Lt. General Manomoy Ganguly Vsm vs Union Of India

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.

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 Writ Petition (Civil) No. 980 of 2018 & Anr. Page 3 of 39 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 Writ Petition (Civil) No. 980 of 2018 & Anr. Page 4 of 39 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).

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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).

(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.

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.

OCTOBER 29, 2018.

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