Khema Nand (L/Nk.) vs Union Of India & Ors.
1999 Latest Caselaw 542 Del

ORDER

K. Ramamurthy, J.

1. The writ petitioner has prayed for the following reliefs :-

"In view of the aforesaid submissions and in the interest of justice, it is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to issue a writ, order and/or direction in the nature of :-

(i) MANDAMUS thereby directing the respondents to forthwith cancel the transfer/postings of the petitioner J&K in view of the psychiatric status of the petitioner except that to retain him either in Delhi or in the alternative to effect his postings and transfer preferably to Bombay, Madras or Bangalore where the Psychiatric Medical Treatment facilities and Orthopaedic medical treatment facilities are available to the petitioner and his wife and in all a peace station.

AND/OR

IN THE ALTERNATIVE

To accept the resignation submitted by the petitioner herein."

2. The facts necessary for the disposal of the writ petition could be narrated thus in the following terms:-

On the 6th of March, 1986, the petitioner was enrolled as Constable in the Border Security Force. On the 2nd of July, 1990, he was posted at 25 Battalion, Border Security Force, Delhi. In the year 1993, the petitioner was sent on deputation to the Ministry of External Affairs and he was posted in Russia and the Hague. In July, 1998, the petitioner was repatriated to the 25 Battalion, BSF. On the 14th of August, 1998, he was posted to 183 Battalion, BSF, in Jammu & Kashmir. That is impugned in the writ petition.

3. The learned counsel for the petitioner, Mr. N.L. Bareja, submitted that the period which he served in the Ministry of External Affairs and his work abroad should be excluded for considering him being in Delhi for the purpose of posting out of Delhi. The learned counsel for the petitioner, Mr. N.L. Bareja, submitted that in 1994 the Ministry of Home Affairs, Government of India, had issued, what is called, 'Posting/Transfer and Tenure Rules' (dated 28.10.1994), and as per those rules, the petitioner will be entitled to continue in Delhi in his parent unit being 25 Battalion. The learned counsel for the petitioner, Mr. N.L. Bareja, submitted that the petitioner has been sincere and a devoted Government servant and he was sent abroad. He further submitted that while the petitioner was living in Russia, he lost his mother in 1994 and he could not look after his family and on his return, his wife was afflicted from ailment, and now he himself is suffering from some ailment. Therefore, he should not be sent to Jammu & Kashmir.

4. In paragraph 2 of the Posting/Transfer and Tenure Rules, it is stated :-

"In order to overcome such eventualities, connected problems related to the functioning of the Force and to improve operational profile of the Force, it has been decided that henceforth all ranks upto the rank of Second-in-Command will continue to remain affiliated with their parent units from the time of their first induction into the same."

5. The learned counsel for the petitioner, Mr. N.L. Bareja, referred to paragraph 3 of the Posting/Transfer and Tenure Rules, which is captioned as "Enrolment/Commissioning of personnel in BSF, their permanent affiliation to Bus and transfers. Paragraph 3.(a)(iii) of the Posting/Transfer and Tenure Rules reads as under:-

     3.(a)      Constables, Tradesmen and Group 'D' employees: 
 

      .......... 
 

     3.(a)(i) ............ 
 

     3.(a)(ii) ............ 
 

3.(a)(iii) On being transferred to Trg. Institutions or various HQs or gong on deputations. Transfers to Trg. Institutions or sending on deputation would be done at BSF HQ level. On completion of these tenures they would be posted back to their parent Bn only."

6. The learned counsel for the petitioner, Mr. N.L. Bareja, submitted that by virtue of this rule, the respondents are bound to retain the petitioner in 25 Battalion at Delhi. The learned counsel for the petitioner, Mr. N.L. Bareja, referring to pages 8 & 9 of the writ petition, submitted that a number of Constables similarly situated like the petitioner have been retained in Delhi and the respondents had discriminated against the petitioner.

7. The learned counsel for the respondents, Ms. Alpana Poddar, submitted that the petitioner had given an undertaking at the time of his enrolment in the BSF that he would serve anywhere, where he is posted. She submitted that the petitioner is not suffering from any ailment which would disable him from performing his duty, and the petitioner cannot treat his tenure in the Ministry of External Affairs as being posted outside Delhi.

8. In my view, the respondents have issued the order of posting of the petitioner to 183 Battalion, Jammu & Kashmir in the normal course of functioning and there is absolutely no illegality or irrationality in the action of the respondents. It is not for this Court to interfere with any administrative functions, in particular, the posting/transfer of constables in Border Security Force. In this view, I do not find any merits in the case of the petitioner. Accordingly, the writ petition is dismissed.

9. The learned counsel for the petitioner, Mr. N.L. Bareja, submitted that the petitioner has not been paid his salary. Ms. Alpana Poddar, the learned counsel for the respondents, submitted that the petitioner's salary would be paid and there will be no lapse on the part of the respondents in paying the salary to the petitioner. The salary and other amounts to which the petitioner would be eligible shall be paid to him on or before the 31st of July, 1999.

10. There shall be no order as to costs.