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2012 Supreme(J&K) 287
JAMMU & KASHMIR HIGH COURT
Muzaffar Hussain Attar, J.
Parma Shivan -Appellant
Versus
Union of India & Ors. -Resopndent
SWP. No. 884/2012, CMP. No. 2452/2012
Decided On : 02-07-2012
Mr. B.A.Bashir, Sr. Advocate, for the petitioner with Ms. Asifa Bijli, for the petitioner.
Mr. S.A. Makroo, ASG, for the Respondents.
The judgment emphasized the right of an employee to seek redressal of grievances through the court and the need for individual consideration of representations by the authorities.
Headnote:
Transfer - Posting of Commanding Officer - -
Fact of the Case:
The petitioner, a Commanding Officer, challenged his posting to a different Battalion in Chattisgarh, citing personal and professional reasons. The respondents argued that the posting was in line with the force's requirements and the petitioner was duty-bound to comply.
Finding of the Court:
The court clarified that the petitioner's posting was not a transfer but a promotion to the rank of Commanding Officer, and ordered the respondents to reconsider the posting in light of the petitioner's representations.
Issues: The issues revolved around the petitioner's posting to a different Battalion, the health and educational concerns of his family, and the rejection of representations by the respondents.
Ratio Decidendi: The court emphasized the right of an employee to approach the court for redressal of grievances, clarified the distinction between transfer and promotion, and highlighted the need for individual consideration of representations by the authorities.
Final Decision: The court directed the respondents to re-consider the petitioner's posting and make a decision within four weeks, while allowing the petitioner to re-agitate the matter in accordance with the law.
2. On 4th May, the Court directed for staying of the posting of the petitioner and it was further directed that he shall be allowed to continue at the place where he was working prior to issuance of impugned order.
On notice issued, respondents have filed reply affidavit. Petitioner has also filed rejoinder.
3. Mr. B.A.Bashir, learned senior counsel, appearing for petitioner submitted that the transfer of the petitioner is bad in law for following reasons:-
a. Transfer has been made against the general principles of transfer.
b. Recommendations were made in respect of four persons including the petitioner for their postings in Battalions where they were working, but petitioner alone has been discriminated being posted in 195 Bn at Chattisgarh, whereas other three persons have been retained in their own Battalions.
c. The wife of the petitioner is suffering from various ailments and she is being treated at Srinagar. Petitioner has only one school going daughter and there is no other person to look after his wife and from his place of proposed posting he has to travel about 500 Kilometers to get his daughter admitted in the school so as to enable her to get proper education.
d. The petitioner has worked at difficult postings and has been sent third time to Chattisgarh.
e. About fourteen officers who were junior to petitioner have not been transferred but petitioner has been transferred.
4. Mr. Makroo, Lerarned ASG, submitted that the transfer policy which has been referred to and relied upon by the petitioner is not applicable to his case as that pertains to the case of npn-gazetted officers, whereas the petitioner is holding a gazetted rank. Learned counsel further submitted that the ailments from which the wife of the petitioner is suffering are not that serious which would warrant cancellation of his posting to Chattisgarh. Learned counsel also submitted that the petitioner is duty bound to follow the lawful command of the competent authority and his non-compliance with the order impugned in the writ petition would tantamount to misconduct. Learned counsel submitted that the petitioner has been posted at Chattisgarh after considering the overall requirements of the force. Learned counsel referred to and relied upon the judgment of the Hon'ble Supreme Court in case titled National Hydroelectric Power Corporation Ltd, Appellant v. Shri Bhagwan and Anr, respondents reported in (2001) 8 SCC 574 and case titled S.C.Saxena, Appellant v. Union of India and Ors, respondents reported in (2006) 9 SCC 583 and prayed for dismissal of the writ petition.
5. It appears that parties are reeling under misconception of law by referring to posting of the petitioner at Chattisgarh as transfer. The employee borne on a particular category/cadre of service can be transferred from one place to another place. The Petitioner has not been transferred as Second-in-Command from one place to another place. The petitioner, in fact, has been promoted to the rank of CO. The petitioner after his promotion to the rank of CO has been ordered to be posted in 195 Bn, which is stationed at Chattisgarh. This posting is in sequel to the promotion to post of CO. This in law can not be said to be transfer of petitioner from one place to another place as he has not been transferred in his own rank.
6. The other issues raised would require to be answered. Four persons were recommended by the authorities for being retained on their promotion in respective Battalions where they were working in the lower rank out of them only petitioner after his promotion has been ordered to be posted in a different Battalion which
