S. Sajan vs Union Of India And Others

The applicant, Gp. Capt. S. Sajan, through the medium of the instant Original Application is seeking the following reliefs:

(i) To declare the action of the respondents as unjust, arbitrary and illegal; and

(ii) To quash and set aside the impugned letters dated 19.02.2018 and 24.04.2019.

(iii) To direct the repondents to accept the P55 of applicant and to release him from service with the entitled benefits; and

(iv) To pass such other and further orders which their lordships may deem fit and proper in the existing facts and circumstances of the case.

The facts of the case, in brief, are that the applicant as an officer of the Indian Air Force (IAF) had been posted to Embassy of India in Egypt as

Defence Attache. Though his expected period of posting was for three years however he had to spend about lour years due to non f[nalization of his

replacement by respondents. Due to the requirement of looking after his special child with rrenta disabilities he requested from Egypt, for a posting to

Pune in April 2017. However, the respondents due to service exigencies could not provide him with posting of his choice and alter completion of his

tenure at Egypt posted him back to India and to Jodhpur in December 2017.

Learned counsel for the applicant has pleaded that the applicant is an outstanding officer and has been doing well in his career. However, his

special child, who is his younger son aged about 17 years is suffering from mental disorder and requires Special School for special child. In addition,

his son has recently developed a new disease in the form of epilepsy which is making it more challenging for the applicant to take care of his son.

Besides 80 years old father of the applicant who is a widower and stays with his family has recentiy been diagnosed with cancer and needs to be

looked after. In these circumstances, the applicant's wife is not able to manage his teenaged special child as well as required, without his presence at

home and therefore he had requested for his posting to Pune. He has further pleaded that the applicant has applied for PSS as a permanent solution to

all his problems because it will not be possible for the organization to keep him permanently posted at Pune. He mentioned that as per HR Policy of

the respondents, any officer who has completed 24 years of service can apply for PSS and thus the applicant is eligible to apply for PSS. He further

pleaded that he was posted as a Defence Attache to Egypt for three years which was supposed to be over by 2016, however, due to organisational

requirements he was kept there for the fourth year also despite his applicabon for posting to Rune. Additionally as per the Policy quoted by the

respondents of 2011 as well as 2012 for meeting the requirement of three years retention in IAF, after a foreign posting, an undertaking is required to

be taken from the concerned officer beforc proceeding on posting to a foreign country. The same undertaking was not given by the applicant,

therefore he can't be considered as bound by this policy. He pleaded that there are adequae Government policies directing a sympathetic treatment

towards personnel vv[th speciaL child. He stated that in the existing HR Policy of the Indian Air Force also, the Chief of Air Staff has the power to

consider the case of the applicant sympathetically and grant him PSS. He pleaded for setting aside of the orders dated 19.02.2018 and 21.04.2019

rejecting his PSS and for directing the respondents to grant inirn PSS on extreme genuine and compassionate grounds.

On the other hand the Learned Counsel for the respondents pleaded that the appkant has been denied PSS on the ground that he has not completed

three years Post Abroad Posting Utilization period, as per HRP 04/2011 and HRP 08/2012. He al50 mentioned that the applicant has already done two

assignments abroad i.e. one to Bangladesh and 2'7' to Egypt. After h[s assignment to Bangladesh based on his request, a posting was given to him for

Pune however, alter Egypt posting, the same was not possible due to service related requirements. He claimed that the officer is doing extremely well

in his career and therefore his posting profile has to be planned as per organisational requirements. He further submitted that though Inittally he was

posted to Jodhpur in December 2017, he has now been posted to Pune w.e.f. 05.11,21318. Hence; though PSS has not been granted due to Post

Course Utilization period requirements of three years, however, his basic request for posting to Pune has been agreed to, hence, there is no more relief

due to the applicant. He pleaded for the Original Application to be dismissed,

We have heard Learned Counsel for both We parties and perused the record. The primary question which we need to answer is as to whether the

respondents action of giving him the posting to Pune and refusing PSS is valid and ju5!2

After headng the Learned Counsel for the both Me parties Find going through the records in detail we have readied on the following conclusion :-

(a) That the applicant is a high profile officer and is doing extremely well in bis career.

(b) That the Indian Air Force is trying to plan his po5ting as per his expected career path and existing seniority which is coming in conflict with the

applicann requirement of being placed in Pune due to his personal requierd its of a special child with mental disorder and epilepsy disease and also the

requirement to look after over 80 years okd father who is suffering from cancer.

(c) The applicant has made it very clear in his application and we tend to agree with him that he has given his best to 1AF service, but, now he is at

Cross Road between the service requirement and his personal requirement to be available to look after his special child and his old father at the last

stage of his life,

(d) We also agree with the contention of thc cipplicant Li'at though he has now been given a posting to Pune, however, it is not a lasting solution.

Therefore the lasting solution to all his personal problems is P55 which is authorized as per the current HR Policy of the respondents,

(e) Additionally, the contention of the respondents that three years is binding after a foreign posting is suspect and not the complete truth because the

respondents HR Policy of 2012 on the subject is clear and states vide Para 20 that an undertaking has to be taken from an Officer for his three years

utilization period after a foreign posting. As per Lhe 2012 Policy this undertaking is required to be taken before his departure from India. Therefore,

the respondcritsi contention that even though written undertaking has not been taken from the applicant, he is bound for three years retention policy is

suspect.

After considering all the issues in this case we are of the opinion that the applicant has got a serious problem which cannot be denied, having a

special child with mental disorder is in itself a challenge, however, the recent addition of his child's problem in terms of Epilepsy disease and recent

diagnosis of Cancer to his BO years plus widowed father, makes his probtem more serious and grave. Therefore, the said perrnanent solution

apparently lies in PSS, the same must be given a humanitarian and very sympathetic consideration by the respondents. We are of the opinion that even

a very good officer may not be of much use to an organization if he is persistently distracted with his personal problems.

In view of above we are of the opinion that the three years period of pcst abroad posting is not binding on the applicant because the applicant has

not given a written undertaking to this effect as required by the Policy In vogue, before proceeding on foreign posting. Therefore, we reject the

contention of the respondents that the applicant is bound by the three years, post foreign posting retention polcy 10, Hence, we set aside the letters

dated 19.02.2018 and 24.04.2019 and direct the respondents to re-consider the request of the applicant once again sympathetically giving due

consideration to the present condition of his special child and his old father suffering with cancer. disposed of .

No order as to costs.