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2007 DIGILAW 51 (DEL)

S. N. PATNAYAK v. UNION OF INDIA

2007-01-11

G.S.SISTANI, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) THE petitioner who had joined as an Airman in the trade of Clerk GD in the year 1978, was promoted to the rank of CPL and then, in due course, as warrant Officer on 9. 8. 2004 after clearing the necessary examination. The petitioner was posted to Air Advisor Department High Commission of India at london (UK) on 10. 1. 2004 for a period of three years i. e. upto 30th January, 2007. The appointment of the petitioner was made on the basis of a selection. After his posting at London, the petitioner faced problems in regard to admission of his two daughters in the schools at London as academic session in london starts in the month of September of each year. According to the petitioner, he is governed by the Ministry of External Affairs circular dated 3. 8. 2006 which prescribes extension of tenure on educational grounds from 6 to 12 months in case of children of 10th and 12th class respectively. The copy of the said circular has been placed on record as annexure P1 to the writ petition. According to the petitioner, his tenure of stay at London is to expire on 30. 1. 2007 and he had applied for extension on the ground of education of his elder daughter who is studying in class 10th. According to the petitioner, the child cannot even come to India as she would not be able to complete her GCSE if the petitioner is moved out of the Mission. On 12th June, 2006, the petitioner applied for extension of tenure which was rejected on 8. 8. 2006 and he filed an appeal against this order of rejection wherein he also informed the authorities with regard to the policy dated 19. 2. 1996 on the subject and gave example of some other persons to whom the extension was granted. However, the said appeal was also rejected vide order dated 19. 9. 2006. Aggrieved from the said order, the petitioner filed the present petition. ( 2 ) THE respondents contested the relief claimed by the petitioner on the ground that they had taken a policy decision for not granting extension on educational grounds to the members of the air force attached to various embassies and High Commissions. 9. 2006. Aggrieved from the said order, the petitioner filed the present petition. ( 2 ) THE respondents contested the relief claimed by the petitioner on the ground that they had taken a policy decision for not granting extension on educational grounds to the members of the air force attached to various embassies and High Commissions. It was also stated that earlier some extensions were granted but after coming into force of the said decision, no extension had been granted on educational grounds. Besides this, it was stated that the petitioner was requested to exercise his options vide their letter dated 29. 5. 2006 but the petitioner did not exercise nor took proper and timely steps for protecting the educational interest of his children and as such, the petitioner cannot claim any relief now. ( 3 ) NO doubt, in the letter written by the petitioner on 11. 8. 2006, the efforts put in by the authorities as well as the options given by them were duly appreciated. But the fact of the matter is that the petitioner could not take appropriate and timely steps to ensure transfer of his children within the time. The relevant part of the said letter reads as under?- "2. I am extremely grateful that my request has drawn the attention/consideration at highest possible level and after consultation with various agencies a sincere attempt has been to find out a viable solution to the problem by exploring various options vis-?-vis the constraints of existing rules. It gave me immense pleasure that a sense of belonging to the august institution of Indian Air Force which has accorded due priority to the predicament of its ranks. I fully understood the suggested options and when considered to implement them the following problems are envisaged:- (a) With the assurance from such a high level, I am confident of a place in Delhi based IAF Schools as well as AFWWA hostel for my daughter. Presently she is studying the British curriculum and syllabus, which is quite different to the CBSE syllabus being followed by our AF Schools. As she is pursuing the UK educational system since last three years, it will be very difficult for her to switch over and adapt to a altogether different educational system and syllabus that too only four to five months before the final Board Examination in India. As she is pursuing the UK educational system since last three years, it will be very difficult for her to switch over and adapt to a altogether different educational system and syllabus that too only four to five months before the final Board Examination in India. This will bound to affect her performance and grading which will be detrimental for her future academic prospects. It can be appreciated that, in India for successful completion of X and XII board examinations with better scoring, students do need methodical and consistent studies from the beginning of the academic year with wider participation of teachers and parents as well. Obtaining the subjects of choice in +2 or XII standards mostly depends on the grade obtained in X board examination and hence it will affect my daughter adversely. (b) I have given appropriate thought to the second suggested options i. e. to leave my daughter behind in UK for completing her GCSE in Jul 07. Sir, leaving behind a girl of 15 years old alone in UK will not be possible for us due to related social problems considering the European life style in London. After returning to India, it will also not be financially viable for me to afford for her boarding/lodging in UK, which involves a great deal of expenditure due to the cost of living here. (c) I have also tried to find out for her admission in British School in new Delhi, which follows UK educational system. But the fees structure of the said school is unimaginably high and not al all affordable. 3. IAF personnel and personnel of other sister services such as Indian navy have previously encountered such problems and on being approached, the services HQs gave granted extension to them till the end of academic session of their children. I have the honour to submit few of the past cases where extension of tenure had been granted on service/children educational grounds:- (a) The tenure of 298603 JWO Om Prakash Eqpt Asst in this mission has been extended on service grounds for two months till end of Mar 03 vide Air HQ/c 40323/5/2/pa II dated 20 Aug 02. However, he had been posted to 40 Wing, AF only in Jan 04 after my arrival at this mission. However, he had been posted to 40 Wing, AF only in Jan 04 after my arrival at this mission. (b) 614637-K JWO Suresh Chand Clk GD was granted extension on children education grounds for three months upto 31 Jul 04 vide Air HQ/40323/5/1/pa II dated 04 Sep 03. He also posted to 4 Wing, AF only in May 05. (c) MCPOWTR-II S Mahapatra (60629 T) of Indian Navy who was on the posted strength of Naval Adviser Department of this mission was granted extension of tenure on children educational grounds for three months upto Aug 05 vide integrated Headquarters of Ministry of Defence (Navy) vide letter No. RP/2519 dated 16 May 05. He was posted to INS Tuneer, Mumbai in Sep 05. 4. In view of the above, as the suggested options are unable to solve the problem and service personnel from this mission had been granted extension on such grounds previously, the request of a concerned father towards the future career of her daughter may kindly be reconsidered by your good office for extension of tenure upto Jul 07 on children education grounds. For the above act of kindness, I shall be ever grateful for you. " ( 4 ) VIDE order dated 19th September, 2006, the respondents had finally rejected the request of the petitioner for grant of extension. The said rejection cannot be said to be arbitrary or malafide inasmuch as the authorities had provided an opportunity to the petitioner to deal with the problem of his children. Be that as it may and as the authorities concerned despite order dated 19th September, 2006 decided to still provide accommodation to the children of the petitioner to complete their education but keeping in mind the exigencies of service, administrative interest of the High Commission and the policy decision taken by the respondents, they were unable to grant extension to the petitioner in London. Keeping in view that the writ petition was pending before this Court, they also did not remove the petitioner from his post and he was permitted to continue to live with his family in the High Commission premises. On 3. 1. 2007, a certificate was filed on the court record and copy thereof given to the petitioner?s counsel. Keeping in view that the writ petition was pending before this Court, they also did not remove the petitioner from his post and he was permitted to continue to live with his family in the High Commission premises. On 3. 1. 2007, a certificate was filed on the court record and copy thereof given to the petitioner?s counsel. The said certificate reads as under:- CERTIFICATE this is to certify that after the departure of 649573 Warrant Officer SN patnayak from London, on completion of his tenure in the second week of January 07, his wife and two daughters will be permitted to stay back till the conclusion of the academic session of his elder daughter, i. e. , until 31 July 07. The wife and two daughters of the said WO SN Patnayak would reside in the quarters, occupied by the other two Warrant officers along with their respective families, on sharing basis. The wife and daughters of the said WO SN Patnayak would be given requisite clearance (s) for the above purpose. Sd/- (Hemant Singh)Wg Cdr jdi (L)Air HQ (VB)New Delhi-110011 03 Jan 07? ( 5 ) LEARNED counsel appearing for the respondents during the course of hearing had also stated upon instructions from the Officers present in court that the wife and two daughters of the petitioner would be provided with residential facilities free of any liability, their visas would be extended and they would be granted due permission to stay in the High Commission premises till the elder daughter of the petitioner completes her academic session or 31st july 2007 whichever is earlier. They also assured the court that the wife and the daughters of the petitioner would face no inconvenience or difficulty during their stay but without creating any additional financial liability upon the High commission and as such, the petitioner is expected to come back and join the duties at his place of his posting in India. This was also acceptable to the learned counsel appearing for the petitioner. This was also acceptable to the learned counsel appearing for the petitioner. ( 6 ) IN view of the stand taken by the respondents which in our considered opinion is just and fair, we, based on the consent of the learned counsel appearing for the parties and particularly in view of the stand taken by the respondents as afore-noticed, pass the following directions:- i) The respondents would abide by their statement made in court as well as in terms of the certificate dated 3. 1. 2007. ii) They would ensure that no inconvenience or hardship is caused to the wife and two daughters of the petitioner who are going to continue to stay in the High Commission premises (two rooms together ? one room will be provided on sharing basis while the other room would solely be provided to them ). iii) The formalities with regard to grant of permission and for extension of visas for their stay in London would be completed at the earliest and the petitioner will be duly informed of the same. iv) The petitioner would return to India and join his place of posting within one week from the date of pronouncement of this order. v) Except usual benefits which the wife and the two daughters of the petitioner would be entitled to within the High Commission premises, no additional financial liability would be incurred by the authorities. ( 7 ) THE writ petition and CM 14724/2006 are disposed of in the above terms while leaving the parties to bear their own costs.