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Judgment
O R D E R
Delivered by Hon’ble Mr. Mohan Pyare, Member-(Administrative)
Shri S.K. Singh Vashisth, learned counsel for the applicant and Shri Rajini Kant Rai, learned counsel for respondents are present.
By way of this original application the applicant has sought the following reliefs:-
(i)“Issue an order or direction to respondents no.3 to quash the impugned order dated 10.03.2022, passed by respondent no.3.
(ii)Issue an order or direction to the Respondents to give him written and specific demand of required documents to process the transfer case of applicant.
(iii)Issue an order or direction which this Tribunal may deem fit and proper in the interest of justice.
(iv)Award the cost in favour of the applicant.”
The brief facts of the case are that the applicant is working as Vehicle Mechanic from 10.04.2017 under the command of respondents and was diagnosed with Thalassaemia during September, 2021. He was advised by the doctors not to live alone and consequently represented to respondents to transfer him to West Bengal on compassionate grounds so that he may live with his family. The mother of the applicant is also suffering from “Degenerative Disc Disease of Spine with L-4 and L-5”. When no action was taken on the representation of the applicant he has filed OA No.25/2022 which was decided on 10.01.2022 with a direction to the respondents to take decision on the representation of the applicant. After considering the representation the respondents have rejected the transfer request of the applicant.
Heard the rival submissions of the learned counsel for the parties.
Learned counsel for the applicant has submitted that applicant was diagnosed with Thalassaemia by Apollo Hospital and was suggested not to live alone. His mother is also a patient of “Degenerative Disc Disease of Spine with L-4 and L-5”. For the above reasons the applicant is entitled to be transferred to West Bengal on compassionate grounds.
Per contra the respondents have submitted through their counter reply that as per the policy on subject, issued vide Army Order (AO) 12/2020/MP-4 effective from 1st October 2020 with respect to compassionate posting on medical grounds, in case transfer is sought on medical grounds, the application must be accompanied by a medical certificate from CMO of a Government Hospital (not initiated more than 3 months earlier indicating the nature of the severe illness and giving full justification for positing of individual to the station of his/her choice in case of Non Availability of such specialized treatment for the severe illness in the present station and its availability in the station of choice and directed the individual to submit the same for processing the relevant case. The applicant has produced medical recommendation of CMO Prayagraj in letter No.24501/7136/7138/Posting/SVRG dated 23.9.2021 having no mention of comments/confirmation about the Non Availability of Medical Treatment in the present station and availability of treatment at the station of choice. The application of applicant could not be considered as specific report of absence of non-availability of specialized medical treatment in the present station. The applicant was asked to produce non-availability certificate for the treatment of referred disease by CMO Allahabad which was not submitted by the applicant. The respondents have passed reasoned and speaking order dated 10.03.2022 and 31.03.2022 and submitted that there is no merit in the original application of the applicant, hence should be dismissed.
In his rejoinder affidavit the applicant has almost reiterated the same facts narrated in the original application and added that the documents of the applicant were kept in illegal possession of the clerk of the office to harass the applicant. The applicant has also annexed office memorandum dated 30.09.2009 and placed reliance on para 4 (iv) which is reproduced below:-
“(iv)Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:-The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists.”
He has also submitted the gazette of Government of India dated 05.01.2018 according to which patient of Thalassaemia is declared as handicapped as per section 56 (2016 ka 49) of Act 2016.
In their supplementary counter reply the respondents have submitted that the Directorate General of EME (EME Civ) Master General of Ordnance Branch Integrated Headquarters of MoD (Army), Delhi issued a Circular dated 14th October 2020 which was effective from 1st October 2020. According to para 3 (c) of the above circular Priority for Postings will be given to applicant to a physically handicapped person where nobody is there to look after him at that station. Para 4 of that OM deals with Transfer on Compassionate Grounds and Mutual Basis which is reproduced below:-
“Transfer on Compassionate Grounds and Mutual Basis, Applications for Compassionate/mutual postings will be forwarded to Army HQ/AG MP-4 (Clv) (b) in accordance with the Instructions at Appendix 'E' to ibid AO. Individuals posted on compassionate grounds are not entitled for TA for their moves and shall consequently travel at their own expense. Individual posted on mutual basis are also not entitled for TA for the moves and shall consequently travel at their own expense. The Journey period in connection with these postings will be covered by grant of earned leave/half pay leave, if due, or extra-ordinary leave, if there is no such leave due to their credit (Para 23 of ibid AO refers).”
According to para 2 of the above OM, the transfer on domestic grounds will be governed by the facts which is reproduced below:-
“In cases where transfer is sought on domestic grounds, facts of the case will be verified in consultation with the local unit authorities. If, however, the Officer Commanding of unit/establishment is satisfied about genuineness of the grounds submitted by the individual, verification from civil authorities may be dispensed with. In case transfer is sought on medical grounds, the applications must be accompanied by a medical certificate from the prescribed medical authority indicating the nature of illness and justification for transfer of the individual to the station of his/her choice.”
On the above consideration the applicant has no merit in this original application hence the same should be dismissed.
Considered the rival submission and verified the documents cited in the original application. Undoubtedly, the applicant is suffering from the desease Thalassaemia and his mother is suffering from “Degenerative Disc Disease of Spine with L-4 and L-5”. The applicant is claiming compassionate transfer on the basis of his desease as well as desease of his mother. This is not the case of the applicant whether treatment of the specified desease is available in the present station or not or treatment of the desease is available or not available in the place where he seeks transfer. OM dated 30.09.2009 also provides posting of husband and wife at the same station or nearby station. The OM referred by the respondents department also provides priority of posting in case of physically handicapped persons where nobody else is available to look after him. Section 56 of 2016 of Act 49 also suggests that Thelecemia should be treated as handicappedness. The only contention of the respondents is that if treatment for the referred deseased is not available in the present place of posting and is available at the desired place of posting that only should be taken into consideration to consider the compassionate transfer.
In the light of the above discussions, definitely balance of convenience tilts in favour of applicant and on the basis of the above consideration, applicant has merit in this original application. The original application is allowed. The impugned order dated 10.03.2022 is quashed and set aside. The respondents are directed to consider the applicant to transfer him to anyone of the three places as requested by the applicant with relevant conditions applicable for compassionate transfer within a period of three months from the date of receipt of certified copy of this order. No Costs. All pending MAs stands disposed of.