LT. GEN. MANOMOY GANGULY, VSM versus UNION OF INDIA AND OTHERS

Citation: [2018] 13 S.C.R. 703 · Decided: 29-10-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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LT. GEN. MANOMOY GANGULY, VSM
v.
UNION OF INDIA AND OTHERS
(Writ Petition (C) No. 980 of 2018)
OCTOBER 29, 2018
[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
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
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
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
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
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
[2018] 13  S.C.R. 703
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
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
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
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
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