RFN SAGIR KHAN & ORS vs. UNION OF INDIA & ORS

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 7267/2013 & CM No.15629/2013

th
% Date of decision: 19 December, 2013

RFN SAGIR KHAN & ORS ..... Petitioners
Through : Mr. S. S. Pandey and
Mr. H.S. Tiwari, Advs.
versus

UNION OF INDIA & ORS ..... Respondents
Through : Mr. Ankur Chhibber and
Mr. Aashish Gumber, Advs.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J. (Oral)

1. The factual matrix given rise to the present petition is largely
undisputed and to the extent necessary is noticed hereafter. The
writ petition raises an important question with regard to nomination
of Persons Below Officer Rank (PBOR) of the Indian Army for
being deputed to proceed on a UN Mission and Overseas tenure. It
is unfortunate that this question has arisen despite the adjudication
th
on this issue by the Division Bench dated 25 May, 2008 in
WP(C)No.8085/2007 Naib Sub. Subedar Singh v. Union of

WP(C) No.7267/2013 page 1 of 31


India & Ors. with regard to the cut off date for consideration of
personnel as being eligible for being so nominated. Several writ
petitions have been necessitated on the allegation that the
respondents are arbitrarily working the selection policy.
2. Given the question which has been raised by the petitioner, it
is necessary to note the dates on which the petitioners were
enrolled with the Indian Army and dates on which they were
posted with the 8 Rajputana Rifles (8 Raj Rif), which is the unit
which stands nominated for proceeding on UN Mission. The
respondents have set out this information in tabulation which reads
as follows:-
“

WP(C) No.7267/2013 page 2 of 31

”
3. The petitioners’ unit, 8 Raj Rif was selected for UN Mission
th
by a letter dated 11 May, 2011 issued by the Integrated
Headquarter of the Ministry of Defence, (Army).
4. It appears that after such nomination, a new battalion being
23 Rajputana Rifles was being raised by the respondents. Learned
counsel for the petitioner contends that this battalion was created as
a specialised force of paratroops. The respondents have stated that
petitioners were permanently transferred to 23 Rajputana Rifles
with effect from the following dates:-
“

”
5. Coming to the prescriptions with regard to the manner in
which the personnel would be short listed for proceeding on UN

WP(C) No.7267/2013 page 3 of 31


Mission, we are informed that the first policy on this subject was
issued by the Staff Duty Directorate of the Army Headquarter on
th
the 17 of June, 2010. Mr. S.S. Pandey, learned counsel for the
petitioner has placed this policy before us which is captioned as
“ Selection of PERS for UN MSN : Policy ”. The material clauses
thereof relied upon by the petitioner read as follows:-
“3. UN assignments are prestigious in nature
and afford the individual an opportunity to have a
useful exposure. Further, under the existing
environment, while selecting personnel for UN
missions/assignments, due consideration should be
given to our JCOs and OR who have served in CI
operations/Operations Vijay/Meghdoot/HAA and
have professionally proven themselves in such
operations.”

“7. Selection Procedure.

(a) It is imp that the selection process of PBOR
must be fair and transparent. Besides the CO, the
Fmn cdrs are also reqd to monitor and oversee the
selection process. The Fmn Cdrs will ensure the
following:-
(i) A sainik Smln is taken by the Fmn
Cdr of the Unit nominated for the UN Msn
once the selection process has been
completed. At this forum, the Fmn Cdr,
besides addressing the unit, will interact
with the tps to ascertain that the selection
was fair.
(ii) A written confirmation of the above

WP(C) No.7267/2013 page 4 of 31


will be fwd by the Fmn Cdr to the SD Dte
through respective ComdHQ.
(b) The Line Dtes wil ensure that the approved
Bd Proceeding are fwd to SD-3 at least three
months in advanced of the date of departure of the
contigent.”
(Emphasis supplied)


6. It is implicit from the above that nomination of a personnel
to proceed on UN Mission is not a routine matter. The selecting
authorities effecting the selection are required to apply their mind
with regard to the merit and experience of the persons who are to
proceed to UN Mission especially having regard to the nature of
the duties on foreign territories; often in conjunction with troops
from other nations. Very often these troops are compelled to
engage in peace keeping activities in civilian areas. Certainly the
nature of functions discharged by Indian troops on these missions
are extraordinary in nature necessitating maturity as well as
experience. The respondents had therefore, prescribed that while
selecting personnel for such assignments, due consideration should
be given to the personnel who had served in counter insurgency
operations as well as notified operations including the operation
“ Vijay ”, “ Meghdoot ” as well as served in high altitude areas.

WP(C) No.7267/2013 page 5 of 31


7. Judicial notice can be taken of the fact that the Indian troops
are invited to participate in international operations given the
sensitive nature of the requirement in these areas suffering from
violence and strife in foreign countries. The respondents have
emphasised that only “ professionally proven ” personnel should be
selected.

8. We may emphasise on the use of the expression “ selecting
personnel ” in para 3 and “ selection procedure ” in para 7 of the
th
policy dated 17 June, 2010 which was notified by the
respondents. The respondents have also afforded a fair opportunity
to any person who may be aggrieved by his non-selection or
selection of a person not meriting it, in the procedure provided
under para 7. The officer of the rank of Formation Commander,
who, as we are informed, may be Brigadier Commander of the rank
of Brigadier or the Corps Commander of the rank of Major General
and above, would be required to interact with the jawans/sainik in
an open meeting (`Sammelan’) to ascertain that the selection was
fair. A written confirmation of the fact that such Sainik Sammelan
had been called and fairness of selection ascertained was required

WP(C) No.7267/2013 page 6 of 31


to be communicated to the Staff Duty Directorate.
9. We have noted above the seriousness with which the
respondents have themselves treated the selection process in some
detail, only to illustrate the casualness in the manner in which the
personnel selection procedure has been completed in the instant
case.

10. Another policy statement was issued by the respondents on
th
30 of August, 2010. This notes the valuable contribution of the
Indian Army to UN Peace Keeping Operations. It divides the
personnel in a contingent into the `troop contingents’ and staff
personnel based on the functional delegation. The policy was laid
down with the objective of meeting the aspirations of the PBOR
and the needs of the organization. The scope of this policy has
been detailed in para 3 thereof which reads as follows:-
“3. Scope

The reviewed policy is covered under the following
heads:-

(a) Reqmt of residual service on return from UN
Msns (PBOR).
(b) Overseas exposures and ban pd.
(c) Ban pd in r/o SM of units being inducted to
UN msns

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(d) Restns due to discp and selection.
(e) Promotion of PBOR while dply in UN Msns.
(f) Gallantry award winners.
(g) Med std for selection.
(h) BCs and dispensation.”

11. Emphasising in this policy is largely with regard to the
manner in which PBOR would be treated and preceded on return
from UN Mission.

12. It is urged by Mr. S.S. Pandey, learned counsel for the
petitioner that so far as issues of selection which were covered in
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the policy dated 17 June, 2010, they remain sacrosanct even after
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the notification of the policy dated 30 August, 2010. It is
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submitted that the policy dated 30 August, 2010 does not impact
the same.
13. An attempt is made by Mr. Ankur Chhibber, learned counsel
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for the respondents to urge that policy dated 30 August. 2010 has
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superseded the policy dated 17 June, 2010. A close reading of the
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policy dated 30 August, 2010 shows that it makes no reference at
all to the manner in which selection is to be effected of the unit of
the personnel to proceed on the UN Mission. Be that as it may,
this issue does not need to detain us any further inasmuch as the

WP(C) No.7267/2013 page 8 of 31


petitioner’s contentions have been considered by the respondents in
further clarifications and adequately addressed by the respondents.
We note the same hereafter.
rd
14. A copy of the letter dated 23 December, 2010 addressed to
the Staff Duty Directorate -3 (UN) which was issued by the
Directorate UN Infantry-6, (Pers) has been placed before us by
Mr. Ankur Chhibber, learned counsel for the respondents whereby
the following queries were raised which was -
“2. As per Para 3(b) of Apx to SOP issued vide
your Note under ref Pers who have done a tenure
in staff/instructional capacity overseas based on
indl merit when coming up for selection for dply
with parent unit in UN Msn will be considered
eligible for second tenure, provided he has served
at least five years in the BN (on its panel).
3. You are requested confirm whether the five
years service in the Bn is reqd on return from
overseas msn availed earlier based on
staff/instructional capacity or otherwise.”

th
15. The response dated 5 January, 2011 of the Staff Duty
Directorate – 3 (UN) has been placed before us by the petitioner as
well as the respondents which reads as follows:- (page 63)
“2. Any Indl who has been part of the unit for
five years continuously or otherwise, posted or in
the panel should be considered for the UN

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assignment when the unit is selected. This is also
applicable to any indl who has had a foreign
tenure.”

16. Mr. Ankur Chhiber, learned counsel for the respondents has
urged that regard must be had to the query raised by the
rd
respondents in the letter dated 23 December, 2010 which was
restricted to a second tenure with the UN Mission for PBORs and
th
that the communication dated 5 January, 2011 had to be restricted
to a person seeking to proceed on second tenure only. We find that
this submission is to be noted only for the sake of its rejection. The
rd
query in the letter dated 23 December, 2010 was limited to a
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second tenure. However, while responding, by the letter dated 5
January, 2011, the Staff Duty Directorate did not confine its
clarification to the query. The stipulations in the communication
th
dated 5 January, 2011 are clear and unequivocal. In the first part
of para 2, it has been clearly declared that ` any individual ’ who has
been part of the unit for “ five years ”, “continuously or otherwise
posted” or “ in the panel ” “when the unit is selected” should be
considered for the UN assignment.


WP(C) No.7267/2013 page 10 of 31


17. It is apparent from the bare reading of the above that it is the
date when the unit is selected which is material. It is also clear
from the above that the expression “ five years ” qualifies
“ continuous ”; “ otherwise posted” as well as “ in the panel ”. The
same therefore, has to be read as that such personnel should have
been for five years on the strength of the unit either continuously or
in broken tenures on the date when the unit is selected for
consideration for the UN assignment. It also mandates that a
personnel who has been on the strength of the selected unit for five
years has to be considered for selection for proceeding on the UN
Mission.
18. So far as query which was raised by the respondents in the
rd
note dated 23 December, 2010 extracted above relating to the
second tenure is concerned, the same been addressed by the
Directorate in the second sentence of para 2 wherein it has been
stated that the stipulation in the first sentence is “ also” applicable
to any individual who “ had foreign tenure ”. Therefore, even
though the query raised by the respondents were restricted,
however, the Staff Duty Directorate has addressed both exigencies,

WP(C) No.7267/2013 page 11 of 31


i.e., a personnel being considered for proceeding on UN Mission
for the first time as well as a PBOR who is being considered for
proceeding on a UN Mission for a second tenure.
19. It is noteworthy that such stand has been orally taken before
us. In this regard we may refer to the deposition made by the
respondents in the counter affidavit. The relevant extract whereof
reads as follows:-
“5. It is submitted for information that IHQ of Mod
(Army) vide letter No.71362/Policy/SD-3 (UN) dated
05 Jan 2011 received by this office vide IHQ of Mod
(Army) letter No.A/62006/UN/Inf-6(Pers) dated 13
Jan 2011 have clarified the Para 3(b) of the UN SOP
issued vide IHQ of Mod (Army) letter
No.71362/Policy/SD-3 dated 30 Aug 2010. Copy of
letter dated 5.1.2011 is annexed herein as Annexure-
IV and copy of letter dated 30.8.2010 is annexed
herein as Annexure-V. As per the said policy, any
individual who has been part of the unit for five years
continuously or otherwise, posted or in the panel
should be considered for the UN assignment when
the unit is selected . This is also applicable to any
individual who has had a foreign tenure. ...”

20. The same deposition has been reproduced in reply to ground
(i) of the counter affidavit. It is therefore, an admitted position that
th
in terms of the communication dated 5 January, 2011, any
individual who has been part of the unit for five years has to be

WP(C) No.7267/2013 page 12 of 31


considered for the UN assignment when the unit is selected. The
same is also from the requisite certification by the Commanding
Officer.
21. It is also material to note that the cut off date for
consideration of the eligibility of the personnel is the date on which
the unit is selected.

22. Mr. Ankur Chhibber, learned counsel for the respondents has
th
stated that the communication dated 7 July, 2010 mandated that
all personnel on the panel of the unit for the UN Mission must
proceed with the unit referring the contents to the certification by
the Commanding Officer. We have noted hereinbefore the date on
which the personnel must be on the panel of the unit which has
th
been nominated for the UN Mission. The letter dated 7 July,
2010 has to be read inconsonance with the declared policy of the
respondents and even otherwise the relevant date which is relevant
for considering the eligibility of PBOR for proceeding on UN
Mission is the date on which the unit was selected and therefore,
nominated for proceeding on a such mission and no other date.


WP(C) No.7267/2013 page 13 of 31


23. The mischief comes in when the respondents attempt to
override the unequivocal declaration by the Staff Directorate of the
date of selection of the unit as the cut off date. This has been done
by a misreading of the requirement of the certification by the
Commanding Officer. The declared policy and the clarification in
th
the letter dated 5 of January, 2011. Yet the respondents, as stated
in the counter affidavit, have proceeded as follows:-
“5. ...But as per IHQ of Mod (Army) letter
NO.A/62006/UN/R/Inf-6 (Pers) dted 07 Jul 2010, all
personnel on the panel of the unit nominated for UN
Mission must proceed with the unit. It has also been
directed that Commanding Officer of the unit will
render certificate to this effect that “ all eligible
personnel on the panel of the unit have been
detailed for UN Mission in first/second rotation
and no eligible personnel on the unit panel is left
for detailement with the unit for UN Mission.”

This certification is clearly incomplete as it does not refer to
the date on which the unit was selected for the UN Mission.

24. The certification of a person being on the unit strength
certainly cannot be with regard to the date on which the personnel
are being considered for selection or the date when the Unit is
proceeding on the Mission, as the respondents have attempted to

WP(C) No.7267/2013 page 14 of 31


assert in the present case. The certification by the Commanding
Officer of the unit has to relate to the eligibility of the personnel as
their being on the panel of the unit on the date the unit was detailed
for the UN Mission.
25. With regard to the issue as to manner in which the PBORs
have to be nominated for proceeding on UN Mission is concerned,
we have emphasised heretofore that the respondents have to
examine the eligibility of the PBOR and then effect his selection
th
for the same. In this regard para 7(b) of the policy dated 30
August, 2011 is material and reads thus:-
“(b) All offrs, JCO and OR, irrespective of
Arm/Service, who earn gallantry awards while being
att with bns/Regs, even if prior to shortlisting of the
bn/regt for UN msn will be considered for
proceeding with the nominated bn/regt for UN msn,
subject to their meeting all other requisite QR. In
case of offrs, only those with upto five yrs service on
the tentative dt of nomination of the uni/regt would be
considered for such assignments in the interest of
optimal comd and cont structure of the constituting
unit/regt.
(Emphasis supplied)

26. Even here there is clear and unequivocal reference to the
qualitative abilities of all personnel for consideration for

WP(C) No.7267/2013 page 15 of 31


proceeding with the nominated battalion. The same must
necessarily relate to discharge of functions as PBOR and not to any
consideration of an arbitrarily appointed date for drawing up a
select list or nomination of personnel to proceed on the UN
th
mission. Even if we were to hold that the policy dated 30 August,
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2010 superceded the policy dated 17 of June, 2010, certainly the
qualities to which consideration must be given by the authorities
for selecting members of the contingent can be gleaned therefrom.
27. We may also note another anomaly in the manner in which
the respondents are proceeding and have proceeded in the instant
case. The policy statement as well as the documents referred to
above use the expression “ selection ”. We find that the letter dated
rd
23 December, 2010, refers to individual merit of the PBOR The
selection is firstly of the unit which is then nominated for
proceeding on the UN Mission. Only thereafter selection of the
personnel on the panel of the unit on such date has to be effected.
The counter affidavit repeatedly uses the word “nomination”
instead of the word “selection” as if PBOR who are on the strength
of the unit has a right to proceed on the UN Mission irrespective of

WP(C) No.7267/2013 page 16 of 31


his merit. It is also implicit therefrom that no assessment of the
ability of the personnel who have been deputed has been
undertaken. This certainly is not permissible.
28. The question as to what would be the cut off date is certainly
res integra . This issue had arisen for consideration in
WP(C)No.8085/2007 entitled Naib Sub. Subedar Singh v.
Union of India & Ors . The writ petitioner was a person who was
seeking his posting to the UN Mission. Nb. Sub. Subedar Singh
was posted with 2 Naga which was selected for UN mission.
Though initially included in the select list of personnel for the UN
Mission, however, his name was subsequently removed by
nd
communication dated 2 January, 2007 which action he had
challenged. The petitioner was thereafter transferred from 2 Naga
Battalion to 785(1) Ad Brigade. In his place, respondent no.7 had
been posted to 2 Naga Battalion who had been put in the select list
for proceeding to the UN Mission. Nb. Sub. Subedar Singh had
challenged the removal from the list by way of said writ petition.
It is noteworthy that the Army Headquarter had issued a letter
rd
dated 3 May, 2006 whereby 2 Naga Battalion was nominated for

WP(C) No.7267/2013 page 17 of 31


proceeding on the UN Mission.
29. We note that the policy considered by the court in this case,
is similar to that placed before us. The court had noted the policy
declaration made in ROI – 02/05 read with ROI 3/2006 in para 9
th
judgment of the Division Bench dated 25 May, 2008 which
applied to this case. The relevant clauses stand extracted in para 9
of the judgment which reads as follows:-
“9. ROI 02/2005 deals with selection of AEC
personnel (to which category the petitioner belongs)
for posting to UN Mission. It starts with the
introductory remarks, namely, in recent years the
strength and frequency of deployment of Indian
Troops on UN Mission/Foreign Assignment has
increased tremendously. The AEC contributes its due
share on these assignments whenever a unit
authorized AEC PBOR is nominated for UN Mission.
The aim of the said instructions was, therefore to lay
down a comprehensive policy governing the selection
procedure for short-listing such personnel for UN
Missions. Para 3 of these instructions lays down the
eligibility criteria. It is not necessary to go into the
same as there is no dispute that the petitioner
otherwise fulfilled the said criteria. Para 4 stipulates
that deficiency of AEC staff in any unit nominated for
UN Mission would be filled up by AEC Records from
the list of PBOR short-listed by a Board of Officers
as specified in the subsequent paragraphs. Para 7 and
9, which are relevant for our purpose are extracted
below: -


WP(C) No.7267/2013 page 18 of 31


“7. AEC PBOR already posted to a
unit nominated for a UN Mission but who
do not meet the eligibility criteria for UN
Mission will be replaced by AEC Records
with other PBOR who have been short
listed for UN Missions by a specially
constituted Board of Officers convened
for the purpose.
xxx xxx
xxx

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 Army
HQ will be taken as the cut off date for
upholding/cancellation of Posting Orders
as and when required. As 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 individual extended upto the
date on which the main body of the unit
reaches its peace/field location in India.”

30. Thereafter, in Nb. Sub Subedar Singh (Supra) this court
had interpreted the above para 9 of the policy, which deals with cut
off date similar to that in the present case, in the following terms:-
“10. It is clear from the reading of para 9 that this
policy specifies the cut-off date for posting of AEC
personnel to such units which are UN bound units.

WP(C) No.7267/2013 page 19 of 31


Cut-off date which is fixed as per this para is the
actual date on which nomination order is signed at
Army Headquarters . It further stipulates that if there
is any posting order which is signed on or after the
date of nomination of the unit for UN Mission the
same will have to be cancelled. If one has regard for
the aforesaid provision which needs to be followed in
its letter and spirit, the conclusion is obvious, namely,
the petitioner has not been able to make out his case
for UN posting.

11. It is not in dispute that 2 Naga Battalion was
nominated for UN posting vide Army Headquarters
letter dated 3.5.2006. This is the cut-off date for
upholding/cancellation of the posting orders as and
when required. The petitioner, as on this date was not
posted to the said unit. His posting orders came to be
passed few days later, i.e. on 15.5.2006, and his
actual posting to the said unit much later, i.e. on
18.2.2007. Normally, the petitioner was not to be
posted to this unit after the unit was nominated for
UN posting in view of the aforesaid cut-off date
prescribed. As stated in the counter affidavit,
mistake occurred because of the reason that the
posting order of the petitioner was issued by the
OIC Records, which had no knowledge at that
time that the said 2 Naga Battalion had already
been nominated for UN Mission . After coming to
know of this mistake, in terms of para 9, the posting
order was cancelled and the petitioner was directed to
be moved out and join some other posting. The
purpose of fixing such cut-off date, as explained by
learned counsel for the respondent, is to ensure that
there is no favouritism by posting personnel in the
said unit after its nomination for the UN Mission. It
is also to obviate denial of such posting to the
existing personnel by moving them out. Once this

WP(C) No.7267/2013 page 20 of 31


is the rationale behind fixing the cut-off date, we
are of the view that it should be strictly followed
and rule out any invidious discrimination or
favouritism. Since the action of the respondents is in
consonance with the policy, it is not possible for us to
interfere with the same though in the facts of this case
it may be harsh to the petitioner who served in the 2
Naga Battalion for 9 months and was acquitting
himself well in discharge of his duties.”

(Emphasis by us)

31. Given the clear enunciation of law in the said judgment,
certainly there is no scope for any confusion. The respondents
should have applied the principles laid down by this court. The
policies of the respondents are also clear and unequivocal
supported the above annunciation of law.
32. It is an admitted position in the instant case that the
petitioners were transferred out after they had completed over
seven years with the 8 RAJ RIF which had been detailed for the
UN posting. The respondents have also informed us that they were
posted out of 8 RAJ RIF after the unit had been nominated by the
th
order dated 11 May, 2011 for the UN posting. The four
petitioners were therefore, clearly eligible in terms of the declared
policy of the respondents for consideration for proceeding on the

WP(C) No.7267/2013 page 21 of 31


th
UN Mission, as clarified on 5 January, 2011 as well.
33. Mr. S.S. Pandey, learned counsel for the petitioner has
vehemently urged that the petitioners were the most meritorious
jawans in the 8 RAJ RIF and were posted out only in view of the
special requirements of the new unit that is the 23 RAJ RIF. It is
submitted that the petitioners thereafter successfully completed
commando training and form an elite class of expert paratroopers
in the 23 RAJ RIF. The submission is that they have been wrongly
penalized because of their merit.
34. The respondents have disclosed that after the arbitrary
nomination, 8 RAJ RIF projected additional requirement of JCOs
and PBORs to fill up their shortfalls of Mission for their second
th th
rotation contingent vide letter dated 20 March, 2013 and 14
May, 2013. The respondents claimed that this requirement was
nd rd
distributed between other units including the 22 and 23 RAJ RIF
th
vide letter dated 30 May, 2013. Thereafter, the respondents drew
up a list of reserved personnel working with 8 RAJ RIF on the
basis of the longest service which such personnel had served with 8
RAJ RIF. On this basis the petitioners have been detailed as

WP(C) No.7267/2013 page 22 of 31


“ reserved” for the UN Mission and have been called to report to 8
nd
RAJ RIF for pre-induction formalities by a signal dated 22 July,
2013. The fact that the petitioners have been posted out, after their
unit the 8 RAJ RIF was selected and nominated on a UN Mission,
is not disputed. This action by itself reflects the illegality and
arbitrariness of the action of the respondents without anything
more. It supports the view that the material date was the date on
which the unit was earmarked for the UN Mission. One of the
essential considerations for selection of a person was the length of
service on 8RAJ RIF. It is noteworthy that in Nb. Sub Subedar
Singh (Supra), the Division Bench had clearly held that posting a
person out of the unit or to the unit, after it had been detailed for
foreign mission was impressible. Of course, the same may be
essential keeping in view the nature of functions which the army
discharges. There is substance in the submission that the
consequence of the respondents action is wrongly penalising the
petitioners because of their merit.
35. In view of the submission made on behalf of the petitioner,
th
we had recorded the following order on 18 December, 2013

WP(C) No.7267/2013 page 23 of 31


“1. The respondents inform us that the 8 Raj Rif
was selected for the UN Mission in the first week of
May, 2011. Our attention is drawn to the policy letter
dated 5th January, 2011 which makes the following
prescription: -

“2. Any Indl who has been part of the
unit for five years continuously or
othersie, posted or in the panel should be
considered for the UN assignment when
the unit is selected. This is also applicable
to any indl who has had a foreign tenure.”

2. The petitioner has made strong grievance that
the respondents have misinterpreted the word
“selected” in para 2 above as “inducted”. It is
contended that after the unit was selected, new
recruits were effected and the personnel of 8 Raj Rif
who have been in the unit even for one year (even for
three or four months) have been deputed for the UN
Mission, contrary to the stipulation contained in the
policy dated 5th January, 2011.

3. It has further been contended that the
expression “five years” qualifies not only continuous
posting in the unit but also the expression “otherwise
postings” and “in the panel”. The requirement of
having been part of the unit which is selected for a
period of five years is though the same may be
broken by postings to other positions, a sine qua non.

4. In view of the above, the respondents shall
place before this court the list setting out the details
of persons of the 8 Raj Rif who had not been posted
in the unit for a period of five years, yet have been
deputed on the UN assignment.


WP(C) No.7267/2013 page 24 of 31


5. The respondents shall also place the list of such
personnel, who were not on the strength of 8 Raj Rif
on the date when the unit was selected for the UN
Mission in May, 2011, yet have been deputed on the
UN assignment.

6. The respondents shall also place a list before us
of personnel of 8 Raj Rif who had completed the
period of five years and were earmarked or assigned
other units after the selection of 8 Raj Rif for the UN
Mission.

7. The learned counsel for the petitioner submits
that the policy dated 5th January, 2011 has been
correctly implemented by 22 Rajput whose personnel
were deputed to 29 Raj Rif. It is pointed out that
upon selection of 22 Rajput in the UN Mission,
eligible personnel were recalled from 29 Raj Rif and
have been deputed to the UN Mission.

The respondents shall verify the correctness of
this statement as well.

List on 19th December, 2013.”

36. Pursuant to the said order, the respondents have placed
before us the list of personnel who have been deputed by them in
the first and the second rotation. These lists are taken on record.
The examination of the list of personnel in the first and the second
rotation would show that almost 72 personnel who have not been
on the strength of 8 RAJRIF for five years have been permitted to

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proceed on the UN Mission even though they did not meet five
years stipulation.
37. We may advert to the details of some other personnel who
th
have spent around only one year in 8 RAJRIF as on 26 of May,
2013, provided by the respondents which read as follows:-
“

38. It is noteworthy that one candidate namely RFN Zahoor

WP(C) No.7267/2013 page 26 of 31


th
Ahmed was enrolled into the Indian Army on 29 of September,
th
2011, i.e, long after the unit was nominated on 11 May, 2011 for
proceeding on the UN Mission. He would have proceeded on
training. As per the respondents Rfn Zahoor Ahmed was brought
rd th
to 8 RAJRIF only on the 23 of August, 2012 and as on 26 May,
2013 has tendered only 9 months and three days service.

39. We may note another extremely distressing aspect of the
matter. Mr. Pandey, learned counsel for the petitioner has
submitted that the five year unit posting requirement is a sound
requirement to prevent corrupt practices in postings of personnel to
units selected for foreign mission. This is evident from the similar
stipulation in the policy which was considered by the court in Nb
Sub Subedar Singh (Supra).
40. The respondents have placed before us only list of personnel
th
with less than five year service with 8 RAJ RIF on 26 of May,
th
2013 (date of last flight of first rotation) and as on 15 January,
2013 (the date of last flight of second rotation).
41. So far as the list of such personnel (of the first rotation) is
concerned, we may note that PBOR from serial nos.66 to 73 were

WP(C) No.7267/2013 page 27 of 31


th th
enrolled into the Indian Army between 17 August, 2010 to 29
th
September, 2011; were posted with 8 RAJ RIF between 18 June,
rd
2011 and 23 August, 2012, that is after the Unit stood nominated
for the UN Mission and had barely served for a total period from
9 months 3 days to 1 year 11 months and 8 days in the Indian
Army!
The position qua the second rotation is worse as per
personnel from serial no.41 to 65 have been so posted and have
spent 1 years 9 days and around 2 years 3 months only in 8 RAJ
RIF.
These facts certainly support the submission of the petitioner
that postings after a Unit stands selected for a foreign mission are
motivated and guided by extraneous considerations.
42. What special awards, rewards or experience that such
personnel bring for dispensing with the stipulations in the policy to
flout the same? What professional maturity would a jawan of 9
months experience have with regard to special requirements, which
could include engaging with civilians using guerrilla warfare at the
foreign postings? The respondents must take a close look and

WP(C) No.7267/2013 page 28 of 31


scrutinize who could be responsible for such postings and
selections which may bring international discredit to the Indian
nation as well as to the ability and capacity of its army. It must be
ensured that there is no malafide in such appointments.
th
43. As has been noted in the judgment dated 25 May, 2010 as
th
well as in the policy dated 17 January, 2010, selection of a Unit as
well as of an army personnel for proceeding to UN Mission is
prestigious selection. It is not only the interest of the PBOR but is
also the honour of the Nation and glory of the Indian Army. This
selection cannot be effected as if an idle formality was being
completed as in the present case.
44. We would not like to comment any further on this aspect of
the matter which has been completely overlooked in the working of
the policy by the respondents.
45. In view of the above, the only and inevitable conclusion is
that the respondents have failed to abide by the declared policy in
effecting the selection and nomination of PBORs from proceeding
on the UN Mission. We also find that the petitioners were eligible
and have been wrongly denied consideration for selection to

WP(C) No.7267/2013 page 29 of 31


proceed on the UN Mission.
46. We are informed that the second contingent from the 8 RAJ
RIF troops have to proceed for UN Mission shortly. It is
contended that in case the respondents were to re-examine the
eligibility of the entire identified personnel in the contingent in
terms of the findings which we have recorded today, it would
interdict the departure of the contingent and materially impact the
peace keeping functions to be discharged by the Indian Army in
foreign countries. The same would be a counter productive
exercise.
47. In view of the above, we direct as follows:-
(i) Keeping in view the urgency expressed and in the facts and
circumstances of this case, as a onetime measure we permit the
respondents to include such personnel to proceed on the UN
th
Mission who were on the strength of 8 RAJ RIF on 11 of May,
2011 when the unit was identified for the UN posting, without
insisting on the requirement of the five years tenure in the Unit.
(ii) For identifying the personnel in terms of our directions at
serial no.(i) above, the respondents shall draw up a seniority list of

WP(C) No.7267/2013 page 30 of 31


the personnel with regard to the period which they have spent on
the strength of 8 RAJ RIF.
(iii) The petitioners being eligible, shall be considered, and, if
placed appropriately in the seniority, shall be sent with the second
contingent which is to proceed for the UN posting.
(iv) It shall henceforth be ensured by the respondents that only
the personnel who meet the eligibility criteria noted by us are
shortlisted and are deputed for proceeding on the foreign missions.
(v) The respondents shall scrutinise the nominations which have
been effected of personnel of 8 RAJ RIF selected for proceeding on
th
the UN Mission pursuant to its nomination made on 11 May,
2011. In case any malafide can be determined, action be taken
against those responsible for such postings and nominations.
This writ petition and application are allowed in the above
terms.
Dasti to counsel for the parties.
(GITA MITTAL)
JUDGE


(DEEPA SHARMA)
JUDGE
DECEMBER 19, 2013/ mk

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