Delhi High Court
Nb Sub (Clk) Jagjivan Singh vs Union Of India & Ors. on 20 August, 2014
Author: Najmi Waziri
Bench: Kailash Gambhir, Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20.08.2014
+ W.P.(C) 5248/2014
NB SUB (CLK) JAGJIVAN SINGH ..... Petitioner
Through: Mr. S.S. Pandey with Mr. H.S.
Tiwari, Advocates
Versus
UNION OF INDIA & ORS. ..... Respondent
Through: Ms. Barkha Babbar for Union of India
with Mr. Mrinal Panda, Major
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This petition filed under Article 226 of the Constitution of India seeks issuance of a writ of mandamus directing the respondents to include the petitioner in the second contingent to the United Nations (U.N.) Mission scheduled to leave in August, 2014.
2. The petitioner's case is that he was enrolled in the Indian Army in the year 1994 and was promoted to the rank of Hawaldar in the year 2001. Based on its performance, the 9 Sikh Light Regiment was nominated for U.N. Mission and the Unit came to Delhi for necessary preparation for pre- induction of the Unit. The first contingent left in December 2013. The petitioner was found eligible and selected for the second contingent scheduled to depart in June, 2014. As per the requisite procedure, upon _______________________________________________________________________ WP (C) No.5248 of 2014 Page 1 of 7 request of the respondents, the petitioner conveyed his unwillingness for promotion and also tendered his Adverse Career Certificate and Willing Certificate which he submitted on 26.03.2014. Both these certificates were forwarded by the Commanding officer of the Unit vide letter dated 02.04.2014. Having completed all pre-induction formalities including medical examination, passport, visa, issue of kit, Government sanction for induction into U.N. Mission as the second contingent was to proceed in June 2014 itself but, due to administrative reasons, the move of the second contingent got delayed. In the interim, however, the petitioner came to know that he had been replaced in the second contingent by respondent No. 6 Hav (Clk) Harvinder Singh Solanki since he (the petitioner), in the meanwhile, had been promoted to the rank of Naib Subedar with effect from 01.07.2014. The impugned letter stated that the petitioner's case had been taken up for promotion to the rank of Naib Subedar with effect from 01.07.2014 before his induction to the U.N. Mission, hence, the policy of 30th August, 2010/30th December, 2011 in re Policy SD-3 (UN) would not be applicable to the petitioner. Petitioner's representation dated 29.07.2014 against the said letter did not yield positive result.
3. The petitioner impugns the said letter on the ground that he had forgone his promotion by the aforesaid letter of April 2014 as well as the Adverse Career Certificate. In his representation dated 29.7.2014, he had submitted that as per the policy of AMC, personnel whose promotion had come in March 2014 and July 2014 were eligible for deployment in the U.N. Mission and their seniority had to be maintained accordingly and they were to be promoted to the rank of Naib Subedar on the completion of their U.N. _______________________________________________________________________ WP (C) No.5248 of 2014 Page 2 of 7 Mission tenure. The petitioner had also expressed that if he his unwilling for promotion before deployment in the U.N. Mission, disciplinary action would be taken against him as per rules which is IHQ of MoD (Army) letter No. B/33592/AG/PS 2(C) dated 11th February, 1992. He reiterated that the policy for personnel unwilling for promotion from NCO to JCO rank before deployment in U.N. Mission should not differ for AMC personnel and SIKH LI personnel. The said letter did not receive response from the respondent.
4. The learned counsel for the petitioner argues that when any person is due for promotion, he is required to render an Unwillingness Certificate for promotion during deployment in the U.N. Mission and the deferment of promotion is accepted from such persons. As the petitioner could not leave for the U.N. mission due to administrative and logistic reasons, a purposive interpretation of the policy dated 20.08.2010 would be required to be given for such persons who could not be actually deployed. He further submits that the U.N. Mission assignment is not a matter of normal posting and transfer for an Army personnel and they get such an opportunity rarely which not only provides the personnel the international exposure and an enhanced career profile but also gives them much enhanced monetary compensation and a feeling of pride. Thus, he submits, that denial of such an opportunity to the petitioner is arbitrary and a wrong interpretation of the aforesaid policy.
5. Clause 6 of the said policy i.e. Policy for Selection of PBOR for UN Missions reads as under:
"6. Promotion of PBOR in UN Missions:
Promotion of NCOs to a higher (Illegible) rank and _______________________________________________________________________ WP (C) No.5248 of 2014 Page 3 of 7 that of a JCO to a higher JCO rank will be allowed in the mission A. However promotion of NCO to JCO rank will not be permitted in the mission A to avoid violation. Govt. approved rank structure for the mission and financial implications. In case of PBOR who are likely to be affected for promotion during the tenure in UN mission, the option career cert, as applicable, will be obtained from them."
6. As required under the policy, the petitioner had submitted the Adverse Career Certificate as well as his Willingness Certificate. Vide letter dated 02.04.2014, which is reproduced as below, his Commanding Officer forwarded these certificates to the Army Headquarters. Forwarding letter and certificates are reproduced as under:
"FWD OF WILLINGNESS AND ADVERSE CAREER CERT 1. Ref 9 SIKH LI letter No.9092/Pub/AG dated 29 March 2014.
2. Willingness and Adverse Career Certificate in respect of under mentioned persons of this Unit who has been posted to 9 SIKH LI for UN Mission are enclosed herewith for your necessary action:-
(a) 4473291A Hav (Clk) Jagjiwan Singh
(b) .....
3. Hence, you are requested to intimate if any vac allotted to this Unit for rotation of 9 SIKH LI.
Sd/-
(A.M.Tripathi) Major Offg Adjt _______________________________________________________________________ WP (C) No.5248 of 2014 Page 4 of 7 For CO"
"ADVERSE CAREER CERTIFICATE I, No. 4473291A Rank Hav/Clk Name Jagjivan Singh of 15 SIKH LI am willing to go on posting to UN Msn in Lebanon (UNIFIL) along with 9 SIKH LI. I am aware that during my tenure with UN Msn, I will not be permitted to attend any cadre/course. I will not request for premature reversion for the purpose of promotion before completion of my tenure. Any loss in seniority or promotion that may result will be acceptable to me.
Sd/-
(4473291A Jagjivan Singh) Dated : 26 Mar 2014"
"WILLING CERTIFICATE I, No.2273291A Rank Hav/Clk Name Jagjivan Singh of 15 SIKH LI am willing to posting to UN Msn in LEBANON (UNIFIL) along with 9 SIKH LI. I am aware that during my tenure with UN Msn I will not be permitted to attend any cadre/course. I will not request for premature reversion for the purpose of promotion before completion of my tenure. I will fully responsible for any loss in seniority or promotion that may result will be acceptable to me.
Sd/-
(4473291A Jagjivan Singh) Dated : 26 Mar 2014"
7. This Court is of the view that when an officer is ready and willing to _______________________________________________________________________ WP (C) No.5248 of 2014 Page 5 of 7 forgo his promotion in rank and undertakes not to claim such rank upon completion of such UN Mission tenure or undertakes not to claim compensation for the loss of seniority or promotion in lieu of a stint in the UN Mission, which is permissible as per the rules, the respondents could not deny him his right. The petitioner was selected for the second contingent of the U.N. Mission and had the contingent left the territory of India by the first week of June 2014, as scheduled earlier, this issue was not to arise. The actual non-deployment of the contingent was only on account of administrative and logistical reasons, for which the respondents alone are responsible. The right of the petitioner to be included into the UN Mission accrued prior to June 2014 and insofar as he was selected as a part of the contingent, the clock stopped. This Court in K.C. Jena vs. UOI 2010 (168) DLT 445 held that the cut-off date will be the date on which the nomination order of the unit for the UN Mission is signed at the Army Headquarters. Since the petitioner had already stated that he would forgo his future promotion on account of his deployment in the U.N. Mission, he had cost himself out of the pool of persons who could be considered for promotion to the rank of Naib Subedar. The respondent ought not to have included his name in the promotion exercised in July 2014. Hence, the personnel below in seniority to the petitioner ought to have been considered for promotion to the rank of Naib Subedar to which the petitioner has now been promoted. By withdrawing his name from the list of persons eligible for promotion, the petitioner made himself ineligible for promotion and opened the chain for promotion for the persons below in seniority to him. This was a serendipitous opportunity for the persona below in seniority to the petitioner _______________________________________________________________________ WP (C) No.5248 of 2014 Page 6 of 7 just as it was equally serendipitous for the petitioner to be selected for the UN Mission second contingent, which offers him not only a chain for exposure to a foreign country while serving as a part of the United Nations but also carries with it a higher monetary remuneration. The petitioner or the persons selected for the UN Mission contingent are not eligible for the purpose of promotion to the next higher rank since they had all voluntarily given up this right in favour of them being included in the UN Mission contingent. For the respondents to now cancel the petitioner's inclusion in the UN Mission contingent is unfair. The impugned order/letter dated 11.07.2014 is arbitrary and not in accordance with the policy. Accordingly, the petition is allowed and the impugned order/letter is quashed. The petitioner shall continue to be a part of the second contingent of the UN Mission scheduled to leave some time in August 2014 or thereafter. No order as to costs.
Dasti to learned counsel for the parties under the signatures of the Court Master.
NAJMI WAZIRI, J.
KAILASH GAMBHIR, J.
AUGUST 20, 2014/acm _______________________________________________________________________ WP (C) No.5248 of 2014 Page 7 of 7