The decision not to transfer the Petitioner to the Embassy of India in Nepal was neither arbitrary nor vitiated by malice, and the Petitioner had no vested right over a particular post in a particular embassy. Transfer is a matter of exigency of service.

JUDGMENT

Manmohan, J. -

C.M. Appl. No. 10987/2021 (Exemption)

Exemption allowed subject to all just exceptions. Application stands disposed of.

W.P. (C) No. 3620/2021 & C.M. Appl. No. 10988/2021 (Stay)

1. Present writ petition has been filed challenging Respondent s letter dated 03rd February, 2021 and Movement Order dated 09 February 2021 directing the Petitioner to return to Unit i.e., HQ 161 INF BDE i.e., Uri Division of Kashmir. Petitioner seeks a direction to the Respondents to withhold his movement since he is being directed to report back to Unit with thirty days leave upto 12th March, 2021 contrary to his posting Order dated 24 September 2020. Petitioner further seeks direction to the Respondents to allow him to continue his attachment to Army HQ (Addl Dir GenIntemational Co-operation, Foreign Divisions) till pendency of this Writ or /and till his departure on posting to Defence Attache, Embassy of India at Kathmandu for which approval was given by Respondent No.2 vide letter dated 03 September 2020. Petitioner also seeks direction to the Respondents to withhold the posting/ movement of any Defence Attache to Embassy Kathmandu (Nepal) in place of Petitioner and call all the records with regard to non approval of Petitioner s name for posting as JCOs(PA) to Defence Wing abroad by the Secretary, DMA as the same is contrary to the letter dated 3rd September 2020. Petitioner lastly prays that the Respondents be directed not to harass the Petitioner un-necessarily by forcing him to sign any un-willingness etc. or any other kind of documents/ proceedings which make him ineligible for foreign posting.

2. Learned Counsel for the Petitioner states that in the posting order dated 24th September, 2020 it has been stated that Representation for cancellation/diversion/deferment of posting will not be entertained. Move will be carried out as intimated by ADG(MP-1) and a copy of move order will be endorsed to this office for updating records. Consequently, according to him, Respondents cannot now cancel or act contrary to the order dated 24th September, 2020.

3. He states that the petitioner has invested all his savings in buying necessary items etc. as this foreign posting was not only a matter of pride for him but also for his family. He also states that on 14th January, 2020, MP-I of the Respondents had issued a letter to ASC Records (S) of the Petitioner issuing a call up notice for attachment with integrated Headquarter of Ministry of Defence (Army) for briefing and language study prior to posting to its mission abroad.

4. Per contra, learned counsel for the Respondents has handed over in Court the Minutes of proceedings of Board of Officers dated 26th December, 2018 of the candidates who had not only attended but also passed the course for Selection and Posting of Combatant Staff for Foreign Assignments course at Sr.No.40. The relevant portion of the Minutes of Board of Officers reads as under:-

"3. There are few indls cases which were discussed by the BOO and u/m was decided:-

(a)JCO Clk (SD) Cat. JC-668221H Sub Maj Kuldeep Rajoriya was promoted as Sub Maj on 01 September 2018 and therefore has got four yr residual service till dt 31 August 2022. The JCO Clk is therefore not eligible for the vacs in Embassies of India where in the tenure of three yrs is beyond August 2022. It is decided by the BOO to detail the JCO i.e Sub Maj Clk Kuldeep Rajoriya for HCI, Islamabad (Pakistan) where the tenure of 18 months is likely to finish by February 21/22 subject to all other clearances in time.

(b)JCO PA Cat. JC-670876N Nb Sub PA Awadhesh Kumar Singh is being detailed for vac of EoI, Nepal as per his position in merit. However, the issue of present GSL being for Hav PAs only was brought out by the member of MIFD. The BOO has therefore decided to detail the JCO for Nepal vac as reserve pending the modification of the GSL and necessary Govt sanction for change of rank in PA category. The JCO has been informed accordingly. The Hav PA who is res one