Khuda Baksh vs Union Of India Ad Ors

This writ petition has been filed by the petitioner seeking quashing of the order dated 6/5/2019 (Annex.8), whereby, the petitioner has been posted from Frontier Headquarter Rajasthan to 2nd Battalion, BSF and a direction to the respondents not to transfer the petitioner from his present place of posting during pendency of his application for voluntary retirement and consider the case of the petitioner on medical reasons of his family members in terms of Border Security Force (Tenure of Posting and Deputation) Rules, 2000 ('the Rules, 2000').

The petitioner is working in BWWA Shop Headquarter Frontier as store keeper since August 2013 (Annex.3). By order dated 6/5/19 the petitioner was transferred/posted to 2nd Battalion, BSF as he had completed 6 years tenure. The petitioner sought interview on account of his family circumstances and the transfer of the petitioner which was granted and his prayer to cancel the order of transfer was refused.

It is inter alia claimed that the family circumstances of the petitioner are such that his wife and mother both require attention and, therefore, in case the petitioner is transferred, the same would result in grave difficulties for the petitioner and, therefore, the petitioner applied for voluntary retirement w.e.f. 31/8/2019, however, before the same could be accepted the petitioner became aware of the fact that if the petitioner serves for 2 months 15 days more, he would complete 30 years' service and would become eligible for MACP benefit, which is available on completing 30 years' service and he sought withdrawal of the prayer for voluntary retirement and sought extension of the date till 30/11/19.

It is submitted by learned counsel for the petitioner that once the petitioner has applied for voluntary retirement initially from 31/8/2019 and on becoming aware of his losing out the MACP benefit sought extension till 30/11/19, the respondents are bound to accommodate the petitioner and till such time the petitioner avails his voluntary retirement, forcing the petitioner at this stage to go on transfer, would results in immense difficulties for the petitioner and, therefore, the order impugned deserves to be quashed and set aside.

Submission have also been made that after the petitioner filed the present writ petition and time was sought for filing reply, a movement order dated 17/3/19 has been served on the petitioner when he was hospitalized, which shows the hostile attitude of the respondents and, therefore, action of the respondents in this regard besides deserving condemnation, the petition deserves to be allowed.

Reply to the writ petition has been filed by the respondents and learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioner. It was submitted that the petitioner has been indulging in hide and seek with the respondents only with a view to somehow continue to remain posted at present place of posting. It is submitted that in the past also when the petitioner was sought to be moved from present place of posting, he sought voluntary retirement and undertook not to withdraw the application, however, once the transfer order was varied, the petitioner withdrew the application seeking voluntary retirement and now again when the order of transfer has been passed, the petitioner, inspired by his success in avoiding transfer on previous occasion by seeking voluntary retirement, has restarted the same by first seeking voluntary retirement w.e.f. 31/8/2019 and then moving application for withdrawal and seeking voluntary retirement with effect from 30/11/2019.

It is submitted that once the petitioner has completed 6 years' tenure and the request cases on compassionate ground including medical grounds, terminal posting and spouse cases have been considered and decided by the competent authority, whereby, the prayer made by the petitioner has been rejected, the petitioner is not entitled to any relief and the petition deserves to be dismissed.

Submissions have been made that interference with the order of posting, once the petitioner has completed his tenure at the present place of posting, for no apparent reason would result in disturbing the posting system and discipline among the force, which is not desirable and, therefore, the writ petition deserves to be dismissed.

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

A bare look at the material placed clearly reflects that the petitioner was well aware of the fact of his completing the tenure of six years in 2019 and, therefore, sought voluntary retirement w.e.f. 31/8/2019, as on account of such prayer being made the respondents were likely to defer his transfer despite his completing the tenure, however, the respondents were aware of the modus operandi of the petitioner and based on their past experience the said aspect was ignored. The petitioner after the order was passed, sought interview with the respondents, wherein, insofar as the prayer seeking voluntary retirement was considered and it was observed that as the order of transfer has already been passed, the same shall be considered by another Headquarter and the prayer in this regard was thus deferred.

Whereafter, it appears that the petitioner has approached this Court by filing the present petition based on the non-consideration of the prayer for voluntary retirement as well as family circumstances and a seemingly innocuous prayer has been made that as the petitioner is seeking voluntary retirement w.e.f 30/11/2019, why he should be disturbed from the present place of posting specially in view of his family circumstances, however, looking to the past conduct of the petitioner, the apprehension expressed by the respondents appears to be justified, wherein, the Rules relating to VRS have been resorted to by the petitioner to somehow avoid the transfer. The respondents have already considered the family circumstances of the petitioner, which are sought to be projected by the petitioner and they have come to the conclusion that based on the said circumstances, the order of transfer cannot be varied and the said consideration by the respondents cannot be said to be arbitrary or unjustified so as to call for interference by this Court.

In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.