Case: LT. GENERAL MANOMOY GANGULY VSM Vs. UNION OF INDIA

present case, for appointment of DGMS (Army) the first Note dated 16 th 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 23 rd 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 23 rd 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 10 th 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 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 16 th January 2018, when DGAFMS prepared his Note for appointment to the post of DGMS (Army), which had fallen vacant few months ago, he only knew that the Review Board had again refused to recommend the case of the respondent in the rank of Lt. General Therefore, he proceeded on the basis that since the respondent is not occupying the post of Lt. General he is out of reckoning and, accordingly, Lt. General Sanjiv Chopra was the senior most officer. Proceeding on the aforesaid presumption, after excluding the respondent from consideration, he recommended Lt. General Sanjiv Chopra for appointment as DGMS (Army) being the senior most in the AFMS cadre. This Note went to the extent of recording that not only promotion is strictly on the basis of their seniority, it was being done even for the posts of ‘DGAFMS?, ‘DGsMS? and the ‘CDC IDC? who are retained in the order of seniority for administrative reasons. Within three days thereafter, when the decision of the Raksha Mantri to promote the respondent to the rank of Lt. General was declassified, in the fresh Note prepared on 23 rd January 2018, there was a complete turn around. For the first time, it was mentioned in this Note that as per the criteria Lt. General (& Equiv) will be assessed for appointment of DGMS ‘in the light of their earlier experience in a particular service?. No doubt, this criteria is mentioned in the Circular dated 10 th July 1992 and, therefore, there may not be anything wrong per se. However, we find substance in the submission of the learned senior counsel appearing for the respondent that such a realisation dawned only after coming to know that the respondent was also in the reckoning for appointment to the post of DGMS (Army) and he was the senior most officer.(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 23 rd 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."36.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 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 isinter se seniority. 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.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 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.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 shiftingonly in exceptionalNo such exceptional circumstances are sated anywhere on the basis of which this move of lateral shifting is justified.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 pointed out. These are neither stated while taking the decision nor in the counter affidavit filed by the Union of India.It has to be highlighted that this Court, no doubt, explained the meaning ofinter 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 ofsuitability of the eligibleOnce we discard lateral shifting, only the petitioner and Lieutenant General Sanjiv Chopra remain in the fray. Now, we advert tointer se suitabilityas per the decision dated August 01, 2018 of this Court. The criteria isinter se suitabilityer seThus, suitability of the persons was to be adjudged with the adoption of the said criteria. It is for this reason that in the judgment datedit 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 givenIt 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 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 thesuitability of aGuidelines dated July 10, 1992 do not stipulate the criteria on and it is not treated aspost. It uses the expressionis 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 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 expressionas the Court has said that a person who is to be selected for the post should befit to beHowever, 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 haveprevious exposure to the working and environs of the IHQ of theIt 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.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).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:(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 10 th 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 16 th 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 23 rd January 2018 the question of‘suitability? is taken up. We have used the expressionfor the reason that (as would be discussed in some detail afterwards) even this Note dated 23 rd January 2018 does not reflect that any exercise ofy? is carried out strictly in accordance with the criteria laid down in the Circular dated 10 th July 1992, i.e. on the touchstone ofe seniority andng 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.