Naib Subedar K.C. Jena vs Uoi & Ors.
2010 Latest Caselaw 525 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                       Judgment reserved on: 22nd 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

                             JUDGMENT

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

30th 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.

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

tenures. On 1st 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.

4. A letter No.40202/FM/SD-4(A) dated 31st 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.

5. On the 1st 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

that on the 15th 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.

6. Apart from the petitioner, one Subedar Mukesh Kumar Mishra,

respondent no.6, had been detailed with 2 JAK RIF w.e.f. 6 th November,

2006 as a JCO from the Army Education Corps.

7. In this background the Commanding Officer of the petitioner's

unit addressed a communication dated 18th September, 2008 to the

Directorate General of Military Training intimating it of this position. It

was pointed out that as per para 3 of the communication dated 9 th

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

on 25th 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

petitioner. This was followed by a communication dated 30th

December, 2008 from the respondent No.5 posting the petitioner out

of 2 JAK Rif to HQ 89 INF BDE.

9. The petitioner has placed reliance on a message dated 11 th

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

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

movement order on 21st March, 2009 despite his recommendations for

permitting the petitioner to proceed on the UN posting with the unit

still pending consideration.

10. Apart from the communication dated 8 th January, 2009, another

letter dated 2nd 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

filed the present writ petition on or about the 28th 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

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

policy dated 22nd 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

of the policy dated 22nd November, 2004 may be usefully extracted in

extenso and reads as follows :

"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

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

The UN Mission". These instructions were amended and approved by

the Army Headquarters and communicated to AEC Records by the

letter no. A/7901/UN Mission/GS/MT-14 dated 30th 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

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)

18. The above instructions reiterate the policy dated 22nd

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

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

communication dated 22nd 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

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

on 23rd 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

actually effected on 30th 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.

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

with the 2 JAK RIF till as late as on 11th 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

posted between 30th January, 2008 to December, 2008. Even the

message dated 26th 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

proceeding on the UN mission. In fact in the letter dated 8th of January,

2009, the petitioner's Commanding Officer has informed that the

petitioner's conduct in the unit since his posting on 1st of July, 2007 has

been exemplary and his devotion to duty and performance

outstanding during his tenure with the battalion. Again on 2 nd 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.

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

that the Instructions of 2005 as well as the policy dated 22nd

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

assigned as on 30th 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

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

have been placed before us. A letter dated 21st 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

dated 8th of January, 2009 by the Commanding Officer of 2 JAK RIF

requesting cancellation of the petitioner‟s side stepping. In this letter,

it was mentioned that as per the letter dated 9th 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

dated 9th 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:

"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

respondents on the policy dated 9th 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

drawing the provisions of the policy of November 2004 and the ROI of

2005 which make reference only to 'posted' strength of the unit.

32. The list dated 30th 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

from also the fact that the petitioner was not only promoted on 1 st 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

the 2 JAK Rif for the mission was effected on the 23rd 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

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

Assam Inf Bn by a communication dated 19th February, 2008. The

respondent No.4 responded by a communication dated 17th March,

2008 accepting the request for inclusion of the AEC personnel against

the personnel below officer rank (Sol GD) vacancy in the second

rotation.

34. We find that a similar request was made by Commanding

Officer of 2 JAK RIF Inf Bn on 2nd 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

21st April, 2009 and letter dated 2nd 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

to such proposal by letter dated 27th April, 2009 followed by a signal

dated 5th 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.

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

AEC personnel who is a NCO only on 30th 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.

The orders issued by the respondent on 30th 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

regard to the message dated 11th 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.

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

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

the posting out of the petitioner by the order dated 30th December,

2008, after the selection of 2 JAK RIF for the UN posting was contrary

to the respondents‟ instructions on the subject.

Accordingly, the order dated 30th 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)