High Court
Case Details
WP(C) 3876/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. P.K. Roy Choudhury, learned Counsel for the petitioner and Mr. R. Sharma, learned Assistant Solicitor General of India, who has also p roduced the record.
Legal Reasoning
In this writ petition, petitioner has challenged order of the In dian Army (MS-6) dated 29-06-2013 transferring him from Head Quarter 51 Sub Area to Head Quarter Northern Command. On 24-07-2013, the following order was passed:- (cid:28)Petitioner is presently serving at Head Quarter 51 Sub-Area at Guwahati in the Legal Cell as Additional Officer. His date of superannuation is 31-03-2005. He h as instituted a proceeding in the Armed Forces Tribunal at Guwahati relating to seniority and promotion. In OA No.8/2013 filed by the petitioner, the learned tr ibunal has passed an interim order on 22-02-2013 directing that no selection in JAG’s Department from the 1987 batch shall be made. Alleging non-compliance of s uch order, petitioner has filed a contempt application wherein the learned tribu nal passed an order on 17-05-2013 issuing notice and directing that one vacancy as per the select list should not be filled up.
Legal Reasoning
Petitioner had filed a miscellaneous application in the pending OA No.8/2013 con tending that the present respondent No.4 had himself moved petitioner’s file bef ore the higher authorities for a posting order to Northern Command, where he had already served for six years. It was contended that the said move was on accoun t of filing of the contempt application by the petitioner against the higher aut horities of the Defence establishment. On 20-05-2013, the present respondent No.4 appeared before the learned tribunal and denied the contention of the petitioner. He categorically stated that no suc h move, as apprehended, has been made. This is recorded in the order of the lear ned tribunal dated 20-05-2013. In the meanwhile, the respondents moved an application before the learned tribun al to re-call order dated 07-05-2013 in the contempt application whereby notice was issued and one vacancy was directed not to be filled up. The learned tribuna l, however, by order dated 03-06-2013 rejected the said application. Some other cases have also been filed by the petitioner before the learned tribu nal, which are pending, a detailed reference to which may not be necessary at th is stage. Then came the impugned order dated 29-06-2013. Learned counsel for the petitioner submits that the impugned order has not been passed bonafide. It has been passed to harass the petitioner for filing contempt application against the highest defence authorities. Moreover, respondent No.4 had given a solemn undertaking before the learned tribunal that there is no such move to transfer the petitioner. Respondents have filed counter affidavit denying the allegations made by the pet itioner. It is contended that the present transfer / posting order is a routine one since the petitioner has completed his normal tenure at Guwahati. Impugned p osting has no connection with the ongoing litigation before the tribunal. Postin g of the petitioner at Udhampur is necessary in organizational interest. Respond ent No.4 has produced two folders relating to the posting of the petitioner. Having regard to the above, particularly in view of the undertaking given by the respondent No.4 before the learned tribunal as recorded in the order dated 20-0 5-2013, I am of the view that the matter would require examination in some more detail. Issue notice returnable on 21-08-2013 (Wednesday). No formal notice is required as the respondents are already representated. Till the returnable date, the present posting of the petitioner at Head Quarter 51 Sub-Area, Guwahati shall be maintained. Case will be taken up for disposal on the returnable date. The two folders produced by respondent No.4 are returned back. List accordingly on 21-08-2013 (Wednesday). (cid:29) s listed today for delivery of order. Accordingly, case was listed yesterday when it was heard. Case i Mr. P. K. Roy Choudhury, learned Counsel for the petitioner refe rring to the re-joinder affidavit filed by the petitioner on 21-08-2013 submitte d that the Judge Advocate General’s (JAG) Department had written to MS-6 on 26-0 7-2013 stating that application of the petitioner for last leg posting may be pr ocessed as per extant policy since management of officer’s service/posting is th e sole discretion of MS Branch. In view thereof, it is stated that the earlier l etter dated 17-06-2013 be treated as cancelled. By the said letter dated 17-06-2 013, posting of an officer of the rank of Col.(TS) or Sr. Lt. Col. in the office of Deputy JAG in the Northern Command was urgently sought for. It was on such r equirement, petitioner’s posting at Udhampur in the Northern Command was made. H e therefore, submitted that the very basis for issuance of the impugned transfer order being no longer present, there would be no justification to transfer out the petitioner. Mr. Sharma, learned Assistant Solicitor General on the other han d submits that there is no malafide in the impugned transfer of the petitioner. Petitioner cannot be posted at Delhi as he had served in Delhi for about 6(six) years. Keeping him in Guwahati may not be viable as he has filed a number of cas es against the army authorities in the Armed Forces Tribunal at Guwahati where h e is required to defend the cases on behalf of the army authorities. Submissions made have been considered. Also perused the record. There is no dispute that petitioner would be retiring from servi ce on attaining the age of superannuation on 31-03-2015. It was also noticed in the previous order that respondent No.4 had stated before the Armed Forces Tribu nal at Guwahati on 20-05-2013 that there was no move to post the petitioner at N orthern Command. However, according to Mr. Sharma, what the respondent No.4 mean t by saying so was that he was not involved in any such move. Be that as it may, now the letter dated 26-07-2013, as referred to above, has been placed on recor d. Having regard to the fact that petitioner would be retiring from service on attaining the age of superannuation on 31-03-2015, which is less tha n 20 (twenty) months away, and considering the letter dated 26-07-2013, the Cour t is of the view that the respondents should reconsider the prayer of the petiti oner for a posting of his choice. Accordingly, without expressing any opinion on merit, the respondents, more particularly the respondent No.5, is directed to r e-consider the prayer of the petitioner and pass a fresh order taking into consi deration all relevant factors within a period of 3 (three) weeks from today. Til l such time, the interim order passed on 24-07-2013 shall continue. Needless to say, such decision taken should be communicated to the petitioner. Record produced by Mr. Sarma is returned back.