Ct/Gd Mitrasen vs Union Of India & Anr.
2012 Latest Caselaw 3697 Del

      *     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 01.06.2012

+           W.P(C) No.781/2012 & CM Nos.1733 & 6121/2012

CT/GD Mitrasen                            ...     Petitioner

                                versus

Union of India & Anr.                     ..   Respondents


Advocates who appeared in this case:

For the Petitioner      :Mr.Kedar Nath Tripathi, Advocate.
For the respondents     :Mr.Sumeet Pushkarna & Mr.Gaurav Verma,
                        Advocates.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

1. The petitioner has challenged the Movement Order dated 27th

January, 2012 passed by the respondents transferring him from 3rd BN

Karera, District Shivpuri, MP to 4th BN Arunachal Pradesh.

2. The plea of the petitioner is that he is suffering from Lumber

Spondylosis, and that he has extremely bad health and is, therefore,

not in a completely fit condition to undergo the transfer. According to

the petitioner, he was given radiation treatment last year and the

Doctors had advised him to take complete rest and undergo regular

medical check-ups. The petitioner has also produced the medical record

stipulating that he is unfit for hilly terrain and advising him for light

duties.

3. Learned counsel for the petitioner has contended that earlier also,

he had been transferred to Leh by order dated 29.5.2010, which was

challenged by him by filing a writ petition, being W.P.(C) No.4599/2010,

titled Mitrasen v. Union of India & Ors., which was disposed of by order

dated 15.12.2010 and the movement order of the petitioner transferring

him to Leh was also stayed during the pendency of the consideration of

his representation based on his medical condition. Thereafter, the

petitioner was not transferred to Leh.

4. The petitioner/applicant has further contended that now he has

again been transferred to 4th Battalion Arunachal Pradesh, which is an

extremely hilly area though his medical condition has not improved.

5. Upon coming to know about the transfer order, the petitioner had

made a representation dated 14.01.2012 seeking the cancellation of the

said transfer order which, however, has not been considered by the

respondents. According to the petitioner, he had gone to Jhansi

Government Hospital for treatment on 27.01.2012 where he was

advised to have an MRI scan. He, therefore, informed the respondents

and requested them for an advance of Rs.5,000/- for getting the MRI.

Instead of providing the money for getting his MRI done, the movement

order dated 27.01.2012 was issued to the petitioner directing him to

first join at the place of transfer and then the Department may consider

his request thereafter.

6. Considering the facts and circumstances, the petitioner has been

able to make out a prima facie case against his transfer to Arunachal

Pradesh. Taking into consideration his medical condition and the

medical advice rendered to him, the balance of convenience is also in

favour of the petitioner as the inconvenience caused to the petitioner

shall be much more in case he is transferred to Arunachal Pradesh. In

case the petitioner is transferred to Arunachal Pradesh, in the facts and

circumstances, the petitioner may also suffer irreparable damage on

account of his precarious medical condition.

7. After taking into consideration the facts and circumstances of the

petitioner's transfer to 4th BN Arunachal Pradesh, this Court by order

dated 7th February, 2012 stayed the Movement Order dated 27th

January, 2012 transferring the petitioner to Arunachal Pradesh from

Karera, District Shivpuri, MP. The respondents contested the writ

petition and have filed a reply dated 19th May, 2012 contending, inter-

alia, that the Movement Order dated 27th January, 2012 transferring

the petitioner to Arunachal Pradesh have been cancelled and a fresh

Movement Order dated 23rd April, 2012 has been issued whereby the

petitioner is to be transferred from 3rd BN to 40th BN situated at Ranchi

(Jharkhand). The respondents have contended that 40th BN Ranchi,

Jharkhand is categorized as a soft area by Standing Order 9/2000 and

the said Battalion does not fall in the category of hilly area or terrain or

cold area. In the circumstances, the respondents have contended that

the petitioner has not been transferred to any hilly area or terrain area

by Movement Order dated 23rd April, 2012 which is, in fact, a soft area

and, therefore, will not impact the physical condition of the petitioner

adversely.

8. The petitioner has filed another application being CM

No.6121/2012 against the order dated 23rd April, 2012 transferring the

petitioner to 40th BN Ranchi, Jharkhand. This Court on prima facie

consideration of the pleas and contentions of the petitioner/applicant in

CM No.6121/2012 by order dated 11th May, 2012 also stayed the

Movement Order dated 23rd April, 2012 transferring the petitioner to

40th BN ITBP.

9. In reply to the application of the petitioner challenging his

transfer to 40th BN Ranchi, Jharkhand by CM No.6121/2012, the

respondents have filed a reply reiterating that on account of the medical

condition and the advice rendered to the petitioner, he cannot contend

that he cannot be transferred to a soft area which is not a hilly or

terrain area and consequently, the petitioner cannot impugn his

transfer to 40th BN situated at Ranchi, Jharkhand.

10. Learned counsel for the respondents today has produced a letter

dated 31st May, 2012 from Mr.Pawan Kumar, Second in-Command,

JAG Branch, Director General, ITBP addressed to the learned counsel

for the respondents reiterating and reconfirming that the petitioner is

already performing light duties as advised by the Medical Board. It has

also been stated that in the future as well the petitioner will be given

only those duties which commensurate with the petitioner's medical

category.

11. Learned counsel for the petitioner, in the facts and

circumstances, cannot impugn the transfer of the petitioner to 40th BN

Ranchi, Jharkhand in light of the fact that the petitioner has been

asked to only perform the light duties, with a further assurance that in

future too the petitioner will be given only those duties which will

commensurate with his medical category.

12. In the circumstances, since the order of the transfer of the

petitioner to Arunachal Pradesh has already been withdrawn and the

petitioner has been transferred to 40th BN Ranchi, Jharkhand and in

view of the assurance given by letter dated 31st May, 2012 that the

petitioner is only performing light duties and will continue to perform

light duties that will commensurate with his medical category, the

petitioner is not entitled for any other and further relief. The writ

petition, therefore, is allowed in terms of the observations made herein.

13. The transfer of the petitioner to 40th BN Ranchi, Jharkhand is in

accordance with the duties which he can perform and thus the

petitioner shall continue to perform the light duties inconformity with

his medical condition and the medical advice rendered to him.

14. The writ petition in terms hereof is disposed off and all the

pending applications are also disposed off. The interim order dated 7th

February, 2012 does not survive in view of the transfer of the petitioner

to 40th BN Ranchi, Jharkhand.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JUNE 01, 2012 vk