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2019 DIGILAW 1183 (KAR)

K. Sree Harihara Murthy v. Union Of India

2019-06-11

S.G.PANDIT

body2019
JUDGMENT : S.G. Pandit, J. Since both the petitions are between the same parties and as both the petitions involve common facts, with the consent of the counsel for both the parties, taken up for final disposal. 2. Writ Petition No.106076/2019, is filed praying to quash Annexure-D dated 06.02.2019 by which the petitioner is posted from GE(I) Belgaum, to No.3. Training Centre, MEG & Centre, Bangalore, till the disposal of the case before the High Court. 3. Writ Petition No.111551/2017, is filed praying to quash Annexure-K dated 17.11.2017 by which the petitioner is posted from GE(I) Belgaum to 4 Engr. Regiment, which is said to be a placed near Calcutta. 4. The petitioner is working in Indian Army since the year 1988. He was promoted as Subedar Major in the year 2015. It is stated that the petitioner has worked at various places all over the country. The petitioner was posted to work at GE(I) Belgaum in the year 2014 from AFT Delhi. The guidelines for transfer and posting of the respondents provides for Last Leg Postings. The respondents have produced extract of guidelines for transfer and posting. Clause 67 of the said guidelines for transfer and posting reads as follows; 67. Last Leg Posting is restricted for two years only. Commanding Officers/Officers Commanding units should recommend only genuine cases for consideration by Record Office. The number of JCOs/OR on last leg posting will not exceed 10% of the auth str of centre units. Individuals due to retire on superannuation/completion of service limits/terms of engagement/tenure and who have had not more than one South tenure, may be considered for posting to a station of their choice subject to availability of vacancies. Application will be submitted to Record Office through proper channel six months in advance before completion of tenure. This concession will not be claimed as right. Request for such posting will be considered if administratively feasible, subject to availability of vacancies. Guidelines as enumerated below will be followed strictly while recommending last leg posting cases:- (a) An individual is eligible for last leg posting on clear balance of 2 ½ year of service. (b) ERE to ERE posting will not be entertained. (c) Personnel who have served in a particular station will not be considered for reposting to the same station or nearby area within six years. (b) ERE to ERE posting will not be entertained. (c) Personnel who have served in a particular station will not be considered for reposting to the same station or nearby area within six years. (d) Individual applying for last leg posting should not be stand posted to other unit/establishment prior to their submission of application to Record Office i.e, the date of receipt at Record Office. (e) An individual should give three choice stn for last leg posting but particular unit/test should not be mentioned in application . 5. The reading of the above clause would indicate that last leg posting is restricted for two years only and the person who is due to retire on superannuation/completion of terms of engagement/tenure and who has not more than one South tenure may have to be considered for posting to a station of their choice subject to availability of vacancies. 6. The petitioner had made representation dated 23.02.2017 for Last Leg Posting. In the application, the petitioner had stated that his son K. Venkat Sree Sai, aged 10 years was diagnosed as "Hypogonadotropic Hypogonadism" by the Northern Command Hosptial, Udhampur. As the said disease requires continuous treatment, he sought for posting at Visakhpatnam, Secudnerabad or Chennai. The said request was strongly recommended by the Commanding Officer. It is stated that respondent No.3, without giving any reasons rejected the petitioner's request and the same was communicated by letter dated 05.05.2017. Thereafter, the petitioner was posted to Unit No.4, Engr. Regiment which is said to have been stationed near Calcutta by order dated 07.08.2017. Being aggrieved by the posting under order dated 07.08.2017, the petitioner approached this Court in W.P.No.109024/2017. This Court by order dated 13.09.2017, disposed off the writ petition by quashing the order of posting dated 07.08.2017 and also the endorsement dated 05.05.2017, wherein the petitioner's request for last leg posting was rejected. The respondent No.3 was directed to consider the application filed by the petitioner for last leg posting afresh by giving him an opportunity. Thereafter, the respondent No.3, by letter dated 17.11.2017, Annexure-K turned down the request of the petitioner and confirmed the posting given to the petitioner at Unit-4, Engr Regiment. The said communication is under challenge in writ petition No.111551/2017. 7. This Court by order dated 08.12.2017, directed the respondent No.3 not to give effect to the order at Annexure-K dated 17.11.2017. Thereafter, the respondent No.3, by letter dated 17.11.2017, Annexure-K turned down the request of the petitioner and confirmed the posting given to the petitioner at Unit-4, Engr Regiment. The said communication is under challenge in writ petition No.111551/2017. 7. This Court by order dated 08.12.2017, directed the respondent No.3 not to give effect to the order at Annexure-K dated 17.11.2017. Thereafter, to comply the said interim order and to give posting in Southern Region, the petitioner was posted to No.3, Training Batallion, MEG & Centre, Bangalore. But the said order is till the disposal of writ petition No.111551/2017. Being aggrieved by the said order, the petitioner is before this Court in writ petition No.106076/2019. 8. This Court by an interim order dated 04.06.2019, directed the respondents to relieve the petitioner from GE(1) Belagavi and directed the petitioner to report at the place of posting at No.3 Training Battalion MEG and Centre, Bangalore. 9. Both the counsels appearing for the petitioner and respondents submit that the petitioner was relieved from his duties at GE(1) Belagavi and the petitioner reported to duty at No.3 Training Battalion MEG and Centre on 08.06.2019. Annexures-B and C, marching order and warning order would indicate that the petitioner would retire from service on 30.09.2019. In view of the joining of petitioner at Bangalore, the only question remains to be considered is; Whether the petitioner is entitled to continue at Bangalore till his retirement on attaining the age of superannuation on 30.09.2019? 10. It is not in dispute that the petitioner would retire on attaining the age of superannuation on 30.09.2019. The petitioner's son is suffering from "Hypogonadotropic Hypogonadism" as certified by Northern Command Hospital, Udhampur. The said disease requires continuous treatment for his son. The place at which the petitioner is posted i.e. Bangalore would be ideal place for getting treatment to his son. Clause 67 of guidelines for transfer and posting provides for posting of persons who have only two years of service to seek posting of their choices and they have to submit their application through their unit head. It is clear from the representation Annexure-A, the Commanding Officer of the petitioner has strongly recommended the case of the petitioner. 11. Clause 67 of guidelines for transfer and posting provides for posting of persons who have only two years of service to seek posting of their choices and they have to submit their application through their unit head. It is clear from the representation Annexure-A, the Commanding Officer of the petitioner has strongly recommended the case of the petitioner. 11. Without going into the merits of the case as to whether there is any discrimination or otherwise, taking note of Clause 67 of Guidelines for transfer and posting, the respondents shall consider the case of the petitioner and shall continue the petitioner at Bangalore till he attains the age of superannuation i.e. on 30.09.2019. Moreover, the petitioner has served all over India on earlier occasions and he has been posted to Belagavi in the year 2014. The petitioner has left with three months service. At the fag end of his service it may not be proper to post the petitioner to a very distant place. The continuance of the petitioner at MEG Centre, Bangalore, would enable the petitioner to retire peacefully after serving for more than 30 years. Annexure-K relied on by the respondents would have no application to the facts of the present case, since in Annexure-K the petitioner had served only in Southern Region for more than 22 years. Taking into consideration the said aspect that the petitioner had served in Southern Region for more than 22 years, this Court had rejected his request. Taking note of the factual position that the petitioner is having only three months of service, the respondents shall continue the petitioner at Bangalore till his retirement i.e. 30.09.2019. With the above observation both the writ petitions are disposed of. In view of the disposal of the petitions, IA.No.1/2019 in W.P.No.111551/2017 would not survive for consideration.