W.P.(C)/6629/2017 of SQN LDR MUKUND SHARMA Vs UNION OF INDIA AND ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI+W.P.(C) 6629/2017 & CM Appls. 27543/2017, 27544/2017 &27545/2017

SQN LDR MUKUND SHARMA

..... Petitioner

Through:Mr. Shiv Kumar Pandey, Advocate.versus

UNION OF INDIA AND ORS

Through:

..... RespondentsMs. Suman Chauhan and Mr. JiveshTiwari, Advocates for R-1 to R-4.

CORAM:JUSTICE S.MURALIDHARJUSTICE SANJEEV NARULAO R R%18.01.2019

SANJEEV NARULA, J:

1. The Petitioner who is Squadron Leader (Sqn Ldr) with the Indian AirForce (IAF) has impugned the transfer order being no. PO/651 dated 14[th]July 2017 in the present petition under Article 226 of the Constitution ofIndia.

2. Briefly stated, the facts of the case are that the Petitioner is permanentcommissioned officer of the Indian Air Force. His service conditions aregoverned by the Indian Air Force Act, 1950 and the Rules and Regulationsof Indian Air Force. During his service career, Petitioner was promoted asFlight Lieutenant on 16[th]December 2009 and thereafter as Sqn Ldr on 16[th]

December 2013.After completion of training at Air Force Academy,Hyderabad, the Petitioner has been subjected to several postings in thecountry.Earlier w.e.f. 15[th]July 2013 he was posted from 9 BRD, AirForce Pune to 14 Wing, Air Force Chabua. As per the posting order, thetenure was specified as three years subject to service exigency. He was thenposted back to 14 Wing, Air Force w.e.f. 7[th]January 2014 to perform dutiesas ASIO to meet overall organizational requirements consistent withoperational charter in meeting the objectives of service. Petitioner submittedthat he has been subjected to total of five postings during his first eightyears of service as an Officer and the same is violative of para 4 of AirHQHuman Resource Policy, 2006, reiterated in para 7 of Posting Policy 2015.

3. Petitioner further submitted that on 12[th]July 2017 he came to know thathe had been posted out to 13 BRD AF Palam vide posting order being no.PO/605. He argued that Respondent No. 5 (AVM Mohan Rao ,VM VSMAir Officer Commanding 1 ADCC HQ WAC IAF) was biased against himon account of Petitioner’s legal action before the Supreme Court, and he gotthe said posting order cancelled by wielding pressure on Respondent No. 4(DPO-l(Lgs) Air Head Quarters) and Respondent No. 6 (Gp Capt SandeepRawat. Lgs DPO-1 LGS [Then] C/0 Air HQ). In this regard, he also madereference to an application for Redressal of Grievances dated 5[th]February2015. Within 48 hours of issuing the posting order, Respondent No. 4 and 6rescinded the earlier order and issued another posting order being PO/651dated 14[th]July 2017 whereby Petitioner was posted from ED AF Chennai to35 Wing AF Suratgarh w.e.f. 14[th]August 2017. He submitted that under thesubsequent posting order, Respondent No. 7 (Gp Capt[ TS ] V Sharma

(20091)Lgs HQ SWAC (U)) has been posted to 13 BRD AF Palam in hisplace. He submitted that the name of proforma of Respondent No. 7 doesnot figure in the original transfer order dated 12[th]July 2017 and he has beenposted in place of the Petitioner within 48 hours and this indicates that thereis mala fide motive in the action of the Respondents. The posting order isin violation of para 191 of the Regulations for the Air Force, 1964 (the AirForce Regulations). He further submitted that his earlier posting was alsoshortened to period less than the specified tenure of three years.Thepremature posting was done due to mala fide and arbitrary acts ofRespondents No. 3 to 5.

4. The Respondents on the other hand, denied all the allegations of thePetitioner and have urged that Petitioner does not have any legal right tocontinue at particular place of posting. Respondents further submitted thatthe posting given to the Petitioner is based on his career profile and servicerequirements. There is no mala fide intention or bias in cancellation of thePetitioner’s posting from Chennai to Palam and his subsequent re-posting to35 Wg AF, is based on vacancies arising in chain postings at that point oftime.

5. We have heard learned counsels for the parties. The Respondents in theircounter affidavit have explained that Petitioner’s posting from 23 ED,Chennai to 13 BRD, Palam was cancelled on account of servicerequirements. Senior Air and Administrative Staff Officer (SAASO), HeadQuarter Maintenance Command (HQ MC) had requested Assistant Chief ofAir Staff (Personnel Officer) (ACAS PO) for posting of an officer with

adequate experience in the rank of Wing Commander/Group Captain TimeScale (TS). The request was deliberated upon and considered feasible andon this account the Petitioner’s posting was cancelled and suitable officer,Group Captain (TS) V Sharma was posted to 13 BRD, in place of thePetitioner.For this reason, he was posted to 35 WG based on vacanciesarising in chain postings at that particular point of time. The Petitioner’sposting at 23 ED (Chennai) is peace posting with normal tenure.Thepostings on the basis of his career profile shown as under:

6. The counsel for the Respondents, referring to above noted posting profile,submitted that the Officer so far, in his career of ten years has two limitedarea tenures i.e. (Laliya and Chabua) and two normal tenure metro citypostings i.e. (Chennai and Pune).It was further submitted that tenure ofposting at particular place would vary according to numerous factors such

as co-location request, compassionate ground posting, new raisings etc. andtherefore the cap of maximum tenure of three years at particular place maynot be feasible each time.Respondents have also pointed out they havegiven minimum tenure of two years at Chabua for stability and continuity.Further para 7 of the policy relied upon by the Petitioner specificallyprovides as under:

“7.Normal Tenure. It shall be the endeavour of the Dte of PO toprovide stability and continuity to the officers at place ofposting. However, due to overriding organisational factors listed inPara 6 above, the tenure of certain officers may have to beextended or truncated at particular station. Notwithstanding theaforesaid, it shall be endeavoured to grant tenure of at least twoyears in case of normal tenure. Also, during the first eight yearsof an officer's career, it would be endeavoured to restrict numberof postings to maximum of two postings, subject to serviceexigencies. Besides normal tenure, other classifications of tenurebased on area or nature of job are enumerated in succeedingparagraphs.”

7. As per Appendix to the said policy, 14 WG (Chabua) is limited tenurestation without choice posting and the ceiling of three years has beenstipulated for the posting out of Officers serving in 14 WG.The saidprovision under para 7 does not prohibit posting out of an Officer beforecompletion of three years, if it is necessary to do so on account of exigencyin service.

8. We further note that the Petitioner has earlier filed writ petition beforeGuwahati High Court seeking interim stay of the posting, the said WritAppeal 115/2015 in WP(C) 2542/2015 decided by the Division Bench ofGuwahati High Court vide order dated 14[th]July 2015 reads as under:

“8. We have considered the rival submissions and have foundreason to conclude that the order impugned in this appeal doesnot suffer from any infirmity. Being so, the present proceeding isfound devoid of merit and as such, same is dismissed. No cost.”

9. Though the Petitioner has alleged mala fide and bias against RespondentsNo. 3, 4, 5 and 6, however the facts of the case do not indicate any groundfor us to embark upon an inquiry on this aspect. The law on the aspect ofthe “mala fide” has been elucidated by the Supreme Court in number ofdecisions, the relevant portions of which are being reproduced hereunder:

State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402

"8. challenge to an order of transfer should normally beeschewed and should not be countenanced by the Courts orTribunals as though they are Appellate Authorities over suchorders, which could assess the niceties of the administrativeneeds and requirements of the situation concerned. This is for thereason that Courts or Tribunals cannot substitute their owndecisions in the matter of transfer for that of competentauthorities of the State and even allegations of mala fides whenmade must be such as to inspire confidence in the Court or arebased on concrete materials and ought not to be entertained onthe mere making of it or on consideration borne out ofconjectures or surmises and except for strong and convincingreasons, no interference could ordinarily be made with an orderof transfer."

Rajendra Roy v. Union of India and Anr. (1993) 1 SCC 148

"7. After considering the respective contentions of the parties, itappears to us that the appellant has not been able to substantiatethat the impugned order of transfer was passed mala fide againsthim for an oblique purpose and/or for wrecking vengeanceagainst him because the respondent No. 2 was anxious to get ridof him and he seized the opportunity of transferring him from

Delhi to Calcutta by transferring Shri Patra back to Orissa fromCalcutta. It is true that the order of transfer often causes lot ofdifficulties and dislocation in the family set up of the concernedemployees but on that score the order of transfer is not liable tobe struck down. Unless such order is passed mala fide or inviolation of the rules of service and guidelines for transferwithout any proper justification, the Court and the Tribunalshould not interfere with the order of transfer. In transferablepost an order of transfer is normal consequence and personaldifficulties are matters for consideration of the department. Weare in agreement with the Central Administrative Tribunal thatthe appellant has not been able to lay any firm foundation tosubstantiate the case of malice or mala fide against therespondents is passing the impugned order of transfer. It doesnot appear to us that the appellant has been moved out just to getrid of him and the impugned order of transfer was passed malafide by seizing an opportunity to transfer Shri Patra to Orissafrom Calcutta. It may not be always possible to establish malicein fact in straight cut manner. In an appropriate case, it ispossible to draw reasonable inference of mala fide action fromthe pleadings and antecedent facts and circumstances. But forsuch inference there must be firm foundation of facts pleaded andestablished. Such inference cannot be drawn on the basis ofinsinuation and vague suggestions. In this case, we are unable todraw any inference of mala fide action in transferring theappellant from the facts pleaded before the Tribunal."

Bareilly Electricity Supply CO. Ltd v. Sirajuddin and Anr.(1960) 1 LLJ 556

"The failure of the Appellant to give specific reason for theretransfer of the Respondent appears to be the sole basis onwhich the conclusion of mala fides is founded.It is hardlynecessary to emphasise that the findings of mala fides can bemade by Industrial Tribunals only after sufficient reliableevidence is led in support of it.Such finding should not bemade lightheartedly or in casual manner as has been done bythe Tribunal in the present case."

10. Simply because the Petitioner has alleged mala fides, does not mean thatthe action of the Respondent is indeed so. It is observed from the aforenotedjudgments that there has to be cogent material brought on record to showthat the posting was indeed tainted with malice. Merely the fact that thePetitioner’s posting was cancelled within 48 hours of the original orderbeing passed, cannot singularly be the ground to attribute malice. TheRespondents have explained the circumstances for cancelling the earlierposting order. We cannot substitute the decision of the Respondents with ourviews.

11. In absence of any vested right in favour of the Petitioner, we find noground for interference in the posting order of the Respondents andaccordingly writ petition is dismissed with no order as to costs.

12. The pending applications are also disposed of.

SANJEEV NARULA, J

S.MURALIDHAR, J

JANUARY 18, 2019nk