Bombay High Court
Colonel Anil Kumar Sharma vs Union Of India And 2 Ors on 26 August, 2015
Bench: Anoop V. Mohta
1
OSWP1394.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1394 OF 2015
Colonel Anil Kumar Sharma )
residing at 1 James House, )
Napier Road, Colaba, Mumbai ) .... Petitioner
Versus
1 Union of India,
ig )
(through Secretary, Ministry of )
Defence), IHQ OF MOD (Army), )
101-A, South Block, )
DHQ PO, New Delhi -11 )
2 Chief of Army Staff, )
IHQ of MOD (Army), South )
Block, DHQ PO, New Delhi-11---11 )
3 The GOC, HQ (through Judge )
Advocate General (JAG), )
Uttar Maharashtra and Gujarat, )
Sub Area, Colaba, Mumbai ) .. Respondents
Colonel Anil Kumar Sharma, petitioner in person.
Mr. Rajiv Chavan, Senior Advocate with Mr. Vinod Joshi for
respondents 1, 2 and 3.
Mr. Yeshwant Shenoy i/by Mr. Sachin Dube for intervenor.
CORAM: ANOOP V. MOHTA &
V. L. ACHLIYA, JJ.
CLOSED FOR JUDGMENT on :July 20, 2015
PRONOUNCED ON :August 26, 2015
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JUDGMENT : (Per V. L. Achliya, J.):
Rule. Rule is made returnable forthwith. By consent
of the parties, taken up for final disposal.
2 The Petitioner has challenged the order of transfer and
posting dated 26th February 2015 as well as inaction on the part of
the respondents in deciding the representation made by the
petitioner on 11th of March, 2015 seeking Last Leg Posting.
3 Before adverting to appreciate the submissions
advanced, it is necessary to consider few facts leading to filing of
this petition:
(a) The Petitioner claims to be a permanent commissioned
infantry officer serving in the Indian Army since 8 th of June 1985.
According to the Petitioner, he has rendered 30 years unblemished
service. He is due for retirement in the month of July 2017. He
was posted in Mumbai since 1st of September 2011 as "MCO,
C.S.T., Mumbai". On 1 January 2014 he was hospitalized in INHS
Aswini, at Colaba, Mumbai i.e. Respondents' Military Hospital, as
he experienced a sudden rise in his blood pressure and gastric
problems. According to petitioner INHS Aswini provides the best
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facilities in the country for neurological disorders.
(b) On 6th January 2014, after various tests, the doctors
detected multiple abscesses and oedema in the petitioner's brain.
The Petitioner underwent a craniotomy on 8th January 2014 and
part of Petitioner's skull was sliced and kept in his abdomen pouch
for preservation. He was in ICU for about 20 days. He was placed
on DI List (dangerously ill list). Petitioner had to live without part
of his skull bone for three months. Finally, on 1st April 2014, the
petitioner underwent cranioplasty to reinsert the petitioner's skull
bone into his skull with titanium plates and screws at the same
hospital. The Petitioner was specifically informed by Doctors
treating him that he would be required to be under treatment and
observation for the next two to three years. Therefore, petitioner
addressed a letter dated 29th April, 2014 to the Integrated HQ of
MoD, in which he requested the authority to continue him in
Mumbai, on compassionate ground on account of his serious illness.
However, he received no response to that letter. Taking into account
the petitioner's medical condition, Senior Most Officer of M & G
Area made recommendation vide letter dated 12 th May, 2014 that
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the Petitioner be side-stepped to a local posting so that he could
continue his treatment at INHS Aswini. There was no response.
Therefore, petitioner made several representations to the concerned
authorities to continue him in Mumbai. Due to above stated medical
problems, the Petitioner was required to appear before the Medial
Board. The Board reached the finding that the petitioner's
intercranial abscesses and surgeries were attributable to service and,
therefore, issued employment restrictions to prevent aggravation of
his illness. The petitioner was directed to be under periodic
surveillance by a Specialist at MH/Civil Hospital, where such
facility is available to monitor his condition. The Board has further
recommended that petitioner be given restricted diet and declared
unfit for high attitude climates, terrians, extreme exertion and
competative sports. He was declared to be fit for only sedentary or
desk job.
(c) Vide letter of 17th January, 2015 the Petitioner was
informed that his application to continue in Mumbai has been
rejected mainly on the ground that his compassionate grounds were
considered earlier and the option for medical treatments were
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available at other stations, apart from the fact that he had spent a
total period of three years and five months in Mumbai. Since the
fact that options for medical treatment were available at other
stations did not change the fact that the petitioner was in the midst
of treatment at INHS Aswini and the doctors at that particular
facility could administer the necessary treatment to the petitioner,
the petitioner sent a reply letter dated 28th January, 2015 expressing
his wish that his problem be taken seriously.
(d) On 26 February 2015, Respondent No.2 issued the
posting Order and the petitioner was posted at Sealdah, West Bengal
and called upon to report at new station on 13 April 2015. Since
petitioner was due for retirement in July, 2017 and next posting
would be his last posting and entitle to apply for a last leg posting as
per Army's rules, he made representation for last leg posting vide
representation dated 11th March 2015. As there was no reply,
therefore, the petitioner filed present petition on 17 March 2015
challenging the transfer posting as well as inaction to decide his
representation dated 11th March, 2015.
4 We have heard the petitioner, who appeared in person
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and Mr. Rajiv Chavan, learned counsel appearing on behalf of
respondents. We have also perused the written notes of arguments
filed by the petitioner and other documents placed on record by
petitioner as well as respondents for consideration of Court.
5 It is the case of the petitioner that looking to the
ailments and long standing medical history, the petitioner can be
properly treated only at Aswini Military Hospital at Mumbai. It is
further the case of the petitioner that his wife is recently transferred
to Mumbai. His children are prosecuting studies at Mumbai.
Considering his medical ailments, it is impossible for him to join at
a place of posting at Sealdah at Calcutta. It is further case of the
petitioner that he is due for retirement in the month of July, 2017
and entitled to be considered for last posting as per his choice i.e.
the Last Leg Posting. He has made various representations seeking
cancellation of transfer order and consideration of his request for
grant of Last Leg Posting. The authorities concerned have not
considered his representations in the light of ailments which he is
suffering.
6 The respondents have filed an affidavit and opposed
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the reliefs claimed in the petition. In nutshell, it is the contention of
the respondents that the petitioner is lying posted at Mumbai, since
the year 2011. He has completed his three years' tenure in the year
2014. Accordingly the transfer has been made and the petitioner
has been posted at Sealdah in West Bengal. According to the
respondents, all the medical facilities as required in the case of
treatment of ailments with which the petitioner is suffering, are
available at his place of posting. So far as the representation made
by the petitioner, it is stated that same has been duly considered
which include the representation for Last Leg Posting made by the
petitioner. On due consideration of the representation made, in the
light of earlier requests of the petitioner for accommodation on
compassionate ground granted by the department, it was decided to
reject the representation.
7 The petitioner, who appeared in person, has argued the
matter at length. He has also filed written notes of arguments. We
have thoroughly perused the written notes of arguments filed by the
petitioner. He has reiterated the submissions made in detail in the
written notes of arguments filed on record.
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8 Mr. Rajiv Chavan, learned senior counsel appearing
for the respondents strenuously contended that the transfer and
posting of the petitioner has been made as per the routine
administrative exercise. The petitioner has neither pointed out any
breach of statutory provision, rules and regulations on the part of
respondents nor made out any case of malafides so as to interfere
with the order of transfer and posting made by the respondents. It
is strenuously contended that pursuant to order dated 16 th April,
2015 passed by this Court (Coram: V. M. Kanade & A. R. Joshi, JJ.)
the petitioner appeared before the Dean of J.J. Medical College,
Mumbai, who in turn referred the petitioner to the panel of experts
in the field and obtained their opinion. So far as the Neurosurgery
and Neurological problems are concerned, the panel of the experts
appointed by the Dean of J.J. Medical College has observed in the
report that the petitioner requires regular follow up in hospital where
neurosurgery and Neurology facility are available round the clock.
He has contended that said report from the panel of experts
appointed by the Dean of J. J. Medical College, Mumbai, fortify the
stand of the respondents that the kind of treatment and follow up as
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suggested by the experts can be made available to the petitioner at
his place of transfer and posting. He has argued that it is settled
position in law that in matters of transfer and postings of civilians
the Court should be very slow in exercise of its powers under Article
226 of Constitution of India. In support of the contention that the
scope of interference by Courts in regard to the members of Armed
Forces is limited and Court should be extremely slow in interfering
with such order of transfer and posting of civilian employees or
members of Armed Forces relied upon the decision of the Apex
Court in the case of Major General J K Bansal v. Union of India
& Ors., decided on 23/08/2015 in Appeal (Civil) 5189 of 2005.
9 We have carefully considered the submissions
advanced by petitioner as well as Mr. Rajiv Chavan, learned Senior
counsel appeared for the respondents.
10 The fact is not in dispute that the petitioner was
admitted in INHS Aswini Naval Hospital in Mumbai and
subsequently it was noticed that he was developed with multiple
cyst in right Temporal Lobe as well as right parietel region with
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oedema and uncal Herniation and Mid Line shift of Brain. He was
required to undergo Crainotomy brain surgery in the month of
January, 2014. Subsequently he undergone Crainoplasty. So also
the fact is not in dispute that the petitioner was required to be
admitted in hospital for long time and undergone treatment for
various ailments on account of side effects as well as other ailments
with which the petitioner suffered. The fact is also not in dispute
that the petitioner is required to be under constant follow up and
check up for neurological problem with which he is suffering. The
fact is also not in dispute that the petitioner was examined by the
panel of experts specially appointed by the Dean of J.J. Medical
College, pursuant to the order passed by this Court. The report of
the experts reflects that the petitioner is required to undergo regular
follow up in hospital where neurosurgery, neurology facility as well
as the facility of Cardiology, Orthopaedics, ENT and GIT
specialists are available. So also the fact is not in dispute that the
petitioner has completed the normal tenure of service of three years
at Mumbai and he was due for transfer. The fact is also not in
dispute that medical facilities to treat the person with Neurosurgery
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and Neurology are available at place of posting.
11 If, we consider the rival submissions then there
appears to be no dispute that the transfer and posting oder which the
petitioner has challenged no way amounts to any breach of statutory
provisions, rules and regulations or made with malafide intention.
The transfer and posting of the petitioner appears to be fully in
accordance with the rules and regulations and policy of the
respondents governing the transfer and postings of its officers and
employees. The petitioner could not point out breach of any rules
and regulations or contravention of the policy decision in the matter
of his transfer. Although it is contended by petitioner that some of
the members though completed normal tenure of three years are still
working, in our view, this cannot be a ground to interfere by this
Court in the matter of transfer and posting of petitioner. Once it is
clear that the petitioner was due for transfer and department has
issued the order of transfer and posting in accordance with the rules
and regulations as applicable in the matter of transfer and posting of
its officers and employees, the retention of some of the officers who
have completed three years cannot be treated as an act of malafides
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on the part of the respondents. We are of the view that in the present
case except to consider the case of petitioner on the ground of
ailments with which petitioner is suffering and family consideration,
no other ground exists to claim the retention and posting at Mumbai.
12 It is settled position in law that 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. So also even if a transfer order is passed in violation of
any executive instructions or orders, ordinarily the Courts are not
expected to interfere with such order. In such matter, the affected
party is expected to approach the higher authority in the department
for redressal of their grievance. It is further settled that who should
be transferred, where the persons should be transferred, are the
matters exclusively fall within the domain of concerned authority to
take such decision in the matter. Unless the order of transfer is
vitiated by malafides or made in violation of any statutory
provision, the Court is not expected to interfere the same.
13 Mr. Chavan, the learned Counsel appearing for the
respondents has rightly placed reliance on the decision of Apex
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Court in the case of Maj. Gen. J. K. Bansal (supra), wherein the
Apex Court has observed in para 12 about the overall scope of
interference by the Courts in regard to transfer and postings of
civilian and members of armed forces. The Apex Court has
observed as under:
"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 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."
(Emphasis supplied)
14 In the light of discussions made in the foregoing paras,
we are of the view that on merit no case has been made out by
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petitioner so as to interfere with impugned order of transfer and
posting in exercise of writ jurisdiction under Article 226 of
Constitution of India. The order of the transfer cannot be said to be
passed in breach of any statutory provision or suffers from
malafides.
15 However, the fact remains that in the light of peculiar
facts and circumstances of the case i.e. serious ailment, with which
the petitioner is suffering and wife of the petitioner, who is also
working in the Income-tax Department recently transferred and
recently posted (i.e. in the year 2015) in Mumbai and the children of
the petitioner are prosecuting education in Mumbai, the request of
petitioner deserves to be considered by authority vested with
administrative powers to deal with representation made on
compassionate grounds or claiming Last Leg Postings.
16 Mr. Rajiv Chavan, learned Senior counsel has placed
before us the copy of the office noting in respect of representation
made by the petitioner including the representation seeking Last Leg
Posting on compassionate ground processed by department. By
referring the chequered history of past transfers and postings of the
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petitioner made on the compassionate ground, the learned counsel
has submitted that under the facts and circumstances of the case, the
decision of the authority concerned to reject the representation of
the petitioner is fully justified and calls for no interference in
exercise of writ jurisdiction by this Court.
17 Perusal of office submissions made in the note put up
for consideration of concern authority clearly reflects that the
petitioner was throughout accommodated by the respondents and his
request for postings of choice has been considered in past. On due
consideration of past history of requests made by the petitioner
favourably considered by the respondents, we are of the view that
there is absolutely no substance in the say of the petitioner that he
has been treated differently or any malafides on the part of the
officials of the respondents to transfer and post him at Sealdah in
West Bengal.
18 However, we have noted from office submissions
placed for our perusal that the reason for rejection of the petitioner's
representation including representation for Last Leg Posting made
on 11th March, 2015 was taken mainly on the ground that the
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requisite medical facilities are available at Sealdah, Calcutta (West
Bengal). While dealing with the representation of the petitioner, the
concerned authority has not independently applied its mind to
consider the background in which the petitioner has made request
for retention at Mumbai. The fact that the petitioner has twice
undergone the major surgery relating to brain not taken into
consideration. The fact that the petitioner required to be admitted
in the hospital for a long time and still he required to take follow up
treatment has not been taken into consideration while rejecting his
representation. While dealing with representation made on medical
grounds, it is expected that the authority should consider the same
sympathetically. The medical facilities to treat the ailment with
which the petitioner is suffering may be available at place of his
posting. But the availability of such facility at the place of posting
cannot be the basis to turn down such request. It is to be noted that
the petitioner is due for retirement in the month of July, 2017. He
has rendered more than 30 years of service. His wife is recently
posted at Mumbai. His children are prosecuting education at
Mumbai. Looking to the ailments of the petitioner, the petitioner
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will require constant care and follow up treatment. Considering to
ailments of the petitioner, it is expected that someone from his
family should be available with him at the place of his posting. So
also the family support is also required for person, suffering from
Neurological problem. The proposed transfer and posting of the
petitioner may cause serious problem for petitioner. The wife of the
petitioner who is recently posted in Mumbai, may not be able to stay
with the petitioner at place of his proposed transfer and posting. All
these aspects deserves consideration by the authority dealing with
the representation of the petitioner and more particularly the request
of the petitioner for Last Leg Posting. In our view, such request
made on personal ground not to be dealt strictly in accordance with
the Rule. The authority is expected to consider such request on
humanitarian ground so as to redress the genuine problems of their
employees/officers. Since we are of the view that the
representations of petitioner were decided mainly on the ground
that in past the similar requests of petitioner for transfer and posting
were considered and the medical facilities are available at the place
of his proposed transfer and posting and the situation as exists and
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the grounds as raised by the petitioner in his representation were
duly considered, we deem it proper to direct the respondents to
decide the representation afresh by giving opportunity of personal
hearing to the petitioner.
19 In view of the discussions made in the foregoing paras,
we are not inclined to interfere with the impugned order of transfer
and posting and dismiss the petition on that count. However, in the
peculiar facts and circumstances of the case, we direct the
respondents to decide the representations of the petitioner afresh
including the representation dated 11th March, 2015 for last leg
posting, after giving opportunity of personal hearing to the
petitioner. We further direct the respondents not to implement the
impugned order of transfer and posting till representations of
petitioner are decided and decision in that behalf communicated to
the petitioner. In case the representations made by the petitioner are
not favourably considered and the concerned authority decides to
reject the same, then same be not implemented for further period of
two weeks from the date of communication of the order to the
petitioner.
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20 Accordingly, the rule is disposed of in above terms
with no order as to costs.
(V. L. ACHLIYA, J.) (ANOOP V. MOHTA, J.)
md.saleem
