Wing Commander ... vs Union Of India
2021 Latest Caselaw 2742 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

      MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                       WP(C).No.1488 OF 2021(I)


PETITIONER:

               WING COMMANDER A.MAHESH(NO.26641 G),
               AGED 42 YEARS,
               HQ SOUTHERN AIR COMMAND, INDIAN AIR FORCE,
               AKKULAM, THIRUVANANTHAPURAM-695 030.

               BY ADVS.
               SRI.KALEESWARAM RAJ
               SRI.VARUN C.VIJAY
               SMT.MAITREYI SACHIDANANDA HEGDE

RESPONDENTS:

      1        UNION OF INDIA, REPRESENTED BY THE SECRETARY,
               MINISTRY OF DEFENCE, NEW DELHI-110 011.

      2        THE CHIEF OF AIR STAFF, AIR HEAD QUARTERS,
               (VAYU BHAVAN), NEW DELHI-110 011.

      3        GROUP CAPTAIN, VIKRAM SINGH,
               DIRECTOR OF PERSONNEL (OFFICERS), AIR HEAD QUARTERS,
               (VAYU BHAVAN), NEW DELHI-110 011.

      4        GROUP CAPTAIN, P.K.AWASTHI, SER NO 21836-H, HQ IDS,
               KASHMIR HOUSE, NEW DELHI-110 011.

      5        AIR MARSHAL AMIT TIWARI,
               AIR OFFICER COMMANDING IN CHIEF,
               HQ SOUTHERN AIR COMMAND
               AKKULAM, THIRUVANANTHAPURAM-695 031.

      6        COMMANDING OFFICER,
               HQ SOUTHERN AIR COMMAND UNIT,
               AKKULAM, THIRUVANANTHAPURAM-695 031.

      7        SREESH, COMMAND MAINTENANCE AND INSPECTING OFFICER,
               HQ SOUTHERN AIR COMMAND,
               AKKULAM, THIRUVANANTHAPURAM-695 031.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1488 OF 2021(I)

                             -2-

                           JUDGMENT

Dated this the 25th day of January 2021

This writ petition is filed seeking the

following reliefs:

i) To issue a writ of certiorari quashing Ext.P4 to the extent to which it proposes to transfer the petitioner from Thiruvananthapuram to Assam as unjust, arbitrary, unsustainable and vitiated by malafides;

ii) To issue a writ of certiorari quashing Ext.P7 and Ext.P8 as unjust, arbitrary, unsustainable and vitiated malafides;

iii) To declare that the petitioner is not liable to be transferred out from his present station, as proposed in Exts.P4, P7 and P8;

iv) To issue a writ of mandamus directing the respondents 2 and 3 to pass orders retaining the petitioner either at Shanghumugham base or Akkulam Base in Thiruvananthapuram by cancelling Exts.P4, P7 and P8.

v) To issue a writ of mandamus directing the respondents 2,3,5 and 6 to refrain from implementing Exts.P4, P7 and P8 against the petitioner and to direct the respondents to permit the petitioner to continue is his present station, in the present post.

vi) To issue such other orders, directions or writs as may be prayed for under the facts and circumstances of the case.

WP(C).No.1488 OF 2021(I)

2. Heard the learned counsel for the

petitioner and the learned Assistant Solicitor

General of India appearing for the respondents.

3. It is submitted by the learned counsel for

the petitioner that the petitioner had been

transferred to Jorhat in Assam without considering

the contentions with regard to his medical

condition. By Ext.P6 judgment, dated 08.01.2021, in

W.P.(C)No.20597 of 2020, this Court had directed the

third respondent to take up the request made by the

petitioner by Ext.P11 and to pass orders on the same

taking note of the contentions raised by the

petitioner as well, within a period of three weeks

from the date of receipt of a copy of this judgment.

4. It is also submitted by the learned counsel

for the petitioner that immediately thereafter,

Ext.P7 Signal dated 13.01.2021, had been issued to

the petitioner stating that his posting on

compassionate grounds has been cancelled and that he

is required to joint at Jorhat on 1st February, 2021.

5. The learned ASGI submitted, on

instructions, that the issue has been considered

pursuant to Ext.P6 judgment and a speaking order has WP(C).No.1488 OF 2021(I)

been passed. However, when the matter has been

taken up today, the speaking order made available to

this Court is seen dated 22.01.2021. It is submitted

by the learned ASGI that it is the usual practice in

the defences to issue the posting orders which will

be followed by speaking orders. However, the

instant case is one where this Court had directed a

consideration of the petitioner's claim. Since

Ext.P7 is dated 13.01.2021 and Ext.P8 is seen issued

on 15.01.2021, I find that the directions contained

in Ext.P6 judgment for consideration of the request

made by the petitioner had not been complied with

before those orders have been issued.

6. In the above view of the matter, I am of

the opinion that the speaking orders passed after

Exts.P7 and P8 will not do duty for a consideration

of the request made by the petitioner as per Ext.P6

judgment.

7. In the light of the above, the posting

orders issued to the petitioner without considering

his request for retention, on the strength of

Ext.P6, are set aside. There will be a direction to

the authority who passed the speaking order to WP(C).No.1488 OF 2021(I)

reconsider the request of the petitioner for

retention, taking note of the contentions of the

petitioner specifically with regard to his medical

condition and to pass a speaking order on the same

before requiring the petitioner to move on the basis

of Exts.P7 or P8.

Notice can be served and hearing of the

petitioner can be conducted through any appropriate

means including video conferencing. The contentions

of the petitioner shall also be considered passing

orders.

Sd/-

ANU SIVARAMAN

JUDGE

akv WP(C).No.1488 OF 2021(I)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER IN THE MOTH OF JULY, 2018

EXHIBIT P2 TRUE COPY OF THE MEDICAL BOARD RECOMMENDATION

EXHIBIT P3 TRUE COPY OF THE POSTING SIGNAL NO 2020/PO-

1-AHQ/PO/606 DATED 26.2.2020

EXHIBIT P4 TRUE COPY OF POSTING SIGNAL NO 2020/PO-1-

AHQ/PO/602 DATED 23.9.2020

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 25.9.2020 SUBMITTED BY THE PETITIONER

EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 8.1.2021 IN WPC NO 20507/2020

EXHIBIT P7 TRUE COPY OF THE SIGNAL NO 2021/PO-1-

AHQ/PO/695 DATED 13.1.2021

EXHIBIT P8 TRUE COPY OF THE SIGNAL NO AIR HQ/21641/26641/PO-1(M) DATED 15.1.2021

EXHIBIT P9 TRUE COPY OF THE REMARKS MADE BY THE SECTION COMMANDER ON 25.9.2020

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE