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2014 DIGILAW 148 (JHR)

Shankar Prasad v. Union of India

2014-01-23

APARESH KUMAR SINGH

body2014
JUDGMENT By Court Heard learned counsel for the parties. 2. The petitioner is aggrieved by the office orders dated 12th November, 2008 and 31st January, 2009, issued by the Commandant 116 Battalions, Boarder Security Force, Mahespur, P.O. Murul, Distt. Uttradinajpur, Praiganj, West Bengal, Respondent no. 2, whereby the petitioner has been retired from service of the Border Security Force invoking the Rule 25 of B.S.F. Rules 1969 read with Rule 38(1) of CCS (Pension) Rules, 1972. 3. According to the petitioner, he has been forced to retire on the alleged grounds of being unfit for service on account of medical disability as determined by the Medical Board Proceedings held on 6th April, 2008, whereunder he has been placed under Low Medical Category SI, HI, A3 (UL), P1, E1 and suffering from 68% disability. 4. Before getting into the merits of the case, the preliminary objection has been raised by learned counsel appearing on behalf of the Respondents-Union of India and the Border Security Force that the instant writ petition is not maintainable before this Court for want of territorial jurisdiction, as no part of cause of action has arisen within the jurisdiction of this Court. 5. The brief facts, which are necessary to ascertain whether the preliminary issue of territorial jurisdiction raised by the respondents, is sustainable or not are being noticed hereunder. The petitioner is said to have joined in the Border Security Force in the year 1990 and suffered serious injuries at thigh and left wrist during operation in Jammu & Kashmir while deployed in active duty under 116 Battalions, Border Security Force, in which the petitioner underwent treatment and was placed under the Low Medical Category by the Unit Medical Officer w.e.f. 11th January, 2000. Once again he was examined by the Medical Board on 1st June, 2003 and was placed under Medical Category SI, HI, A3 (UL), P1, E1 for two years by Medical Board. On 19th September, 2005 once again he was placed in Low Medical Category with 68% disability with the observation that the disability is permanent and 2. needs continuous physiotherapy and treatment and he is able to perform sedentary duty. The petitioner was allowed to work as a Constable, Dak Runner at Punj, Rajasthan. Thereafter the petitioner was assessed again by a Medical Board on 6th April, 2008, and was found to be suffering from the same 68% disability. 6. needs continuous physiotherapy and treatment and he is able to perform sedentary duty. The petitioner was allowed to work as a Constable, Dak Runner at Punj, Rajasthan. Thereafter the petitioner was assessed again by a Medical Board on 6th April, 2008, and was found to be suffering from the same 68% disability. 6. The petitioner however was served with impugned letter dated 12th November, 2008, which is at Annexure5, issued by the Commandant 116 Battalions, Border Security Force, Mahespur, P.O. Murul, Distt. Uttradinajpur, Praiganj, West Bengal, informing him that the Medical Board Proceeding held on 9th August, 2008, has declared the petitioner unfit for further retention in service and the said proceedings have been approved by the competent authority. It further indicates that a show cause was issued upon him vide office letter dated 28th September, 2008 for his retirement from service under Rule, 25 of BSF Rules 1969 read with Rule 38(1) of CCS (Pension) Rules 1972. His representation was rejected as being devoid of merit and consequently he was informed by the impugned letter that the petitioner having no. 904017630, a constable in ‘G’ Coy of 116 Battalion Border Security Force will be retired from service with effect from 31st December, 2008 (AN) as per the provisions of Rule 25 of BSF Rules 1969 read with Rule 38(1) of CCS (Pension) Rules 1972. His name would be struck off from the strength of Unit from the same day i.e. on 31st December, 2008. The representation submitted by the petitioner to Inspector General, B.S.F North Bengal Frontier was also rejected being devoid of merit vide letter dated 13th January, 2009. In that view of the matter, it was directed that he would be retired from service w.e.f. 5th February, 2009 by the impugned letter dated 31st January, 2009, issued by the Commandant 116 Battalions, Border Security Force, Mahespur, P.O. Murul, Distt. Uttradinajpur, Praiganj, West Bengal. In the aforesaid sequence of fact, the question which is required to be determined in respect of preliminary objection relating to the territorial jurisdiction of this Court is whether any cause of action or any part thereof arose within the jurisdiction of this Court. 7. The three facts which are relevant for determining the said question are first whether the petitioner was posted anywhere within the territorial jurisdiction of this Court. 7. The three facts which are relevant for determining the said question are first whether the petitioner was posted anywhere within the territorial jurisdiction of this Court. The answer to that is evident from the pleadings brought on record that the petitioner was posted in the Headquarters of 116 Battalions, Border Security Force, Mahespur, P.O. Murul, Distt. Uttradinajpur, Praiganj, West Bengal. The Medical Board to assess the disability of the petitioner leading to issuance of the impugned order was also held at the same place at Mahespur in the State of West Bengal. On the assessment of the disability of the petitioner, the show cause notice was issued upon the petitioner for retirement on medical ground on 28th September, 2008 addressed to the petitioner at 116 Battalion B.S.F under the signature of commandant 116 Battalion BSF Maheshpur (W.B.) Obviously, the show cause notice preceding the impugned order was also issued and served upon the petitioner at his posting at Maheshpur within the State of West Bengal. Thereafter, two impugned orders i.e. order dated 12th November, 2008 and 31st January, 2009, both were issued and served by the Commandant 116 Battalions, Border Security Force, West Bengal on petitioner at Mahespur in West Bengal. 8. In the aforesaid undisputed state of facts showing the places where alleged cause of action arose for the petitioner to assail the impugned order, it is beyond doubt that none of the cause of action arose within the territorial jurisdiction of this Court, so as to exercise its power under Article 226 of the Constitution of India. 9. The petitioner has relied upon a judgment rendered by Hon’ble Supreme Court in the case of Om Prakash Srivastava –Vs. Union of India & anr. reported in (2006) 6 SCC 207 . Learned counsel has referred to para 7 of the Judgment which reads as under: “7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof.” 10. The proposition of law as laid down in the said judgment is never in dispute. However, the petitioner in the aforesaid chronology of facts has failed to establish that any legal right claimed by him which has been infringed or threatened to be infringed by the respondents arose within the territorial limits of the Courts jurisdiction so as to confer jurisdiction of this court to exercise its power under Article 226 of the Constitution of India. The expression cause of action has acquired a judicially settled meaning and forms the bundle of facts which may if read together is necessary for the plaintiff to prove, if traversed in order to support his right to a judgment of the Court. In the instant case, as observed earlier once again the bundle of facts which arise in the instant case do not show that any part of the cause of action arose within the territorial jurisdiction of this Court. 11. On the other hand, learned counsel for the Respondents-Union of India has relied upon the judgment rendered by Hon'ble Supreme Court reported in (2010) 4 SCC 368 para 23 and (2011) 2 S.C.C. 741 Paras 10.1 and 14 in support of his contention that no part of cause of action arises within the territorial jurisdiction of this Court. 12. In the facts and circumstances of this case, the preliminary objection raised by the respondents is sustainable. This Court therefore holds that the writ petition is not maintainable for want of territorial jurisdiction of this Court. The petitioner however is at liberty to raise his grievances before the appropriate court in accordance with law. 13. With the aforesaid observations and directions, this writ petition stands disposed of. Petition disposed of.