Court No. - 5
Case :- WRIT - A No. - 14054 of 2021 Petitioner :- Hav Sanjay Rawat Je (Civ) Respondent :- Union Of India Through Its Secretary, Ministry Of Defence And 4 Others Counsel for Petitioner :- Rahul Pandey,Rang Nath Pandey Counsel for Respondent :- A.S.G.I.
Hon'ble Saral Srivastava,J.
Sri S.P. Singh, Senior Counsel assisted by Sri Anurag Sharma, learned counsel for respondents states that he does not want to file counter affidavit. Hence, with the consent of learned counsel for the parties, the writ petition is being decided without any counter affidavit.
Heard learned counsel for the petitioner and Sri S.P. Singh, Senior Counsel assisted by Sri Anurag Sharma, learned counsel for respondents.
The petitioner is Hawaldar in the office of respondent no.5-Garrison Engineer (East) Bareilly, Shahjahanpur Road, Bareilly Cantt. He has been transferred by order dated 10.02.2021 from GE (EAST) to 120 ENGR REGT.
Feeling aggrieved by the transfer order, the petitioner submitted representation which was rejected by the competent authority by order dated 30.03.2021 on the ground that as per existing policy, no representation will be entertained after issuance of posting order.
Learned counsel for the petitioner has contended that Para 1302 of Posting Policy deals with Posting Policy of Bengal Engineers Group Personnel which provides that the employee who is due to retire within two and half years can submit his representation for posting at the district of his choice. He submits that the petitioner submitted representation on 24.02.2021 raising his grievances against the transfer order which was rejected only on the ground that same had been submitted after issuance of posting order. He submits that the respondent authority while transferring the individual should adhere to the policy of posting and, therefore, the order dated 30.03.2021 is not sustainable.
Learned counsel for the respondents contends that the posting under the policy is not a matter of right but is based upon certain contingencies as enumerated in Para 1302 of the Policy. He submits that the transfer is an exigency of service and the petitioner cannot claim as a right to be posted at the place of his choice.
Be that as it may, the last tenure of posting is regulated by Para 1302 of the Policy which is extracted herein below:-
"Last Tenure of Posting 1302. Individuals due to retire on superannuation/completion of service limit/terms of engagement may be considered for posting to a station of their choice subject to availability of vacancies of non-executive appointments. Applications will be submitted to Record Office through proper channel alongwith recommendations of Additional Chief Engineer, Headquarters Chief Engineer Command concerned, six months in advance. This concession will not be claimed as a right. Request for such posting will be considered if administratively feasible, subject to availability of vacancies. Chief Engineer/Commanding Officer should however, ensure that the individual is actually due to retire within the next two to two and half years. Those who have had tenure earlier nearer to home, their cases will be considered depending upon merit of the case subject to availability of vacancy. Posting on CG/LLP will normally be given to non-executive units. As such personnel seeking such posting will be at liberty to choose stations where non-executive appointments are available. Giving choice stations where only executive appointments are available will serve no fruitful purpose."
The petitioner submitted the representation after posting order which was rejected by order dated 30.03.2021 on the ground that no representation will be entertained after issuance of posting order.
In the opinion of the Court, the order rejecting the representation of the petitioner dated 30.03.2021 is not sustainable for the reason that the question of submitting the representation under the Policy to regulate would arise only if the petitioner had been asked to give option for posting whereas the impugned order dated 30.03.2021 is silent and does not speak that any option was invited from the petitioner by the respondents before transferring the petitioner.
It is only after the petitioner has been transferred, the petitioner could submit his representation, as he had no intimation about his transfer, therefore, the reasons assigned in the order is not sustainable.
Considering the fact that Para 1302 of Policy regulates the last tenure of posting, therefore, in the opinion of the Court, the authority ought to have considered the representation of the petitioner in the light of Para 1302 of Policy which deals with the last tenure of policy. The representation of the petitioner was not considered in the light of Para 1302 of the Policy and, therefore, in the opinion of the Court, the order dated 30.03.2021 is not sustainable and is set aside.
However, considering the facts and circumstances of the case, this Court finds appropriate to relegate the petitioner to the respondent no.3 against the transfer order, who can very well look into the grievance of the petitioner against the transfer. Accordingly, the writ petition is disposed of with liberty to the petitioner to submit a representation before the respondent no.3 within two weeks from today. In case any such representation is filed by the petitioner, the same shall be considered and decided by the respondent no.3 within a period of two months thereafter.
If the petitioner is not relieved, the transfer order dated 10.02.2021 shall remain in abeyance for a period of three months or till the disposal of the representation whichever is earlier.
With the observations made above, the writ petition is disposed of.
Order Date :- 25.10.2021 SS