Lt. Colonel P. Kulkarni vs Uoi And Ors.
2009 Latest Caselaw 208 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                        W.P.(C) No. 9113/2008

                  Date of Decision: January 21, 2009

       LT. COLONEL P. KULKARNI                           ....Petitioner

                        Through: Mr. Ashwin Vaish with Mr. Vinod
                                 Kumar Pandey      and Sanjeev
                                 Manchanda, Advs.
                        Versus

       UOI AND ORS.                                ....Respondents
                        Through: Mr. A.K. Bhardwaj with Ms. Jagrati
                        Singh, Advs. for R- 1 to 3
      CORAM:
      Hon'ble Mr. Justice B.N. Chaturvedi
      Hon'ble Mr. Justice S.L. Bhayana

     1.       Whether reporters of local papers may be allowed
              to see the judgment?
     2.       To be referred to the Reporter or not?
     3.       Whether the judgment should be reported
              in the digest or not?

S.L. BHAYANA, J.

This petition has been filed by the petitioner under Article 226 of

the Constitution of India, praying inter alia that an appropriate writ be

issued in the nature of certiorari quashing the order dated 12.12.2008

whereby the name of the petitioner has not been cleared for UN

Mission at Sudan. He has prayed that appropriate writs in the nature

of mandamus commanding respondents to clear the name of the

petitioner for UN Mission at Sudan as also in the nature of prohibition

prohibiting respondents from giving effect to the select list of the

officers who have been selected for UN Mission at Sudan, during the

pendency of writ petition be also issued. He has further prayed that an

appropriate writ in the nature of mandamus directing respondents to

produce entire service record of petitioner and other

selected/recommended persons who have been selected for UN

Mission at Sudan be also issued.

2. In the petition, the petitioner has averred that the order

dated 12.12.2008 is not a reasoned order through which the petitioner

has been wrongly ignored for UN Mission at Sudan with his troops due

to his relative merit.

3. There are only two Lt. Colonels posted in the Regiment and

the petitioner is next to the Commanding Officer. The petitioner is

second in command, while the other Lt. Col. is Sh. V.V. Mathur, who

has also not been sent to UN Mission at Sudan and the petitioner being

the senior most Lt. Col. is eligible to go to UN Mission at Sudan. The

petitioner was nominated for UN Mission at Sudan by the respondents

vide order dated 17.8.2008 but later on his nomination was dropped

and only five officers were selected by order dated 22.8.2008. By

subsequent order dated 27.8.2008, the name of Lt. Col. V.V. Mathur

was cleared for UN Mission, although he was not otherwise eligible to

be sent for UN Mission at Sudan as he had not attended two basic

courses as required under the rules. His name was added in the select

list on account of influence exerted by respondent no. 3, Military

Secretary Lt. Gen. Avdhesh Prakash, as Lt. Col. V.V. Mathur happened

to be his son-in-law.

4. He has further averred that, later on the name of Lt. Col.

V.V. Mathur was also dropped and suddenly the name of Lt. Col.

Seetharam has been cleared for sending for UN Mission at Sudan, who

is much junior to the petitioner and the name of Lt. Col. Seetharam has

been shortlisted with malafide intention. He has further averred that

the respondents be directed to clear the name of the petitioner and he

should be sent to UN Mission at Sudan with his troops being the senior

most Lt. Col.

5. On the other hand, learned counsel for the respondents has

averred that the petitioner is misleading that he has been cleared for

UN Mission at Sudan. In this regard, learned counsel for the

respondents has brought our attention to "Annexure P-6" at page 70 of

the writ petition, which is a letter dt. 17.8.2008 vide No. 10403/1/01/A,

addressed by „108 Engineer Regiment‟ to „Military Secretary‟s Branch

(MS-12)‟. The letter reads as under:-

"SELECTION OF OFFRS FOR UN MSN

1. Ref:-

(a) GS Branch, SD-3, Integrated HQ of MoD (Army) ION No. 20005/3CEC/SD-3 (UN) dt. 04 August 2008.

(b) MS Branch, Integrated HQ of MoD (Army) letter No. 04526/MS Policy dt. 19 May 2008.

2. Name of offrs being considered for first rotation in CEC to be dispatched to UNMIS are given at Appx.

3. It is requested to accord MS Clearance so that the list of officers for CEC-I can be finalized. The nominal roll is required to be fwd by 01 September 2008.

SELECTION OF OFFRS FOR UN MSN

Nominated:

1. IC-5234 IA Lt. Col. Prahlad Kulkarni

2. IC-55997A Maj Amartej Singh

3. IC- 62446X Maj Rajendra Chhetri

4. SC-00418H Maj SK Tyagi

5. IC-67259 H Capt S.K. Dwivedi

6. IC-69501L Capt. VS Sengar

Reserve:

1. IC-55939 W Maj RV Kulkarni, SM

2. IC-58170P Maj MU Nair

3. IC-61257F Maj Manish Jain"

6. A bare reading of this letter makes it clear that the names

of the officers including the name of the petitioner were to be

considered for first rotation in CEC to be dispatched to UN Misssion and

they were never nominated or selected by the regiment for selection.

Their names were sent only for consideration for UN Mission. Learned

counsel for the respondents has further drawn our attention to

„Annexure P7", a letter dated 22.8.2008 vide No. A/55311/108/ER/MS-

12A addressed by „Military Secretary‟s Branch (MS-12A)‟ to „108

Engineer Regiment‟, which reads as under:-

"SELECTION OF OFFRS FOR UN MSN

1. Ref your letter No. 10403/1/01/A dt. 17 August 2008.

2. MS clearance is hereby granted to following offrs of your unit for proceeding on UN MSN:-

       (a)    IC-55997A Maj Amartej Singh
       (b)    IC- 62446X Maj Rajendra Chhetri
       (c)    SC-00418H Maj SK Tyagi
       (d)    IC-67259 H Capt S.K. Dwivedi
       (e)    IC-69501L Capt. VS Sengar

3. IC-52341A Lt. Col Prahlad Kulkarni is not cleared from MS Angle.

4. Willingness cert and undertaking be obtained for above offrs as per this HQ letter No. 04526/MS Policy dt. 21 December 1999.

5. Please intimate name of one more offrs from reserve for MS clearance."

7. From the perusal of the aforesaid letter, it is clear that the

name of the petitioner was not cleared from MS angle and he was

never selected and his name was never cleared by the MS Branch for

being sent to UN Mission at Sudan along with his troops.

8. From the perusal of abovementioned letters, it has become

clear that the averment of the petitioner that his name was cleared for

the UN Mission is totally misleading and incorrect. Learned counsel for

the respondents has further submitted that the name of Lt. Col. V.V.

Mathur has also been withdrawn by the respondents as the petitioner

has levelled false and baseless allegations against him and for this

reason his name was withdrawn by the respondents. It is further

submitted by the learned counsel for the respondents that the name of

Lt. Col. Seetharam has been nominated to the UN Mission with the unit

as he is fully qualified for the same.

9. There are two types of nominations on foreign assignment.

First pertains to selection of officers for foreign assignment/courses like

UN observers or on staff in UN Mission or diplomatic assignments. For

diplomatic assignments, the selection is made on rigorous selection

and the most qualified officers throughout the Indian Army are

considered for these assignments for nomination to such

appointments. The selection procedure is based on a computer

generated merit panel from which a screening committee composed

on the directions of the COAS selects the most eligible officers after

interviewing them. Policy dated 19.5.2008 governs the selection of

such officers. The said policy does not govern nomination of officers

alognwith units on foreign assignments for nomination of officers to

foreign mission with troops. The officers being sent to foreign

assignments with UN troops are nominated after taking MS Clearance

subject to availability of vacancies. There is no ban for two years as

per this policy for considering officers who had attended DSSC and the

best officers amongst all the officers belonging to a particular unit are

required to be selected for sending them to the foreign mission.

10. In the present case also, a panel of all the officers of a

particular unit earmarked for foreign mission is drawn and as per their

merit and availability of vacancies, the officers have been nominated

for UN Mission. In the case of the petitioner, a panel of all the 48

officers of his unit, i.e. 108 Engineer Regiment was drawn. In the first

rotation, 5 officers were required to be sent including one Lt. Col. Out

of total of 48 officers, the petitioner is 41st in the merit list, whereas Lt.

Col. Seetharam is 5th in the merit list. Hence, due to relative merit as

per the merit list prepared, the petitioner was not nominated for UN

Mission in the first rotation.

11. Learned counsel for the respondents further averred that

the petitioner has levelled bald allegations of bias and malafide against

the respondents, which has not been substantiated by any

documentary proof.

12. We have heard the arguments of the counsel for the both

parties at length and we have perused the "Annexure P 6", which is a

letter addressed by „108 Engineer Regiment to the „Military Secretary‟s

Branch‟. In this letter the Regiment had sent the names of 6 officers

for UN Mission and 3 officers in Reserve for being considered for first

rotation in CEC to be dispatched to UN, whose names are given at the

2nd page of the letter dated 17.8.2008. In this list, the name of Lt. Col.

Prahlad Kulkarni appears at No. 1. On a bare reading of the letter, it is

quite clear that these names were sent for being considered for first

rotation on CEC to be dispatched to UN Mission and there is nowhere

mentioned that they were nominated or selected for UN Mission either

by the Military Secretary‟s Branch or by 108 Engineer Regiment, as

alleged by the petitioner.

13. We have also perused the "Annexure P 7", which is a letter

sent by „Military Secretary‟s Branch to „108 Engineer Regiment‟

wherein the MS Branch has categorically stated that MS clearance has

been granted to the 5 officers, namely, IC-55997A Maj Amartej Singh,

IC- 62446X Maj Rajendra Chhetri, SC-00418H Maj SK Tyagi, IC-67259 H

Capt S.K. Dwivedi and IC-69501L Capt. VS Sengar, whereas Lt. Col

Prahlad Kulkarni/petitioner has not been cleared from MS angle. So it

also belies the allegation of the petitioner that his name was cleared

from MS angle by the Military Secretary‟s Branch for being sent to the

UN Mission at Sudan with his troops.

14. We have also gone through the panel of all the 48 officers of

the concerned unit, i.e. „108 Engineer Regiment‟, which has been

drawn by the respondents, wherein the name of the petitioner appears

at Serial No. 41 in the merit list, whereas the name of Lt. Col.

Seetharam appears at Serial No. 5, which is much above the name of

the petitioner in the merit list drawn up by the respondents. From the

records, it is clear that respondents had considered the case of the

petitioner in the light of his performance and suitability and the

petitioner cannot complain that there has been any illegality,

irrationality or bias in the action of the respondents.

15. So from the perusal of the panel of the officers, which has

been made on the basis of merit by the respondents, it is apparent

from the merit list that Lt. Col. Seetharam is much above in the merit

list in the panel of the officers, who has been selected for the UN

Mission in the same Regiment, i.e. „108 Engineer Regiment‟.

16. The allegations of the petitioner the respondents are biased

against him and have not sent his name deliberately with malafide

intention is absolutely baseless and without any basis. There is

nothing on record which shows that the selection was made in

contravention of any prescribed rules or by malafide and extraneous

consideration.

17. We do not find any merit or substance in the petitioner‟s

challenge to the selection. With these observations, the petition is

dismissed.

18. The parties are left to bear their own costs.

S.L. BHAYANA, J.

B.N. CHATURVEDI, J.

January 21, 2009 KA