Manas Piyush vs Union Of India

Dr. S.N. Pathak, J

Heard the parties.

The petitioner has approached this Court feeling aggrieved by the order dated 19th September, 2024 issued by the AIR Officer Commanding, AIR Force Record Office, New Delhi, by which he has been transferred from ANTF DET Ranchi to 13 BRD, New Delhi, with effect from 28th October, 2024 for trade duties.

It  may  be  stated  that  by  order  dated  03.10.2024,  the  transfer order dated 19th September 2024 was stayed by this Court.

Sans unnecessary details, the relevant facts are that the petitioner was enrolled in Indian Air Force as AIR Craftsman on 28.03.2007 and now is the holding the rank of Sergeant. At present, the petitioner is posted at ANTE DET Ranchi with effect from 22.11.2021 on compassionate grounds, as his father was died on 14.12.2020 and the petitioner being the only son, has to look into his domestic issues at Bhagalpur, Bihar. It is case of the petitioner that he was transferred to be posted at 35 Wing, AIR Force, Suratgarh just staying him at Ranchi for a tenure of two years. Thereafter, the petitioner submitted his discharge application on 22.6.2023 stating the various grounds including the ground of illness of his mother and domestic issues, but his discharge application was returned back vide order dated 23.8.2023 with observation that he can apply for discharge after completion of six months at the next tenure. The representations submitted by the petitioner for cancelling his transfer order at Suratgarh was rejected and again the petitioner was transferred to another place from ANTE DET Ranchi to 35 WG WEF by order dated 12.02.2024, after cancelling the earlier transfer order. However, the petitioner challenged the said transfer order by filing W.P.(S) No. 17 of 2024 and the same was disposed of on 12.8.2024. Pursuant to the direction passed by this Court, the petitioner approached the competent authority, but his request was rejected and again by cancelling the earlier transfer, the petitioner was once again sought to be transferred from ANTE DET Ranchi to AFS Bidar by order dated 17.09.2024. Again the petitioner requested the authority to cancel the transfer order on the ground of illness of his mother. However, once again the petitioner was sought to be transferred from ANTE DET Ranchi to 13 BRD New Delhi, which is under challenge in the present writ petition.

Mr. Mahesh Tewari, learned counsel appearing for the petitioner assails the impugned order and submits that the impugned transfer order is against the transfer policy of the AIR Force services. Mr. Tewari, submits that normally the tenure of posting is of five years, but contrary to the said posting/transfer policy, the petitioner was sought to be transferred before completion of five years. He submits that the petitioner was posted at ANTE DET Ranchi by order dated 22.11.2021 and just before completion of only two years of service, he was sought to be transferred by order dated 1.6.2023 to 35 Wing AIR Force Suratgarh and thereafter by order dated 22.2.2024 to AFS/BIDAR WIE and finally by the impugned transfer order dated 18.09.2024 to be posted at 13 BRD New Delhi. Being conscious of the fact that the transfer is an incident of service, learned counsel submits that it is a fit case in aforesaid peculiar facts and circumstances, wherein the interference of this Court is required for the ends of justice.

Mr.  Anil Kumar, learned  ASGI representing the respondents submits that the petitioner has not come to this Court with clean hands, as the petitioner has concealed the facts that he was posted at ANTE DET Ranchi by order dated 22.11.2021 for restricted tenure of two years only, taking into account the domestic issues. Learned ASGI further submits that it is after completion of two years at Ranchi, the petitioner was posted to 35 Wing Suratgarh vide posting order dated 1.6.2023 and due to service exigency, his posting at Suratgarh was cancelled and he was posted to AFS Bidar vide order dated 22.02.2024. Learned counsel further submits that pursuant to the direction of this Court dated 12.08.2024 passed in earlier writ petition, being W.P.(S) No. 17 of 2024, as also taking into consideration the medical situation of the mother of the petitioner, he was transferred to be posted at New Delhi. Learned counsel further submits that New Delhi is well connected to the hometown of the petitioner in resolving the domestic affairs, than Ranchi and further New Delhi is far better in terms of Medical facility. Learned counsel submits that since the petitioner is a trained technician and his posting at Ranchi in Non-Trade Proficiency Unit is not optimally utilized and therefore, in the interest of Indian Air Force and nation, as also taking into account the medical issue of his mother and domestic issues, the petitioner was transferred to be posted at New Delhi.

Referring to the judicial pronouncements of the Hon’ble Apex Court, learned ASGI submits that if any adverse order is passed by the Court in the matter of posting of armed forces, it will adversely affect the operational preparedness of the Indian Air Force and the Country in larger perspective. In support of his contentions, learned ASGI places heavy reliance upon the judgments in the case of Major General JK Bansal Vs. UOI, reported in (2005) 7 SCC 227, Major Amod Kumar Vs. UOI & Anr., reported in AIR ONLINE 2018 SC 148 and Mrs. Shilpi Bose & Ors., Vs. State of Bihar & Ors., reported in AIR 1991 SC 532 : 1991 BRLJ 75.

Having heard the learned counsel for the parties and upon perusal of the records, it appears that the whole and sole ground for challenging the transfer order is that the petitioner has not completed the tenure of five years at Ranchi and before completion of tenure, just after two years, the petitioner was sought to be transferred. This ground of the petitioner is not sustainable for the simple ground that the petitioner was not posted at Ranchi in normal course of posting, rather, he was posted on compassionate ground taking into account the sad demise of his father and other domestic issues for restricted tenure of two years only. This itself shows from the posting order at Ranchi vide order dated 22.11.2021. It has also been brought on record that the Indian Air Force has imparted training to the petitioner in the MIG-21, Bison, Microlight Virus SW-80 and A/C Arrester Barrier System and posting of the petitioner at ANTF Ranchi, which is not a Trade Proficiency Unit for entire period will not serve the balance of operational requirement of the Indian Air Force. The compassionate ground was considered and therefore, the petitioner was posted for a restricted period of two years at non-Trade Proficiency Unit at Ranchi. The respondents have considered the medical issues as well as domestic issues of the petitioner and accordingly transferred him at New Delhi, which is far better than Ranchi in terms of medical facilities for treatment of his mother, as also transportation connectively to his hometown.

Moreover, the scope of interference in the transfer matter under Article 226 of the Constitution of India is very limited. Even in a case of transfer of civilian, the Court should not interfere with a transfer order which is made in public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. It is well established that a Government servant holding a transferable post has no vested right to remain posted forever at any one particular place. Transfer to one or another place is not only an incident, but a condition of service. But in the case of transfer of members of armed forces, the scope of interference by the Courts is far more limited and narrow. The Courts should be extremely slow in interfering with an order of transfer of such category of persons, unless an exceptional strong case is made out. It is left open for the discretion of the higher authorities to decide when and where a member of armed forces should be posted and if the grievance of the petitioner is entertained in such facts and circumstances, it would open flood gates, which will generate disaffection amongst other personnel and directly impact the operation and moral of the Forces.

In this context, reference may be made to the judgment rendered by the Hon’ble Apex Court in the case of Mrs. Shilpi Bose & Ors. (supra), wherein it was a case of transfer of lady teachers of primary schools, who were transferred on their requests to places where their husbands were posted. It is important to quote the relevant paragraph, which reads as under:-

"In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department..................................."

Further, the Hon’ble Apex Court in the case of Major General JK Bansal (supra), which is related to transfer of members of armed forces, has held as under:-

“ ……… The scope of interference by 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.”

In  the  case  of  Maj.  Amod  Kumar  (supra), the Hon’ble Apex Court referring to the aforesaid legal propositions in the matter of transfer and posting of Armed Force personnel held that “Matters of transfers are best left to the discretion of the competent authority, and should not be tinkered with, in the absence of a demonstrable violation of statutory rules, or an instance of mala fide on the part of the competent authority.”

In the present case, the posting of the petitioner considering the compassionate grounds and domestic issues was made at Ranchi for a restricted  period of  two  years, despite  the  fact  that  Ranchi  is a  non-Trade Proficiency Unit, though the petitioner is a trained technician and has imparted training at MIG-21 Bison and other systems and he was not going to be optimally untallied at Ranchi. Taking into account the efficiency of the petitioner, as also the medical issues of his mother and domestic problem, he is transferred to be posted at New Delhi, which is in accordance with the policies and instructions of career planning and management. Even, the petitioner has not referred to any statutory rules, executive policies or instructions which debar him from being posted at New Delhi. The petitioner has also not alleged any mala fides or vindictiveness on the part of the authority which has issued the transfer order. If the petitioner has any genuine grievance, he has an alternate statutory remedy available by challenging the same before the Armed Forces Tribunal and this Court sitting under Article 226 of the Constitution is not inclined to entertain the impugned transfer order.

As a sequitur to the aforesaid rules, regularities, guidelines and judicial pronouncements, this Court is of the view that no interference is warranted in the writ petition and the same is hereby dismissed. The petitioner is directed to join the transferred post forthwith. The interim order dated 03.10.2024 stands vacated.