Delhi High Court
Subedar Yusuf Ali vs Union Of India & Ors. on 25 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : July 25, 2016
+ W.P.(C) 5770/2016
SUBEDAR YUSUF ALI ..... Petitioner
Represented by: Mr.Virender Singh Kadam, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Represented by: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. The petitioner was enrolled as a Jawan in the Indian Army on March 05,
1987. Earning promotions he reached the rank of Subedar. The petitioner
would superannuate on March 31, 2017.
2. Currently, the petitioner is attached with the 14 Grenadier Infantry
Battalion which has been nominated for overseas deployment under United
Nations Interim Force in Lebanon. The Infantry Battalion is scheduled to fly
out from Delhi on August 04, 2016.
3. The petitioner has been informed that in view of the policy for deputing
members of the armed forces for United Nation missions he cannot be sent to
Lebanon because the policy envisages that upon completion of the foreign
assignment the member of the force should have at least 70 days residual
service. The duration of the foreign assignment is six months. Thus, the
Batalion would be returning on February 03, 2017. Since the petitioner would
superannuate on March 31, 2017 his residual service would be 56 days. This
would be short by 14 days contemplated by the residual service policy term:
70 days.
4. The reason for minimum 70 days residual service left when the
Battalion returns from the foreign shores is rationale and cannot be challenged
for the reason before a person who has rendered pensionable service
superannuates from service, and especially in the armed forces, lot of paper
work has to be done so that the person receives the terminal benefits on the
day of the retirement and the necessary cards/certificates are issued entitling
the forced personnel to the benefit of being an ex-serviceman.
5. A policy guideline dated May 30, 2015 has been brought into aid by the
petitioner. It is on the subject of dispensation in residual service criteria. It
reads as under:-
"POLICY : SELECTION OF JCOs/OR FOR UN MSNS
1. Refer Inf-6 Note No.A/62006/UN/Inf-6 (Pers) dated 13
May 2016 (copy all).
2. The dispensation in residual service criteria in respect of
JCOs/OR for deployment in UN Msns is governed vide Para 6
of Policy o selection of JCOs/OR for UN Missions
promulgated vide SD Dte/SD-3A (UN) letter No.71362/
Policy/SD-3 (UN) dated 31 Dec 2014.
3. Cases where delay in induction is due to reasons beyond
the control of an indl or organisation should be processed for
dispensation in residual service. However, the following
need to be considered while processing the cases for waiver in
residual service criteria:-
a) Waiver should only be processed on receipt of fit
schedule.
b) Only those indls who are left with minimum 40 days of
residual service after completion of six months from the
date of first flight to the Mission Area should be
allowed to proceed for the UN Mission.
4. For your info and necessary action please."
6. Suffice it to state that as per sub-para (b) of para 3 of the policy dated
May 30, 2015, a person can be sent for UN mission deployment if minimum
40 days' residual service after completion of six months of foreign deployment
remains. As noted above, petitioner's residual service on completion of six
months' foreign deployment would be 56 days. It is 16 days more than the 40
days residual service contemplated by the policy dated May 30, 2015.
7. The argument of learned counsel for the respondents is that para 3 of
the policy dated May 30, 2015 on the subject of dispensation in residual
service contemplates delay in induction due to reasons beyond the control of
the individual or organization and would urge that this would be of the kind
where flights are not available or the United Nation missions postpone the
deployment. In the short affidavit filed it is admitted that one Subedar
Subhash Chand of 8 Dogra had been granted waiver of 29 days of shortfall of
residual service. The justification given is that the rotation flight of 8 Dogra
was delayed from its original schedule.
8. Question arises. Does the policy decision dated May 30, 2015 stands
the scrutiny of reasonableness by adopting the criteria of delay in deployment
occasioned to re-scheduling of the flight schedule? Clause (a) of para 3
contains the stipulation that waiver should only be processed on receipt of
flight schedule and Clause (b) thereof prescribes that in such eventuality
waiver would be granted provided 40 days' residual service remains after
completion of the six months' deployment.
9. We do not find any rationale in adopting the criteria of flight schedule
being delayed as the basis to give benefit of relaxation. What is the nexus of
the criteria with the object sought to be achieved? We find none. The policy
recognizes that minimum 40 days' residual service is essential for the force
personnel to complete paper work before retiring. To illustrate the
unreasonableness of the criteria let us take that the deployment had to take
place on July 04, 2016. The petitioner would have been entitled to be
deployed because after six months of deployment he would have been left
with more than 70 days' residual service. If the flight schedule got changed
later on and the deployment got shifted to August 04, 2016, the petitioner
would have been entitled to the benefit of the waiver. Now, delay in the
flight schedule is fortuitous and so is the date of deployment which shifts by 2
or 3 weeks here and there keeping in view the movement out from the foreign
shore to the parent country as directed by the UN mission and replacement
being sent.
10. During hearing of the writ petition we had asked learned counsel for the
respondents whether any administrative convenience would be caused to the
Indian Army by re-visiting the contingent to be sent out and if the petitioner
were to be deployed in Lebanon a person to be weeded out. Learned counsel
fairly conceded that the deployment is of the entire Infantry Battalion and has
got nothing to do with a fixed number of personnel to move out.
11. On the verge of his retirement, a deployment abroad would earn the
petitioner about 6-8 lakhs of rupees and this is the civil consequence of the
petitioner not being deployed in Lebanon. A sufficient right to be protected
and it not being a case of a simple deployment on the existing pay package.
12. The writ petition is allowed. Communication dated April 25, 2016
denying deployment in Lebanon to the petitioner is quashed. A direction is
issued to deploy the petitioner as a member of the 14 Grenadier Infantry
Battalion in Lebanon along with his buddies.
13. No costs.
14. Dasti under signatures of the Court Master today itself to learned
counsel for the respondents.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JULY 25, 2016
mamta
