Biju Bhaskaran v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **WP(C).No.2370 OF 2018(U)** ## **PETITIONER:** **BAIJU BHASKARAN ARMY NO.1531622 IF HAVILDAR/CLERK(STAFF DUTY) S/O. C.V.BHASKARAN, AGED 38 YEARS,O/O.THE GARRISON ENGINEER (NW) KOCHI, KATARIBAGH, NAVAL BASE PO., KOCHI-682004** **BY ADVS. SRI.P.K.MADHUSOODANAN SRI.P.M.BINOY KRISHNA** ## **RESPONDENTS:** |**1**|**OFFICER IN CHARGE RECORDS**| |---|---| ||**RECORDS MEG, PIN-600493, C/O. 56 APO**| |**2**|**THE GARRISION ENGINEER NW**| ||**MILITARY ENGINEER SERVICES,**| ||**KATARIBAHG, NAVAL BASE PO. KOCHI-682004**| |**3**|**THE CHIEF ENGINEER (NAVAL WORKS)**| ||**MILITARY ENGINEER SERVICES,**| ||**KATARIBAHG, NAVAL BASE PO. KOCHI-682004**| |**4**|**ENGINEER-IN-CHIEF**| ||**INTEGRATED HEAD QUARTERS OF MINISTRY OF DEFENCE**| ||**(ARMY),KASHMIR HOUSE, RAJAJI MARG. DHQ PO., NEW DELHI**| ||**PIN110011**| |**5**|**UNION OF INDIA**| ||**REPRESENTED BY ITS SECRETARY,**| ||**MINISTRY OF DEFENCE, NEW DEHI-110001**| ||**BY ADV. SRI.JAISHANKAR V.NAIR CGC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2019, ALONG WITH WP(C).10909/2019(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **SATURDAY, THE 26TH DAY OF OCTOBER 2019 / 4TH KARTHIKA, 1941** ## **WP(C).No.10909 OF 2019(K)** ## **PETITIONER:** **BAIJU BHASKARAN AGED 39 YEARS ARMY NO.15316221F, HAVILDAR/CLERK (STAFF DUTY), S/O.C.V.BHASKARAN, O/O.THE GARRISON ENGINEER (NW) KOCHI, KATARIBHAGH, NAVAL BASE.P.O., KOCHI-682004.** **BY ADVS. SRI.P.K.MADHUSOODANAN SRI.P.M.BINOY KRISHNA** ## **RESPONDENTS:** |**1**|**OFFICER-IN-CHARGE RECORDS,**| |---|---| ||**RECORDS MEG, PIN-900493, C/O.56 APO.**| |**2**|**THE GARRISON ENGINEER (NW),**| ||**MILITARY ENGINEER SERVICES, KATARIBAGH, NAVAL**| ||**BASE.P.O., KOCHI-682004.**| |**3**|**ENGINEER-IN-CHIEF,**| ||**INTEGRATED HEAD QUARTERS OF MINISTRY OF DEFENCE**| ||**(ARMY), KASHMIR HOSE, RAJAJI MARG, DHQ.P.O., NEW**| ||**DELHI-110011.**| |**4**|**UNION OF INDIA,**| ||**REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE,**| ||**NEW DELHI-110001.**| **R1-4 BY SRI.JAISHANKAR V.NAIR, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2019, ALONG WITH WP(C).2370/2018(U), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 3 ## **J U D G M E N T** Both these writ petitions are filed by the very same petitioner. W.P.(C).No.2370 of 2018 was filed praying for a direction to the respondents to consider the application submitted by petitioner for last leg posting. As all the subsequent proceedings are incorporated in the 2[nd] writ petition i.e., W.P.(C) No.10909 of 2019, the parties and documents referred to in this judgment would be as described in W.P.(C) No.10909 of 2019. 2. Petitioner is aggrieved by the denial of last leg posting to any of the stations he requested and by the posting given to him at Training Battalion MEG & Centre, Bangalore as per Ext.P14 and orders Exts.P1 & P2 respectively. 3. The petitioner joined the Indian Army on 22.04.1996 as a Sapper. He has worked in various stations all over India. Petitioner claims that in June 2011 while he was working in I Armed Engineer Regiment at Hisar in Haryana, he sustained injuries to his Spinal Column **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 4 causing loss of Bowel Control and both knees, while dismounting from moving Battle Tank. He was subjected to a surgery on his spine, on 05.08.2011 in Base Hospital Delhi Cantonment (BHDC). But it had to be abandoned on account of profound bleeding and he underwent further medication, physiotherapy, etc. As there was no improvement in his condition, he had to undergo another surgery on 05.03.2012. Even thereafter his physical condition continued to worsen, resulting in 'loss of lumber lordosis'. After his discharge from that Hospital, he was placed in LMC P3(P) category. After he rejoined duty, he was transferred to Nagaland. Explaining his physical conditions stating that he was unable to move, he submitted a representation before the 1[st] respondent requesting for cancellation of the transfer and for a posting near home station on compassionate grounds. Thereupon his transfer to Nagaland was cancelled and he was thereafter posted to the office of the Garrison Engineer (P) (NW) Kochi on 10.12.2013. On completion of three years, he was transferred to 8 Engineer Regiment, C/o. 56 APO, Jodhpur. On the basis of **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 5 his representation, explaining his physical conditions, the 1[st] respondent, as per order dated 10.12.2016 allowed the petitioner to continue in Kochi for one more year. Ext.P4 order was issued thereafter on 20.10.2017, transferring him to Jhancy. Immediately on receipt of the same, the petitioner submitted a representation on 04.11.2017 requesting to reconsider the order and to allow him to continue at Kochi itself. In the representation he had pointed out that he was medically categorized under P2(P) with the remarks “excuse BPEP/PPG/Prolonged standing and sitting duties/ Wearing boots”. He was also advised to undergo physiotherapy. Pointing out that with all those medical issues, he would not be able to reach the new station and pointing out that he was unable to attend even his primary needs without the help of others and also explaining the nature of treatment he was undergoing in the Hospital at Kochi, petitioner had requested for retaining him in the same station. The 2[nd] respondent forwarded the representation as per Ext.P5 letter dated 05.11.2017 strongly recommending the same stating that he had witnessed the **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 6 pathetic medical condition of the petitioner on several occasions. 4. As there was no positive action on the representation, petitioner filed W.P.(C).No.37850 of 2017 challenging his transfer to Jhancy. The respondents, had filed a statement opposing his request pointing out the service rendered by petitioner in southern areas and stating that he was already granted extension for one more year. It was pointed out that he would be given all medical facilities as a military hospital was available in Jhancy. Though the petitioner had submitted that the treatment he was undergoing in Aster Medicity would not be available anywhere else this Court did not interfere with the transfer order, taking note of the submission of respondents that a number of Army personnel classified under different medical categories were to be accommodated at Kochi and that the respondents would take care of all medical situations of petitioner. 5. In the meanwhile an application submitted by petitioner for last leg posting was rejected by the respondents on the ground that it was premature at that **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 7 time, as it was preferred at a time when there was more than 3 years for his retirement. As per clause 79 of the guidelines, the application for last leg posting is to be made 2 ½ years before the retirement. Clause 79 of the guidelines provided that the postings issued on request of any officer received through DO letters/telephonically would be considered as compassionate posting and a note as such would be endorsed in the 'Record of Service' of the individual. Requests from COs units for retention/extension would not fall in this category. It provides that last leg posting cannot be requested to a station already served by the individual. However, Clause 67 provides for last leg postings for a period of two years, which is granted on the recommendation of genuine cases by the Commanding Officers/Officers Commanding Units and such posting would not exceed 10% of the authorized strength of centre units. It also provides that individuals due to retire on superannuation/completion of service limits/terms of engagement/tenure and who have had not more than one South tenure, may be considered for posting to a station **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 8 of their choice subject to availability of vacancies. 6. This Court by Ext.P6 judgment though did not interfere with the transfer to Jhancy, observed that since the application submitted by the petitioner for last leg posting was rejected on the ground that it was premature and by that time he became eligible to submit a fresh application, it would be open to him to submit such an application for last leg posting in view of his physical conditions. 7. Subsequent to the judgment, the petitioner submitted Ext.P7 application requesting for a posting to any of the units in Ezhimala, Kannur or Calicut, and the CO Unit and Controlling Authority (CWE), GE(NW) Kochi, had forwarded it to the Head Quarters along with Ext.P8 proforma with strong recommendation of the 2[nd] respondent-the controlling authority and that of the Chief Engineer, as per Ext.P9 letter dated 19.12.2017. In the meanwhile steps were taken to relieve the petitioner as per Ext.P11 letter dated 13.12.2017 of the Senior Records Officer on the ground that the writ petition filed by petitioner was dismissed. It was followed by **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 9 Ext.P12 letter dated 09.01.2018. 8. Petitioner thereupon filed W.P.(C).No.2370 of 2018 complaining delay in considering his application for last leg posting. Immediately thereafter the respondents cancelled the movement orders Exts.P11 and P12 orders. Thereafter as per Ext.P14 order dated 24.01.2018 the 1[st] respondent rejected the application for last leg posting to Ezhimala, Kannur or Calicut. Stating that the petitioner has already served 13 years out of his total service of 21 years 06 months, in Southern Command Theatre his request for posting to South i.e., in Kannur & Kochi from GE(NW) Kochi which are located in the same region was stated to be unjustified saying that it will lead to six years and five months tenure in one Station/Command theatre. It was further stated that the unjustified demand by the petitioner may lead to similar requests from others and would cause several problems in man management as well as operational efficiency in Indian Army. It was further stated as follows: (b) You have already availed 4 years (3 years normal **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 10 tenure+ 1 year extn. on compassionate ground) in Southern Command Theatre, hence further posting to same Comd is not feasible as deployment of Army pers is mainly in Operational areas and other per personnel who are serving in field areas are to be posted at your place. In case your posting is issued again to same Theatre, other personnel will be affected. - (c) Notwithstanding the above, with due consideration to your medical conditions, your posting has been issued to 1 Armed Engr Regt which is also located in Southern Comd theatre, located in peace area where all medical facilities are available. - (d) As per para 67 of ROI 2013, The concession of last leg posting will not be treated as right(Copy encl). Request for such postings will be considered if administratively feasible, since the other pers who are posted in field area are also waiting for posting to peace area/Southern Commd Theatre, it is not feasible to issue your posting again in same theatre, as it will accumulate to 6 years tenure in the same theatre. - (e) Hon'ble High Court, Ernakulam Bench vide order dt 04 Dec 2017 has not interfered the posting order issued by this office. 9. In the W.P.(C).No.2370 of 2018, petitioner filed an I.A.No.3665 of 2018 seeking stay of Ext.P14 order by which he was posted to 1 Armed Engr Regiment and also Ext.P15 order. As per Ext.P3 order dated 28.02.2018, the operation of both the orders were stayed, making it clear that the same would not stand in the way of respondents from issuing orders accommodating the petitioner in any of the stations he requested as last **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 11 leg posting. It is stated that though the respondents filed Writ Appeal against that interim order, it was not varied. Ext.P1 attachment order was issued thereafter on 06.02.2019 posting the petitioner at No.3 Trg Bn. MEG & Centre at Bangalore. It was stated that the attachment order would be in force till vacating of stay orders/finalization of court cases whichever is earlier. W.P.(C).No.10909 of 2019 was filed challenging the Ext.P1 order and Ext.P2 by which the 2[nd] respondent was directed to relieve the petitioner based on Ext.P1 order and seeking a direction to the respondents to retain him at Kochi till his retirement on 30.04.2020. 10. Respondents have filed counter affidavits in both the cases defending the action taken by them in the impugned orders. It is stated that petitioner is a permanent medical category P3 with effect from 05.03.2012 and that the only restriction put in his medical review is exemption from physical exertion training tests like Battle Physical Training, Parade and games, prolonged standing and sitting duties. It is stated that he was posted at Jancy, where there is a military hospital after **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 12 considering his medical conditions. Regarding the application for last leg posting, it is stated that under para 67(c) of the policy a person who has served in a particular station would not be considered for re-posting for the same station within 6 years. Petitioner requested for a home posting as last leg posting; home posting is posting in home state or neighbouring state close to his home town as per availability of vacancy. It is stated that petitioner has been continuing in Kochi since 18.11. 2013; he was granted one year extension based on his request; out of the 21 years of his service he had served in the southern command sector for a period of 16 years and that he was due for regiment tenure. It is stated that in case last leg posting is given his total tenure would be for six and a half years under the southern command as Kannur and Kochi are in the same region. It was stated that as per policy constraints the competent authority could not accept his request as it would set a wrong precedent. It was also stated that the concession of last leg posting is not a right; requests can be considered only if administratively feasible, **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 13 since other persons posted in field area are waiting for posting in peace area/ southern command theatre. It is stated that 1 Armed Engr Regt is also in Southern Command Theatre located in peace area where all medical facilities are available. The respondents have stated that there are more than 35000 troops which includes 2500 low medical category personnel. According to the respondents due sympathy was shown to petitioner all along. It is stated that an army personnel is bound to serve anywhere in the country and transfer is an administrative function. 11. Having heard the contentions on either side, I am of the view that the respondents have not considered the application for last leg posting in accordance with the directions in the judgment Ext.P6 in W.P.37850 of 2018. It is true that this Court did not interfere with the order of transfer to Jhancy. At the same time, a direction was issued to the respondents to consider the application of petitioner for last leg posting, making certain observations in paragraphs 13 and 14 of the judgment. **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 14 12. Though it would appear that the posting at Bangalore may not cause any serious difficulties for the petitioner as his request was for a posting at Ezhimala or Kannur or Calicut when he is working at Kochi, it is relevant to note the respondents discarded the following observations made in paragraphs 13 and 14 of Ext.P6 judgment: “The only restriction in Clause 79 read with 67 is that the request shall not be to a station in which he had already worked. Therefore, there cannot be any impediment in giving him a posting in another station in his home state.” 13. It was with the aforesaid observations that writ petition was disposed of allowing the petitioner to submit another application for last leg posting and directing the respondents to consider the same with due compassion within three weeks. As the first application submitted by petitioner was rejected on the ground that it was premature, petitioner was asked to submit a fresh application. This Court observed that the only circumstances when his application could be rejected would be only if the posting strength exceeded 10% of the authorized strength of centre units. The respondents did **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 15 not have a case that a posting other than at Kochi was not liable to be granted as last leg posting in a case where there strong recommendation by the Controlling Officer. They did not have a case that a posting in the State other than in the same station (Kochi) where he worked was not permissible as per the rules. 14. Respondents did not have any grievance over the observations made in paragraphs 13 and 14 of Ext.P6 judgment. But they rejected the application for last leg posting discarding the observations made in the judgment without resorting to the legal remedies available to them in case they felt that the interpretation of the provisions for last leg posting was not correct. But they overruled those observations rejecting the application by Ext.P14 order stating that it would set a wrong precedent if he is given a posting in Kannur or any of the stations he requested. Respondents do not have a case that there is no vacancy in which the petitioner could be accommodated in the stations to which he requested. At any rate the respondent cannot be permitted to improve the grounds of rejection from what they stated in Ext.P14 **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 16 order. 15. Shri Jayasankar, the learned CGC relied on the judgments in **Major General J.K. Bansal v. Union of India and Others** [2005 KHC 1348], **National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Another** [2001 KHC 1676], **Sreekumar S v. Union of India and Others** [2014(4) KHC 621], **Shilpi Bose and Others v. State of Bihar and Others** [1991 KHC 837], **Babu v. State of Kerala 1988 KHC 425, Prabir Banerjee v. Union of India and Others** [2007 KHC 4069] in support of his contention that this Court under Article 226 is not expected to interfere with the orders of transfer especially in respect of members of Armed Forces and it is for purely within the domain of the authorities, the employer to decide the question of posting of his employees. This Court is conscious of the aforesaid well settled legal position. But I am constrained to interfere this time because of the attitude of the respondents towards the judgments of this court. In the above circumstances, I find that the rejection of the request of the petitioner in Ext.P14 and **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 17 the consequential posting order as per Exts.P1 and P2 are liable to be set aside. Ordered accordingly. Respondents shall pass fresh orders on Ext.P7 application submitted by petitioner for last leg posting as directed in Ext.P6 judgment in tune with the observations therein. As the petitioner has got only 6 more months' service left for retirement he shall be allowed to continue in the same station till orders are passed afresh on the application for last leg posting. Both the writ petitions are disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 18 ## **APPENDIX OF WP(C) 2370/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE POSTING ORDER: OR/CLK/(SD) PO. NO.C/OR/TO/CA1/66/2017, DATED 20.10.2017 EXHIBIT P2: TRUE COPY OF THE LETTER DATED 9.11.2017 BY THE 2ND RESPONDENT EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 4.12.2017 IN WPC NO.37850/2017 ON THE FILE OF THIS HON'BLE COURT EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 11.12.2017 BY THE PETITIONER EXHIBIT P5: TRUE COPY OF THE APPLICATION FOR COMPASSIONATE POSTING ON LAST LEG OF SERVICE AT APPENDIX-B EXHIBIT P6: TRUE COPY OF THE LETTER DATED 19.12.2017 OF 3RD RESPONDENT EXHIBIT P7: TRUE COPY OF THE LETTER DATED 23.12.2017, BY THE 2ND RESPONDENT EXHIBIT P8: TRUE COPY OF THE LETTER DATED 13.12.2017 BY THE 1ST RESPONDENT EXHIBIT P9: TRUE COPY OF THE LETTER DATED 9.1.2018 BY THE 1ST RESPONDENT EXHIBIT P10: TRUE COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 24.01.2018 SERVED ON THE PETITIONER EXHIBIT P11: TRUE COPY OF THE ORDER DATED 24.1.2018 OF THE 1ST RESPONDENT, ISSUED ON THE VERY SAME DAY OF EXT.P10 EXHIBIT P12: TRUE COPY OF THE LETTER DATED 10.02.2018 ISSUED BY THE 1ST** **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 19 ## **RESPONDENT.** **RESPONDENT'S EXHIBITS: EXHIBIT R1(A): TRUE COPY OF THE MEDICAL BOARD REPORT EXHIBIT R1(B): TRUE COPY OF THE MEDICAL BOARD REPORT EXHIBIT R1(C): TRUE COPY OF THE ORDER DATED 24.01.2018.** **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 20 ## **APPENDIX OF WP(C) 10909/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER OF ATTACHMENT DATED 6.2.2019 ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE ORDER OF ATTACHMENT DATED 27.3.2019 OF THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.2.2018 ISSUED IN I.A.NO.3665/2018 IN WPC.NO.2370/2018.** **EXHIBIT P4 TRUE COPY OF THE POSTING ORDER DATED 20.10.2017.** - **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 9.11.2017 OF THE 2ND RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 4.12.2017 IN WPC.NO.37850/2017. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 11.12.2017. EXHIBIT P8 TRUE COPY OF THE APPLICATION AT APPENDIX-B DATED 11.12.2017. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 19.12.2017. EXHIBIT P10 TRUE COPY OF THE LETTER DATED 23.12.2017 TO 1ST RESPONDENT.** **EXHIBIT P11 TRUE COPY OF THE LETTER DATED 13.12.2017 OF THE 1ST RESPONDENT.** **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 9.1.2018 OF THE 1ST RESPONDENT.** **EXHIBIT P13 TRUE COPY OF THE LETTER DATED 24.1.2018 OF THE 1ST RESPONDENT. EXHIBIT P14 TRUE COPY OF THE LETTER DATED 24.1.2018 OF THE 1ST RESPONDENT.** **WP(C).NoS.2370 OF 2018 (U) & 10909 OF 2019(K)** 21 **EXHIBIT P15** **TRUE COPY OF THE LETTER DATED 10.2.2018 OF THE 1ST RESPONDENT.** **EXHIBIT P16 TRUE COPY OF THE LAWYER NOTICE DATED 25.5.2013.** **EXHIBIT P17 TRUE COPY OF THE LETTER DATED 5.3.2019 OF THE 2ND RESPONDENT.** **EXHIBIT P18 TRUE COPY OF THE LETTER DATED 8.3.2019 OF 2ND RESPONDENT TO THE 1ST RESPONDENT.**