Delhi High Court
L/Naik Pawan Kumar vs Uoi & Ors. on 27 February, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: February 24, 2015
% Judgment Delivered on: February 27, 2015
+ W.P.(C) 6155/2010
L/NAIK NAVEEN KUMAR ..... Petitioner
Represented by: Mr.D.S.Kauntae, Advocate
versus
UOI AND ORS ..... Respondents
Represented by: Mr.Rishi Kapoor, Advocate for
Mr.Arun Bhardwaj, CGSC
W.P.(C) 1091/2014
L/NAIK PAWAN KUMAR ..... Petitioner
Represented by: Mr.D.S.Kauntae, Advocate
versus
UOI AND ORS ..... Respondents
Represented by: Ms.Barkha Babbar, Advocate
W.P.(C) 1591/2013
NAIK SUBHASH SINGH ..... Petitioner
Represented by: Mr.D.S.Kauntae, Advocate
versus
UOI AND ORS ..... Respondents
Represented by: Ms.Barkha Babbar, Advocate
CORAM:
HON'BLE MR. JUSTICE PARDEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PARDEEP NANDRAJOG, J.
1. The petitioners in the three captioned petitions hold the rank of either
a Lance Naik or a Naik and are aggrieved by the fact that they have been
reverted from the Parachute Battalion of the Indian Army to, what the
respondents call the Parent Regiment of the petitioners.
2. Whereas petitioner L/Nk.Pawan Kumar has been, as per the
respondents, reverted to his Parent Regiment : Rajputana Rifles, the
petitioner L/Nk.Naveen Kumar has been reverted to the Kumaon Regiment
and petitioner Nk.Subhash Singh has been reverted to the Rajput Regiment.
3. Though, as would be evinced from the facts which we note
hereinafter, a very short issue arises for consideration in the three petitions
and hearing could be over in the three writ petitions in less than 5 minutes,
the prolix pleadings, which swirl all over, created a cacophony resulting in
hearing lasting for nearly 45 minutes, and that too with a fair-mount of
fuzziness, requiring us to reserve the three matters for judgment so that in the
peaceful atmosphere in the chamber we could read the pleadings carefully to
find out where was the elusive nugget of gold buried in the mine of
pleadings.
4. Regretfully, the pleadings of the parties do not bring out that the
nugget of gold lies in a policy decision dated August 28, 2002 for the
personnel of the Parachute Regiment.
5. The policy, in its preamble, guides that the Parachute Regiment of the
Indian Army consists of Para and Para(SF) Battalions and is an elite
volunteer force of the Indian Army and because of its specialized role, the
Regiment needs to be kept at optimum level of operational efficiency and
physical fitness. Towards this end, the specially selected manpower has to
comprise of comparatively young, physically fit, mentally robust, intelligent,
innovative and highly motivated persons so that the assigned operational
tasks can be successfully accomplished.
6. The recruitment to the Parachute Regiment is carried out under the
aegis of Para Regiment Training Centre with assistance from recruiting
directorate. In addition, volunteers from arms/services are also permitted to
join the Para Regiment.
7. Clause 9 of the policy, under the caption 'Recruitment Management'
specifies as under:-
(a) On completion of basic military training at Para Regiment Training
Centre, individuals will be allotted a Parent Inf. Regt. by Infantry
Department under intimation to AG's Branch/MP Dte. (MP-3). The young
soldiers will be dispatched to respective battalions to undergo probation and
final selection.
(b) Individuals found unfit if be posted to their parent regiment after
obtaining sanction of Comdt. PRTC......
8. When enrolled in the Indian Army, L/Nk.Pawan Kumar was allotted
the Rajputana Rifles as his Parent Regiment, L/Nk.Naveen Kumar was
allotted the Kumaon Regiment as his Parent Regiment and Nk.Subhash
Singh was allotted the Rajput Regiment as his Parent Regiment. But since
they had opted for the Para Regiment, they were sent to said Regiment.
9. Whereas Naik Subhash Singh and L/Nk.Pawan Kumar were reverted
to the Rajput Regiment and Rajputana Rifles respectively, at their own
request, L/Nk.Naveen Kumar was reverted to the Kumaon Regiment being
convicted for an offence punishable under Section 69 of the Army Act.
10. The argument of petitioners Pawan Kumar and Subhash Singh is that
the applications containing their request to the parent Regiment is a result of
compulsion by the Commanding Officer of the Unit and thus the order
reverting them to their Parent Regiment is liable to be set aside; with the
adiditonal plea that notwithstanding they making a request to be relieved
from the Parachute Regiment, the question of the two being reverted to their
so called Parent Regiment does not arise, because they had no Parent
Regiment. They plead that emoluments in the Para Regiment are much more
than emoluments they would receive in the Regiment to which they are
transferred because the personnel of the Para Regiment are paid extra
allowances. They plead that they have a right to serve in the Para Regiment
till the age of their superannuation. Petitioner Naveen Kumar pleads that for
the offence in question he could not be transferred to what the respondents
call, his Parent Regiment.
11. The application bearing signatures of L/Nk.Pawan Kumar praying that
he be sent to a non-para Regiment is dated August 16, 2013. It was
processed at various levels between August 16, 2013 and final approval was
granted to accept his request on September 22, 2013. Formal order
conveying acceptance of his request was issued on September 24, 2013. It
needs to be simply highlighted by us that between August 16, 2013 till when
the formal order dated September 24, 2013 was conveyed to him, he never
made any grievance to any authority that his Commanding Officer obtained
his signatures on a blank papers. On October 09, 2013 he was formally
struck off the strength of the Parachute Regiment with effect from November
10, 2013 and was transferred to the Rajputana Rifle Regiment, he filed a
statutory complaint on January 30, 2014, in which for the first time he raised
the issue that his Commanding Officer obtained his signatures on a blank
paper. The writ petition was filed by him without awaiting a response to his
statutory complaint. As regards Nk.Subhash Singh, way back on January 02,
2006 he submitted an application informing that he was unable to take the
physical stress while discharging duties in the Para Regiment and requested
for being posted out from 6 para on compassionate grounds. His request was
accepted and the Commanding Officer posted him for administrative duties
to be performed at the Force Headquarter, which was treated as an extra
regimental employment. He worked there till June 17, 2010 when he was
reverted to the 6 Para and was deployed in counter insurgency operations in
the State of Jammu and Kashmir. On July 02, 2010 he made a request citing
lack of physical fitness, to be sent out from the Para Regiment, which
application was processed at various levels. The request was accepted. He
was transferred to the Rajput Regiment vide order dated April 27, 2011.
12. As regards Nk.Subhash Singh there is ample evidence that even in the
past, citing lack of physical endurance, he had been requesting to be sent out
from the Para Regiment and there is ample intrinsic evidence of the
voluntariness of his application submitted in the year 2010 to be sent out of
the Para Regiment. Further, as is the case with Nk.Pawan Kumar, even he
never raised any issue between July 02, 2010 till April 27, 2011 that the
Commanding Officer obtained his signatures on a blank paper.
13. Thus, the plea by Pawan Kumar and Subhash Singh that their
signatures were obtained on blank papers has no legs to stand on.
14. With respect to the second plea that neither of the two could be sent
outside the Parachute Regiment to a so called Parent Regiment, because they
had no Parent Regiment, the answer is simple. As per the policy for the
personnel recruited to the Parachute Regiment, which is dated August 28,
2002, vide para 9 thereof, all individuals posted with the Parachute Regiment
are allotted a Parent Infantry Regiment and the two, as noted above were
allotted a Parent Infantry Regiment, and thus their argument that
notwithstanding they opting out of the Parachute Regiment, could not be sent
to an Infantry Regiment because they had no Parent Infantry Regiment, is
without any factual substance.
15. The reason why a Parent Infantry Regiment is allotted to those who
are recruited in the Parachute Regiment is that, whether they seek a
voluntary discharge from the Parachute Regiment or are removed from the
Parachute Regiment, on reversion to the Parent Infantry Regiment, the
seniority has to be protected and the only way it can be so done is to allocate
the personnel, at the time of joining service, to an Infantry Regiment which
is treated as their Parent Infantry Regiment. Indeed, the record produced
before us evidences that when the two were recruited in the Indian Army
they were allotted a Parent Infantry Regiment notwithstanding the two being
found meritorious to be allotted to the Parachute Regiment.
16. As regards petitioner Naveen Kumar, the policy of posting personnel
in the Parachute Regiment warrants, apart from others, a high level of
motivation for the selected manpower, and we find nothing absurd in the
policy which empowers the Army Authorities to remove a personnel from
the Parachute Regiment and send him to the Parent Unit if the person is
convicted for having committed an offence punishable under the Army Act,
1950.
17. Though Naveen Kumar, in a writ petition which runs into 23 pages
has made a reference to his trial at the Court Martial but no arguments were
advanced in relation thereto because in the prayer there is no challenge to the
said proceedings and the verdict of guilt.
18. The three writ petitions are accordingly dismissed but without any
order as to costs.
(PARDEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
FEBRUARY 27, 2015
mamta
