Compliance with MHA guidelines for posting P-3 medical category personnel is essential, and justice must be tempered with mercy and compassion.

JUDGMENT

C. Hari Shankar, J. - The petitioner joined the Border Security Force (BSF) on 10 th April, 1997. In December, 2007 he was detected HIV+. The petition avers that, as a consequence, he was placed in the Low Medical Category and was not promoted. Since the day of his detection as HIV+, the petitioner has been posted at Gandhinagar, Kolkata and Delhi. He has been posted at Headquarters, New Delhi since 2017.

2. Owing to his affliction, the petition avers that the petitioner is undergoing Mega Highly Active Retroviral Therapy at the base hospital and at the All India Institute of Medical Sciences (AIIMS) at New Delhi. Owing to his medical condition, the petitioner was permitted to work from home from 22nd May, 2020, consequent on the onset of Covid-19 Pandemic.

3. The petitioner is aggrieved by an order dated 9th June, 2021 which posts him to the 134 Battalion of the BSF at Cachar, Assam, located on the Indo-Bangladesh Border. As travelling to Cachar, Assam and discharging duties would be severely deleterious to the petitioner's health, and could also imperil his life, the petitioner applied for voluntary retirement on 9th June, 2021. The application was returned on the ground that there were certain formal defects therein, and the petitioner re-applied for voluntary retirement on 16th June, 2021. It is a conceded position, ad idem between the parties, that the rules applicable to the BSF permit BSF personnel to apply for voluntary retirement on 90 days' notice. As such, the petitioner sought voluntary retirement with effect from 30th September, 2021. He also addressed a separate representation on 16th June, 2021, seeking suspension of the order transferring him to Cachar, Assam.

4. The petition avers that no decision on the petitioner's application for voluntary retirement or his representation against his transfer order has been received by him till date. Instead, on 22nd June, 2021, a movement order was issued by the respondent, relieving the petitioner of his duties at Delhi with effect from 21st June, 2021 and directing him to report at Cachar, Assam on or before 5th July, 2021.

5. It is in these circumstances that the petitioner has moved this Court. The prayer clause in the writ petition reads as under:

"In view of the foregoing facts and circumstances, this Hon'ble Court may graciously be pleased to:

a. Issue a Writ, order or direction in the nature of Certiorari quashing order dated 09.06.2021 (Annexure P-7) whereby the petitioner has been posted to 134 Bn BSF currently deployed at Cachar, Assam; and

b. Issue a Writ, order or direction in the nature of Certiorari quashing movement order dated 21.06.2021 (Annexure P-11) whereby the petitioner has been relieved from BSF HQ, New Delhi and directed to report at 134Bn BSF by 05.07.2021; and

c. Issue a Writ, order or direction in the nature of Mandamus directing the Respondents to process the voluntary retirement of the petitioner as per 023 the applicable rules without requiring the petitioner to go to 134 Bn BSF posted at Chachar, Assam; and

d. Pass any other/ further order(s) or direction(s) as this Hon'ble Court may deem fit and proper in the interest of justice."

6. On the last date of hearing, i.e. 30th June, 2021, Mr. Jivesh Tiwari, learned Counsel for the respondent had requested that the matter be renotified for today, stating that possibly the petitioner's grievance might be assuaged at an administrative level. That, however, unfortunately, has not come to pass and, today, Mr. Jivesh Tiwari has contested the petition with all the vehemence at his command.

7. Mr. Jivesh Tiwari submits that the petition deserves to be dismissed outright. He submits that the petitioner was well aware that, at the time of his posting at Delhi, that it was for a specific tenure and that, in fact, the petitioner has already been granted one year extension. Apropos the VRS application submitted by the petitioner, Mr. Tiwari submits, in the first instance that the petitioner ought to have submi