Karnataka HC Dismisses Plea Filed By Air Force Wing Commander To Set Aside Transfer Order

JUSTICE R. DEVDAS while dismissing a petition filed by Mallikarjun Gourimath, noted "Transfer is an incidence of service. If the contention of the petitioner were to be accepted then it may lead to a situation where the petitioner cannot be transferred out of Bengaluru."

The petitioner had sought to set aside the order dated July 20, and set aside the Air Headquarters Human Resource Policy dated April 6, 2015, for being discriminatory and in violation of Article 14 of the Constitution of India.

The petitioner claimed that his son is suffering from a rare genetic disorder known as propionic academia. His son, though aged about 18 years, has a mental age of a 2 or 3 year old. The child cannot sit without support, his speech is not developed, he cannot walk independently, he is not toilet trained, has difficulty in swallowing food and has poor comprehension. The child is suffering from 100% physical and mental disability.

It was submitted that the order of transfer is in violation of the Official Memorandums dated 06.04.2015 and 08.10.2018, IAF Posting Policy dated 06.04.2015 and IAF Posting Policy dated 07.07.2020.

The transfer would be detrimental to the survival of the petitioner's child in addition to violation of the Rights of Persons with Disabilities Act, 2016, UN Conventions of Rights of Persons with Disabilities.

Assistant Solicitor General (ASG) B. Pramod, submitted that during the month of October 2017, the petitioner was proposed to be transferred from Bengaluru. On his submission of an application seeking retention at Bengaluru till July, 2020, considering the medical condition of the petitioner's child, was allowed.

However, during September 2019, the petitioner was posted to 181 Flt (Delhi) to enable the petitioner's child to continue with the medical facilities. Then the petitioner took up the case for cancellation of the said posting and sought retention at Bengaluru. A Certificate of Undertaking dated 16.09.2019 was submitted by him stating that on rehabilitation ground of the disabled child, he has sought retention at Bengaluru. He would not seek extension of tenure at Bengaluru beyond April 2020.

The ASG also pointed that as per the Transfer Policy, where a request posting is sought to metro/major cities, the tenure would be restricted to a maximum of 2 years. Moreover, in New Delhi there are more than 7 hospitals, including the All India Institute of Medical Sciences, which have the neurology specialty and rehabilitation facilities which can provide medical attention to the child.

The court noted "The Transfer Policy dated 07.07.2020 is applicable only to Airmen/Air Warriors. Admittedly, the petitioner is an Engineer (Aeronautical Mechanical Engineer, commissioned as Pilot officer) taking care of the Aircrafts and not an Airman or Air Warrior. Therefore, the submissions of the learned counsel for the petitioner that the undertaking given by the petitioner is contrary to a statutory right is not supported by reference to any such provision of law."

As regards to the appeal made by the petitioner to consider his case sympathetically, it was opined "This Court cannot lose sight of the fact that the petitioner's family along with the ailing son have resided in New Delhi before coming to Bengaluru. The submission of the petitioner that the child would be denied the support system which has been around him for more than 6 years is understandable. But, the predicament of the respondent authorities are also required to be taken into consideration."

It added "The petitioner has given a solemn undertaking that he would not seek further extension. The fact that super specialty hospitals like AIIMS, Safdarjung, etc at New Delhi have the best facilities, if not better facilities than NIMHANS, Bengaluru, cannot be denied."

The court concluded by saying "On an overall consideration, this Court is of the opinion that the petitioner has not made out a case for exercise of the extraordinary writ jurisdiction of this Court. Consequently, the writ petition stands dismissed."

Cause Title: WING COMMANDER MALLIKARJUN GOURIMATH And UNION OF INDIA

Case No: WRIT PETITION NO.9604 OF 2020

Date of Order: 09TH DAY OF OCTOBER, 2020

Coram: JUSTICE R. DEVDAS

Appearance:

Advocate AVANI CHOKSHI, for petitioner. ASG B. PRAMOD for respondents.

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