Delhi High Court
Lieutenant Colonel Manish Narayan vs Union Of India & Ors. on 17 July, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17th July, 2020
+ W.P. (C) 4275/2020
LT. COL. MANISH NARAYAN ....Petitioner
Through: Mr. Amit Kumar Pathak
and Mr. Yash Kotak, Advocates
with petitioner in person
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Vinod Diwakar, CGSC with
Major Arjun Singh Katoch
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
C.M. Appl. No.15386/2020 (Exemption from filing certified
copies, true typed copies and true translated copies with proper
margins of the annexures)
1. Allowed, subject to just exceptions and as per the extant
rules.
2. The application is disposed of.
W.P. (C) 4275/2020 and C.M. Appl. No.15385/2020 (for interim
relief)
3. The petitioner, a Lieutenant Colonel with the Indian Army,
presently posted at Training Battalion - I, Bombay Engineering
Group and Center, Pune and currently attached with Headquarters,
W.P. (C) 4275/2020 Page 1 of 9
Uttar Bharat Area, has filed this petition impugning the non-
inclusion of his name in the letter dated 10th July, 2020 and seeking
a mandamus, directing the respondents Union of India (UOI), to
allow the petitioner to appear for the course for which the
petitioner had applied for and was selected and allow for the
posting of the same.
4. We have heard the counsel for the petitioner at length.
5. It is inter alia the case of the petitioner in the petition, that
(i) the respondents, vide letter dated 28th November, 2019, invited
applications for M.Tech Structures-09 course at CME, Pune for the
year 2020-2022; (ii) the petitioner, with a desire to contribute to the
organization with greater experience and education, decided to
pursue the M.Tech course under the Post-Graduation Training
(PGT) scheme offered by the respondents; (iii) the application
dated 29th February, 2020 of the petitioner was recommended by
the Commandant of the Head-Quarters Bombay Engineering Group
and Centre and was forwarded; (iv) the respondents, vide letter
dated 20th April, 2020 issued a list of successful officers to be
called for viva-voce and the name of the petitioner was shown
amongst the selected candidates for the M.Tech Structures-09
course; (v) the College of Military Engineering Pune, vide letter
dated 8th May, 2020 informed the Bombay Engineering Group and
Centre, where the petitioner was posted, of the schedule of viva-
voce and the petitioner was permitted to undertake the viva-voce
examination; (vi) subsequently, on 2nd June, 2020, a list of selected
W.P. (C) 4275/2020 Page 2 of 9
officers was released and the name of the petitioner was included
therein; (vii) the course was to tentatively start on 13th July, 2020
and thus the respective branches where the selected candidates
were then posted, were requested to issue relevant posting orders,
to enable the selected candidates to be posted at CME Pune; (viii)
however, before posting order qua the petitioner could be issued,
the petitioner, vide order dated 6th July, 2020 issued by the
Discipline and Vigilance Branch along with the order dated 9th
July, 2020, issued by the Training Battalion, Pune, was attached
with Head-Quarters Uttar Bharat Area; (ix) that the Court of
Inquiry against the petitioner is already challenged and the matter
is sub-judice before the Armed Forces Tribunal, New Delhi (AFT)
vide O.A. No.31/2020; (x) the petitioner has also approached the
AFT with Miscellaneous Application, for quashing of the
attachment order; and, (xi) despite being selected for the course,
the petitioner is not being permitted to be posted at Pune, to
undertake the M.Tech Structures-09 course.
6. The counsel for the petitioner, being conscious that a
question would arise before this Court qua the jurisdiction of this
Court, in view of the Armed Forces Tribunal Act, 2007, has in the
petition itself contended that as per Section 3(o) of the said Act, the
AFT does not have jurisdiction over transfers and postings. The
same argument is repeated before us. Besides the said argument,
the only other argument is that the petitioner, after having been
permitted to participate in the selection process for the M.Tech
W.P. (C) 4275/2020 Page 3 of 9
Structures-09 course and after having been selected therein, cannot
be deprived of his right of further education, to further his career.
7. The impugned letter dated 10th July 2020 has been issued by
Integrated Headquarters of Ministry of Defence (Army), to each of
the six Commands and to other Units, of detailment of officers,
who have been selected for M.Tech course, and whose list is
enclosed to the letter, at CME Pune. The name of the petitioner
does not find mention in the list of selected candidates who, vide
the said letter, have been posted at Pune, to undergo the course.
The reason therefor is obvious. The petitioner, vide earlier order
dated 6th July 2020, had already been attached with Headquarter,
Uttar Bharat area till finalization of disciplinary case pending
against him and thus he could not have been posted to CME Pune.
8. We have still enquired from the counsel for the petitioner,
whether, till the said attachment order remains, attaching the
petitioner to Head-Quarters Uttar Bharat Area, it is possible for the
petitioner to be posted at CME Pune, to undertake the course.
9. The counsel for the petitioner answers in the negative.
10. Thus, the grievance if any of the petitioner ought to be
against the attachment order dated 6th July 2020, and owing
whereto his name has not been included in the detailment order
dated 10th July 2020 and not against the detailment order dated 10 th
July 2020, impugning which this petition has been filed. The
petitioner however has not challenged the attachment order dated
6th July 2020 in this petition. Also, till the attachment order dated
W.P. (C) 4275/2020 Page 4 of 9
6th July 2020 exists, no mandamus as sought, can be issued.
11. On the contrary, the challenge to the attachment order dated
6th July 2020 is pleaded to have been already made before the AFT
in the OA filed by the petitioner and pending before the AFT, with
respect to the findings of the Court of Inquiry against the petitioner.
12. Not only so, the petitioner has sought to exclude the
jurisdiction of the AFT and invoke the jurisdiction of this court, by
before this court, calling the attachment order dated 6 th July 2020,
as a posting order and by contending that AFT does not have the
jurisdiction over transfers and postings. The order dated 6th July
2020, cannot be both, an attachment order as well as a posting
order and challengeable, both before the AFT as well as before this
court.
13. Section 14 (1) of the Armed Forces Tribunal Act vests
jurisdiction in the AFT, to exercise all the jurisdiction, powers and
authorities exercisable prior to coming into force of the Act, by the
Courts (except the Supreme Court or a High Court exercising
jurisdiction under Articles 226 and 227 of the Constitution) in
relation to all service matters. Section 14(2) provides that a person
aggrieved by an order pertaining to any service matter may make
an application to the AFT. "Service matter" is defined in Section
3(o) of the Act, to which attention was invited by the counsel for
the petitioner also, and which lays down the same to mean, all
matters relating to conditions of service but not including matters
related to transfers and postings. The same forms the fulcrum of
W.P. (C) 4275/2020 Page 5 of 9
invocation of the jurisdiction of this Court by the counsel for the
petitioner.
14. We have enquired from the counsel for the petitioner, what
is the difference between posting and attachment. The petitioner
has not been posted at Head-Quarters Uttar Bharat Area, but has
been attached with Head-Quarters Uttar Bharat Area, till
finalization of disciplinary case pending against him.
15. The counsel for the petitioner is unable to answer.
16. Major Arjun Singh Katoch accompanying the counsel for the
respondents, states that attachment orders are issued pursuant to
Army Instructions 30 of 1986 and are only for the purpose of
disciplinary action and are different from postings.
17. The aforesaid makes the position clear. The attachment order
dated 6th July 2020, impeding the petitioner from undertaking the
M.Tech course, indeed, is relating to a service matter and the
jurisdiction with respect thereto is of the AFT and which has
already been invoked. The petitioner cannot seek a relief from this
Court, contrary to the attachment order. The petitioner is found to
be abusing the process of the court
18. The petitioner himself having impugned the attachment
order dated 6th July 2020, before the AFT, treating it as a service
matter, we need not proceed to adjudicate the difference between
an order of attachment and an order of posting or to determine,
whether the order dated 6th July 2020 is an order of attachment or
of posting.
W.P. (C) 4275/2020 Page 6 of 9
19. The counsel for the petitioner contends that the petitioner
was permitted to apply for M.Tech course by forwarding his
application and was also permitted to appear for viva-voce
examination for admission to M.Tech course. It is also argued that
once the petitioner has been admitted/selected, he cannot be
prevented from undertaking the M.Tech course.
20. We have enquired from the counsel for the petitioner,
whether not permission to apply for admission and to appear in the
examination for admission is different from permission to
undertake the course. Similarly, 'selection' in the M.Tech
Structures-09 course is distinct from being 'permitted' by the
respondents to undertake the course. Merely because an officer of
the Army has been permitted to apply for admission into an
educational course and in pursuance of the said permission, has
been selected for admission in the course, does not entitle the
officer to permission to undertake the course. There is a distinction
between permission to apply for admission and to participate in the
admission process and permission to undertake the course.
21. The counsel for the petitioner has not been able to controvert
the aforesaid.
22. We may notice that the communication dated 28th
November, 2019, inviting applications from eligible officers
willing to undergo the M.Tech Structures-09 course, itself inter
alia provided that the applicants will confirm that they are not
involved in any disciplinary/vigilance/Summary of Evidence
W.P. (C) 4275/2020 Page 7 of 9
(SOE)/Court of Inquiry (COI) cases or Departmental Inquiry. The
petitioner was thus fully aware of the said condition, but
nevertheless proceeded to apply.
23. The counsel for the petitioner has drawn our attention to the
"Non-Involvement Certificate" dated 29th February, 2020, issued to
the petitioner to enable the petitioner to apply. However, a perusal
of the said certificate, at page 80 of the paper-book, shows the said
certificate to be to the effect that there was nothing adverse and no
disciplinary, vigilance or criminal case pending against the
petitioner and the petitioner was not involved in any Court of
Inquiry or Summary of Evidence or Departmental Inquiry as on
date; however attention was drawn to the letter dated 17th
December, 2019. The petitioner has not placed the letter dated 17 th
December, 2019 before us, though it was stated to be enclosed to
the certificate. Major Arjun Singh Katoch accompanying the
counsel for the respondents appearing on advance notice, on
enquiry states that the Court of Inquiry against the petitioner was
initiated in 2018 and the findings have been returned on 29 th April,
2020, i.e., after 29th February, 2020. It appears that the letter dated
17th December 2019 must be with reference to the Court of Inquiry
against the petitioner.
24. The impugned letter dated 10th July, 2020 also, with respect
to detailment of officers for M.Tech Structures-09 course, in
Clause 3 thereof provides that the officer will not be allowed to
proceed on the course in case the officer is involved in any
W.P. (C) 4275/2020 Page 8 of 9
disciplinary case where a prima facie case is established against the
officer involved in the disciplinary case. The petitioner therefrom
also was aware of the condition that he would not be entitled to
proceed for the course if there was any disciplinary action.
25. The counsel for the respondents states that there are serious
findings against the petitioner by the Court of Inquiry and which
are subject matter of challenge before the AFT and the petitioner
has thus been attached to the Disciplinary and Vigilance Cell, Head
Quarters Uttar Bharat Area.
26. The counsel for the petitioner seeks adjournment.
27. No ground for adjourning the hearing is made out.
28. However, on request of the counsel for the petitioner, who is
young, we delete the observation hereinabove, of the petitioner
having abused the process of the court.
29. The petition is thoroughly misconceived and is dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. JULY 17, 2020 s/pkb W.P. (C) 4275/2020 Page 9 of 9