Union Of India And Ors vs Sunil Kumar

S.RAVINDRA BHAT, J. (ORAL)

The Central Government is aggrieved by an order of the Central Administrative Tribunal (CAT) which allowed the respondent’s original

application seeking quashing of an order dated 26.03.2015 transferring him to 39 Battalion, Sashastra Seema Bal, Palia, U.P.

The brief facts are that the Special Service Bureau was an agency directly operating under the Central Government Cabinet Secretariat. It was

converted into Central Armed Police Force (CAPF) in 2001 and was placed under the administrative control of Ministry of Home Affairs (MHA).

Later, on 20.12.2007, Sashastra  Seema Bal Act was passed by Parliament. On 01.02.2005, MHA by an office memorandum purported to

“Combatizeâ€​ various posts including those in the military cadre of Sashastra Seema Bal (SSB).

The relevant extracts of that order are as follows :

“2. On combatisation, the afore-mentioned medical Officers will be governed by the provisions of CRPF Rules 1955. They will be entitled to Kit

Maintenance Allowance, Uniform Allowance, Renewal Grant, Ration Allowance, etc., as per rates admissible in the force from time to time.

All the Medical Officers who opt for combatisation will have to undergo the prescribed training/course specified by the Department/Ministry from

time to time for the Force and other CPMFs.

Therefore, all the Medical Officers of SSB are hereby directed to furnish their option in the enclosed proforma to this Hqrs. Immediately by return

post.â€​

The Central Government’s position is that consequent upon the order of combatization, it treated almost all officers in the medical cadre â€

except six, who have not opted it, as members of the force and assigned the various ranks to them. The respondents who were medical officers at

that time had concededly not opted to be treated as combatized personnels.

In this back ground when the order of 26.03.2015 was issued transferring him to 39th Batallion, he approached the CAT complaining that as a non-

combatized personnel â€" entitlement of the protection of the Central Civil Service (Classification, Control & Appeal), he could not be compelled to

join duties in a combatized post. The respondent relied upon Kolkata High Court’s ruling in Ranjit Kr. Phukan &Ors vs. UOI &others [WP(C)

36/2011, decided on 05.05.2011]. It was also brought to the notice of the court that the judgment had attained finality because the Supreme Court had

rejected the Special Leave Petition on 03.07.2012. The Union of India contends that after the combatization order was issued, there were no left out

personnel who did not opt for it. It was even urged that post or position occupied by the applicant/Doctor was, in fact, combatized, though, it was in

training centre.

The Tribunal after considering various contentions including the judgment of Anirudh Sharrna & Ors. vs. UOI & Ors. (OA No. 1032/2009, decided

on 10.08.2011) held that the respondent cannot be compelled to join a combatized position and had to be given treatment similar to what was directed

in respect of the petitioners in Kolkata and Allahabad High Courts. The petitioner was directed to be kept at the concerned position JW School,

Sashastra Seema Bal, Gwaldam (Uttarakhand).

Mr. Bhardwaj, learned counsel appearing on behalf of Union of India contended that once all posts stood combatized and the applicant’s

position as medical officer was undisputedly â€" within SSB, he cannot resist transfer/posting. Stating that the non-combatized position in the medical

cadre, it was argued that no non-combatized personnel has or can be recruited after the passing of the Act. It was highlighted that the duties of

combatized and non-combatized medical officers are identical. The only difference being that combatized officers had to adorn uniform and given

other ranks, which are different from the designations granted to non-combatized officers.

The respondent highlights that consistent with Union of India’s position that an option was taken from him and given that all medical cadre posts

were combatized, his request for appropriate posting outside of SSB or at least in a place that did not involve a combatized post, was justified and the

CAT was entirely correct in accepting his arguments. It is further submitted by Ms. Usha Pandey, learned counsel for the respondent that besides the

claim for quashing of the posting order, the respondent had also sought appropriate directions that he be posted in an appropriate civilian establishment

with a medical cadre.

It is evident from a bare reading of the order of combatization that even while being general - in its operation, all the posts were converted from civil

establishment to combatized posts. It applied particularly having regard to the option given by individual officers and employees. This distinction had to

be kept in mind by SSB and for that even other employees were placed in a similar situation. Once an employee or officer is given an option and he

chooses it, its logical consequences would have to be followed. SSB stated position is that it does not have a non-combatized medical cadre. This

would mean that those officers who did not opt for combatization had to be posted elsewhere â€" possibly even outside SSB. The judgments of the

Kolkata and Allahabad High Courts precisely directed that i.e. posting of non-combaitzed personnels outside of SSB by the Central Government. In

these circumstances, given that the respondent is a Central Government employee and not subject to the discipline of SSB Act â€" inasmuch as he

does not hold the combatized post, he cannot be compelled to join in one such and discharge functions of those similar to other non-combatized

positions. The legal corollary therefore is that the Central Government â€" through the Ministry of Home Affairs shall issue appropriate orders with

respect to the place of posting of the respondent who is now holding the post of Chief Medical Officer [Non-Functional Selection Grade (NFSG)] in

JW School, Sashastra Seema Bal, Gwaldam (Uttarakhand). Such order shall be made within eight weeks from today.

The writ petition is dismissed but in the above terms.