Delhi HC Dismisses Plea For Posting Of Airman On Co-Location Grounds

The Delhi High Court, on July 26, held that petitioner could not be permitted to raise the claim of posting to Delhi on the ground to live with his wife.

Bench of Justices Suresh Kumar Kait and Saurabh Banerjee heard a writ petition filed by an officer of the Air Force, who was denied the request of transfer on co-location ground to live with his wife and observed that, “an order of transfer or posting is an incident of Government and a Government servant has no vested right to claim his choice of posting.”

Facts

Petitioner got married on 09.10.2019. Petitioner was posted at Shillong, while his wife was posted at New Delhi as TGT, Science at Kendriya Vidayalya Snghthan, BSF Camp Chawla, New Delhi and, therefore, they were not able to lead conjugal life ever since their marriage.     Since their marriage, petitioner’s wife is residing at her parents’ house. Petitioner averred that owing to the conditions of his service, he was unable to take frequent leaves and was, therefore, able to meet his wife only once in 5-6 months. Further, due to family exigencies, petitioner’s wife was unable to relocate herself from Delhi or resign from the job.       

The petitioner made application dated 13.01.2020 to the respondents for posting in Delhi on co-location grounds after due recommendation from the Commanding Officer of his Unit, which was turned down by the respondents vide communication/ reply dated 24.04.2020. Thereafter, petitioner claims to have made another application date 06.07.2020 on the same grounds and prayed respondents to post him to Delhi-NCR, which again was rejected. The petitioner’s wife also approached Air Force Wives Welfare Association but to no avail.

The Petitioner also claimed that due to denial of transfer, he suffered immensely in his personal life and his wife’s parents were pressurising her to file for divorce. 

The reason given by authorities for denial of his request was that he had no children.

Contentions

Advocate Ajit Kumar Kakkar represented the petitioner and submitted that petitioner's plea for co-location posting is based on undoubted material hardship but has not been considered by the respondents and vitiated by personal nepotism, which has led to victimization of petitioner.

Advocate Neeraj appeared for the Union of India and submitted that it may not always be feasible to post an airman to a particular place of request due to one or more reasons.

It was further submitted that in terms of Para-29 of HRP 01/2020 (revised) vide AIR HQ/S 40301/ PA-II dated 07.07.2020, husband and wife can be posted at the same station to enable them to lead a normal life and to look after their children, especially until the children are ten years of age depending upon the trade proficiency utilization, however, petitioner does not have any child and thus, his case is not covered under the said policy.

It was submitted that the petitioner’s applications dated 13.01.2020 and 29.04.2020 seeking posting in New Delhi on co-location grounds, were considered and not found feasible due to HRP constraints, as the couple does not have a child.

Thereafter, another application dated 13.08.2021 of petitioner’s wife was disposed of by the respondents vide order dated 02.12.2021 for the reasons of operational requirements and HRP constraints. Another request of petitioner dated 20.09.2021 has also been turned down on similar grounds.

Decision

The Court noted the observations of the competent authority while rejecting the requests of the petitioner. The competent authority noted, “that his case for posting in Delhi on colocation grounds was examined and not found reasonable feasible due to HRP constraints”

The Court, then, relied upon the Air Headquarter Human Resource Policy (HRP) (revised), which governed the posting of airmen.

The relevant portion of the HRP in its para 29: “husband and wife should be posted at the same Station to enable them to lead a normal family life and look after welfare of their children, especially until the children are ten years of age depending on PU.”

The Court cited Supreme Court judgment in Bank of India Vs. Jagjit Singh Mehta, (1992) 1 SCC 306 wherein it was held that, “No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible.”

The Court observed the Supreme Court observations that, “transfer order can only be interfered with if it runs contrary to any statutory provision (not policy guidelines), issued by an incompetent authority, changes the service condition of an employee to his detriment or proved to be mala fide,” and dismissed the writ petition.