Bhavani Prasad vs Union Of India & Ors

Amrita Sinha, J

The petitioner is an Airman posted at Kolkata. He is aggrieved by the order dated 31st July 2019 rejecting his prayer for posting at Delhi.

According to the petitioner, his wife is undergoing continuous medical treatment at the All India Institute of Medical Science, Delhi since May 2018 and due to her medical condition she is in constant need of care and support of her family members. The stay of the petitioner at Delhi is indispensable to cater to the medical needs and well-being of his wife.

The prayer of the petitioner for posting at Delhi was refused on the ground that the said application was not made within one year of posting. According to the petitioner, he was posted initially at Kolkata on 9th March 2015 under a different authority and on 27th July 2018 the petitioner was again re-posted at Kolkata under a separate authority. The petitioner submits that the date of his posting ought to be taken as 27th July 2018 and the application for choice posting was made on 8th April 2019, well within the period of one year.

The petitioner submits that he is entitled to be considered in accordance with the amended policy on postings in respect of an Airman dated 22nd July 2014. According to the said policy an Airman may apply within the first year of posting requesting his superannuation choice. The same may be considered if there is very extra-ordinary ground to justify the same.

According to the petitioner, the medical emergency of his wife is an extra ordinary ground that is required to be taken into account by the respondent authorities for considering his prayer for choice posting. The petitioner submits that the said facility is available only once in the service career of an airman and the petitioner will file an undertaking, as per policy, that he will never pray for choice posting afterwards.

The petitioner submits that he has been transferred to Bhuj and a clearing certificate has been issued directing him to join his place of posting at Bhuj on 13th August 2019.

The petitioner relies upon an unreported order dated 10th December 2018 delivered by a learned Single Judge of the High Court at Madras in the matter of Hav B. Sakthivel -vs- Union of India & Ors., para 6.2 wherein the court held that the policy of the last leg tenure posting is a recognition that a member of Armed Force, who has served the country well and has spent more than 50 per cent of the tenure in non-family stations is entitled to settle his personal affairs before he retires, so that, post retirement he can live in peace. The purpose behind last leg posting at a place of choice is that the member of the force can find an accommodation where he can live peacefully in the twilight of his life.

The petitioner submits that the choice posting can only be availed of in the last leg tenure of the service career of an airman and accordingly the petitioner ought to be allowed his choice place of posting.

The learned advocate appearing on behalf of the respondents submit that the amended policy on posting specifically mentions that application for such choice posting has to be made within the first year of posting. The petitioner was first posted on 9th April 2015 and accordingly he ought to have made the application within his first year. As per the amended policy application filed beyond one year cannot be taken into consideration.

The respondents rely upon a judgement delivered by the Hon'ble Supreme Court of India in the matter of Major General J.K. Bansal -vs- Union of India & Ors. reported in (2005) 7 SCC 227 para 12 wherein it has been mentioned that the authorities ought to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.

The petitioner in reply submits that the judgement referred to by the respondents will not be attracted in his case as the petitioner has an exceptionally strong case of medical emergency of his wife. His prayer is liable to be considered on medical grounds.

I have heard the submissions made on behalf of both the parties.

As per the amended policy of posting an Airman is to apply for choice posting within one year of posting. The petitioner was initially posted at Kolkata on 9th March 2015 and thereafter re-posted at Kolkata on 27th July 2018. There is no reason as to why the date of re-posting cannot be treated as the date of fresh posting. Had the petitioner been posted at a different place on the 27th July 2018 then he would have got the opportunity to avail the benefit of the amended policy. Only because of the reason that the petitioner was re-posted at Kolkata, the benefit of availing his choice posting within a year of posting cannot be taken away. The date of re-posting of the petitioner at Kolkata ought to be taken as his date of posting. In that event the prayer of the petitioner made on 8th April 2019 will fall within the period of his first year of posting and the authority is liable to consider the same in accordance with the amended policy of posting.

The amended policy of posting also takes care of extra-ordinary requirement for arriving at a decision with regard to the prayer of choice posting of an Airman.

The petitioner has contended that his wife is suffering from medical emergency and is under continuous treatment at AIIMS, Delhi. The presence of the petitioner as husband is very vital and required for the support and care of an ailing wife. The respondents ought to consider the prayer of the petitioner as an extra ordinary ground requesting posting at Delhi.

The order impugned was passed without appreciating that fact that the petitioner made his application within one year from the date of his posting on 27th July 2018 and without taking into consideration the extra ordinary ground made out by the petitioner. The impugned order dated 31st July 2019 is accordingly set aside.

In view of above, the instant writ petition is disposed of directing the respondent no. 2 being the Air Officer Commanding, Air Force Record Office, Subroto Park, New Delhi to reconsider the prayer of the petitioner treating the same to be made within a period of one year from his date of posting on the 'extra ordinary ground justifying requirement'. The said respondent shall consider the same within a period of seven days and shall pass a reasoned order and communicate the same to the petitioner within two days thereafter.

The respondent authorities will not take any coercive steps against the petitioner to join his transferred place of posting at Bhuj for a week after the date of communication of the reasoned order.

It is made clear that this court has not gone into the merits of the extra ordinary ground made out by the petitioner and the same is left open to be considered by the said respondent at the time of consideration of his prayer.

W. P No. 15199 (W) of 2019 is disposed of.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.