Gauhati High Court
Rabindra Singh vs The Union Of India And 7 Ors on 29 January, 2019
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/5
GAHC010152622017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7700/2017
1:RABINDRA SINGH
H.C/G.D REGT. NO.951095100, S/O. RAJBALI SINGH, R/O. 1ST BN. NDRF, BSF
CAMP, PATGAON, P.O. and P.S. AZARA, DIST. KAMRUP M, ASSAM, PIN-
781017.
VERSUS
1:THE UNION OF INDIA and 7 ORS.
REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI-66.
2:THE DIRECTOR GENERAL
BORDER SECURITY FOR MEDICAL DIRECTORATE
LODHI ROAD COMPLEX
BSF H.Q
NEW DELHI-66.
3:THE DIRECTOR GENERAL OF NDRF
NEW DELHI-66.
4:THE INSPECTOR GEN. MEDICAL DIRECTORATE BSF
EAST BLOCK-9
LEVEL-4
R.K PURAM
SECTOR-I
NEW DELHI-66.
5:THE COMMANDANT
MEDICAL DIRECTORATE
BSF
NEW DELHI-66.
6:THE INSPECTOR GENERAL MEDICAL DIRECTORATE BSF
EAST BLOCK-9
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LEVEL-4
R.K PURAM
SECTOR-1
NEW DELHI-66.
7:THE COMMANDANT
1ST BN. NDRF
PATGAON
GUWAHATI-17.
8:THE CHIEF MEDICAL OFFICER
SELECTION GRADE
UNIT HOSPITAL
1ST BN. NDRF
PATGAON
GUWAHATI-17
Advocate for the Petitioner : MR.M U MAHMUD
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 29-01-2019 Heard Mr. M. U. Mahmud, learned counsel for the petitioner. Also heard Mr. D.C. Borah, learned CGC appearing for respondent Nos. 1 to 8.
2. In this petition, the petitioner has challenged the repatriation of the petitioner to his parent cadre vide order dated 02.02.2015.
3. The petitioner was initially serving as a Constable in the 1 st BN.NDRF under the establishment of Border Security Force. As per certain scheme for sending on deputation to the post of Head Constable (Nursing Assistant) by way of selection, the petitioner, who was serving as a Constable was selected for appointment on deputation to the post of Head Constable (Nursing Assistant) for a period of 3 (three) years vide order dated 17.07.2013.
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4. As per the aforesaid order of deputation dated 17.07.2013, the petitioner was directed to assume charge of Head Constable (Nursing Assistant) at the present place of posting on deputation and he was to be relieved for joining the new place of posting after hearing from the Directorate. Since, the petitioner was already posted in 1 st BN.NDRF, he took charge as Head Constable (Nursing Assistant) in the said 1 st BN.NDRF on 29.07.2013. It seems that because of certain requirements in the Battalion, the petitioner was not relieved for joining the new place of posting by which he was posted at 159 Battalion, BSF (by cancelling the earlier posting at 164 Battalion). Though the petitioner was ready to join the new place of posting at 159 Bn. BSF, he was not relieved by the Battalion authority for joining in the new place of posting because of operational requirements in the 1 st Battalion, NDRF as mentioned in the official letter dated 20.02.2015, written by the Officiating Commandant, 1 st BN.NDRF to the Headquarter, DG, BSF, Medical Directorate in which it has been stated as follows:
"2. In this regard, it is submitted that No.951095100 HC/NA Ravinder Singh of this unit was selected/appointed on deputation to the post of HC/NA and further posted to 164 Bn BSF vide HQ DG BSF (Medical Dte), New Delhi Order No. 17/45(HC/NA)/Med/BSF/ 13/9334-9607 dated 17/07/2013. Further, as per para No. 04 of order under reference, the individual was directed to assume charge of HC/NA at this unit on deputation with further direction to relieve him to his new place of posting on hearing from HQ DG BSF (Medical Dte), New Delhi.
3. Accordingly, the individual had assumed charge of HC/NA at this unit on 12/08/2013 and formal order regarding his deputation as HC(NA) was issued vide this office order No. Estt/228/Deptn/1st NDRF/13/14354-59 dated 16/11/2013. Subsequently, posting order of individual from this unit to 164 Bn BSF on deputation as HC/NA was cancelled and further posted to 159 Bn BSF vide HQ DG BSF (Medical) Dte), New Delhi, Signal No. A/1733 dated 05.08.2013.
4. In this regard, it is imperative to mention herein that due to large number of vacancies of paramedic staff existing in unit, the individual could not be relieved for joining his new place of posting, so far, on functional requirement."
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5. Though the petitioner was repatriated by the impugned order dated 02.02.2015 on the ground that the petitioner did not assume charge of Head Constable (NA) after lapse of considerable period of time, it is the case of the petitioner that the petitioner could not be faulted with as the petitioner was willing but was not relieved by the authorities to enable him to join the new place of posting, which is amply supported by the aforesaid letter dated 20.02.2015 written by the Officiating Commandant of 1st Battalion, NDRF.
6. Learned CGC appearing for the respondents, however, submits that no effective relief can be granted to the petitioner at this stage for the reason that the aforesaid period of 3 (three) years' deputation has already expired by this time and secondly, the petitioner had himself participated in the subsequent selection process for deputation held in the year 2015 as well as 2017 and on both the occasions, the petitioner was not selected for deputation.
7. Learned CGC submits the fact that the petitioner had participated in the subsequent selection processes held on 2015 and 2017, would clearly indicate that he had waived his right which might have accrued in his favour due to the wrongful repatriation order.
8. Heard the learned counsel for the parties and considered the materials on record.
9. From the records, it is evident that the inability of the petitioner to join the new place of posting in 159 Battalion was not because of any fault on the part of the petitioner as he was ready and willing to join the new place of posting. The said inability to join new place of posting was because of non-relieving by the concerned authority as clearly mentioned in the letter of the Officiating Commandant of 1 st Battalion NDRF dated 20.02.2015. To that extent, this Court is satisfied that the impugned order could not have been issued repatriating the petitioner before completion of 3(three) years deputation period as petitioner could not be faulted with for non-joining at the new place of posting which is the reason for issuing the repatriation order. However, this fact also cannot be ignored that now 3 (three) years' have already passed after issuance of the deputation order dated 17.07.2013 and the said Page No.# 5/5 deputation is only for 3 (three) years.
10. It has been submitted by the learned CGC, the petitioner had himself appeared for selection for deputation again in the year 2015 as well as 2017.
In that view of the matter, it can be also considered that he did not wish to pursue the matter relating to the deputation order dated 12.07.2013, thus waived his rights relating to the said deputation order. However, the fact also remains that the impugned repatriation order was issued in spite of no fault on the part of the petitioner.
11. Under the circumstances, it is expected that as and when the petitioner applies again for selection for appointment of Head Constable (Nursing Assistant) on deputation, his case will be sympathetically considered so that he may get the opportunity to serve in the said post as had been offered to him on the earlier occasion.
12. It has been also submitted by the learned counsel for the petitioner that petitioner has been in the Nursing Cadre since 2006 till date and accordingly, it is expected that the authorities will consider continuous utilisation of his service in the Nursing Cadre considering his vast experience gathered in this regard and thus retain in this nursing service of the organisation.
13. With the above observations and directions, the present writ petition stands disposed of.
JUDGE Comparing Assistant