was
held that it was an extraneous reason and did not amount to fair and
objective consideration of his suitability for the post of DGMS (Army)
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 727
[A. K. SIKRI, J.]

as it is not necessary to have working experience in IHQ alone. This A
time, again, nowhere his suitability to man the post of DGMS (Army) is
adjudged. On the contrary, norm of Overall Assessment Purpose (OAP)
is brought in and applied, which is again foreign to the guidelines dated
July 10, 1992.
33. We, thus, are of the opinion that the process undertaken by the B
respondents in taking decision to appoint Air Marshal Rajvir Singh as
DGMS (Army) does not stand judicial scrutiny. We are constrained to
set aside the appointment of respondent no. 4 as DGMS (Army).
34. With this, we come to another crucial part, namely, in this
whole background and scenario when we find that respondent No.4 C
could not have been literally shifted and appointed as DGMS (Army) in
the absence of any exceptional circumstances, what kind of directions
can be issued. Once when lateral shifting is held to be impermissible,
two officers remain in the fray, namely, the petitioner and Lieutenant
General Sanjiv Chopra. Having regard to the fate of Lieutenant General
Sanjiv Chopra in the first round of litigation, we are left with the petitioner. D
As already pointed out above, it is not the case of the respondents that
the petitioner is not suitable for the post of DGMS (Army). After all, he
has not been rejected on this ground. It is also an admitted fact that he
is the senior most person. At this juncture, we would like to reiterate the
admitted facts which were taken note of in the judgment dated August E
01, 2018.
“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. F
(ii) He fulfills the eligibility criteria for appointment to the p o s t
of DGMS (Army).
(iii) DGMS (Army) is treated as better post than other DGs, i.e.,
DGMS(Navy) and DGMS(AF).
G
(iv) The past practice has been to fill up the post of DGMS (Army)
from a senior most officer. Before the AFT, the appellants failed
to give any example where seniority was ignored. In the past, i.e.
ever since issuance of Circular dated 10th July 1992, the practice
has been to appoint the senior most Lt. General from Army. Before
H
728 SUPREME COURT REPORTS [2018] 13 S.C.R.

A the AFT, the appellants could not cite a single deviation to the
aforesaid practice. In the appeal, example of one Air Marshal
H.K. Maini is given. However, it is adequately answered by the
respondent by pointing out that that happened because Air Marshal
Maini himself chose not to be posted as DGMS (Army) because
of his health reasons, which the appellants could not controvert.
B
(v) Even, in the present case, for appointment of DGMS (Army)
the first Note dated 16th January 2018 by DGAFMS, in no uncertain
terms, stated that the appointment to this post is to be made ‘strictly
on the basis of their seniority’, meaning thereby the senior most
Lt. General (& Equiv) is to be posted. That Note was prepared
C on the assumption that the respondent is not in the reckoning as
his case for promotion to the post of Lt. General was not
recommended.
(vi) It is for the first time that in the Note dated 23rd January 2018
the question of so-called ‘suitability’ is taken up. We have used
D the expression ‘so-called’ for the reason that (as would be
discussed in some detail afterwards) even this Note dated 23rd
January 2018 does not reflect that any exercise of “inter se
suitability” is carried out strictly in accordance with the criteria
laid down in the Circular dated 10th July 1992, i.e. on the touchstone
E of ‘inter se seniority and suitability’.
35. Having regard to overall circumstances of the case and the
manner in which this case has been dealt with in the past, we are left
with no alternative but to give the directions ourselves. In adopting this
course of action, we would also like to reproduce the following discussion
F from the judgment dated August 01, 2018:
“Apart from the aforesaid admitted facts, we also would like to
state some of the findings as recorded by the AFT, with which we
are in agreement. These are listed below:
(i) There has been some attempt (though we are not suggesting
G as to whether it was deliberate or bona fide) in denying the
respondent 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 even
after the orders of the AFT and affirmation thereafter by the
judgment of this Court, the Board had stuck to its earlier notion
H
LT. GEN. MANOMOY GANGULY, VSM v. UNION OF INDIA 729
[A. K. SIKRI, J.]

about the respondent. Fortunately for him, the Raksha Mantri A
took a fair and objective view in the matter and granted him his
deserved promotion, which was legitimately due to him.
(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 B
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 C
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 D
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 23rd 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 E
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 10th 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 F
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.
(iii) The manner in which this Note is written leaves a reasonable
impression that the exercise was done to exclude the respondent G
from appointment to the post of DGMS (Army). In the first
instance, though the criteria of assessment ‘in the light of their
earlier experience in a particular service’ is mentioned in paragraph
3 of the Note, it nowhere reproduces the exact criteria, namely,
‘inter se seniority and suitability’. Thus, while considering the earlier
H
730 SUPREME COURT REPORTS [2018] 13 S.C.R.

A experience in a particular service, it was to be done in the light of
inter se seniority-cum-suitability is not reflected in the said Note.
In fact, there is no such exercise of inter se suitability undertaken
in this Note.
(iv) In paragraph 7 of the Note dated 23rd January 2018, case of
B the respondent is discussed. Qua him it is mentioned that since
he would be newly promoted from the rank of Major General, he
does not have ‘previous exposure to the working and environs of
the IHQ of the MoD’. On that basis, he is proposed for
appointment as DGHS (AF) instead of DGMS (Army). This,
according to us, is not a fair and objective consideration of his
C suitability for the post of DGMS (Army) as it is not necessary to
have working experience in IHQ alone. Mr. Patwalia had
vehemently argued that the respondent had adequate
administrative experience while working as Major General in
Southern Command, which was equally relevant, doing similar
D nature of duties from which he has gained sufficient experience
making him aptly suitable for the post of DGMS (Army). He had
also pointed out that in the past, officers who are appointed to the
post of DGMS (Army) were not necessarily those officers who
had earlier worked in the environs of the IHQ of the MoD. This
fact also could not be refuted by the appellants. Therefore, we
E find that there has not been any proper and valid consideration in
applying the criteria of inter se seniority and suitability.”
36. As a result, we allow this writ petition and quash orders dated
August 10, 2018 and issue mandamus directing the respondents to appoint
the petitioner as DGMS (Army).
F
Necessary orders in this behalf shall be passed within one week.

Ankit Gyan Writ Petition allowed.

G

H