Delhi High Court
Corporal Gautam Karmakar vs Union Of India & Ors on 10 September, 2021
$~A-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9972/2021
CORPORAL GAUTAM KARMAKAR ..... Petitioner
Through: Mr. Ajeet Yadav, Advocate.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Avnish Singh, Advocate with
Mr. Mohit and Ms. Pushplata Singh,
Advocates.
% Date of Decision: 10th September, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
MANMOHAN, J (Oral):
CM Appls.30757-30758/2021 (exemption)
Allowed, subject to just exceptions.
Accordingly, present applications stand disposed of.
W.P.(C) 9972/2021 & CM Appl.30756/2021
1. Present writ petition has been filed challenging the impugned order
dated 09th June, 2021 effectuating the posting / transfer of the petitioner.
2. Learned counsel for petitioner states that petitioner stands posted /
transferred by the respondents from New Delhi to Amla (MP) on completion
of merely one year against the normal tenure of five years at New Delhi [as
per HRP 01/2020] and he is required to report at new unit at Amla (MP) on
13th September, 2021 on ground of Low Medical Category [obesity]. It is
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pertinent to mention that the petitioner was declared in Low Medical
Category vide medical board conducted on 07th March, 2018.
3. He states that as per the rejection letter dated 30th July, 2021, the
respondent posted the petitioner to Amla (MP) as obese personnel are
ineligible for posting to Class 'X' cities in accordance with Para 14(h) of
AOP Directive 01/2017. The said para 14(h) is reproduced hereinbelow:-
"14. Disincentives for Obesity. Following steps will be
implemented by the P branch to disincentivise obesity and
personnel who are medically unfit.
xxx xxx xxx
(h) Ineligible for posting to Class X cities."
4. It is the contention of learned counsel for petitioner that HRP 01/2020
[Human Resource Policy] is the only policy that regulates the posting of
petitioner and the said HRP puts no general bar on posting of Airmen on the
basis of obesity and therefore, the application of AOP Directive 01/2017 in
posting out the petitioner out of New Delhi to Amla (MP) is ultra-vires the
respondents' own HRP 01/2020. The relevant portion of HRP 01/2020
dated 07th July, 2020 is reproduced hereinbelow:-
"Request Posting
22. The air warriors seeking posting on own request are to
submit personal application to their AOC/Stn Cdr/CO along with
the Proforma duly filled as per Appendix L to this HRP. All
relevant documents in support of the grounds stated in the
application should invariably be attached. The application
should be thoroughly scrutinised before being recommended and
forwarded to respective Command HQ, who along with their
recommendation would forward the same to AFRO in
single copy except in respect of Med Asst tradesmen which would
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be in duplicate. Applications in respect of air warriors posted at
Air HQ. Units under Air HQ and other miscellaneous Units are
to be forwarded directly to AFRO with recommendation of
concerned AOC/Stn Cdr. Application once turned down should
not be forwarded again for reconsideration on similar grounds
within a period of six months. Application on compassionate
grounds stating medical reasons should have the remarks from
SMO and PMO of parent unit/Command HQ. However, in case
of Obesity cases/Red Ink entry for an offence involving Violation
of AF good order & Discipline, Moral Turpitude, Financial
misappropriation in last five years, following provisions shall be
applied:-
(a) Ineligible for choice posting related requests, except on
completion of specified tenure at Category A & B Stns.
(b) Ineligible for posting to Class 'X' cities.
(c) Cases of unforeseen situation like life threatening disease
or cases requiring medical attention only at class X cities
may be considered on case to case basis.
(d) If an airman becomes obese after being earmarked for
request posting, his earmarking is liable to be cancelled.
(e) If an airman becomes obese while being posted to Class X
cities, he is liable to be posted out before completion of
normal tenure.
xxx xxx xxx
Supersession of Existing Policy
73. This policy supersedes all the previous instructions and
amendments issued on the subject and will come into force
from the date of issue of HRP 01/2020 ie 24 Feb 20."
(emphasis supplied)
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Signing Date:14.09.2021
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5. This Court is of the view that the Human Resource Policy being HRP
01/2020 does not supersede or overrule the AOP Directive 01/2017 whose
main objective is to control obesity in the Indian Air Force.
6. This Court is of the opinion that with the same objective to promote
fitness and to disincentivise obesity, the Indian Air Force has stipulated in
paragraph 22 of HRP 01/2020 that obese officials are not entitled to request
for posting to Class 'X' cities and if any officer while being posted to Class
'X' cities becomes obese, he shall be liable to be posted out even prior to
completion of normal tenure. Consequently, though there may be some
overlap between HRP 01/2020 and AOP Directive 01/2017, yet both can be
reconciled and implemented as there is no contradiction between them.
7. This Court is further of the opinion that both the HRP 01/2020 and
AOP Directive 01/2017 are fair, reasonable and have been issued for a
salutary purpose.
8. It is settled law that heading of a statutory provision or Directive
cannot control the language used. Accordingly, assuming without admitting
that AOP Directive 01/2017 does not survive, this Court upon a holistic
reading of para 22 of HRP 01/2020 is of the opinion that obese officials are
not entitled to posting to Class 'X' cities.
9. In the present case, this Court is of the view that petitioner was not
eligible for posting to Delhi, as he was admittedly obese (in accordance with
the Medical Board conducted on 17th March, 2018) even on the date of his
posting to Delhi.
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Digitally Signed
Signing Date:14.09.2021
22:53:27
10. Accordingly, present writ petition and application being bereft of
merit are dismissed.
MANMOHAN, J
NAVIN CHAWLA, J
SEPTEMBER 10, 2021
js
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Signing Date:14.09.2021
22:53:27
