Vikas Dhankhar vs Union Of India And Ors
2020 Latest Caselaw 1979 Del

#2
       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment Delivered On: 12.06.2020


W.P.(C) 3064/2020, CM APPL. 10663/2020 (Stay)


VIKAS DHANKHAR                                             ......Petitioner


                                  versus


UNION OF INDIA AND ORS                                 ......Respondents


Advocates who appeared in this case:
For the Petitioner          : Mr. Sanjoy Ghose, Advocate

For the Respondents        : Ms. Mrinalini Sen and Mr. Tanmay Yadav,
                             Advocates with Major Arjun and Major S
                             Mahindra

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE TALWANT SINGH

                                  JUDGMENT

SIDDHARTH MRIDUL, J. (via Video Conferencing)

CM APPL.12439/2020 (Exemption)

The present application under Section 151 of the Code of Civil

Procedure, 1908 has been filed on behalf of the applicant/petitioner

seeking exemption from filing duly attested affidavits in support of the

accompanying petition and the application and also to pay the

requisite court fees.

For the reasons stated in the application and in view of the

present prevailing situation, the same is allowed. The

applicant/petitioner is allowed to file the duly signed and attested

affidavits within a period of one week from the date of resumption of

regular functioning of the Court. Further, the applicant/petitioner is

allowed to file the requisite court fee within a period of 72 hours from

the date of resumption of regular functioning of the Court.

With the above directions, the present application is disposed of.

W.P.(C) 3064/2020 & CM APPL.11856/2020

1. The present petition under Article 226 of the Constitution of

India, essentially and substantially assails the issuance of the order

dated 23.04.2020, by the official respondents, whereby the petitioner

has been posted out to 159 Infantry Battalion (TA) (H&H) DOGRA,

Jammu & Kashmir as part-time Company Commander, located at

Doda, Jammu & Kashmir.

2. It is the petitioner's case that, the impugned order 23.04.2020, is

contrary to the statutory rules.

3. The writ petition is listed for hearing on 23.07.2020.

4. In the meantime, the petitioner instituted CM APPL.

No.11856/2020 praying as follows:

"A. Direct the Respondents to consider retaining the Applicant with his parent unit, i.e. 105 Bn, at Srinagar, Jammu and Kashmir, during the pendency of the present petition, while issuing the necessary Embodiment Order, as an interim measure; and, B. Any other order or direction that this Hon'ble Court may deem fit in the interest of justice."

5. In the instant application, we issued notice to the official

respondents, wherein they were directed to file a reply thereto, within

three working days, with an advance copy to the learned counsel

appearing on behalf of the petitioner, who was at liberty to file a

rejoinder, if any, before the next date of hearing i.e. today, 12.06.2020.

6. Upon a perusal of the rejoinder affidavit, filed on behalf of the

petitioner in the instant application, it emerges that, vide notification

dated 11.08.2010, it has been stipulated that the Units of the Territorial

Army are divided into five zones and further that whereas Delhi falls

within Zone-I thereof, the state of Jammu and Kashmir falls in Zone-

V.

7. This notification dated 11.08.2010 belies the stand hitherto

taken by the official respondents including in their reply to the present

application to the effect "that the applicant has only been transferred

to another Infantry TA, Provincial Unit, as per Rule 13(2) [of the

Territorial Army Rules, 1948] in the same zone".

8. In view of the foregoing and without expressing any opinion on

the merits of the case and whilst reserving liberty to the petitioner to

raise other issues articulated in the present writ petition, in an

appropriate proceeding, at an appropriate stage; the only course of

action that commends itself is to direct the official respondents to

revisit and reconsider the impugned order dated 23.04.2020, whereby,

the petitioner, as afore-stated, has been transferred to 159 Infantry

Battalion (TA) (H&H) DOGRA, Jammu & Kashmir as a part-time

Company Commander, located at Doda, Jammu and Kashmir, in the

light of the said notification dated 11.08.2010, annexed by the

petitioner to the rejoinder affidavit filed in the application being CM

APPL. No.11856/2020.

9. The direction is being issued pursuant to the factual and legal

position, that emerges from the foregoing discussion that, whilst

transferring the petitioner to Doda, Jammu and Kashmir, which is in

Zone-V, the official respondents omitted to consider that his present

posting at 105 Infantry Battalion (TA) Rajputana Rifles is in Delhi,

which falls in Zone-I. This axiomatically, is contrary to the stand

taken by the official respondent that, although the petitioner has been

transferred to a Unit in another State, but within Zone-I only. It would

consequently become necessary for the official respondents to

consider the posting of the petitioner afresh, in terms of the statutory

rules and regulations, governing the transfer-posting, and in particular

in terms of the stipulation provided vide the said notification dated

11.08.2010.

10. The present application and the writ petition are partly allowed

and disposed of accordingly, whilst reserving liberty to the petitioner

to approach this Court, if he is aggrieved by the outcome of the

proposed reconsideration of transfer-posting by the official

respondents, as directed.

11. No further directions are sought for or required, either in the

application or the writ petition.

12. A copy of this order be uploaded on the website of this Court

forthwith.

SIDDHARTH MRIDUL (JUDGE)

TALWANT SINGH (JUDGE)

JUNE 12, 2020 dn/as