Statutory remedy of departmental appeal should be pursued against termination from service.

JUDGMENT

1. Cms No.19423/2021 & 19424/2021 (both for exemption)

1. Allowed, subject to just exceptions and as per extant Rules.

2. The applications are disposed of.

W.P.(C) 6135/2021 & CM No.19425/2021 (for stay)

3. The petitioner joined the respondents Indo-Tibetan Border Police Force (ITBP) as a Constable (General Duty (GD)) on 29th July, 2013 and proceeded for training. However during the training, on 7th December, 2013, the petitioner sustained an injury. On 25th February, 2014, a Court of Inquiry was constituted, which found that the petitioner's injury "was sustained during executing of government duty which is serious and can later become reason for disability" and recommended that the petitioner "should be relegated and for further treatment be sent back to his parent unit". The petitioner was accordingly sent back to his unit. The petitioner, on recovering, was again sent for completion of his training, but again on 3rd April, 2017 sustained an injury and on 10th December, 2020 declared to be unfit for training.

4. A show cause notice dated 23rd June, 2021 was issued to the petitioner, asking the petitioner to show cause why, considering the fact that he had been unable to complete the training and was therefore unfit for service, he should not be removed from service. Time till 26th June, 2021 was given to the petitioner to respond and the petitioner was informed that if no response was received by 26th June, 2021, it would be assumed that the petitioner had nothing to say and one-sided action shall be taken.

5. The petitioner instead of responding to the show cause notice, has preferred this petition impugning the notice dated 23rd June, 2021 to show cause and seeking mandamus to the respondents ITBP to rehabilitate the petitioner as per paragraph 7 of the Standing Order No.01/2013 dated 28th March, 2013 issued on the subject of "Disposal of Permanent Low Medical Category cases and Rehabilitation of Permanent Low Medical Category of Indo-Tibetan Border Police Force". Reliance by the petitioner in the petition itself is placed on the order dated 10th April, 2019 of the High Court of Punjab and Haryana in C.W.P. No.9608/2019 titled Chander Pal Vs. Union of India.

6. We have enquired from the counsel for the petitioner, whether, pursuant to the notice dated 23rd June, 2021 to show cause, services of the petitioner have been terminated.

7. While the counsel for the petitioner evades answer, the counsel for the respondents ITBP appearing on advance notice states that vide order dated 30th June, 2021, the services of the petitioner have already been terminated and the said order delivered to the petitioner and the petitioner has concealed the same.

8. We have enquired from the counsel for the respondents ITBP appearing on advance notice, whether against the termination of service, the petitioner has any departmental remedy.

9. While the counsel for the respondents ITBP seeks time to study, Mr. Sanjay Yadav, Law Officer of the respondents ITBP present during the hearing states that the petitioner has remedy under Rule 28 of the Indo-Tibetan Border Police Force Rules, 1994, of preferring an appeal against the order of termination of his services.

10. The counsel for the petitioner states that the principle of law is, that the rights are to be decided on the date of presentation of a petition in the Court. It is stated that since at the time when this petition was filed, the petitioner had not been terminated, the termination of the petitioner be stayed. The counsel for the petitioner otherwise seeks to demonstrate that the action of the respondents ITBP of termination of services of the petitioner is contrary to the policy of the ITBP. Though not filed, reference is also made to some order dated 14th May, 2019 of the Supreme Court in SLP(C) No.4901/2019, where also it is stated that stay of termination has been granted pending the proceedings. Reference is again made to the order dated 10th April, 2019 of the High Court of Punjab and