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2013 DIGILAW 716 (GAU)

Mahender Singh Yadav v. Union of India

2013-09-27

NISHITENDU CHAUDHURY

body2013
JUDGMENT Nishitendu Chaudhury, J. 1. By this application under Article 226 of the Constitution of India, the petitioner has challenged order dated 05.09.2013, issued by Col. MS-6 for Military Secretary, directing the transfer of the petitioner from 51 Sub Area (Legal) at Guwahati to the Office of the Deputy Judge Advocate General at the Northern Command Headquarter. The petitioner entered service in the permanent Commission as Second Lieutenant on 14.12.1985 in the Artillery wing of the Indian Army and was attached to Judge, Advocate General department at his prayer on 02.09.1994. He was thereafter in course of successive promotions got finally promoted to the rank of Lieutenant Colonel (Selection Grade) on 14.09.2003. Petitioner was transferred to 51 Sub Area at Guwahati on 24.06.2011 and his retirement is due on 31.03.2015. By filing an application before the authority on 22.04.2013, the petitioner made a prayer to allow him to retire from Guwahati, if his posting to Delhi is not feasible. It appears that the petitioner has his permanent residence at Delhi and this is why his primary interest was to be posted at Delhi by his last length of posting. On 30.06.2012, the petitioner had made his prayer for posting at Delhi so that he could find out post retirement accommodation for his resettlement. Apart from that such posting would help him to resolve some of his major domestic issues including duties to his children and old aged mother. It appears on 29.06.2013, a communication was issued from the Army Headquarter posting the present petitioner in the office of Judge Advocate General at Northern Command Headquarter and he was directed to report for duty on 18.07.2013. The petitioner challenged the said order before this Court in WP(C) No. 3876/2013 and thereupon an order was passed on 22.08.2013, disposing of the writ petition with a direction to the respondents to reconsider the prayer of the petitioner for posting in view of the fact that merely 20 months were left for his retirement on superannuation. It is on the basis of that order the Army Headquarter passed fresh order on 05.09.2013 allegedly after considering the entire matter afresh. It is on the basis of that order the Army Headquarter passed fresh order on 05.09.2013 allegedly after considering the entire matter afresh. It is observed in the said order that prayer of the petitioner for posting at Delhi is not feasible till June 2014 in view of the fact that he had earlier served at Delhi from December 2002 to November, 2006 for 47 months at a stretch and he also availed his study leave at Delhi during the period from September, 2009 to June, 2011. The authority has further observed in the impugned order that the petitioner having completed 26 months in Headquarter of 51 Sub Area (Legal) at Guwahati, his transfer out of the station has become due. It is further observed in the order as follows:- "There is a criticality of senior AJAG in the rk of Lt. Col/Col (TS) in the office of Dy. JAG, HQ Northern Comd which is severely hampering the efficient functioning of the HQ. Moreover, the posting of Col (TS) MS Yadav had been earlier issued in conformity with the posting norms issued by JAC's Dept. Services of a senior and experienced offr like Col (TS) MS Yadav shall be beneficial to the legal requirements of HQ Northern Comd vis-a-vis AFT Cell at Guwahati which has comparatively less workload. Accordingly, 44436 Capt Sangeeta Tyagi has already been posted as OIG Cell for AFT Bench at Guwahati. Further, if the offer is considered for superannuation from Guwahati, his total tenure would be 45 months which is not desirable as per posting norms. 5. Having analysed the case with due deliberation, considering all relevant facts, as directed by the Honourable Guwahati High Court, the competent auth has approved that Col (TS) MS Yadav be posted as AJAG HQ Northern Comd as earlier ordered in overall org interest. Necessary orders intimating a fresh reporting date are being issued shortly. 6. With the above posting, the requirement of the offr to retain his Field Area Family Accommodation at Delhi would also be met." 2. It is on the basis of this, the petitioner was directed to report for duty at the Northern Headquarter on or before 30.09.2013. 3. I have heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner and Mr. R. Sarma, learned ASGI for the respondents. 4. Mr. It is on the basis of this, the petitioner was directed to report for duty at the Northern Headquarter on or before 30.09.2013. 3. I have heard Mr. P.K. Roy Choudhury, learned counsel for the petitioner and Mr. R. Sarma, learned ASGI for the respondents. 4. Mr. P.K.R. Choudhury, learned counsel for the petitioner has drawn my attention to the transfer policy of the respondents issued on 19.05.1995. Under the heading of 'duration of tenure', it is provided in Clause-2(b) that in field areas, the approximate duration of tenure would be 2-3 years. By drawing my attention to the communication of the Headquarter to all the Commands issued on 30.07.1999, learned counsel has argued that as part of responsive officer management, the Military Secretary Branch has the practice of providing offer of last length of posting or penultimate leg of posting on compassionate ground in or near their home town or at actual place of settlement after retirement or wherever desired by the officer. The learned counsel has further relied on the communication dated 17.06.2013, issued by the Judge Advocate General department in this regard. It appears at Paragraph 3 of the said communication that there is 'indispensable' and urgent requirement to post an officer of the rank of Col (TS) or senior Lt. Col thereat the headquarter of the Northern Command. In the said communication, it was also pointed out that no officer of the rank of Lt. Col is posted in the office of Deputy JAG in the Northern command Headquarter. Thus, it appears from the said communication that the respondents are in need of posting an efficient officer in the Northern command headquarter. But by communication dated 26.07.2013, the order dated 17.06.2013 was cancelled by the authority. This according to the learned counsel for the petitioner was done against his interest and as such the impugned transfer order dated 05.09.2013 is vitiated on three grounds, namely, mala fide on the part of respondent No. 4 (Col. M.K. Ohri), violation of guidelines referred to above and above all contrary to the decision of the medical board in as much as the official medical board upon consideration of the health condition of the petitioner had issued certificate holding that petitioner is unfit for being posted at high altitude. M.K. Ohri), violation of guidelines referred to above and above all contrary to the decision of the medical board in as much as the official medical board upon consideration of the health condition of the petitioner had issued certificate holding that petitioner is unfit for being posted at high altitude. The proposed place of posting of the petitioner being at the Northern Command Headquarter at Udhampur, there is likelihood of health hazard to the petitioner because the said place is not only at high altitude but is also a place of extreme cold. 5. Per Contra, learned ASGI Mr. Sharma, submits that the petitioner has failed to furnish the factual matrix to make out a case of mala fide against the respondent No. 4, who is of the rank of Colonel like that of the petitioner and not his superior authority in any way. The impugned decision of transfer of the petitioner was taken by the higher authority and admittedly there is no allegation of mala fide against the higher authority. The ground of challenge on the question of mala fide, therefore, is non existent. 6. In regard to the objection as to non compliance of the guidelines for transfer, the learned counsel for the respondents submits that on the basis of the guidelines itself, the normal tenure in service in the field area is 2-3 years. Admittedly the petitioner has completed 2 years of posting at Guwahati and as such, after completion of the period of two years, his transfer out of Guwahati cannot in any way be deemed as deviation from the transfer guidelines. Learned counsel further submits that the last length of posting of the petitioner if made at Guwahati, this would amount to his posting for a period of more than three years at a station and the same would be contrary to the transfer policy. The petitioner is going to retire after 18 months, which virtually is almost a complete tenure and this is why after completion of the last tenure at Guwahati his transfer to another place is in conformity with the transfer guidelines. Besides, the petitioner made a prayer for his posting at Delhi which apart from being his place of permanent residence is also his place of future settlement as is pointed out in his earlier representation. Besides, the petitioner made a prayer for his posting at Delhi which apart from being his place of permanent residence is also his place of future settlement as is pointed out in his earlier representation. Guwahati can neither be a place of choice for him nor was it his place of choice even in his prayer made in representation dated 30.06.2012. His posting at Delhi was not possible in view of the fact that he had been allowed to stay at Delhi for considerably long period at a stretch from 2002 and as such his prayer for last length of posting at Delhi could not be accepted. Even the petitioner was aware that such a posting at Delhi by way of last length of posting could not be feasible. On the other hand, the office of the Northern Command at Udhampur has no senior officer of the rank of Lt. Col, for which presence of efficient officer like the petitioner at such place was in the interest of service. The impugned order dated 05.09.2013 itself shows that there is heavy work load at Northern Command Headquarter whereas the workload at Guwahati is comparatively light. 7. Coming to the 3rd objection of the writ petitioner in regard to his health condition, the respondents submit that Udhampur being the Headquarter of the Northern Command is not a very high altitude zone. It is situated at Jammu and not in a hard area like Kashmir Valley. Relying on the computer generated papers submitted by the learned counsel for the petitioner as to topography, climatic condition and other details of Udhampur, the learned counsel for the respondents submits that in view of the said reports, the posting of the petitioner at Udhampur would not be contrary to the report of the medical board. On all these submissions, the learned counsel for the respondents has offered the records on the basis of which the impugned order of transfer and posting of the petitioner was made. The learned counsel for the respondents has submitted that there is neither any mala fide nor any illegality in issuance of the transfer order. There is no violation of the transfer guidelines. Rather, it is apparent from the impugned order itself that the petitioner would get the benefit of field area family accommodation at Delhi, which would be beneficial for his family members including his ailing and old aged mother. There is no violation of the transfer guidelines. Rather, it is apparent from the impugned order itself that the petitioner would get the benefit of field area family accommodation at Delhi, which would be beneficial for his family members including his ailing and old aged mother. Above all, posting of the petitioner at Northern Command was in administrative exigency and for public interest. 8. After hearing the learned counsel for the parties and on perusal of the materials available on record, it appears that allegation of mala fide against the respondent No. 4 is devoid of adequate factual matrix. An allegation of mala fide has to be made placing reliance on sufficient materials. Here in this case, order has neither been passed by the respondent No. 4 nor is he a superior authority to the petitioner. It is not the case of the petitioner that the superior authority who ultimately took the decision of his transfer had any ill motive against him. In that view of the matter, the objection on the ground of mala fide is not sustainable. 9. Coming to the question of violation of the guidelines, it appears that on the phase of the guidelines provided for a normal tenure at field area for 2-3 years. The petitioner having completed the tenure of 2 years is liable for transfer in terms of the guidelines itself provided his posting elsewhere is required by the authority in administrative exigency. The objection of the learned counsel for the respondent that allowing the petitioner to continue at Guwahati for the remaining 18 months of his service would result in violation of the guidelines, appears to be of substance inasmuch as in that event the petitioner would be at same station for 45 months whereas, no posting can be made at a place for a period more than 36 months even if the guidelines is taken as the yardstick. The prayer of the petitioner for allowing to remain for another period of 18 months at Guwahati, therefore, is not acceptable. 10. The documents produced by the petitioner in course of argument showing topographical and climatic condition of Udhampur does not show that the same is extremely high altitude area or that the said climate condition of the area would be really adverse to the health of the petitioner. 10. The documents produced by the petitioner in course of argument showing topographical and climatic condition of Udhampur does not show that the same is extremely high altitude area or that the said climate condition of the area would be really adverse to the health of the petitioner. After all, the petitioner is an officer of the Active Force and earlier he had occasion to work even in high altitude area at the Ladakh region. Besides, posting at Headquarter at Udhampur does not involve active and or hazardous service at all. After all, the petitioner is a member of the establishment of JAG, discharging duties relating to legal matters. 11. On consideration of materials available on record, it does not appear that there is any case of violation of any statutory guidelines and or mala fide in regard to transfer and posting of the petitioner by order dated 05.09.2013. On totality of circumstances stated above, there is no scope for judicial review in this case. Moreover, the impugned order itself shows the administrative exigency for transferring the petitioner to northern command. Writ petition is, therefore, devoid of any merit and the same is accordingly dismissed. However, considering the facts and circumstances of the case, there is no order as to cost.