UNION OF INDIA Vs. D B BHIDE

JUDGEMENT

(1.) Admit. Aggrieved by the order dated 7-8-1996 passed in C.W.P. No. 284/96, hereinafter referred to as the impugned order, Union of India has preferred this Letters Patent Appeal. Vide the impugned order, learned Single Judge quashed the order dated 10- 1-1996, transferring and posting the respondent as Joint Director, Missile System Quality Assurance Agency, Secunderabad. The learned Single Judge held that the respondent having been posted in Delhi from April, 1993 till 10th January, 1996 had not completed the normal three years tenure. Further the petitioner who was due to retire from November, 1997, having less than three years of residual service, was exempted from the purview of the transfer policy as set out in the Ministry of Defence letter dated 13-12-1982. The learned Single Judge held that the Union of India had failed to give any reasons for departing from the general policy, which was permissible in exigency of service. Union of India had failed to make out a case for that and the record placed before him did not establish any such exigency. He held that the plea of transfer, being in exigency of service was an after thought and not supported from record. Accordingly, the learned Single Judge quashed the order of transfer/posting of respondent to Secunderabad.

(2.) Before we go into the submissions made by the learned counsel, the facts in brief may be noticed:

(3.) The respondent presently a Colonel in the Army had permanently seconded to the Director General Quality Assurance (Electronics) in 1983. From 1983 to 1989, he was posted at bangalore and from 1989 to 1993, he was posted at Secunderabad. On being promoted as Colonel in 1993, he was posted in Delhi at Head Quarter Directorate of Quality Assurance (Electronics) as Joint Director till September, 1995. On 14-9-1995, the respondent was posted as Commanding Officer, Senior Quality Assurance Establishment (Electronic). The respondent's case 'is that the normal tenure of a Commanding Officer was two and a half to three years. He should not have been retransferred after being posted as Commandant only in September, 1995. The date of retirement of respondent being 30-11-1997, he had less than three years of residual service. Therefore, having not completed the normal tenure of posting as Commanding Officer in Delhi and admittedly having less than three years of residual service, he was not liable to be transferred in accordance with the axisting policy.