JIWAN DASS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner in this writ petition, has urged for quashing of the order, rendered by the Central Administrative Tribunal, Chandigarh, on, 26.2.2014 comprised in Annexure P -1. A further relief, is, urged, of the respondent being directed to transfer the petitioner to, either Palampur, Allahala, Holta in Kangra District or Manali in Kullu district. In the alternative, it has been prayed that the respondents be directed to retain the petitioner at the present place of posting i.e. Yol Cantt. Dharamsala. The petitioner has averred that he has completed 58 years of age in December, 2013. He has served for more than 35 years in CWE Leh. He claims the benefit of paragraph 20 of the guidelines for Management of Group 'C' and 'D' posts of Military Engineering Service (MES), which is extracted hereinafter: -

(2.) ON strength thereof, the petitioner claims that, with his having completed 58 years of age, hence, crossed both 52 and 55 years of age, therefore, there being a bar in the rule aforesaid, against an employee aged 52/55 being posted at a tenure station/complex posting. Hence, his being aged 58 years in age, he be accorded the benefit of the aforesaid rule. Consequently, it, is urged that, hence his, claim in the writ petition, is, tenable and the view as adopted by the Central Administrative Tribunal, in, the impugned Annexure A -1, is, fallacious. Further more, it is urged that, with there, being an absolute bar in the retention, of any employee of the respondent, beyond, 58 years, at, a tenure/complex station, hence, the said bar, also works in favour of the petitioner, his having crossed 58 years of age. Therefore, its, benefit be afforded to the petitioner. Concomitantly he be given a posting outside Leh. Though impressive, the contention of the petitioner, is, on a bare reading of the rule aforesaid. Nonetheless a reading of, the rule, extracted aforesaid, in, the manner as done by the petitioner and its application to the petitioner would have been tenable, only, in, the event of there being, no, exception to the availability/applicability of the rule, to the petitioner.

(3.) WHEN fact of the petitioner belonging to industrial/non -industrial category, is, comprised in the affidavit, sworn to that extent, by, the authorized functionaries, of, the respondents, obviously, then credence is to be imputed to it. In consequence, when given the conclusive category of trade, to, which the petitioner belongs, rendering applicable to it, clauses 66 and 67 of the rules, obviously, then they comprise an exception to the rules, as, relied by the petitioner, comprised in rule 20 aforesaid. Therefore, any reliance, as, placed by the petitioner on it, is, wholly irreverable nor it can be countenanced in law. The fact of the petitioner being on compassionate grounds having come to be posted, at, Dharamshala by the respondents does not at all give him any leeway or latitude, to, protect his posting other than, at, Leh, for a tenure as enshrined, in, Clauses 66 and 67 of the rules. It was, however, permissible for the petitioner to contend on the strength of clause 66, as, applicable to the petitioner, that it be given effect to qua him. However, he has neither capitalized nor depended upon the apt provision of the rule as applicable to him nor hence has he either substantially nor palpably portrayed, existence of the enshrined conditions therein working in his favour, for its consequent applicability qua him, so, as to empower him, to claim a posting outside Leh. As a natural corollary omission on the part of the petitioner to place on record any material demonstrative of the conditions prescribed in the apposite rules, as applicable to him, having been accomplished by him, so as to enjoin, the respondent to transfer him outside Leh, as such, cannot, at all fortifying his submission, while being anvilled and harboured on inapposite rules, to, canvass that he be posted, out side Leh. Reiteratedly when there is absolute and complete bar of his being posted out side a tenure station, unless, he satisfies the condition prescribed under the relevant, germane and apposite rules whereby he would be empowered to claim a transfer outside a tenure station, which he has omitted to do so. As a corollary, when the apposite rules have remained both un -invoked as well as un -accomplished besides when the rules as relied upon by the petitioner are not applicable to him, therefore this Court, is, constrained to dismiss the writ petition.