High Court
Case Details
WP(C) 5227/2013 BEFORE HON’BLE MR. JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (CAV)
Legal Reasoning
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 Milita ry 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 C ommand Headquarter. 2. The petitioner entered service in the permanent Commission as Second Lie utenant 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 therea fter in course of successive promotions got finally promoted to the rank of Lieu tenant 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 feas ible. It appears that the petitioner has his permanent residence at Delhi and th is is why his primary interest was to be posted at Delhi by his last length of p osting. On 30.06.2012, the petitioner had made his prayer for posting at Delhi s o that he could find out post retirement accommodation for his resettlement. Apa rt from that such posting would help him to resolve some of his major domestic i ssues 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 p etitioner in the office of Judge Advocate General at Northern Command Headquarte r and he was directed to report for duty on 18.07.2013. The petitioner challenge d 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 th e 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. I t 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 th e 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 Dece mber 2002 to November, 2006 for 47 months at a stretch and he also availed his s tudy leave at Delhi during the period from September, 2009 to June, 2011. The au thority has further observed in the impugned order that the petitioner having co mpleted 26 months in Headquarter of 51 Sub Area (Legal) at Guwahati, his transfe r out of the station has become due. It is further observed in the order as foll ows:- (cid:28)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 e fficient functioning of the HQ. Moreover, the posting of Col (TS) MS Yadav had b een earlier issued in conformity with the posting norms issued by JAG’s Dept. Se rvices of a senior and experienced offr like Col (TS) MS Yadav shall be benefici al to the legal requirements of HQ Northern Comd vis-à-vis AFT Cell at Guwahati which has comparatively less workload. Accordingly, 44436 Capt Sangeeta Tyagi ha s already been posted as OIG Cell for AFT Bench at Guwahati. Further, if the off r is considered for superannuation from Guwahati, his total tenure would be 45 m onths which is not desirable as per posting norms. 5. Having analysed the case with due deliberation, considering all relevant fac ts, as directed by the Honourable Guwahati High Court, the competent auth has ap proved that Col (TS) MS Yadav be posted as AJAG HQ Northern Comd as earlier orde red 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. (cid:29) 3. It is on the basis of this, the petitioner was directed to report for du ty at the Northern Headquarter on or before 30.09.2013.
Legal Reasoning
I have heard Mr. P.K. Roy Chudhury, learned counsel for the petitioner a 4. nd Mr. R. Sarma, learned ASGI for the respondents. 5. Mr. P.K. R. Choudhury, learned counsel for the petitioner has drawn my a ttention to the transfer policy of the respondents issued on 19.05.1995. Under t he 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 atte ntion to the communication of the Headquarter to all the Commands issued on 30.0 7.1999, learned counsel has argued that as part of responsive officer management , the Military Secretary Branch has the practice of providing offer of last leng th of posting or penultimate leg of posting on compassionate ground in or near t heir home town or at actual place of settlement after retirement or wherever des ired 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 regar d. It appears at Paragraph 3 of the said communication that there is ’indispensi ble’ 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 communica tion, it was also pointed out that no officer of the rank of Lt. Col is posted i n 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 effi cient 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 accord ing 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 ground s, 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 me dical board in as much as the official medical board upon consideration of the h ealth condition of the petitioner had issued certificate holding that petitioner is unfit for being posted at high altitude. The proposed place of posting of th e petitioner being at the Northern Command Headquarter at Udhampur, there is lik elihood of health hazard to the petitioner because the said place is not only at high altitude but is also a place of extreme cold. 6. Per Contra, learned ASGI Mr. Sharma, submits that the petitioner has fai led to furnish the factual matrix to make out a case of mala fide against the re spondent 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 pet itioner 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 questi on of mala fide, therefore, is non existent. 7. In regard to the objection as to non compliance of the guidelines for tr ansfer, 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 s uch, after completion of the period of two years, his transfer out of Guwahati c annot in any way be deemed as deviation from the transfer guidelines. Learned co unsel 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 ye ars at a station and the same would be contrary to the transfer policy. The peti tioner 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 trans fer 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 pl ace 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 da ted 30.06.2012. His posting at Delhi was not possible in view of the fact that h e had been allowed to stay at Delhi for considerably long period at a stretch fr om 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 l ast length of posting could not be feasible. On the other hand, the office of th e 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 th e interest of service. The impugned order dated 05.09.2013 itself shows that the re is heavy work load at Northern Command Headquarter whereas the workload at Gu wahati is comparatively light. 8. Coming to the 3rd objection of the writ petitioner in regard to his heal th 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 n ot 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 Udha mpur would not be contrary to the report of the medical board. On all these subm issions, 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 neithe r any mala fide nor any illegality in issuance of the transfer order. There is n o 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 acc ommodation 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. 9. 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 t he respondent No.4 is devoid of adequate factual matrix. An allegation of mala f ide 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 author ity to the petitioner. It is not the case of the petitioner that the superior au thority who ultimately took the decision of his transfer had any ill motive agai nst him. In that view of the matter, the objection on the ground of mala fide is not sustainable. 10. Coming to the question of violation of the guidelines, it appears that o n 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 tran sfer in terms of the guidelines itself provided his posting elsewhere is require d by the authority in administrative exigency. The objection of the learned coun sel 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 guidelin es, appears to be of subsistence 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. T he prayer of the petitioner for allowing to remain for another period of 18 mont hs at Guwahati, therefore, is not acceptable. 11. The documents produced by the petitioner in course of argument showing t opographical and climatic condition of Udhampur does not show that the same is e xtremely 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 petitio ner is a member of the establishment of JAG, discharging duties relating to lega l matters. 12. On consideration of materials available on record, it does not appear th at there is any case of violation of any statutory guidelines and or mala fide i n 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 i n this case. Moreover, the impugned order itself shows the administrative exigen cy for transferring the petitioner to northern command. Writ petition is, therefore, devoid of any merit and the same is accordi 13. ngly dismissed. However, considering the facts and circumstances of the case, th ere is no order as to cost.