Rewati Prasad v. Union of India & Ors.

1. Issue notice. Notice is accepted by learned counsel appearing for the respondents.

2. For the reasons stated in the application, the application is allowed.

3. Petition is take up for consideration today itself.

4. The next date of 06.11.2023 is cancelled. W.P.(C) 12809/2023 & CM APPL.50465/2023 (stay)

1. Petitioner seeks quashing of movement order dated 22.09.2023 transferring the petitioner from Training Directorate, FHQ, New Delhi to 19 BN BSF, which is under the Frontier Headquarters, Guwahati.

2. Learned counsel for the petitioner submits that petitioner has been posted out prior to completion of the normal tenure of four years at the place of posting. She submits that petitioner was posted to Force Headquarter on 10.11.2022 and had joined on 02.12.2022.

3. Learned counsel for the respondents submits that the normal tenure of posting of four years is subject to the exigencies and requirements of the Force and in cases of promotion, a normal tenure of four years does not apply.

4. Learned counsel for the respondents refers to Rule 9 of the Border Security Force (Tenure of Posting and Deputation) 2000, which stipulates “a member of the Force upto and including the post of Second-in-Command while posted in a static formation, shall be posted to a duty Battalion on promotion to the next higher rank. The tenure rule shall not be applied in promotion cases.”

5. Proviso thereto stipulates that a member of the Force, who has less than 2 years of service before attaining the age of superannuation shall be exempted from application of this Rules.

6. Learned counsel for the respondents submits that earlier also petitioner had served in Delhi from 18.12.2011 to 13.05.2016.

7. Admittedly, petitioner has more than 2 years of service remaining. Petitioner is presently posted to a static formation and has been promoted to the rank of Inspector (Ministerial) on 17.05.2023 and in terms of Rule 9, petitioner on earning promotion has to be posted to a duty battalion. Consequently, petitioner has been posted to a Duty Battalion and the normal tenure of posting does not apply as petitioner has earned a promotion.

8. Since posting is an incidence of service and petitioner himself seeks to rely on the posting policy which stipulates that on earning promotion, member of the Force while posted in a static formation shall be posted to a Duty Battalion and tenure rule shall not be applied in promotion cases. Petitioner cannot impugn the movement order posting him to a Duty Battalion.

9. We find no reason to interfere with the movement order in view of the contention of the learned counsel for the petitioner that earlier also other individuals had been accommodated in Delhi even on promotion. It is for the competent authority to consider postings keeping in view the facts and circumstances as well as the strength of a Battalion and the availability of manpower as to whether one can be retained in a particular position despite promotion or not. No member of the Force can insist upon remaining in a static formation when the Rule itself provides that promotion of a person who is already posted in a static formation shall be posted to a Duty Battalion. Posting and interest of individual are subservient to the requirements of the Force.

10. In the instant case, though petitioner had made a request, however, the competent authority has not acceded to the same. Consequently, we find no ground to interfere with the movement order on that account also.

11. In view of the above, we find no merit in the petition. Petition is, consequently, dismissed.