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2003 DIGILAW 791 (AP)

Sergeant Jena JK v. Union of India, Ministry of Defence

2003-06-24

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner is a Sergeant in the Indian air Force. In the year 2001, he was posted at new Delhi. It is his case that for the past 25 years of his service, he has been never posted at his home zone and it was on his request that he was posted at Navigation training School at Hyderabad with effect from 26-3-2001. Through a Signal dated 29-5-2003, he has been posted to Air Force station at Rajasthan. The petitioner challenges the same as being the punitive transfer. ( 2 ) THE petitioner contends that he has been tried by the District Court Martial on 26-11-2002 on the charge of improper possession of defence liquor bottles. As a consequence of the same, he was sentenced to forego two years past service for the purpose of promotion and was severely reprimanded. The finding as well as the sentences were confirmed by the 3rd respondent, through his orders dated 25-4-2003. The petitioner contends that the present transfer is on the basis of the outcome of the Court martial and the same amounts to double punishment. ( 3 ) SRI C. M. R. Velu, learned counsel for the petitioner, submits that according to the posting Policy for Airmen issued by the Air headquarters, through proceedings dated 30-6-2003, the ordinary period of stay of an airman at a Normal Station is five years, limited Area Station is 3 years, Hard Area station is 2 years and ALG is 1 year. He submits that the present Navigation Training school, at Hyderabad, being a Normal station, the petitioner ought to have been continued for 5 years and there does not exist any justification for transferring him within 2 years. According to him, the present transfer amounts to enhancement of the punishment imposed against him on Court martial and the same is outside the scope of powers of the 3rd respondent. ( 4 ) SRI T. Surya Karan Reddy, learned senior Standing Counsel for Central government, on the other hand, submits that the transfer of the petitioner cannot be treated as punishment at all. It is his case that the period of stay mentioned in the posting Policy of 30/06/2000, is not mandatory and, if the circumstances demand, an Airman can be transferred even before he completes the various spells of stay. It is his case that the period of stay mentioned in the posting Policy of 30/06/2000, is not mandatory and, if the circumstances demand, an Airman can be transferred even before he completes the various spells of stay. ( 5 ) THE main ground of attack in the present transfer is that it is punitive in nature. The basis for the same is that the petitioner has already been inflicted the punishment of forfeiture of 2 years past service for the purpose of promotion and reprimand and, once that order has become final, he cannot be transferred to a distant place, that too, even before he completed the normal period of stay. ( 6 ) IT is well settled that transfer is an incidence of service. The various guidelines touching upon the matters of transfer issued by the Government or various agencies were held to be directive in nature. In fact the guidelines themselves are couched in such terms. Administrative exigency is always a paramount consideration in the matter of transfers. A transfer can be said to be punitive, if only such transfer was incompatible, but for the imputation made against the employee. In such cases, the administrative exigency takes the back seat and predominant consideration would be the element of punishment. ( 7 ) WHILE examining as to whether the transfer was incompatible or not on administrative grounds, one has to look into the attendant circumstances. The Posting policy issued on 30/06/2000 by the Air heardquarter, reads as under:"normal Tenure. 4. Airmen are posted from one Unit to another to meet the organisational needs so that placements of rightly qualified Airmen are made at right place and at right time. To fulfill this service requirement, the following maximum tenures would be observed, which may very depending upon service exigencies. (a) Normal Station. . . . . . 05 years (b) Limited Area Station. . . . 03 years (c) Hard Area Station. . . . 02 years (d) ALG. . . . 01 years"the 2nd sentence makes it abundantly clear that the posting or transfer would invariably depend on the service exigencies. Neither the petitioner has pleaded absence of administrative exigency warranting his transfer, nor the respondents had an opportunity to contradict the same. In such an event, the administrative exigency deserves to be presumed. 02 years (d) ALG. . . . 01 years"the 2nd sentence makes it abundantly clear that the posting or transfer would invariably depend on the service exigencies. Neither the petitioner has pleaded absence of administrative exigency warranting his transfer, nor the respondents had an opportunity to contradict the same. In such an event, the administrative exigency deserves to be presumed. ( 8 ) THE expression "administrative exigency" is too difficult to be confined into a particular set of parameters. In a given case, the desirability or otherwise of continuing an employee at a particular station may become an important factor to ensure proper functioning of the unit. The reasons for the same may differ from case to case. Once the employer forms an opinion that it is not desirable to continue an employee at a particular station, such decision becomes part of administrative exercise and thereby it may tend to be characterized as administrative exigency. Even if what is stated by the petitioner is true, the decision to transfer the petitioner cannot be said to be without basis. A transfer effected to ensure that an employee does not have any opportunity to repeat an act, which was found to be improper, cannot be outside the administrative necessity. ( 9 ) WHATEVER may be the inclination of the court to interfere with the orders of transfer in other services in exercise of the power under Article 226 of the Constitution of India, the Supreme Cou"t and this Court have sounded a note of caution, while dealing with such matters in relation to Armed Forces. The reason is that there will be several unjusticiable factors, which guide the decision of the authorities in the Armed forces. ( 10 ) THEREFORE, viewed from any angle, no exception can be taken to the transfer of the petitioner. Under these circumstances, this court is not inclined to interfere with the impugned order. The writ petition is accordingly dismissed. No costs.