Rajasthan High Court - Jodhpur
Hariom vs Union Of India on 4 June, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:25277]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6712/2024
Hariom S/o Shri Jagdish, Aged About 37 Years, Wardking As A
Sergeant, Trade - Adm Asst (Gd), Of No. 33 Signal Unit, Indian
Air Force (Jodhpur), C/o 56 Apo.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Defense,
Raisina Hills, South Block, New Delhi 110011.
2. The Chief Of Air Staff, Air Headquarters Vayu Bhawan,
Rafi Marg, New Delhi 110011.
3. Air Officer Commanding In-Chief, Headquarters, South
Western Air Command, Gandhinagar, Gujarat - 382010.
4. Air Officer Commanding, Air Force Record Office, Subroto
Park, New Delhi - 110010.
5. Air Officer Commanding, No. 33, Signal Unit, Air Force
(Jodhpur), C/o 56 Apo.
----Respondents
For Petitioner(s) : Mr. Dharmpal Singh Dhaka
For Respondent(s) : Mr.Mukesh Rajpurohit, Dy.SG assisted
by Mr. Dinesh Suthar
HON'BLE MS. JUSTICE REKHA BORANA
Judgment 04/06/2024
1. The present writ petition has been preferred against the order impugned dated 08.02.2024 (Annexure-7) whereby the petitioner has been sought to be transferred from 33 SU to 42 WEU i.e. from Jodhpur to Chabua (Assam) with effect from 24.06.2024.
2. The facts are that the petitioner was posted at Jodhpur on a co-location posting in terms of Clause 29 of the posting policy (Downloaded on 04/06/2024 at 08:39:19 PM) [2024:RJ-JD:25277] (2 of 10) [CW-6712/2024] governing the Airmen. The said Clause provides that in case of a spouse employed in the Central/State Government/Public Sector Undertakings, as far as possible, the husband and wife should be posted at the same station to enable them to lead a normal family life and look after the welfare of their children, specially until the children have completed 10 years of age.
The wife of the petitioner being a teacher employed with the State of Rajasthan and they having two daughters aged 10 and 3 years respectively, on applying for a co-location posting, the petitioner was posted at Jodhpur vide order dated 09.02.2022 although for a restricted tenure of two years.
The petitioner moved an application for extension of his tenure at the present place of posting but the same stood rejected vide order dated 12.04.2024.
3. Learned counsel for the petitioner submitted that his tenure on a co-location posting could not have been restricted for a period of two years and hence, ignoring the same, the tenure deserves to be extended either till the daughter of the petitioner attains 10 years of age or till the completion of requisite period of 7 years as provided under the Rules.
Further, the application dated 19.02.2024 for extension of tenure at his present place of posting deserves consideration on compassionate grounds too, his mother being suffering from gum cancer and his father too suffering from old age ailments. He being the only son, is required to take care of his parents at this stage of life.
(Downloaded on 04/06/2024 at 08:39:19 PM) [2024:RJ-JD:25277] (3 of 10) [CW-6712/2024] In support of his submissions, learned counsel relied upon the judgments passed by Co-ordinate Bench of this Court in Anil Kumar Vs. Union of India & Ors.; S.B. Civil Writ Petition No.4687/2022 (decided on 14.07.2023) as affirmed by the Division Bench in D.B Special Appeal Writ Petition No.841/2023 vide judgment dated 02.02.2024 and judgment passed by this Court in Surendra Kumar Vs. Union of India & Ors.; S.B. Civil Writ Petition No.4794/2024 (decided on 04.04.2024).
4. Per contra, learned counsel for the respondents submitted that the Human Resource Policy 01/2020 has been superseded by the Human Resource Policy 01/2022 (Annex-R/2) which now governs the transfers/postings of an airman. As per the Policy of 2022, an Airman can be posted to the requested place as far as possible on Trade Proficiency Utilization (TPU) and tenure will also depend upon utilisation driven organizational requirement. The petitioner's posting, although on co-location ground, was in fact a request posting and would be governed by Clauses 21 to 24 of the Policy of 2022. As per the said Clauses, all request postings would generally be for a restricted tenure of two years and further that if an airman has once availed a posting to his home zone, irrespective of the grounds, he shall not be considered for a posting again to his home zone whether it is a co-location/compassionate ground posting, before completing a gap of ten years.
Counsel further submitted that so far as the present petitioner is concerned, he was awarded a posting to his home (Downloaded on 04/06/2024 at 08:39:19 PM) [2024:RJ-JD:25277] (4 of 10) [CW-6712/2024] zone on his request, for a restricted tenure of two years and now he cannot be considered again for his home zone before a gap of ten years.
5. Responding to the judgments as relied upon by learned counsel for the petitioner, learned counsel for the respondents submitted that therein, the fact of the Policy of 2020 having been superseded by the Policy of 2022 was not brought to the notice of the Court and hence, the ratio therein shall not apply to the present matter. Further, the case of Anil Kumar (supra) was governed by the Policy of 2013 and, therefore also, it would not govern the present matter.
6. Learned counsel further submitted that till now, the petitioner has remained posted only on soft postings and it is for the first time that he is sought to be transferred to a hard posting. Further, the petitioner has till now remained posted in the South Zone and as per the Rules, the Zone now essentially is required to be changed. Therefore, the petitioner is now sought to be transferred to the East Zone.
7. Learned counsel finally submitted that the present being a transfer matter pertaining to an airman, this Court should not be inclined to interfere.
In support of his submission, learned counsel relied upon the Apex Court's Judgments in the case of :
(1) Major General J.K. Bansal Vs. UOI & Ors.; (2005) 7 SCC 227,(2) Maj. Amod Kumar Vs. Union of India & Anr.; 2018 INSC 795 and (3) Shilpi Bose and Ors. Vs. State of Bihar and Ors.; AIR 1991 SC 532.(Downloaded on 04/06/2024 at 08:39:19 PM)
[2024:RJ-JD:25277] (5 of 10) [CW-6712/2024]
8. Heard learned counsel for the parties and perused the material available on record.
9. The issue before this Court is whether the present matter would be covered by the ratio laid down in Anil Kumar's case (supra) as affirmed by the Division Bench of this Court and further, whether this Court should take a view different from that of Surendra Kumar's case (supra) wherein, this Court allowed the writ petition on the facts totally akin to the present matter.
To reach to a finding on the above issues, the question is firstly, whether there is any distinguishable fact in the present matter, so as to take a different view and secondly, whether the fact of the Policy of 2022 having superseded the earlier Policy of 2020, was not considered in Surendra Kumar's case ?
10. Clause 27 of the Policy of 2013 pertaining to co-location posting (as under consideration in Anil Kumar's case) read as under :-
"27. Co-location Posting - (Spouse Employed in Central/State Govt./Public Sector Undertakings). As per the GOI policy under reference 28034/2/97-Estt (A) dated12 Jun 97 on above subject, as far as possible and within the constraints of administrative feasibility, husband and wife should be posted at the same Station to enable them to lead a normal family life and look after welfare of their children, especially until the children are ten years of age depending on Trained Proficiency Utilization (TPU). However, the same privilege cannot be extended repeatedly due to service exigencies."
Clause 29 of the Policy of 2020 pertaining to co-location posting read as under :-
(Downloaded on 04/06/2024 at 08:39:19 PM)
[2024:RJ-JD:25277] (6 of 10) [CW-6712/2024] "29. Co-location Posting- (Spouse Employed in Central/ State Govt./ Public Sector Undertakings). As per the GOI policy as amended from time-to-time on the subject, as far as possible and within the constraints of administrative feasibility, husband and wife should be posted at the same Station to enable them to lead a normal family life and look after welfare of their children, especially until the children are ten years of age depending on TPU. Airman will be posted to requested place as far as possible on TPU and tenure will be depending on utilization driven by organizational requirement. Airmen whose spouse is a permanent employee of Central/State Govt./Public Sector Undertakings only are eligible for consideration for co-
location posting. However, this privilege is not applicable for the airmen whose wife is working in Central/ State Govt. aided institutions. Appointment letter and latest serving certificate (certifying permanent employability) from the employer/ head of the organization should be attached with the application."
Clause 29 of the Policy of 2022 pertaining to co-location posting reads as under :-
"29. Co-location Posting- (Spouse Employed in Central/ State Govt. / Public Sector Undertakings). As per the GOI policy as amended from time-to-time on the subject, as far as possible and within the constraints of administrative feasibility, husband and wife should be posted at the same Station to enable them to lead a normal family life and look after welfare of their children, especially until the children are ten years of age depending on TPU. Airman will be posted to requested place as far as possible on TPU and tenure will be depending on utilization driven by organizational requirement. Airmen whose spouse is a permanent employee of Central/State Govt./Public Sector Undertakings only are eligible for consideration for co-(Downloaded on 04/06/2024 at 08:39:19 PM)
[2024:RJ-JD:25277] (7 of 10) [CW-6712/2024] location posting. However, this privilege is not applicable for the airmen whose wife is working in Central/ State Govt. aided institutions. Appointment letter and latest serving certificate (certifying permanent employability) from the employer/ head of the organization should be attached with the application."
11. A perusal of Clause 29 of both the Policies of 2020 and 2022 makes it clear that there is no difference whatsoever in the same. Even Clause 27 of the Policy of 2013 had no substantial difference which can be taken note of. In view of the same, this Court is of the clear opinion that the present issue/matter would be squarely covered by the ratio of Anil Kumar's case (supra), the facts being totally akin. In the said case, the Court held as under:
"20. Going by clause 28 of the policy of 2013, if the plea of choice posting, as raised by the respondents is accepted, the petitioner could not have been accorded co-location posting, however, once he has been accorded co-location posting, the tenure contrary to the provisions cannot be restricted/ should not have been restricted by the respondents.
21. Further, the representation made by the petitioner seeking cancellation of posting was rejected on1/4/2022 (Annex.R/2) indicating 'H.R. Constraints' i.e. neither on ground of completion of three years period nor based on clause 28 of the Policy, 2013. Further, nothing has been indicated in response to the writ petition elaborating the purported H.R. Constraints and, as such, the plea raised in this regard being vague, the same also cannot be accepted.
22. In view of the above discussion, the action of the respondents in posting out the petitioner by order dated 19/01/202 (Annex.5) and rejection of his representation dated 1/4/2022 (Annex.R/2) cannot be sustained.(Downloaded on 04/06/2024 at 08:39:19 PM)
[2024:RJ-JD:25277] (8 of 10) [CW-6712/2024]
23. Consequently, the petition is allowed. The order dated 19/1/2022 (Annex.5) and dated 1/4/2022 (Annex.R/2) qua the petitioner are quashed and set aside. The Respondents are directed to pass appropriate orders in accordance with the provisions of co-location posting contained in posting policy dated 21.11.2013 / keeping in view that son of the petitioner is aged about 08 years now and the policy envisages co-location posting until the children are 10 years of age. The tenure of the petitioner be extended till his son attains the age of 10 years / his educational session at the point of time he attains the age of 10 years is over."
12. So far as the ground raised by the learned counsel for the respondents that the order dated 27.06.2022 was on request and not a co-location posting is concerned, the same seems to be incorrect on the face of the record. The order dated 27.06.2022 reflects that the said posting was on co-location ground and it clearly mentions so. Therefore, the ground of petitioner being governed by para 21-32 of the policy of 2022 cannot be said to be tenable. The petitioner would definitely be governed by clause 29 of the policy of 2020/2022 and the fact of policy of 2020 having been superseded by policy of 2022 would make no difference (both being totally akin) so far as the present issue is concerned.
13. The other ground as raised by counsel for respondents that the normal tenure of a request posting cannot be more than two years, also cannot be held to be tenable in view of the specific finding of this court that the posting of the petitioner vide order dated 27.06.2022 was not a 'request posting' but was a posting on 'co-location' ground. The tenure for such posting admittedly falls in the category of unrestricted tenure as prescribed in 'Appendix- (Downloaded on 04/06/2024 at 08:39:19 PM) [2024:RJ-JD:25277] (9 of 10) [CW-6712/2024] D' to the policy. 'Appendix-D' specifically prescribes for a period of 7years qua Jodhpur. Therefore, it is clear that the petitioner has been sought to be transferred before completion of his tenure of 7 years at Jodhpur which is de-hors the policy as issued by the department itself.
A similar view was taken by this Court in the case of Surendra Kumar (supra) and this Court finds no distinguishable fact so as to differ from the earlier view. As held by the Hon'ble Apex Court in Supreme Court Advocates-on-Record- Association & Ors. Vs. Union of India; (2016) 5 SCC 1, the power to reconsider is not unrestricted or unlimited, but is confined within narrow limits and must be exercised sparingly and under exceptional circumstances for clear and compelling reasons. Merely because a view different from or contrary to what has been expressed earlier is preferable is no reason to reconsider an earlier decision.
14. So far as the judgments relied upon by learned counsel for the respondents are concerned, there is no dispute over the settled position of law that the Courts should be slow in interfering with the transfer orders pertaining to the members of Armed Forces but then, this Court cannot be oblivious of the fact that if the said transfer order is in contravention to the Rules/Policy governing the said members of the Armed Forces as framed by the department itself, the same cannot be ignored. Further, J.K. Bansal was a case wherein the transfer order was assailed on the ground of the same being malafide and been made to accommodate an officer junior to him. Amod Kumar was a (Downloaded on 04/06/2024 at 08:39:19 PM) [2024:RJ-JD:25277] (10 of 10) [CW-6712/2024] matter wherein the transfer order was assailed only on compassionate grounds. The ratio of both the judgments would definitely not apply to the present matter as herein, the relief prayed for is in terms of the conditions of the transfer policy as framed by the employer department itself.
15. In view of the above observations and in view of the ratio as laid down in Anil Kumar's case (supra) as affirmed by the Division Bench of this Court, the present writ petition deserves to be allowed, on the same logic and grounds and is hence, allowed. The orders impugned dated 08.02.2024 (Annexure-7) & 12.04.2024 (Annexure-9) are hereby quashed and set aside qua the present petitioner. The respondents are directed to pass appropriate orders in accordance with the provisions of 'co- location posting' contained in posting policy dated 24.02.2020/24.11.2022 keeping into consideration that the daughter of the petitioner is 3 years of age and also the fact that the petitioner has not completed his 7 years of service at Jodhpur. The tenure of the petitioner be extended till his daughter attains the age of 10 years or till he completes 7 years of service at Jodhpur, whichever is earlier. The appropriate orders be passed by the respondents expeditiously, preferably before 24th June 2024.
16. The stay petition and the pending applications, if any, also stand disposed of.
(REKHA BORANA),J SPhophaliya/-
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