MAJ. AMOD KUMAR versus UNION OF INDIA & ANR. on 6 September 2018

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SUPREME COURT REPORTS

[2018] 11 S.C.R.

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MAJ. AMOD KUMAR

v.

UNION OF INDIA & ANR.

(Writ Petition (Civil) No. 918 of 2017)

BSEPTEMBER 06, 2018

[R. F. NARIMAN AND INDU MALHOTRA, JJ.]

Service Law:

Posting – Of personnel belonging to Army Service CorpsC(ASC) in operational areas – Challenged on the ground that sinceASC was mentioned as ‘non-operational’ corps in Lt. Col. P.K.Choudhary case, personnel of that corps cannot be posted in‘operational areas’ – Held: All the streams of Army work andco-operate in order to form a cohesive organisation – Postings andtransfers are a necessary incident of service – As per the oathDadministered to the personnel, they are duty bound to serve whereverthey are ordered to – Matters of transfer should be left to thediscretion of competent authority – To accept the plea of thepetitioners on the basis of finding in Lt. Col. P.K. Choudhary case,would be to disturb the entire structure and operations of Army –EPetitioners have also not alleged violation of any rules, executivepolicies or instruction nor alleged mala fide.

Constitution of India:

Art. 32 – Petition under – Challenging posting orders in IndianArmy – Maintainability of – Held: Postings and transfers are aFnecessary incident of service – Grievance against the same, if any,cannot be entertained u/Art. 32, as alternate statutory remedy isavailable before Armed Forces Tribunal.

Dismissing the petitions, the Court

GHELD: 1. The Petitioners have contended that the PostingOrders, posting them to operational areas/units is violative oftheir Fundamental Rights guaranteed by Articles 14 and 21 ofthe Constitution. The Petitioners have, however, failed tosubstantiate how their Fundamental Rights have been violated.Postings and transfers are a necessary incident of service. Hence,Hthe grievance, if any, cannot be entertained under Article 32. The Petitioners cannot assail posting/transfer orders directly beforethe Supreme Court by way of Writ Petitions under Article 32 ofthe Constitution. If the Petitioners have any genuine grievance,they have an alternate statutory remedy available by challengingthe same before the Armed Forces Tribunals. Hence, the WritPetitions under Article 32 are liable to be rejected on the groundof availability of an alternate remedy. [Paras 6.2, 6.3][34-G-H;35-A-C]

2. The Army is comprised of eleven major streams.Personnel are imparted specialised training in their designatedfield. All streams work and co-operate in order to form a cohesiveorganisation. The ASC is a vital stream which is primarilyresponsible for ensuring provisioning, procurement, anddistribution of supplies. ASC personnel provide the logisticalsupport in the form of transportation, maintenance of vehicles,driving in difficult terrain, preserving equipment, and conservingfuel expended. To accept the prayers of the Petitioners merelyon the basis of the contention that the ASC have been referredto as ‘non-operational’ in *Lt. Col. P.K. Choudhary case for thepurposes of promotion, would be to disturb the entire structureand operations of the Army. As per the Oath administered toOfficers and Sepoys, personnel are duty bound to serve whereverthey are ordered to. [Paras 6.1, 6.4 and 6.6][34-D, E-G; 36-G-H;38-B-C]

3. The Petitioners have not made any submission that thepostings are in violation of any statutory rules, executive policiesor instructions. The Petitioners have also not alleged any malafide against the Respondents. Matters of transfers are best leftto the discretion of the competent authority, and should not betinkered with, in the absence of a demonstrable violation ofstatutory rules, or an instance of mala fide on the part of thecompetent authority. [Para 6.5][37-A, C, E, F]

Major General J.K. Bansal v. Union of India & Ors.(2005) 7 SCC 227; Shilpi Bose v. State of Bihar (1991)Supp 2 SCC 659; Union of India v. S.L. Abbas (1993)4 SCC 357: [1993] 3 SCR 427; National HydroelectricPower Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC 574:[2001] 3 Suppl. SCR 18 – relied on.

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A*Union of India & Anr. v. Lt. Col. P.K. Choudhary &Ors.(2016) 4 SCC 236 : [2016] 2 SCR 426 –distinguished.

Case Law Reference

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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 918of 2017.

Under Article 32 of the Constitution of India.

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WITH

W.P. (C) Nos. 965 and 1077 of 2017.

Ms. Meenakshi Arora, Sr. Adv., Ms. Neela Gokhale, Ilam Paridi,Ms. S. Agarwal, Ms. Kamakshi S. Mehlwal, R. Balasubramanian,EMs. Prerna Priyadarshini, Prabhas Bajaj, Ms. Aarti Sharma, GautamSharma, Mukesh Kumar Maroria, Arvind Kumar Sharma, Advs. for theappearing parties.

The Judgment of the Court was delivered by INDU MALHOTRA, J. 1. The above-mentioned Writ PetitionsFwere 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 presentWrit Petitions have been set out hereinbelow.

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3. The Petitioners are personnel belonging to the Army ServiceCorps (“ASC”). The Petitioners in Writ Petition (Civil) Nos. 918 and1077/2017 are Officers holding the ranks of Major and Lieutenant Colonelrespectively, while the Petitioner in Writ Petition (Civil) No. 965/2017 isholding the rank of Sepoy.

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The Petitioners have impugned Posting Orders issued by theRespondents, posting them to operational units/operational areas. ThePetitioner in Writ Petition (Civil) No. 918/2017 – Major Amod Kumar,who was serving as an Officer of the ASC, was posted to 44 RashtriyaRifles as a Mechanical Transport Officer vide Order dated July 20,2017. The Petitioner in Writ Petition (Civil) No. 965/2017 – SepoyPrahalad Singh was serving in the ASC, having being trained for drivingspecial vehicles. He was posted to 4 Rashtriya Rifles vide Order datedSeptember 4, 2017. The Petitioner in Writ Petition (Civil) No. 1077/2017– Lieutenant Colonel Shubhankar Mishra, who was serving as an Officerof the ASC, was posted to 694 Coy ASC (Tank and Transport) as anOfficer Commanding vide Order dated September 15, 2017.

4. SUBMISSIONSOFTHE PETITIONERS

The Petitioners were represented by Ms. Meenakshi Arora,Learned Senior Advocate. The Petitioners inter alia made the followingsubmissions:

4.1. The Petitioners submitted that they belong to the ASC, andhave been posted to ‘operational’ areas/formations despitethe findings of this Court in Union of India & Anr. v. Lt.Col. P.K. Choudhary & Ors.[1] (“Lt. Col. P.K. Choudhary’sCase”).

4.2. The Petitioners submitted that this Court in Lt. Col. P.K.Choudhary’s Case had held that the ASC, EME and otherMinor Corps are ‘non-operational’ units/formations based onthe stand taken by the Union of India.

The Petitioners submitted that even though the findings of thisCourt in Lt. Col. P.K. Choudhary’s Case that the ASC are‘non-operational’ were rendered while adjudicating the issueof distribution of vacancies which had been created for therank 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 Judgementin Lt. Col. P.K. Choudhary’s Case wherein the Petitionershave been classified to be ‘non-operational’ for promotionalavenues, the same classification should apply as a necessarycorollary for the purposes of deployment and postings also.

1 (2016) 4 SCC 236.

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A4.4. It was submitted that the preference given to ‘operational’Corps in the matter of promotions was unjustified, particularlysince personnel of the ASC move alongside with personnelbelonging to the other Corps in operational areas. Thus, theyare as vulnerable as the personnel of the other Corps.

BOn this basis, the Posting Orders issued by the Respondentsdirecting the Petitioners to serve in operational units/areaswere challenged as being in gross violation of theirFundamental Rights and principles of natural justice.

5. SUBMISSIONSOFTHE RESPONDENTS

CThe Respondents – Union of India, and the Military SecretaryBranch were represented by Mr. R. Balasubramanian, Learned Advocate.The Respondents made the following submissions:

5.1. The present Writ Petitions under Article 32 are notmaintainable, since there is no violation of their FundamentalRights whatsoever. Hence, the Writ Petitions are liable to beDdismissed at the threshold on this count alone.

5.2. It was further submitted that if the Writ Petitioners have anygrievance, the alternate remedy of challenging the PostingOrders before the Armed Forces Tribunal is available. Hence,the Writ Petitions are liable to be dismissed on this groundEalso.

5.3. On merits, it was submitted that transfers are not only anecessary incident of service, but an essential condition ofservice. An employee has no legal right, much less aFundamental Right, to be posted in a particular place, or to beFtransferred to a place of his/her choice. The competentauthority is empowered to determine the place of posting ofthe personnel concerned.

In this regard, reliance was placed on the decision of thisCourt in Major General J.K. Bansal v. Union of India &GOrs.[2 ]to submit that the scope of interference in matters oftransfer of members of the armed forces is very limited, andcourts should be slow to interfere with the decisions ofcompetent authorities, in the absence of an exceptionallystrong case.

2 (2005) 7 SCC 227.H

5.4. It was further submitted that the reliance placed by thePetitioners 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 rankof Colonel pursuant to the implementation of therecommendations of the Ajai Vikram Singh Committee. Thedecision in Lt. Col. P.K. Choudhary’s Case was not renderedin the context of transfers or posting orders.

5.5. The Respondents submitted that the Army has no personnelwho are ‘non-combatants’ or ‘non-operational’, with theexception of personnel belonging to the medical organisationwho have a distinct status under International HumanitarianLaw. The Combat Arms, Combat Support Arms, ArmyService 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 RegimentalDuty, and is not based on their willingness to occupy suchposts.

5.7. The postings of the Petitioners are in accordance with thepolicies and instructions of career planning, and managementissued from time to time, and do not violate any statutoryrules.

The Petitioners have not referred to any statutory rules, executive policies, or instructions which debar them frombeing posted to such areas.

5.8. It was further submitted that the Petitioners have not allegedany mala fides or vindictiveness on the part of the authoritywhich has issued the Posting Orders. Hence, the Writ Petitionscannot be entertained on this ground also.

5.9. The Respondents submitted that the claim of the Petitionersthat they are ‘non-operational’ or ‘non-combatants’ isuntenable as it strikes at the very root of the organisationaleffectiveness of the Army. If the grievance of the Petitionerswas to be entertained, it would generate disaffection amongstpersonnel, and directly impact the morale of the forces.

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A6. DISCUSSIONANDANALYSIS

In light of the submissions advanced by the parties, the followingissues arise for consideration:

• Whether the present Writ Petitions filed under Article 32 of theConstitution are maintainable?

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• Whether the action of the Respondents in posting the Petitionersand members of the ASC to ‘operational’ areas/units are validin view of the decision of this Court in Lt. Col. P.K. Choudhary’sCase (supra)?

• Whether the postings of the Petitioners to operational areas areCviolative 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 thecomposition of the Army would provide the contextual matrixof the case.

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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) ArmyService Corps, 9) Army Ordnance Corps, 10) Electronics andMechanical Engineers, and 11) Other Corps includingEIntelligence, Aviation and other Minor Corps.

Each stream has a distinct and specialised role. Personnel areimparted specialised training in their designated field. Allstreams work and co-operate in order to form a cohesiveorganisation.

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F The ASC is a vital stream which is primarily responsible forensuring provisioning, procurement, and distribution ofsupplies. ASC personnel provide the logistical support in theform of transportation, maintenance of vehicles, driving indifficult terrain, preserving equipment, and conserving fuelexpended.G

6.2. The Petitioners have contended that the Posting Orders passedby the Respondents posting them to operational areas/units isviolative of their Fundamental Rights guaranteed by Articles14 and 21 of the Constitution. The Petitioners have, however,failed to substantiate how their Fundamental Rights have been H

violated. Postings and transfers are a necessary incident ofservice. Hence, the grievance, if any, cannot be entertainedunder Article 32.

6.3. The Petitioners cannot assail posting/transfer orders directlybefore the Supreme Court by way of Writ Petitions underArticle 32 of the Constitution. If the Petitioners have anygenuine grievance, they have an alternate statutory remedyavailable by challenging the same before the Armed ForcesTribunals.

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 bythe Armed Forces Tribunal on a Policy Circular dated January20, 2009 issued by the Government of India which had beenquashed, and directions were issued to the Union of India toconsider the personnel belonging to the Arms, Arms Support,and ASC for promotion to the rank of Colonel by creatingsupernumerary posts.

This Court was considering the issue of distribution of

vacancies which had been created for the rank of Colonelamongst the various Corps of the Indian Army. This Courtconsidered the findings of the Ajai Vikram Singh Committee,and noted that Armoured Corps, Infantry, Mechanised Infantry,Artillery, AD, Engineers and Signals were ‘operationalformations’, while the ASC, Army Ordnance Corps, andElectronics and Mechanical Engineers were not.[3] TheOfficers belonging to the ASC, Army Ordinance Corps, andElectronic and Mechanical Engineers, i.e. the services stream,do not constitute a common cadre with those serving in theArms, and Arms Support for the purposes of promotion.[4]

As a result, they were not entitled to be considered forpromotion to the rank of Colonel against the vacancies createdin pursuance of the implementation of the AVS CommitteeReport.

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This Court was not concerned with the issue of posting ofpersonnel belonging to the ASC, and the findings therein cannotbe 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, inthe matter of promotions. The following observations made bythis Court in Lt. Col. P.K. Choudhary’s Case are pertinent,and are reproduced here under:

“…The true position is that allocation of officers todifferent Arms and Services puts them in distinct cadreswith the result that those comprising a particular cadrewill have his or her promotional avenues availableagainst the posts comprising that cadre alonenotwithstanding the fact that the Government of India may, as a policy, attempt to ensure as far as possible thatofficers of a given batch pick up their ranks around thesame time or within a reasonable span of theircounterparts in other cadres or that the disparity in timeframe for promotion is removed by making promotionsretrospective from the dates officers in other cadre have”[5]been promoted.

(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 specialisedroles. They work in co-ordination with each other. Thepersonnel of the ASC are imparted specialised training toprovide logistical support to the other streams in the form ofmaintenance of vehicles, availability of trained drivers,preservation of equipment, and conservation of fuel.

To accept the prayers of the Petitioners merely on the basisof the contention that the ASC have been referred to as ‘non-operational’ for the purposes of promotion, would be to disturbthe entire structure and operations of the Army.

6.5. The Petitioners have not made any submission that the postingsare in violation of any statutory rules, executive policies orinstructions.

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 Respondentsduring the hearing. In the said decision, this Court had referredto a number of its precedents[6] on the scope of interferenceof Courts under Article 226 of the Constitution in cases wheretransfer orders had been challenged. The Court held thatmatters of transfers are best left to the discretion of thecompetent authority, and should not be tinkered with, in theabsence of a demonstrable violation of statutory rules, or aninstance of mala fide on the part of the competent authority.This Court noted as follows:

“12…The scope of interference by the courts in regardto members of the armed forces is far more limited andnarrow. It is for the higher authorities to decide whenand where a member of the armed forces should beposted. The courts should be extremely slow ininterfering with an order of transfer of such categoryof persons and unless an exceptionally strong case ismade out, no interference should be made.”

The Petitioners have not alleged any mala fide against the Respondents. Hence, the contentions of the Petitioners cannotbe entertained.

6.6. The Respondents have made a reference to the Oathadministered to Officers and Sepoys alike at the time ofcommissioning. The said Oath is reproduced hereinbelow forreference:

“I (Name) hereby solemnly swear that I will bear truefaith and allegiance to the Constitution of India, as bylaw established and that I will, as in duty bound honestlyand faithfully, serve in the regular Army of the Unionof India and go wherever ordered, by land, sea or air, 6 Shilpi 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.

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and that I will observe and obey all the commands ofthe President of the Union of India and the commandsof any officer set above me, even to the peril of mylife.”

(Emphasis supplied)

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This Oath is administered to all personnel, irrespective of theArm or Service to which they are commissioned. As per theOath, personnel are duty bound to serve wherever they areordered to.

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

DKalpana K. Tripathy

Writ Petitions dismissed.

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