Awadhesh Kumar Singh vs Union Of India & Ors.
2010 Latest Caselaw 3965 Del

19
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                        +       W.P.(C)No.5292/2010

                                        Date of Decision : 27th August, 2010
%

      AWADHESH KUMAR SINGH                    ..... Petitioner
              Through : Mr. Jitendera Kumar Singh and
                        Mr. Pankaj Kumar, Advs.

                               versus


      UNION OF INDIA & ORS.              ..... Respondents
                Through : Ms. Barkha Babbar, Adv.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                        NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                       NO

3.      Whether the judgment should be                               NO
        reported in the Digest?

GITA MITTAL, J. (Oral)

1. The writ petitioner employed as HAV/SKT with the Army

prays for quashing and setting aside of the order of his transfer

and movement dated 5th May, 2010. This communication was

followed by letter dated 29th July, 2010 whereby the

respondents directed handing and taking over of charge by the

next incumbent. It is contended that the petitioner stands

presently posted with the Headquarter 5 Signal Group since

20th July, 2006. The petitioner and his wife could not have

children and for this reason his wife Smt. Sima Singh has been

undergoing In Vitro Fertilization + Embryo Transfer (`IVF + ET'

hereafter) treatment and procedures at the Army Hospital

(R&R), Delhi Cantt. For this reason the petitioner's earlier

posting vide the signal dated 10th July, 2009 was postponed

and his tenure in Delhi was extended by one year.

2. As per the report of the Army Hospital (R&R), two chances

for conception by the IVF + ET are permissible. The petitioner

and his wife availed the first chance on 4th January, 2008 but

the procedure was unsuccessful. The petitioner and his wife

did not take any follow-up treatment at the said medical facility

between March, 2009 to April, 2010.

3. Between February to March, 2010, the petitioner has

claimed that the couple had gone to Agra to a civil private

gynaecologist who had successfully treated petitioner's cousin.

This was also unsuccessful and thereafter the couple again

reported to the Army Hospital (R&R) on 7th May, 2010. In this

background, the Army Hospital (R&R) has on 7th May, 2010

initiated the infertility evaluation and treatment folder for the

second trial of the said procedure for the petitioner's wife.

4. It is contended by learned counsel for the petitioner that

in view of the second chance for which the petitioner's wife is

undergoing treatment and preparation at Army Hospital (R&R),

the order of his transfer dated 5th May, 2010 deserves to be

cancelled. The submission is that the petitioner and his wife

would suffer irreparable loss and damage if they are deprived

of the second chance to which they are entitled.

5. Ms. Barkha Babbar, learned counsel for the respondents

has placed before us a copy of letter dated 21st August, 2010

received from the Army Hospital (R&R), Delhi Cantt. wherein

details of the treatment undertaken by the petitioner's wife

have been mentioned. Copy of this letter has been taken on

record. This communication sets out the above facts and shows

that no effort for undertaking the treatment/procedure was

made by the petitioner between March, 2009 to April, 2010.

There is record of only one month's treatment at a private

facility in Agra. As of now, the Army Hospital (R&R) has

reported that the petitioner's wife is entitled to second chance

for the IVF + ET facility at the Army Hospital (R&R).

6. We may note that by second communication dated 26th

August, 2010, Colonel B.S. Duggal who is a Senior Advisor

(Head of Department of Gynaecology and Obstetrics) at the

Army Hospital (R&R) has informed that for completion of

second cycle of IVF + ET treatment, the presence of the

petitioner is required at Delhi for a period of three months

alone. The medical specialist has also stated that subsequent

management of the high risk pregnancy can be effected at any

service hospital where gynaecologist may be posted.

7. The respondents have opposed the extension of the

petitioner's tenure at Delhi pointing out that petitioner is not

sincere about the treatment and is utilizing the same as a ruse

to extend his posting at Delhi. It is contended that for this

reason, no discretion ought to be exercised in his favour.

8. Having regard to the exigencies of service and in order to

maintain discipline in the force, we are not prepared to accept

the petitioner's request for cancellation of the transfer and

movement orders. No illegality in passing these orders is

pointed out. However it is on record that the petitioner has

been worked up for IVF + ET procedures and has received

treatment in preparation thereof as well. One attempt for the

same was found unsuccessful. The petitioner's wife is

undergoing the procedure for the second chance.

9. Having regard to the communications dated 21st August,

2010 and 26th August, 2010 from the Army Hospital (R & R),

even if the petitioner was to be permitted extension of his stay

at Delhi for the purpose of the said treatment, his presence is

required here only for a period of three months. In the given

facts, it would be appropriate in these circumstances that the

petitioner's movement pursuant to the transfer order is kept in

abeyance for a period of three months and he is permitted to

stay at Delhi during this time.

10. We make it clear that we are not expressing any opinion

on the respondent's contentions that the petitioner is utilizing

the treatment procedures undertaken at the Army Hospital

(R&R) as a ruse to extend his stay at Delhi.

11. In view of the above, we direct as follows:-

(i) The implementation of the orders of posting dated

5th May, 2010 and 29th July, 2010 shall be kept in

abeyance for the period of three months from the 1st

of September, 2010.

(ii) The petitioner and his wife shall report to Colonel

B.S. Duggal, Senior Advisor (Head of Department of

Gynaecology and Obstetrics) at the Army Hospital

(R&R) on the 30th of August, 2010 for fixing the date

and time for the investigations/procedures which

are to be effected.

(iii) Having regard to the fact that the petitioner is under

two orders of transfer, we are sure that the Army

Hospital (R&R) shall ensure that the procedure

which is required to be performed on the

petitioner's wife is undertaken at the earliest,

without any delay and all procedures requiring the

petitioner's stay in Delhi are completed within three

months from the receipt of this order.

12. This writ petition stands disposed of in the above terms.

13. Dasti to the parties under the signatures of the court

master.

GITA MITTAL, J

J.R. MIDHA, J AUGUST 27, 2010 mk