Delhi High Court
Union Of India And Ors vs Sunil Kumar on 15 October, 2018
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.10.2018
+ W.P.(C) 940/2016
UNION OF INDIA AND ORS ..... Petitioners
Through Mr. Arun Bhardwaj, CGSC with
Mr.Nikhil Bhardwaj, Ms. Gauraan,
Advs with Mr. Amit Kumar, Deputy
JAG.
versus
SUNIL KUMAR ..... Respondent
Through Ms. Usha Pandey, Adv.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K.CHAWLA
S.RAVINDRA BHAT, J. (ORAL)
1. The Central Government is aggrieved by an order of the
Central Administrative Tribunal (CAT) which allowed the
respondent's original application seeking quashing of an order dated
26.03.2015 transferring him to 39 Battalion, Sashastra Seema Bal,
Palia, U.P.
2. The brief facts are that the Special Service Bureau was an
agency directly operating under the Central Government Cabinet
Secretariat. It was converted into Central Armed Police Force
(CAPF) in 2001 and was placed under the administrative control of
Ministry of Home Affairs (MHA). Later, on 20.12.2007, Sashastra
Seema Bal Act was passed by Parliament. On 01.02.2005, MHA by
an office memorandum purported to "Combatize" various posts
including those in the military cadre of Sashastra Seema Bal (SSB).
The relevant extracts of that order are as follows :
"2. On combatisation, the afore-mentioned medical
Officers will be governed by the provisions of CRPF
Rules 1955. They will be entitled to Kit Maintenance
Allowance, Uniform Allowance, Renewal Grant, Ration
Allowance, etc., as per rates admissible in the force from
time to time.
3. All the Medical Officers who opt for combatisation
will have to undergo the prescribed training/course
specified by the Department/Ministry from time to time
for the Force and other CPMFs.
4. Therefore, all the Medical Officers of SSB are
hereby directed to furnish their option in the enclosed
proforma to this Hqrs. Immediately by return post."
3. The Central Government's position is that consequent upon the
order of combatization, it treated almost all officers in the medical
cadre - except six, who have not opted it, as members of the force and
assigned the various ranks to them. The respondents who were
medical officers at that time had concededly not opted to be treated as
combatized personnels.
4. In this back ground when the order of 26.03.2015 was issued
transferring him to 39th Batallion, he approached the CAT
complaining that as a non-combatized personnel - entitlement of the
protection of the Central Civil Service (Classification, Control &
Appeal), he could not be compelled to join duties in a combatized
post. The respondent relied upon Kolkata High Court's ruling in
Ranjit Kr. Phukan &Ors vs. UOI &others [WP(C) 36/2011, decided
on 05.05.2011]. It was also brought to the notice of the court that the
judgment had attained finality because the Supreme Court had
rejected the Special Leave Petition on 03.07.2012. The Union of India
contends that after the combatization order was issued, there were no
left out personnel who did not opt for it. It was even urged that post
or position occupied by the applicant/Doctor was, in fact, combatized,
though, it was in training centre.
5. The Tribunal after considering various contentions including
the judgment of Anirudh Sharrna & Ors. vs. UOI & Ors. (OA No.
1032/2009, decided on 10.08.2011) held that the respondent cannot be
compelled to join a combatized position and had to be given treatment
similar to what was directed in respect of the petitioners in Kolkata
and Allahabad High Courts. The petitioner was directed to be kept at
the concerned position JW School, Sashastra Seema Bal, Gwaldam
(Uttarakhand).
6. Mr. Bhardwaj, learned counsel appearing on behalf of Union of
India contended that once all posts stood combatized and the
applicant's position as medical officer was undisputedly - within
SSB, he cannot resist transfer/posting. Stating that the non-
combatized position in the medical cadre, it was argued that no non-
combatized personnel has or can be recruited after the passing of the
Act. It was highlighted that the duties of combatized and non-
combatized medical officers are identical. The only difference being
that combatized officers had to adorn uniform and given other ranks,
which are different from the designations granted to non-combatized
officers.
7. The respondent highlights that consistent with Union of India's
position that an option was taken from him and given that all medical
cadre posts were combatized, his request for appropriate posting
outside of SSB or at least in a place that did not involve a combatized
post, was justified and the CAT was entirely correct in accepting his
arguments. It is further submitted by Ms. Usha Pandey, learned
counsel for the respondent that besides the claim for quashing of the
posting order, the respondent had also sought appropriate directions
that he be posted in an appropriate civilian establishment with a
medical cadre.
8. It is evident from a bare reading of the order of combatization
that even while being general - in its operation, all the posts were
converted from civil establishment to combatized posts. It applied
particularly having regard to the option given by individual officers
and employees. This distinction had to be kept in mind by SSB and
for that even other employees were placed in a similar situation.
Once an employee or officer is given an option and he chooses it, its
logical consequences would have to be followed. SSB stated position
is that it does not have a non-combatized medical cadre. This would
mean that those officers who did not opt for combatization had to be
posted elsewhere - possibly even outside SSB. The judgments of the
Kolkata and Allahabad High Courts precisely directed that i.e. posting
of non-combaitzed personnels outside of SSB by the Central
Government. In these circumstances, given that the respondent is a
Central Government employee and not subject to the discipline of
SSB Act - inasmuch as he does not hold the combatized post, he
cannot be compelled to join in one such and discharge functions of
those similar to other non-combatized positions. The legal corollary
therefore is that the Central Government - through the Ministry of
Home Affairs shall issue appropriate orders with respect to the place
of posting of the respondent who is now holding the post of Chief
Medical Officer [Non-Functional Selection Grade (NFSG)] in JW
School, Sashastra Seema Bal, Gwaldam (Uttarakhand). Such order
shall be made within eight weeks from today.
9. The writ petition is dismissed but in the above terms.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
OCTOBER 15, 2018
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