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Judgment
This intra-court appeal is directed against order dated 19.1.18 passed by the learned Single Judge of this Court whereby the writ petition preferred
by the respondent questioning the legality of transfer order dated 10.3.17, relieving order dated 28.3.17 and movement order dated 13.6.17 has been
allowed and the orders impugned have been quashed. Further, the appellants herein have been directed to allow the respondent to complete his
statutory tenure of posting of four years at the present location of STC BSF, Jodhpur.
Briefly stated the facts of the case are that the respondent entered the services of Border Security Force (‘BSF’) as Constable (GD) on
14.7.03. The respondent was selected as Sub Inspector (LDCE) and after undergoing basic recruitment training at STC, BSF, Tekanpur from
29.12.10 to 16.7.11, was posted at 28 Bn BSF. While on active duty, a unknown civilian hit the respondent by motor cycle, consequently, he suffered
severe injury in right ankle. He was hospitalized and operated, however, the injury and dislocation could not be cured. The respondent underwent
treatment for around six months. In the meantime, he was empanelled as Instructor for PW & PC (Tac) by Training Dte FHQ BSF and was
transferred to STC BSF, Jodhpur. The respondent joined STC BSF, Jodhpur on 11.7.16. However, before joining, the respondent while on
Government duty, on 12.12.15 sustained injury on his right leg on account of rash and negligent driving of an unknown civilian. Due to said injury, the
respondent has been awarded medical category as S1 H1 A2 (L)(P)P1E1 w.e.f. 10.3.17 to 10.3.19 with 19.69% permanent disability because of
“Effects of fracture Rt. Fibula and Medial Malleolus Rt. Side (optd) implant in situâ€. The respondent was promoted to the rank of Inspector (GD)
vide order dated 8.2.17. The respondent was allocated to HQ BSF SDG (EC) and adjusted in 93 Bn BSF vide order dated 20.3.17. However, since
the respondent was not medically fit and undergoing medical treatment in All India Institute of Medical Science, Jodhpur (“AIIMS, Jodhpurâ€), he
submitted hisunwillingness to move for compulsory field posting. He represented for cancellation of his posting from STC BSF, Jodhpur to 93 Bn BSF,
which was forwarded to FHQ BSF vide letter dated 22.3.17. The representation made by the respondent for cancellation of posting was rejected vide
Signal No.R/3445 dated 10.4.17. The respondent vide application dated 12.4.17 requested for personal interview of DG, BSF. Vide yet another
application dated 12.4.17, the respondent requested for retention in STC BSF, Jodhpur for one month for undergoing surgery at AIIMS, Jodhpur. The
request of the respondent was acceded to. On the application preferred by the respondent for DG’s interview, vide communication dated 18.5.17,
FHQ, BSF requisitioned information regarding vacancy position of Instructors in STC, Jodhpur alongwith specific recommendation of IG, STC,
Jodhpur. IG, STC Jodhpur vide communication dated 24.5.17 furnished the information regarding vacancy position and recommended for cancellation
of respondent’s posting orders. It was specifically pointed out by the IG, STC BSF, Jodhpur that as against authorised 10 Inspectors (GD) and 32
Sub Inspectors (GD), 32 Inspectors (GD) and 2 Sub Inspectors (GD) are posted at STC BSF, Jodhpur and thus, there was still shortage of 8
Instructors against authorised post of Inspectors/SIs. It was further clarified that 12 Inspectors (GD), who were recently promoted have been adjusted
in STC Jodhpur against vacancy of SI (GD) vide FHQ BSF Signal No.R/3439 dated 10.2.17. It was emphasized that the basic training of 1008
recruits is scheduled to commence w.e.f. 5.6.17 for which authorised staff is essentially required for imparting qualitative training. However, after
examination of the case, therespondent’s request was rejected and he was directed to be relieved forthwith. In these circumstances, the
respondent preferred the writ petition questioning the legality of action of the appellants as aforesaid.
The appellants filed a reply to the writ petition taking the stand that the cancellation of posting order of the respondent was processed and rejected
by the competent authority as the respondent has not completed his mandatory Field Service in promoted rank, which is necessary to earn next higher
post by the respondent. The respondent was relieved on 13.6.17. The application preferred by the respondent for reconsideration of cancellation of his
posting order was also rejected vide Signal No.R/3443 dated 5.7.17. It is submitted that on promotion to the rank of Inspector (GD) and not having
vacancy in promoted post of the respondent in STC BSF, Jodhpur, he was posted out to 93 Bn BSF.
The respondent-writ petitioner contended before the learned Single Judge that para 2(b) of General Criteria dated 12.5.15 entitles the petitioner to
remain on panel of Instructors till completion of normal tenure of four years and therefore, he could not have been transferred for field posting. The
appellants opposed the submission of the respondent stating that the Border Security Force (Tenure of Posting and Deputation) Rules, 2000, (for short
‘the BSF Rules’) are not applicable in case of promotion. It was contended that there was no vacancy available at STC BSF, Jodhpur and
therefore, the respondent who was promoted to the post of Inspector could not be accommodated. The learned Single Judge arrived at the conclusion
that the appellants herein, are under an obligation to follow the Rules of 2000, and the criteria laid down vide letter dated 12.5.15, which specifically
provides that the members of the force appointed as Instructor in training institute may continue to remain on panel of Instructor till completion of
normal tenure. That apart, the learned Single Judge opined that the respondent who has sustained 19.69% permanent disability was entitled for
sympathetic treatment and there was no such administrative exigency justifying the transfer. Accordingly, the orders impugned have been quashed.
Hence, this appeal.
Learned counsel appearing for appellants contended that the finding arrived at by the learned Single Judge runs contrary to the provisions of Rule 9
of BSF Rules, which mandates that a member of the Force upto and including the post of Second-in-Command while posted in static formation shall
be posted to a duty Battalion on promotion to the next higher rank and the tenure rule shall not be applied in promotion cases. Learned counsel
submitted that criteria 2(b) laid down in letter dated 12.5.15 relied upon by the learned Single Judge governs and regulate the tenure of posting within
the same rank and pertains to extension of empanelment period only and does not stipulate anything about allowing completion of posting on
promotion. It is submitted that Rule 9 of the BSF Rules exclusively deals with posting on promotion and specifically prohibits application of tenure rule
in case of promotion and therefore, Rule 5 of BSF Rules as well criteria 2(b) of letter dated 12.5.15 does not apply to case of posting on promotion.
Learned counsel submitted that executive instructionsissued vide letter dated 12.5.15 cannot override mandate of Rule 9 of BSF Rules, which does not
provide for an immunity from field posting on promotion to the member of the Force functioning as an Instructor. Learned counsel submitted that the
impugned order has been passed by the learned Single Judge relying upon decision of Madhya Pradesh High Court in the matter of ‘Satyendra
Nehra Vs. Union of India & Ors.’ (WP No.4073/2017, decided on 9.10.17), which stands set aside by a Bench of Madhya Pradesh High Court
vide judgment dated 19.2.18 rendered in Writ Appeal No.95/2018 and thus, the impugned order deserves to be set aside. Learned counsel would
submit that the transfer order being not actuated by malafides, having been passed in conformity with the provisions of the BSF Rules by the
competent authority was not open to be interfered with by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution
of India. However, it is not disputed by the learned counsel that the members of the service who were promoted to the post of Inspector on promotion
were adjusted in the same institution on promotion as Instructor vide order dated 10.2.17 and were not given field posting. It is fairly submitted that
matter with regard to adjustment of Sub Inspectors (Instructor) of training institution in the same institution on promotion as Inspector (Instructor)
subject to availability of combined vacancies of Inspector/SIs after clubbing in respective discipline till completion of normal tenure has been
emphasized by order No.47/PT/Agenda/Trg Instns/Estt/BSF/2018/11357 of September, 2018, issued by the Government of India, Ministry of Home
Affairs, a photcopy whereof is placed on record. However, learned counsel submittedthat the said instructions cannot be made applicable
retrospectively.
On the other hand, learned counsel appearing for the respondent submitted that as per the stand of the appellants in reply to the writ petition was
not that the order of transfer is issued for administrative exigency rather the specific stand was that the member of service on promotion to the rank of
Inspector is required to serve in the service Coy of duty BSF Battalion for two years, which is essential for earning next promotion and for better
service prospects. Learned counsel submitted that the writ petitioner has already filed Unwilling Certificate for promotion to the higher rank due to his
poor medical condition to the appellant authorities in the month of March, 2017, which has not been rejected by the appellants and thus, the stand taken
by the appellants regarding compulsory field posting on promotion is absolutely fallacious. Learned counsel submitted that admittedly vide order dated
10.2.17, 12 Inspectors (GD) who were promoted as Sub-Inspector have been adjusted in STC, Jodhpur against the vacancies of SIs (GD) vide order
dated 10.2.17 and thus, there was no reason as to why the petitioner should be picked up for a different treatment being given, specially when he has
been awarded low medical category on account of 19.69% permanent disability. It is submitted that Rule 11 of BSF Rules specially mandate that 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 a Battalion deployed in normal or a static formation keeping in view recommendation of Medical Board and
thus, there is noreason why the petitioner who is posted as STC BSF, Jodhpur as Instructor should be disturbed till the completion of tenure. Learned
counsel submitted that notwithstanding promotion the retention of the Instructors at their existing posting is being followed by the appellants and has
been reiterated vide order issued recently and thus, the action of the appellants in passing the impugned order is ex facie illegal, malafide and arbitrary
and therefore, the same has rightly been quashed by the learned Single Judge. Learned counsel submitted that despite the transfer order being set
aside by the learned Single Judge, the respondent was not permitted to join at STC BSF, Jodhpur and therefore, the respondent deserves to be treated
on continuous duty at STC BSF, Jodhpur.
It is not disputed by the learned counsel appearing for the appellants before this Court that since the appellants had taken a decision to prefer appeal
against the order passed by the learned Single Judge, the respondent was not taken on duty at STC BSF, Jodhpur and later the order passed by the
learned Single Judge was stayed by this Court vide order dated 28.8.18.
We have considered the rival submissions and perused the material on record.
Precisely, the contention of the appellants is that posting on promotion is exclusively dealt with by Rule 9 of the BSF Rules and the immunity
granted to the Instructors under Rule 5 and under instructions issued from time to time relates to the transfer within the same rank and not the transfer
on promotion wherein posting to a duty Battalion is mandatory.
A perusal of Rule 5 of the BSF Rules reveals that it essentially deals with inter-battalion postings of members of Force on the grounds specified,
which includes routine transfer to static formation due to turnover of the Force on completion of field service; on the grounds of operational/training
requirement, misconduct and discipline; and on medical grounds as provided under Rule 11 of the BSF Rules. As per additional proviso introduced in
Rule 5, in case of members appointed as Instructor in the training institution of the Force, their tenure with the static formation shall be four years.
Undoubtedly, as per Rule 9 of the BSF Rules, the tenure rule is not applicable in promotion cases and as per the mandate of the said rule, the
member of the Force upto and including the post of Second-in-Command while posted in static formation shall be posted to a duty Battalion on
promotion to the next higher rank. Thus, no member of service, who is promoted to next higher rank and require to be posted to a Battalion duty as per
mandate of Rule 9, can claim completion of tenure posting as a matter of right.
But then, indisputably even in case of promotion to the next higher rank, as per clause 2(b) of the instructions issued by BSF Headquarter dated
12.5.15, empanelled Instructors on promotion from junior grade to higher grade which includes SI to Inspector are continued to remain on panel of
Instructors till completion of normal tenure and it is made plain that only after the due tenure in the Training Institution, they should be posted to a duty
Battalion to complete their two years period of mandatory field service in a duty Battalion. Thus, the contention sought to beraised by the appellants
that the criteria laid down under clause 2(b) of letter of instructions dated 12.5.15, only regulates and governs the posting in same rank, is absolutely
incorrect rather the said clause deals with the completion of normal tenure of empaneled Instructors notwithstanding that they have been promoted
from junior grade to higher grade.
It is pertinent to note that the instructions issued vide letter dated 12.5.15 are being followed by the appellants subject to availability of the
vacancies, which stand reiterated vide order of September, 2018, issued by the Directorate, General Board of Security Force, Ministry of Home
Affairs. In the aforesaid order, recently issued it is emphasised that Sub Inspectors (Instructor) of Training Institution may be adjusted in the same
institution as Inspector (Instructor) subject to availability of combined vacancies of Inspectors/SIs (Instructor) after clubbing in respective discipline till
completion of normal tenure. It is further provided that SIs (Instructors) be directed to submit requisite undertaking that they will not claim promotion
to the next rank if debarred for want of completion of mandatory field service.
The instructions issued as aforesaid are being followed by the appellants, which is apparent from bare perusal of order dated 10.2.17 issued by the
FHQ BSF, whereby 12 Sub-Inspector (GD) promoted to the post of Inspector (GD) were adjusted in STC BSF, Jodhpur against the vacancies of
Sub-Inspector (GD). That apart, vide yet another order dated 29.6.18 (Annexure-17) placed on record, number of Sub-Inspectors (GD), who were
empaneled as Instructors, on promotion to the rank of Inspector (GD) were adjusted at various STCs including STC BSF, Jodhpur. It is also pertinent
to note that STC BSF, Jodhpur has authorised 10 Inspectors (GD) and 32 SIs (GD) as Instructor staff, against which as per recommendations of
Inspector General, STC BSF, Jodhpur placed on record as Annexure 13, 32 Inspectors (GD) and 2 SIs (GD) were posted. It is also not in dispute that
vide order dated 10.2.17, 12 Inspectors (GD), who were recently promoted were adjusted in STC, Jodhpur against the post of SI (GD) and thereafter,
there was still shortage of 8 Instructors against the authorised post of Inspectors/SIs collectively. It has also come on record that on account of
ensuing training of 1008 recruits scheduled to commence w.e.f. 5.6.17, there was need of the Instructors for imparting qualitative training. In this view
of the matter, the decision of the appellants in declining the request of respondent, a low medical category personnel, for retaining him at STC BSF,
Jodhpur till the completion of his tenure, was ex facie arbitrary.
There is yet another aspect of the matter. As per Rule 11 of BSF Rules, a member of Force who is placed in low category by duly constituted
Medical Board, may be considered for posting from a Battalion deployed in extreme hard or hard area to a Battalion deployed in normal area or a
static formation keeping in view the recommendation of the Board and thus, if a person placed in lower medical category, already posted to an
extreme hard or hard area can be deployed in a normal area or a static formation then, there was no reason for the appellants not to accede the
request of the respondent to retain him at his existing place of posting moreso when, the appellants under the instructions issued are adjusting the
empaneled Instructors at the Training Institutions till the completion of the tenure notwithstanding their promotion to next higher grade. Moreover, the
respondent has already given an undertaking that he will not claim promotion to the next rank if debarred for want of completion of mandatory field
service.
In view of the discussion above, we are of the considered opinion that the action of the appellants in not adjusting the respondent at the place he
was posted as Instructor till the completion of his tenure, being ex facie arbitrary, the learned Single Judge has committed no error in quashing the
impugned transfer order and directing retention of the respondent at STC BSF, Jodhpur while giving liberty to the appellants to pass fresh transfer
order if the medical condition of the respondent improves and administrative exigency arises.
For the aforementioned reasons, no case for interference by us in intra court appeal jurisdiction is made out.
The appeal is therefore, dismissed. The respondent shall be allowed to join duties as Instructor at STC BSF, Jodhpur forthwith. The respondent
who has not been taken on duty pursuant to the order under appeal passed by the learned Single Judge, shall be treated to be on continuous duty on
the post of Inspector (GD), working as Instructor at STC BSF, Jodhpur. No order as to costs.