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2018 DIGILAW 30 (MAN)

Dharamvir Singh v. Union of India

2018-06-19

N.KOTISWAR SINGH

body2018
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. N. Ibotombi, learned senior counsel assisted Mr. A. Rommel, learned counsel for the petitioner. Heard also Mr. S. Suresh, learned ASG for the Union respondents assisted by Col. Ajeen Kumar, Col. MS Legal, Army Headquarters, New Delhi. 2. The present petition has been filed seeking quashing of the letter dated 19.02.2018 by which the request made by the petitioner for Last Leg Posting at Mumbai was rejected by the authorities and order dated 07.03.2018 transferring the petitioner to Belgaum and speaking order dated 04.05.2018 issued by the army authorities. 3. The petitioner was transferred to Belgaum as an Additional Officer, Stn. HQ. Belgaum vide order dated 07.03.2018. Being aggrieved by the aforesaid transfer order dated 07.03.2018, the petitioner approached this Court by filing a writ petition, being W.P.(C) No. 276 of 2018 raising various grounds, which was disposed of by this Court on 05.4.2018 with a direction to the respondent authorities to consider the representation submitted by the petitioner on 28.03.2018 within a period of one month by issuing a speaking order and it was also directed that till such disposal of the representation of the petitioner, the petitioner may be allowed to stay at the present place of posting as Officer Commanding, 2FID/3CISU (M Sector Imphal). 4. Pursuant to the aforesaid direction of this Court, the authorities issued a speaking order on 04.5.2018 which considered the various aspects of the issues raised by the petitioner and declined to review the earlier transfer order dated 07.03.2018 of the petitioner to Belgaum. Since the representation of the petitioner was rejected by the aforesaid speaking order, the petitioner was directed to proceed to the place of posting at Belgaum in terms of the order dated 07.03.2018. The said speaking order is challenged in this petition. 5. This is thus the second round of litigation whereby the petitioner has challenged the transfer order of the petitioner to Belgaum. Various grounds have been raised in this petition also including the competency of the authority which issued the speaking order dated 04.5.2018 rejecting the representation of the petitioner. The petitioner has also submitted about alleged irregularities in the recommendation of the Medical Board and the subsequent orders issued in this regard. Various grounds have been raised in this petition also including the competency of the authority which issued the speaking order dated 04.5.2018 rejecting the representation of the petitioner. The petitioner has also submitted about alleged irregularities in the recommendation of the Medical Board and the subsequent orders issued in this regard. However, this Court is of the view that it may not be necessary to deal with all the grounds raised in this petition, in view of the submission made by Mr. N. Ibotombi, learned senior counsel appearing for the petitioner that the petition can be disposed of by directing the army authorities to consider posting of the petitioner in the vicinity of Mumbai, in the light of the averment made by the respondents No. 1 to 5 in their affidavit filed on 01.6.2018 in the last paragraph of Para No. 11, which reads as follows:- ‘11. That, with reference to paragraph Nos. 9 and 10 of the Writ Petition, it is to submit that since the Petitioner was not coming up with options other than Mumbai and the fact that, his retention of accommodation invariably hampered chances of other genuine Officers for accommodation in station, he was asked to render a certificate for vacation of accommodation which would have enabled him to claim HRA while still not hampering chances of his peers in uniform for a rightful accommodation. However, the Petitioner chose to render a conditional certificate which was not acceptable. Any posting to field without vacation of accommodation would have again allowed him retention of accommodation at the cost of his brother officers. Further, it is also pertinent to mention here that the certificate dated 28-02-2018 marked ANNEXURE-A/6 (Colly) to the Writ Petition rendered by the petitioner was cancelled later on by the petitioner himself vide his letter dated 29-04-2018 marked ANNEXURE-B/3 to the present Affidavit. This fact has been concealed by the petitioner thereby committing suppression of material facts before the Hon'ble Court. It is also submitted that no guarantee was given to the Petitioner that he would be posted to Mumbai if he rendered the certificate. MS Branch would have considered the petitioner for another field/NMS in vicinity to meet his requirement of staying in Mumbai, if he had rendered the certificate.’ (emphasis added) 6. It is also submitted that no guarantee was given to the Petitioner that he would be posted to Mumbai if he rendered the certificate. MS Branch would have considered the petitioner for another field/NMS in vicinity to meet his requirement of staying in Mumbai, if he had rendered the certificate.’ (emphasis added) 6. However, before considering the said plea of the petitioner, certain clarifications will be required to be made relating to the aforesaid averment made by the petitioner. It seems during the consideration of the petitioner's request for Last Leg Posting at Mumbai and for review of the transfer order to Belgaum, the army authorities directed the petitioner on 27.02.2018 to give an undertaking of his willingness for vacation of accommodation at Mumbai due to long retention case. In terms of the aforesaid advisory of the authorities issued on 27.02.2018, the petitioner submitted a Certificate on 28.02.2018 stating that he was completing his tenure in June, 2018 and his posting was under consideration and he was ready to vacate the married separated family accommodation in Colaba and shift his family in a rented house in case of non availability of government married accommodation at Colaba (Mumbai). Mr. N. Ibotombi, learned senior counsel submits that he had submitted the aforesaid Certificate on 28.02.2018 in anticipation of a favourable consideration of his LLP and retaining his posting at Mumbai. However, the authorities issued the impugned order dated 07.3.2018 whereby the petitioner was directed to be transferred to Belgaum. He submits that in view of the aforesaid decision of the authorities to transfer him to Belgaum and considering that the earlier undertaking given by him on 28.2.2018 had become redundant, he withdrew the aforesaid Certificate by informing the authorities that the said Certificate be treated as cancelled vide his letter dated 29.4.2018 (Annexure-B-3). He accordingly submits that the aforesaid information given on 29.4.2018 to treat his earlier letter dated 28.02.2018 as cancelled was persuaded by the fact that the authorities did not consider his request for retention of posting at Mumbai as he was transferred to Belgaum as mentioned above. However, the respondent authorities in their affidavit filed on 1.6.2018 stated in para No. 11 that the certificate dated 28.2.2018 given by the petitioner was cancelled later on by the petitioner himself on 29.4.2018, which fact had been concealed by the petitioners. However, the respondent authorities in their affidavit filed on 1.6.2018 stated in para No. 11 that the certificate dated 28.2.2018 given by the petitioner was cancelled later on by the petitioner himself on 29.4.2018, which fact had been concealed by the petitioners. It was not only alleged that the petitioner had concealed material facts but also suggested that if the petitioner had not withdrawn the said certificate, the authorities could have considered for posting at another field/NMS in the vicinity to meet his requirement of staying in Mumbai as mentioned above. 7. Mr. Ibotombi, learned senior counsel further submits that the affidavit filed by the respondents authorities in para No. 11 stating that the petitioner chose to cancel the conditional certificate which was not acceptable is not proper. He submits that the petitioner never gave any conditional undertaking. The authorities in their communication dated 27.02.2018 had clearly mentioned that as his request for LLP was considered, the petitioner should indicate his ‘WILLINGNESS FOR VACATION OF ACCN DUE TO LONG RETENTION CASE’. In response to the aforesaid direction of the army authorities, he stated in his certificate dated 28.02.2018 that ‘I am ready to vacate married separated family accommodation in Colaba and shift my family in rented house in case of non-availability of government married accommodation at Colaba (Mumbai)’ Mr. Ibotombi, Learned senior counsel for the petitioner submits that the aforesaid undertaking is very clear that he is willing to vacate the accommodation. He merely added that he will shift to a rented house in case of non-availability of government married accommodation, which according to him does not dilute in any way his undertaking given to the authorities of his willingness to vacate the family accommodation. Accordingly, Mr. Ibotombi submits that the aforesaid withdrawal letter dated. 29.4.2018 has to be understood in the proper context, which perhaps was not done by the authorities concerned. 8. This Court is of the view that it may not be necessary to examine the aforesaid issue raised in detail, in view of the submission made by Mr. Accordingly, Mr. Ibotombi submits that the aforesaid withdrawal letter dated. 29.4.2018 has to be understood in the proper context, which perhaps was not done by the authorities concerned. 8. This Court is of the view that it may not be necessary to examine the aforesaid issue raised in detail, in view of the submission made by Mr. N. Ibotombi, learned senior counsel for the petitioner that he will be agreeable to another field/NMS in the vicinity of Mumbai to meet his requirement of staying in Mumbai as the authorities themselves had indicated in their affidavit-in-opposition that if the petitioner had given the certificate as required and not cancelled the same, the authorities could have considered the petitioner's request for another field/NMS posting in the vicinity to meet his requirement of staying in Mumbai, as mentioned above in Para No. 11 of the affidavit-in-opposition filed by the respondent Nos. 1 to 5, quoted above. 9. This Court, having considered the entire aspects and explanation proffered by the petitioner as regards the issue of undertaking given on 28.02.2018 and subsequent cancellation letter dated. 29.4.2018, is of the view that the petitioner, in his quest for retaining the posting at Mumbai and as required, had given an undertaking as indicated in the Certificate dated 28.02.2018 that he was willing to vacate the family accommodation in Colaba. However, he also had expressed that he was willing to shift his family in a rented house in case of non availability of government married accommodation at Colaba (Mumbai). This Court is of the view that the said certificate dated. 28.02.2018 containing the aforesaid condition cannot render it to be a conditional Certificate in as much as he had already expressed his willingness in clear terms to vacate the family accommodation in Colaba and he had merely expressed that he is ready to shift his family in a rented house in case of non availability of government accommodation at Colaba (Mumbai). Therefore, the fact remains that the petitioner had expressed his willingness to vacate married separated family accommodation in Colaba in terms of the direction of the army authorities and he merely expressed that he will shift his family in a rented house in case of non availability of government married accommodation at Colaba (Mumbai). Certainly, he would have shifted to a rented house, if there was no availability of family accommodation at Colaba. Certainly, he would have shifted to a rented house, if there was no availability of family accommodation at Colaba. Thus, this Court is also of the view that it cannot be said to be a conditional certificate. 10. As regards the averments made in the affidavit-in-opposition filed by the respondents authorities that the petitioner had cancelled his undertaking given in the Certificate dated 28.02.2018, as also claimed by Mr. Ibotombi, learned senior counsel for the petitioner, such cancellation had to be seen in the context of the subsequent development which had taken place. If the petitioner had cancelled the said undertaking given earlier on the ground that his request for retention at Mumbai had not been acceded to by the authorities and the authorities had directed him to proceed to Belgaum, because of which, he withdrew the said Certificate, it cannot be said to be an unreasonable one. It seems to be a natural course adopted by him. Since the said cancellation of Certificate by the petitioner on 29.4.2018 was done after the petitioner was directed to proceed to Belgaum in terms of the order dated 7.03.2018, the aforesaid cancellation of his undertaking cannot be said to be during the period of consideration of his request for retention of posting at Mumbai. Accordingly, such subsequent cancellation could not have been taken into account by the authorities for denying further consideration for posting at another filed/NMS in the vicinity to meet his requirement of staying in Mumbai as stated in Para No. 11 of the affidavit-in-opposition of the Respondents No. 1 to 5. 11. As Mr. N. Ibotombi, learned senior counsel has submitted that since the authorities have made the averments in para No. 11 that the authorities would have considered the plea of the petitioner for posting in another field/NMS in the vicinity of Mumbai to meet his requirement of staying in Mumbai, if the petitioner had submitted the Certificate as required by the authorities, and since he remains committed to the aforesaid undertaking to vacate his family quarter in Mumbai, this writ petition can be disposed of with the direction to the respondents authorities to consider his request for posting in terms of the aforesaid averments made in Para No. 11 of the affidavit-in-opposition filed by the respondents by reviewing the posting at Belgaum. This Court has also specifically enquired from Mr. This Court has also specifically enquired from Mr. Suresh, learned ASG as to whether the authorities can undertake the aforesaid exercise in terms of the aforesaid averments made in Para No. 11, to which he has also expressed his agreement, stating that it is based on the averments made by the authorities themselves in their affidavit as mentioned above. 12. Accordingly, having heard the learned counsel for the parties and considering the materials on records, this Court is of the view that taking into account the earlier undertaking given by the petitioner in the Certificate on 28.02.2018 that he is willing to vacate the accommodation presently occupied at Mumbai, the authorities can consider his plea for posting in another field/NMS in the vicinity of Mumbai to meet his requirement of staying in Mumbai. Accordingly, the authorities are directed to reconsider posting of the petitioner to another field/NMS in the vicinity of Mumbai to meet his requirements of staying in Mumbai in terms of the averments made in last sub-para of Para No. 11 of the affidavit-in-opposition filed by the Respondents No. 1 to 5 on 01.06.2018, instead of transferring him to Belgaum. Upon passing of such fresh order of posting, the petitioner will immediately vacate the family accommodation occupied at Mumbai. This Court has passed this order based on the averments made in the affidavit-in-opposition filed by the respondents and also considering that the petitioner's mother is presently undergoing treatment in a Hospital at Mumbai and it is the Last Leg Posting of the petitioner who will be retiring in October, 2020, after which the issue of posting will not arise. Mr. Suresh submits that the authorities may be granted about four weeks to undertake the aforesaid exercise by issuing appropriate fresh posting order in terms of the order of this Court. It is permitted. 13. With the above observation and direction, the petition is disposed of. The earlier interim order stands merged with this final order.