REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO. 980 OF 2018

LT. GEN. MANOMOY GANGULY, VSM .....PETITIONER(S)

VERSUS

UNION OF INDIA AND OTHERS .....RESPONDENT(S)

W I T H

M.A. NO. 2188 OF 2018 IN

CIVIL APPEAL NO. 5800 OF 2018

J U D G M E N T

A.K. SIKRI, J.

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)

{hereinafter referred to as 'DGMS (Army)'}, which has alluded him

till now.

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 1 of 39

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 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  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 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.

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3) Notwithstanding  the  above,  in  the  fresh  review  by  the  SPB

(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 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 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,  Armed  Forces  (Medical)  Services,  after

consideration  of  his  case  along  with  one  Lieutenant  General

Sanjiv Chopra, decided to recommend Lieutenant General Sanjiv

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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 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.

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 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 petitioner to take a remedial action.  This application

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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 instant Writ Petition

(Civil)  No.  980 of  2018 challenging the appointment  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  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

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

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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 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 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.

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              (1st tier post)

DGMS (Army)            DGMS(Navy)           DGMS(Air) (2nd Tier post)

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 6 of 39

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 (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:

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

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

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 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.

(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

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Gen (and equivalent) rank, already approved for promotion to Lt. Gen rank, may be considered for such appointments.

(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 equivalent) rank stabilise."

  10) It is the common case of the parties that the aforesaid criteria 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

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 criteria was

'seniority-cum-suitability',  the  AFT  had  taken  the  view  that

seniority is a decisive factor and suitability is a secondary factor.

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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  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  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  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.

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Therefore, apart from the 'inter se seniority', 'inter 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 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 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 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 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 as ‘appropriate,  fitted for  the purpose  or  acceptable’.   The  concise  Oxford Dictionary defines the word suitable as ‘well fitted for

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 10 of 39

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 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 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  to discharge the  duties  of  the  post  i.e.  whether  he  is suited to 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);  (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 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 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

1 (2005) UKHL 28

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 11 of 39

been worded more appropriately  and with clarity  to avoid such doubts.  However, since the word ‘inter se’ is  used,  it  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 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 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’."

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 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.

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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 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  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  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 an

MG (Medical) of a Command, whilst the petitioner besides being

a super-specialist and a nationally renowned Onco-surgeon, also

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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.

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 even a specialist, leave alone a super-specialist.  Besides

this  the  petitioner  has  the  maximum  Administrative  and

Operational  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  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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 14 of 39

respondent no. 4 were considered together.  The petitioner would

be deemed empanelled in the said Board (after a litigation which

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 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 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 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

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the respondents have always had a fixed agenda of somehow

denying the 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, 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 (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).

(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).       

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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 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 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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 17 of 39

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,  were

considered.   He also submitted that this Court has specifically

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  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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 18 of 39

conformity with the judgment given by this Court which could not

be faulted with.

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  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 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

(Army) can only be filled by an incumbent in whom the State must

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 19 of 39

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 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 Kadyan2

"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  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 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 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

2 (2000) 6 SCC 698

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 20 of 39

has to be made on the basis of seniority 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  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)

“27.  Merit  of  a  candidate  is  not  his  academic qualification.  It  is  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  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 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]

"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 and Vice-Chancellor, L.N. Mithila  University v  Dayanand  Jha  to  support  the contention urged. Even if the contention is accepted, the

3 (2017) 9 SCC 766 4 (2003) 2 SCC 604

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 21 of 39

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 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 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 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 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 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

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.

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 22 of 39

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 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  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:

S.No .

Officer's particulars Remarks

(a) Lt.  Gen.  Manomoy Ganguly,  VSM  MG(Med) HQ,  SC,  Pune  (MR- 014141M)

Seniority in the rank of Lt.

Vide  note  23.01.2018, DGAFMS with  the  approval of  COAS had found him to be unsuitable for the post of DGMS (Army) on the ground that  he  does  not  have

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 23 of 39

Gen: 1 Sep 2016 Date of retirement: 31 May 2019

previous  exposure  to  the working environs of the IHQ of the MoD.  However, these grounds have been quashed by  the  Hon'ble  Supreme Court

(b) Lt  Gen  Sanjiv  Chopra, VSM  Col  Comdt  (MR- 04142P) DGHS(AF)

Seniority in the rank of Lt. Gen.: 18 Nov. 2016

Date of retirement: 17 Nov 2018

He  has  been  selected  for appointment  to  the  post  of DGMS (Army)  vide  note  9- 10 of preceding note.

However,  the  selection  has been  quashed  by  Hon'ble AFT  vide  its  order  dated 07.05.2018  and  upheld  by Hon'ble Supreme Court vide its order dated 01.08.2018.

(c) Air Mshl Rajvir Singh, VSM ( MR-04153F)

Date  of  Seniority  in  the rank : 1 May 2017

Date of retirement:  31 Mar 2019

The officer was not included in  the  panel  for  posting  as DGMS  (Army)  in  the  letter dated  23.1.2018  by DGAFMS as he had already taken  over  as  DGMS(Air Force) w.e.f. 9.1.2018

(d) Surg V Adm U.K. Sharma, (MR-04262N)

Commandant  AH(R&R) Delhi Cantt

Seniority in the rank of Lt. Gen: 1 June 2017

Date  of  Retirement:  30 June 2019

Vide  note  23.01.2018, DGAFMS with  the  approval of  COAS  had  not recommended the officer for the post of DGMS (Army) on the  ground  that  he  "is  the senior  most  Medical Specialist  and Nephrologist. The  Flag  Officer  has  been proposed  for  permanent secondment  to  Army  in  the rank  of  Lt.  Gen  for  the appointment  of Commandant  AH(R&R) which  is  falling  vacant  on 31.03.2018.   Hence,  he  is not  recommended  for  the appointment  of  DGMS (Army)".

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 24 of 39

The  officer  has  since  been posted  as  Commandant AH(R&R) w.e.f. 01.04.2018.  

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 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 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)."   In  his  note  while  recommending  Air  Marshal  Rajvir

Singh,  the COAS stated that  Air  Marshal  Rajvir  Singh has the

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 25 of 39

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 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 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 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 was confident that she would consider the entire matter

in  totally  dispassionate  manner,  with  utmost  objectivity  and

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 26 of 39

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  (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 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

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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 27 of 39

the appointment of Lieutenant General Rajvir Singh as the DGMS

(Army).

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.   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.

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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 28 of 39

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  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 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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 29 of 39

over the decision taken in making such appointments 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 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, 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 the

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

"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

5 (1982) I WLR 1155 : (1982) 3 All ER 141 (HL)

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 30 of 39

matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.

(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 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 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, when

no  exceptional  circumstances,  which  is  the  requirement,  are

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 31 of 39

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 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 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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 32 of 39

Average 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 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 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 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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 33 of 39

learned Attorney General, would have no application.  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 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  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) 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,

1992.

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 34 of 39

33) We, thus, are of the opinion that the process undertaken by the

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

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.   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 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:

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 35 of 39

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

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 36 of 39

the  following  discussion  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 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  about  the  respondent.   Fortunately  for  him,  the Raksha Mantri 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 again refused to recommend the case  of  the  respondent  in  the  rank  of  Lt.  General Therefore,  he  proceeded  on  the  basis  that  since  the respondent is not occupying the post of Lt. General he is out  of  reckoning  and,  accordingly,  Lt.  General  Sanjiv Chopra was the senior most officer.   Proceeding on the aforesaid  presumption,  after  excluding  the  respondent from consideration,  he recommended Lt.  General  Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre.  This Note went to the extent of recording that not only promotion is strictly on the basis of their  seniority,  it  was  being  done even  for  the  posts  of ‘DGAFMS’, ‘DGsMS’ and the ‘CDC IDC’ who are retained in the order of seniority for administrative reasons.  Within three days thereafter,  when the decision of  the Raksha Mantri  to  promote  the  respondent  to  the  rank  of  Lt. General was declassified, in the fresh Note prepared on 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  for appointment  of  DGMS  ‘in  the  light  of  their  earlier experience in a particular service’.  No doubt, this criteria

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 37 of 39

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 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 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 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  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 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 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 find that there has  not  been  any  proper  and  valid  consideration  in applying the criteria of inter se seniority and suitability."   

Writ Petition (Civil) No. 980 of 2018 & Anr. Page 38 of 39

36) As a result, we allow this writ petition and quash orders dated

August 01, 2018 and issue mandamus directing the respondents

to appoint the petitioner as DGMS (Army).

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

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 29, 2018.

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