Delhi High Court

Major Gaurav Negi vs Union Of India & Ors. on 7 February, 2012

Author: Anil Kumar

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    WP(C) No.774/2012 & CM No.1713/2012

%                        Date of Decision: 07.02.2012

Major Gaurav Negi                                           .... Petitioner

                       Through Mr.S.S.Pandey, Advocate


                                 Versus

Union of India & Ors.                                    .... Respondents

                       Through Mr.Ravinder Aggarwal, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has sought a direction to the respondents to allow

him to proceed with his unit, 6 MAHAR, on the UN Mission in the same

manner as the officers of his unit are proceeding on such mission and

has also sought quashing of order, if any passed by respondents,

whereby the petitioner is excluded from the contingent of 6 MAHAR

earmarked to move on the UN Mission and the order dated 13th

January, 2012 passed by the respondent transferring the petitioner to 5

MAHAR located at Sikkim.

2. Relevant facts to comprehend the contentions of the petitioner are

that the petitioner was granted Short Service Commission in the Indian

Army in 1 PARA (SF) after completing the training from Officers Training

Academy, Chennai. He was later on posted to 6 MAHAR, Regiment of

Corps of Infantry. The petitioner asserted that he had served with

utmost dedication to duty and to best of his abilities wherever he had

been posted either in peace, field or counter insurgency areas. He stated

that he had even participated in Op Rakshak and Op Parakram with his

unit.

3. In terms of the existing instructions, the petitioner was asked to

exercise his option in the 4th year of his service for the grant of

permanent commission. Though the petitioner opted for permanent

commission, he was, however, not granted the permanent commission

but was instead given an extension for five years.

4. The petitioner was thereafter, posted at 1 Rashtriya Rifles

Battalion (MAHAR) in October, 2006 till May, 2009. The petitioner

asserted that he participated in the unit activities and due to his

distinguished performance he was awarded the Vice Chief of Army Staff

Commendation Card in 2007.

5. The petitioner disclosed that in the event of opting for grant of

permanent commission in his second chance, he would have lost one

year and eight months of seniority and, therefore, he had opted to

continue in Short Service Commission which had been further extended

for 4 years.

6. The petitioner also gave details of other awards given to him

which according to him are also reflected from the record of his service.

On 21st September, 2010, the petitioner was posted in his parent unit

i.e. 6 MAHAR where he is continuing till date.

7. The unit of the petitioner was shortlisted to form a part of a UN

contingent consequent to which, according to the petitioner, he arrived

at Delhi with advance party as Second-In-Command to complete the pre

induction formalities, as the unit is likely to move sometime in July,

2012 or thereafter. The petitioner relied on the letter dated 19th

September, 2011 and 29th September, 2011 regarding instructions

issued for the unit of the petitioner for the deployment of troops as a

part of contingent of 6 MAHAR.

8. The petitioner contended that by order dated 13th January, 2012

he has been posted out from his present unit, 6 MAHAR to another

unit that is 5 MAHAR and thus he has been excluded from moving to

the UN Mission and that he is required to report to his new unit on 13th

February, 2012. Against the transfer of the petitioner from his unit 6

MAHAR to unit 5 MAHAR, the petitioner made a representation dated

31st January, 2012 contending, inter-alia, that the MS policy towards

the Short Service Commissioned Officers is discriminatory and that it

has to be reviewed as he has been excluded from the unit which is

proceeding to the United Nation presumably on the ground that he does

not have 5 years of residual service, as he is a Short Service

Commissioned Officer and that he is entitled to serve till 2015 only,

maximum period of fourteen years. The petitioner averred that though

he did not get any such policy containing such stipulation, however, as

per the information available to him, such condition had never been

insisted upon in the past. The petitioner further averred that on such a

policy he should not be denied the opportunity to go with his unit and

serve the United Nations and if there is such a policy which requires

five years of residual service, he undertook to serve with the Territorial

Army (fully embodied) after the expiry of his contractual period of 14

years of Short Service Commission. The petitioner also gave the

particulars of Short Service Commissioned Officers who had

accompanied the parent unit on UN Missions during their extension of

Short Service Commission.

9. The petitioner has contended that after making the representation

dated 31st January, 2012, he met the concerned authorities, however,

he did not get any satisfactory reason for excluding him from the UN

Mission. Aggrieved by the decision of the respondents, the petitioner

has filed the present petition, inter-alia, on the grounds that his posting

order to a different unit is arbitrary, illegal, unreasonable; that the

respondents have failed to adhere to their own policy instructions which

provides that all persons posted in the unit on the date when the unit is

nominated for such UN Mission will be allowed to proceed for such

missions unless the officials of the unit are ineligible because of the

criteria of discipline, medical category etc; and because the petitioner

had already accompanied the advance party of the unit and had started

participating in the pre-induction procedure.

10. The petitioner also contended that if there is any policy to exclude

a Short Service Commissioned Officer who has a residual service of less

than 5 years then the residual service clause cannot be made applicable

in the case of the petitioner because the petitioner had applied for grant

of permanent commission however, the respondents deemed it

appropriate to give him extension only up till 2015. It was further

contended that any officer proceeding on a UN Mission is required to

give a bond for serving up to 5 years only after coming back from such a

mission and that there are several instances where the Short Service

Commissioned Officer (SSCOs) have been allowed to proceed on release

after coming back from such missions and were released from service

before the expiry of five years.

11. The learned counsel for the petitioner, Mr.Pandey has

emphatically contended and relied on the policy pertaining to

detailment of attached personnel on UN MSNs dated 22nd November,

2004 to contend that even the personnel from other arms and services

who are posted on the strength of battalion in a particular unit at the

time of nomination are not denied an opportunity to proceed on the UN

Mission with the battalion unless they themselves are disqualified on

account of not meeting certain mandatory QR of discipline and medical

status.

12. The learned counsel for the respondents, Mr.Aggarwal who

appears on advance notice has produced the relevant file regarding the

policy for the Short Service Commissioned Officers. He has contended

that according to the said policy after 10 years of Short Service

Commission only those Short Service Commissioned Officers who have

been granted permanent commissions are to be considered for such

missions and officers who are on extension are not to be considered for

UN panel with the battalion.

13. The learned counsel for the petitioner, Mr.Pandey has contended

that no such policy has been disclosed to the petitioner pursuant to his

representation dated 31st January, 2012, although the petitioner has

also disclosed in the writ petition that presumably he has been

excluded to proceed with the UN Mission on such a ground. The learned

counsel for the petitioner wanted to peruse the details of the policy from

the file produced by the learned counsel for the respondents, who,

however, claimed privilege against divulging the details of the various

other aspects of the policy.

14. This Court has heard the learned counsel for the parties. The

petitioner himself has contended that presumably there is a policy that

if a Short Service Commissioned Officer has a residual service of less

than five years then such an official can be excluded. However, he has

challenged the policy not only on the ground that he was willing to

serve the respondents a period of five years after the expiry of his

contractual period of 10 years of Short Service Commission but also on

the ground that he had sought a permanent commission which was

declined to him at first and only an extension of five years was granted

to him at the time.

15. The plea of the petitioner is self contradictory since as per the

pleas and contentions of the petitioner in the writ petition, on the expiry

of 8 years of his tenure of Short Service Commission he was given the

option for permanent commission, however, he did not avail the same

as in that case he would have lost 1 year and 8 months of seniority and,

therefore, he had thought it prudent to seek an extension of Short

Service Commission instead, which was granted to him by extending his

Short Service Commission for another 4 years.

16. The learned counsel for the respondents, Mr.Aggarwal has also

contended that a Short Service Commission is granted for 5 years which

is extended for another 5 years and thereafter an extension can be

granted for another 4 years. Thus a Short Service Commissioned Officer

can serve for a maximum of 14 years only. The learned counsel for the

respondents has also disclosed that there is no policy about relaxation

for an officer by not excluding to a UN Mission, if his residual service is

less than 5 years.

17. As far as the plea of discrimination is concerned that SS-39428

Captain Inderpal Singh of 7 JAT was sent for UN Mission in a similar

situation, it is apparent that the said officer had 5 years service in 2007

when he was sent for a UN Mission. The tenure of Captain Inderpal

Singh was from 2007 up to 2011 and, therefore, the plea on behalf of

the petitioner that he had a service of less than 5 years and he was still

nominated for the UN Mission is not correct. The policy is that after 10

years of service only those Short Service Commissioned Officers who are

granted permanent commission could be considered, as the total tenure

of a Short Service Commissioned Officer is only 14 years. Captain

Inderpal Singh admittedly in the facts and circumstances had not

completed 10 years of service as he had the extension from 2007 to

2011 and consequently his nomination for the mission to UN was not

contrary to the policy of the respondents.

18. The policy regarding not considering the officer on extension after

10 years of service of Short Service Commission is prevalent since

February, 2007 and it cannot be inferred that such a policy is being

used only for the petitioner. In any case no malafides or bias has been

alleged by the petitioner. In any case, the scope of judicial review of a

policy evolved by the authorities is limited. The Court has to leave the

matter regarding non consideration of the Short Service Commissioned

Officers for the UN Mission after 10 years of Short Service Commission,

to the expertise of the Army authorities who are qualified to address the

said issue. The Court has to follow the wholesome rule with regard to

judicial interference in administrative decisions, that is if the

authorities have taken into consideration the relevant factors and

eschewed from considering irrelevant factors and have acted within the

parameters of law, the Courts would not interfere with the same. The

petitioner has not shown any such factors which would allow any scope

for this Court to interfere with the policy decision of the respondents.

Policy decision dated 22nd November, 2004 also is of no help to the

petitioner as it does not negate the subsequent policy dated 19th

February, 2007 regarding non consideration of the Short Service

Commissioned officers for the UN panel after 10 years of service.

19. The Supreme Court while dealing with the scope of judicial

interference regarding policy decisions had laid down in Federation of

Railway Officer Association & Ors v. Union of India, (2003) 4 SCC 298

in para 18 as under:-

"18. ................The wholesome rule in regard to judicial interference in administrative decisions is that if the Government takes into consideration all relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, courts would keep off the same. Even on the test suggested by Dr Pal, we cannot travel outside this principle to sit in appeal on the decision of the Government."

20. The Supreme Court had further held in Raj Shikshan Prasarak

Mandal v. State of Maharashtra & Ors, (2001) 10 SCC 75 that so long

as the Government decision is not actuated with any malice or is not

the outcome of any arbitrary and whimsical act, the same should not be

interfered with by a Court of law under Article 226 of the Constitution

of India.

21. The petitioner himself in his representation dated 13th January,

2012 has contended that the MS Policy towards Short Service

Commissioned Officers in this regard is apparently discriminatory and

in the opinion of the petitioner, needs to be reviewed. However, it is well

settled that the Courts, in exercise of its jurisdiction, does not

transgress into the field of policy decisions. It is neither within the

domain of the Courts, nor is it the scope of judicial review to embark

upon an enquiry as to whether a particular public policy is wise or

whether better public policy can be evolved, nor can the Court struck

down a policy at the behest of a petitioner merely because it has been

urged that a certain public policy would have been fairer or wiser or

more logical.

22. In Matai Beg & Ors v. State of West Bengal & Ors,

MANU/SC/0604/2000, the Supreme Court had observed as under:-

"The Court cannot strike down a policy decision taken by the government merely because it feels that Anr. decision would have been fairer or wiser or more scientific or logical."

23. In the totality of the facts and circumstances there are no

grounds to interfere with the decision of the respondents not to include

the petitioner in the contingent of 6 MAHAR for the UN mission, the

parent unit of the petitioner, on the ground that after 10 years of

service, the petitioner, a Short Service Commissioned Officer is not to be

considered for the UN panel as he had not been granted a permanent

commission and his residual service is less than five years. There are no

illegalities or any irregularities in the decision of the respondents which

will require interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India in the facts and

circumstances of the petition. The writ petition is, therefore, without

any merit and it is dismissed.