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Jammu & Kashmir High Court - Srinagar Bench
Gowhar Gulzar Lone vs Union Of India & Ors on 20 December, 2025
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(through virtual mode)
WP(C) No. 3577/2019
MP No. 7294/2019
Reserved on: 04.12.2025
Pronounced on: 20.12.2025
Uploaded on: 23.12.2025
Whether the operative part or full
judgment is pronounced-Full Judgment
Gowhar Gulzar Lone
...Petitioner(s)
Through: Mr. Molvi Aijaz Ahmad, Advocate.
Vs.
Union of India & Ors.
...Respondent(s)
Through: Mr. T.M.Shamsi, DSGI with
Mr. Faizan Ahmad Ganie, CGC.
CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. The petitioner is aggrieved of the Order No. Estt/WP(C)-17829 of
2018/2018/14317-21 dated 21.12.2018 issued by respondent No.2-
Inspector General, STC, BSF, Bangalore, in terms whereof the case of
the petitioner, to consider him for appointment to the clerical/other
posts in BSF, was rejected by the respondents, as according to the
respondents same is inconsistent with the relevant Recruitment Rules
and being devoid of any merit.
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2. In the instant petition it has been averred that the petitioner was enrolled
in BSF on 16-02-2013 as Constable (GD) vide Order No.
1061/Estt/rectt Cell/STC/2013/1280-1442 dated 23-02-2013 issued by
STC BSF, Srinagar and subsequently the petitioner reported at STC
BSF, Bangalore on 03.03.2013 for undergoing basic training; that,
immediately after his arrival, he reported sick and was referred to
Bowring & Lady Curzon Hospital, Bangalore on 06/03/2013, where he
was diagnosed as a case of 'non-union fracture PP with infection'. That,
he was further referred to Orthopedic Surgeon, BGS Global Hospital,
Bangalore, where he was diagnosed as a case of 'Chronic osteomyelitis
of 5th Metatarsal head, Proximal Phalanx & Distal Phalanx of 5th Toe
of left foot', and 5th ray amputation of left foot was done on 20-03-2013.
That, consequently, the petitioner was placed in low medical category
S1H1A3(LL)(T-12) P1E1 w.e.f., 04/04/2013 and relegated to next
junior batch.
3. It has been further averred that vide STC BSF, Bangalore Order No.
303/Estt-III/Rectt-COI/2013/6572-76 dated 30/03/2013, a Court Of
Inquiry (CoI) was convened to investigate the circumstances under
which the petitioner had sustained injury in his left foot; that, the
petitioner was discharged from service vide STC, BSF, Bangalore
Order No. 338/Estt/STC/BSF/2013/24930-25029 dated 10/12/2013
without any pensionary benefits under the provision of Para-2 of his
appointment order, service condition No.2 under Part-II of Appendix-I
of Rule 13 of BSF Rules, 1969 and in exercise of power under Rule
17(A) of BSF (Amendment) Rules, 2011, after observing all mandatory
formalities.
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4. It has been next contended that the petitioner had submitted a
representation for his re-instatement in BSF; that, on being examined
the documents in detail, Ftr HQ (Spl Ops) BSF, Bangalore set aside the
order of discharge No. 134201285 Ex-Rectt/Const and ordered to re-
instate the petitioner in service with immediate effect; that, the
petitioner filed a petition SWP No.164/2018 before this Court with a
prayer to direct the respondents to consider the petitioner for any
clerical post or class -IV, as the petitioner has become 'disabled'
because of amputation of left foot and to decide the representation of
the petitioner; that, vide order dated 29.09.2018 passed in SWP
No.164/2018, this Court directed the respondents to treat the said writ
petition as representation on behalf of the petitioner and accord
consideration to the claim of the petitioner in accordance with relevant
rules; that, the case of the petitioner was considered by the respondents
but his appointment to a clerical/other post, being impermissible under
the relevant rules, was not acceded to.
5. Aggrieved of the same, the petitioner has come up with the instant writ
petition for quashment of the same. The petitioner, through the medium
of the present petition, has prayed for the following reliefs in the nature
of writ of:-
a) "Certiorari and quash the order impugned in the
writ petition passed by respondent 02- Inspector
General STC, BSF, Bangalore dated 21st of
December 2018 bearing No: Estt/WP (C) 17829 of
2018/2018/14317-21.
b) Mandamus: commanding the respondents to
reinstate the petitioner as has already been ordered
by the respondents, as reflected by them in the
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impugned order, in para 06 vide order
No:134201285.Rectt/CT Gowhar Gulzar Lone,
which has even not been withdrawn specifically by
virtue of the impugned order of discharge or is this
honorable court deems fit and proper, a fresh. The
honorable court be further pleased to direct the
respondents to give to the petitioner all service
benefits, as would have been available to him had he
not been discharged from the services including
salary and seniority and other perks as admissible
under rules. Or in the alternative the honorable
court be pleased to command the respondents to give
to the writ petitioner substitute
employment/alternative employment or in the
alternative the honorable court be pleased to direct
the respondents to give to the writ petitioner, "the
disability pension" and invalid pension.
c) The honorable court may be pleased to give a
direction in favour of the petitioner and against the
respondents, which this honorable court finds proper
and convenient in the peculiar circumstances of the
case, though not specifically prayed for, in the
interests of Justice, for which the petitioner shall
ever remain grateful."
6. Objections stand filed by the respondents, wherein it has been stated
that the petitioner was enrolled in BSF as Constable (GD) on
16.02.2013 but his appointment was subject to certain terms and
conditions; one of the conditions as specified under para-2 of his
appointment was that he will be initially on probation for two years
and during the period of probation his services can be terminated by
the competent authority at any time without assigning any reason as
per the provisions of BSF Act and Rules, if the authority considers
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that he is not likely to become an efficient member of the force or fail
to qualify the basic training within the permissible time.
7. It is further stated that after the arrival of the petitioner at Bangalore,
to undergo basic training, he reported sick and was referred to
Bowring & Lady Curzon Hospital, Bangalore on 06/03/2013, where
he was diagnosed as a case of 'non-union fracture PP with infection'.
He was further referred to Orthopedic Surgeon, BGS Global Hospital,
Bangalore, where he was diagnosed as a case of 'Chronic
osteomyelitis of 5th Metatarsal head, Proximal Phalanx & Distal
Phalanx of 5th Toe of left foot' and 5th ray amputation of left foot was
done on 20-03-2013. Furthermore, the respondents stated that during
the Court of Inquiry proceedings, it was established that during the
last week of December, 2012 i.e., before joining in BSF, the petitioner
had felt pain in his little toe of the left foot at his home town i.e.,
Anantnag, J&K and he got treatment from nearby private hospital and
thereafter on 24/01/2013 he went to Government Hospital for Bone &
Joint Surgery, Barzulla, Srinagar, and got admitted there. It is further
stated that all the medical procedures were done after the final medical
examination carried out by the BSF Medical Board on 14/04/2012 for
enrolment of the petitioner in BSF through SSC and before his joining
BSF i.e. on 16/02/2013.
8. Respondents further pleaded that the competent authority found him
unfit for further retention in service and he was called upon to show
cause as to why his services should not be terminated on the grounds
of unsatisfactory progress in basic training due to amputation of 5 th
metatarsal toe of left foot, under the provision of para-2 of his
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appointment order. Reply of the petitioner to the said show-cause
notice was received, perused and was found devoid of any merit.
9. Furthermore, the respondents stated in their objections that after
examining the documents in detail, respondents observed that the
procedure adopted for discharge of petitioner from service was not in
order under the provisions of Rule 17-A of BSF (Amendment Rules,
2011), as such, the discharge order of the petitioner was ordered to be
set-aside and was directed to be reinstated in BSF with a further
direction to the petitioner to report STC, BSF Bangalore within 15
days on the receipt of the order, but neither the petitioner reported nor
any intimation was received from him.
10. Respondents have filed their response to the writ petition wherein the
specific stand taken is that the petitioner's claim for appointment to
clerical or other posts in the BSF, being inconsistent with the
applicable recruitment rules, stands rejected on the strength that
appointment to clerical or other posts is impermissible under the said
rules, as all appointments in the BSF are of a combat nature, for which
physical fitness and SHAPE-I medical category are mandatory
requirements. Finally, the respondents have prayed for dismissal of
the instant petition, being devoid of any merit due to baseless,
fabricated and misleading facts.
11. Heard learned counsel for the parties, perused the record and
considered the same.
12. Learned counsel for the petitioner vehemently argued that the
impugned order has been passed in clear and brazen violation of the
provisions of BSF Act, 1968 and BSF Rules, 1969 framed there-
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under. It is alleged that the proceedings initiated by the respondent-
authorities against the petitioner are violative of his fundamental
rights, particularly Article 21 of the Constitution, as his right to life in
the form of right to livelihood, was denied to him, inasmuch as, the
proceedings before the court of enquiry was conducted without due
notice to the petitioner and without affording any opportunity to him
and also that the proceedings against him was carried out, without
following due procedure in accordance with the provisions of the BSF
Act, 1968 as well as the relevant BSF Rules, 1969.
13. Learned counsel for the petitioner, while making submissions, pleaded
that the petitioner would have responded to the order of reinstatement,
had it been communicated to him but the fact of the matter is that it
had never been communicated to him. If for the sake of arguments it is
presumed that he had received the order of reinstatement then what
was the fun for the petitioner to approach this Court for his
reinstatement.
14. Learned counsel for the respondents, ex-adverso, fervently argued that
the present writ petition is not maintainable, inasmuch as, the case of
the petitioner was examined and he was reinstated in the service,
however, he failed to resume his duties within the time prescribed. He
further contended that in terms of the order dated 29.09.2018 passed
in earlier filed writ petition SWP No.164/2018, the case of the
petitioner was considered but was established that under the relevant
recruitment rules it is a mandatory obligation for a candidate to be
physically fit/SHAPE-I medical category for the appointment in BSF,
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which requirement in the present case is lacking, accordingly, the case
of the petitioner was rejected by the respondents.
15. Learned counsel for the respondents further contends that once the
petitioner was reinstated in the service, he should have without losing
a moment and quick as a flash, resumed his duties sensing the
significance of the same. Finally, learned counsel for the respondents
submits that the present petition, in view of the aforementioned facts,
is without any merit and prayed for its dismissal.
16. The facts that crystallized for the disposal of this petition are that the
petitioner was appointed as Constable (GD) by the respondent-Border
Security Force on 23.02.2013 and after his recruitment, he reported at
STC BSF, Bangalore on 03.03.2013 for undergoing basis training.
However, immediately after his arrival, he reported to be sick and on
being referred to Bowring & Lady Curzon Hospital, Bangalore on
06.03.2013, where he was diagnosed as a case of 'non-union fracture
PP with infection' and his 5th ray amputation of left foot was done on
20.03.2013 and, finally, he was placed in low medical category w.e.f.
04.04.2013 and relegated to next junior batch; that on a 'Court of
Inquiry' conducted by the respondent-BSF, it was found that the
injury sustained by the petitioner was before he joined the respondent-
BSF, as such, he was discharged from service on 10.12.2013 without
any pensionary benefits.
17. Against his discharge from service without pensionary benefits, the
petitioner made a representation for his re-instatement in BSF and his
representation was allowed and he was reinstated. The petitioner's
case is that he had not received the communication, whereby, he had
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been reinstated and he could not join the services, whereas the case of
the respondent is that despite service of the communication through
registered post dispatched to his residential home address, the
petitioner had chosen not to join the duties.
18. The petitioner in the year 2018 filed SWP No. 164/2018, which was
disposed of by this court vide order dated 29.09.2018, directing the
respondents to treat the said writ petition as representation on behalf
of the petitioner and accord consideration to his claim in accordance
with relevant rules.
19. Pursuant to directions passed by this court, the respondents considered
the matter and passed the order impugned herein, whereby, it was
decided that the petitioner could not be appointed to a clerical/other
post being impermissible under the relevant rules. The learned counsel
for the petitioner on his behalf has canvassed mainly on the point that
the petitioner on his restatement had not been communicated, as such,
he could not join back his duties. However, in his Writ Petition (SWP
No.164/2018), he had not raised any such issue and had prayed a relief
that he should be appointed on some clerical/other post and on
consideration of the direction passed by this court, the respondents
rejected the plea raised by the petitioner holding that the same was not
permissible under the relevant rules as all the posts in the BSF fall
under the Combat and with a disability which the petitioner had
suffered did not permit him to be appointed on such post. The learned
counsel for the petitioner has failed to substantiate from any of the
provisions of the Border Security Force Act, 1968 or Border Security
Force Rules, 1969 that such a relief is permissible in favour of a
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person having disability. The petitioner in his representation and as
pleaded in SWP No. 164/2018 had admitted to have suffered the
disability. The learned counsel for the petitioner has also not been able
to substantiate the plea of the petitioner that any such order having
been passed in favour of a person having similar medical condition by
the Respondent-BSF so as to enable this court to consider the matter
in the light of the prayer made by the petitioner.
20. Having regard to the aforesaid discussion and rival submissions made
by learned counsel on both sides, this court is of the considered
opinion that the petitioner has failed to make out a case for any
interference in the impugned order dated 21.12.2018 or to command
the respondents to reinstate the petitioner against some clerical/other
post which can be manned by a person of such a medical condition of
which the petitioner had suffered.
21. Viewed thus, the petition is found to be without any merit and
substance and is liable to be rejected. As a result, the petition is
dismissed along with connected application(s).
( M. A. CHOWDHARY )
JUDGE
Srinagar
20.12.2025
Muzammil. Q Whether the Judgment / Order is Reportable: Yes / No
