Calcutta High Court (Appellete Side)
Mithilesh Singh & Ors vs The Union Of India & Ors on 17 June, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
40 17.06.2014
gd W.P. 16888 (W) of 2014
Mithilesh Singh & Ors.
Vs.
The Union of India & Ors.
Mr. Subhabrata Datta,
Mr. Arka Bhattacharya
..for the Petitioners
Mr. Anup Kumar Biswas
..for the Respondents
The action of the respondent authorities appears to be in complete derogation of the terms on which the petitioners and others similarly placed were lured into offering themselves on deputation as Head Constable (Nursing Assistant). The impugned action and decision of the respondents reveal that they have sought to deny the petitioners a right vested in them and the respondents have acted contrary to the promise held out to the petitioners in 2010.
Pursuant to a standing operating procedure issued on September 15, 2010, the eligibility criteria were declared for head constables below the age of 45 years and constables below the age of 40 years to apply for selection on merits for being posted on deputation in Border Security Force Para Medical Set Up as Head Constable (Nursing Assistant). Clause 6(b) of the SOP provided that on completion of the period of deputation, the deputationist had the option to continue in the BSF Para Medical Set Up by permanent 2 absorption as HC (NA) or be repatriated to the GD Cadre before absorption. Clause 6(f) of the document of September 15, 2010 recorded that absorption of willing and eligible personnel would be considered prior to completion of their deputation period and the consideration would be on the basis of the work performance and subject to the recommendation of a board of officers.
The petitioners claim to have applied for and obtained the deputation. The petitioners assert their right of option as recognised in the SOP.
The petitioners complain of an order dated May 11, 2011 passed by the Commandant (Medical) of BSF that the period of deputation may be terminated prematurely on the grounds of unsuitability and exigency of service and that, on completion of the period of deputation, the personnel will be reverted back to their parent cadre. The petitioners also refer to a message appearing as annexure "P-4" to the petition which contemplates that future filling up of vacant posts of Head Constable (NA) in BSF Unit Hospitals will only be on deputation basis.
According to the petitioners, since the petitioners had been induced to offer themselves on the promise that the petitioners will be eligible for absorption and the petitioners' candidature considered by a board of officers, the respondents cannot now resile from the 3 position as evident from the SOP of September 15, 2010 and do away with the process of absorption altogether.
There is considerable merit in the petitioners' submission. Once the petitioners had been induced by the contents of the document of September 15, 2010 to offer themselves to go on deputation to a BSF Para Medical Unit on the understanding that if the petitioners' performance was satisfactory the petitioners would be considered for absorption to the post of HC (NA), the petitioners cannot now be denied the opportunity on any ground whatsoever. The petitioners must be permitted to exercise the option and those willing to continue in the post must have their candidature assessed in accordance with the procedure recognised in the SOP of September 15, 2010.
Accordingly, the respondent authorities are directed to ensure that the petitioners are not repatriated to the original cadre unless the petitioners opt for the same or the petitioners' performance is found to be completely unsatisfactory and not conducive to the working atmosphere where the petitioners have been posted. It is made clear that any steps taken against the petitioners to repatriate the petitioners on the ground of their alleged poor performance will be presumed to be a counterblast to 4 the petition being instituted and the alleged poor performance will be required to be affirmatively established.
The respondents' decision to compulsorily repatriate all persons in the post of HC (NA) after the completion of their period of deputation is set aside. The respondents will be obliged to consider the candidature of those who opt for absorption, subject to the opinion of the board of officers as recognised in the relevant SOP of September 15, 2010.
W.P. 16888 (W) of 2014 is disposed of on the above basis and without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.) 5