1 S.B. CIVIL WRIT PETITION NO.4897/2007. Subedar Major Janak Raj Vs. Union of India & Ors. Date of Order :: 24th August 2007. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.K. Nanda, for the petitioner. Mr. Ravi Bhansali, for the respondents. ... By way of this writ petition, the petitioner seeks the relief of recalling/cancellation of the order of his posting as made on 18.04.2007 (Annex.P/3) with the submissions that he was enrolled in the Army on 29.07.1975; that ultimately he was promoted to the Rank of Subedar Major on 06.12.2004 and thus he would be eligible to serve in the Army for four years as Subedar Major; that on completing such period of four years during the month of December 2008, he will be discharged on 31.12.2008; that he has rendered 32 years of unblamished service in various Ranks and posted at different areas; that his previous posting was at 868 EWS at Rangapahar [Dimapur (Nagaland) - a counter insurgency operation area (CI Ops.) posting] from August 2003 to September 2005; that he has not even completed two years' tenure at the present Station under respondent No.4; and the respondent No.2 Officer Incharge Records has issued posting order PBOR in respect of the 2 petitioner with others (Annex. P/3) on 18.04.2007 transferring him from the present Unit with the Garrison Engineer (AF), Jodhpur to 58 Engr. Regt. located at Leh, which is High Altitude Area (HAA); that the respondent No.4 took up the case of the petitioner for cancellation of posting with reference to Posting Policy ROI 12/2002 (Annex.P/2) highlighting all the facts in relation to the petitioner of his having served in CI Ops. area from April 2003 to September 2005, and being again posted to HAA after one and half years, though he is due to retire in December 2008, and has not completed the normal tenure of three years period of four years as per ROI 12/2002; that the petitioner submitted a request for last leg posting stating his earlier postings and imminent retirement and the difficulty his family was likely to face; that the request made by the petitioner was duly forwarded to the respondent No.2 (vide Annex.P/7) but the same was rejected by the Officer Incharge Records under communication dated 25.05.2007 (Annex.P/8); and that now the respondent No.2 has issued movement order on 31.07.2007 with instructions to the petitioner to proceed on permanent duty to 58 Engr. Regt. so as to report on 31.08.2007. The petitioner has submitted that the posting order dated 18.04.2007 is in clear contravention of the posting policy issued by the respondent No.2. It has particularly been 3 submitted that the petitioner has not completed three years at the present posting; is due to retire in the month of December 2008; and is entitled to retire from the present place of posting. Learned counsel Mr. S.K. Nanda appearing for the petitioner has strenuously contended with reference to the Posting Policy (Annex.P/2) that posting of the petitioner to HAA by the order impugned is squarely in contravention of said policy issued by the respondents that has practically the statutory force and is meant for adherence and not contravention. Learned counsel has particularly referred to the following clauses in the posting policy for consideration,- “3. Tenure of Sub Maj/Clk (GD). A Subedar when posted on promotion to the rk of Sub Maj will be allowed to complete four years tenure as to facilitate JCO to retire from the same unit. However length of tenure could be reduced by OIC Records on request from a JCO considering the merits of the case which incl last leg or compassionate postings. 9. Turnover of Pers in CI Ops/HAA. Pers serving in CI Ops/HAA will be given good peace station on turn over. Pers serving in Fd/HAA/CI Ops area will not be posted again to Fd/HAA/CI Ops area before completion of six yrs. However volunteers for Fd posting can be posted for consecutive Fd tenure. 14. Pers having less than 18 months residual service will be allowed to retire in 4 situ. However, pers on compassionate ground will be turned over. ” Learned counsel further contended with reference to the Signal sent by GE (AF), Jodhpur (Annex.P/4) and further recommendation sent on 08.05.2007 (Annex.P/7) that such strong recommendation on valid grounds has simply been rejected stating it to be 'not found feasible' without any reason or justification. By the signal (Annex.P/4) sent on 28.04.2007, the entire of the case of the petitioner has been succinctly put thus: “POSTING JCOs (.) REF RECORDS BEG, ROORKEE LETTER NO. 75571/369/CA-5 DT 18 APR 2007 (.) CASE TAKEN UP FOR CANCELLATION OF POSTING IN RESPECT OF JC-202927K SUB MAJ/CLK (GD) JANAK RAJ (.) JCO SRVED IN CI OPS AREA WEF APR 03 TO SEP 05 AND AGAIN POSTED TO 58 ENGR REGT MOVING TO HAA AFTER ONE AND HALF YEAR (.) JCO DUE FOR RETIREMENT IN DEC 08 (.) JCO NOT COMPLETED EVEN NORMAL TENURE OF THREE YEARS INSTEAD OF FOUR YEARS AS PER ROI 12/02 DT 05 SEP 2002 (.) REQUEST CANCELL HIS POSTING AND ALLOW JCO TO RETIRE IN SITU (.) APPLICATION FOR CANCELLATION OF POSTING FOLLOWS.” However, by the signal dated 25.05.2007 (Annex.P/8), the representation of the petitioner has been rejected and the 5 GE (AF) has been requested to dispatch the petitioner as per posting order. By the movement order (Annex.P/9), it has been remarked,- “Remarks – As per posting order the JCO was required to mov by 31 May 07. However, unit failed to despatch him. Therefore, mov order to the JCO is issued by Records as per direction of E-in-C's Branch, Integrated HQ of MoD (Army) letter no. 36789/Posting/197/7/EIA dt 28 Aug 06.” A notice was issued in this writ petition on 16.08.2007; and the respondents have filed a reply essentially contending that as per para 15 of ROI 12/2002, the OIC Records is entitled to overrule the posting guidelines to issue posting order at his discretion if the same is warranted looking to the exigency of service and, therefore, the posting order is valid and is not questionable. It has been remarked in the reply that the petitioner being a soldier, is supposed to accept the order willingly and obey the same as per Army pledge. It has also been stated that at the request of the petitioner, GE (AF), Jodhpur took up his case with the respondent No.2 to reconsider his posting order but the OIC Records did not agree and directed to implement the move as ordered; and that such action is within discretionary powers. So far the education of children is concerned, it has been stated that as 6 per policy, he can retrain his family/children at the Station till completion of their academic session and it is not vital reason or ground on which his posting order should be cancelled; or that he should be allowed to retire from the present Station. It has also been stated in the reply that the petitioner's reliever has reported on 18.08.2007. Having given a thoughtful consideration to the submissions and having examined the record, this Court is of opinion that the petitioner is not entitled for any relief in this writ petition. The petitioner has relied upon various clauses of Posting Policy, as noticed above; however, the final and concluding clause 15 of the said policy makes it clear that the preceding clauses are of the guidelines for issuing posting orders but due to various reasons the OIC Records is at liberty to overrule the provisions mentioned in the said policy. Clause 15 reads thus: “15. The above are guidelines for issuing posting order in respect of Clk (GD). However, due to various reasons like exigencies of services, posn of vac, adjustment of surplus/deficiency, shortage manpower etc, OIC Records will be at liberty to overrule the provisions mentioned above at his discretion.” Though the grievance raised by the petitioner cannot be dubbed as wholly unwarranted or baseless; and it appears 7 from the signal (Annex.P/4) and further recommendation (Annex.P/7) that his present Station has taken up the case and made recommendations for cancellation of the posting order in question. However, the ultimate authority for deciding the matter has been with the OIC Records; and when it has been conveyed by the signal (Annex.P/7) that the request was not found feasible, this Court is of opinion that in view of the discretion resting with the said authority, no exception can be taken against his turning down the request. Ordinarily, in a transfer/posting order, interference by the Court is warranted if the same is shown to have been made mala fide or in violation of any statutory provision. The provisions referred by the petitioner are firstly of a guideline and even the said guideline in its clause 15 leaves the discretion with the OIC Records to overrule the other provisions for various reasons. Ultimately the manpower planning has to be left at the wisdom and discretion of the authority concerned and, thus, even when in the present case it is clear that the petitioner is being asked to move contrary to the aforesaid clauses of the policy in question, the order cannot be held to be illegal or unauthorised particularly in view of the aforementioned clause 15. The case does not call for interference in the writ jurisdiction of this Court. 8 However, before concluding, a comment on the stand taken by the respondents seems requisite and apposite. The respondents have repeated in their reply that the petitioner has taken a pledge to serve the Army and his services are dedicated for the well being of the Nation and there is no room for any personal interest; and the respondents have gone to the extent of stating that by filing the writ petition challenging the posting order, the petitioner is violating the pledge to the army/nation. The respondents have stated,- “So, the petitioner is violating the fundamental obligations pledged to the army/nation by filing Writ Petition challenging the posting order, which is a common/normal phenomenon in service. As such on this ground itself to the Writ Petition is not maintainable and to liable be dismissed.” The aforesaid comment in the context of the present case cannot be appreciated. It is on record that the petitioner has rendered 32 years of unblamished service and has risen to the Rank of Subedar Major; and has served in CI Ops. area from August 2003 to September 2005; and as on the date of making of the posting order i.e. 18.04.2007, had about 20 months from retirement and now has about 16 months before retirement; and has been at the present Station for less than two years. It has not been shown if the petitioner has ever shirked from his duties and responsibilities. Realising the genuineness of his case, the Garrison Engineer (AF) has also 9 made the recommendation, as noticed above. It is a different matter that the OIC Records has not agreed with such request; and it is also an entirely different aspect that in view of Clause 15 of the policy and ultimately it being a transfer/posting order, this Court is not inclined to interfere in the writ jurisdiction; but it sounds entirely indiscreet on the part of the respondents to state in their reply that the petitioner is violating his pledge to serve the army/nation merely because of his filing this writ petition. The petition stands dismissed. (DINESH MAHESHWARI), J. Mohan/