MAJ. AMOD KUMAR versus UNION OF INDIA & ANR.
[2018] 11 S.C.R. 28, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Arguments
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
MAJ. AMOD KUMAR
v.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 918 of 2017)
SEPTEMBER 06, 2018
[R. F. NARIMAN AND INDU MALHOTRA, JJ.]
Service Law:
Posting – Of personnel belonging to Army Service Corps
(ASC) in operational areas – Challenged on the ground that since
ASC 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 and
co-operate in order to form a cohesive organisation – Postings and
transfers are a necessary incident of service – As per the oath
administered to the personnel, they are duty bound to serve wherever
they are ordered to – Matters of transfer should be left to the
discretion of competent authority – To accept the plea of the
petitioners on the basis of finding in Lt. Col. P.K. Choudhary case,
would be to disturb the entire structure and operations of Army –
Petitioners have also not alleged violation of any rules, executive
policies or instruction nor alleged mala fide.
Constitution of India:
Art. 32 – Petition under – Challenging posting orders in Indian
Army – Maintainability of – Held: Postings and transfers are a
necessary incident of service – Grievance against the same, if any,
cannot be entertained u/Art. 32, as alternate statutory remedy is
available before Armed Forces Tribunal.
Dismissing the petitions, the Court
HELD: 1. The Petitioners have contended that the
Posting
Orders, 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.  The
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Petitioners cannot assail posting/transfer orders directly before
the Supreme Court by way of Writ Petitions under 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. [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 designated
field. All streams work and co-operate 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. To accept the prayers of the Petitioners merely
on the basis of the contention that the ASC have been referred
to as ‘non-operational’ in *Lt. Col. P.K. Choudhary case for the
purposes of promotion, would be to disturb the entire structure
and operations of the Army.  As per the Oath administered to
Officers and Sepoys, personnel are duty bound to serve wherever
they 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 the
postings are in
violation of any statutory rules, executive policies
or instructions. The Petitioners have also not alleged any mala
fide against the Respondents.  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. [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 Hydroelectric
Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC 574:
[2001] 3 Suppl. SCR 18 – relied on.
MAJ. AMOD KUMAR v. UNION OF INDIA
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*Union of India & Anr. v. Lt. Col. P.K. Choudhary &
Ors.
(2016) 4 SCC 236 : [2016] 2 SCR 426 –
distinguished.
Case Law Reference
[2016] 2 SCR 426
distinguished Para 4.1
(2005) 7 SCC 227
relied on
Para 5.3
(1991) Supp 2 SCC 659
relied on
Para 6.4
[1993] 3 SCR 427
relied on
Para 6.4
[2001] 3 Suppl. SCR 18
relied on
Para 6.4
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 918
of 2017.
Under Article 32 of the Constitution of India.
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,
Ms. Prerna Priyadarshini, Prabhas Bajaj, Ms. Aarti Sharma, Gautam
Sharma, Mukesh Kumar Maroria, Arvind Kumar Sharma, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
INDU MALHOTRA, J. 1. The above-mentioned 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.
3. The Petitioners are personnel belonging to the Army Service
Corps (“ASC”). The Petitioners in Writ Petition (Civil) Nos. 918 and
1077/2017 are Officers holding the ranks of Major and Lieutenant Colonel
respectively, while the Petitioner in Writ Petition (Civil) No. 965/2017 is
holding the rank of Sepoy.
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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. SUBMISSIONS 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
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 ‘non-operational’ 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
‘non-operational’ 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 ‘non-operational’ for promotional
avenues, the same classification should apply as a necessary
corollary for the purposes of deployment and postings also.
 1 (2016) 4 SCC 236.
MAJ. AMOD KUMAR v. UNION OF INDIA
[INDU MALHOTRA, J.]
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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.
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
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.
 2 (2005) 7 SCC 227.
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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 ‘non-combatants’ or ‘non-operational’, with the
exception of personnel belonging to the medical organisation
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 ‘non-operational’ or ‘non-combatants’ is
untenable as it strikes at the very root of the organisational
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.
MAJ. AMOD KUMAR v. UNION OF INDIA
[INDU MALHOTRA, J.]
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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
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 co-operate 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
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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
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 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.
 3 (2016) 4 SCC 236, at paragraph 22.
 4 (2016) 4 SCC 236, at paragraph 36.
MAJ. AMOD KUMAR v. UNION OF INDIA
[INDU MALHOTRA, J.]
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     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
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 co-ordination 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.
 5 (2016) 4 SCC 236, at paragraph 38.
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6.5. The Petitioners have not made any submission that the postings
are in violation of any statutory rules, executive 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.
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,
 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.
MAJ. AMOD KUMAR v. UNION OF INDIA
[INDU MALHOTRA, J.]

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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.
Kalpana K. Tripathy
    Writ Petitions dismissed.