A writ petition challenging a decision of the Military Secretary Branch to deny a request for a term extension was disposed of by the Bombay High Court, which stated that “national interest is above any other interest, including self-interest” through a division bench of Chief Justice Dipankar Datta and Justice Makarand S Karnik in the case of Lt. Col. Anil Kumar Yadav v. Military Secretary Branch (Artillery/MS 11) & Ors. (WRIT PETITION NO. 1514 OF 2016 WITH INTERIM APPLICATION (L) NO. 5802 OF 2021)
FACTS OF THE CASE:
Through advocates Kranti LC and Kaustubh Gidh, the petitioner had contested two decisions made in 2016, one of which denied his plea to be posted to Mumbai. The other decision denied his request to extend his stay in Mumbai, and he was ordered to choose a new station within seven days. If he didn’t, the authority would issue the posting order based on the inputs it had on hand.
The army officer, who has two sons, insisted on staying in his current position since his elder son has a disability and needs specialized care, which, in his opinion, is only accessible in Mumbai. The court stated that it was acceptable for the “concerned father” to want to ensure the child’s well-being and would do everything in his power to keep his job in Mumbai.
As the petitioner’s request was only valid until his child turned 15 years old, which is the transitional stage of rehabilitation, in May 2020, the respondent military authority, represented by advocates B B Sharma and Suresh Kumar, claimed that the petitioner had overstayed in Mumbai for more than two years. As a result, the plea had become infructuous and should be dismissed.
The transfer order was stayed by a bench of the HC on February 12, 2016, and his stay was periodically prolonged. After that, a different bench lifted the temporary injunction, which the Supreme Court ultimately restored.
The bench claimed that it was aware of the child’s needs and that his parents’ continual presence was something he would need. However, it stated that sympathy could not be the basis for providing relief in this case. The bench observed that the petitioner, although having lived in Mumbai for more than ten years, was not being rational in his approach and should have known that there are over 100 officers in line for posting in Mumbai on comparable grounds.
It was observed by the CJI that “We, the countrymen, take pride in having a defence force composed of personnel who are willing to lay down their lives without any sense of fear or feelings as to what might happen if they are not there. For them, national interest is above any other interest, including self-interest. As an officer associated with the defence of the country, which is of paramount importance, we expected the petitioner to be rational in his approach and actions and place national interest at the forefront. The facts and circumstances, somehow, impel us to observe that he lacks fraternal feelings. We say no more.”
Additionally, it stated that the petitioner had received the assistance he had sought thus far and that similar organizations in other locations would offer his child’s treatment. According to the bench, the petitioner’s posting in Mumbai will continue for a fortnight, which also vacated the interim stay. The petitioner should inform the authority by July 18 of his choice of posting, and the authority will make a decision within seven days after receiving that choice. It further stated that the authority is free to act in accordance with the law if the petitioner makes no decision.
The court dismissed the plea as infructuous and added that the current ruling would not prevent the petitioner from applying for voluntary retirement, which he is qualified to do. The authority can review his application, and the petitioner’s posting in Mumbai may be continued while it makes this decision.
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JUDGEMENT REVIEWED BY REETI SHETTY