Captain Santhosh vs Union Of India And Ors

Heard Mrs. Rinku Bhakat, the learned counsel appearing on behalf of the petitioner and Mr. Rajiv Sinha, the learned A.S.G.I appearing on behalf of the respondent-Union of India.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioner has preferred this writ petition for quashing of the order dated 06.08.2020 as contained in Annexure-5 whereby the petitioner has been transferred from NTS 17665M at Military Hospital, Namkum to MH Hisar Company Commander. The further prayer is made for a direction for stay of the said impugned order.

The petitioner was initially recruited as Jawan on 01.04.2010 and thereafter the petitioner was appointed as Lieutenant after being commissioned and recommended to be appointed as Officer under the provision of Short Service Commission. On 18.03.2018, the petitioner was appointed as Lieutenant for five years. The petitioner is being posted as last posting and therefore under the provision of Policy/ Rules/ Guidelines of DGMS, the petitioner should have been given choice of posting that too near his home.

The learned counsel for the petitioner assailed the impugned order on the ground that the petitioner has received injury and his leg got fractured and for which he was operated. Therefore, the extension of service of the petitioner is not feasible and the petitioner is going to retire in 2 ½ years. She further submits that in view of the policy/ rules/ guidelines as contained in Annexure-1 to the writ petition, the petitioner is entitled to be remained at the present place of posting as the petitioner is going to retire in 2 ½ years. She refers to the Regulation 37 and submits that it is clearly stated in the said Regulation 37 for last tenure postings 2 to 3 years if the vacancy is there the petitioner is entitled for remaining in the present place of posting. She refers to the last paragraph of the said regulation and submits that this regulation says that service commissioned officers serve the organization for a limited period only and hence grant of a last tenure posting will not be considered in their first contractual period. She further submits that the first contractual period of the petitioner is already over and the petitioner's case is fit to be considered under Regulation 37 of the Policy Guidelines. She submits that the petitioner is a young person and he requires to settle in civil side and for that the petitioner has preferred the representation.

Per contra, Mr. Rajiv Sinha, the learned A.S.G.I appearing on behalf of the respondents, at the outset, submits at Bar, that the application preferred by the petitioner on 06.08.2020 and 07.08.2020 have been considered by the competent authority and the request of the petitioner has already been rejected by letter dated 28.08.2020. He further draws the attention of the Court towards Regulation 31 and submits that the application can be considered on the ground mentioned therein whereas the application brought by the petitioner before the authority was on the different ground. For the sake of convenience, Regulation 31 of the Policy Guidelines is quoted hereinbelow:

"Postings on Applications

Applications from officers for posting will be considered for the following purposes:

(a) Posting on compassionate grounds

(b) Last tenure postings

(c) Extension of tenures

(d) Cancellation of postings

(e) Deferment of postings"

He further refers to Regulation 37 and submits that the regulation is subject to certain riders. He submits that it is required to be considered on case to case basis and it is clearly stated in the regulation that it is not a matter of right. For ready reference, Regulation 37 is quoted hereinbelow:

" Last Tenure Posting

Officers may apply for the last tenure postings 2 to 3 years before their date of retirement. A viable tenure in the station of choice will be ensured before submission of the same. Applications will be considered subject to availability of vacancy/service requirement. Last tenure posting will neither be combined with present places of posting nor considered to a station where the officer has served in the preceding tenure. Last tenure postings will be considered on a case to case basis and should not be construed as a matter of right. Short Service Commissioned officers serve the organization for a limited period only and hence grant of a last tenure posting will not be considered in their first contractual period."

He further refers to Regulation 39 of the Policy Guidelines and submits that in view of this, requests for cancellation will normally be entertained only in exceptional circumstances. Regulation 39 is quoted hereinbelow :

"Cancellation of postings

It must be appreciated that postings are issued after due consideration of the org requirements and the offr's personal profile available with this Dte Gen. Cancellations result in disruption of the chain of movement of offrs resulting in avoidable delays and voids. Hence, requests for cancellation will normally be entertained only in exceptional circumstances. If however it is felt that such representations need to be considered in view of any special/peculiar nature of the case arising after issue of the posting order, these may be expeditiously forwarded along with appropriate recommendations. Once the application is regretted by this Directorate General no reconsideration will be done.

Lastly, he draws the attention of the Court to Annexure-6/1 dated 08.08.2020 which is the representation of the petitioner before the competent authority and submits that in view of the Regulation 31, no ground of that regulation is there and in that view of the matter, the case of the petitioner cannot be considered in view of the rules, regulations and guideline relied by the petitioner. Lastly, he relied in the case of "Major General J.K. Bansal v. Union of India and Others" reported in (2005) 7 SCC 227. Paragraph nos. 11 and 12 of the said judgment is quoted hereinbelow:

"11. Similar view has been taken in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan3 wherein it has been held that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the Appellate Authorities substituting their own decision for that of the management.

It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities 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."

Having heard the learned counsels appearing for the parties and after going through the submissions of the learned counsel for the petitioner as well as the respondent-Union of India, the Court finds that Regulation 31 of the Guidelines prescribes certain grounds on which the application can be considered. None of the grounds provided in Regulation 31 is there has been taken by the petitioner for cancellation of his posting. Regulation 37 on which the petitioner has also relied is applicable with certain rider which says that the application will be considered subject to availability of the vacancies and service requirement. The regulation further says that the first tenure posting will neither be combined with the present place of posting nor considered to a station where the officer has served in the preceding tenure. Regulation 39 says that the requests for cancellation will normally be entertained only in exceptional circumstances. Regulation 37 further provides that it is not a matter of right. The judgment relied by the learned counsel appearing for the respondent-Union of India is applicable in the facts and circumstances of this case. The Hon'ble Supreme Court has considered this aspect of the matter interference by the Court in regard to members of armed forces is limited and narrow, moreover, the petitioner has not make out a case for interference in view of the rules/regulations on which the petitioner has relied also. The Court has perused the Annexure-6/1 which is a representation of the petitioner in which the posting on the ground of his at Regulation 31 is not there.

The request of the petitioner has already been rejected as submitted by Mr. Rajiv Sinha, the learned counsel appearing for the respondent-Union of India, at Bar, and as a cumulative effect of the above discussions, the Court comes to a conclusion that no case of interference is made out, and accordingly, the writ petition [W.P.(S) No. 2380 of 2020] stands dismissed.