Rajasthan High Court - Jodhpur
Hariom vs Union Of India on 4 June, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:25277]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6712/2024
Hariom S/o Shri Jagdish, Aged About 37 Years, Wardking As A
Sergeant, Trade - Adm Asst (Gd), Of No. 33 Signal Unit, Indian
Air Force (Jodhpur), C/o 56 Apo.
----Petitioner
Versus
1. Union Of India, Through Secretary, Ministry Of Defense,
Raisina Hills, South Block, New Delhi 110011.
2. The Chief Of Air Staff, Air Headquarters Vayu Bhawan,
Rafi Marg, New Delhi 110011.
3. Air Officer Commanding In-Chief, Headquarters, South
Western Air Command, Gandhinagar, Gujarat - 382010.
4. Air Officer Commanding, Air Force Record Office, Subroto
Park, New Delhi - 110010.
5. Air Officer Commanding, No. 33, Signal Unit, Air Force
(Jodhpur), C/o 56 Apo.
----Respondents
For Petitioner(s) : Mr. Dharmpal Singh Dhaka
For Respondent(s) : Mr.Mukesh Rajpurohit, Dy.SG assisted
by Mr. Dinesh Suthar
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
04/06/2024
1. The present writ petition has been preferred against the
order impugned dated 08.02.2024 (Annexure-7) whereby the
petitioner has been sought to be transferred from 33 SU to 42
WEU i.e. from Jodhpur to Chabua (Assam) with effect from
24.06.2024.
2. The facts are that the petitioner was posted at Jodhpur on a
co-location posting in terms of Clause 29 of the posting policy
[2024:RJ-JD:25277] (2 of 10) [CW-6712/2024]
governing the Airmen. The said Clause provides that in case of a
spouse employed in the Central/State Government/Public Sector
Undertakings, as far as possible, the husband and wife should be
posted at the same station to enable them to lead a normal family
life and look after the welfare of their children, specially until the
children have completed 10 years of age.
The wife of the petitioner being a teacher employed with the
State of Rajasthan and they having two daughters aged 10 and 3
years respectively, on applying for a co-location posting, the
petitioner was posted at Jodhpur vide order dated 09.02.2022
although for a restricted tenure of two years.
The petitioner moved an application for extension of his
tenure at the present place of posting but the same stood rejected
vide order dated 12.04.2024.
3. Learned counsel for the petitioner submitted that his tenure
on a co-location posting could not have been restricted for a
period of two years and hence, ignoring the same, the tenure
deserves to be extended either till the daughter of the petitioner
attains 10 years of age or till the completion of requisite period of
7 years as provided under the Rules.
Further, the application dated 19.02.2024 for extension of
tenure at his present place of posting deserves consideration on
compassionate grounds too, his mother being suffering from gum
cancer and his father too suffering from old age ailments. He
being the only son, is required to take care of his parents at this
stage of life.
[2024:RJ-JD:25277] (3 of 10) [CW-6712/2024]
In support of his submissions, learned counsel relied upon
the judgments passed by Co-ordinate Bench of this Court in Anil
Kumar Vs. Union of India & Ors.; S.B. Civil Writ Petition
No.4687/2022 (decided on 14.07.2023) as affirmed by the
Division Bench in D.B Special Appeal Writ Petition
No.841/2023 vide judgment dated 02.02.2024 and judgment
passed by this Court in Surendra Kumar Vs. Union of India &
Ors.; S.B. Civil Writ Petition No.4794/2024 (decided on
04.04.2024).
4. Per contra, learned counsel for the respondents submitted
that the Human Resource Policy 01/2020 has been superseded by
the Human Resource Policy 01/2022 (Annex-R/2) which now
governs the transfers/postings of an airman. As per the Policy of
2022, an Airman can be posted to the requested place as far as
possible on Trade Proficiency Utilization (TPU) and tenure will also
depend upon utilisation driven organizational requirement. The
petitioner's posting, although on co-location ground, was in fact a
request posting and would be governed by Clauses 21 to 24 of the
Policy of 2022. As per the said Clauses, all request postings would
generally be for a restricted tenure of two years and further that if
an airman has once availed a posting to his home zone,
irrespective of the grounds, he shall not be considered for a
posting again to his home zone whether it is a
co-location/compassionate ground posting, before completing a
gap of ten years.
Counsel further submitted that so far as the present
petitioner is concerned, he was awarded a posting to his home
[2024:RJ-JD:25277] (4 of 10) [CW-6712/2024]
zone on his request, for a restricted tenure of two years and now
he cannot be considered again for his home zone before a gap of
ten years.
5. Responding to the judgments as relied upon by learned
counsel for the petitioner, learned counsel for the respondents
submitted that therein, the fact of the Policy of 2020 having been
superseded by the Policy of 2022 was not brought to the notice of
the Court and hence, the ratio therein shall not apply to the
present matter. Further, the case of Anil Kumar (supra) was
governed by the Policy of 2013 and, therefore also, it would not
govern the present matter.
6. Learned counsel further submitted that till now, the
petitioner has remained posted only on soft postings and it is for
the first time that he is sought to be transferred to a hard posting.
Further, the petitioner has till now remained posted in the South
Zone and as per the Rules, the Zone now essentially is required to
be changed. Therefore, the petitioner is now sought to be
transferred to the East Zone.
7. Learned counsel finally submitted that the present being a
transfer matter pertaining to an airman, this Court should not be
inclined to interfere.
In support of his submission, learned counsel relied upon the
Apex Court's Judgments in the case of :
(1) Major General J.K. Bansal Vs. UOI & Ors.; (2005) 7 SCC
227,(2) Maj. Amod Kumar Vs. Union of India & Anr.; 2018
INSC 795 and (3) Shilpi Bose and Ors. Vs. State of Bihar and
Ors.; AIR 1991 SC 532.
[2024:RJ-JD:25277] (5 of 10) [CW-6712/2024]
8. Heard learned counsel for the parties and perused the
material available on record.
9. The issue before this Court is whether the present matter
would be covered by the ratio laid down in Anil Kumar's case
(supra) as affirmed by the Division Bench of this Court and
further, whether this Court should take a view different from that
of Surendra Kumar's case (supra) wherein, this Court allowed
the writ petition on the facts totally akin to the present matter.
To reach to a finding on the above issues, the question is
firstly, whether there is any distinguishable fact in the present
matter, so as to take a different view and secondly, whether the
fact of the Policy of 2022 having superseded the earlier Policy of
2020, was not considered in Surendra Kumar's case ?
10. Clause 27 of the Policy of 2013 pertaining to co-location
posting (as under consideration in Anil Kumar's case) read as
under :-
"27. Co-location Posting - (Spouse Employed in
Central/State Govt./Public Sector Undertakings). As per the
GOI policy under reference 28034/2/97-Estt (A) dated12
Jun 97 on above subject, as far as possible and 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 Trained Proficiency Utilization (TPU).
However, the same privilege cannot be extended repeatedly
due to service exigencies."
Clause 29 of the Policy of 2020 pertaining to co-location
posting read as under :-
[2024:RJ-JD:25277] (6 of 10) [CW-6712/2024]
"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 and 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."
Clause 29 of the Policy of 2022 pertaining to co-location
posting reads 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 and 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-
[2024:RJ-JD:25277] (7 of 10) [CW-6712/2024]
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."
11. A perusal of Clause 29 of both the Policies of 2020 and 2022
makes it clear that there is no difference whatsoever in the same.
Even Clause 27 of the Policy of 2013 had no substantial difference
which can be taken note of. In view of the same, this Court is of
the clear opinion that the present issue/matter would be squarely
covered by the ratio of Anil Kumar's case (supra), the facts being
totally akin. In the said case, the Court held as under:
"20. Going by clause 28 of the policy of 2013, if the plea of
choice posting, as raised by the respondents is accepted,
the petitioner could not have been accorded co-location
posting, however, once he has been accorded co-location
posting, the tenure contrary to the provisions cannot be
restricted/ should not have been restricted by the
respondents.
21. Further, the representation made by the petitioner
seeking cancellation of posting was rejected on1/4/2022
(Annex.R/2) indicating 'H.R. Constraints' i.e. neither on
ground of completion of three years period nor based on
clause 28 of the Policy, 2013. Further, nothing has been
indicated in response to the writ petition elaborating the
purported H.R. Constraints and, as such, the plea raised in
this regard being vague, the same also cannot be accepted.
22. In view of the above discussion, the action of the
respondents in posting out the petitioner by order dated
19/01/202 (Annex.5) and rejection of his representation
dated 1/4/2022 (Annex.R/2) cannot be sustained.
[2024:RJ-JD:25277] (8 of 10) [CW-6712/2024]
23. Consequently, the petition is allowed. The order dated
19/1/2022 (Annex.5) and dated 1/4/2022 (Annex.R/2) qua
the petitioner are quashed and set aside. The Respondents
are directed to pass appropriate orders in accordance with
the provisions of co-location posting contained in posting
policy dated 21.11.2013 / keeping in view that son of the
petitioner is aged about 08 years now and the policy
envisages co-location posting until the children are 10 years
of age. The tenure of the petitioner be extended till his son
attains the age of 10 years / his educational session at the
point of time he attains the age of 10 years is over."
12. So far as the ground raised by the learned counsel for the
respondents that the order dated 27.06.2022 was on request and
not a co-location posting is concerned, the same seems to be
incorrect on the face of the record. The order dated 27.06.2022
reflects that the said posting was on co-location ground and it
clearly mentions so. Therefore, the ground of petitioner being
governed by para 21-32 of the policy of 2022 cannot be said to be
tenable. The petitioner would definitely be governed by clause 29
of the policy of 2020/2022 and the fact of policy of 2020 having
been superseded by policy of 2022 would make no difference
(both being totally akin) so far as the present issue is concerned.
13. The other ground as raised by counsel for respondents that
the normal tenure of a request posting cannot be more than two
years, also cannot be held to be tenable in view of the specific
finding of this court that the posting of the petitioner vide order
dated 27.06.2022 was not a 'request posting' but was a posting on
'co-location' ground. The tenure for such posting admittedly falls
in the category of unrestricted tenure as prescribed in 'Appendix-
[2024:RJ-JD:25277] (9 of 10) [CW-6712/2024]
D' to the policy. 'Appendix-D' specifically prescribes for a period of
7years qua Jodhpur. Therefore, it is clear that the petitioner has
been sought to be transferred before completion of his tenure of 7
years at Jodhpur which is de-hors the policy as issued by the
department itself.
A similar view was taken by this Court in the case of
Surendra Kumar (supra) and this Court finds no distinguishable
fact so as to differ from the earlier view. As held by the Hon'ble
Apex Court in Supreme Court Advocates-on-Record-
Association & Ors. Vs. Union of India; (2016) 5 SCC 1, the
power to reconsider is not unrestricted or unlimited, but is
confined within narrow limits and must be exercised sparingly and
under exceptional circumstances for clear and compelling reasons.
Merely because a view different from or contrary to what has been
expressed earlier is preferable is no reason to reconsider an earlier
decision.
14. So far as the judgments relied upon by learned counsel for
the respondents are concerned, there is no dispute over the
settled position of law that the Courts should be slow in interfering
with the transfer orders pertaining to the members of Armed
Forces but then, this Court cannot be oblivious of the fact that if
the said transfer order is in contravention to the Rules/Policy
governing the said members of the Armed Forces as framed by
the department itself, the same cannot be ignored. Further, J.K.
Bansal was a case wherein the transfer order was assailed on the
ground of the same being malafide and been made to
accommodate an officer junior to him. Amod Kumar was a
[2024:RJ-JD:25277] (10 of 10) [CW-6712/2024]
matter wherein the transfer order was assailed only on
compassionate grounds. The ratio of both the judgments would
definitely not apply to the present matter as herein, the relief
prayed for is in terms of the conditions of the transfer policy as
framed by the employer department itself.
15. In view of the above observations and in view of the ratio as
laid down in Anil Kumar's case (supra) as affirmed by the
Division Bench of this Court, the present writ petition deserves to
be allowed, on the same logic and grounds and is hence, allowed.
The orders impugned dated 08.02.2024 (Annexure-7) &
12.04.2024 (Annexure-9) are hereby quashed and set aside qua
the present petitioner. The respondents are directed to pass
appropriate orders in accordance with the provisions of 'co-
location posting' contained in posting policy dated
24.02.2020/24.11.2022 keeping into consideration that the
daughter of the petitioner is 3 years of age and also the fact that
the petitioner has not completed his 7 years of service at Jodhpur.
The tenure of the petitioner be extended till his daughter attains
the age of 10 years or till he completes 7 years of service at
Jodhpur, whichever is earlier. The appropriate orders be passed by
the respondents expeditiously, preferably before 24th June 2024.
16. The stay petition and the pending applications, if any, also
stand disposed of.
(REKHA BORANA),J
SPhophaliya/-
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