GHISU LAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner by this writ petition seeks to quash the order of his transfer dated June 19, 1981 on the grounds that it is contrary to tenure policy and it is discriminatory in nature, inasmuch as, the petitioner has been singled out by transferring him from Jodhpur to Kalikonda, whereas persons similarly situated have not been disturbed and that transfer is mala fide and with extraneous considerations.

(2.) THE petitioner was recruited to the Indian Air Force in January 1963 as Air Craftman. THE petitioner joined No. 32 Resafsggggggg g Referred to Referred to Referred to Referred to Referred to Wing at Jodhpur on being transferred from hard learing Area No. 3 PBSU, C/o 56 APO on June 22, 1979. THEre-after, he was promoted as Sergeant in Air Traffic Control (ATC), No. 32 Wing on July25, 1979. THE petitioner made several representations (Annexures 1 to 7a) against his order of transfer, but to not effect. So the petitioner has approached this Court to challenge the order of his transfer on the above grounds.

(3.) THE petitioner filed rejoinders in which, it was refuted by the petitioner that he was posted in 32 Wing on compassionate grounds. THE petitioner first submitted his rejoinder dated August 27, 1981 and finally submitted another rejoinder on November 13, 1981. THE petitioner was administered oath as required under section 17 at the time of service. But, sections 16 and 17 do not mean that the petitioner can not challenge the arbitrary and discriminatory order of his transfer. It was stated that sections 16 and 17 are meant for swearing oath of fidelity and idea behind section 17 (2) is that the combatant Airmen are required to abide by the orders of the Commanding Officers to go to any place by land, sea and air, even to pain of peril of his life, in the event of war or national emergency. If any command is given by the competent authority then in that case, he will follow that command even at the cost of his life. But, this section cannot curtail the right of the petitioner to challenge the arbitrary and discriminatory order of transfer issued by the competent authority in the time of peace. Reference was made to the training notes of Air Force Law. It was alleged that the tenure policy is not in consistent with the provisions contained in section 17 of the Act. It is only a service privilege. As regards the objection that the tenure policy is executive in nature, it was stated that it may be so but the same can be enforced, if discrimination is practised in its observance. THE Government is bound by its policy and if any departure is made, then the same has to be done with cogent reasons. As regards the petitioner's posting to Jodhpur, the petitioner averred that the petitioner made grievance against the Wing Commander, the Commanding Officer 3 FBSU and Group Captain under section 26 of the Act read with para 621 of the regulation of Air Force, 1964. THE grievance was heard by A. D. C. in 'c' Western Air Command. THE petitioner remained at 3 FBSU, which is a hard area, for 1 year and in the normal course, he was due for transfer and in this back ground, a choice was asked for various places by A D C. in 'c. THEreupon, the petitioner gave a choice for Jodhpur and he did not seek transfer voluntarily on compassionate ground, which may be verified from Signal No. 3 FBSU, PS/50 dated September 15, 1981. It was stated that to ask for a transfer voluntarily and to make choice when the same has been given by a Superior Officer are clearly different. THE tenure policy contained the detailed procedure for seeking transfer on compassionate ground No such procedure was followed in the petitioner'e case. THE petitioner further stated that his application dated June 6, 1981 on compassionate ground along with 13 certificates of civil competent authorities was not forwarded to the higher authorities whereas, the applications of other persons were forwarded. Although, the petitioner's compassionate grounds were more telling as compared to others. THE petitioner's father is blind, sick and aged 80 years. He has three young marriageable sisters and the petitioner has an ailing family and the petitioner categorically mentioned that he will leave service after completing 21 years and he was hardly to serve for 1 year and 10 months before leave preparatory to retirement. When the petitioner moved the higher authorities for seeking interview, the petitioner was informed vide Annexure-14 dated October 14, 1981 that his request for interview with the Chief of Air Staff or any Officer at Air Head quarter will not be considered on account of his case being sub-judice. THE petitioner also submitted a list of persons, who have put in 3 to 4 years service at the present station and stated that when an uniform policy for 3 to 6 years has been maintained by the authorities then why the tenure policy is shortened in the case of the petitioner. He also submitted another list of persons showing that they are completing 6 to 10 years of their service at Jodhpur vide Annexure-19, annexed to the rejoinder. THE petitioner emphasised that the petitioner has been noted out discriminatory treatment. THE petitioner, thus, refuted the pleas raised by the respondents and reiterated his grounds for quashing his transfer order.