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HIGH COURT OF DELHI
JUDGMENT
HAV. MANISH SINGH ..... Petitioner
For the Petitioners: Ms. Soumava Karmakar and Mr. Arjun Pandey, Advocates
For the Respondent: Ms. Rajesh Gogna, CGSC with Ms. Priya Singh, Advocate with Mr. Partho Katyayan and Lt. Capt. Abhishek
HON’BLE MR. JUSTICE MANOJ JAIN
1. Petitioner had earlier approached this Court by filing a writ petition being W.P. (C) No. 11095/2017 seeking posting to a place where medical facilities for treatment of his dependants are available. By order dated 25.04.2018, this Court directed that petitioner be attached to a Unit in Delhi for a period of 2-3 months.
2. Petitioner was accordingly attached to a Unit in Delhi. Thereafter in 2019, petitioner was sought to be posted to a field regiment in Baramulla. Petitioner impugned the said order by filing the present petition.
3. By an interim order dated 03.04.2019, respondents were directed to maintain status quo with regard to the posting of the petitioner.
4. The contention of the learned counsel for the petitioner is that son of the petitioner is suffering from spastic diplegia. Learned counsel submits that treatment for the son of the petitioner is not available at all Units.
5. Learned counsel for the petitioner relies on the posting policy dated 09.04.2012 to contend that petitioner should be required to be given three choices of stations as per availability of medical facilities and accordingly posted to only one of the three places as per his choice.
6. Learned counsel appearing for the respondents disputes the same. He however concedes that the son of the petitioner has the specified medical ailment and is presently under treatment.
7. Learned counsel further submits that posting policy is subservient to the interest of the Force and the petitioner is sought to be posted at a place where there are appropriate medical facilities available to meet the specialist treatment required by his son. He further submits that there are several other Junior Commissioned Officer with family members having medical issues and who are waiting for their postings at Delhi. He submits that petitioner by way of the interim order has already spent nearly 5 years in Delhi.
8. On 06.07.2023, contentions of learned counsel for the petitioner was noted that the treatment for the child of the petitioner as well as education is only available in Delhi. This was disputed by learned counsel for the respondents who had sought time to place on record other Units where both medical and educational facilities would be available.
9. On 07.07.2023, respondents had stated that they intended to post the petitioner at a place where adequate medical and educational facilities were available. Subsequently, an affidavit has been filed wherein it is stated that the respondents have decided to post petitioner to Kolkata where requisite medical facilities are available at the Command Hospital (Eastern Command Kolkata) and also education facility is available for the son of the petitioner.
10. Learned counsel for the petitioner had stated that in terms of the policy, petitioner would like to be posted in Lucknow, Chandi Mandir or Pune.
11. Learned counsel for the respondents on 25.07.2023 had stated that the competent authority had considered the case of the petitioner and found that it was not feasible to post petitioner to either Lucknow, Chandi Mandir or Pune. It is stated that petitioner belongs to Clerk Trade in the Artillery Regiment and only 3% officers are serving as Clerk in the Artillery Regiment and accordingly there is shortage of manpower at the Units. It was further stated that all facilities for treatment and education are available at Kolkata.
12. On 25.07.2023, learned counsel for the petitioner prayed for time to ascertain as to whether the medical and educational facilities required by the petitioner and his family are available at Kolkata or not. The matter was listed for today for arguments.
13. Though, learned counsel for the petitioner has vehemently argued, he has not pointed out any deficiencies or unavailability of medical or educational facilities in Kolkata where petitioner is sought to be now posted.
14. Learned counsel for the petitioner contends that respondents should follow the policy of posting.
15. It is settled position that posting is an incidence of service. Petitioner was sought to be posted in the year 2018. However, he approached this Court and got posted to Delhi. Thereafter petitioner has continued in Delhi since 09.08.2018 i.e. for nearly 5 years.
16. The posting policy relied on by the petitioner itself notices that the Indian Army has a large number of JCOs/other rank officers who have spastic/paraplegia/differently abled children and are required to be posted to a station with appropriate medical facilities for an extended duration to meet the specialist treatment for their children. It further records that availability of ASHA Schools specialized medical treatment facilities will be taken into account while considering the posting of affected persons. Policy specifically provides that the initial period/tenure of posting would be for 3 years extendable by one/two years based on the recommendations of appropriate specialist.
17. The policy further stipulates that there would be no restriction on the number of extensions and case for further extension would be forwarded to the concerned Line, Directorate for approval by Head of Army Service. However, in such cases, the individual would first furnish an ‘Adverse Career Certificate’.
18. We are informed that in the case of petitioner, petitioner did furnish an ‘Adverse Career Certificate’. However, despite furnishing the certificate, Respondents did not hold the same against him and he was granted a promotion to the rank of Naib Subedar.
19. Petitioner has already spent 5 years in Delhi. Respondents have ensured that petitioner is now posted to a Unit where adequate medical and educational facilities are available for the child of the petitioner and also his father who is stated to be undergoing a treatment for cancer.
20. No individual in the Armed Forces can have a posting of his or her choice. The competent authority has to take into account several factors while determining the posting of officers. He has to cater to the needs of the service as also and balance the same vis-à-vis the need of the individuals.
21. The needs and necessities of an individual would always be subservient to the needs of the Army.
22. In the present case, indulgence has been shown to the petitioner by the respondents by first posting him to Delhi and then permitting him to stay in Delhi for 5 years. Respondents are now seeking to post the petitioner to Kolkatta, where adequate medical and educational facilities are available as stipulated in the policy.
23. As per the respondents, there are several other junior commissioned officers and other rank officers who are waiting similar compassionate posting so that they can take care of the needs of their children and family members.
24. In view of the above, we find no further ground to extend the period of stay of the petitioner in Delhi. We are of the view that, in the facts and circumstances of the case, respondents have duly complied with the directions of the posting policy.
25. In view of the above, we find no merits in the petition. The petition is consequently dismissed.
26. Keeping in view the facts and circumstances, we grant 45 days’ time to the petitioner to join the place of posting. Petition is disposed of in the above terms.
27. Learned counsel for the petitioner informs that there appears to be a gap in Petitioner’s attachment orders. Learned counsel for the respondents submits that competent authority shall examine the same and in case there is any gap, appropriate remedial steps would be taken so that petitioner is not prejudiced, in any manner.
28. Order dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J MANOJ JAIN, J AUGUST 7, 2023/‘rs’