Naresh Kumar v. Union of India

1. The petitioner has preferred the present petition to assail the posting order dated 29.04.2019 whereby he has been posted to 121 Battalion at Kathua. He also assails the order dated 17.05.2019 whereby his request for continuing at GC GGM, due to medical condition of his daughter and himself, has been rejected. The petitioner who is serving as Constable/GD in the respondent-CRPF has been posted in the aforesaid location in Kathua. He claims that he has a daughter of about 11 years of age who is suffering 2019:DHC:3657-DB from 100% disability, since she is suffering from cerebral palsy. He also claims that he himself is suffering from a back problem and his wife too is suffering from some other ailment. He has three children in all, including the disabled child. The petitioner has sought to place reliance on the office memorandum dated 06.06.2014 issued by the DOP&T on the subject of posting government employees who have differently abled dependents. Cerebral Palsy is one of the medical conditions which is defined as a disability in the said office memorandum. He also places reliance on the decision of a Division Bench of this Court in W.P. (C) 2899/2010, A.K. Verma Vs. UOI & Ors., decided on 4.06.2010 and the decision in Mukesh Kumar Vs. UOI & Ors., W.P. (C) 1133/2016, decided on 27.07.2016.

2. Counsel for the petitioner has also sought to place reliance on the Standing Order No.07/2015 on the subject of Transfer of Non-Gazetted (Executive/Technical/Tradesmen) Force Personnel Including Mahila Personnel. Lastly, he submits that there are many more postings available in and around Delhi, than the number of personnel seeking postings on such like grounds.

3. On the other hand, the submission of the learned counsel for the respondents is that the respondents have shown utmost compassion to the petitioner in the matter of his postings. He was posted between 19.07.2009 to 30.10.2014 at 122 Bn. Delhi i.e. for a period of nearly five years and 11 months. Between 30.10.2014 and 25.11.2015 the petitioner was posted at 121 Bn. in Kathua in Jammu and Kashmir, whereafter he was again posted to GC GGM Delhi from 25.11.2015 onwards, and he continues in the said posting till date.

4. Counsel for the respondents submits that out of the normal tenure of 8 years of hard postings that an officer of the petitioner’s rank would normally undertake, the petitioner’s hard postings have been for about three years till now. He further submits that the petitioner cannot continue to remain posted on a soft posting for all times during the length of his service, since there are others who need to be rotated and given soft posting after their hard postings.

5. Counsel for the respondents has submitted that keeping in view the condition of the petitioner’s child, in case he wishes to take her along to his posting at Kathua, he would be permitted out-living permission. He further submits that medical facilities are available in Kathua, since a Government District Hospital is located there.

6. We have considered the rival submissions of the counsels. It goes without saying that it is a matter of misfortune for the petitioner, his wife, his entire family that his child is suffering from 100% disability, and it is only natural that one feels compassion and sympathy for the petitioner and his entire family. There is no gainsaying that the society at large has to show sensitivity to the needs of children who are suffering from such type of disabilities. It is in keeping with this that the Government has framed the Office Memorandum dated 06.06.2014. At the same time, one cannot lose sight of the difficulties that an organization like the respondent-CRPF faces, in the matter of transfers and postings of its personnel.

7. The force is engaged in several security operations in different locations of the country. The personnel of the force, therefore, necessarily have to be rotated so as to grant them relief from fatigue after they have served in hostile conditions during their postings in difficult and hostile environments. Officers, who have dependent family members-who are suffering from such like disabilities, no doubt, would require special consideration. But that cannot mean that such like officers will remain only in peace areas/soft postings, and in metro cities, throughout their career.

8. The entire family of the disabled dependent would have to pitch in to look after him/her, so that the officer concerned can also discharge his duties and obligations to the force and the Nation. Just as it is the responsibility of the force personnel to look after his/her family, it is equally his/her responsibility to serve the force, shoulder to shoulder, with those who are in the battlefield or other hostile areas, facing insurgency. Balanced approach would be needed in such situations, lest the moral of the other members of the force, who are posted in tough areas, are dampened due to a section of the force continuously remaining in peace postings for one or the other reason.

9. No doubt, there may be a larger number of posts available in and around Delhi, than the number of applicants who seek postings on account of serious disability of their dependants. But that does not mean that the respondents must, at any time and for all times to come, accommodate only such members of the force. That would be the most unreasonable and impractical thing to suspect. If this submission is accepted, one day all posts in and around Delhi would be occupied –permanently, only by such like applicants, and all others-who constitute the majority of the force would be deprived of such postings for all times to come.

10. In our view, every case of this nature would, therefore, have to be examined on its own facts and there cannot be a generalized rule with regard to posting of officers whose dependent child, spouse or parents, may need personal care and attention. The petitioner’s daughter is about 11 years of age. He has two other children and a wife. The wife of the petitioner is a home-maker. Being the girl child, primarily it would be the mother to look after the child. The petitioner has placed on record the medical documents in relation to his daughter. The latest report placed on record is of Artemis Hospital, Gurugram, which shows the date of visit as 16.04.2019. The same records that it is a case of follow up of cerebral palsy and that no seizure has taken place since November 2018. In relation to the past medical history, the report notes “not significant”. The follow up was recommended on 14.06.2019 i.e. after a period of two months. It also observed: “Activity: Normal Bathing: Normal Diet: Normal”

11. Fortunately, despite the fact that the child is suffering from 100% disability, it appears that she is stable. No doubt, her EEG reports show abnormality, but that is only to be expected considering her medical condition.

12. The petitioner has the option to either leave his family with his daughter at Gurugram-where they are presently situated, or to take them along with him to Kathua. The respondents have already made a statement that out-living permission would be granted to him. It is also stated by the counsel for the respondents that a Government District Hospital is available at Kathua and the distance between Kathua and Jammu is stated to be 110 kilometers.

13. Reliance placed on the decision in A.K. Verma (supra), in our view, is not apposite in the facts of the present case. That was a case of a 19 years old son of the force personnel. The Court accepted the statement of the petitioner that he was the primary caretaker, which is not the case in hand.

14. Clause 5 of the Standing Order deals with “Principles for Transfer”. Clause 5(xiii) states that “Parents of specially abled children may be considered for static posting or Bns in peace areas to facilitate specialized treatment to such children. After completion of tenure they can be posted to nearby units.”

15. A policy guideline, as per the settled legal position, would be subject to exigency of service. In a case where exigency of service is pitted against the interest of the minor child, a pragmatic view has to be taken. The aforesaid clause in the Standing Order, therefore, has to be read and understood in its proper context. The said clause does not mean that in every case, where parents have specially abled children, continued and permanent static posting in peace areas has necessarily to be provided. Even earlier, the petitioner, after serving at Delhi for over 5 years, and after serving in Kathua for 13 months, was brought back to his present posting in Gurugram. In the instant case, the respondents have made a statement that they would grant out–living permission to the petitioner, so that he can stay with his wife and children and look after his differently abled child. It is not that the posting of the petitioner at Kathua is permanent, and for all times to come. The respondents have earlier shown compassion to the petitioner in the matter of his posting and transfer. We expect that the respondents would consider the circumstances of the petitioner taken note of hereinabove, while effecting future postings.