Surinder Singh v. Union of India through Home Secretary, Ministry of Home Affairs, Government of India, New Delhi
2024-04-22
N.KOTISWAR SINGH, RAHUL BHARTI
body2024
DigiLaw.ai
ORDER : Rahul Bharti, J. 1. The appellant is of the rank of Inspector (General Duty) No. 100078646 in the Border Security Force (BSF). The Inspector General (IG), Frontier (Ftr.) Headquarter (HQ), Border Security Force (BSF), Jammu came to pass an Order No.2069/Estt-II/Jammu/BSF/2O24/3781-88 dated 20.03.2024 thereby ordering the posting of the appellant to 141 Bn. BSF against an existing vacancy with immediate effect and directing him to join by 30.03.2024. This order is said to have been passed with the approval of the competent authority. 2. The appellant felt aggrieved by his said posting to 141 Bn. BSF reckoning it to be a transfer premature and, therefore, came forward with a hand written representation dated 21.03.2024 to the IG BSF, Ftr. HQ BSF, Jammu, narrating therein that the appellant is passing through mental agony due to unspelled personal reasons and thereby seeks an audience from the IG BSF, Ftr. HQ BSF, Jammu without referring anything relating to his said posting to 141 Bn BSF. 3. The appellant, acting in furtherance of his purported grievance that his posting to 141 Bn BSF was wrong and unwarranted, came forward with institution of a writ petition WP(C) No. 679/2024 before the writ Court, thereby seeking quashment of an Order No.2069/Estt-II/Jammu/BSF/ 2O24/3781-88 dated 20.03.2024 read with Movement Order No.3087/2O23-EstI-III/BSF/3918-24 dated 22.03.2024, and consequently seeking in his favour a direction for enabling him to complete full spell of three years tenure of his posting in the Ftr. HQ BSF, Paloura. 4. In the writ petition, the appellant came forward with averments relating to his appointment as Sub-Inspector BSF on 24.05.2010 under No. 100078646 and having to his credit in the course of his service not only grant of awards in recognition of his appreciable performance of duty but also promotion from Sub-Inspector to Inspector with effect from 01.04.2016. 5. In the writ petition, the appellant came to enlist the respective places of postings during the course of his service, both as Sub-Inspector and later as an Inspector, which as per the appellant’s self certification were postings at Hard Stations. In this sequence, the appellant’s last posting, purportedly to a Hard Station, was his transfer from 16th Bn Ftr. HQ, Rajasthan to Paloura Camp, Ftr HQ, Jammu in the year 2019. 6. From his said hard posting at Paloura Camp Ftr. HQ, Jammu the petitioner came to be transferred to Ftr.
In this sequence, the appellant’s last posting, purportedly to a Hard Station, was his transfer from 16th Bn Ftr. HQ, Rajasthan to Paloura Camp, Ftr HQ, Jammu in the year 2019. 6. From his said hard posting at Paloura Camp Ftr. HQ, Jammu the petitioner came to be transferred to Ftr. HQ, Jammu on 03.09.2021 which is said to be a static Headquarter where the appellant was supposed to have a posting of three years stay, which came to be prematurely cut short by six months. 7. The sheet-anchor of the appellant’s challenge to his posting to 141 Bn BSF located at Khanter Nala, Poonch is Order No. 20/149/97-Estt/BSF/4321-4631 dated 25.02.2014 (in short “order dated 25.02.2014”) read with Order No.20/149/97-Estt/BSF/18737-19037 dated O5.O9.2016 (in short “order dated 05.09.2016”) both issued by the Govt. of India through its Ministry of Home Affairs, Directorate General Border Security Force, Personnel Directorate. 8. The writ petition so filed by the appellant came to suffer dismissal at its inception stage when the learned writ court came to acknowledge the appearance of Mr. Vishal Sharma, DSGI on behalf of the writ respondents who came forward to make submissions orally against the maintainability of the writ petition so filed by the appellant and which came to be taken note of by the learned writ Court to order dismissal of the writ petition by virtue of a judgment dated 27.03.2024, aggrieved whereof the appellant has come forward with the present letters patent appeal (LPA) before us. 9. A perusal of the order dated 25.02.2014 would show that it is an outcome of a decision taken during the Force Commander’s Conference held at FHQ BSF, New Delhi on 10.01.2014 which resulted in its approval by the Director General (DG) BSF, whereby Special DsG (Eastern & Western Command) came to be empowered to issue orders of postings/transfers/ attachments of Subordinate Officers (SOs) and Other Ranks (ORs) in respect of General Duty (GD) and Ministerial Cadres of BSF within their command with immediate effect and also laying down instructions/guidelines to be followed while issuing the posting/ transfer/attachment & de-attachment orders. The mechanism so evolved and set into place by virtue of said order dated 25.02.2014 came to be reviewed with insertion of fresh instructions in terms of the order dated O5.O9.2016. 10.
The mechanism so evolved and set into place by virtue of said order dated 25.02.2014 came to be reviewed with insertion of fresh instructions in terms of the order dated O5.O9.2016. 10. A combined perusal of the aforesaid two orders would reveal that the underlying legal framework dealing with the transfers of BSF personnel/officials is as per the BSF (Tenure of Posting and Deputation) Rules, 2000. The intent and import of the mechanism as setup in terms of the aforesaid two orders is only with respect to posting/transfer/attachment of the SOs and ORs in respect of GD and the Ministerial Cadres of BSF within their command/frontiers. 11. There are two commands in BSF i.e., Eastern & Western, each headed by Special Director General (SDG) with Director General (DG) BSF being the top most head. The two commands have different regional frontiers comprised in each of these. 12. As per the aforesaid two orders, the tenure of posting/transfer/attachment of SOs & ORs within the two commands is meant to be for 12 years, to be governed by the BSF (Tenure of Posting and Deputation) Rules, 2000. Insofar as the posting/transfer/attachment to inter & intra frontier/s within a Command is concerned, six (6) years is the tenure in a given Frontier, whereupon a personnel is liable to be posted to another Frontier. 13. As per the said two orders, the BSF SOs/ORs who have maximum service in Soft Areas are to be considered for posting to Extreme Hard or Hard Areas and vice-versa as far as possible, whereas posting/transfer/attachment request on compassionate grounds including medical ground cases, terminal postings and spouse cases is/are to be considered by the Special Director Generals’ of the concerned Command. 14. The matter of issuing posting order/s within the Frontier is left to be carried out by the Frontier Headquarters. For the sake of convenience and uniformity of movement pursuant to posting/transfer/attachment, 30th June every year has been prescribed as the cut-off date for counting the tenure in a particular Command/Frontier and 30th April every year to be a date for issuing of posting orders. 15.
For the sake of convenience and uniformity of movement pursuant to posting/transfer/attachment, 30th June every year has been prescribed as the cut-off date for counting the tenure in a particular Command/Frontier and 30th April every year to be a date for issuing of posting orders. 15. In terms of the said two orders, it is envisaged that while issuing posting/transfer/attachment order/s the vacancy position will remain the primary criteria and further that while considering the rotation of personnel within Command, it is to be ensured that the posting/transfer is carried out in such a manner so that every personnel should have tenure both at Soft Areas and Hard/Extreme Hard Areas as defined vide FHQ Ops Dte L/No. E3/11/Cate/Ops/2011/1110-1368 dated 23.09.2011 16. In terms of the said two orders, the plenary power with respect to posting/transfer/attachment stands recognized vesting in Director General BSF, notwithstanding anything contained in the said two orders. 17. A combined perusal of the said two orders would confirm one common fact that the tenure of a personnel under Ftr HQ, Bangalore and Ftr HQ, Chattisgarh is prescribed to be six (6) years, out of which maximum tenure in Static Headquarter is to last four years in the case of Ministerial Staff and three (3) years for GD personnel. 18. As against this, the routine tenure in static Headquarters including SDG Headquarters (East & West) Ftr HQRs/SHQr/Trg Institutions to last for the four years for Ministerial Staff and three years for GD personnel. 19. It is in the backdrop of this provision of tenure posting in static Headquarter that the petitioner reckoned his posting on Ft. HQ Jammu to be posting in a static Headquarter which was meant to last for three years with effect from 03.09.2021 but aborted six month short of said three years tenure, thereby reckoning it to be a breach of guidelines mandated upon the authorities concerned competent to order posting/transfer/ attachment. 20. The learned writ Court came to take cognizance of the fact that the petitioner’s posting in Ftr. HQ, Jammu beginning with 16 Bn BSF at Paloura commenced in July, 2019 and by reckoning from the said period the posting of the appellant directed in terms of order dated 20.03.2024 in 141 Bn BSF was after the expiry of appellant’s three years’ stay in static Headquarter. 21.
HQ, Jammu beginning with 16 Bn BSF at Paloura commenced in July, 2019 and by reckoning from the said period the posting of the appellant directed in terms of order dated 20.03.2024 in 141 Bn BSF was after the expiry of appellant’s three years’ stay in static Headquarter. 21. The appellant is clamoring about the fact that his posting in 16 Bn BSF, Jammu was a Hard Area posting and is, thus, to be delinked from his posting in Ftr. HQ, Jammu was to be the actual posting in static headquarter. 22. Be that as it may, the salient aspect of the aforesaid two orders based upon which the appellant came forward with an expectation to checkmate his transfer is that it is the vacancy position which is to be the primary criteria for issuing posting/ transfer/attachment order/s. When we examine the transfer order of the appellant, we find that it expressly mentions that the appellant is being posted to 141 Bn BSF against the existing vacancy with immediate effect. For the facility of reference we reproduce the body of the transfer order hereunder:- “As approved by the competent authority, No.100078646 Insp(GD) Surinder Singh of Ftr HQ Jammu is hereby posted to 141 Bn BSF against existing vacancy with immediate effect. 2. Relieve above SO to his new place of posting by 30/03/2024 and compliance be submitted to all concerned.” 23. This aspect of an existing vacancy in 141 Bn BSF becoming an exigency for posting of the appellant from Ftr HQ, Jammu cannot be lost sight or undermined by the appellant to which he has addressed no averment in the writ or appeal for the reason that it could not have been the case of the appellant that his posting to 141 Bn BSF is by way of swapping of positions in which scenario it could have been a case available at the disposal of the appellant that his tenure posting in static Headquarter was cut short by six months. However, as the 141 Bn BSF is having an existing vacancy which required it to be provided, as such, it is for the concerned authorities of the BSF which are to be reckoned the best judge of matter of posting/transfer/attachment of BSF Subordinate Officers (SOs)’, which in present case, the appellant, is/are to be posted. 24.
However, as the 141 Bn BSF is having an existing vacancy which required it to be provided, as such, it is for the concerned authorities of the BSF which are to be reckoned the best judge of matter of posting/transfer/attachment of BSF Subordinate Officers (SOs)’, which in present case, the appellant, is/are to be posted. 24. We, therefore, do not find that there is any illegality in the outcome of the writ petition filed by the appellant resulting in its dismissal and also no illegality in the order of posting/transfer of the appellant to 141 Bn BSF. 25. We, therefore, dismiss the appeal. 26. Connected application shall also stand dismissed.