Calcutta High Court (Appellete Side)
Colonel Narendra Kumar Shukla vs Union Of India & Ors on 15 November, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
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Item No. 18
In The High Court At Calcutta
Constitutional Writ Jurisdiction
15.11.19
WP No. 21043 (W) of 2019
Colonel Narendra Kumar Shukla
v.
Union of India & Ors.
Mr. Sandip Kumar Bhattacharyya
... for the petitioner.
Mr. Mrinal Kanti Mukherjee
... for the respondents.
The petitioner is an officer of the Indian Army who is due to retire from service on May 31, 2021.
The petitioner is aggrieved by the movement order issued to him on November 11, 2019 with effect from November 7, 2019. The officer has been posted at Patiala with twenty days extra joining time with effect from November 7, 2019 to November 26, 2019 and is supposed to report to his new unit on November 27, 2019. He will be replacing one Colonel (TS) KJS Mayal who is due to superannuate on November 30, 2019.
The petitioner is suffering from cardiac ailment and inserted with external device. He is under constant medical treatment at Kolkata where he is presently posted and also at Mumbai.
By a letter dated January 17, 2019 the petitioner applied for posting on compassionate ground. He requested the authority to provide him the last leg posting either at Mumbai or at Bangalore. The petitioner annexed the medical documents along with his application for compassionate posting. The documents which the petitioner forwarded included a certificate from the President, Medical Board of the Command Hospital at Kolkata wherein the employability restrictions of the petitioner were clearly mentioned. It was indicated that the disabilities of the petitioner may aggravate in high altitude and exposure to cold. The petitioner was advised to 2 avoid undue physical exercise and was further advised to undertake monthly review at MOPD/Cardio OPD and Neuro OPD for monitoring the disabilities.
The certificate mentioned that the principal disability of the petitioner is 'Rheumatic heart disease- Post MVR (Bio Prosthetic)' and the other disability was mentioned as 'Ruptured LT A1-A2 Junction (ACA) Aneurysm with Acute Sub- Arachnoid Hemorrhage (Coiling Done)'.
The prayer for compassionate ground posting was rejected on the ground that the same was not feasible. It was mentioned that the officer will be posted as per the medical advice. The rejection order was intimated to the petitioner by an army message dated August 20, 2019.
By another representation dated August 22, 2019 the petitioner once again renewed his request for compassionate posting. It was mentioned that if the posting at Mumbai or Bangalore was not feasible then the authority may consider retaining him at Kolkata. By another communication dated August 28, 2019 the application made by the petitioner was cancelled.
The petitioner thereafter approached the Military Secretary by a communication dated August 29, 2019 mentioning in details the reasons for which he renewed his prayer for posting. By an army message dated September 2, 2019 the petitioner was intimated that his next place of posting would be Station Headquarter Patiala and he was supposed to report on November 27, 2019. The petitioner by a further communication dated September 11, 2019 prayed for cancellation of his posting at Patiala with request to be posted at Mumbai or any place in the vicinity of Mumbai or to extend his stay at Kolkata. Without giving reply to the request made by the petitioner on September 11, 2019 the impugned movement order has been issued to him with retrospective effect from November 7, 2019.
The petitioner alleges that the condition of his health is such that it would be extremely harmful for him to join at Patiala which experiences very cold climate in winter. The medical board of the Command Hospital has advised him not to be exposed to cold climates and the disability of the petitioner may aggravate in high altitude.
The petitioner submits that as the present posting will be his last leg of posting he is entitled to receive the benefit of choice posting.
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The petitioner relies upon an order passed by the Delhi High Court on March 9, 2015 in the matter of P.K.S. Bhatty v. UOI & Ors., reported in 2015 SCC Online Del 7821. In the said case the Hon'ble Division Bench of the Delhi High Court observed that it is not disputed that an army officer is entitled to avail leave for 160 days and as a matter of right be sent to a place of his choice for 189 days for receiving the training to enable him to find an avocation after retirement. The armed forces have a benevolent policy to give training in resettlement courses to the members who are due to retire from service so that they can gain employment post- superannuation. Since the army officers attain superannuation at a fairly young age they are productive assets for the society and they may be used for productive purposes. The Court calculated that 160 days of leave added to 189 days of training amount to 349 days. The actual service period left for the officer concerned in the said case was actually three months and it would not serve any purpose to post him to perform operational duties at a place which did not match the choice place of posting of the petitioner. The Court held that the right of the army officer to seek last leg posting cannot be denied and the same is a recognition that a member of an Armed Force who has served the country well and has spent more than 50% of the tenure in non-family stations is entitled to settle his personal affairs before he retires so that post- retirement he can live in peace. The purpose behind last leg posting at a place of choice is that the member of the force can find an accommodation where he can live peacefully in the twilight of his life.
In the instant case the petitioner has stated in his petition that he has not more than 517 days left in his service career out of which prior to his retirement he will be entitled to a leave of 160 days and would also have a right to be sent to a place of his choice for 189 days for receiving his training. The actual period of service days left of the petitioner will not be more than 168 days i.e little more than three months. Posting the petitioner at Patiala for only 169 days may cause severe harm to his health and may also lead to his death. The petitioner prays that he ought to be given the benefit of choice posting as this is his last leg of posting.
The learned advocate representing the respondents submits that he has already sought instructions from his clients and is expected to receive the same within a couple of days. 4
In view of the facts pleaded in the writ petition, in my opinion, keeping the writ petition pending awaiting instructions from the respondents will serve no useful purpose. I accordingly proceed to dispose of the same as follows.
It appears from records that the prayer of the petitioner for compassionate posting was turned down on the ground that the same was not feasible. At the same time the petitioner was intimated that he will be posted as per medical advice. The posting of the petitioner at Patiala is certainly not in tune with the advice given by the medical board. The petitioner has been advised not to be posted at places with high altitude and cold temperature. The climatic condition of Patiala may not be suitable for the petitioner to be posted there especially when the winter season is approaching.
Keeping in view the advice of the medical board the respondent authority ought to take a decision with regard to posting of the petitioner at such a place which may not be harmful for his health. The authority is liable to post the petitioner at such a place where there is proper arrangement for medical treatment in case of an emergency.
As the present posting will be the last leg of posting prior to superannuation the petitioner is entitled to be considered for choice posting according to the policy of the army.
In view of the facts mentioned herein above the instant writ petition is disposed of by directing the respondent no. 4 being the Military Secretary, MS-IE, to reconsider the prayer of the petitioner for choice posting in accordance with their policy keeping in mind the medical condition of the petitioner. The respondent no. 4 shall take a decision in the matter within November 29, 2019 and communicate the same to the petitioner immediately thereafter. At the time of consideration of the prayer of the petitioner the respondent shall keep in mind the period of leave and training which an army man is legally entitled to immediately prior to retirement.
The impugned posting order dated September 2, 2019 and the movement order dated November 11, 2019 are set aside.
WP No. 21043(W) of 2019 is disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
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sh ( Amrita Sinha, J.)