G. Janardhanan v. Secretary to The Gov. of India Ministry of Defence, New Delhi
2013-02-28
K.CHANDRU
body2013
DigiLaw.ai
Judgment :- 1. The petitioners in these writ petitions are working as drivers in the Transport Platoon attached to the Army Supply Core. At present, the petitioners are under the control of Officer Commanding 756 (Independent) Transport Platoon. By an order dated 5.3.2012, the fourth respondent gave posting orders to the petitioners posting them to various places giving the date of movement as 30.4.2012 After Noon. 2. The order of posting of civilian persons relates to as many as 136 persons in ASC Records (South). The orders itself refer to the order issued by the Head Quarters viz., Ministry of Defence, Army letter dated 21.9.2005 as a source of authority. The petitioner alleging that as much as the order of transferring them to far away places is contrary to the circulation issued by the Army Headquarters letter dated 11.12.1996 and circulated by communication dated 21.1.1997, filed present writ petitions by placing reliance on paragraph 3(b) of the communication which is stated as follows:- "3(b) Units controlled employees cannot be trfd to other units/ stns on Adm grounds or in exigencies of service. Only civpers borne on a common roster on zonal basis can be tfrd on adm grounds within the same zone and on command basis can be within the command. Those who are on all India basis roster can be tfrd anywhere in the country where the cadre post exists." 3. While ordering notice in the writ petitions, interim stay was granted in WP.No. 11584 and 11596 of 2012 on 24.4.2012 and respondents were directed to file counter. Interim stay was granted in WP.No. 11693 of 2012 on 25.4.2012 and in WP.No. 15741 of 2012 on 6.7.2012. In WP.No. 16246 of 2012, interim stay was granted on 23.7.2012. Aggrieved by the grant of interim stay, the fourth respondent filed vacate stay petitions together with supporting counter affidavits dated 23.11.2012. 4. Heard Mr.S.Ramaswamyrajarajan, learned counsel appearing for the petitioners in WP.Nos. WP Nos.15741 of 2012, 11584 of 2012, 11596 of 2012 and 11603 of 2012 and Mr.C.Venkatesan, learned counsel appearing for the petitioner in WP.No. 16246 of 2012 as well as Mrs.S.Seethalakshmi, learned Special Panel Counsel Central Government, for the respondents herein. 5. The contention raised by the petitioners as found in the affidavit filed in support of the writ petitions are as follows:- The petitioner's children are studying in Chennai and they have to take care of the family.
5. The contention raised by the petitioners as found in the affidavit filed in support of the writ petitions are as follows:- The petitioner's children are studying in Chennai and they have to take care of the family. The petitioners are Civilian Motor Vehicle Drivers appointed under the Army Act, 1950 in the respondents Corps. As per Circular of the year 1997, the petitioners cannot be shifted on compulsory turn over to a place other than the Command / Zone in which they are working and as far as possible they should be accommodated near their choice station to the extent possible. The respondents ought to have prepared common roaster and according to the said roaster, persons coming under zonal basis can be transferred on administrative grounds within the same zone and on command basis can be within the command and those who are on All India basis roaster can be transferred anywhere in the country. Since such roaster have not been prepared, transferring the petitioners to far away places is unwarranted. 6. The respondents in their counter affidavit stated that one Sardar Mal Yadav, who has given posting, filed O.A. before the Central Administrative Tribunal, Jaipur Bench, Jaipur. The said O.A. was disposed of with a direction to the said petitioner to appeal to the department and beyond that no such relief was granted. In each of the affidavits, it was indicated the previous circumstances in which the petitioners have served and also the length of service put in the present station. It is however stated that civilian presently working in the Army Supply Corps are governed by Corps Order. In the year 1997, an amendment to above Corps order was issued by the Head Office of the Ministry of Defence by letter dated 28.11.1997 stating that as far as possible posting within the command will be considered. Subsequently, posting policy was amended by order dated 21.9.2005, by which, command rotation to be followed for field High Altitude posting as it is not possible to adjust all personnel within command for all postings. As per the revised policy, the tenure of the peace unit is 2 – 3 years and each of the petitioner have completed the tenure in those units.
As per the revised policy, the tenure of the peace unit is 2 – 3 years and each of the petitioner have completed the tenure in those units. It is also further stated that the latest policy on the issue of posting is covered by circular dated 21.9.2005 and the petitioner cannot placed reliance on the earlier policy which was circulated by communication dated 28.11.1997. Therefore, it was stated that the petitioners have no right to attack the order of transfer given to them. 7. In addition to that, Mrs.Seethalakshmi, Senior Panel Counsel for Central Government, appearing for the respondents, also brought to the notice of this Court, a statutory notification issued under Section 4 of the Army Act, wherein the Central Government had applied the provisions of Army Act to all the civilian persons working in the General Transport Companies and Independent Transport Platoons being a force raised and maintained in India under the authority of the Central Government. In the light of the same, she pointed out that the petitioners cannot have a choice of posting in a particular place and the present exercise was misconceived. 8. Learned Senior Panel Counsel for Central Government referred to earlier order passed by this Court in W.P.No. 3962 of 2012 dated 21.2.2012 in the case of M.KRISHNAMURTHI v. THE HONBLE CENTRAL COMMAND ARMY MEDICAL CORE AND SCHOOL, LUCKNOW AND OTHERS. But however, the said case relates to a case of civilian employee working in the medical core. This Court declined to grant the relief by referring the judgment of the Supreme Court reported in (2005) 7 SCC 227 – MAJOR GENERAL J.K. BANSAL v. UNION OF INDIA AND OTHERS. In the said judgment, this Court referred to paragraph 12 of the Supreme court judgment, which is as follows:- "12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of 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". 9.
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". 9. It is unnecessary to multiply the decision relating to transfer. Only in the case of total lack of jurisdiction or in the case of malafides, the court has got limited power to review such transfer orders. In the present case, in respect of persons serving in the Armed forces, to redress their service grievance, the Parliament created Armed Forces Tribunal. While creating the said Tribunal under the Central Act 55/2007, under Section 3(o) of Armed Forces Tribunal Act, 2007, the Act defines the jurisdiction of the Tribunal to deal with the service matters. While defining the service matters coming within the Tribunal, the Parliament has omitted the power of the Tribunal to interfere with transfer and posting by specific exclusion under Section 3(o) of Armed Forces Tribunal Act, 2007. That does not mean that the Tribunal is lacking jurisdiction and this Court can entertain such a writ petitions dealing with the transfers. 10. Under such circumstances, following the order of the Supreme Court cited supra and in the light of the facts stated above, no reason is made out to interfere with the impugned orders. Hence, the writ petitions are dismissed. No costs. Consequently, connected WPMPs are closed.