UPENDRA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) THE petitioner has sought quashing of the order dated 30th August 2004 (Annexure -8) by which the petitioner was originally transferred from the Training Centre at Meru Camp, Hazaribagh to 105 Battalion in Jammu and Kashmir. The petitioner was aggrieved and earlier came to this court when the said order dated 30th August 2004 was given effect to by the movement order dated 8th January 2005 by which he was directed to join 105 battalion of Border Security Force to which the petitioner originally belonged. In WPS No. 338 of 2005 the movement order dated 8th January 2005 was under challenge. This court, instead of deciding the case on merit, remanded the matter to the respondents to take a decision on the representation of the petitioner by directing the Director General of Border Security Force to determine whether the petitioner is 75% disabled and thereby he can be posted for indoor job or job like Bus Conductor or he is to be posted for duty of a regular Army. This court had taken into account the submission of the petitioner that earlier, after having been declared 75% disabled on account of injury sustained in military operation in Jammu and Kashmir, as per the report of the Medical Board, he was transferred and permanently posted at Training Centre at Meru Camp, Hazaribagh by order dated 13th January 2001. The Court after having taken into account the submission of the petitioner that after posting him at Training Centre at Meru Camp, Hazaribagh on 30th January 2001, observed that what was the reason to permanently re -transfer him by the order dated 30th August 2004 to 105 battalion. However, the order dated 30th August 2004 was not under challenge in the said writ petition, although the movement order issued thereupon, was under challenge.

(3.) RESPONDENTS have supported the impugned order and have also filed their counter affidavit. The Rules of 2000 have been annexed to the I.A. filed on their behalf being I.A. No. 3375 of 2006 for directing the petitioner to vacate the Government quarters which he had occupied even after his transfer to the 43 battalion of BSF at Bareily (U.P.). Counsel for the respondents as well as the petitioner have taken this court to the relevant provision of Rule 18 of BSF (Tenure of posting and Deputation) Rules, 2000. Counsel for the respondents also submits that the petitioner had no right to remain at permanent place even after his disability. In case where personnel of BSF suffer from disability due to injuries sustained in combat operations, their cases are considered on the basis of the opinion of the Medical Board and are given posting in sedentary job like the petitioner who admittedly was himself posted in sedentary job vide order passed in January 13th January 2001 at the Training Centre at Meru Camp, Hazaribagh. Respondents further submits that perusal of the impugned order would indicate that there are huge number of personnel who are in low medical category and all these personnel cannot be retained at a particular place till their superannuation. It is therefore submitted that the Director General, Border Security Force have taken into account the disability of the petitioner as also the fact that he has been given sedentary duty earlier keeping into account 75% disability as determined by the Medical Board. He has been given therefore a soft job and assigned sedentary duty in 43.3 BSF battalion at Barely (U.P.) instead of 105 battalion of BSF which although was the parent battalion of the petitioner. Incidentally, parties submit that 105 battalion is placed at Jammu and Kashmir which is perhaps a field posting involving regular movement of battalion. According to the petitioner, he has been doing the job of Bus Conductor at Meru Camp, but after passing of the impugned order, he has not been allowed to discharge his duty despite the interim order passed earlier in WPS 338 of 2005 and he has not been able to draw his salary. Respondents further submits that since the petitioner was directed to join at his transferred place of posting keeping into account the order passed by this court after passing of the reasoned and speaking order dated 31st March 2005, however the petitioner has failed to do so and did not report at his transferred place of posting at 43.3 BSF battalion at Bareily (U.P.) and as soon as he joins at his transferred place of posting i.e. 43.3 battalion, he would be granted his salary as also other arrears of salary keeping into account the Rules of the organization.