Sub (Pa) C. Suresh Babu vs Colonel (Pers), Directorate ...
2022 Latest Caselaw 9025 Ker

W.P.(C).No.6322 of 2021
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                          WP(C) NO. 6322 OF 2021
PETITIONER:

             SUB (PA) C. SURESH BABU
             AGED 49 YEARS
             S/O. K M NARAYANAN NAIR, JC- 670281W, HQ 91
             INFANTRY BRIGADE, PANGODE, TRIVANDRUM, PIN 695
             006

             BY ADVS.
             K.M.SATHYANATHA MENON
             SMT.KAVERY S THAMPI



RESPONDENTS:

     1       COLONEL (PERS), DIRECTORATE GENERAL OF SUPPLY AND
             TRANSPORT (ST 12)
             DIRECTORATE GENERAL OF SUPPLY AND TRANSPORT (ST
             12), QUARATERMASTER GENERALS BRANCH, INTEGRATED
             HQ OF MOD (ARMY)
             DHQ PO, NEW DELHI 110 011

     2       OFFICER COMMANDING,
             HQ 91 INFANTRY BRIGADE, PANGODE MILITARY CAMP,
             PANGODE, TRIVANDRUM 695 006

     3       LIEUTENANT COLONEL,
             ESTABLISHMENT OFFICER, HQ 10 CROPS
             (ESTABLISHMENT)
             PIN 908510
             C/O. 56 APO
 W.P.(C).No.6322 of 2021
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     4          SUB MAJ/PA M.E BIJU,
                JC0667119N, HQ 10 ARTILLERY BRIGADE, PIN 926910
                C/O. 56 APO TANDA, JAMMU AND KASHMIR, PIN 181 201

                BY ADV KRISHNA S., CGC




         THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 7.07.2022, THE COURT ON 27.07.2022 DELIVERED
THE FOLLOWING:
 W.P.(C).No.6322 of 2021
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                          ANU SIVARAMAN, J.
                     = = = = = = = = = = = = = = =
                         W.P.(C).No.6322 of 2021
                    = = = = = = = = = = = = = = = =
                   Dated this the 27th day of July, 2022

                                   JUDGMENT

1. This writ petition is filed seeking the following prayers:-

"a) Issue a writ of certiorari or any other appropriate, writ, order or direction calling for the Original of Ext.P6 and quash the same;

b) issue a writ of mandamus or any other appropriate writ order or direction, directing the 1st respondent to consider Ext P4 in the light of the posting policy of Indian Army for officers having differently abled children for specialized treatment on sympathetic grounds and extend the posting order of petitioner with 2nd respondent and also to permit the petitioner to continue at the office of the 2 nd respondent for another period of two years."

2. Heard the learned counsel for the petitioner and the learned

Central Government Counsel appearing for the 4 th

respondent. It is submitted by the learned counsel for the

petitioner that the petitioner is a Junior Commissioned Officer

of the Indian Army and is presently serving at

Thiruvananthapuram.

W.P.(C).No.6322 of 2021

3. It is submitted that the petitioner was posted with 2nd

respondent from 2.10.2017 on medical ground from HQ CIF

(K). It is submitted that petitioner has one son and a

daughter. Petitioner's daughter is aged 11 years and she is a

special child, suffering from "Downs Syndrome with PDA"

and severe retardation since her birth. Apart from that

petitioner's daughter is a speech impaired child and she can

understand only Malayalam language and she is capable of

speaking only limited words in her Mother tongue i.e

Malayalam. The petitioner had requested for a posting at

Thiruvananthapuram under the 2nd respondent. After coming

to Thiruvananthapuram, petitioner had enrolled her

daughter for Malayalam speech therapy classes at National

Institute of Speech and Hearing (NISH),

Thiruvananthapuram and she is also undergoing some

ayurvedic treatment for her physical and mental impairment

to which the child has responded positively. Petitioner is

advised that if petitioner's daughter gets continuous speech

therapy, her vocabulary skills may improve considerably. W.P.(C).No.6322 of 2021

Moreover, petitioner's daughter requires constant attention

and support of petitioner. Exhibits P1 to P3 certificates are

produced in support of the said contentions.

4. The learned counsel for the petitioner submits that Exhibit

P3 certificate specifically states that since the child has

limited vocabulary output, speech and language therapy and

parental stimulation should be primarily through her mother

tongue, Malayalam. It is submitted that without considering

any of these aspects, the petitioner was transferred out to

Punjab. The petitioner's request for retention was

favourably recommended by the 2nd respondent, but the

request has been rejected. The transfer is challenged on the

ground that it is illegal as being violative of the guidelines.

5. A counter affidavit has been placed on record by the

respondents 1 to 4 stating that the grounds raised by the

petitioner has been specifically considered and it was only in

public interest and in administrative exigencies that an

order of transfer was issued. It is submitted that the W.P.(C).No.6322 of 2021

petitioner is being posted to a place where medical

treatment can be duly afforded without any fail and that the

petitioner, who is a member of the Armed forces, cannot

seek retention at Kochi on compassionate grounds when his

services are urgently required elsewhere. Relying on the

decisions of the Apex Court, it is contended that unless mala

fides are pleaded and proved this Court will not be justified

in interfering with an order of transfer issued in public

interest.

6. Having considered the contentions advanced, I notice that it

is the specific case of the respondents that the request of the

petitioner for retention in the present station on

compassionate grounds had been specifically considered.

However, it is stated that the transfer is to a station where

the treatment and therapy given to the petitioner's child can

be continued without any hindrance. Since it is contended

by the respondents that the transfer is in public interest and

on administrative exigencies and no mala fides are alleged

by the petitioner in the writ petition, I am of the opinion that W.P.(C).No.6322 of 2021

it would not be proper for this Court to interfere in an order

of transfer. As contended by the learned counsel for the

respondent in State of Madhya Pradesh and another v.

S.S.Kourav and others [(1995) 3 SCC 270] it was held that

the question of relative hardship arising from a transfer is a

matter for the administrative authority to consider and the

constitutional courts cannot consider the said question.

7. In National Hydroelectric Power Corporation Ltd v.

Shri.Bhagwan and Another [ (2001) 8 SCC 574], the Apex

Court held that it is now well settled that no Government

servant or employee of a public sector undertaking has any

legal right to be posted forever at any one particular place,

since transfer of a particular employee from one place to

another is not only an incident, but a condition of service,

necessary too in public interest and efficiency in the public

administration. It was, therefore, held that unless an order

of transfer is shown to be an outcome of mala fide exercise

of powers or stated to be in violation of statutory provisions

prohibiting any such transfer, the courts or the Tribunal W.P.(C).No.6322 of 2021

cannot interfere with such orders as a matter of routine. In

the facts of the instant case, I am of the opinion that no

grounds for interference in the order of transfer has been

made out. I, therefore, decline to interfere in the order of

transfer.

8. The contention of the petitioner that the immediate superior

officer of the petitioner had recommended his retention

cannot be a ground for this Court to hold that the petitioner

shall not be transferred out of his present place of posting,

especially in view of the fact that the petitioner is a Junior

Commissioned officer of the Indian Army. In case the

petitioner faces any difficulty in continuing the treatment of

his child after joining at the transferred post, the petitioner

may make a representation to the appropriate authority,

which will be considered in accordance with law.

sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.6322 of 2021

APPENDIX OF WP(C) 6322/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED FROM GENERAL HOSPITAL THIRUVANANTHAPURAM TO PETITIONER'S DAUGHTER NIVEDA S NAIR DATED 28-09-2018

EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED FROM MILITARY HOSPITAL, TRIVANDRUM DATED 5-09-2020

EXHIBIT P3 TRUE COPY OF THE LETTER ISSUED BY THE SPEECH LANGUAGE PATHOLOGIST OF NATIONAL INSTITUTE OF SPEECH AND HEARING, THIRUVANANTHAPURAM DATED 26-02-2021

EXHIBIT P4 TRUE COPY OF THE REQUEST LETTER DATED 08-05-2020 FORWARDED BY PETITIONER TO THE 1ST RESPONDENT

EXHIBIT P5 TRUE COPY OF THE LETTER NO. 670281/ST-

12/PA DATED 14-08-2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P6 TRUE A TRUE COPY OF THE POSTING ORDER ISSUED BY THE 1ST RESPONDENT DATED 28-

10-2020

EXHIBIT P7 TRUE COPY OF THE LETTER NO. 29/GEN/DCS DATED 06-01-2021 ADDRESSED TO THE 1ST RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE PROOF OF THE RECEIPT DATED 6.1.2021 OF EXT P7 LETTER

TRUE COPY

PS TO JUDGE