Maj. Amod Kumar vs Union Of India

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 918 OF 2017

Maj. Amod Kumar …Petitioner

Versus

Union of India & Anr. …Respondents

WITH

WRIT PETITION (CIVIL) NO. 965/2017

AND

WRIT PETITION (CIVIL) NO. 1077/2017

J U D G E M E N T

INDU MALHOTRA, J.

1. The above­mentioned Writ Petitions were heard together as they

raise common issues, and are being disposed of by the present

common Judgement.

2. The facts material for the purposes of deciding the present Writ

Petitions have been set out hereinbelow. Signature Not Verified

3. The Petitioners are personnel belonging to the Army Service Corps Digitally signed by SHASHI SAREEN Date: 2018.09.06 17:07:40 IST Reason:

(“ASC”). The Petitioners in Writ Petition (Civil) Nos. 918 and

1077/2017 are Officers holding the ranks of Major and Lieutenant 2

Colonel respectively, while the Petitioner in Writ Petition (Civil) No.

965/2017 is holding the rank of Sepoy.

The Petitioners have impugned Posting Orders issued by the

Respondents, posting them to operational units/operational areas.

The Petitioner in Writ Petition (Civil) No. 918/2017 – Major Amod

Kumar, who was serving as an Officer of the ASC, was posted to 44

Rashtriya Rifles as a Mechanical Transport Officer vide Order dated

July 20, 2017. The Petitioner in Writ Petition (Civil) No. 965/2017 –

Sepoy Prahalad Singh was serving in the ASC, having being trained

for driving special vehicles. He was posted to 4 Rashtriya Rifles vide

Order dated September 4, 2017. The Petitioner in Writ Petition

(Civil) No. 1077/2017 – Lieutenant Colonel Shubhankar Mishra,

who was serving as an Officer of the ASC, was posted to 694 Coy

ASC (Tank and Transport) as an Officer Commanding vide Order

dated September 15, 2017.

4. S UBMISSIONS OF THE PETITIONERS

The Petitioners were represented by Ms. Meenakshi Arora, Learned

Senior Advocate. The Petitioners inter alia made the following

submissions:

4.1. The Petitioners submitted that they belong to the ASC, and

have been posted to ‘operational’ areas/formations despite 3

the findings of this Court in Union of India & Anr. v. Lt. Col.

P.K. Choudhary & Ors.1 (“Lt. Col. P.K. Choudhary’s Case”). 4.2. The Petitioners submitted that this Court in Lt. Col. P.K.

Choudhary’s Case had held that the ASC, EME and other

Minor Corps are ‘non­operational’ units/formations based on

the stand taken by the Union of India.

The Petitioners submitted that even though the findings of

this Court in Lt. Col. P.K. Choudhary’s Case that the ASC

are ‘non­operational’ were rendered while adjudicating the

issue of distribution of vacancies which had been created

for the rank of Colonel amongst the various Corps of the

Indian Army, the same would apply in the present case. 4.3. The Petitioners claim that as a consequence of the Judgement

in Lt. Col. P.K. Choudhary’s Case wherein the Petitioners have

been classified to be ‘non­operational’ for promotional

avenues, the same classification should apply as a necessary

corollary for the purposes of deployment and postings also. 4.4. It was submitted that the preference given to ‘operational’

Corps in the matter of promotions was unjustified,

particularly since personnel of the ASC move alongside with

personnel belonging to the other Corps in operational areas.

Thus, they are as vulnerable as the personnel of the other

Corps.

1(2016) 4 SCC 236.

4

On this basis, the Posting Orders issued by the

Respondents directing the Petitioners to serve in operational

units/areas were challenged as being in gross violation of

their Fundamental Rights and principles of natural justice.

5. SUBMISSIONS OF THE RESPONDENTS

The Respondents – Union of India, and the Military Secretary

Branch were represented by Mr. R. Balasubramanian, Learned

Advocate. The Respondents made the following submissions:

5.1. The present Writ Petitions under Article 32 are not

maintainable, since there is no violation of their Fundamental

Rights whatsoever. Hence, the Writ Petitions are liable to be

dismissed at the threshold on this count alone. 5.2. It was further submitted that if the Writ Petitioners have any

grievance, the alternate remedy of challenging the Posting

Orders before the Armed Forces Tribunal is available. Hence,

the Writ Petitions are liable to be dismissed on this ground

also.

5.3. On merits, it was submitted that transfers are not only a

necessary incident of service, but an essential condition of

service. An employee has no legal right, much less a

Fundamental Right, to be posted in a particular place, or to

be transferred to a place of his/her choice. The competent 5

authority is empowered to determine the place of posting of

the personnel concerned.

In this regard, reliance was placed on the decision of this

Court in Major General J.K. Bansal v. Union of India & Ors.2 to

submit that the scope of interference in matters of transfer of

members of the armed forces is very limited, and courts

should be slow to interfere with the decisions of competent

authorities, in the absence of an exceptionally strong case.

5.4. It was further submitted that the reliance placed by the

Petitioners on the observations made in Lt. Col. P.K.

Choudhary’s Case (supra) is misplaced.

In that case, this Court was considering the issue of

allocation of additional vacancies created in the Selection­

Grade rank of Colonel pursuant to the implementation of the

recommendations of the Ajai Vikram Singh Committee. The

decision in Lt. Col. P.K. Choudhary’s Case was not rendered in

the context of transfers or posting orders.

5.5. The Respondents submitted that the Army has no personnel

who are ‘non­combatants’ or ‘non­operational’, with the

exception of personnel belonging to the medical organisation

2(2005) 7 SCC 227.

6

who have a distinct status under International Humanitarian

Law. The Combat Arms, Combat Support Arms, Army Service

Corps, and other Minor Corps are all ‘operational’ entities

having a distinct ‘operational’ role.

5.6. The posting of the Petitioners is a part of their Regimental

Duty, and is not based on their willingness to occupy such

posts.

5.7. The postings of the Petitioners are in accordance with the

policies and instructions of career planning, and management

issued from time to time, and do not violate any statutory

rules.

The Petitioners have not referred to any statutory rules,

executive policies, or instructions which debar them from

being posted to such areas.

5.8. It was further submitted that the Petitioners have not alleged

any mala fides or vindictiveness on the part of the authority

which has issued the Posting Orders. Hence, the Writ

Petitions cannot be entertained on this ground also.

5.9. The Respondents submitted that the claim of the Petitioners

that they are ‘non­operational’ or ‘non­combatants’ is

untenable as it strikes at the very root of the organisational 7

effectiveness of the Army. If the grievance of the Petitioners

was to be entertained, it would generate disaffection amongst

personnel, and directly impact the morale of the forces.

6. DISCUSSION AND ANALYSIS

In light of the submissions advanced by the parties, the following

issues arise for consideration:

 Whether the present Writ Petitions filed under Article 32 of the

Constitution are maintainable?

 Whether the action of the Respondents in posting the Petitioners

and members of the ASC to ‘operational’ areas/units are valid in

view of the decision of this Court in Lt. Col. P.K. Choudhary’s

Case (supra)?

  Whether the postings of the Petitioners to operational areas are

violative of statutory rules, executive policies or instructions?

The aforesaid issues will be addressed seriatim hereinbelow.

6.1. Before adverting to the issues at hand, a reference to the

composition of the Army would provide the contextual matrix

of the case.

The Army is comprised of eleven major streams viz. – 1)

Armoured Corps, 2) Infantry, 3) Mechanised Infantry, 4)

Artillery, 5) Air Defence, 6) Engineers, 7) Signals, 8) Army

Service Corps, 9) Army Ordnance Corps, 10) Electronics and 8

Mechanical Engineers, and 11) Other Corps including

Intelligence, Aviation and other Minor Corps.

Each stream has a distinct and specialised role. Personnel

are imparted specialised training in their designated field. All

streams work and co­operate in order to form a cohesive

organisation.

The ASC is a vital stream which is primarily responsible for

ensuring provisioning, procurement, and distribution of

supplies. ASC personnel provide the logistical support in the

form of transportation, maintenance of vehicles, driving in

difficult terrain, preserving equipment, and conserving fuel

expended.

6.2. The Petitioners have contended that the Posting Orders

passed by the Respondents posting them to operational

areas/units is violative of their Fundamental Rights

guaranteed by Articles 14 and 21 of the Constitution. The

Petitioners have, however, failed to substantiate how their

Fundamental Rights have been violated. Postings and

transfers are a necessary incident of service. Hence, the

grievance, if any, cannot be entertained under Article 32. 6.3. The Petitioners cannot assail posting/transfer orders directly

before the Supreme Court by way of Writ Petitions under 9 Article 32 of the Constitution. If the Petitioners have any

genuine grievance, they have an alternate statutory remedy

available by challenging the same before the Armed Forces

Tribunals.

Hence, the Writ Petitions under Article 32 are liable to be

rejected on the ground of availability of an alternate remedy.

6.4. The decision of this Court in Lt. Col. P.K. Choudhary’s Case

(supra) was rendered while adjudicating an Order passed by

the Armed Forces Tribunal on a Policy Circular dated

January 20, 2009 issued by the Government of India which

had been quashed, and directions were issued to the Union of

India to consider the personnel belonging to the Arms, Arms

Support, and ASC for promotion to the rank of Colonel by

creating supernumerary posts.

This Court was considering the issue of distribution of

vacancies which had been created for the rank of Colonel

amongst the various Corps of the Indian Army. This Court

considered the findings of the Ajai Vikram Singh Committee,

and noted that Armoured Corps, Infantry, Mechanised

Infantry, Artillery, AD, Engineers and Signals were

‘operational formations’, while the ASC, Army Ordnance 10

Corps, and Electronics and Mechanical Engineers were not. 3

The Officers belonging to the ASC, Army Ordinance Corps,

and Electronic and Mechanical Engineers, i.e. the services

stream, do not constitute a common cadre with those serving

in the Arms, and Arms Support for the purposes of

promotion.4

As a result, they were not entitled to be considered for

promotion to the rank of Colonel against the vacancies

created in pursuance of the implementation of the AVS

Committee Report.

This Court was not concerned with the issue of posting of

personnel belonging to the ASC, and the findings therein

cannot be said to apply to the present case.

This Court was cognisant of the differential treatment

accorded to personnel belonging to the ASC, amongst other

streams, in the matter of promotions. The following

observations made by this Court in Lt. Col. P.K. Choudhary’s

Case are pertinent, and are reproduced here under:

“…The true position is that allocation of officers to different Arms and Services puts them in distinct cadres with the result that those comprising a particular cadre will have his or her promotional avenues available

3(2016) 4 SCC 236, at paragraph 22.

4(2016) 4 SCC 236, at paragraph 36.

11

against the posts comprising that cadre alone notwithstanding the fact that the Government of India may, as a policy, attempt to ensure as far as possible that officers of a given batch pick up their ranks around the same time or within a reasonable span of their counterparts in other cadres or that the disparity in time frame for promotion is removed by making promotions retrospective from the dates officers in other cadre have been promoted .”5 (Emphasis supplied)

The contention of the Petitioners claiming parity with a

different arm of the service, is misconceived and meritless,

and is liable to be dismissed.

Different streams of the Army have distinct, and specialised

roles. They work in co­ordination with each other. The

personnel of the ASC are imparted specialised training to

provide logistical support to the other streams in the form of

maintenance of vehicles, availability of trained drivers,

preservation of equipment, and conservation of fuel.

To accept the prayers of the Petitioners merely on the basis

of the contention that the ASC have been referred to as ‘non­

operational’ for the purposes of promotion, would be to

disturb the entire structure and operations of the Army.

6.5. The Petitioners have not made any submission that the

postings are in violation of any statutory rules, executive

5(2016) 4 SCC 236, at paragraph 38.

12

policies or instructions.

In this regard, reliance can be placed on the decision of this

Court in Major General J.K. Bansal v. Union of India (supra),

which was cited by the Counsel for the Respondents during

the hearing. In the said decision, this Court had referred to a

number of its precedents6 on the scope of interference of

Courts under Article 226 of the Constitution in cases where

transfer orders had been challenged. The Court held that

matters of transfers are best left to the discretion of the

competent authority, and should not be tinkered with, in the

absence of a demonstrable violation of statutory rules, or an

instance of mala fide on the part of the competent authority.

This Court noted as follows:

“12…The scope of interference by the courts in regard to members of the armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.”

The Petitioners have not alleged any mala fide against the

Respondents. Hence, the contentions of the Petitioners

cannot be entertained.

6Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659; Union of India v. S.L. Abbas, (1993) 4 SCC 357; and, National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574. 13

6.6. The Respondents have made a reference to the Oath

administered to Officers and Sepoys alike at the time of

commissioning. The said Oath is reproduced hereinbelow for

reference:

“I (Name) hereby solemnly swear that I will bear true faith and allegiance to the Constitution of India, as by law established and that I will, as in duty bound honestly and faithfully, serve in the regular Army of the Union of India and go wherever ordered, by land, sea or air, and that I will observe and obey all the commands of the President of the Union of India and the commands of any officer set above me, even to the peril of my life.” (Emphasis supplied) This Oath is administered to all personnel, irrespective of

the Arm or Service to which they are commissioned. As per

the Oath, personnel are duty bound to serve wherever they

are ordered to.

6.7. In view of the above discussion, the Petitioners have failed to

make out any case for interference by this Court.

7. In light of the aforesaid findings, the Writ Petitions are dismissed,

with no order as to costs.

..........................J. (R.F. NARIMAN)

..........................J. (INDU MALHOTRA) 14

New Delhi September 6, 2018.

15

ITEM No. 1501 Court No. 9 SECTION X (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS WRIT PETITION (CIVIL) No. 918 of 2017

MAJ. AMOD KUMAR Petitioner(s)

VERSUS

UNION OF INDIA AND ANR. Respondent(s)

WITH

W.P.(CIVIL) NO. 965 OF 2017

W.P.(CIVIL) NO. 1077 OF 2017

Date : 06.09.2018 These matters were called on for pronouncement of judgment today.

For Appellant(s) Ms. Meenakshi Arora, Sr. Adv.

Ms. Neela Gokhale, Adv.

Mr. Ilam Paridi, Adv.

Ms. Shradha Agrawal, Adv.

Ms. Kamakshi S.Mehlwal, Adv.

For Respondent(s) Mr. Mukesh Kumar Maroria, Adv.

Mr. Arvind Kumar Sharma, Adv.

Hon'ble Ms. Justice Indu Malhotra pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Rohinton Fali Nariman and Hon'ble Ms. Justice Indu Malhotra.

These petitions are dismissed in terms of the signed reportable judgment. There shall be no order as to costs.

(Shashi Sareen) (Tapan Kumar Chakraborty) AR­cum­PS Branch Officer

(Signed reportable judgment is placed on the file)