Lt. Gen. Manomoy Ganguly, Vsm vs Union of India and Others

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 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 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, 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]

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 in the fray. Now, 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 August 01, 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 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 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 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, 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 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 ‘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 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. [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 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 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.