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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Rekha Borana, J.
Hariom S/o Shri Jagdish - Petitioner
Versus
Union Of India, Through Secretary, Ministry Of Defense, Raisina Hills, South Block, New Delhi and ors. – Respondents
S.B. Civil Writ Petition No. 6712/2024
Decided On : 04-06-2024
TRANSFER POLICY - CO-LOCATION POSTING - Clause 29 of Policy 2020, Clause 29 of Policy 2022, Clause 27 of Policy 2013 - The court analyzed the transfer policies governing co-location postings for airmen, emphasizing the importance of family welfare and the need for postings to accommodate spouses employed in government roles. The court interpreted the relevant clauses to assert that the petitioner’s tenure should not be restricted to two years, as the policies allowed for longer tenures under specific conditions. The court's decision was influenced by precedents that supported the extension of tenure based on family needs and the lack of substantial differences in the policies cited.
Fact of the Case:
The petitioner challenged a transfer order moving him from Jodhpur to Chabua, Assam, citing his co-location posting due to his wife's employment and the need to care for their young children. He argued that his tenure should be extended beyond two years based on family welfare considerations and existing policies.
Finding of the Court:
The court found that the petitioner’s posting was indeed a co-location posting and that the transfer order violated the relevant policies, which allowed for longer tenures. The court noted that the policies had not changed significantly and that the petitioner had not completed the requisite tenure at his current posting.
Issues: Whether the petitioner’s transfer was in accordance with the applicable policies and whether the tenure restrictions imposed were valid under the circumstances of the case.
Ratio Decidendi: The court held that the petitioner was entitled to an extension of his tenure based on the co-location policy, which prioritizes family welfare, especially for children under ten years of age. The court emphasized that the transfer order was inconsistent with the established policies governing airmen's postings.
Final Decision: The writ petition was allowed, the transfer orders were quashed, and the respondents were directed to extend the petitioner’s tenure until his daughter turns ten or until he completes seven years of service at Jodhpur, whichever comes first.
JUDGMENT :
Rekha Borana, J.
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 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.
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 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,
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