Manipur High Court
Shri Laishram Manoranjan Singh vs The Union Of India on 2 November, 2022
Digitally signed by
SHAMURAILATPA SHAMURAILATPAM SUSHIL
M SUSHIL SHARMA SHARMA
Date: 2022.11.04 14:25:48 +05'30'
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 536 of 2021
Shri Laishram Manoranjan Singh, aged about 33 years
old, S/o. Laishram Naba Singh, a resident of Nachou
Village, Bishnupur District, Manipur-795126, at
present working as Major in the Indian Army and now
posted at 57-Division Ordinance Unit Masimpur
Cantonment at Silchar, Assam.
---Petitioner
-Versus-
1. The Union of India, represented by the
Secretary (Defence), having its office at 101-A,
South Block, New Delhi -110003.
2. The Military Secretary, Military Secretary,
Integrated HQ of MoD (Army), Military Secretary
Branch, DHQ PO, New Delhi-110011.
3. The Colonel MS-15 for Military Secretary, IHQ
of MoD (Army) (MS Branch) DHQ PO, New
Delhi-110011, C/o 56 APO (Army Post Office).
4. The General Officer Commanding, 57 Mountain
Division, Leimakhong, Manipur-908457, C/o 99
APO (Army Post Office).
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5. The Commanding Officer, 57 Mountain Division,
Ordnance Unit, C/o 99 APO (Army Post Office),
Masimpur Cantonment, Silchar, Assam-
909057.
6. The Commanding Officer, 23 INF DOU (Infantry
Division Ordinance Unit, Pin-909023, C/o 56
APO, Ranchi.
--- Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner :: Mr. N. Jotendro, Sr. Adv.
For the Respondents :: Mr. W. Darakishwor, Sr. PCCG
Date of Hearing and
reserving Judgment & Order :: 13.10.2022
Date of Judgment & Order :: 02.11.2021
JUDGMENT AND ORDER
(CAV)
This writ petition has been filed by the petitioner to
quash the order dated 19.8.2021 passed by the third respondent
and the rejection order dated 4.2.2021 as well as the original
transfer order dated 20.5.2021 issued by the third respondent and
to reconsider his transfer and posting in terms of the Office
WP(C) No. 536 of 2021
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Memorandum dated 30.9.2009 and as per the guidelines for
posting on compassionate ground.
2. Brief facts are that the petitioner, who was working
as Major in the Indian Army, applied for transfer and posting on
16.2.2019 in light of the Office Memorandum dated 30.9.2009 to
Leimakhong area or 57 Mtn Div Ord Unit on the grounds that his
wife was working as Assistant Professor at Indira Gandhi National
Tribal University, Regional Centre, Manipur and he never stayed
at his hometown. In case, he has been posted at Leimakhong
area, he will be able to live together with his wife and also with his
new born baby. Since the said application was not considered by
the competent authority, the petitioner preferred another
representation on 30.7.2019 requesting the General Officer,
Commandant, HQ 57 Mtn Div, C/o 99 APO seeking transfer and
posting at Leimakhong.
3. On 12.8.2020, the petitioner approached the third
respondent along with application seeking transfer on
compassionate ground. By the order dated 4.2.2021, the request
of the petitioner was rejected by the competent authority, however,
directed to request for GC Posting (Compassionate Grounds
Posting). According to the petitioner, his case has never been
WP(C) No. 536 of 2021
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considered by the competent authority and the competent
authority had failed to consider the OM dated 30.9.2009.
4. Soon after receiving the order dated 4.2.2021, the
petitioner preferred another representation dated 5.2.2021 to the
third respondent requesting to consider his case, as his parents
are old aged and are having multiple deceases. The said
representation has not been considered by the competent
authority. Thereafter, the Military Secretary granted permission for
personal interview on 6.4.2021 at 10.00 a.m. Despite meeting, the
Military Secretary has not considered the request made by the
petitioner and the same was rejected. However, the original order
has not been served on the petitioner till date.
5. On 17.5.2001, the petitioner submitted another
representation to the Military Secretary to review the decision
taken by the Military Secretary and further requested to be posted
at Leimakhong/Imphal where the facilities of such postings are
available under GOC 57 Mtn Div/NCC at Imphal respectively. In
the meanwhile, on 20.5.2021, the petitioner received his transfer
and posting order transferring him from 57 Mtn. DOU to 23 Infantry
DOU (Ranchi) without considering his request.
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6. On 23.5.2021, the petitioner submitted a
representation seeking to review the transfer order on
compassionate ground posting. Since the competent authority
failed to consider the representation dated 23.5.2021, the
petitioner filed W.P.(C) No.415 of 2021 before this Court and by
the order dated 14.7.2021, the said writ petition was disposed of
by directing the respondents, more particularly, the Military
Secretary, Integrated Headquarter, MoD (Amy), New Delhi to
consider the application dated 23.5.2021 in accordance with law.
Despite passing the said order, the competent authority has failed
to consider the representation of the petitioner.
7. On 17.8.2021, the petitioner preferred another
representation stating that the time granted in W.P.(C) No.415 of
2021 has already expired. On 19.8.2021, an order came to be
passed by the third respondent rejecting the representation of the
petitioner. Challenging the impugned orders dated 19.8.2021,
4.2.2021 and 20.5.2021, the petitioner has filed the present writ
petition.
8. Resisting the writ petition, the respondents filed
counter stating that the application of petitioner dated 16.2.2019
was duly considered and since, no AOC unit is located at
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Leimakhong, the petitioner's request was honoured by posting him
at 57 Mountain Division Ordinance Unit as per his request. It is
stated that the petitioner's request for reviewing the order dated
17.5.2021 and 23.5.2021 have been considered in the light of
available inputs and finding not feasible, the same has been
conveyed vide order dated 1.6.2021.
9. It is stated in the counter that pursuant to the order
passed in W.P.(C) No.415 of 2021, the request of the petitioner
dated 23.5.2021 was considered and re-examined by the
competent authority with due empathy and has held that the said
request to review the decision of his posting to Ranchi was not
found feasible and accordingly, the decision was communicated
to the petitioner. Hence, prayed for dismissal of the writ petition.
10. The petitioner has filed a rejoinder stating that though
he was attached for 89 days at Ord Detachment of 57 Mtn DOU at
Leimakhong, but his attachment was terminated after 49 days
without mentioning any reason after he returned back to 57 Mtn
DOU at Silchar. It is stated that the ailment of his parents was not
fully examined by the members of the Advisory Board and his case
could have been examined by the competent authority as per the
policy dated 9.12.2020, more particularly, para No.5(a) of the
WP(C) No. 536 of 2021
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policy. No reason was properly explained for not accepting the
request of the petitioner.
11. Respondents filed reply to the rejoinder stating that
the petitioner's case was examined with due compassion and
accordingly the decision was conveyed to him. In February, 2019,
the petitioner had requested for posting to Leimakhong area or 57
Mtn DOU and his request was examined and disposed of in
accordance with the policy. Adequate opportunity has been given
to the petitioner to represent his case through compassionate
ground and MS interview and the request of the petitioner on
compassionate ground was duly considered and passed orders
and in fact, the competent authority has given due attention and
taken a decision thereupon.
12. Heard Mr. N. Jotendro, learned senior counsel for the
petitioner and Mr. W. Darakishwor, learned Sr.PCCG for the
respondents.
13. Assailing the impugned orders, the learned senior
counsel for the petitioner submitted that the competent authority
has failed to consider the case of the petitioner in the light of the
guidelines for transfer and posting on compassionate grounds,
WP(C) No. 536 of 2021
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particularly para no.3 (a) (i), (ii) and (viii). As such the first rejection
order dated 4.2.2021 and the subsequent rejection order as
informed on 8.5.2021 and the impugned order dated 19.8.2021
issued by the third respondent and also the last posting order
dated 20.5.2021 transferring him from 57 Mtn DOU to 23 INF DOU
(Ranchi) are liable to be quashed.
14. The learned senior counsel further submitted that the
competent authority has failed to consider the Office
Memorandum dated 30.9.2009 and also the guidelines for posting
on compassionate ground. The only ground for rejection of the
request of the petitioner by the competent authority is that his
posting at Leimakhong was not found feasible. According to the
petitioner, no reason was properly explained for not accepting the
request of the petitioner.
15. The learned counsel urged that the petitioner has not
been given his choice of posting at 57 Mtn Div Ordinance Unit as
per OM dated 30.9.2009 and that has not given any warning for
any indiscipline and insubordination during his attachment at
Leimakhong as per the C.O. EME Battalion and that he never
pressurized to his superior officers and MS Branch to post him at
WP(C) No. 536 of 2021
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Leimakhong, as he has submitted representation only to consider
his transfer and posting as per the OM dated 30.9.2009.
16. The learned counsel would submit that since the wife
of the petitioner is serving as Assistant Professor at IGNTU-RCM,
Makhan, Sekmai, Kangpokpi District, Manipur, he is entitled to the
benefit under para no.4(iv) of the OM dated 30.9.2009. The
learned counsel submitted that while passing the impugned order,
the competent has not considered the case in proper perspective
and mechanically issued the impugned orders and therefore, the
same are liable to be set aside.
17. Per contra, Mr. W. Darakishwor, the learned Sr.
PCCG for the respondents submitted that the competent authority
has considered the application of the petitioner dated 16.2.2019
and arrived at a conclusion that since no AOC unit is located at
Leimakhong, his request was considered by posting him to 57 Mtn
DOU as per his request. Though the request of the petitioner was
considered by the competent authority and informed,he has falsely
stated that his request was not considered by the competent
authority.
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18. The learned Sr. PCCG would submit that the
representation of the petitioner dated 17.8.2020 was also
considered by the competent authority in the light of applicable
guidelines and finding non-critical medical condition of the
petitioner's parents, who were on oral medication, the competent
authority has rightly passed an order rejecting the request of the
petitioner. Drawing this Court's attention to MS Branch Policy
No.04521/MS policy dated 9.12.2020, the learned standing
counsel submitted that the request of the petitioner did not meet
any of the criteria mentioned in the aforesaid policy.
19. The learned Sr. PCCG contended that the request for
reviewing the decision of MS interview dated 17.5.2021 was
received post issuance of his posting to 23 Inf DOU on 20.5.2021
and the representation of the petitioner was considered in the light
of the available inputs and arrived at a opinion that the request is
not feasible and the same has been conveyed to the petitioner on
1.6.2021.
20. The learned Sr. PCCG urged that pursuant to the
direction of this Court dated 14.7.2021 passed in W.P.(C) No.415
of 2021, the case of the petitioner was examined by the competent
authority and arrived at a finding that the request of the petitioner
WP(C) No. 536 of 2021
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to review the decision of his posting to Ranchi was not found
feasible and that the said decision was communicated to all
concerned on 3.8.2021 and an extract of the same was also
forwarded to the petitioner on 19.8.2021, which is impugned
herein. Therefore, there is no infirmity in the impugned orders
passed by the competent authority and, thus, prayed for dismissal
of the writ petition.
21. This Court considered the rival submissions and also
perused the materials available on record.
22. The grievance of the petitioner is that though
sufficient grounds have been made out on facts to post him on
compassionate grounds at Bishnupur or at Leimakhong or at
Imphal, instead of sending him to Ranchi, the competent authority
has not considered his request in the light of the Office
Memorandum dated 30.9.2009, particularly para 4 (iv) and the
Guidelines of Transfer and Posting on compassionate grounds,
more particularly, para 3(a)(i), (ii) and ((viii).
23. Para 4 (iv) of the Officer Memorandum reads thus:
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"(iv) Where the spouse belongs to one Central
Service and the other spouse belongs to
another Central Service:-
The spouse with the longer service at a station
may apply to his/her appropriate cadre
controlling authority and the said authority may
post the said officer to the statin or if there is
no post in that station to the nearest station
where the post exists. In case that authority,
after consideration of the request, is not in a
position to accede to the request, on the basis
of non-availability of vacant post, the spouse
with lesser service may apply to the
appropriate cadre authority accordingly, and
that authority will consider such requests for
posting the said officer to the station or if there
is no post in that station to the nearest station
where the post exists."
24. Para 3 of the Guidelines for Posting on
Compassionate Grounds reads thus:
"3. Grounds of Compassion:
(a) Each case is unique and the severity of
compassion cannot usually be compared
between cases. However, higher priority
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is accorded to cases of terminal illness.
Within such cases, the priority goes to an
offr himself/herself vis-à-vis similar case
for one's spouse or dependents.
Treatment at ART Centre will also qualify
for CG posting. Other grounds of
compassion often quoted in support of
application are as under:-
(i) To look after aged parents.
(ii) Construct a house.
(iii) Marriage of children.
(iv) Resolve dispute of land/property.
(v) Litigation of other civil cases.
(vi) Ill health of close relatives/in-laws.
(vii) To be with mother/father/other
relatives consequent to demise of
a family member.
(viii) To be with the spouse-being
newly married, as the spouse has
to be with old parents.
WP(C) No. 536 of 2021
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(ix) Being an LMC and the need to be
in a "Proper" stn where med
facilities are avbl."
(b) The reasons listed in the preceding paras
3(a)(i) to (ix), however, cannot be treated
as causes for extreme compassion.
Requests and recommendations must be
viewed against this context before
forwarding the same to MS Branch."
25. On 16.2.2019, the petitioner submitted an application
requesting to post him at Leimakhong area, as his wife was
working as Assistant Professor at Indira Gandhi National Tribal
University, Regional Centre, Manipur and to look after his new
born baby and also his aged ailing parents. Since no action was
taken on the application, on 17.8.2020, the petitioner submitted a
representation through proper channel to the third respondent
requesting for home posting on compassionate grounds along with
application in the prescribed format. By the message dated
4.2.2021, the Military Secretary rejected the request of the
petitioner. However, in the said message it has been mentioned to
request for CG Posting (Compassionate Grounds Posting).
WP(C) No. 536 of 2021
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26. Soon after the issuance of the message dated
4.2.2021, the petitioner submitted a representation dated 5.2.2021
to the third respondent requesting to consider his case on
compassionate grounds, followed by another representation dated
17.5.2021 praying to post at Leimakhong/Imphal where medical
facilities are available to treat his aged parents. In the meanwhile,
the petitioner received transfer order dated 20.5.2021 transferring
him from 57 Mtn DOU to 23 Infantry DOU (Ranchi).
27. Challenging the orders dated 4.2.2021 and
20.5.2021, the petitioner filed W.P.(C) No.415 of 2021 before this
Court. When the said writ petition is taken up by this Court, the
learned counsel appearing for the petitioner submitted that
challenging the order dated 23.5.2021, he has filed review
application and the same has not been disposed of and
accordingly, the learned counsel prayed for a direction to consider
the review application of the petitioner. For the aforesaid prayer,
the learned Senior Panel Counsel for Central Government has
given no objection for the disposal of the writ petition directing the
concerned authority to consider and take appropriate action on the
review application within a time frame. Accordingly, this Court, by
the order dated 14.7.2021, passed the following order:
WP(C) No. 536 of 2021
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"The writ petition is accordingly disposed of
directing the second respondent herein, viz.,
the Military Secretary, Integrated HQ,
Mod9Army), Military Secretary Branch, DHQ
PO, New Delhi-110011 to consider the
petitioner's review application dated
23.05.2021 on its own merits and in
accordance with due procedure and take
appropriate action thereon, if warranted on
compassionate grounds. This exercise shall
be completed expeditiously and, in any event,
not later than one month from the date of
receipt of a copy of this order."
28. Since the concerned authority has failed to take
action, on 17.8.2021, the petitioner again submitted a
representation reminding to consider his posting in terms of the
Office Memorandum dated 30.9.2009, more particularly
paragraph 4 (iv) and also the guidelines issued for compassionate
ground posting. However, the third respondent by the impugned
order (Army Message) dated 19.8.2021, rejected the request of
the petitioner.
29. It would be relevant to extract the impugned order
(Army Message), which reads thus:
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Firstly (.) AWAN msg No 393538/MS 15 Aug 03 (03) form
MS-15 to 23 Inf DOU with copy to 57 Mtn DOU is
reproduced below (.)
posting offr : IC-75552 Maj LM Singh (.)
firstly (.) ref Court order dt 14 Jul 2021 on Writ
Petition No 415/2021 filed by IC-75552 Maj LM Singh
and 57 Mtn DOU letter No IC75552P/DO2 May 23
(23) (.)
secondly (.) request for review of decision of MS
interview in r/o IC-75552 Maj LM Singh has been re-
exam with due empathy considering a relevant
aspects and regretted rpt regretted(.)
lastly (.) info offr accordingly (.)
lastly (.) a copy of this mail may pl be handed over to IC-
75552 Maj LM Singh of 23 Inf DOU who is presently
on lve near your unit loc(.)"
30. On a perusal of the order passed in W.P.(C) No.415
of 2021, it is clear that direction of this Court is to the effect that
the Military Secretary, Integrated HQ, MoD (Army), Military
Secretary Branch, DHQ PO, New Delhi-11 to consider the
WP(C) No. 536 of 2021
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petitioner's review application dated 23.5.2021 on its own merits
and in accordance with due procedure and take appropriate action
thereon, if warranted on compassionate grounds. On a reading of
the impugned order (Army Message), there is no discussion about
the consideration of the review application in accordance with due
procedure. There is no mention about the audience given to the
petitioner before taking the decision. In the review application
dated 23.5.2021 when the petitioner seeks to review his transfer
order in terms of the Office Memorandum dated 30.9.2009, the
authority concerned who passed the order, has duty bound to deal
with the aforesaid OM in its order. Admittedly, the review
application is in relation to the order dated 20.5.2021. On a
perusal of the same also, this Court finds that no reasoning was
assigned and without assigning any reason, the impugned order
dated 20.5.2021 came to be issued.
31. All along when the petitioner requested the
respondent authorities to post him at Leimakhong/Imphal on the
ground of spouse serving in another Central service and also on
the ground to look after his aged parents, in view of the Office
Memorandum dated 30.9.2009 and the Guidelines for posting on
compassionate grounds, the concerned authority ought to have
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consider the request made by the petitioner to post at
Leimakhong/Imphal considering the situation expressed by him.
However, in the instant case, the respondent authorities have
failed to do so.
32. Though the respondents contended that there is
indiscipline and insubordination during his attachment at
Leimakhong and the record of the petitioner was not appropriate
on operational and administrative grounds, nothing has been
produced to prove the same. No such warning or direction for any
indiscipline and insubordinate during his attachment at
Leimakhong has been produced. In fact, the records produced
would reveal that his attachment from Leimakhong was terminated
thereby directed to move out of 57 Mtn. DOU is without
considering the request of the petitioner.
33. Though the respondents contended that the
petitioner pressurized his superior officers and MS Branch to post
him at Leimakhong, nothing has been produced by the
respondents. On the other hand, a perusal of the records would
show that he had submitted representation after representation to
consider his transfer and posting as per the OM dated 30.9.2009.
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34. The Criminal Misc (FR) Case No.49 of 2021 pending
against the petitioner on the file of the learned Chief Judicial
Magistrate, Imphal West also came to be closed way back on
18.10.2021. That apart, no adverse remarks against the
petitioner has been produced by the respondents, which would
clearly show that his service record is upto the satisfaction of his
employer.
35. The respondent authorities have also failed to
examine the medical certificates produced by the petitioner in
respect of his parents. When the petitioner produced medical
certificates seeking transfer on compassionate grounds, the
competent authority ought to have discussed the same in its order
and in the instant case, no reason was assigned in not taking into
consideration the medical certificates produced by the petitioner.
36. For all the reasons stated above, this Court is of the
view that the competent authority has failed to consider the case
of the petitioner under compassionate grounds based on the
Office Memorandum dated 30.9.2009 and the Guidelines referred
supra. Prima facie, the rejection of the request made by the
petitioner is against the transfer policy of army personnel that too
without assigning any valid reason. Thus, the impugned first
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rejection order dated 4.2.2021 and the transfer and posting order
dated 20.5.2021, which was declined to review by the impugned
order dated 19.8.2021, are all liable to be set aside and the matter
needs to be reconsidered by the competent authority afresh and
for the said purpose, this Court is inclined to remit the matter back
to the competent authority to re-consider and pass orders afresh
in terms of the Officer Memorandum and the guidelines referred
supra.
37. In the result,
(1) The writ petition is allowed.
(2) The impugned order dated 19.8.2021
issued by the Col MS-15 for Military
Secretary, Integrated HQ of MoD (Army),
Military Secretary Branch, DGHQ PO,
New Delhi-110 011 along with the
rejection of compassionate ground posting
dated 04.02.2021 and the original transfer
order dated 20.5.2021 issued by the Col
MS-15 for Military Secretary are set aside.
(3) The matter is remanded to the competent
authority, who is directed to re-consider
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the transfer and posting of the petitioner in
terms of the Office Memorandum dated
30.9.2009 and also as per the Guidelines
for Posting on Compassionate Grounds on
compassionate ground and pass a
reasoned order afresh, after affording
reasonable opportunity to the petitioner.
(4) The said exercise is directed to be
completed within a period of two months
from the date of receipt of a copy of this
order.
(5) No costs.
JUDGE
FR/NFR
Sushil
WP(C) No. 536 of 2021
