IC-3423K Lt. Col. Swain Shashanka Shekhar vs Union of India and others

M.S. Liberhan, C.J.—The appellant (hereinafter referred as the petitioner) who is a Lieutenant Colonel serving the Indian Army impugned the order of transfer transferring him from Secunderabad to Jaisalmer in Rajasthan inter alia contending:

(i) that the transfer is the mala fide action of one Colonel R.K. Gupta, Deputy Commandant, ADC Centre, Secunderabad;

(ii) that he has already served in the active area of insurgency for three years, consequently he cannot be transferred again to an active area of Jaisalmer; and

(iii) that he is medically unfit to be posted at Jaisatmer.

Learned single Judge, after appraising of the contentions raised, came to the conclusion that since the respondent No.4 is not the transferring authority, consequently; neither the question of mala fide arises as against him nor the same can be gone into in the writ petition in the facts and circumstances of the case, especially, in view of the appellant''s transfer earlier, in April, 1998 and repatriation back to Secunderabad on account of his health conditions. It is only in November, 1998 when the clouds of insurgency loomed high over the nation that he was again transferred to Jaisalmer sector in order to discharge his duties only at the formation headquarter and not in the forward areas. It was further observed by the learned single Judge that the petitioner is "Chronic Epididymo Orchitis with funiculitis (RT)," which falls within code ''7'' which provides that a person falling in that category is not fit for military duties involving active hostilities. The learned single Judge, after perusing the original record produced before the Court, found that the petitioner is squarely covered by Code ''D'' and Code ''7'' and Code ''8'' which provide for Terrain wise and Job wise restrictions respectively. The learned Judge found as a fact that since the respondent treated the Rajasthan area as a plain area, the petitioner has been posted there to discharge duties at a formation Headquarters which is an office job and this was done while keeping in view the medical restrictions especially in view of the fact that Jodhpur has got proper medical facilities in the military hospital and thus the petitioner is not likely to sutler any prejudice by the transfer which was effected especially in view of the certificate issued by the Medical Board showing that he is fully fit to work in plains. The learned Judge also observed that earlier his transfer may not be because of the place to which he was transferred but because of the nature of the job he was entrusted previously. The learned single Judge declined to interfere in the matter since the petitioner was posted at a place where he has to do only an office job.

The learned Counsel for the appellant submits that since the appellant is medically unfit, it is for the Medical Board to decide as to where he should be posted. He further states that the petitioner was sent to the Medical Board during the pendency of the writ petition on the request of the petitioner himself. This fact was not brought to the notice of the learned single Judge, consequently, he is not liable to be transferred and the impugned judgment is liable to be set aside.

We have heard the learned Counsel for the appellant at length as well as gone through the record referred to by him. During the course of arguments, our attention has been drawn to the Army Instructions, especially, Instruction No. 15 which reads thus:

"Recommendations for change of station on account of ill health

Only medical boards are permitted to recommend a change of station for a public servant on the grounds that the station in which he is serving does not suit his constitution and also to recommend that a public servant should not proceed to a station to which he is ordered, because the change of stations may not suit his constitution. Medical officers and specialists, however, will give appropriate recommendations for change of station for health reasons in respect of all service personnel and their families when called upon to do so by appropriate authorities including OC unit of the individual and OC hospital concerned."

Learned Counsel for the appellant further referred to the instruction for medical classification/reclassification/examination of the serving officers, specifically to the employability restriction No.(vi). According to the instruction, consequent to an officer being placed in low medical classification (LMC) certain employability restrictions required to be imposed upon him. The aim of the restriction is to ensure an earlier recovery/prevention/deterioration/ aggravation. The said instruction has been issued keeping in view the issuance of nonspecific generalised employability restrictions certificate by the medical boards creating the man-management difficulty. It provided that the medical board should recommend restrictions terrain wise and Job wise which should be categorically spelt out by the medical board authorities in their recommendations. Nothing has been pointed out to us that any restriction lias been placed by the medical board with respect to the appointment or transfer of the appellant to a plain area of Jodhpur especially for discharging the desk or official job in a formation headquarters and not in the field area facing the actual war. It has been brought to our notice that after the orders of the learned single Judge on 23-7-1999 declining to interfere in the transfer of the appellant, an order has been passed with reference to the letter of the Army Headquarters dated 2nd July, 1999 holding belated recategorisation medical board requiring the appellant to report on 4-8-1999 with various documents. Nothing has been placed on record with respect to the result of the appellant''s examination by the medical board on 4-8-1999. We have no doubt that the Army authorities in discharge of their official duty, keeping in view the discipline of the Army, need and exigency of the services and the need of the nation would pass appropriate orders. We are of the considered opinion that although the instruction required an employee of a disciplined forces to post him in a plain area but he was posted in an insurgent area, still, that ground would not confer a right on the employee of the disciplined forces to enforce the same through Courts of law. Courts would be very slow in interfering with the transfer orders passed by the authorities of the disciplined forces like Army. Even a little violation of the rules/regulations or instruction does not confer right of interference in the matter of transfers of employees even in civil services matchless in a disciplined forces especially in the absence of any acts of mala fide.

For the reasons recorded above, we find no ground to interfere with the impugned order passed by the learned single Judge declining to interfere in the transfer order passed by the respondents. If any problem is brought to the notice of the higher authorities, it is for the higher authority to take appropriate steps keeping in view the exigency of the office. The opinion of the Courts cannot be substituted for the opinion of the authorities especially in the service matters of disciplined forces. The writ appeal is, therefore, dismissed. There shall be no order as to costs.