- (1.) THE petitioner by this writ petition seeks to quash the order of his transfer dated June 19, 1981 on the grounds that it is contrary to tenure policy and it is discriminatory in nature, inasmuch as, the petitioner has been singled out by transferring him from Jodhpur to Kalikonda, whereas persons similarly situated have not been disturbed and that transfer is mala fide and with extraneous considerations.
(2.) THE petitioner was recruited to the Indian Air Force in January 1963 as Air Craftman. THE petitioner joined No. 32 Resafsggggggg g Referred to Referred to Referred to Referred to Referred to Wing at Jodhpur on being transferred from hard learing Area No. 3 PBSU, C/o 56 APO on June 22, 1979. THEre-after, he was promoted as Sergeant in Air Traffic Control (ATC), No. 32 Wing on July25, 1979. THE petitioner made several representations (Annexures 1 to 7a) against his order of transfer, but to not effect. So the petitioner has approached this Court to challenge the order of his transfer on the above grounds. The petitioner also submitted an application that his representation for cancellation of posting has been wrongly rejected by the Section Commander and Air Officer Commanding (A. D. C.) at Jodhpur, whereas the authorities at Jodhpur forwarded the application of posting on compassionate grounds of the persons similarly situated to the Air Force Record Office, Delhi and Air Head-quarter, New Delhi. Thus, the representations of cancellation of posting has been rejected arbitrarily and the rejection of the representation is also discriminatory. The petitioner in the writ petition referred to tenure policy as contained in Annexure-9 dated January 13, 1979 and Annexure-10 dated April 25, 1979 accompanied with performa of the application for change of tenure at normal stations Appendix 'a' to 32 W/c 1502/9/p3 (Anx. 10a) I need not refer to the contents of the tenure policy as contained in Annexures 9 and 10. For these policies stand revised as stated by the respondents in the preliminary reply as well as the final reply. The respondents first submitted the preliminary reply on August 17, 1981 and along with that produced instructions regarding the tenure policy dated March 28, 1979 (Anx. R/8) in continuation of letter dated March 17,1979 and further produced Annexure R/2 dated August 9, 1979. Along with the final reply, the respondents further submitted the instructions relating to the posting tenures and compassionate posting dated June 10, 1980 (Anx. R/3 ). The respondents, in their final reply averred that the petitioner was enrolled as Combatant Air-man and is governed by the provisions of the Air - Force Act, 1950 (for short 'the Act' ). The petitioner was attested as required by the Act, according to the mode provided under section 17 of the Act. The petitioner was attested and was administered oath to the effect that he will bear true allegiance to the Constitution of India and that he will serve in the Air Force and go where ever he is ordered by land, sea or air and he will obey all commands of any officer set over him, even to the peril of his life. In view of the petitioner's attestation and oath, it is not open to the petitioner to question his posting order dated June 19, 1981. The tenure policy is subject to the provisions of the Act and can not over-ride the statutory provisions of the Act. As regards the tenure policy, it was averred that it is only in the nature of executive instruction and has no force of law. The tenure policy is not justiciable or enforceable at law. It has not been framed under Art. 309 of the Constitution or any other statute. The grounds on which the order of transfer is challenged were refuted and it was alleged that the posting order has been issued by the Air Force Record Office (AFRD), after taking into consideration, the service requirements, the total stay at Jodhpur and in Rajasthan The petitioner from time to time applied for posting in Rajasthan particularly at Jodhpur and on his request, he was posted at Jodhpur. The petitioner had already served at Jodhpur near his home town for 8 years out of his total service of 18 years. In view of these facts and circumstances and the particulars stated in Annexure R/9, the petitioner was transferred from 32 Wing to Wing No 5 for administrative reasons and no on account of mala fide and out of extraneous considerations. It was stated that the Wing Commander Nayar had nothing to do with transfer. All the posting orders are issued by AFRD which is under direct control of Air Head-quarters and it does not consult any lower formation before issuing posting orders. Wing Commander made no recommendation for transfer of the petitioner at any state and in any case, he has nothing to do with the issuance of posting order of the petitioner. As regards, the tenure policy it was also averred that it is clear from the tenure policy that power to transfer an Airman prior to the expiry of the normal period is reserved and conceded to the authorities concerned and as such, the petitioner cannot claim an absolute right to continue at one station for full tenure. The administration is always the best judge being in know of all the circumstances relevant for determination of the desirability or propriety of any particular posting or transfer. It was stated that the total period of stay of Sergeants mentioned in para 8 of the writ petition is much less than the period of the stay of the petitioner as stated in para 18 of the reply. Although, the period of stay of Sergeant K. S. Krishnan and Sergeant Shekh Abdul Aziz has been for four years at Jodhpur. The respondents along with the application submitted an additional affidavit of Shri M. L. Trahon, Air Officer Commanding, 32 Wing, Air Force C/o 56 A. P. O. in which, it was stated that the petitioner was given the posting on compassionate grounds and so, as per Clause 6 (b) of the tenure policy dated June 10, 1980 (Anx. R/3), the petitioner is not entitled to remain at Jodhpur for a period of more than 2 years.
(3.) THE petitioner filed rejoinders in which, it was refuted by the petitioner that he was posted in 32 Wing on compassionate grounds. THE petitioner first submitted his rejoinder dated August 27, 1981 and finally submitted another rejoinder on November 13, 1981. THE petitioner was administered oath as required under section 17 at the time of service. But, sections 16 and 17 do not mean that the petitioner can not challenge the arbitrary and discriminatory order of his transfer. It was stated that sections 16 and 17 are meant for swearing oath of fidelity and idea behind section 17 (2) is that the combatant Airmen are required to abide by the orders of the Commanding Officers to go to any place by land, sea and air, even to pain of peril of his life, in the event of war or national emergency. If any command is given by the competent authority then in that case, he will follow that command even at the cost of his life. But, this section cannot curtail the right of the petitioner to challenge the arbitrary and discriminatory order of transfer issued by the competent authority in the time of peace. Reference was made to the training notes of Air Force Law. It was alleged that the tenure policy is not in consistent with the provisions contained in section 17 of the Act. It is only a service privilege. As regards the objection that the tenure policy is executive in nature, it was stated that it may be so but the same can be enforced, if discrimination is practised in its observance. THE Government is bound by its policy and if any departure is made, then the same has to be done with cogent reasons. As regards the petitioner's posting to Jodhpur, the petitioner averred that the petitioner made grievance against the Wing Commander, the Commanding Officer 3 FBSU and Group Captain under section 26 of the Act read with para 621 of the regulation of Air Force, 1964. THE grievance was heard by A. D. C. in 'c' Western Air Command. THE petitioner remained at 3 FBSU, which is a hard area, for 1 year and in the normal course, he was due for transfer and in this back ground, a choice was asked for various places by A D C. in 'c. THEreupon, the petitioner gave a choice for Jodhpur and he did not seek transfer voluntarily on compassionate ground, which may be verified from Signal No. 3 FBSU, PS/50 dated September 15, 1981. It was stated that to ask for a transfer voluntarily and to make choice when the same has been given by a Superior Officer are clearly different. THE tenure policy contained the detailed procedure for seeking transfer on compassionate ground No such procedure was followed in the petitioner'e case. THE petitioner further stated that his application dated June 6, 1981 on compassionate ground along with 13 certificates of civil competent authorities was not forwarded to the higher authorities whereas, the applications of other persons were forwarded. Although, the petitioner's compassionate grounds were more telling as compared to others. THE petitioner's father is blind, sick and aged 80 years. He has three young marriageable sisters and the petitioner has an ailing family and the petitioner categorically mentioned that he will leave service after completing 21 years and he was hardly to serve for 1 year and 10 months before leave preparatory to retirement. When the petitioner moved the higher authorities for seeking interview, the petitioner was informed vide Annexure-14 dated October 14, 1981 that his request for interview with the Chief of Air Staff or any Officer at Air Head quarter will not be considered on account of his case being sub-judice. THE petitioner also submitted a list of persons, who have put in 3 to 4 years service at the present station and stated that when an uniform policy for 3 to 6 years has been maintained by the authorities then why the tenure policy is shortened in the case of the petitioner. He also submitted another list of persons showing that they are completing 6 to 10 years of their service at Jodhpur vide Annexure-19, annexed to the rejoinder. THE petitioner emphasised that the petitioner has been noted out discriminatory treatment. THE petitioner, thus, refuted the pleas raised by the respondents and reiterated his grounds for quashing his transfer order. I have heard Mr. A. K. Mathur, learned counsel for the petitioner and Mr. J. P. Joshi, learned counsel for the respondents. The first question that falls for determination in the present petition, is, as to whether, the tenure policy is justiciable and enforceable at law. Mr. Mathur urged that it may be that the tenure policy is in the nature of executive or administrative instructions laying down the guiding principles for effecting transfers still the same is binding on the Government and the Government if acts in disregard thereof and in a discriminatory manner in enforcing it, then, such an action on the part of the authorities is liable to be questioned before a court of Jaw. Reliance was placed by Mr. Mathur, learned counsel for the petitioner on some case law in support of the above submission. ;