Delhi High Court

Cpl Deepak Kumar vs Union Of India & Ors. on 26 July, 2022

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Reserved on:       July 12, 2022
                                   Pronounced on:        July 26, 2022
+     W.P.(C) 12085/2021 & CM APPL. 37784/2021
      CPL DEEPAK KUMAR                                     ..... Petitioner
                   Through:            Mr. Ajit Kumar Kakkar, Advocate

                          Versus

      UNION OF INDIA & ORS.                              ..... Respondents
                    Through:           Mr. Neeraj, Mr.Sahaj & Mr.Vedansh
                                       Anand, Advocates
      CORAM:

      HON'BLE MR. JUSTICE SURESH KUMAR KAIT
      HON'BLE MR. JUSTICE SAURABH BANERJEE

                          JUDGMENT

SURESH KUMAR KAIT, J

1. The present petition has been preferred by the petitioner seeking a

writ of mandamus directing the respondent to grant a posting to him at Delhi

NCR on compassionate / co-location grounds.

2. Petitioner got married on 09.10.2019. Petitioner is posted at Shillong,

while his wife is posted at New Delhi as TGT, Science at Kendriya

Vidayalya Snghthan, BSF Camp Chawla, New Delhi and, therefore, they

have not been able to lead conjugal life ever since their marriage. Even since

their marriage, petitioner's wife is residing at her parents' house. Petitioner

has averred that owing to the conditions of his service, he is unable to take

frequent leaves and is, therefore, able to meet his wife only once in 5-6

months. Further, due to family exigencies, petitioner's wife is unable to re-

locate herself from Delhi or resign from the job. In the afore-noted

circumstances, the petitioner claims to have made an application dated

13.01.2020 to the respondents for posting in Delhi on co-location grounds

after due recommendation from the Commanding Officer of his Unit, which

was turned down by the respondents vide communication/ reply dated

24.04.2020. Thereafter, petitioner claims to have made another application

date 06.07.2020 on the same grounds and prayed respondents to post him to

Delhi-NCR, which again was rejected.

3. According to petitioner, he got married against the wishes of his

parents and has been making efforts for reconciliation with them but is

facing difficulties since he is not getting time to establish contact with them.

His domestic life has further deteriorated as the relatives and parents of his

wife are pressurizing her for obtaining divorce. The Petitioner and his wife

have been facing tremendous mental agony due to fact that petitioner is

unable to avail leave for a long period of time and his representations were

rejected by the concerned authorities on the ground that they have no

children.

4. Petitioner further claims to have made another application dated

26.04.2021 requesting for reconsideration of posting on co-location grounds,

however, again the same was rejected by the respondents vide order dated

05.08.2021. Over and above, respondents vide order dated 17.09.2021, has

directed the petitioner to join duties at Thanjavur w.e.f. 22.11.2021, due to

which the petitioner's personal life has suffered a major setback.

5. During the course of hearing, learned counsel for petitioner submitted

that the reason put-forth by the authorities for declining his application is

that he does not have any children. Attention of this Court is drawn to the

conditions enumerated by the Government of India in Office Memorandum

bearing No. F.NO.28034/9/2009-Estt.(A) dated 30.09.2009 as well as Air

Headquarters Human Resource Policy Part III PA (Airmen) IPD/01/2013 for

grant of posting on co-location ground, wherein no such condition is

mentioned.

6. Learned counsel submitted that petitioner's wife also has approached

the Air Force Wives Welfare Association as well as written a request/letter

dated 13.08.2021 to the respondent submitting that they have not been able

to lead a marital life and establish a family together, but to no avail.

7. Learned counsel next submitted that that petitioner has constantly

served at critical areas with unparalleled dedication and despite his Low

Medical Category, he has been performing his duties efficiently and to the

complete satisfaction of his superiors. Petitioner has never requested the

authorities for a choice posting or a posting at or near his home zone ever

since his enrolment, whereas the requests of other similarly situated

personnel have been allowed on more than one occasion. Learned counsel

for petitioner submitted that petitioner's plea for co-location posting is based

on undoubted material hardship but has not been considered by the

respondents and vitiated by personal nepotism, which has led to

victimization of petitioner. In support of above submission, reliance is

placed upon Hon'ble Supreme Court's decision in E.P Royappa Vs. State of

Tamil Nadu And Another, (1974) 4 SCC 3 and decision of High Court of

Karnataka in W.P.No.29873/2016, titled as Ramachandra Singh Vs. Union

Of India.

8. Learned counsel empathically submitted that the petitioner is placed

in A4G4 (P) Medical category under the opinion of the Specialist, therefore,

the reasons accorded by the respondent for refusal on petitioner's

application is baseless and unreasonable.

9. The learned counsel appearing on behalf of

respondents, on the other hand submitted that the posting / transfer policy of

the Air Force is for best utilization of human resource and the Airmen such

as petitioner are transferred from one place to another on service exigencies

to balance their posting profiles. It was submitted by learned counsel that it

may not always be feasible to post an airman to a particular place of request

due to one or more reasons. Reliance is placed upon decision of Hon'ble

Supreme Court in Union of India & Ors. Vs. Cpl B.K. Verma to submit that

courts may not be satisfied with the policy but Courts ought not to substitute

its opinion for that of the Air Force. Reliance was also placed upon a

decision of this Court in SGT Aadesh Kumar Vs. Union of India & Ors.

2020 SCC OnLine Del 1967.

10. Further submitted that in terms of Para-29 of HRP 01/2020 (revised)

vide AIR HQ/S 40301/ PA-II dated 07.07.2020, husband and wife can be

posted at the same station to enable them to lead a normal life and to look

after their children, especially until the children are ten years of age

depending upon the trade proficiency utilization, however, petitioner does

not have any child and thus, his case is not covered under the said policy. It

was next submitted that postings in the air force are governed by provisions

under the policy Air HQ/S 40301/PA-II dated 07 July 20 {HRP 01/2020

(revised)} and the petitioner stands transferred to through automated posting

module on completion of stipulated tenure at the station, based upon his past

posing profile and trade utilization.

11. With regard to the present petition, learned counsel appearing for

respondents submitted that the petitioner is presently posted at Head Quarter

Eastern Air Command (Unit) Shillong w.e.f. 27.11.2017 and he stands

transferred/posted to 222 sqn, AF Thanjavur w.e.f. 22.11.2021. The

petitioner's applications dated 13.01.2020 and 29.04.2020 seeking posting

in New Delhi on co-location grounds, were considered and not found

feasible due to HRP constraints, as the couple does not have a child. For the

similar reasons, the request of petitioner's wife to Air Force Wife's Welfare

Association was also rejected. Thereafter, another application dated

13.08.2021 of petitioner's wife was disposed of by the respondents vide

order dated 02.12.2021 for the reasons of operational requirements and HRP

constraints. Another request of petitioner dated 20.09.2021 has also been

turned down on similar grounds.

12. With regard to the pleas that petitioner is able to meet his wife only

once in 5-6 months, learned counsel for respondents submitted that

petitioner is entitled to avail 60 days annual leaves and 30 days casual leaves

every year. Petitioner got married in the October, 2019 and thereafter, in the

year 2020 he availed all 60 days earned leaves and 03 casual leaves and in

the year 2021 petitioner has taken 56 days earned leave and 19 days casual

leave. Moreover, petitioner's wife is also entitled to various leaves

according to her entitlement under the Central Government rules.

13. On the plea of petitioner that parents of his wife are in need of

medical help of petitioner's wife, learned counsel for respondents submitted

that no documents in support thereof has been placed. Learned counsel next

submitted that the issues raised in the present petition are petitioner's family

issues, which are to be managed by the petitioner. Thus, dismissal of present

petition is sought by the respondents.

14. In rebuttal, our attention is drawn to Para-3 of the rejoinder to show

the names of the personnel whose request for co-location has been acceded

to by the respondents. Attention of this Court is also drawn to Para-4 of the

rejoinder to show the names of the personnel who have been posted in

Delhi, away from their home zone and native places. In response to this,

learned counsel for the respondents submits that petitioner cannot claim

parity with them and each case is individually considered on its own merits.

15. The submissions of learned counsel for the parties were heard and the

material placed on record has been perused by this Court.

16. Relevantly, the petitioner has filed several applications/

representations to the respondents since the year 2019 till 2021 praying for

his posting in Delhi area, which have been rejected by the competent

authority with the observation "that his case for posting in Delhi on co-

location grounds was examined and not found reasonable feasible due to

HRP constraints". Even respondent's wife has also made written requests to

the authorities for transfer of her husband i.e. petitioner, which stood

rejected citing similar reasons. In the additional affidavit dated 09.03.2022

filed on behalf of the petitioner, it is averred that by denying transfer, the

respondents have violated basic fundamental rights of the petitioner.

Petitioner has averred that it is Air Force's own policy to prefer Airmen to

undergo a specific course and gain specialized training for his trade,

however, the petitioner herein has not undergone any specialized course due

to his Low Medical Category and, thereby, he is not performing the work

under the Trade for which he was inducted and instead, he is assigned the

work in Administrative Office as a clerical staff. Petitioner has also placed

before this Court names and details of officers who have been posted in

Delhi and who belong to the similar trade. However, the respondents in their

affidavit dated 30.05.2022 have pleaded that those officials were posted

away from their homezone and their native places, as per their previous

posting profiles, courses, specialization and vacancies existed in the

particular time.

17. Pertinently, the posting of Airmen is governed by Air Headquarter

Human Resource Policy PART II/PA (AIRMEN)/ PD/01/2020 vide Air HQ/

S 40301/PA II dated 07.07.2020 (revised), Paras-29 and 30 whereof

enumerate terms of co-location posting for Airmen, which read as under:-

"29. Co-location Posting- (Spouse Employed in Central/ State Govt. / Public Sector Undertakings) As per the GOI policy as amended from time-to-time on the subject, as far as possible within the constraints of administrative feasibility., husband and wife should be posted at the same Station to enable them to lead a normal family life and look after welfare of their children, especially until the children are ten years of age depending on TPU. Airman will be posted to requested place as far as possible on TPU and tenure will be depending on utilization driven by organizational requirement Airmen whose spouse is a permanent employee of Central/State Govt./Public Sector Undertakings only are eligible for consideration for co-location posting. However, this privilege is not applicable for the airmen whose wife is working in Central/ State Govt. aided institutions. Appointment letter and latest serving certificate (certifying permanent employability) from the employer/ head of the organization should be attached with the application.

30. It may not be always to post an airman to a particular

place of request due to one or more of the following reasons:-

(a) Manning Constraints

(b) Non availability of AF Stns/ Units at the place requested

(c) Past Posting Profile of the airman e.g. if an airman had a posting at the place of request or to nearby area in the past ten years.

(d) Non utilization of TPU in the place of request/ Home Zone.

(e) In case spouse is on compassionate grounds posting.

(f) If an airman has availed a posting to his home zone, irrespective of the grounds (Hard Area Choice/ compassionate), then he will not be considered for a posting again to his home zone, whether it is co-location/ compassionate grounds before completing a gap of 10 years."

18. In the present case, the petitioner who is posted at Head Quarter

Eastern Air Command (Unit) Shillong w.e.f. 27.11.2017, stands

transferred/posted to 222 sqn, AF Thanjavur w.e.f. 22.11.2021, and by the

present petition he is seeking posting in Delhi on co-location grounds.

19. Pertinently, the petitioner is seeking his transfer to New Delhi on the

ground that his case is covered under the afore-noted policy and in terms of

Para-29 thereof, he has a right to live in Delhi with his wife to lead a normal

married life. Besides, petitioner has also claimed that for last 10 years he has

never claimed posting in his home zone on any ground. Also that since his

marriage in the year 2019, he has been able to meet his wife only once in 5-6

months and that his wife is unable to re-locate to his place of posting due to

her job requirements and family commitments. In support of his case,

petitioner has relied upon Hon'ble Supreme Court's decisions in E.P

Royappa (Supra) and Ramachandra Singh (Supra).

20. In E.P Royappa (Supra), the Hon'ble Supreme Court had determined

the issue whether a new post in the same cadre would involve same status

and responsibility and also whether right of challenge is limited to those

who have a right to post. The issues raised therein were factually different

and therefore, reliance placed upon decision in E.P Royappa (Supra) by the

petitioner is of no assistance..

21. In Ramachandra Singh (Supra), the petitioner had challenged his

transfer order on the ground that he was left with only 15 months service

and the High Court of Karnataka had in the facts of the said case had

considered that the petitioner had already filed a representation before the

competent authority when he had 19 months to retire i.e. much prior to

receipt of his transfer/movement order; the court had directed the

respondent- Union of India to decide petitioner's representation in view of

the fact that no guidelines were placed before the court to determine as to

whether the option to request for last leg posting was not available to

petitioner, who was a Subedar Major and completed two years in one place

and also, as to whether he was mandatorily required to serve the rest of his

period in another unit regardless of the fact he was retiring within few

months. The facts of the said case are different from the one in hand and as

such no help to the case of petitioner.

22. A perusal of the Policy governing posting of Airmen, as noted in

Para-17 above, shows that it notes that the administrative possibilities to

post husband and wife at the same station for leading a normal family life

should be ensured by the authorities, subject to fulfilling the criteria laid

down in Para-30 thereof. However, an order of transfer or posting is an

incident of Government and a Government servant has no vested right to

claim his choice of posting. On this aspect, the Hon'ble Supreme Court in

Bank of India Vs. Jagjit Singh Mehta, (1992) 1 SCC 306 has held as

under:-

"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different

stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."

23. Further, the Supreme Court in Union of India Vs. S.L. Abbas (1993) 4 SCC 357 has observed and held as under:-

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right."

24. In view of the dictum of Hon'ble Supreme Court in Bank of India

(Supra) and Union of India (Supra), this Court is of the opinion that the

petitioner cannot be permitted to raise the claim of posting to Delhi on the

ground to live with his wife.

25. Now coming to the other pleas urged by the petitioner that he is able

to meet his wife only once in 5-6 months as he is unable to avail frequent

leaves, respondents have stated that petitioner is entitled to avail 60 days

annual leaves and 30 days casual leaves every year. In the year 2020,

petitioner had availed all 60 days earned leaves and 03 casual leaves; and in

the year 2021 petitioner had taken 56 days earned leaves and 19 days casual

leaves. Moreover, petitioner's wife is also entitled to various leaves

according to her entitlement under the Central Government rules. In this