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2016 DIGILAW 448 (JK)

Umakant Upadhaya v. Union of India

2016-09-02

JANAK RAJ KOTWAL

body2016
JUDGMENT : Janak Raj Kotwal, J. 1. Petitioner is a constable in the Border Security Force (BSF). He is presently posted at Station Headquarter (SHQ), BSF, Jammu, which is comprised in the Western Command of the BSF. Having completed twelve years of posting in the Western Command, the petitioner in view of the instructions issued by the Directorate General, BSF vide order No. 20/149/97-ESTT/BSF/4331-4631, dated 25.02.2014 was transferred to the Eastern Command vide HQ, DG, BSF signal No. R/3440, dated 23.03.2016. Pursuant to his transfer to the Eastern Command the petitioner was further adjusted and posted to 183 Bn. BSF at Patiram under the North Bengal Frontier vide HQ, SDG, Eastern Command signal No. R/1154 dated 08.04.2016 and HQ, North Bengal Frontier signal No. A/4414, dated 30.04.2016. Feeling aggrieved, the petitioner assailed his transfer to the Eastern Command and adjustment in 183 Bn. in SWP No. 1018/2016 before this Court. This Court disposed of that writ petition by the following order: ".....this writ petition is disposed of with a direction to the respondents (competent authority) to accord consideration to the representation of petitioner before he is relieved and take appropriate decision having regard to his health condition and applicable Service Rules." The petitioner assailed his transfer to 183 Bn. in the Eastern Command on the ground that he is suffering from Neurological disorder called Essential Tremor in medical terms. It was because of this disease that he had been transferred from Chhattisgarh to Jammu in 2011 and he is now undergoing treatment in Government Medical Hospital, Jammu having been referred to by the BSF Doctors. It was contended by the petitioner that he had made a representation for his adjustment at New Delhi or Chandigarh where he would be in a position to avail the appropriate medical facility in AIIMS or PGI. 2. Pursuant to and in compliance with the direction issued by this Court in SWP No. 1018/2016, the Director General, BSF accorded consideration to the case of the petitioner and vide order dated 30.06.2016, which is impugned in this writ petition, modified the transfer of the petitioner to the extent of posting him to 66 Bn. BSF at Kadamtala. BSF Campus for the reason that a Government Medical College is available at a distance of 4-5 kms. from the campus and a 100 bedded composite hospital of CAFs is also available within the campus. 3. BSF at Kadamtala. BSF Campus for the reason that a Government Medical College is available at a distance of 4-5 kms. from the campus and a 100 bedded composite hospital of CAFs is also available within the campus. 3. Petitioner assails his transfer even to 66 Bn. at Kadamtala on the grounds same as earlier taken to assail the transfer to 183 Bn. at Patiram. In addition he has contended also that better treatment-is available at New Delhi or Chandigarh and also that he is not in a position to undergo a long journey from Jammu to North Bengal. He has also pointed out that he has been singled out for his transfer to North Bengal Frontier even though his entire unit is stationed at Rajouri (J&K). Petitioner, therefore, seeks quashing of his transfer to the Eastern Command as also the order dated 30.06.2016 (supra) whereby he has been posted to 66 Bn. at Kadamtala. 4. Respondents have opposed the writ petition on various grounds. It is contended that on consideration of the case, petitioner has been posted at Kadamtala as adequate medical facilities are available there. It is pointed out that out of his twenty seven years of service the petitioner had a long tenure of fifteen years in Jammu Frontier in two spells, the present spell having started in June, 2011. He remained posted at Sector Headquarter twice for a period of five years as against prescribed tenure of three years. Refuting petitioner's contention that he is unable to travel from Jammu to West Bengal, the respondents have stated in their reply that the petitioner had been availing regular as well as casual leave every year and visiting his home town in Uttaranchal almost every year. 5. Faced with the reply of the respondents, petitioner has taken an additional plea against his transfer in the supplementary affidavit filed by him and I quote para 7 thereof: "7. That I am not in a position to live without the support of the family. My family is residing with me at Paloura BSF Camp, Jammu. My family is consisting of wife, two daughters and two sons. The elder son is undergoing B.Tech course at Swami Dev Dayal Engineering College, at Chandigarh. He is undergoing 4 years course and presently he is doing 2nd year semester. My elder daughter is student of M. Ed in University of Jammu. My family is consisting of wife, two daughters and two sons. The elder son is undergoing B.Tech course at Swami Dev Dayal Engineering College, at Chandigarh. He is undergoing 4 years course and presently he is doing 2nd year semester. My elder daughter is student of M. Ed in University of Jammu. She is in the final year. My younger daughter is student of 2nd year of 3 years B.A. course in Women College, Prade, Jammu." 6. Submissions made by the learned counsel for the petitioner and the learned ASGI at bar were nothing more than reiteration of the pleas in the pleadings and need not to be restated here. 7. It needs to be stated, though it goes without saying, that transfer of a Government servant from one post to another or from one area of operation to another is an exigency of service. Transfer order of Government servant can be questioned by invoking power of judicial review of this Court only on the grounds that the order is issued by an authority not competent to order the transfer, if the order dehors rules or is actuated by mala fides. To accord consideration to health condition of a Government servant or any member of his family and giving him an appropriate posting on that score is also well recognized. 8. It is not the petitioner's case nor it can be that the impugned transfer of the petitioner has been ordered by the authority not competent to do so or that the transfer dehors any rule. There is nothing to say that transfer is actuated by mala fides. 9. Only ground available to the petitioner is that transfer does not suit his health condition. This ground, however, was duly appreciated by this Court while disposing of the earlier writ petition when a direction was issued to the respondents to accord consideration to this aspect. Such consideration has been duly accorded at the level of Director General of the Force and the petitioner has been given the place of posting where medical facilities not lesser than those available at Jammu are available. This Court has neither any material to hold nor can this Court suggest as what place can provide adequate treatment to the petitioner and it suffice to say that treatment available at Kadamtala would not be of lesser quality than that available at Jammu. This Court has neither any material to hold nor can this Court suggest as what place can provide adequate treatment to the petitioner and it suffice to say that treatment available at Kadamtala would not be of lesser quality than that available at Jammu. Viewed thus, this writ petition has no merit and does not deserve admission to hearing. Hence dismissed. Interim relief granted vide order dated 25.07.2016 now stands withdrawn. Petition Dismissed.