Daljit Singh vs Union of India

Sujoy Paul, J.—With the consent of parties, matter is finally heard. The facts are in a narrow compass. The petitioner is aggrieved by his transfer order dated 27.7.2013. The singular ground assailing this order is that the petitioner was appointed as Instructional staff and the respondents have framed statutory rules, namely, Boarder Security Force (Tenure of Posting and Deputation), Rules, 2000 (for short, the "2000 Rules"). These rules were amended by notification dated 4.7.2002.

Shri A.S. Bhadoria, learned counsel for the petitioner submits that as per the proviso inserted in Rule 5, sub-rule (1), it is clear that the members of the Force appointed as Instructors in the training institutions of the Force, their tenure with a static formation shall be four years. It is contended that petitioner joined as Instructor only in 2011 and not completed four years and, therefore, the transfer order runs contrary to the statutory provision.

Shri Chetan Kanungo, learned counsel for the respondents submits that the petitioner could not fulfill the medical requirement required for the post of Instructor and, therefore, he could not be treated as Instructor. Reliance is placed on the medical report (Annexure R-1) dated 23.1.2013. This report indicates the medical category of the petitioner.

In the light of aforesaid factual backdrop, it is to be seen whether the transfer of the petitioner is in accordance with law.

This is settled in law the transfer order can be interfered with only if it violates any statutory provision, changes service conditions of the employee to his detriment, passed by an incompetent authority or proved to be malafide. This is not in dispute between the parties that the notification dated 4.7.2002 (Annexure R-5) is a statutory notification whereby the Rules of 2000 were amended. The relevant portion reads as under:-

Provided further that in the case of the members of the Force appointed as instructors in the training institutions of the Force, their tenure with a static formation shall be four years.

Thus, it is clear that the statute provides four years fixed tenure to Instructors. The only question is whether the petitioner can be treated to be an Instructor on the date transfer order is passed. Shri Kanungo has taken pains to show that once the medical report shows that the petitioner does not meet the requisite medical standard, it goes without saying that he is no more an Instructor.

I am not impressed with the aforesaid contention of Shri Kanungo. The petitioner was posted/deputed as Instructor vide Annexure P-2. No order is shown by which the said authority of Instructor is taken away from the petitioner or he is repatriated to his substantive post. The order Annexure R-7 dated 6.9.2013 shows that the representation regarding Instructor has already been sent to the head quarter. The document dated 26.9.2013 (Clause 2-B) shows that the petitioner''s case is sent for de-empanelment to the BSF Headquarter (Training Directorate). If the case for de-empanelment is sent to the Headquarter, this itself shows that the petitioner is not de-empanelled till 26.9.2013. Thus, it can be safely concluded that on the date of transfer, i.e., 27.7.2013 the petitioner was very much an Instructor. Thus, the statutory umbrella/protection of 2002 Amendment is very much in his favour. Thus, the transfer is contrary to statutory rules and, therefore, needs to be interfered with. I do accordingly. The impugned transfer order, for the reasons stated above, is set aside. Petition is allowed. No costs.