Sqn. Ldr. K.V. Rao vs Union Of India (Uoi) And Anr.
2004 Latest Caselaw 703 Del

JUDGMENT

Mukundakam Sharma, J

1. This writ petition is filed by the petitioner challenging the legality and validity of the posting order dated 29.6.2004 whereby the petitioner has been posted to Nalliya, Gujarat with effect from 16.8.2004 under Air Headquarters Signal dated June 29, 2004. The petitioner was posted to Air Force Station Yelhanka, Bangalore by an order dated 26.10.1998 and thereafter the petitioner was posted to Air Headquarter by an order dated 21.5.2001. Since then the petitioner has been staying in Delhi and working in the Air Headquarter.

2. Now, when the aforesaid posting order has been issued posting the petitioner to Nalliya, Gujarat, and the petitioner has filed the present petition challenging the aforesaid order of transfer and posting of the petitioner.

3. We have heard the counsel for the petitioner at length as also the counsel for the respondents. Counsel appearing for the petitioner has stated that the aforesaid order of transfer has been passed as the petitioner had objected to holding of Sky Divine Course at Hyderabad, which was not suitable for the purpose. It is also submitted by the counsel for the petitioner that the aforesaid order of posting which is issued by the respondents has been issued in order to harass the petitioner because of the foresaid objection taken by him for holding the Sky Diving Course at Hyderabad and, therefore, it is punitive. It is submitted that in case the aforesaid posting order is not cancelled, not only would the petitioner be adversely affected but his persona case which is pending in Agra pertaining to matrimonial disputes with his wife would also suffer as the petitioner would not be able to give personal attention to the case, being stationed at a far away place.

4. We have considered and perused carefully the order of posting, which is passed posting the petitioner to Nalliya with effect from August 16, 2004. Ex facie the order appears to have been passed in exigency of service. As against the order, the petitioner submitted a representation to the authority on July 6, 2004 wherein the petitioner has submitted that the said order may be cancelled in view of tendency of his personal case in the Court at Agra. In this representation not even a whisper of an allegation is made terming the order of transfer as malafide or being issued by way of harassment.

5. An order of transfer when issued in exigencies of service cannot be interfered with by Court as transfer is an incidence of service. However, such an order of transfer could be successfully challenged if the same is passed in violation of the statutory rules or in case any malafide is proved, and, is therefore, punitive in nature. There is no allegation in the petition that the aforesaid order of transfer/posting is issued in violation of any statutory provisions. Our attention has been drawn to the Air Headquarters Human Resource Policy, which is annexed as Annexure P-2 and which is in the nature of administrative instructions pertaining to the procedure to be adopted for transfer and posting of the officers. This policy provides that the normal tenure of placement of an officer in a particular station could be, on an average, a tenure of 2 to 4 years, which should be considered as normal. In the present case, the order of transfer is being issued after a period of more than three years at Delhi and, therefore, the order of transfer is in terms of Rules/circulars. Prior to the aforesaid transfer, the petitioner was posted to Air Force Station, Yelhanka wherein he stayed only for about three years and immediately thereafter he was posted to Delhi and the Air Headquarter. Counsel appearing for the petitioner has also drawn our attention to paragraphs 14 and 15 of the policy. In our considered opinion, there is no violation of the aforesaid clauses in posting the petitioner to Nalliya under the order of posting, which is impugned herein. The tenure of posting being generally ranging from two to four years, it cannot be said that the instant order of transfer/posting is against any statutory rules or the policy of the respondents. Although in the petition male fide is alleged, the said allegation is very vague and not based on any documentary evidence. The petitioner has alleged malafide in paragraph 3.15 of the petition wherein it is stated that respondent No.2 acted in a mechanical fashion and ejected the application of the petitioner without due application of mind and malafidely. The aforesaid allegation in our considered opinion is very vague and there is no supporting document produced in order to substantiate the aforesaid allegation. Therefore, the allegation of malafide is not substantiated by any material on record. Therefore, we are of the opinion that the impugned order of transfer/posting cannot be said to be punitive in nature.

6. However, one aspect to which our attention was drawn needs mention at this stage. The petitioner is fighting a litigation against his wife in the Court at Agra, which is said to be at the stage of evidence. The respondents have stated in the reply set to the petitioner under communication dated July 21, 2004 that the officer may apply for attachment to 4 Wing during the period of hearing which would be considered on its merit. Therefore, we have no hesitation in our mind that the respondents would honour the commitment made by them in the aforesaid letter and as and when the petitioner approaches the respondents for support and assistance in conducting the case at Agra, such assistance and support shall be provided by the respondents, to the extent it is permissible in accordance with law.

In view of the aforesaid position, we find no merit in the writ petition. The writ petition stands disposed of in the light of the aforesaid observations and directions.