Decided on August 09,2007

UNION OF INDIA Respondents


VIKRAMAJIT SEN, J. - (1.) The President of India is the Supreme Commander of the Defence Forces of the Union. By letter dated 27.9.2006 the Chief of Army Staff was informed that "the President is pleased to decide that notwithstanding anything contained in Paragraph 82 of the Regulations for the Army the Inter Arm Transfer of IC- 46298N Lt Col Mukul Dev is sanctioned as a one time measure from Artillery to the JAG's Department provided the officer is in possession of Bachelor's Degree in Law from any recognised University". It is indeed extraordinary that the Respondents have flagrantly failed to honour the decision of the Commander-in- Chief of the Indian Army, who is the President of our Republic. On the contrary, the Petitioner, Lt. Col. Mukul Dev, Assistant Judge Advocate General, HQ CIF-Counter Insurgency Force (U) was posted to HQ 11 Corps Artillery as per Telegraphic Order dated 30.10.2006. It is this Posting Order, which is irreconcilably in variance with the decision of the President of India that has been assailed before us.
(2.) The Petition discloses that the Petitioner had sought and obtained a transfer to the JAG Department in March, 2003. He has conducted several Court Martials; by letter dated 19.1.2005 the Military Secretary suggested to the Petitioner that he should apply for Inter Army/Service Transfer (IAST for short) to the JAG Department through proper channels; and to pass JAG Departmental Examination which would be mandatory for a permanent transfer to JAG. His application for IAST was recommended by his Officer Commanding as well as General-Officer-Commanding. Respondent No.3 (JAG Department) vide DTG : 132003 Srl No 145031 informed the relevant Command that the Petitioner had qualified the JAG's Departmental Exam October 2005. After exchange of sundry communications, and despite the directions of the President of India, the Respondents have not transferred the Petitioner to Respondent No.3. It should be noted that the Petitioner has stated that due to an injury sustained by him, his career progression in the regiment of Artillery had been jeopardised and it was for this reason that he had worked towards a transfer to the JAG Branch.
(3.) The Chaudhary Charan Singh University, Meerut has awarded the Petitioner "the Degree of BACHELOR OF LAWS of this University in the Examination of 1996 after pursuing three years professional course" in the Second Division (underlining has been added). The Petitioner has candidly admitted that he has not fulfilled the essential attendance criteria, i.e. 2/3rd of the total number of lectures delivered, set down by the Bar Council of India and for this reason he may not be eligible to pursue a career as an Advocate.;

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