Dharambir Singh v. Union of India

1. In all the writpetitions,the petitioners,someofwhom are Head Constables and some ofwhom are Assistant Sub Inspectors ofPolice have challenged movement orders, whereby they have been transferred outofDelhi.

2. Section 7ofthe Border Security Force Act,1968 provides that every Member ofthe Border Security Force shall be liable to serve in any partofIndia,as well as outside India. The services ofall the writ petitioners are transferrable.

3. In Union ofIndia and Others vs. S.L. Abbas reported in AIR 1993 SC 2444,the Supreme Court held that policy oftransfer as to who should be transferred where, is a matter for the appropriate authority to decide. Unless the order oftransfer is vitiated by mala fides or made in violation of any statutory provisions, the Court cannot interfere with it.

4. The writ petitioners have challenged their respective movement orders upon referencetothe Border Security Force(Tenure ofPosting and Deputation) Rules, 2000. In W.P.(C) No.5867/2016 (Kailash Chander vs. Union ofIndia & Ors.) a Division Bench ofthis Court held:- "10. Both petitioners rely upon Rule 6 ofthe Border Security Force (Tenure of Posting and Deputation) Rules,2000. The rule reads as under "6. Tenure- The tenurefor a Battalion shall he as under:- (i)Extreme hardarea-twoyears; (ii)Normaltenure-Maximum sixyears."

11. Learned counselfor the respondents drawn our attention to Rule 9 of the Rules relied upon by the petitioners which reads as under:- "9. Posting on promotion - A member of the Force upto and including the post ofSecond-In- Command while posted in a station formation, shall beposted to a duty Battalion on promotion to the next higher rank. The tenure rule shall not be applied inpromotion cases; Provided that, the members of the Force who have less than 2years ofservice before attaining the age of superannuation shall be exempted from application ofthis rule; •s Providedfurther than theprovisions contained in this rule shall only apply to the members ofthe Force who are promoted to a post which also exists in a Battalion. "

12. A simple reading ofthe two rules would evince that Rule 9 dilutes the rigour ofRule 6, in that, the tenure rule is notto applyin cases ofpromotion.

13. The reason is obvious. Whenforce personnel are posted to different Battalions, a wholesome exercise is carried out based on the requirement of force personnel holding different ranks. When a person earns promotion, then initial working gets disturbed. Further as one moves up the pyramid, the space becomes less.

14. This is the ethos ofthe exception carvedoutto Rule vide Rule 9. It stands on a logic and a reason. Thus, the claim ofthepetitioners thatin terms ofRule6they should be permitted to serve with the 25th Battalion, BSF for a period of two years, the minimum contemplated bytheRules,is misplaced." A

5. In the case ofRohit Singh and Anr. Vs. Union ofIndia& Ors. being W.P.(C) No.7112/2016, another Division Bench ofthis Court of which one ofus i.e. Indira Banerjee J. was a Member,held that a stipulation in the rules that COBRA personnel would be allotted their Choice Zones and posted at Soft Field/Static Offices/Peace Stations as per eligibility and administrative/operational feasibility/availability ofvacancies conferred discretion on the competent authority to post COBRA personnel in Soft Field/Static Offices/Peace Stations as per their eligibility as well as administrative /operational feasibility. The use ofthe words'administrative/operational feasibility' did notconfer any right on the petitioners to seek a posting at Soft Fields/Static Offices/Peace Stations. The aspect of administrative/operational feasibility had to be determined by the competent authority and the writ court would not substitute the view ofthe competent authority with its own view. The Division Bench also observed that the standing orders of the Border Security Force were in the nature of guidelines,the same were directory and not mandatory.

6. In these writ petitions, no specific case of vindictiveness or malafides has been made out. It is the case ofthe respondents that the petitioners having been promoted,they were required to be posted in field areas.

7. For the reasons discussed above and in particular the explanation that the petitioners are required to perform two years of mandatory field service, we do not deem it appropriate to interfere with the impugned movementorders.

8. The writ petitions are therefore,dismissed.

9. Pending applications also stand disposed of.

INDIRA BANERJEE,J L/ ANIL KUMAR CHAWLA,J FEBRUARY 16,2017 gm