1 S.B. CIVIL WRIT PETITION NO.5036/2007. 13973809-M Hav/Clk Dinesh Chandra Vs. Union of India & Ors. Date of Order :: 17th December 2007 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. K.K.Shah, for the petitioner. Mr. Kuldeep Mathur, for the respondents. BY THE COURT: The petitioner, 13973809-M Hav/Clk Dinesh Chandra, presently posted at Military Hospital, Jodhpur has filed this writ petition being aggrieved of the communication dated 17.07.2007 (Annex.12) whereby his request for compassionate ground posting has been turned down. The petitioner made the prayer for posting on compassionate grounds by way of his application, placed on record as part of Annex.3 (at page-17); and sought posting at Unit/Station at (a) Pune, (b) Delhi, and (c) Lucknow, while stating the reasons thus: ''7. Brief reason in support of it: My 1st wife expired on 24 Oct 1997 behind three sons. I got second marriage Dec 1998, she is physically handicapped Diag : Post Polio Paralyses (Rt leg foot with foot drops (cert attd). My wife and my father in law are pressing me hard for her treatment. My second wife and three mother less sons are not co-operating me. My four children are studying in APS Dholkauan Delhi 11th, 9th 6th and 1st respectively. My children don't want to leave Delhi and My wife compelling me for Pune for her treatment. Earlier my mother has been 2 expired on 25 May 2007, hence I am mentally perturbed. At this critical juncture, I may please be posted to any of the above stations so shall I be get rid of above problems. If my application is not considered then I may please be granted premature retirement. as soon as possible.'' The prayer so made by the petitioner came to be rejected by the competent authority for the reasons as stated in the communication dated 17.07.2007 (Annex.12), relevant part whereof reads thus: “2. Request for compassionate ground posting in respect of 13973809 M Hav/Clk Dinesh Chandra of your unit is not agreed to the following reasons :- (a) Indl was earlier posted to Western Command (BH Delhi) and presently posted in Southern Command (MH Jodhpur) and again requesting for posting to same sectors which is against the posting policy. (b) Indl has just completed 1 & ½ year at present unit and reasons forwarded by him do not warrant for his premature shifting.” By filing this petition for writ, challenging the impugned communication dated 17.07.2007, the petitioner has contended that he is to retire on 31.07.2011 and at the fag end of his service career, first time he felt the necessity to approach the competent authority to transfer him at the choice posting for the compelling circumstances; that the request has been made in conformity with the grounds envisaged by ROI No.13/97; that impugned order is against 3 the policy and even against the facts inasmuch as the authority has proceeded to reject the prayer on the basis that he has sought posting in the Western Command (BH Delhi) though the petitioner has not asked for posting at Delhi as such but has given the choices of Pune, Delhi and Lucknow; that the requirement of getting compassionate posting had been so strong with the petitioner that he has even requested for premature retirement if could not be given such posting; and that the competent authority ought to have applied its mind to the application in its entirety. Taking note of the contentions aforesaid and the reasons stated in the impugned communication (Annex.12), notices for final disposal were issued in this case. The respondents have filed a reply and while stating the service profile of the petitioner with his posting stations have alleged that he remained posted in Base Hospital, Delhi from 08.04.2001 to 10.12.2005 where Orthopedics Centre was available but he has not availed of those facilities for treatment of his wife for the reasons best known to him and is again requesting for posting to Delhi despite being aware of the facts that he had had an extended tenure at Delhi; that the wife of the petitioner is physically handicapped since 31.01.1990 but earlier he never applied for posting on the ground of illness of his wife nor availed treatment facilities 4 while being posted at Delhi and this creates doubt on the genuineness of his case; that mere family problems and private affairs cannot be the ground for the Department to shift a soldier from one unit to another; that the tenure of the petitioner at Military Hospital, Jodhpur is upto 11.12.2008 and he cannot be shifted to other unit unless exigencies of service require so. It has also been contended that the petitioner should have availed of the remedy under the provisions of Section 26 of the Army Act, 1950 for redressal of his grievances before approaching the Court and the petition is liable to be rejected on this ground alone. Leaving aside other details being not relevant for the order proposed to be passed in this matter, it may of course be pointed out that the petitioner has stated ground (G) in the writ petition thus: “(G) That the requirement of getting compassionate posting is so strong that the petitioner even requested for pre-mature retirement if he could not be given compassionate posting to his choice place. It was the bounden duty of the competent authority to have applied its mind to application in its entirety and could have agreed to or rejected the prayer for pre-mature retirement.” Reply to the aforesaid paragraph by the respondents reads thus: “23. Para G : In reply to para-G it is submitted that the request of the petitioner was considered by the competent authority in an objective 5 manner. However, the competent authority did not find it a fit case for compassionate posting of the petitioner. Having heard learned counsel for the parties and having examined the material placed on record, this Court is of opinion that the communication dated 17.07.2007 (Annex.12) in purported rejection of the prayer of the petitioner as made in his application (Annex.3) cannot be said to be proper, and cannot be sustained, for two major reasons. First, that the communication proceeds on fundamental incorrect premise as if the petitioner has made the request for his posting at Delhi only. In fact, the entire burden of the reply has also been as if the petitioner has sought posting only at Delhi. The application made by the petitioner for compassionate posting distinctly makes out that he requested for posting as last tenure at (a) Pune, (b) Delhi, and (c) Lucknow. Learned counsel for the respondents candidly admitted, and so is borne out from the reply submissions, that the petitioner never remained posted at Pune. Reason (a) as stated in the communication is fundamentally incorrect and perversity is apparent on the face of the record. Secondly, the respondents have altogether omitted to consider the other part of the prayer made by the petitioner in the application that if his request for compassionate posting was not to be granted, he might be accorded premature 6 retirement. The submission in that regard has been reiterated in this writ petition also. It is rather strange that the respondents have simply chosen to ignore the said prayer and not a word in that regard finds mention in the communication dated 17.07.2007. It is moreover strange that such averment taken in the writ petition has been responded with a reply nowhere even near to the said submission. Learned counsel Mr. Mathur attempted to submit that for seeking premature retirement, the petitioner was required to adopt appropriate proceedings in accordance with law and should not have clubbed such prayer with his prayer for compassionate posting. Even this proposition, as suggested by the learned counsel for the respondents, has not been stated by the respondents whether in their communication dated 17.07.2007 or in their reply to this writ petition. For the reasons aforesaid, this Court is satisfied that the respondents have not considered the prayers made by the petitioner in their proper perspective and with reference to his record. To say the very least, the submission as made by the petitioner seems to have received rejection without objective consideration. Though ultimately as to who should be posted where and how the manpower is to be deployed, is a matter for the 7 authorities concerned to decide but then, if the authorities have chosen to deal with the prayer for compassionate posting and have framed policy in that regard and if an employee would make other prayers including the prayer for allowing him premature retirement if compassionate posting at the fag end of his career cannot be allowed, such prayers definitely deserve objective consideration by the authorities and denial of proper consideration obviously results in a fundamental illegality calling for interference in the extra-ordinary writ jurisdiction of this Court. In view of the aforesaid, this writ petition succeeds to the extent indicated above and the impugned communication dated 17.07.2007 (Annex.12) stands quashed; the prayer as made by the petitioner in his application for compassionate posting stands restored for consideration by the authorities concerned, who shall be expected to take objective decision thereupon within 30 days from today. In the interest of justice, the authorities might consider allowing the petitioner to supplement his prayers with additional submissions and supporting material. No costs. (DINESH MAHESHWARI),J. Mohan