The Union Of India vs Major Ankita Tiwari
2023 Latest Caselaw 854 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                               W.A. No.24/2023
1. The Union of India, Represented by the Secretary, Ministry of Defence, New
Delhi, Pin-110001.
2. Director General of Medical Services(Army), 3rd Floor, 'A' Block, Def.
Officers Complex, KG Marg, New Delhi, Pin-110001.
3. Commanding Officer, 182 Military Hospital, Salbagan, Agartala, Pin-
799012.
4. Secretary, Government of India, Ministry of Personnel, Public Grievances
and Pensions, (Department of Personnel and Training, 5th Floor, Saradar Patel
Bhavan, New Delhi, Pin-110001.
                                                         .........Appellant(s).
                                 VERSUS
Major Ankita Tiwari, W/O. Dr. Siddharth Shiv Jaiswal, Resident of 5/3
Military Hospital, Salbagan, Agartala, Pin-7990012.
                                                       .........Respondent(s).

For Appellant(s) : Mr. Biswanath Majumder, CGC.

For Respondent(s) : Mr. S.S. Dey, Sr. Advocate, Ms. Ayantika Chakraborty, Advocate.

HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH HON'BLE MR. JUSTICE T. AMARNATH GOUD

Date of hearing and judgment: 10th October, 2023.

JUDGMENT & ORDER(ORAL)

Heard Mr. Biswanath Majumder, learned Central Government

Counsel appearing for the appellants-Union of India and Mr. S.S. Dey, learned

senior counsel assisted by Ms. Ayantika Chakraborty, learned counsel

appearing for the writ petitioner/respondent.

2. The appellant is the Union of India being aggrieved by the order

dated 16.12.2022 whereby the interim order dated 28.07.2022 has been made

absolute. The matter relates to a transfer of the writ petitioner, a Major under

the Military Nursing Service of Indian Army at 182 Military Hospital at

Salbagan where she has been serving since 2017. Her husband is an IAS

Officer serving in the State of Tripura and belongs to 2016 batch of the IAS

cadre. Petitioner was transferred to Pathankot (Punjab) by a message dated

14.07.2022 and asked to join her duty at Pathankot Military Hospital. Relying

upon Clause 21 of the policy dated 25.04.2018 issued by the Integrated

Headquarters of Ministry of Defence (Army) which is a posting policy of MNS

Officers, the learned Writ Court stayed the operation of the message dated

14.07.2022 and the order dated 27.10.2021. The Clause 21 of the posting policy

provides as under:

"21. In case of husband who is a Central Govt. Employee and transferrable throughout India, the posting request of the MNS officer will be considered and granted wherever feasible. As a guideline, when a married MNS officer has been accommodated once with her husband, the next tenure should be accommodated by the husband's directorate/Employer. Ordinarily in 10 years span two spouse co- locations posting will only be entertained for a MNS officer."

3. This writ petitioner has remained in the present place of posting

for one more tenure i.e. total of 5(five) years. The Clause-21 of the policy

provides that a married MNS officer can be accommodated once with her

husband and the next tenure should be accommodated by the husband's

Directorate/Employer. Ordinarily in ten years span two spouse co-location

posting will only be entertained for an MNS officer. Clause-26 of the same

posting policy reads as under:

"26. Request for retention in field area/HAA/CI Ops area will be considered only on exceptional cases as it may be at the detriment to the career profile or the health of the officer. The officer will submit reasons for requesting continuation/reposting to a field station along with the under taking that she is aware of and responsible for the implications/adverse effects on health in case of acceptance of her application for retention in/posting to a field station for more than the stipulated tenure."

The learned Writ Court had also taken note of Clause-26 of the

same policy and taken a view that considering the spirit of the Clause-21 of the

policy, the petitioner is entitled to live with her spouse at the same station.

4. The appellant-Union of India has in the present appeal questioned

the reasons recorded by the learned Writ Court, inter alia, on the ground that

the posting policy for MNS officers has been duly taken into consideration by

granting one accommodation to the writ petitioner. For both operational and

administrative requirements on completion of tenure from one theater the

officer should be posted to another theater to ensure rotation of personnel on

completion of tenure. Petitioner has not been able to make out any mala fide

against the respondents. Transfer is an incidence of service and petitioner

cannot claim a legal right to remain in a particular place of posting. Interference

by the Writ Court in the matter of transfer/posting is not in consonance with

the statutory rules and administrative instructions and/or posting policy of the

officers of MNS service. It is also submitted that the plea raised by the

petitioner in the additional affidavit dated 07.10.2023 regarding the tenure of

her husband at Tripura and eligibility for deputation outside parent cadre only

after he has served at least 9(nine) years in the parent cadre cannot be a ground

for the petitioner to resist the transfer as an officer of the MNS. The other plea

relating to the education of two minor children can also not be tenable ground.

Captain Tanmayesh Kohli, AAG (Legal), Headquarter 59 Mountain Brigade,

an officer of the JAG Branch posted at Manipur, who has appeared to assist the

learned counsel for the Union of India has with the leave of the Court made

categorical statements, on instruction, that the admission of the minor children

of the petitioner is not an issue as such accommodations/adjustments even

during mid of the academic session are made in routine course whenever an

officer is transferred to another station. Based on this contention, learned

counsel for the appellant-Union of India has prayed that the appeal may be

allowed by setting aside the impugned order and directing the petitioner to join

her place of posting on transfer at Pathankot.

5. Mr. S.S. Dey, learned senior counsel assisted by Ms. Ayantika

Chakraborty, learned counsel appearing for the writ petitioner, has besides

relying upon the posting policy dated 25.04.2018 and the relevant clauses

referred to hereinabove also referred to the two grounds taken by the writ

petitioner as mentioned above, i.e. (i) the eligibility of her husband for

deputation outside parent cadre only after 9(nine) years of service in parent

cadre in the year 2025 in terms of Rule 6(2)(ii) of the IAS (Cadre) Rules, 2006;

and (ii) the education of her two minor children who are aged 4 years 9 months

and 3 years respectively. However, learned senior counsel for the writ

petitioner has submitted that the statement made by the officer of the JAG

Branch regarding admission of her minor children is reassuring.

6. We have considered the submissions of learned counsel for the

parties and taken note of the pleadings on record and gone through the

impugned judgment as well. We have also taken note of the posting policy

dated 25.04.2018 relied upon by both the parties and taken note of by the

learned Single Judge as well. The petitioner has availed of one accommodation

since her posting at the present place in consonance with Clause-21 of the

posting policy and it is for the husband's Directorate/Employer to accommodate

the spouses in the next tenure. The posting policy of MNS officers framed by

the Ministry of Defence (Army) applies uniformly to all Military Nursing

Officers. It has been framed taking into regard the organizational requirements

and exigencies and also need for rotation of the officers for administrative and

operational requirements. Since the petitioner has already been accommodated

once in terms of Clause-21 of the policy, it is incumbent upon her to join the

place of posting on transfer as per the impugned order dated 27.10.2021 and the

posting order vide message dated 14.07.2022. We also find that the

humanitarian grounds regarding the education of her minor children can be

properly taken care of at the transferred place of posting at Pathankot in Punjab

as also stated on instructions by the officer of the JAG Branch Captain

Tanmayesh Kohli, AAG (Legal), Headquarter 59 Mountain Brigade. As such,

we are satisfied that interference is called for in the order of the learned Writ

Court. Accordingly, the impugned orders dated 28.07.2022 and 16.12.2022 are

set aside.

7. At the end, learned senior counsel for the writ petitioner has

prayed for some time for the petitioner to join her place of posting at Pathankot.

Taking into consideration the aforesaid submission, we make it clear that the

petitioner should join transferred place of posting on or before 31.12.2023.

8. With the aforesaid observations and directions, the writ appeal is

allowed and stands disposed of.

Pending application(s), if any, also stands disposed of.

(T. AMARNATH GOUD), J                   (APARESH KUMAR SINGH), CJ




PULAK BANIK Date: 2023.10.12
            12:53:14 +05'30'