Delhi High Court
Commander Ashley Derrick vs Union Of India And Others on 4 November, 2020
A-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 4th November, 2020
+ W.P. (C) 8656/2020, C.M. Appl. No.27858/2020 (of the petitioner
for stay)
COMMANDER ASHLEY DERRICK .....Petitioner
Through: Mr. Shakti Chand Jaidwal,
Advocate
versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. Naginder Beniwal, Senior
Panel Counsel for R-1, R-3 and R-
Mr. Harish Vaidyanathan Shankar,
CGSC for R-2, Advocates
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, a Commander in the respondents Indian
Navy, has filed this petition impugning the order dated 10 th
February, 2020 of his transfer from Goa to Kochi and seeking
mandamus to the respondents Indian Navy to allow the petitioner
to remain in Goa till his daughter completes her 11th and 12th
standard from the same school and to consider the request of the
petitioner for premature retirement from service, keeping in view
his domestic compulsion.
2. The counsel for the respondents Indian Navy appears on
advance notice and having prima facie not found any merit in the
petition on going through the same, we have heard the counsel for
the petitioner at length at this stage only.
3. It is the case of the petitioner, (i) that he was commissioned
in the Indian Navy on 1st July, 1999 and trained as a helicopter
pilot; (ii) in the year 2013, he was posted to Goa; (iii) he remained
posted in Goa for 7 years, contrary to the normal tenure of three to
five years, for reasons not attributable to the petitioner himself but
on account of exigencies of the respondents Indian Navy; (iv)
ultimately, vide impugned order dated 10th February, 2020, the
petitioner was transferred to Kochi with effect from April, 2020;
(v) that the petitioner was happy on being transferred to Kochi,
being his hometown; (vi) that the petitioner has two daughters and
one son and one of the daughters was to join Class XI and the
petitioner requested the respondents Indian Navy to retain him in
Kochi for two years, intending that his daughter would complete
Class XII from Kochi; (vii) however the transfer order which was
to come into effect in April, 2020 could not come into effect on
account of the prevalent Covid-19 pandemic; (viii) the petitioner,
in July, 2020 was informed that his reliever in Goa will report
only in August, 2020; (ix) since the petitioner, on not being
relieved from Goa, had admitted his daughter to Class XI in the
school in Goa, the petitioner on 10th July, 2020, applied for
cancellation of his transfer, which was rejected, and also applied
for premature retirement with effect from 31st December, 2021;
(x) that the reliever of the petitioner joined on 24th August, 2020
and vide movement order dated 28th October, 2020, the petitioner
has been asked to proceed to Kochi; (xi) that the daughter of the
petitioner is under stress, on account of instability of the transfer
and is under treatment therefor; (xii) that if the petitioner is
compelled to leave his daughter in Goa, she would suffer more;
and, (xiii) that the daughter of the petitioner cannot join in Class
XI in the school in Kochi at this stage.
4. We have enquired from the counsel for the petitioner that
once the petitioner knew of his transfer to Kochi as far back as on
10th February, 2020, even if had not been relieved from Goa, why
did he not make provision for admission of his daughter in the
intended school at Kochi in Class XI; the petitioner could have
then joined his family at Kochi on being relieved.
5. The only answer which is forthcoming is that since the
petitioner did not know till when he will have to continue at Goa,
he did not do the same.
6. The counsel for the respondents Indian Navy appearing on
advance notice states that the Indian Navy has a navy school at
Kochi and the children of the petitioner will be granted admission
therein.
7. The counsel for the petitioner states that the petitioner did
not intend his daughter to join the navy school and wanted her to
join a convent school in Kochi since she is studying in a convent
school in Goa.
8. What we have been reading about school education till now
appears to indicate that the convent school in Kochi is unlikely to
have any difficulty in admitting the daughter of the petitioner at
this stage even, since all the classes are being held online.
9. Moreover, on a perusal of the medical certificates of the
daughter filed, we find her to be under treatment since 13 th July,
2019. Though in earlier times we did not hear of children suffering
from examinations stress but of late the newspaper and magazines
are full of write-ups about children facing examinations suffering
from stress and since the daughter of the petitioner had to take
Class X examination and has been suffering from stress since
then, it cannot be said that the stress from which the daughter is
said to be suffering from is attributable to the service of the
petitioner. Even otherwise, considering the nature of the service of
the petitioner, the petitioner and his family must be used to living
apart from time to time and we are unable to accept the only
reason given for impugning the transfer.
10. Else, interference with transfer can only be on the grounds of
violation of the rules or malafides and none of which ground is
invoked. Reference in this regard can be made to Shilpi Bose Vs.
State of Bihar (1991) Supp (2) SCC 659, N.K. Singh Vs. Union
of India (1994) 6 SCC 98, State Bank of India Vs. Anjan Sanyal
(2001) 5 SCC 508, National Hydroelectric Power Corporation
Ltd. Vs. Shri Bhagwan (2001) 8 SCC 574, Union of India Vs.
Janardhan Debanath (2004) 4 SCC 245, State of U.P. Vs. Siya
Ram (2004) 7 SCC 405, Government of Andhra Pradesh Vs. G.
Venkata Ratnam (2008) 9 SCC 345, Rajendra Singh Vs. State of
Uttar Pradesh (2009) 15 SCC 178 and our recent judgments in
W.P. (C) 6755/2020 dated 22nd September, 2020 titled Shri
Bhagwan Vs Union of India, Aadesh Kumar Vs Union of India
MANU/DE/1872/2020 and Baikuntha Nath Das Vs. Central
Reserve Police Force MANU/DE/1708/2020. It has been held in
Major General J.K. Bansal Vs. Union of India (2005) 7 SCC 227
that the scope of interference by the Courts with reference to
members of the Armed Forces is even more limited and narrow
and unless an exceptionally strong case is made out, no
interference should be made.
11. We may record that we were wanting to desist from making
observations with respect to the daughter of the petitioner or
recording about her medical treatment and had, after the hearing
informed the counsel for the petitioner that if he confines the relief
only to a short time being granted to move, we may allow that but
it is on the insistence of counsel for the petitioner that we have
been constrained to make observations about children who are not
before the Court and whose father, unfortunately has not shied
from using them for the purpose of approaching the Court to avoid
his transfer.
12. The counsel for the petitioner states in reply to the question
recorded in para 4 above, that the petitioner had made
arrangement in March, 2020 to transfer the school of his children
but did not implement the same because of Covid-19.
13. Dismissed.
RAJIV SAHAI ENDLAW
(JUDGE)
ASHA MENON
(JUDGE)
NOVEMBER 04, 2020
ck
