Karnataka High Court
Mr. Shivaji Bajantri vs The Secretary on 19 August, 2021
Author: M.Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.4158/2021(S-TR)
BETWEEN:
MR. SHIVAJI BAJANTRI
AGED ABOUT 56 YEARS,
S/O LATE BASAPPA,
SUB INSPECTOR (GENERAL DUTY)
162 BATALLION, BSF YELAHANKA,
BENGALURU. ... PETITIONER
(BY SRI SUNIL KUMAR H., ADVOCATE (PHYSICAL
HEARING))
AND:
1. THE SECRETARY
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK,
NEW DELHI - 110 001.
2. THE DIRECTOR GENERAL, BSF
BLOCK NO.10, LODHI ROAD,
CGO COMPLEX, PRAGATHIVIHAR,
NEW DELHI - 110 003.
3. THE COMMANDANT
BSF, YELAHANKA,
BENGALURU - 560 063.
... RESPONDENTS
(BY SRI ADITYA SINGH, CGC (VIDEO CONFERENCING))
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE MOVEMENT ORDER DTD.9.1.2021 ISSUED BY
THE R-3 VIDE ANNEXURE-A; DIRECT THE R-2 TO
CONSIDER THE REPRESENTATION OF THE PETITIONER
DTD.12.11.2020 VIDE ANNEXURE-E.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.07.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
The petitioner in this writ petition calls in question a movement order dated 09-01-2021 transferring the petitioner from Bangalore to Kashmir and has also sought a consequential mandamus to consider his representation for retention in Bangalore.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:-
The petitioner joins the services of Border Security Force ('BSF' for short) in the year 1986 as a Constable and claims to have worked at various places across the country including Jammu and Kashmir and has now 3 completed 35 years of service in BSF and claims to be in receipt of several accolades. The petitioner submits a request for transfer to Bangalore on medical grounds, both of him and his wife. The petitioner submits to be suffering from arthritis and his wife being a patient of cancer.
3. By an order dated 03-11-2018 the petitioner was posted to Bangalore in 162 Bn BSF on permanent posting. When the petitioner was sought to be transferred out of Bangalore he submitted a representation for his retention on 12-11-2020 contending that he had not completed minimum tenure in Bangalore under the Rules and also sought intervention of the Competent Authority to consider his case sympathetically. This was not considered by the competent authority which resulted in the order dated 9.01.2021 being passed directing the petitioner to move with 194 Bn BSF on permanent posting terming it as 4 'own request' from Bangalore to Kashmir. It is this order that is called in question by the petitioner.
4. Heard Sri.Sunil Kumar.H., learned counsel appearing for petitioner and Sri.Aditya Singh, learned Central Government Counsel appearing for the respondents.
5. The learned counsel appearing for the petitioner would contend that the petitioner was posted to Bangalore on his own request on medical grounds, considering ailment of both the petitioner and his wife and cannot now contrary to the Rules, transfer the petitioner before completion of his minimum tenure. It is his further submission that once having declared that he comes under medical category, the exemption under the Rules begins to operate and sympathetic consideration in such cases is imperative. 5
6. On the other hand, Sri Aditya Singh representing the respondents refutes the submission made by the learned counsel for the petitioner and further contends that a soldier in the BSF cannot be seen to contend that he should be in a particular place as being member of the Force and he becomes open for transfer to any part of the country owing to exigencies of service. It is also contended that the petitioner has on one pretext or the other been in Bangalore for long time and this is the third stint at Bangalore and cannot now contend that he should be posted to the place of his choice.
7. I have given my anxious consideration to the submissions made by the learned counsel appearing for respective parties and perused the material on record.
8. Transfer being an incidence of service is now rendered a cliché by plethora of judgments holding it to be as such. But, such incidence is hedged by conditions 6 stipulated either in the operative guidelines, circulars or statutes governing such transfer. In the case at hand, transfer of personnel of the Force is governed under the Border Security Force (Tenure of posting and Deputation) Rules, 2000 (hereinafter referred to as 'the Rules' for short). These Rules are brought into force in exercise of powers conferred under clause (a) of sub- section (2) of Section 141 of the Border Security Force Act, 1968. Therefore, the Rules so formulated are statutes. The case at hand is governed not by guidelines or circulars, but by the said Statutes. Certain clauses of the Rules that are germane for consideration of the lis, are extracted herein for the purpose of quick reference and they read as follows:-
"5. Contingencies for posting out of parent battalion:- Save as contained in Rule- 4, the competent authority may consider inter- battalion posting of the members of the Force on the following grounds:7
(1) Routine transfer to static formations due to turnover of the members of the Force on completion of field service. The posting to static formation shall be for a period of three years only and thereafter, the member of the Force shall revert to his parent Battalion:
Provided that in the cases of members of the Force who belong to ministerial cadre, their tenure with a static formation shall be four years.
(2) On grounds of operational/training requirement, misconduct and discipline.
(3) On medical grounds as provided for in Rule 11.
6. Tenure:- The tenure for a Battalion shall be as under:-
(i) Extreme hard area - Two years. (ii) Hard Area - Three years.
(iii) In a frontier - Maximum six years. 8
... .... ...
...
10. Terminal posting: - Members of the Force having good record of service and free from disciplinary/vigilance angles may be given posting near their home town, two years before attaining the age of superannuation subject to availability of vacancy of the post in such place an suitability for the job as assessed by the competent authority.
11. Posting and Transfer of Low Medical Category personnel:- A member of the Force who is placed in low medical category by duly constituted medical board may be considered for posting from a Battalion deployed in extreme hard or hard area to Battalion deployed in a normal area or a static formation keeping in view the recommendations of the medical board.
Provided that the tenure of posting in a normal area or static formation under the 9 provisions of this rule shall not exceed three years except in case of the members of the Force who are placed in low medical category due to injuries suffered in operations or on duty.
Provided further that the competent authority shall take necessary steps to process the cases of members of the Force who are placed in low medical category due to reasons other than operational or on duty and whose medical category is not improved and do not become fit enough for posting to parent units after completion of a tenure of three years for retirements on grounds of physical unfitness under the provision of Rules 18 and 25 of the BSF Rules, 1969.
Provided further that personnel having less than 10 years of service shall be allowed to complete 10 years of service and those having more than 10 years of service shall be allowed to complete 20 years of service before initiating action for retirement on grounds of 10 physical unfitness and the tenure rules shall not apply to such personnel."
(Emphasis supplied ) In terms of the aforesaid provisions of the Rules, the case at hand requires consideration.
9. The petitioner while working at Punjab submitted a representation for posting him on terminal and medical grounds. The representation submitted by the petitioner on 29-08-2018 reads as follows:
"Respected Sir, With profound sagacity and humble submission, I No.86102289, SI/GD Shivaji B.Bajantri, of 118 Bn BSF, Jalalabad, Punjab Ftr beg to state the following few lines for your kind consideration and sympathetic action please.
My case of posting/transfer to STS BSF, Bengaluru, STC, BSF Bengaluru or STC, BSF, Chakurwas recommended by Inspector General, STC, BSF, Bengaluru and sent to 11 your office vide DO.No.Pers/STC Bglr/Misc /2018/340 dated 26 April 2018 for treatment of my wife who is suffering from breast cancer. The relevant documents are attached herewith for your kind perusal. Further I have been asked to submit three choice of unit vide FHQ Pers Dte (Estt Sec) sig No.R/3412 dated 03.07.2018. Accordingly FHQ Pers Dte (estt Sec) has been requested to consider TFR HQ (SPL-OPS) BSF, Odisha, SHQ BSF Trivandrum or SHQ BSF, Chennai. However, my request was not considered and FHQ Pers Dte (Estt Sec) vide Sig No.R3419 dated 24-08-2018, asked me to submit 03 choice of units again. In this regard, it is to mention here that my date of superannuation retirement is on 31 May 2022 and I have to take care of my wife who is suffering from cancer since June 2009 and undergoing treatment in Kidwai Institute of Oncology, Bengaluru and settle the life of 03 daughters who are jobless and on marriage age before my retirement. My choice of posting are FTR HQ (SPL-OPS), BSF, Odisha, SHQ BSF, 12 Chennai, STC, BSF, Chakur or STC, BSF Bengaluru. Any place of posting other than the mentioned 04 places will not solve the problems of my life and dependents.
In view of the above, I request your kind honour to consider my plea of posting on terminal/medical grounds to treat my wife who is suffering from cancer and settle the life of 03 daughters who are on marriage age within the three year duration of my superannuation retirement on 31 May 2022 please."
(Emphasis added) Owing to aforesaid narrations in the representation, posting was given to the petitioner at Bangalore from Punjab on 3-11-2018. The movement order of the petitioner from Bangalore depicts two important facets - the movement order being a permanent posting and his name being struck off from the strength of the unit in 13 which he was working earlier and owing to the representation given by the petitioner (supra), the petitioner in terms of the movement order reported for duties at Bangalore and continued to function at Bangalore.
10. The petitioner was again sought to be transferred from Bangalore to Kashmir placing him in another battalion pursuant to which the petitioner again requested the Competent Authority to retain him in Bangalore for the reasons indicated in the representation since the case of the petitioner was to be considered on medical grounds. I deem it appropriate to extract the representation dated 12-11-2020 for the purpose of ready reference:
"Respected Sir, With due respect and humble submission I would like to state the following few lines for your kind consideration and sympathetic action please.14
2. That Sir, I, No.861022896 S1/GD Shivaji B.Bajantri was posted from 118 Bn.BSF to 162 Bn. BS BSF on medical grounds as my wife is suffering from Brest Cancer since 2009 as well as I am also suffering from severe Osteo Arthritis on both knees and intervertebral disc prolapsed (L4,L5) since last six to seven months. At present my wife is under treatment at Kidwai Memorial Institute of Oncology at Bangalore and I am also taking treatment from Bangalore Medical College & Research Institute (Victoria Hospital, Bangalore).
Since 162 Bn.BSF was earmarked for movement from out of this Frontier I have submitted an application for posting to the in- coming battalion in place of 162 Bn BSF on the grounds of above problems. My case has been considered by FHQ and I have been posted to 194 Bn. BSF with the instruction to join the unit on arrival of advance party, vide FHQ Pers Dte (Estt Section) Signal No.R/3407 dated 25 March, 2020. As the battalion 15 movements have been deferred till March 2021 due to Covid-19 pandemic I was performing my duties in 162 Bn.BSF. But, unfortunately I have been asked to join 194 Bn BSF, Kashmir as per the instructions issued by FTR HQ BSF Spl Ops (Odisha). If I have to join 194 Bn at Kashmir it is quite impossible to conduct the treatment of my ailing wife. As my posting was on request basis I won't get transfer TA or joining period on my reporting to 194 Bn at Kashmir.
4. Now 162 Bn BSF is compelling me to join 194 Bn BSF, Kashmir urgently. So please sort out my case of posting as soon as possible. I have the expectation in your majesty to help me and consider my posting.
5. I would also like to submit that during the last 3 to 4 years I have frequently been posted on medical grounds to various units like 118 Bn BSF at Coimbatore, Tamil Nadu from 15 Aug' 2016 to 28 Sept' 2016, 118 Bn at Jalalabad, Punjab from 29 Dec' 2018 to 16 03 Nov' 2018 and further at 162 Bn.BSF, Thrissur from 04 Dec' 2008 to till date. These frequent movements have been badly affected my wife's treatment. Hence, it is my humble request that I may kindly be posted to either STC BSF Bangalore or FTR HQ BSF at Bangalore on compassionate/medical grounds so that I could conduct our treatments without hindrance and discharge my duties tense less.
6. I shall be highly obliged to you for this act of kindness. Thanking you, Sir."
(emphasis added) Thus, the petitioner beseeched before the Competent Authority for his retention at Bangalore on medical grounds, both of him and his wife. In the light of the request being on medical grounds, it is germane to notice recognition of the said medical grounds by the BSF itself.
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11. The petitioner had a previous stint in Bangalore between 2004 and 2008. At that point in time, the wife of the petitioner was diagnosed with carcinoma of the breast and took treatment at the Cancer Institute of the State viz., Kidwai Memorial Institute of Oncology and plethora of documents are placed on record to demonstrate that the wife of the petitioner is even now taking treatment for the dreaded ailment and the treatment of the wife of the petitioner is not in dispute.
12. The petitioner also claims to have certain ailments which insulated him from transfer of the kind that is made. The petitioner was subjected to assessment by a Medical Board on the ground that he was suffering from acute arthritis. The Medical Board assessed the ailment of the petitioner and declared that his was a case of 'Obesity' and downgraded him under medical category. Once the Competent Authority 18 accepts the report of the Medical Board and downgrades the petitioner owing to medical category, the protection under the aforesaid Rules insulate such transfer being made of the personnel who are downgraded owing to medical problems. In terms of Rule 11 (supra), a member of the Force who is placed in low medical category by a duly constituted Medical Board may be considered for posting from a battalion deployed in extreme hard or hard area to a battalion in the normal area or a static formation in terms of the recommendations of the Medical Board. The proviso to Rule 11 would also mandate that the tenure of posting in the normal area or a static formation shall not exceed three years except in cases of members of the Force who are placed in low medical category due to injury suffered in operation or on duty.
13. If the case of the petitioner is considered in terms of Rule 11, it would become unmistakably clear 19 that the petitioner is entitled for a protection under the said Rule. The petitioner is declared to be a low medical category personnel after being assessed by the Medical Board and in terms of Rule 5 (supra) the minimum tenure in a place is three years. Rule 10 also deals with members of the Force having good record of service and free from disciplinary and vigilance angle may be posted near their home town, two years before they attain the age of superannuation, subject to availability of vacancies. Therefore, the petitioner in terms of the Rules, at the outset, was entitled to continue in Bangalore for a period of three years and according to Rule 10 he is insulated from transfer/movement as he is admittedly due to retire in the month of May 2022 and according to Rule 11 he has been declared to be a low medical category personnel.
14. The impugned movement order dated 09-01-2021 is clearly in violation of the aforesaid Rules, 20 apart from being contrary to the reason for which the petitioner was posted to Bangalore in the year 2018. Since the petitioner gets protection under the aforesaid Rules, the impugned movement order would lose its legal legs to stand.
15. This Court, while entertaining the writ petition, granted an interim order of stay with a rider that stay would become operational if the petitioner had not been relieved as the impugned movement order was dated 09-01-2021 and the writ petition was filed on 20-02-2021. However, in the impugned order itself the petitioner had been relieved. He has also filed an application for modification of the interim order. Since discipline is paramount in BSF the period between grant of interim order and disposal of this writ petition shall not be put against the petitioner as violation of movement order in the event the petitioner has not reported for duty.
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16. In the light of the aforesaid narration that the wife of the petitioner being a patient of cancer, though having suffered cancer in the year 2009 which is not in dispute, is under treatment even today at Kidwai Memorial Institute of Oncology, Bangalore, it is always said that once a patient of cancer is always a carcinoma patient and the petitioner himself being downgraded under low medical category is entitled to protection under the Rules. Therefore, BSF ought to have deployed a streak of sympathy in the peculiar facts of the case of the petitioner, notwithstanding the fact that the petitioner being a part of the battalion will have to move once the battalion moves.
17. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed and the movement order dated 09-01-2021 stands quashed.22
(ii) All further proceedings taken up pursuant to movement order dated 09-01-2021 also stand quashed. The petitioner shall continue in his place of posting prior to the passing of the impugned order dated 09-01-2021.
(iii) The petitioner is entitled to all consequential benefits that would flow from the quashing of the impugned order dated 09-01-2021.
In view of disposal of the writ petition, I.A.No.1/2021 and I.A.No.2/2021 also stands disposed.
Sd/-
JUDGE bkp CT:MJ