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SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
LT. GEN. MANOMOY GANGULY, VSM – PETITIONER(S)
VERSUS
UNION OF INDIA AND OTHERS – RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 980 OF 2018 WITH M.A. NO. 2188 OF 2018 IN CIVIL APPEAL NO. 5800 OF 2018
Decided On : 29-10-2018
(b) Administration of justice – Judicial review – Court does not sit as an appellate authority – Court not concerned with the correctness of the findings of fact so long as these are reasonable and supported by evidence – Scope of judicial review extends to examining the decision making process as to whether appropriate process, legally permissible, has been undertaken while taking the decision – Distinction between decision making process and the merit of the decision – In the former, the court applies the standard of judicial review, in the latter, it enters into the merits of the matter. (Para 29)
(1982) I WLR 1155 : (1982) 3 All ER 141 (HL) – Referred
(c) Service law – Defence service – Appointment to post of DGMS (Army) – Lateral shifting of Air Marshal Rajvir Singh and considering his candidature along with others – Contrary to policy Guidelines permitting such lateral shifting only in exceptional cases – No exceptional circumstance stated presently – Held, Air Marshal Rajvir Singh was not eligible – That leaves only the petitioner and Lt. General Sanjiv Chopra in the fray – DGMS not a selection post and criteria do not stipulate ‘comparative merit’ – Senior most person if competent to hold the post is to be given preference – Mechanism of OAP adopted is foreign to the Guidelines – Instantly, suitability of Lt. General Sanjiv Chopra to man the post of DGMS (Army) not adjudged – Held, process undertaken by respondents in taking decision to appoint Air Marshal Rajvir Singh as DGMS (Army) does not stand judicial scrutiny – His appointment set aside. (Para 30, 32, 33)
(2000) 6 SCC 698; (2017) 9 SCC 766 – Distinguished
(d) Service law – Defence service – Appointment to DGMS (Army) – Lateral shifting of Air Marshal having been held impermissible leaving only the petitioner and Lt. General Sanjiv Chopra in the fray– In last round of litigation petitioner found more suitable than Lt. General Chopra – Respondents directed to appoint the petitioner as DGMS (Army). (Para 34, 35, 36)
Facts of the case:
Present proceedings are the repeat attempt of the petitioner Major General Manomoy Ganguly to get the position of Director General Medical Services (Army), which has alluded him till now.
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 in 2016 as the Special Promotion Board (Medical) did not empanel him for promotion to the said rank.
In the fresh review by the SPB (Medical) held on December 04, 2017. The petitioner was promoted to the rank of Lieutenant General on March 01, 2018.
The petitioner became eligible for promotion to the post of DGMS (Army) but was denied the appointment. Instead, Air Marshal Rajvir Singh was recommended and he joined the post on August 10, 2018.
Finding of the Court:
Process undertaken by respondents in taking decision to appoint Air Marshal Rajvir Singh as DGMS (Army) does not stand judicial scrutiny
Result: Writ petition allowed.
JUDGMENT
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.
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 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 Ap
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