W.P.(C).No.6322 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 6322 OF 2021
PETITIONER:
SUB (PA) C. SURESH BABU
AGED 49 YEARS
S/O. K M NARAYANAN NAIR, JC- 670281W, HQ 91
INFANTRY BRIGADE, PANGODE, TRIVANDRUM, PIN 695
006
BY ADVS.
K.M.SATHYANATHA MENON
SMT.KAVERY S THAMPI
RESPONDENTS:
1 COLONEL (PERS), DIRECTORATE GENERAL OF SUPPLY AND
TRANSPORT (ST 12)
DIRECTORATE GENERAL OF SUPPLY AND TRANSPORT (ST
12), QUARATERMASTER GENERALS BRANCH, INTEGRATED
HQ OF MOD (ARMY)
DHQ PO, NEW DELHI 110 011
2 OFFICER COMMANDING,
HQ 91 INFANTRY BRIGADE, PANGODE MILITARY CAMP,
PANGODE, TRIVANDRUM 695 006
3 LIEUTENANT COLONEL,
ESTABLISHMENT OFFICER, HQ 10 CROPS
(ESTABLISHMENT)
PIN 908510
C/O. 56 APO
W.P.(C).No.6322 of 2021
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4 SUB MAJ/PA M.E BIJU,
JC0667119N, HQ 10 ARTILLERY BRIGADE, PIN 926910
C/O. 56 APO TANDA, JAMMU AND KASHMIR, PIN 181 201
BY ADV KRISHNA S., CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 7.07.2022, THE COURT ON 27.07.2022 DELIVERED
THE FOLLOWING:
W.P.(C).No.6322 of 2021
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ANU SIVARAMAN, J.
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W.P.(C).No.6322 of 2021
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Dated this the 27th day of July, 2022
JUDGMENT
1. This writ petition is filed seeking the following prayers:-
"a) Issue a writ of certiorari or any other appropriate, writ, order or direction calling for the Original of Ext.P6 and quash the same;
b) issue a writ of mandamus or any other appropriate writ order or direction, directing the 1st respondent to consider Ext P4 in the light of the posting policy of Indian Army for officers having differently abled children for specialized treatment on sympathetic grounds and extend the posting order of petitioner with 2nd respondent and also to permit the petitioner to continue at the office of the 2 nd respondent for another period of two years."
2. Heard the learned counsel for the petitioner and the learned Central Government Counsel appearing for the 4 th respondent. It is submitted by the learned counsel for the petitioner that the petitioner is a Junior Commissioned Officer of the Indian Army and is presently serving at Thiruvananthapuram.
W.P.(C).No.6322 of 2021 4
3. It is submitted that the petitioner was posted with 2nd respondent from 2.10.2017 on medical ground from HQ CIF (K). It is submitted that petitioner has one son and a daughter. Petitioner's daughter is aged 11 years and she is a special child, suffering from "Downs Syndrome with PDA" and severe retardation since her birth. Apart from that petitioner's daughter is a speech impaired child and she can understand only Malayalam language and she is capable of speaking only limited words in her Mother tongue i.e Malayalam. The petitioner had requested for a posting at Thiruvananthapuram under the 2nd respondent. After coming to Thiruvananthapuram, petitioner had enrolled her daughter for Malayalam speech therapy classes at National Institute of Speech and Hearing (NISH), Thiruvananthapuram and she is also undergoing some ayurvedic treatment for her physical and mental impairment to which the child has responded positively. Petitioner is advised that if petitioner's daughter gets continuous speech therapy, her vocabulary skills may improve considerably. W.P.(C).No.6322 of 2021 5 Moreover, petitioner's daughter requires constant attention and support of petitioner. Exhibits P1 to P3 certificates are produced in support of the said contentions.
4. The learned counsel for the petitioner submits that Exhibit P3 certificate specifically states that since the child has limited vocabulary output, speech and language therapy and parental stimulation should be primarily through her mother tongue, Malayalam. It is submitted that without considering any of these aspects, the petitioner was transferred out to Punjab. The petitioner's request for retention was favourably recommended by the 2nd respondent, but the request has been rejected. The transfer is challenged on the ground that it is illegal as being violative of the guidelines.
5. A counter affidavit has been placed on record by the respondents 1 to 4 stating that the grounds raised by the petitioner has been specifically considered and it was only in public interest and in administrative exigencies that an order of transfer was issued. It is submitted that the W.P.(C).No.6322 of 2021 6 petitioner is being posted to a place where medical treatment can be duly afforded without any fail and that the petitioner, who is a member of the Armed forces, cannot seek retention at Kochi on compassionate grounds when his services are urgently required elsewhere. Relying on the decisions of the Apex Court, it is contended that unless mala fides are pleaded and proved this Court will not be justified in interfering with an order of transfer issued in public interest.
6. Having considered the contentions advanced, I notice that it is the specific case of the respondents that the request of the petitioner for retention in the present station on compassionate grounds had been specifically considered. However, it is stated that the transfer is to a station where the treatment and therapy given to the petitioner's child can be continued without any hindrance. Since it is contended by the respondents that the transfer is in public interest and on administrative exigencies and no mala fides are alleged by the petitioner in the writ petition, I am of the opinion that W.P.(C).No.6322 of 2021 7 it would not be proper for this Court to interfere in an order of transfer. As contended by the learned counsel for the respondent in State of Madhya Pradesh and another v. S.S.Kourav and others [(1995) 3 SCC 270] it was held that the question of relative hardship arising from a transfer is a matter for the administrative authority to consider and the constitutional courts cannot consider the said question.
7. In National Hydroelectric Power Corporation Ltd v. Shri.Bhagwan and Another [ (2001) 8 SCC 574], the Apex Court held that it is now well settled that no Government servant or employee of a public sector undertaking has any legal right to be posted forever at any one particular place, since transfer of a particular employee from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. It was, therefore, held that unless an order of transfer is shown to be an outcome of mala fide exercise of powers or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the Tribunal W.P.(C).No.6322 of 2021 8 cannot interfere with such orders as a matter of routine. In the facts of the instant case, I am of the opinion that no grounds for interference in the order of transfer has been made out. I, therefore, decline to interfere in the order of transfer.
8. The contention of the petitioner that the immediate superior officer of the petitioner had recommended his retention cannot be a ground for this Court to hold that the petitioner shall not be transferred out of his present place of posting, especially in view of the fact that the petitioner is a Junior Commissioned officer of the Indian Army. In case the petitioner faces any difficulty in continuing the treatment of his child after joining at the transferred post, the petitioner may make a representation to the appropriate authority, which will be considered in accordance with law.
sd/-
Anu Sivaraman, Judge sj W.P.(C).No.6322 of 2021 9 APPENDIX OF WP(C) 6322/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED FROM GENERAL HOSPITAL THIRUVANANTHAPURAM TO PETITIONER'S DAUGHTER NIVEDA S NAIR DATED 28-09-2018 EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM MILITARY HOSPITAL, TRIVANDRUM DATED 5-09-2020 EXHIBIT P3 TRUE COPY OF THE LETTER ISSUED BY THE SPEECH LANGUAGE PATHOLOGIST OF NATIONAL INSTITUTE OF SPEECH AND HEARING, THIRUVANANTHAPURAM DATED 26-02-2021 EXHIBIT P4 TRUE COPY OF THE REQUEST LETTER DATED 08-05-2020 FORWARDED BY PETITIONER TO THE 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER NO. 670281/ST-
12/PA DATED 14-08-2020 ISSUED BY THE 1ST RESPONDENT EXHIBIT P6 TRUE A TRUE COPY OF THE POSTING ORDER ISSUED BY THE 1ST RESPONDENT DATED 28-
10-2020 EXHIBIT P7 TRUE COPY OF THE LETTER NO. 29/GEN/DCS DATED 06-01-2021 ADDRESSED TO THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE PROOF OF THE RECEIPT DATED 6.1.2021 OF EXT P7 LETTER TRUE COPY PS TO JUDGE