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2012 DIGILAW 1739 (JHR)

Upendra Kumar v. Union of India

2012-12-17

APARESH KUMAR SINGH

body2012
ORDER Heard counsel for the parties. 2. The petitioner has sought quashing of the order dated 30th August 2004 (Annexure-8) by which the petitioner was originally transferred from the Training Centre at Meru Camp, Hazaribagh to 105 Battalion in Jammu & Kashmir. The petitioner was aggrieved and earlier came to this court when the said order dated 30th August 2004 was given effect to by the movement order dated 8th January 2005 by which he was directed to join 105 battalion of Border Security Force to which the petitioner originally belonged. In WPS No. 338 of 2005 the movement order dated 8th January 2005 was under challenge. This court, instead of deciding the case on merit, remanded the matter to the respondents to take a decision on the representation of the petitioner by directing the Director General of Border Security Force to determine whether the petitioner is 75% disabled and thereby he can be posted for indoor job or job like Bus Conductor or he is to be posted for duty of a regular Army. This court had taken into account the submission of the petitioner that earlier, after having been declared 75% disabled on account of injury sustained in military operation in Jammu & Kashmir, as per the report of the Medical Board, he was transferred and permanently posted at Training Centre at Meru Camp, Hazaribagh by order dated 13th January 2001. The Court after having taken into account the submission of the petitioner that after posting him at Training Centre at Meru Camp, Hazaribagh on 30th January 2001, observed that what was the reason to permanently re-transfer him by the order dated 30th August 2004 to 105 battalion. However, the order dated 30th August 2004 was not under challenge in the said writ petition, although the movement order issued thereupon, was under challenge. 3. The petitioner now being once again aggrieved, has come before this court in the present writ application, as according to him, respondents have not acted in terms of the order passed in the earlier case i.e. WPS 338 of 2005 while issuing the order dated 18th March 2005 contained at annexure-17 as also the order disposing of the representation dated 31st March 2005 which is impugned herein. It is submitted on his part that vide order dated 18th March 2005, respondents have directed him to proceed to 43 battalion at Bareily (U.P.) by modifying the earlier order of 30th August 2004 by which he was directed to join at his parent battalion i.e. 105 battalion of Border Security Force. Counsel for the petitioner submits that the authorities were directed to take a decision in relation to interim order within 15 days from the date of filing of such representation, as per the order passed by this court on 7th February 2005 in WPS No. 338 of 2005 which has not been done so while passing the order dated 18th March 2005. Counsel for the petitioner assails the order dated 31st March 2005 by which the petitioner's representation has been disposed of, on the ground that the respondents have failed to take a decision as to whether the petitioner should be posted in some indoor job and whether he is 75% disabled or he should be posted on the duty as regular Army personnel. He also submits that before taking final decision on 31st March 2005 itself, the earlier order has been modified by the order contained at annexure-17 dated 18th March 2005 directing him to proceed to join 43 battalion which is in the teeth of the order of this court passed earlier. Counsel for the petitioner has also assailed the impugned order while stating that the respondents have wrongly relied upon the Rule-18 of the BSF (Tenure of posting and Deputation) Rules, 2000 BSF, whereas Rule 11 is applicable in the case of the petitioner. He also submits that by the earlier order of 13th January 2001, the petitioner was placed in permanent posting by the respondent themselves and there was no reason to again re-transfer him to another battalion keeping in view his disablement up to 75%. The petitioner has also enclosed examples of BSF personnel vide annexure-19 to the writ application who have continued with similar or more disability for the periods either equal to him or even beyond that and in some cases from 1980, 1988 and 1990 till date being permanently posted at training centre, Hazaribagh of the Border Security Force Organization. The petitioner has also enclosed examples of BSF personnel vide annexure-19 to the writ application who have continued with similar or more disability for the periods either equal to him or even beyond that and in some cases from 1980, 1988 and 1990 till date being permanently posted at training centre, Hazaribagh of the Border Security Force Organization. He submits that the reason for discrimination against the petitioner is on account of the fact that he approached this court earlier against the orders passed by the BSF officials which has peeved them. 4. Respondents have supported the impugned order and have also filed their counter affidavit. The Rules of 2000 have been annexed to the I.A. filed on their behalf being I.A. No. 3375 of 2006 for directing the petitioner to vacate the Government quarters which he had occupied even after his transfer to the 43 battalion of BSF at Bareily (U.P.). Counsel for the respondents as well as the petitioner have taken this court to the relevant provision of Rule 18 of BSF (Tenure of posting and Deputation) Rules, 2000. Counsel for the respondents also submits that the petitioner had no right to remain at permanent place even after his disability. In case where personnel of BSF suffer from disability due to injuries sustained in combat operations, their cases are considered on the basis of the opinion of the Medical Board and are given posting in sedentary job like the petitioner who admittedly was himself posted in sedentary job vide order passed in January 13th January 2001 at the Training Centre at Meru Camp, Hazaribagh. Respondents further submits that perusal of the impugned order would indicate that there are huge number of personnel who are in low medical category and all these personnel cannot be retained at a particular place till their superannuation. It is therefore submitted that the Director General, Border Security Force have taken into account the disability of the petitioner as also the fact that he has been given sedentary duty earlier keeping into account 75% disability as determined by the Medical Board. He has been given therefore a soft job and assigned sedentary duty in 43.3 BSF battalion at Barely (U.P.) instead of 105 battalion of BSF which although was the parent battalion of the petitioner. He has been given therefore a soft job and assigned sedentary duty in 43.3 BSF battalion at Barely (U.P.) instead of 105 battalion of BSF which although was the parent battalion of the petitioner. Incidentally, parties submit that 105 battalion is placed at Jammu & Kashmir which is perhaps a field posting involving regular movement of battalion. According to the petitioner, he has been doing the job of Bus Conductor at Meru Camp, but after passing of the impugned order, he has not been allowed to discharge his duty despite the interim order passed earlier in WPS 338 of 2005 and he has not been able to draw his salary. Respondents further submits that since the petitioner was directed to join at his transferred place of posting keeping into account the order passed by this court after passing of the reasoned and speaking order dated 31st March 2005, however the petitioner has failed to do so and did not report at his transferred place of posting at 43.3 BSF battalion at Bareily (U.P.) and as soon as he joins at his transferred place of posting i.e. 43.3 battalion, he would be granted his salary as also other arrears of salary keeping into account the Rules of the organization. 5. I have heard learned counsel for the parties at length and gone through the relevant materials on record. The petitioner admittedly has suffered 75% disability and is placed in low medical category. On the basis of the opinion of the Medical Board, he was given sedentary job by order dated 31st January 2001 and posted at Training Centre at Meru Campt, Hazaribagh. From perusal of the Rules of BSF (Tenure of posting and Deputation) Rules, 2000, it does not appear that there is any concept of permanent posting in the organization. Perusal of Rule 2 (g), 5, 6, 11 & 18 would indicate that there is tenure attached to the posting of BSF personnel depending upon the area in which he is posted. As per Rule 6, tenure is two years in extreme hard area, three years in hard area and maximum of six years in frontier. The case of the personnel in low medical category is guided by Rule 5 (3) read with Rule 11 of the BSF (Tenure of posting and Deputation) Rules, 2000. Rule 11 is quoted herein below: “11. As per Rule 6, tenure is two years in extreme hard area, three years in hard area and maximum of six years in frontier. The case of the personnel in low medical category is guided by Rule 5 (3) read with Rule 11 of the BSF (Tenure of posting and Deputation) Rules, 2000. Rule 11 is quoted herein below: “11. Posting and Transfer of Low Medical Category Personnel.--A member of the Force who is placed in low medical category by duly constituted medical board may be considered for posting from a Battalion deployed in extreme hard or hard area to a Battalion deployed in a normal area or a static formation keeping in view the recommendations of the medical board; Provided that the tenure of posting in a normal area or static formation under the provisions of this rule shall not exceed three years except in case of the members of the force who are placed in low medical category due to injuries suffered in operations or on duty: Provided further that the competent authority shall take necessary steps to process the cases of members of the Force who are placed in low medical category due to reasons other than operational or on duty and whose medical category is not improved and do not become fit enough for posting to parent units after completion of a tenure of three years, for retirement on grounds of physical unfitness under the provisions of rules 18 and 25 of the BSF Rules, 1969; Provided further that personnel having less than 10 years of service shall be a owed to complete 10 years of service and those having more than 10 years of service shall be allowed to complete 20 years of service before initiating action for retirement on grounds of physical unfitness and the tenure rules shall not apply to such personnel.” 6. As per provision of Rule 11, in case of personnel who suffer injuries in operations and are placed in low medical category as determined on the basis of the recommendation of the duly constituted medical Board, case be considered for posting from extreme hard area or hard area to a posting in normal area or static formation, which ordinarily will not exceed three years. However, an exception can be made in case of member of the Force who are placed in low medical category due to such injury suffered in combat operations. Under the provisions of Rule 18(2) of the BSF Rules 2000, cases of transfer of all personnel anywhere in the Force including turnover from/to static formation and on extreme compassionate grounds shall be approved by the Director General or the officer as may be empowered by him. From perusal of Rules which have been referred to by the respondents, it appears that even a person placed in low medical category, cannot legally claim to be posted permanently at a particular place only under the BSF. The aforesaid rules indicates that such member of the Force placed in low medical category may be considered for posting from battalion deployed in extreme hard or hard area to battalion deployed in normal area or static formation keeping in view the recommendation of the Medical Board whose tenure may exceed three years on account of the injuries suffered in operations or on duty. 7. From perusal of the aforesaid Rules, therefore it appears that the petitioner cannot claim a legal right to continue at a particular place permanently even on the basis of the medical disability on the recommendation of the Medical Board. The petitioner who has been placed in the category of the disability, as per the Rules, can be permitted to be posted in sedentary duty or job in normal area or static formation. The petitioner earlier was posted in Training Centre at Meru Camp, Hazaribagh keeping into account his disability by order dated 13th January 2001. The respondents have reconsidered the case of the petitioner after remand by this court by order dated 7th February 2005 passed in WPS 338 of 2005 and accordingly, modified the order of 30th August 2004 by directing the petitioner to report for duty at soft posting at 43.3 battalion of BSF at Bareily (U.P) with further direction to give him sedentary job. The petitioner had earlier been transferred to 105 battalion in Jammu & Kashmir which obviously was a field posting involving regular and serious movement and may be in the category of extreme hard posting. The petitioner had earlier been transferred to 105 battalion in Jammu & Kashmir which obviously was a field posting involving regular and serious movement and may be in the category of extreme hard posting. Since the petitioner has not been able to make out a case of permanent posting at a particular place in view of his disability, and no legal right has been made out on the basis of the Rules of 2000, the petitioner cannot seek a direction in the nature of mandamus upon the respondents to put him at particular place of posting permanently. If other personnel have been allowed to continue at a particular place, as per the submission of the petitioner, they obviously do not have the legal right to do so and the organization may be entitled to review each individual cases in the individual facts and circumstances of the case keeping into account the Rules of the Forces. 8. From totality of the facts and circumstances narrated herein above, I do not find that the respondents have committed any illegality in passing the impugned orders, nor they have overreached the orders passed by this court earlier. In fact, the earlier order has been modified to enable the petitioner to join at a place in Bareily in 43.3 battalion with direction to give him sedentary job. I do not find therefore that the petitioner has made out any case for interference by this court in the matter. Accordingly, this writ petition is dismissed. Needless to say if the petitioner report for duty at his transferred place of posting, the respondents shall consider his case for salary and other arrears of salary keeping into account the Rules of the organization in Force. Petition dismissed.