Wg Cdr Ajit Kakkar vs Union Of India & Ors.
2012 Latest Caselaw 2954 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 04.05.2012


+                       W.P.(C) No.2648/2012 & CM No.5692/2012


Wg Cdr Ajit Kakkar                              ...      Petitioner

                                 Versus

Union of India & Ors.                            ...     Respondents


Advocates who appeared in this case:


For the Petitioner :    Mr.S.S.Pandey, Advocate.
For respondents :       Ms.Barkha Babbar, Advocate with
                        Wg.Cdr.A.A.Amrite & Wg.Cdr.R.Mohanty.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has sought the quashing of order dated 7th

October, 2011 passed by The Air Officer-in-Charge Personnel, Air HQs,

Yayu Bhawan, Rafi Marg, New Delhi by which the petitioner has been

transferred to Air Force Intelligence School, Pune. The petitioner has

also sought the quashing of order dated 30th March, 2012 directing the

petitioner to report at Pune by 7th May, 2012. The petitioner has further

sought directions to the respondents to consider the case of the

petitioner for his retention in Delhi till the completion of Fontan

procedure of his daughter or in the alternative to release the petitioner

pursuant to his application for premature release made by letter dated

10th April, 2012.

2. The petitioner was enrolled in the Indian Air Force as Airman on

4th April, 1984. On account of his performance, he was granted

commission as Pilot Officer on 21st June, 1993 and was posted to 501

SU as Fighter Controller. The petitioner was thereafter, promoted to the

rank of Flying Officer on 21st June, 1995 and was further promoted to

the rank of Flight Lieutenant on 21st June, 1998.

3. The petitioner contended that his daughter was born on 6th

August, 1998 with Congenital Cardiac Heart Disease Mitral Atresia

(defective Mitral Valve), Double outlet in right ventricle, and a single

ventricle physiology. Therefore, the daughter of the petitioner has

underwent Balloon Artrial Septostomy (BAS) on 20th September,

1998 and a Pulmonary Arterial Banding (1st Cardiac Surgery) which was

performed on 8th October, 1998.

4. The petitioner pleaded that on account of the difficulties faced by

him, the respondents had showed compassion and therefore, he was

posted to Delhi on 8th December, 1998.

5. According to the petitioner, his daughter was again admitted on

12th May, 1999 and another surgery of Bi-Directional Glen-Shunt was

done on her on 19th May, 1999. An emergency cardiac procedure (3rd

open heart surgery) was also performed and the Glen-Shunt was taken

out and thereafter, the arterial septectomy was done. On account of the

extensive surgery done on her she has remained very weak and fragile.

The petitioner further disclosed that her daughter was on palliative

management at Escorts hospitals and on the advice of the doctors at

AIIMS and the Army Hospital (R&R), her case was accepted at Narayana

Hridayalaya, Bangalore.

6. In order to get his daughter treated, the petitioner had requested

for a transfer to Bangalore, which was accepted and the petitioner was

posted there in April, 2003, where the treatment of his daughter

continued at Narayana Hridayalya, Bangalore. Thereafter, the Re-do

glen was performed on the daughter of the petitioner on 14th January,

2004. However, on account of climatic conditions her recovery became

difficult and in the circumstances, the petitioner had sought his

transfer back to Delhi which was accepted by the respondents and he

was transferred to Delhi in March, 2005. On being transferred to Delhi

the condition of the petitioner's daughter had improved. Due to the

improvement in the conditions of the daughter of the petitioner, she

required another surgery of Fontan to complete the surgical treatment

and therefore, the then Commandant Army Hospital (R&R) had

recommended that the daughter of the petitioner be taken to Bangalore

for the Fontan procedure. The petitioner, therefore, again took his

daughter to Bangalore on 31st August, 2006. However, due to the

Paroxysmal Allergy of the petitioner's daughter, she had to be brought

back to the Escorts Hospital, New Delhi for Angiography and

Embolisation of Collaterals which was done from 6th November, 2006 to

8th November, 2006.

7. The petitioner, in these circumstances, had sought premature

retirement by letter dated 4th July, 2007, however, instead of accepting

his application for premature retirement the petitioner was granted

extension of tenure in Delhi by letter dated 30th August, 2007. The

petitioner contended that though it was clear to him that such

extension would not be a permanent solution of his problems, but the

petitioner accepted the same to make a balance between his

organizational commitments and his personal problems.

8. The petitioner contended that his tenure was extended from 2007

to 2009 and thereafter, from 2009 to 2010 and by letter dated 2nd

February, 2010 the respondents had granted another extension of two

years till March, 2012 to the petitioner at Delhi.

9. The petitioner asserted that during this period his daughter has

remained under the treatment of Dr.Rajesh Sharma at Escorts Heart

Institute at New Delhi, who had come from Narayana Hrudayalaya,

Bangalore. He also disclosed that for one reason or the other Fontan

procedure could not be performed on his daughter and that she is being

monitored regularly to ascertain the feasibility of such a procedure.

10. The petitioner has asserted that though the respondents have

extended all possible assistance to the petitioner in order to infuse life

into his daughter, who despite five extensive surgeries, has not been

able to become normal and further surgeries are required. The

petitioner contended that it appears difficult for the respondents to

accommodate the petitioner any further, and therefore, the petitioner

had planned to apply for premature retirement. The petitioner has also

submitted that his mother has also been diagnosed to be a patient of

cancer, and thus he needs to take proper care of his ailing daughter

and his sick mother.

11. In these circumstances, the petitioner has contended that he had

received a letter dated 7th October, 2011 transferring him from New

Delhi to Pune and to report at his new place of posting on 23rd January,

2012. The petitioner, therefore, sought a personal interview with the

ACAS(PO) in order to explain his predicament, which was granted to

him on 19th December, 2011. However, on meeting the PDPO he was

asked to go to Pune on temporary duty to find out if it would be possible

for the petitioner to continue the treatment of his daughter in Pune. In

these circumstances, the date of the movement of the petitioner from

New Delhi to Pune was also changed to 2nd April, 2012.

12. The petitioner disclosed that a specialist at Pune after going

through the documents and medical history of his daughter had

categorically opined that the daughter of the petitioner should be

treated at Delhi. The petitioner also relied on the medical opinion given

by the Escorts Hospital, Delhi stating that the treatment of the

petitioner should continue at Delhi, at least till the completion of

Fontan procedure which has to take at least two more years. According

to the petitioner, even the Army Hospital (R&R) also opined that the

treatment of the daughter of the petitioner should continue at Delhi.

13. Since the treatment of the daughter of the petitioner is to

continue for substantial period, the petitioner again sought premature

retirement on compassionate grounds on 15th February, 2012.

14. According to the petitioner, the request of the petitioner for

premature retirement has not been considered on the ground that in

terms of HRP Policy, once the posting of the petitioner has been issued,

his request for premature retirement would be considered only from his

new place of posting.

15. In these circumstances, the petitioner made several

representations, however, the petitioner has been ordered to report to

his new place of posting. The petitioner disclosed that the time for

joining the new posting at Pune has again been changed to 7th May,

2012 from 2nd April, 2012. In these circumstances, the petitioner has

sought the cancellation of his order of transfer and the direction to

report to the place of transfer i.e. Pune.

16. The petitioner has also contended that considering the entire

medical history of the daughter of the petitioner, he should not be

transferred to any place other than Delhi and his application for

premature retirement should be considered before transferring him to

any place.

17. The petitioner also disclosed that Sqn Ldr Pillai whom the

petitioner is supposed to relieve in Pune, too has made a representation

for the extension of his tenure at Pune because his posting which was

earlier issued to Delhi, has been diverted to Gandhinagar and

Bangalore and the said Air Force personnel has also requested for his

extension at Pune on the ground that his father is suffering from

cancer. In the circumstances, it is asserted that though the posting

order has been issued due to administrative constraints, it is working

against the human considerations involved in the matter. The petitioner

also contended that in the circumstances his request for premature

retirement ought to be considered and he should not be transferred

before the decision of his premature retirement.

18. The learned counsel for the respondents, Ms.Barkha Babbar who

appears on advance notice with Wing.Cdr.A.A.Amrite and

Wing.Cdr.R.Mohanty has relied on the alleged policy under which the

application of the petitioner for premature retirement cannot be

considered unless the petitioner joins the place to where he has been

transferred.

19. The learned counsel is, however, unable to give any satisfactory

reply as to why the application of the petitioner for premature

retirement cannot be considered in these peculiar and special facts and

circumstances of the case, as his transfer to Pune, would interfere with

the treatment of the petitioner's daughter in Delhi and she would not be

able to get the extensive cardiac treatment which she requires and also

in view of all the efforts of the petitioner for the past many years, which

may be lost if this transfer is effected.

20. The learned counsel for the respondents, on instructions, also

showed the apprehension of the respondents that the petitioner may

withdraw his application seeking premature separation from service.

21. Considering the facts and circumstances, it is apparent that in

case the petitioner joins his place of present posting on 7th May, 2012

the daughter of the petitioner may not be able to get the treatment

which she requires in the facts and circumstances and the efforts of not

only the petitioner but all the concessions shown by the respondents

from time to time up untill now for the past many years will also be

jeopardized and put to nought.

22. In the circumstances, the petitioner has been able to make out a

good case to direct the respondents to maintain status quo regarding

his posting at Delhi till the application of the petitioner for premature

retirement is decided by the respondents, considering the peculiar facts

and circumstances of the case.

23. After some arguments, the learned counsel for the petitioner, on

instructions from the petitioner, who is present in person, has stated

that the petitioner undertakes that he shall not withdraw the

application seeking premature separation from service dated 10th April,

2012 before the said application is considered and decided by the

Premature Separation Service Board (PSSB) or any other Special Board

which may be constituted by the respondents in this regard.

24. On the undertaking being given by the petitioner, Wing.Cdr.

A.A.Amrite, who is present in person, states that he is authorised on

behalf of the respondents to state that considering the peculiar and

exceptional circumstances of the present case and as has also been

opined by this Court, the petitioner shall not be transferred to Pune and

he shall not be directed to report on 7th May, 2012, and status quo in

respect of the petitioner shall be maintained as of today till the

application of the petitioner for premature separation is decided by the

Premature Separation Service Board or any other Special Board which

may be constituted by the respondents in this regard.

25. In the circumstances, if the Premature Separation Board or any

other Special Board recommends premature separation of the

petitioner, the petitioner shall also be entitled for three months

preparation time as contemplated under the rules. The petitioner

further undertakes that he shall not vary or withdraw the application

for premature retirement dated 10th April, 2012 which is pending

consideration, and that he shall also not seek more than three months

time from the date of the communication of the order accepting his

request for premature separation.

26. In case the application for premature separation of the petitioner

dated 10th April, 2012 is rejected by the Premature Separation Service

Board or any other Special Board constituted in this regard, in that

eventuality the respondents shall not implement the order of transfer to

Pune and will also not transfer him to any other place for four more

weeks, till after the communication of the order of rejection of the

application of the petitioner seeking premature separation. The

petitioner shall also be entitled to challenge any transfer order which

may be operative or which may be passed in case his application for

premature separation is not accepted and declined by the Premature

Separation Service Board or any other Special Board constituted in this

regard.

27. In the totality of the facts and circumstances and the statements

made on behalf of the petitioner and the respondents, the transfer order

dated 7th October, 2011 and the order dated 30th March, 2012 directing

the petitioner to report at Pune on 7th May, 2012 are set aside. It is

further directed that looking at the unique and unfortunate

circumstances of the petitioner's daughter, the respondents will not

pass any transfer orders transferring the petitioner to any place other

than Delhi till the disposal of the petitioner's application for premature

separation, and in case it is allowed, the petitioner shall be entitled for

three months preparation time thereafter and as has been observed in

this order hereinbefore.

28. With these directions, the writ petition is disposed off. This will

not be a precedent.

29. The order is announced in open court in the presence of the

counsels for both the parties and the petitioner and the respondents'

representatives.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY     04, 2012
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