New Delhi, The Supreme Court on Monday directed for the appointment of Lt Gen Manomoy Ganguly as the Director General Medical Services (DGMS)-Army as it struck down the shifting of Air Marshal Rajvir Singh from DGMS-Air to DGMS-Army as impermissible.
Allowing the petition by Lt Gen Ganguly, the bench of Justice A.K. Sikri and Justice Ashok Bhushan said: “We … issue mandamus directing the respondents to appoint the petitioner as DGMS-Army.”
Leaving no scope for any further delay in the appointment of Lt Gen Ganguly, the court said that necessary orders in this regard should be passed within one week.
Issuing the directive, the court said: “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.”
Holding the lateral shifting of Air Marshal Rajvir Singh as a “fundamental error”, the court said it is contrary to the policy guidelines of July 10, 1992.
“The guidelines permit such a lateral shifting ‘only in exceptional circumstances’. No such exceptional circumstances are stated anywhere on the basis of which this move of lateral shifting is justified,” the judgment said.
Noting the fact that the Centre has not questioned the suitability of Lt Gen Ganguly and he is the senior most officer in Army Medical Corps, the court said: “No doubt, (we) explained the meaning of ‘inter se suitability’ by examining the same on the basis of calibre, competence, attributes, skills and experience of the officers.”
However, these attributes are to be seen in the context of “suitability of the eligible persons”, said the judgment, adding that 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.”
Holding that the Chief of the Army Staff (COAS) was under an “erroneous impression” may be bona fide 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).
“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 OAP,” the judgment said.
“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,” said Justice Sikri speaking for the bench.
Elaborating, the court said that July 10, 1992 guidelines are in place for the last over 26 years and “if it (OAP) 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 entire case is rooted in Lt Gen Ganguly reputedly knocking the doors of Armed Forces Tribunal and that of Supreme Court to assert his right to be appointed DGMS-Army and authorities every time citing criteria to deny him the same.
This finds reflection as Justice Sikri in the judgment said: “There is a chequered history in this case, which is getting curious with each round of litigation. Present proceedings are the repeat attempt of petitioner Maj Gen Manomoy Ganguly to get the position of DGMS-Army, which has illuded him till now.”
