Hav Ram Partap vs Union Of India And Ors
2016 Latest Caselaw 2353 Del

$~17.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       W.P.(C) 2629/2016 and CM 11150/2016
        HAV RAM PARTAP                           ..... Petitioner
                    Through: Mr. S.M. Dalal, Advocate

                          versus

        UNION OF INDIA AND ORS                      ..... Respondents
                      Through: Mr. Rakesh Kumar, Advocate with
                      Mr. Siddharth Khatana, Advocate with Col.
                      Digvijay Singh, CW-1 and Col. Ashok Arora,
                      Rajputana Rifles Regimental Training Centre.

        CORAM:
        HON'BLE MS. JUSTICE HIMA KOHLI
        HON'BLE MR. JUSTICE SUNIL GAUR

                          ORDER

% 23.03.2016

1. The present petition has been filed by the petitioner, who as per the

averments made in the petition, was enrolled in the Rajputana Rifles as a

Sepoy/Musician and was permanently posted with the Army Symphony

Band w.e.f. 16.05.2000, praying inter alia for quashing the transfer orders

dated 10.03.2016 and 14.03.2016.

2. The petitioner claims that in all these years, he has been performing

his duties to the entire satisfaction of his superiors and was promoted as a

Havaldar on 16.05.2010. On 07.9.2015, some altercation had taken place

between the petitioner and Havaldar Anil Kumar of the Army Band which

had resulted in holding a Court of Enquiry. The said Court of Enquiry had

recommended that the petitioner and Havaldar Anil Kumar be awarded

seven days pay fine, a minor punishment. Subsequently, vide Signal dated

25.02.2016, the petitioner and Havaldar Anil Kumar were transferred to

their parent Regiment on "Disciplinary Ground". This was followed by

another transfer order dated 10.03.2016, whereunder the petitioner was

posted to Bengal Engineer Group Centre at Kirkee. Lastly, the respondents

had issued a Signal dated 14.03.2016, attaching the petitioner to NDA,

Khadakwasla.

3. Counsel for the petitioner states that the petitioner originally belongs

to Rajputana Rifles and there is no policy of transferring the incumbent from

one Regiment to the other. He further states that aggrieved by the aforesaid

transfer order, the petitioner had submitted a representation dated

16.03.2016 to the DDG, CW-1, which is still pending consideration and in

the meantime, vide order dated 14.03.2016, he has been directed to vacate

the family accommodation occupied by him at Delhi, by 31.03.2016.

4. Counsel for the respondents states that it is not as if the vacation order

has been passed on 14.03.2016, rather, in the transfer order dated

25.02.2016, the petitioner was advised to vacate the family accommodation

by 31.03.2016 and therefore he cannot claim that he was not given ample

notice. He adds that the petitioner's performance has not been upto the mark

for the past one year and he has been advised to improve his performance,

but to no avail.

5. We are informed that the performance review for musical instruments

of the members of the Army Band is due on 30/31.03.2016. The

respondents have no objection if the petitioner's performance is reviewed on

the said date. Further, counsel for the respondents states on instructions that

the pending representation of the petitioner dated 16.03.2016 asking for

cancellation of his transfer order shall be considered keeping in mind the

rule position and a decision shall be communicated to him immediately after

his performance is assessed at the end of March, 2016.

6. Having regard to the aforesaid submission, the present petition is

disposed of alongwith the pending application, with directions issued to the

respondents to permit the petitioner to participate in the performance review

for musical instruments fixed on 30/31.03.2016 and thereafter decide his

representation dated 16.03.2016 in accordance with law, under written

intimation to him. Till 7.4.2016, the respondents are restrained from taking

any coercive action against the petitioner. If the petitioner applies for leave

upto 07.04.2016, the same shall be considered by the respondents

sympathetically.

7. The aforesaid order has been passed on the condition that on being

directed, the petitioner shall ensure that he appears in the performance

review for musical instruments to be held at the end of March, 2016.

DASTI to the counsel for the respondents under the signatures of the

Court Master.

HIMA KOHLI, J

SUNIL GAUR, J MARCH 23, 2016 rkb/ap