Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Judgment reserved on: 22 January, 2010
% Judgment delivered on: Ist February, 2010
+ W.P. (C) No.7994/2009 & C.M. No.4481/2009
NAIB SUBEDAR K.C. JENA ..... Petitioner
Through: Col. R. Balasubramanian &
Mr. S.S. Pandey, Advocates
versus
UOI & ORS. ..... Respondent
Through: Ms. Jyoti Singh & Mr. Ankur
Chhibber, Advocates
CORAM:
HON’BLE MR. JUSTICE GITA MITTAL
HON’BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
J U D G M E N T
GITA MITTAL, J.
1. By this writ petition the petitioner assails the denial of the
opportunity to go on the UN mission on which the unit, to which he was
posted, has been deployed. The petitioner also assails the order dated
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30 December, 2008, whereby he has been posted out of 2 JAK RIF
long after the unit's deployment on the UN Mission.
2. There is no material dispute to the facts giving rise to the
petition. To the extent necessary for the purposes of the present
adjudication, the same are briefly noticed hereinafter.
W.P.(C) No.7994/2009 Page 1 of 21
3. The petitioner belongs to the Army Education Corps of the Indian
army. We are informed that persons belonging to the Army Education
Corps and other services are posted in different units for particular
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tenures. On 1 July, 2007, the petitioner was posted to the 2 JAK RIF,
an infantry battalion, as its Havildar Instructor – then a Non-
Commissioned Officer (hereafter referred to as „NCO‟ for brevity) of the
army.
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4. A letter No.40202/FM/SD-4(A) dated 31 January, 2008 was
issued by the Integrated HQ of MOD (Army) informing that 2 JAK RIF
was selected for a UN mission. Copy of this communication from the
Additional Director, Directorate General of Staff Duties of the
Integrated Headquarters of the MOD (Army) has also been placed on
record by the respondents. We also find no dispute to this fact in the
counter affidavit.
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5. On the 1 July, 2008, an event which should have brought
rejoicing to the petitioner occurred. Instead, the same has
necessitated the filing of the present writ petition. The petitioner was
promoted on this date to the rank of Naib Subedar. Consequently, he
became a Junior Commissioned Officer ('JCO' for brevity). It is an
admitted position that even after his promotion, he continued to
remain posted on the strength of 2 JAK RIF. It is an admitted position
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that on the 15 December, 2008 he was posted along with the unit for
completion of the pre-induction training and formalities to the Khanpur
Camp, New Delhi, as a precursor to the United Nations deployment.
W.P.(C) No.7994/2009 Page 2 of 21
6. Apart from the petitioner, one Subedar Mukesh Kumar Mishra,
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respondent no.6, had been detailed with 2 JAK RIF w.e.f. 6 November,
2006 as a JCO from the Army Education Corps.
7. In this background the Commanding Officer of the petitioner's
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unit addressed a communication dated 18 September, 2008 to the
Directorate General of Military Training intimating it of this position. It
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was pointed out that as per para 3 of the communication dated 9
March, 2007 from the Integrated HQ of MOD (Army), it was only
specified that 2 AEC personal would accompany a unit on a UN Mission
without mention of any rank structure. A recommendation was made
by the Commanding Officer to permit the petitioner, who stood
promoted, to accompany the unit on the UN Mission as the second AEC
personnel in terms of the said communication.
8. The petitioner contends that after he had completed the
essential training and formalities including satisfying the medical
fitness test for the foreign posting, the respondent No.3 issued a signal
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on 25 December, 2008 posting the respondent No.7, AEC Hav. Jai
Kumar to the 2 JAK RIF for accompanying the unit on the UN Mission
with the direction to the respondent No.5 to”post out/side step” the
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petitioner. This was followed by a communication dated 30
December, 2008 from the respondent No.5 posting the petitioner out
of 2 JAK Rif to HQ 89 INF BDE.
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9. The petitioner has placed reliance on a message dated 11
March, 2009 from the AEC records to the petitioner‟s unit to send the
petitioner on the posting with the specific assurance that in case the
Commanding Officer‟s proposal for the petitioner to accompany the
W.P.(C) No.7994/2009 Page 3 of 21
unit on the UN Mission was agreed to by the competent authority, the
petitioner would be made available for such posting. The petitioner
submits that on account of the pressure put on the petitioner‟s
Commanding Officer, he was compelled to issue the petitioner‟s
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movement order on 21 March, 2009 despite his recommendations for
permitting the petitioner to proceed on the UN posting with the unit
still pending consideration.
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10. Apart from the communication dated 8 January, 2009, another
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letter dated 2 March, 2009 was sent by the Commanding Officer
recommending the petitioner‟s continuation in the unit as the AEC staff
member for the UN Mission. The respondents, however, did not agree
to the same. A stand was taken that as per the existing policy only
one AEC JCO was authorized during the first rotation of the unit in the
deployment for the UN posting, who would be relieved by a NCO in the
second rotation. According to the respondents, for the reason that the
petitioner stood promoted as a JCO, he could not be sent on the UN
posting as one JCO was already in place in the unit.
11. Aggrieved by this stand of the respondent, the petitioner has
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filed the present writ petition on or about the 28 of March, 2009
contending that the stand of the respondents was contrary to the
prescribed policy for the UN posting and also contrary to the manner in
which the same had been operated in the past. The petitioner also
assails his posting out of the unit after its selection for the UN Mission.
The petitioner has placed reliance on a specific instance with regard to
the manner the respondents had proceeded when a similar situation
W.P.(C) No.7994/2009 Page 4 of 21
arose in relation to AEC personnel posted with the 10 Assam RIF which
was earlier deployed on the UN posting at the same location.
12. Before this court the sole ground for opposition of the claim of
the petitioner for deployment on the foreign posting in the second
rotation of the unit is the contention that after his promotion, the
petitioner was not on the authorized strength of 2 JAK RIF and that only
such personnel who are on the authorized strength of the unit could
proceed for the foreign posting.
13. We have heard learned counsels for the parties at length and
given our considered thought to the material placed as well as
submissions made before us.
14. The COC issue which arises for consideration is as to whether the
stand taken by the respondents is in consonance with the declared
policy governing the subject. The petitioner has placed before us the
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policy dated 22 November, 2004 which governs detailment of
attached personnel on UN Missions. It is not disputed on behalf of the
respondents that this very policy governs the deployment of UN
Mission even on date.
15. We find that this policy statement reiterates the position that an
Infantry Battalion nominated to proceed on a UN Mission consists not
only of the infantry personnel but requires posting of requisite number
of persons from other arms and services. Inasmuch as, both parties
have placed extensive reliance on this document, the relevant portion
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of the policy dated 22 November, 2004 may be usefully extracted in
extenso and reads as follows :
W.P.(C) No.7994/2009 Page 5 of 21
“71362/Policy Gen/SD-3 UN 22 Nov.,04
GENERAL STAFF SHAKHA/GENERAL STAFF
BRANCH SD-3 (UN)
POLICY : DETAILMENT OF ATTACHED
PERSONNEL ON UN MSNs
1. Please refer to existing policy on the
subject. Inf bns of the Indian Army have since
long been detailed to proceed on UN
Peacekeeping msns in various regions of the
world. As of now, whenever an inf bn is
nominated to proceed on an UN msn the
composition of the bn is made up to meet the
requirements of the UN msn by posting in the
requisite number of personnel from other arms
and services under arrangement of concerned
line dtes.
2. As per the provisions of the existing
policy being followed all attached personnel on
strength of the nominated inf bn (normally
personnel from EME AMC and AEC) are
replaced by a corresponding for more if
required) number of personnel specially
selected for the UN msn by respective record
offices/line dtes. This invariably gives rise to a
feeling of being discriminated against amongst
those posted on the strength of the unit who
have honestly served the bn through thick and
thin but have to be posted out after the bn is
nominated to proceed an a UN msn. This also
temporarily disturbs the cohesion in the bn for
understandable reasons. Feedback has been
received from our bns who have served on UN
msns recommending that personnel from other
arms and services who are posted on the
strength the bn at the time of nomination
should not be denied an opportunity to proceed
on the UN msn with the bn unless they
themselves are disqualified on acct of not
meeting certain mandatory QR of discipline
and med status.
3. A policy decision has therefore been
taken that henceforth, all personnel from other
arms and services who are already on the
posted strength of the inf bn at the time of
its induction for the UN msn and fulfill all
other med disciplinary and service
criteria , will be allowed to proceed with the bn
on the UN msn. Only additional personnel from
W.P.(C) No.7994/2009 Page 6 of 21
other arms and services as may be required to
make up the desired composition of the bn will
be posted to the bn by requesting the line dtes
for the same.”
It is noteworthy that so far as this policy is concerned, it
noted, the past experience that personnel from other arms and
services who are posted on the strength of the battalion on nomination
should not have been denied an opportunity to proceed on the UN
Mission with the battalion, unless they are otherwise disqualified. A
clear position, therefore, has been taken that “all personnel” from
“other arms and services” who are “already on the posted strength of
the Infantry Battalion”, at the time of its induction for the UN Mission
and otherwise eligible would be allowed to proceed with the battalion.
The material date thus on which entitlement for proceeding on the UN
Mission is concerned is the date on which the nomination of the unit
for the UN Mission is effected.
16. The respondents have made a fervent effort to contend that
only one JCO, and one NCO of the AEC could proceed on the UN
Mission; that the petitioner having been promoted to the post of a JCO
had become a surplus against the authorised strength of the unit and
therefore could not proceed for such posting.
17. The above facts show that the petitioner has been side
stepped from the UN posting not because of the reason he was not
eligible for the same, but for the reason that he had been promoted
after the deployment of the unit on the UN Mission. Our attention is
drawn to the Record Of Instruction being ROI/2005 which prescribes
the instructions regarding “Selection of AEC Personnel For Posting To
W.P.(C) No.7994/2009 Page 7 of 21
The UN Mission”. These instructions were amended and approved by
the Army Headquarters and communicated to AEC Records by the
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letter no. A/7901/UN Mission/GS/MT-14 dated 30 of May, 2005. No
dispute to their bindingness has been raised in these proceedings.
These instructions leave no ambiguity at all in the manner in which the
respondents are required to proceed in the matter. The aforesaid
instructions, inter alia, contain the following provisions:
“General
1. The Indian Army is one of the largest
contributors of troops in UNPK operations. In
recent years, the strength and frequency of
deployment of Indian Troops on UN
Missions/Foreign Assignment has further
increased. The Army Educational Corps too
contributes its due share on these
assignments, whenever a unit authorised AEC
PBOR is nominated for a UN Mission.
Eligibility
3. xxxx
(g) All PBOR due for promotion or attending
a promotion cadre/career course during the
period in which the unit is likely to be away on
a UN Mission will become eligible only if they
render an “ADVERSE CAREER CERTIFICATE”
(appx „A‟) duly countersigned by the Officer
Commanding their respective units.
Xxxxx
Status of AEC PBOR Already Posted to a Unit
Nominated for UN Mission
5. All AEC PBOR already on the posted
strength of the unit at the time of its induction
for a UN Mission, who fulfill Medical,
Disciplinary and Service QR laid down by AHQ
and the amplifications thereof contained in this
ROI, will be allowed to proceed with the unit in
accordance with Army Headquarters policy as
W.P.(C) No.7994/2009 Page 8 of 21
laid down vide letter No.71302/Policy/ Gen/SO
3(UN) dt.22 Nov 2004.
6. PBOR who accompany a unit on a UN
Mission will not be posted out from the unit till
the conclusion of the UN assignment,
irrespective of the length of the assignment or
the total duration of their tenure with that
particular unit or the location of their service,
(Peace/Field/High Altitude Area) provided they
have rendered an “Adverse Career Certificate”
as per Appx. „A‟ to this ROI.
xxxx
9. Although the tentative turn over
schedule for UN bound units is declared well in
advance, the actual date on which the
nomination order is signed at AHQ will be taken
as the cut off date for upholding/ cancellation
of Posting Orders as and when required.
A posting order signed prior to nomination of
the unit for UN Mission, will be carried out and
no representation will be entertained on it.
However, a posting order signed on or after the
date of nomination of the unit for UN Mission
will be cancelled and the tenure of the indl
extended upto the date on which the main
body of the unit reaches its peace/ad loc in
India.”
(Underlining supplied)
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18. The above instructions reiterate the policy dated 22
November, 2004 and contain a clear stipulation that a person, who is
on the posted strength at the time of its induction on the UN Mission,
would not be posted out from the unit. The respondents have also
anticipated the possibility of a likely promotion which may become due
to a personnel while abroad on the UN posting. In para 3(g) of the
instructions, it is provided that it is only if a person becomes due for
promotion or for attending a promotion cadre/career course while the
W.P.(C) No.7994/2009 Page 9 of 21
unit is away or likely to be away on a UN Mission, then such event i.e.
the promotion/course may require to be postponed. For this reason
option is given to the AEC personnel who are eligible to proceed on the
UN posting only after giving an “adverse career certificate”.
19. We also find the unequivocal mandate of these instructions
that in case a posting order of any AEC personnel is signed on or after
the date of the nomination of the unit for the UN Mission, the same
would be cancelled and the tenure of the individual extended upto the
date on which the main body of the unit reaches its assigned location
in India. It is inherent from the above that the spirit and purpose of
the policy and instructions is that all such personnel who are on the
posted strength of the unit on the date of its induction on the UN
mission and satisfy the eligibility conditions prescripted in the
instructions of 2005 are entitled to proceed for the foreign deployment
– UN Mission irrespective of whether they are promoted between the
time of the unit‟s deployment and its proceeding on the UN Mission.
20. It is necessary to examine the issue of the cut off date for
entitlement for consideration of eligibility on the posting. The
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communication dated 22 November, 2004 does not advert to the
date on which the nomination of the unit for the foreign posting is
required to be considered to have been made. However, this issue has
also been anticipated by the respondents and clearly provided for in
the instructions contained in the AEC ROI (Records Office Instructions)
02/2005, as amended vide ROI 03/2006. These instructions lay down a
comprehensive policy governing the selection procedure for
shortlisting personnel for a UN Mission. Para 9 of the policy declares
W.P.(C) No.7994/2009 Page 10 of 21
that the actual date on which the nomination order of the unit for the
UN Mission is signed at the Army Headquarters will be taken as the
cut-off date with regard to the matter relating to
upholding/cancellation of posting order as and when required. As per
these instructions a posting order signed on or after the date of
nomination of unit for a UN Mission will be cancelled.
21. In 2007, a challenge was laid before this court by one Naib
Subedar Singh, also of the AEC, seeking posting on a UN Mission
contending that his name was illegally removed from the select list of
personnel when he was posted with 2 Naga Battalion after its selection
for such mission. Though the challenge is not relateable to the issue
arising in the instant matter, however, this court had occasion to
consider the issue of the cut-off date with regard to posting of AEC
personnel to UN bound units. In para 10 of the judgment pronounced
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on 23 of May, 2008 in the W.P.(C) No.8085/2007 entitled Naib Sub
Subedar Singh v. Union of India & Ors., this court held that the
cut-off date in terms of the said policy and ROI 02/2005 (as amended
vide ROI 03/2006) is the actual date on which the nomination order is
signed at the Army Headquarters.
22. On application of the above noticed instructions and
principles, the documents placed on record in the instant case show
that the selection and nomination of 2 JAK RIF on the UN Mission was
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actually effected on 30 January, 2008 when this fact was also
communicated by the Integrated HQ of MOD (Army) to 2 JAK RIF under
copy to the headquarters of the concerned command.
W.P.(C) No.7994/2009 Page 11 of 21
The principles laid down by this court, the policy and
instructions noticed hereinabove would bind adjudication by this court.
23. It is noteworthy that the petitioner continued to be posted
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with the 2 JAK RIF till as late as on 11 of March, 2009 when he was
required to move to HQ 29 Inf.Bde. The respondents have not stated
or pointed out any other unit or battalion to which the petitioner was
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posted between 30 January, 2008 to December, 2008. Even the
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message dated 26 of December, 2008 merely mentioned that the
petitioner be “posted/side stepped” without anything more. Thus, the
petitioner has clearly continued to be posted on the strength of 2 JAK
Rif for almost a year after its selection for the UN mission. So much so
that he was also deployed for, and underwent the necessary training
with the unit for the UN mission.
24. At this stage, it is necessary to note that so far as the
eligibility is concerned, the respondents have not raised any dispute
before this court with regard to the petitioner‟s entitlement. The
petitioner meets the service, medical and disciplinary criterion for
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proceeding on the UN mission. In fact in the letter dated 8 of January,
2009, the petitioner's Commanding Officer has informed that the
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petitioner's conduct in the unit since his posting on 1 of July, 2007 has
been exemplary and his devotion to duty and performance
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outstanding during his tenure with the battalion. Again on 2 of
March, 2009, the Commanding Officer strongly recommended the
petitioner's inclusion in the mission in view of his dedication and
brilliant service. This position is not disputed by the respondents in
the counter affidavit or the submissions made before us.
W.P.(C) No.7994/2009 Page 12 of 21
25. So far as the petitioner‟s promotion is concerned, this event
has also occurred almost seven months after the unit was selected for
the UN posting. The petitioner, therefore, met the criterion prescribed
under the Instructions of 2005 and policy of 2004 as noted above, and
could not have been posted out or side stepped because of his
promotion, and was entitled to proceed with the unit.
26. The respondents‟ contention that the petitioner was not on
the authorized strength of the unit and, therefore, was not entitled
also appears to have no legal or justifiable basis. There is no dispute
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that the Instructions of 2005 as well as the policy dated 22
November, 2004 continue to bind the respondents‟ actions so far
detailing AEC personnel on the UN Mission postings are concerned
even on date. Nothing to the contrary has been pointed out.
27. The respondents have placed reliance on a document, which
purports to be a tabulation of units where AEC, JCOs have been
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assigned as on 30 November, 2009. Even if this was to be considered
as a document laying down the authorized strength of the units, the
same would not have bearing on the present matter, inasmuch as, the
policy of 2004 and instructions of 2005 noted above are concerned
with the posted strength of the personnel in the unit selected for the
UN Mission and have anticipated the event of a possible promotion of
the personnel posted in unit. The very fact that the respondents have
prescripted the calling of an “adverse career certificate” only from a
person who becomes entitled to promotion between the period when
the unit has been nominated for the UN mission posting and prior to it
actually proceeding for the same, would show that happening of such
W.P.(C) No.7994/2009 Page 13 of 21
an event after the nomination of the unit, is not to be considered as an
ineligibility or a disability for such person to proceed with the unit. The
same is also apparent from the fact that the instructions clearly
stipulate that an AEC personnel who is on the posted strength of the
battalion on the date of its nomination/selection would not be posted
out irrespective of length of service or tenure. This stipulation clearly
negates the submission that the respondents impart any sanctity to
authorized strength of units.
28. We also find that the stand taken before this Court is contrary
to the stand of the respondents in the several communications, which
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have been placed before us. A letter dated 21 January, 2009 the
office of the Chief Record Officer and Commanding Officer of the Army
Educational Corps was sent as a response to the recommendation
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dated 8 of January, 2009 by the Commanding Officer of 2 JAK RIF
requesting cancellation of the petitioner‟s side stepping. In this letter,
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it was mentioned that as per the letter dated 9 of March, 2007 of the
Integrated HQ of MoD (Army) one AEC JCO and one AEC NCO would
proceed to the UN Mission with the battalion and for this reason, the
petitioner was required to be side stepped as directed.
29. We had called upon the respondents to produce the letter
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dated 9 of March, 2007, which has been handed over to this court
during the course of arguments. This communication relates to
detailment of the AEC personnel with troops on the UN Mission.
Based on the recommendations of the Integrated HQ of MOD (Army)
the (SD Directorate), the following the directions of DCOAS (IS&T) were
communicated to the AEC:
W.P.(C) No.7994/2009 Page 14 of 21
“whilst no fixed Nos. can be earmarked for AEC
pers, dispensation may be considered on case
to case basis”.
In para 3 of the communication it was observed that the
vacancy is given to AEC personnel as a purely welfare measure at the
cost of 2 combatants and for this reason only 2 AEC personnel would
proceed to an Infantry Battalion deployed on UN Mission for a period of
6 months.
This communication unequivocally records that this special
dispensation be worked so that all AEC personnel posted to the
infantry battalion could get an equal opportunity to be part of the UN
mission with the battalion.
30. It is an admitted position that the UN Mission has not required
deployment of personnel by specification of a rank structure. From the
above as well, it is apparent that the policy of deployment of AEC
personnel with the UN is not rank specific. The reliance by the
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respondents on the policy dated 9 of March, 2007 is in fact wholly
misplaced and actually runs counter to the submissions which have
been made before this court.
31. Col. Balasubramanium arguing for the petitioner has
submitted that because of constraints of man power and placement of
persons, the procedure of posting of troops based on the sanctioned
strength as per rank is not sacrosanct and is not strictly enforced.
Having regard to the posting of the petitioner itself, there is substance
in this submission. The same is only reinforced by the care taken up in
W.P.(C) No.7994/2009 Page 15 of 21
drawing the provisions of the policy of November 2004 and the ROI of
2005 which make reference only to 'posted' strength of the unit.
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32. The list dated 30 November, 2009 of the deployment of
the AEC JCOs and other personnel placed before us by the respondents
shows that most of the formations and units have only one JCO and
one Havildar assigned to them. The competent authority would have
drawn up the Instructions of 2005 after careful consideration of the
matter. The submissions made before this Court based on the alleged
authorized strength of the unit are contrary to the policy of 2004 as
well as the instructions of 2005 as detailed hereinabove and are legally
untenable. The policy would have been drawn up after a due
consideration of the cadre management, including the aspects of
promotion, posting and placement of the personnel. This is apparent
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from also the fact that the petitioner was not only promoted on 1 of
July, 2008, but continued to be on the posted strength of 2 JAK Rif till
March, 2009. The respondents have contended that the nomination of
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the 2 JAK Rif for the mission was effected on the 23 of July, 2008. It is
not the respondents‟ case at all that the petitioner was not posted
against the strength of the unit even on this date, which alone is the
relevant factor so far as the UN Mission deployment is concerned.
33. Learned counsel appearing for the petitioners has submitted that
on other occasions, the respondents have read and applied the policy
and the said instructions in the manner suggested by the petitioner
before this court and for this reason, have ensured that all AEC
personnel who are on the posted strength of a unit selected for
deployment of UN Mission, are given the opportunity of proceeding on
W.P.(C) No.7994/2009 Page 16 of 21
a mission along with the unit. In this regard, our attention is drawn to
the manner in which the respondents enabled the AEC personnel who
were posted with 10 Assam Inf Bn, which was selected and went for
the UN Mission prior to the deployment of 2 JAK RIF on the same
mission. It is pointed out that 10 Assam Rifles was having the
deployment of 1 AEC JCO and 3 AEC NCOs on the strength of the unit
when it was selected for the UN Mission. In view of the aforenoticed
policy only one vacancy of a AEC personnel below official rank is
permitted to proceed with the Infantry Battalion Group on a UN Mission
in each rotation. The 10 Assam Inf Bn had to induct 1 AEC JCO in its
first rotation of troops and 1 NCO in the second rotation. After this
posting, 2 AEC NCOs posted with the battalion were left out of the
troops detailed on the mission. Their case was taken up and it was
proposed to accommodate them in the battalion in the second rotation
for the UN mission against the Sol GD(Soldier General Duty) vacancy
existing in the battalion. It was observed that on account of the large
size of the contingent required for the UN mission, the 10 Assam Inf
Battalion was able to rotate its 100% personnel on the foreign mission
and yet was required to procure approximately 150 personnel from
other battalions of the regiment. Such a request was made by 10
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Assam Inf Bn by a communication dated 19 February, 2008. The
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respondent No.4 responded by a communication dated 17 March,
2008 accepting the request for inclusion of the AEC personnel against
the personnel below officer rank (Sol GD) vacancy in the second
rotation.
W.P.(C) No.7994/2009 Page 17 of 21
34. We find that a similar request was made by Commanding
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Officer of 2 JAK RIF Inf Bn on 2 March, 2009 to the respondents
pointing out that keeping in view the petitioner's dedication and
outstanding service towards the organization, the case be viewed in
his favour and the unit be permitted to include him as part of its
contingent to the UN Mission in the Democratic Republic of Congo
(MONUC) against the JCO(GD) vacancies existing in the battalion due
to the size of the required contingent. It was mentioned that the
battalion was able to rotate all its personnel still leaving a deficiency of
approximately 150 persons, which was being filled from other
battalions of the regiment.
Nothing is pointed out to us as to what precluded such
course of action so far as the petitioner was concerned. Assuming that
he was adjusted against the vacancy of a JCO (GD) in the second
rotation of the battalion, no prejudice, financial or otherwise would
result on any count at all. As discussed above, no prohibition at all on
the petitioner's proceeding on the foreign posting is pointed out.
35. The petitioner places reliance on a telegraphic signal dated
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21 April, 2009 and letter dated 2 of June, 2009 from respondent no.
3 to respondent no.4 seeking approval for including the petitioner to
accompany the unit against the vacancy of the JCO (GD). In response
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to such proposal by letter dated 27 April, 2009 followed by a signal
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dated 5 of May, 2009, the respondent no. 4 has instructed respondent
no. 3 to take a decision at their end stating their approval is not
required. Certainly no objection to the proposed action has been
pointed.
W.P.(C) No.7994/2009 Page 18 of 21
36. It is to be noted that it was only on account of posting out
of the petitioner that another officer of the AEC was directed to be
posted in his place. Pertinently, the respondents have posted another
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AEC personnel who is a NCO only on 30 December, 2008 in the unit
who has been detailed to proceed for the UN Mission in the second
rotation. It is not that another combatant has been deployed to
accompany the unit for the second rotation on the said UN Mission.
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The orders issued by the respondent on 30 December, 2008 reflect
that the petitioner was posted out only to prevent him from proceeding
with the unit on the UN Mission without assignment or awaiting a relief
in his place. Col. Balasubramanian, learned counsel appearing for the
petitioner, has pointed out that even the AEC relief personnel assigned
to the unit in the petitioner's place has declined accompanying the unit
on the UN Mission. In any case, having regard to the view we have
taken, the posting out of petitioner long after its selection on the UN
Mission was not permissible as per the policy, and instructions. Having
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regard to the message dated 11 of March, 2009 from the AEC
records, the posting out is inconsequential.
37. The respondents have submitted that they acted fairly
and conducted a selection process to select one from the two
AEC JCOs available in 2 JAK Rifles. It is contended that Naib
Subedar Mishra was found more meritorious than the petitioner
and for this reason was deputed on the first rotation of the
battalion on the US Mission.
W.P.(C) No.7994/2009 Page 19 of 21
It is noteworthy that the aforenoticed policy postulates
scrutiny of the personnel from the eligibility perspective and no
method of selection is prescribed. We have found that only one
AEC personnel stands deputed on the UN Mission. However, as
per the policy declarations of the respondents, a total of two AEC
personnel who were posted on the strength of the unit are
entitled to accompany the battalion. The respondents have
raised no objection at all to the eligibility of the petitioner even
on date.
The so called selection to chose as to which of the two
JCOs would accompany the first rotation of the battalion on the
UN Mission cannot disentitle the petitioner from proceeding with
the unit on its second rotation.
38. From the above discussion, the position which emerges is
that the petitioner was on the posted strength of the battalion on the
date that it was selected for the UN Mission and continued to remain
thereon for a period of almost a year till he was posted out. It also has
to be held that in view of the applicable policy and instructions, his
promotion to the post of Naib Subedar would have no impact so far his
detailment for the UN Mission was concerned. The respondents have
even accommodated AEC personnel against the available GD
vacancies in the battalion to ensure that all AEC personnel on the
posted strength of the battalion get the life time opportunity of
proceeding on a UN Mission. The respondents accept that this is a
welfare measure. The valuable experience from interacting with
W.P.(C) No.7994/2009 Page 20 of 21
international troops and following a unique discipline would further the
professional learning and enhance his skills rendering him a better AEC
personnel. There is no dispute at all that the petitioner satisfies the
eligibility criterian in terms of service, medical fitness and disciplinary
status.
39. As a result of the above discussion, it has to be held that
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the posting out of the petitioner by the order dated 30 December,
2008, after the selection of 2 JAK RIF for the UN posting was contrary
to the respondents‟ instructions on the subject.
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Accordingly, the order dated 30 December, 2008 is
hereby set aside and quashed.
40. As a consequence it is directed that the petitioner would be
entitled to proceed on the UN Mission in the second rotation of 2 JAK
RIF. The respondents shall ensure that the petitioner is permitted to
complete remaining formalities, if any, and to proceed on the UN
Mission without any delay.
This writ petition is allowed in the above terms.
(GITA MITTAL)
JUDGE
(VIPIN SANGHI)
JUDGE
February 01, 2010 ( rsk)
W.P.(C) No.7994/2009 Page 21 of 21
nd
Judgment reserved on: 22 January, 2010
% Judgment delivered on: Ist February, 2010
+ W.P. (C) No.7994/2009 & C.M. No.4481/2009
NAIB SUBEDAR K.C. JENA ..... Petitioner
Through: Col. R. Balasubramanian &
Mr. S.S. Pandey, Advocates
versus
UOI & ORS. ..... Respondent
Through: Ms. Jyoti Singh & Mr. Ankur
Chhibber, Advocates
CORAM:
HON’BLE MR. JUSTICE GITA MITTAL
HON’BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
J U D G M E N T
GITA MITTAL, J.
1. By this writ petition the petitioner assails the denial of the
opportunity to go on the UN mission on which the unit, to which he was
posted, has been deployed. The petitioner also assails the order dated
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30 December, 2008, whereby he has been posted out of 2 JAK RIF
long after the unit's deployment on the UN Mission.
2. There is no material dispute to the facts giving rise to the
petition. To the extent necessary for the purposes of the present
adjudication, the same are briefly noticed hereinafter.
W.P.(C) No.7994/2009 Page 1 of 21
3. The petitioner belongs to the Army Education Corps of the Indian
army. We are informed that persons belonging to the Army Education
Corps and other services are posted in different units for particular
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tenures. On 1 July, 2007, the petitioner was posted to the 2 JAK RIF,
an infantry battalion, as its Havildar Instructor – then a Non-
Commissioned Officer (hereafter referred to as „NCO‟ for brevity) of the
army.
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4. A letter No.40202/FM/SD-4(A) dated 31 January, 2008 was
issued by the Integrated HQ of MOD (Army) informing that 2 JAK RIF
was selected for a UN mission. Copy of this communication from the
Additional Director, Directorate General of Staff Duties of the
Integrated Headquarters of the MOD (Army) has also been placed on
record by the respondents. We also find no dispute to this fact in the
counter affidavit.
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5. On the 1 July, 2008, an event which should have brought
rejoicing to the petitioner occurred. Instead, the same has
necessitated the filing of the present writ petition. The petitioner was
promoted on this date to the rank of Naib Subedar. Consequently, he
became a Junior Commissioned Officer ('JCO' for brevity). It is an
admitted position that even after his promotion, he continued to
remain posted on the strength of 2 JAK RIF. It is an admitted position
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that on the 15 December, 2008 he was posted along with the unit for
completion of the pre-induction training and formalities to the Khanpur
Camp, New Delhi, as a precursor to the United Nations deployment.
W.P.(C) No.7994/2009 Page 2 of 21
6. Apart from the petitioner, one Subedar Mukesh Kumar Mishra,
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respondent no.6, had been detailed with 2 JAK RIF w.e.f. 6 November,
2006 as a JCO from the Army Education Corps.
7. In this background the Commanding Officer of the petitioner's
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unit addressed a communication dated 18 September, 2008 to the
Directorate General of Military Training intimating it of this position. It
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was pointed out that as per para 3 of the communication dated 9
March, 2007 from the Integrated HQ of MOD (Army), it was only
specified that 2 AEC personal would accompany a unit on a UN Mission
without mention of any rank structure. A recommendation was made
by the Commanding Officer to permit the petitioner, who stood
promoted, to accompany the unit on the UN Mission as the second AEC
personnel in terms of the said communication.
8. The petitioner contends that after he had completed the
essential training and formalities including satisfying the medical
fitness test for the foreign posting, the respondent No.3 issued a signal
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on 25 December, 2008 posting the respondent No.7, AEC Hav. Jai
Kumar to the 2 JAK RIF for accompanying the unit on the UN Mission
with the direction to the respondent No.5 to”post out/side step” the
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petitioner. This was followed by a communication dated 30
December, 2008 from the respondent No.5 posting the petitioner out
of 2 JAK Rif to HQ 89 INF BDE.
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9. The petitioner has placed reliance on a message dated 11
March, 2009 from the AEC records to the petitioner‟s unit to send the
petitioner on the posting with the specific assurance that in case the
Commanding Officer‟s proposal for the petitioner to accompany the
W.P.(C) No.7994/2009 Page 3 of 21
unit on the UN Mission was agreed to by the competent authority, the
petitioner would be made available for such posting. The petitioner
submits that on account of the pressure put on the petitioner‟s
Commanding Officer, he was compelled to issue the petitioner‟s
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movement order on 21 March, 2009 despite his recommendations for
permitting the petitioner to proceed on the UN posting with the unit
still pending consideration.
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10. Apart from the communication dated 8 January, 2009, another
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letter dated 2 March, 2009 was sent by the Commanding Officer
recommending the petitioner‟s continuation in the unit as the AEC staff
member for the UN Mission. The respondents, however, did not agree
to the same. A stand was taken that as per the existing policy only
one AEC JCO was authorized during the first rotation of the unit in the
deployment for the UN posting, who would be relieved by a NCO in the
second rotation. According to the respondents, for the reason that the
petitioner stood promoted as a JCO, he could not be sent on the UN
posting as one JCO was already in place in the unit.
11. Aggrieved by this stand of the respondent, the petitioner has
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filed the present writ petition on or about the 28 of March, 2009
contending that the stand of the respondents was contrary to the
prescribed policy for the UN posting and also contrary to the manner in
which the same had been operated in the past. The petitioner also
assails his posting out of the unit after its selection for the UN Mission.
The petitioner has placed reliance on a specific instance with regard to
the manner the respondents had proceeded when a similar situation
W.P.(C) No.7994/2009 Page 4 of 21
arose in relation to AEC personnel posted with the 10 Assam RIF which
was earlier deployed on the UN posting at the same location.
12. Before this court the sole ground for opposition of the claim of
the petitioner for deployment on the foreign posting in the second
rotation of the unit is the contention that after his promotion, the
petitioner was not on the authorized strength of 2 JAK RIF and that only
such personnel who are on the authorized strength of the unit could
proceed for the foreign posting.
13. We have heard learned counsels for the parties at length and
given our considered thought to the material placed as well as
submissions made before us.
14. The COC issue which arises for consideration is as to whether the
stand taken by the respondents is in consonance with the declared
policy governing the subject. The petitioner has placed before us the
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policy dated 22 November, 2004 which governs detailment of
attached personnel on UN Missions. It is not disputed on behalf of the
respondents that this very policy governs the deployment of UN
Mission even on date.
15. We find that this policy statement reiterates the position that an
Infantry Battalion nominated to proceed on a UN Mission consists not
only of the infantry personnel but requires posting of requisite number
of persons from other arms and services. Inasmuch as, both parties
have placed extensive reliance on this document, the relevant portion
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of the policy dated 22 November, 2004 may be usefully extracted in
extenso and reads as follows :
W.P.(C) No.7994/2009 Page 5 of 21
“71362/Policy Gen/SD-3 UN 22 Nov.,04
GENERAL STAFF SHAKHA/GENERAL STAFF
BRANCH SD-3 (UN)
POLICY : DETAILMENT OF ATTACHED
PERSONNEL ON UN MSNs
1. Please refer to existing policy on the
subject. Inf bns of the Indian Army have since
long been detailed to proceed on UN
Peacekeeping msns in various regions of the
world. As of now, whenever an inf bn is
nominated to proceed on an UN msn the
composition of the bn is made up to meet the
requirements of the UN msn by posting in the
requisite number of personnel from other arms
and services under arrangement of concerned
line dtes.
2. As per the provisions of the existing
policy being followed all attached personnel on
strength of the nominated inf bn (normally
personnel from EME AMC and AEC) are
replaced by a corresponding for more if
required) number of personnel specially
selected for the UN msn by respective record
offices/line dtes. This invariably gives rise to a
feeling of being discriminated against amongst
those posted on the strength of the unit who
have honestly served the bn through thick and
thin but have to be posted out after the bn is
nominated to proceed an a UN msn. This also
temporarily disturbs the cohesion in the bn for
understandable reasons. Feedback has been
received from our bns who have served on UN
msns recommending that personnel from other
arms and services who are posted on the
strength the bn at the time of nomination
should not be denied an opportunity to proceed
on the UN msn with the bn unless they
themselves are disqualified on acct of not
meeting certain mandatory QR of discipline
and med status.
3. A policy decision has therefore been
taken that henceforth, all personnel from other
arms and services who are already on the
posted strength of the inf bn at the time of
its induction for the UN msn and fulfill all
other med disciplinary and service
criteria , will be allowed to proceed with the bn
on the UN msn. Only additional personnel from
W.P.(C) No.7994/2009 Page 6 of 21
other arms and services as may be required to
make up the desired composition of the bn will
be posted to the bn by requesting the line dtes
for the same.”
It is noteworthy that so far as this policy is concerned, it
noted, the past experience that personnel from other arms and
services who are posted on the strength of the battalion on nomination
should not have been denied an opportunity to proceed on the UN
Mission with the battalion, unless they are otherwise disqualified. A
clear position, therefore, has been taken that “all personnel” from
“other arms and services” who are “already on the posted strength of
the Infantry Battalion”, at the time of its induction for the UN Mission
and otherwise eligible would be allowed to proceed with the battalion.
The material date thus on which entitlement for proceeding on the UN
Mission is concerned is the date on which the nomination of the unit
for the UN Mission is effected.
16. The respondents have made a fervent effort to contend that
only one JCO, and one NCO of the AEC could proceed on the UN
Mission; that the petitioner having been promoted to the post of a JCO
had become a surplus against the authorised strength of the unit and
therefore could not proceed for such posting.
17. The above facts show that the petitioner has been side
stepped from the UN posting not because of the reason he was not
eligible for the same, but for the reason that he had been promoted
after the deployment of the unit on the UN Mission. Our attention is
drawn to the Record Of Instruction being ROI/2005 which prescribes
the instructions regarding “Selection of AEC Personnel For Posting To
W.P.(C) No.7994/2009 Page 7 of 21
The UN Mission”. These instructions were amended and approved by
the Army Headquarters and communicated to AEC Records by the
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letter no. A/7901/UN Mission/GS/MT-14 dated 30 of May, 2005. No
dispute to their bindingness has been raised in these proceedings.
These instructions leave no ambiguity at all in the manner in which the
respondents are required to proceed in the matter. The aforesaid
instructions, inter alia, contain the following provisions:
“General
1. The Indian Army is one of the largest
contributors of troops in UNPK operations. In
recent years, the strength and frequency of
deployment of Indian Troops on UN
Missions/Foreign Assignment has further
increased. The Army Educational Corps too
contributes its due share on these
assignments, whenever a unit authorised AEC
PBOR is nominated for a UN Mission.
Eligibility
3. xxxx
(g) All PBOR due for promotion or attending
a promotion cadre/career course during the
period in which the unit is likely to be away on
a UN Mission will become eligible only if they
render an “ADVERSE CAREER CERTIFICATE”
(appx „A‟) duly countersigned by the Officer
Commanding their respective units.
Xxxxx
Status of AEC PBOR Already Posted to a Unit
Nominated for UN Mission
5. All AEC PBOR already on the posted
strength of the unit at the time of its induction
for a UN Mission, who fulfill Medical,
Disciplinary and Service QR laid down by AHQ
and the amplifications thereof contained in this
ROI, will be allowed to proceed with the unit in
accordance with Army Headquarters policy as
W.P.(C) No.7994/2009 Page 8 of 21
laid down vide letter No.71302/Policy/ Gen/SO
3(UN) dt.22 Nov 2004.
6. PBOR who accompany a unit on a UN
Mission will not be posted out from the unit till
the conclusion of the UN assignment,
irrespective of the length of the assignment or
the total duration of their tenure with that
particular unit or the location of their service,
(Peace/Field/High Altitude Area) provided they
have rendered an “Adverse Career Certificate”
as per Appx. „A‟ to this ROI.
xxxx
9. Although the tentative turn over
schedule for UN bound units is declared well in
advance, the actual date on which the
nomination order is signed at AHQ will be taken
as the cut off date for upholding/ cancellation
of Posting Orders as and when required.
A posting order signed prior to nomination of
the unit for UN Mission, will be carried out and
no representation will be entertained on it.
However, a posting order signed on or after the
date of nomination of the unit for UN Mission
will be cancelled and the tenure of the indl
extended upto the date on which the main
body of the unit reaches its peace/ad loc in
India.”
(Underlining supplied)
nd
18. The above instructions reiterate the policy dated 22
November, 2004 and contain a clear stipulation that a person, who is
on the posted strength at the time of its induction on the UN Mission,
would not be posted out from the unit. The respondents have also
anticipated the possibility of a likely promotion which may become due
to a personnel while abroad on the UN posting. In para 3(g) of the
instructions, it is provided that it is only if a person becomes due for
promotion or for attending a promotion cadre/career course while the
W.P.(C) No.7994/2009 Page 9 of 21
unit is away or likely to be away on a UN Mission, then such event i.e.
the promotion/course may require to be postponed. For this reason
option is given to the AEC personnel who are eligible to proceed on the
UN posting only after giving an “adverse career certificate”.
19. We also find the unequivocal mandate of these instructions
that in case a posting order of any AEC personnel is signed on or after
the date of the nomination of the unit for the UN Mission, the same
would be cancelled and the tenure of the individual extended upto the
date on which the main body of the unit reaches its assigned location
in India. It is inherent from the above that the spirit and purpose of
the policy and instructions is that all such personnel who are on the
posted strength of the unit on the date of its induction on the UN
mission and satisfy the eligibility conditions prescripted in the
instructions of 2005 are entitled to proceed for the foreign deployment
– UN Mission irrespective of whether they are promoted between the
time of the unit‟s deployment and its proceeding on the UN Mission.
20. It is necessary to examine the issue of the cut off date for
entitlement for consideration of eligibility on the posting. The
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communication dated 22 November, 2004 does not advert to the
date on which the nomination of the unit for the foreign posting is
required to be considered to have been made. However, this issue has
also been anticipated by the respondents and clearly provided for in
the instructions contained in the AEC ROI (Records Office Instructions)
02/2005, as amended vide ROI 03/2006. These instructions lay down a
comprehensive policy governing the selection procedure for
shortlisting personnel for a UN Mission. Para 9 of the policy declares
W.P.(C) No.7994/2009 Page 10 of 21
that the actual date on which the nomination order of the unit for the
UN Mission is signed at the Army Headquarters will be taken as the
cut-off date with regard to the matter relating to
upholding/cancellation of posting order as and when required. As per
these instructions a posting order signed on or after the date of
nomination of unit for a UN Mission will be cancelled.
21. In 2007, a challenge was laid before this court by one Naib
Subedar Singh, also of the AEC, seeking posting on a UN Mission
contending that his name was illegally removed from the select list of
personnel when he was posted with 2 Naga Battalion after its selection
for such mission. Though the challenge is not relateable to the issue
arising in the instant matter, however, this court had occasion to
consider the issue of the cut-off date with regard to posting of AEC
personnel to UN bound units. In para 10 of the judgment pronounced
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on 23 of May, 2008 in the W.P.(C) No.8085/2007 entitled Naib Sub
Subedar Singh v. Union of India & Ors., this court held that the
cut-off date in terms of the said policy and ROI 02/2005 (as amended
vide ROI 03/2006) is the actual date on which the nomination order is
signed at the Army Headquarters.
22. On application of the above noticed instructions and
principles, the documents placed on record in the instant case show
that the selection and nomination of 2 JAK RIF on the UN Mission was
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actually effected on 30 January, 2008 when this fact was also
communicated by the Integrated HQ of MOD (Army) to 2 JAK RIF under
copy to the headquarters of the concerned command.
W.P.(C) No.7994/2009 Page 11 of 21
The principles laid down by this court, the policy and
instructions noticed hereinabove would bind adjudication by this court.
23. It is noteworthy that the petitioner continued to be posted
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with the 2 JAK RIF till as late as on 11 of March, 2009 when he was
required to move to HQ 29 Inf.Bde. The respondents have not stated
or pointed out any other unit or battalion to which the petitioner was
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posted between 30 January, 2008 to December, 2008. Even the
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message dated 26 of December, 2008 merely mentioned that the
petitioner be “posted/side stepped” without anything more. Thus, the
petitioner has clearly continued to be posted on the strength of 2 JAK
Rif for almost a year after its selection for the UN mission. So much so
that he was also deployed for, and underwent the necessary training
with the unit for the UN mission.
24. At this stage, it is necessary to note that so far as the
eligibility is concerned, the respondents have not raised any dispute
before this court with regard to the petitioner‟s entitlement. The
petitioner meets the service, medical and disciplinary criterion for
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proceeding on the UN mission. In fact in the letter dated 8 of January,
2009, the petitioner's Commanding Officer has informed that the
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petitioner's conduct in the unit since his posting on 1 of July, 2007 has
been exemplary and his devotion to duty and performance
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outstanding during his tenure with the battalion. Again on 2 of
March, 2009, the Commanding Officer strongly recommended the
petitioner's inclusion in the mission in view of his dedication and
brilliant service. This position is not disputed by the respondents in
the counter affidavit or the submissions made before us.
W.P.(C) No.7994/2009 Page 12 of 21
25. So far as the petitioner‟s promotion is concerned, this event
has also occurred almost seven months after the unit was selected for
the UN posting. The petitioner, therefore, met the criterion prescribed
under the Instructions of 2005 and policy of 2004 as noted above, and
could not have been posted out or side stepped because of his
promotion, and was entitled to proceed with the unit.
26. The respondents‟ contention that the petitioner was not on
the authorized strength of the unit and, therefore, was not entitled
also appears to have no legal or justifiable basis. There is no dispute
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that the Instructions of 2005 as well as the policy dated 22
November, 2004 continue to bind the respondents‟ actions so far
detailing AEC personnel on the UN Mission postings are concerned
even on date. Nothing to the contrary has been pointed out.
27. The respondents have placed reliance on a document, which
purports to be a tabulation of units where AEC, JCOs have been
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assigned as on 30 November, 2009. Even if this was to be considered
as a document laying down the authorized strength of the units, the
same would not have bearing on the present matter, inasmuch as, the
policy of 2004 and instructions of 2005 noted above are concerned
with the posted strength of the personnel in the unit selected for the
UN Mission and have anticipated the event of a possible promotion of
the personnel posted in unit. The very fact that the respondents have
prescripted the calling of an “adverse career certificate” only from a
person who becomes entitled to promotion between the period when
the unit has been nominated for the UN mission posting and prior to it
actually proceeding for the same, would show that happening of such
W.P.(C) No.7994/2009 Page 13 of 21
an event after the nomination of the unit, is not to be considered as an
ineligibility or a disability for such person to proceed with the unit. The
same is also apparent from the fact that the instructions clearly
stipulate that an AEC personnel who is on the posted strength of the
battalion on the date of its nomination/selection would not be posted
out irrespective of length of service or tenure. This stipulation clearly
negates the submission that the respondents impart any sanctity to
authorized strength of units.
28. We also find that the stand taken before this Court is contrary
to the stand of the respondents in the several communications, which
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have been placed before us. A letter dated 21 January, 2009 the
office of the Chief Record Officer and Commanding Officer of the Army
Educational Corps was sent as a response to the recommendation
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dated 8 of January, 2009 by the Commanding Officer of 2 JAK RIF
requesting cancellation of the petitioner‟s side stepping. In this letter,
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it was mentioned that as per the letter dated 9 of March, 2007 of the
Integrated HQ of MoD (Army) one AEC JCO and one AEC NCO would
proceed to the UN Mission with the battalion and for this reason, the
petitioner was required to be side stepped as directed.
29. We had called upon the respondents to produce the letter
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dated 9 of March, 2007, which has been handed over to this court
during the course of arguments. This communication relates to
detailment of the AEC personnel with troops on the UN Mission.
Based on the recommendations of the Integrated HQ of MOD (Army)
the (SD Directorate), the following the directions of DCOAS (IS&T) were
communicated to the AEC:
W.P.(C) No.7994/2009 Page 14 of 21
“whilst no fixed Nos. can be earmarked for AEC
pers, dispensation may be considered on case
to case basis”.
In para 3 of the communication it was observed that the
vacancy is given to AEC personnel as a purely welfare measure at the
cost of 2 combatants and for this reason only 2 AEC personnel would
proceed to an Infantry Battalion deployed on UN Mission for a period of
6 months.
This communication unequivocally records that this special
dispensation be worked so that all AEC personnel posted to the
infantry battalion could get an equal opportunity to be part of the UN
mission with the battalion.
30. It is an admitted position that the UN Mission has not required
deployment of personnel by specification of a rank structure. From the
above as well, it is apparent that the policy of deployment of AEC
personnel with the UN is not rank specific. The reliance by the
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respondents on the policy dated 9 of March, 2007 is in fact wholly
misplaced and actually runs counter to the submissions which have
been made before this court.
31. Col. Balasubramanium arguing for the petitioner has
submitted that because of constraints of man power and placement of
persons, the procedure of posting of troops based on the sanctioned
strength as per rank is not sacrosanct and is not strictly enforced.
Having regard to the posting of the petitioner itself, there is substance
in this submission. The same is only reinforced by the care taken up in
W.P.(C) No.7994/2009 Page 15 of 21
drawing the provisions of the policy of November 2004 and the ROI of
2005 which make reference only to 'posted' strength of the unit.
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32. The list dated 30 November, 2009 of the deployment of
the AEC JCOs and other personnel placed before us by the respondents
shows that most of the formations and units have only one JCO and
one Havildar assigned to them. The competent authority would have
drawn up the Instructions of 2005 after careful consideration of the
matter. The submissions made before this Court based on the alleged
authorized strength of the unit are contrary to the policy of 2004 as
well as the instructions of 2005 as detailed hereinabove and are legally
untenable. The policy would have been drawn up after a due
consideration of the cadre management, including the aspects of
promotion, posting and placement of the personnel. This is apparent
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from also the fact that the petitioner was not only promoted on 1 of
July, 2008, but continued to be on the posted strength of 2 JAK Rif till
March, 2009. The respondents have contended that the nomination of
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the 2 JAK Rif for the mission was effected on the 23 of July, 2008. It is
not the respondents‟ case at all that the petitioner was not posted
against the strength of the unit even on this date, which alone is the
relevant factor so far as the UN Mission deployment is concerned.
33. Learned counsel appearing for the petitioners has submitted that
on other occasions, the respondents have read and applied the policy
and the said instructions in the manner suggested by the petitioner
before this court and for this reason, have ensured that all AEC
personnel who are on the posted strength of a unit selected for
deployment of UN Mission, are given the opportunity of proceeding on
W.P.(C) No.7994/2009 Page 16 of 21
a mission along with the unit. In this regard, our attention is drawn to
the manner in which the respondents enabled the AEC personnel who
were posted with 10 Assam Inf Bn, which was selected and went for
the UN Mission prior to the deployment of 2 JAK RIF on the same
mission. It is pointed out that 10 Assam Rifles was having the
deployment of 1 AEC JCO and 3 AEC NCOs on the strength of the unit
when it was selected for the UN Mission. In view of the aforenoticed
policy only one vacancy of a AEC personnel below official rank is
permitted to proceed with the Infantry Battalion Group on a UN Mission
in each rotation. The 10 Assam Inf Bn had to induct 1 AEC JCO in its
first rotation of troops and 1 NCO in the second rotation. After this
posting, 2 AEC NCOs posted with the battalion were left out of the
troops detailed on the mission. Their case was taken up and it was
proposed to accommodate them in the battalion in the second rotation
for the UN mission against the Sol GD(Soldier General Duty) vacancy
existing in the battalion. It was observed that on account of the large
size of the contingent required for the UN mission, the 10 Assam Inf
Battalion was able to rotate its 100% personnel on the foreign mission
and yet was required to procure approximately 150 personnel from
other battalions of the regiment. Such a request was made by 10
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Assam Inf Bn by a communication dated 19 February, 2008. The
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respondent No.4 responded by a communication dated 17 March,
2008 accepting the request for inclusion of the AEC personnel against
the personnel below officer rank (Sol GD) vacancy in the second
rotation.
W.P.(C) No.7994/2009 Page 17 of 21
34. We find that a similar request was made by Commanding
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Officer of 2 JAK RIF Inf Bn on 2 March, 2009 to the respondents
pointing out that keeping in view the petitioner's dedication and
outstanding service towards the organization, the case be viewed in
his favour and the unit be permitted to include him as part of its
contingent to the UN Mission in the Democratic Republic of Congo
(MONUC) against the JCO(GD) vacancies existing in the battalion due
to the size of the required contingent. It was mentioned that the
battalion was able to rotate all its personnel still leaving a deficiency of
approximately 150 persons, which was being filled from other
battalions of the regiment.
Nothing is pointed out to us as to what precluded such
course of action so far as the petitioner was concerned. Assuming that
he was adjusted against the vacancy of a JCO (GD) in the second
rotation of the battalion, no prejudice, financial or otherwise would
result on any count at all. As discussed above, no prohibition at all on
the petitioner's proceeding on the foreign posting is pointed out.
35. The petitioner places reliance on a telegraphic signal dated
st nd
21 April, 2009 and letter dated 2 of June, 2009 from respondent no.
3 to respondent no.4 seeking approval for including the petitioner to
accompany the unit against the vacancy of the JCO (GD). In response
th
to such proposal by letter dated 27 April, 2009 followed by a signal
th
dated 5 of May, 2009, the respondent no. 4 has instructed respondent
no. 3 to take a decision at their end stating their approval is not
required. Certainly no objection to the proposed action has been
pointed.
W.P.(C) No.7994/2009 Page 18 of 21
36. It is to be noted that it was only on account of posting out
of the petitioner that another officer of the AEC was directed to be
posted in his place. Pertinently, the respondents have posted another
th
AEC personnel who is a NCO only on 30 December, 2008 in the unit
who has been detailed to proceed for the UN Mission in the second
rotation. It is not that another combatant has been deployed to
accompany the unit for the second rotation on the said UN Mission.
th
The orders issued by the respondent on 30 December, 2008 reflect
that the petitioner was posted out only to prevent him from proceeding
with the unit on the UN Mission without assignment or awaiting a relief
in his place. Col. Balasubramanian, learned counsel appearing for the
petitioner, has pointed out that even the AEC relief personnel assigned
to the unit in the petitioner's place has declined accompanying the unit
on the UN Mission. In any case, having regard to the view we have
taken, the posting out of petitioner long after its selection on the UN
Mission was not permissible as per the policy, and instructions. Having
th
regard to the message dated 11 of March, 2009 from the AEC
records, the posting out is inconsequential.
37. The respondents have submitted that they acted fairly
and conducted a selection process to select one from the two
AEC JCOs available in 2 JAK Rifles. It is contended that Naib
Subedar Mishra was found more meritorious than the petitioner
and for this reason was deputed on the first rotation of the
battalion on the US Mission.
W.P.(C) No.7994/2009 Page 19 of 21
It is noteworthy that the aforenoticed policy postulates
scrutiny of the personnel from the eligibility perspective and no
method of selection is prescribed. We have found that only one
AEC personnel stands deputed on the UN Mission. However, as
per the policy declarations of the respondents, a total of two AEC
personnel who were posted on the strength of the unit are
entitled to accompany the battalion. The respondents have
raised no objection at all to the eligibility of the petitioner even
on date.
The so called selection to chose as to which of the two
JCOs would accompany the first rotation of the battalion on the
UN Mission cannot disentitle the petitioner from proceeding with
the unit on its second rotation.
38. From the above discussion, the position which emerges is
that the petitioner was on the posted strength of the battalion on the
date that it was selected for the UN Mission and continued to remain
thereon for a period of almost a year till he was posted out. It also has
to be held that in view of the applicable policy and instructions, his
promotion to the post of Naib Subedar would have no impact so far his
detailment for the UN Mission was concerned. The respondents have
even accommodated AEC personnel against the available GD
vacancies in the battalion to ensure that all AEC personnel on the
posted strength of the battalion get the life time opportunity of
proceeding on a UN Mission. The respondents accept that this is a
welfare measure. The valuable experience from interacting with
W.P.(C) No.7994/2009 Page 20 of 21
international troops and following a unique discipline would further the
professional learning and enhance his skills rendering him a better AEC
personnel. There is no dispute at all that the petitioner satisfies the
eligibility criterian in terms of service, medical fitness and disciplinary
status.
39. As a result of the above discussion, it has to be held that
th
the posting out of the petitioner by the order dated 30 December,
2008, after the selection of 2 JAK RIF for the UN posting was contrary
to the respondents‟ instructions on the subject.
th
Accordingly, the order dated 30 December, 2008 is
hereby set aside and quashed.
40. As a consequence it is directed that the petitioner would be
entitled to proceed on the UN Mission in the second rotation of 2 JAK
RIF. The respondents shall ensure that the petitioner is permitted to
complete remaining formalities, if any, and to proceed on the UN
Mission without any delay.
This writ petition is allowed in the above terms.
(GITA MITTAL)
JUDGE
(VIPIN SANGHI)
JUDGE
February 01, 2010 ( rsk)
W.P.(C) No.7994/2009 Page 21 of 21