Delhi High Court
Mukul Kumar vs Union Of India & Anr. on 3 June, 2022
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.06.2022
+ W.P.(C) 9305/2022
MUKUL KUMAR ..... Petitioner
Through: Mr. Punit Vinay and Mr. Sunil
Kumar, Advocates
versus
UNION OF INDIA & ANR. .... Respondents
Through: Mr. Pradeep Kumar Jha, Sr. Panel
Counsel with Mr. Hemendra Singh,
Dy. Commandant (Law), BSF
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T (oral)
CM.APPL.27885/2022 (exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 9305/2022 & CM.APPL.27884/2022 (stay)
3. Vide the present writ petition, petitioner seeks quashing of order
bearing No.FHQ, BSF Signal/Order No.R/3225 dated 22.04.2022 only to the
extent upto which petitioner was transferred out from BSF Force,
Headquarter, New Delhi; quashing of order bearing No.HQ SDG (WC),
BSF Signal/Order No.R/1137/dated 04.05.2022 to the extent upto which the
petitioner was posted in 78 Bn BSF; quashing of order bearing No.FHQ
BSF Signal/Order No.R/3215 dated 14.05.2022 whereby petitioner's
request/application for cancelling his transfer from FHQ, BSF, New Delhi
was rejected by the competent authority; directions to respondents to post
the petitioner to any BSF establishment in Delhi till the time the petitioner
completes his Delhi tenure of three years on compassionate grounds and to
post the petitioner in National Capital Region facilitating easy access to
AIIMS, Delhi for his wife's treatment.
4. Notice issued.
5. Learned Senior Panel Counsel for respondents accepts notice.
6. Petitioner on his promotion from Assistant Commandant to the rank
of Deputy Commandant was transferred out from Force Headquarter, Border
Security Force to the Western Command vide Letter dated 22.04.2022.
7. Case of the petitioner is that his wife is suffering from PCOD since
2018. She was diagnosed with GUTB (Genito Urinary Tuberculosis) in
December, 2021 and she has been taking treatment from AIIMS, Delhi as
she is childless till date whereas the marriage of the petitioner was
solemnised in 2016.
8. Learned counsel for respondents has drawn attention of this Court to
Clause 9 of Notification dated 25.03.2000 issued by Ministry of Home
Affairs which is as under:
"9. Posting on promotion.- A member of the Force upto
and including the post of Second-in-Command while posted
in a static formation, shall be posted to a duty Battalion on
promotion to the next higher rank. The tenure rule shall not
be applied in promotion cases:
Provided that the members of the Force who have less than
2 years of service before attaining the age of
superannuation shall be exempted from application of this
rule:
Provided further that the provisions contained in this rule
shall only apply to the members of the Force who are
promoted to a post which also exists in a Battalion."
9. Whereas, learned counsel for the petitioner has drawn the attention of
this Court to the List of Promotion of the Assistant Commandants to
Deputy Commandants dated 24.10.2018 wherein the respondents, while
issuing the similar transfer order of promotion qua some of the promotees
were kept at the same place in a static headquarters including Force
Headquarters. Thus, as evident the aforesaid List of Promotion, the said
Clause 9 of the aforesaid Notification has been relaxed in some of the cases
by the respondents itself.
10. As submitted by learned counsel for petitioner, the petitioner's wife
has been taking treatment since 2018 and when she got diagnosed with
GUTB. She started taking treatment from AIIMS, Delhi. Learned counsel
for petitioner, on instructions from the petitioner who is present in Court,
submits that since he has no child, he wants to continue with the treatment at
AIIMS, New Delhi and it will take maximum one year, therefore, his
transfer orders may be extended for one year.
11. Learned counsel for petitioner, on instructions from petitioner, has
undertaken that no further extension, on whatsoever ground, shall be sought
by him for transfer order.
12. The said undertaking of learned counsel for petitioner is taken on
record.
13. Keeping in view the aforesaid facts and on humanitarian grounds, we
hereby direct the respondents to extend the transfer of petitioner for one
year.
14. In view of above, the present petition and pending application are
disposed of.
15. It is made clear that this order has been passed in special
circumstances and shall not be treated as precedent.
(SURESH KUMAR KAIT)
JUDGE
(SAURABH BANERJEE)
JUDGE
JUNE 3, 2022/rk
