PIJUSH K PURKAYASTHA Vs. UNION OF INDIA

JUDGEMENT

(1.) Aggrieved by the order dated 22.9.2009 issued by the Director General of Border Security Force (respondent 2) posting him as Officer on Special Duty (OSD) to the Frontier Headquarters, Shillong, the petitioner is filing this writ petition for appropriate relief.

(2.) The facts and circumstances prompting the petitioner to file this writ petition, as pleaded by him, may be briefly noticed at the outset. The petitioner is currently serving as Deputy Inspector-General (DIG) at the Sector Headquarters, Shillong. He is a permanent resident of Dhubri in the State of Assam, and the respondents have their office at Guwahati, which is close to his hometown. He is due to retire on 31.12.2009 on superannuation and, as such, he had verbally requested the respondent No. 2 on several occasions to post him near his home town in terms of the provisions under Rule 10 under the head of Terminal Posting of the Notification dated 15.3.2000 issued by the Ministry of Home Affairs. Apparently accepting his requests, the respondent No. 2 issued an order posting him at Tura, but the same was cancelled immediately whereafter he was posted back to his previous place of posting as ADIR (OPS) at North Bengal. After completing tenure of four years, he was posted as DIG at Sector Headquarters, BSF, Shillong on 2.6.2008. Though he has always been performing his duties with full diligence, sincerity and honesty, he was surprised to receive a message bearing dated 22.9.2009 on 23.9.2009 posting him as OSD at the Frontier Headquarters, Shillong without assigning any reason therein. According to the petitioner, his Headquarters is already having five posts of Deputy Inspectors General out of which one post is still vacant and he ought to have been accommodated against this vacant slot, more so, when the other transferred officers have not yet joined their respective posting places. In fact, the officer, who has been transferred to fill up the vacant post of DIG in terms of the impugned order, is junior to him. It is contended by the petitioner that the post of OSD is not an authorized post or a rank or a portfolio, but is an ex-cadre post and that an Officer is normally posted as OSD when special circumstances arises, and such post is treated as a post without a job. It is also contended by him that as he has only three months left for attaining the age of superannuation and as he has a good service record, he is entitled to be posted near his hometown. These are the sum and substance of the case of the petitioner.

(3.) In resisting the writ petition, the respondents in their affidavit-in-opposition do admit that the petitioner was transferred to and posted as OSD by the order dated 22.9.2009 but they assert that when he refused to hand over the charge to his reliever, he was relieved with immediate effect vide the order dated 28.9.2009. They, therefore, deny that he continues to hold the post of DIG, Sector Headquarters. It is asserted by the answering respondents that they are the best judge to assess the suitability or competence of the officers to hold a particular position or post, and he has no right to resist his transfer or re-allocation of duties in the best interest of the service on operational requirement; his conduct under the circumstances amounts to insubordination. It is pointed out by the answering respondents that he has not been transferred out of Shillong, but he continues to be placed at the Frontier Headquarters, Shillong and, as such, there is no question of causing any inconvenience or hardship to him. They flatly deny that he was transferred against an unauthorized post and claim that the creation of the post of OSD is resorted to assign certain special duty to a particular officer in public interest. They also deny that they are required to assign any reason for transferring a particular officer and submit that as per Rule 18 (2) of the Border Security Force (Tenure of Posting and Deputation) Rules, 2000, the respondent No. 2 is empowered to order transfer of all personnel anywhere including turnover from/to static formations and on extreme compassionate grounds. It is also submitted by the answering respondents that as per Rule 19 of the amended BSF (Tenure of Posting and Deputation) Rules, 2002 notified on 4.7.2002, the respondent No. 2 is further empowered to extend or reduce the tenure of any member of the Force in certain terms, if he is satisfied that it is so required in the interest of the Force. The respondent No. 2 has already approved the posting of the petitioner keeping in view the interest of the Force, more particularly, the operational commitments. It is pointed out by them that it is the usual practice of the Government to post even a senior officer as OSD and, in fact, recently two officers of the rank of Inspector General were posted as Officer on Special Duty at Force Headquarters due to operational and administrative requirements.