HC Deepak Kumar Gupta vs Union Of India And Ors

This writ petition has been filed by the petitioner aggrieved against the movement order dated 26/4/2019 (Annex.5) issued by the respondent no.4 and seeking a direction to continue the posting of the petitioner at Sector HQ, B.S.F., Bikaner as per the guidelines and Office Memorandum dated 30/9/2009.

The petitioner, a Head Constable/Generator Operator with the respondent B.S.F., was initially appointed as Constable/Generator Operator on 14/11/1995 and continued to serve with the respondents at various places and was lastly posted at B.S.F. office at Abohar. It is indicated in the writ petition that during the course of service the petitioner married Smt. Meena Giri Goswami, who is serving with the Rajasthan Police as Constable and is presently posted at Police Line, Bikaner and they have two children aged 15 years and 1½ years. Prior to posting at Abohar, the petitioner was posted at Sector Headquarter, B.S.F., Bikaner. The petitioner on account of problem faced by his spouse in maintaining the children while serving, sought transfer from Punjab to Rajasthan vide Annex.1.

An inter office memorandum dated 23/11/2018 (Annex.2) was issued requiring re-examination of the posting/transfer of the petitioner. By order dated 1/3/2019 (Annex.3), the petitioner was posted/transferred from Punjab Frontier to Rajasthan Frontier and in the remark column it was indicated 'for further adjustment in SHQ, Bikaner on request'.

A movement order dated 5/4/2019 (Annex.4) was issued requiring the petitioner to report at SHQ, B.S.F., Bikaner for further orders. It is claimed that the petitioner immediately, pursuant to the transfer and movement order, joined at Bikaner, however, by order dated 26/4/2019 (Annex.5) another movement order was issued requiring the petitioner to report at 16th Battalion, B.S.F. (Satrana). Feeling aggrieved, the petitioner made a representation dated 27/4/2019 (Annex.6) requiring the respondents to continue the posting of the petitioner at Bikaner.

It is submitted by learned counsel for the petitioner that the respondents are not justified in issuing the movement order of the petitioner shifting him from Bikaner to Satrana. It is submitted that the petitioner got himself transferred on account of specific family condition where both the petitioner and his wife are serving and have small children and as the wife of the petitioner is required to undertake night duty as well, there is no one to look after the children and, therefore, the petitioner was transferred to SHQ, Bikaner, however, now the movement order has been made sending the petitioner to Satrana, which is 130 km off location, which frustrates the very purpose of transferring the petitioner.

Further submissions have been made that the Office Memorandum dated 30/9/2009 (Annex.7) requires posting of husband and wife at the same station, which has not been followed by the respondents. Submissions have also been made that the plea raised by the respondents in reply regarding their being no post of Generator Operator at HQ, Bikaner is baseless inasmuch as three persons who are Generator Operators are working at Bikaner and, therefore, the plea raised in this regard cannot be accepted.

It is prayed that the movement order requiring the petitioner to report at Satrana be quashed and set aside.

Learned counsel appearing for the respondents vehemently opposed the submissions. It was submitted that by considering the request of the petitioner he was transferred back from Punjab to Rajasthan, though he had already served for six years at Rajasthan during 2012-2018. Submissions have been made that the petitioner has been posted at the nearest Battalion from Bikaner and that Sector Headquarter includes the Battalion as well. It was emphasized that there is no post of Generator Operator at Bikaner and by way of additional affidavit it has been indicated that the three persons who are working at Bikaner, as alleged by the petitioner, have been accommodated on account of their specific personal difficulties, which cannot be a reason for the petitioner to seek the posting at Bikaner, where no post exists. It is prayed that the petition deserves dismissal as the petitioner cannot claim any right to continue to work at Bikaner only.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The facts are not in dispute that the petitioner has been serving in Rajasthan during the period 2012-2018 and, thereafter, he was transferred to Punjab Frontier. On an application/representation made by the petitioner, the petitioner was transferred back to Rajasthan Frontier with the stipulation that he be adjusted at SHQ, Bikaner on request. It is not in dispute that the SHQ i.e. Sector Headquarter includes various Battalions attached with the said Sector and, therefore, insofar as emphasis laid by the petitioner regarding the stipulation made as if the same required posting of the petitioner at Bikaner only apparently has no basis.

Once the petitioner joined pursuant to the transfer order at SHQ, Bikaner, the movement order posting the petitioner at 16th Battalion, Satrana was passed by the respondents. The said 16th Battalion is part of the SHQ, Bikaner where the petitioner has now been posted. The submissions made that as the petitioner was transferred on a specific request i.e. on account of his family circumstances and on account of such transfer of petitioner 130 km off Bikaner would frustrate the very purpose of his transfer to Rajasthan Frontier, though apparently appears to be having some substance, however, the fact that there is no post of Generator Operator available at Bikaner also cannot be lost sight of and while exercising jurisdiction under Article 226 of the Constitution of India as the respondents cannot be directed to accommodate the petitioner at a place where there is no post available.

However, in view of the submissions which have been made during the pendency of the writ petition by way affidavit/counter affidavit that certain Generator Operators have been accommodated on account of their specific circumstances at Bikaner by taking some other work from them and the petitioner disputing the so called difficult circumstances of Generator Operators alleging that the same no longer exists, the respondents in view of the plea raised by the petitioner regarding his difficult circumstances and seeking accommodation like three other persons named in the affidavit at least require consideration by the respondents.

In view of the above discussion, it is apparent that though the petitioner cannot claim any right to continue to be posted at Bikaner, and is bound to follow the movement order dated 26/4/2019 (Annex.5), which does not require any interference, however, the respondents need to consider the plea raised by the petitioner seeking accommodation at Bikaner like other three persons who have been accommodated by the respondents.

Consequently, while the order impugned dated 26/4/2019 (Annex.5) does not call for any interference, the respondents are directed to consider the case of the petitioner for accommodating him at Bikaner in parity with three Generator Operators, who have been accommodated by the respondents at Bikaner. A speaking order in this regard be passed. Needful be done by the respondents within a period of one week from the date of this order.

With the above directions, the writ petition stands disposed of.