The court emphasized the necessity of adherence to medical guidelines for postings and ruled in favor of compassionate treatment of personnel with serious health conditions.

Headnote:(A) Border Security Force Act, 1968 - Guidelines issued by the Ministry of Home Affairs - Petition for quashing transfer order and seeking voluntary retirement - Petitioner diagnosed with HIV and placed in Low Medical Category, unable to discharge duties in Cachar, Assam due to health risks. (Paras 1, 3, 20, 19)

(B) Medical categorization of personnel - Court emphasized the importance of compliance with guidelines regarding postings of personnel in medical categories and the necessity for compassion in administrative decisions. (Paras 17, 18, 19)

Facts of the case:
The petitioner, upon being diagnosed with HIV+, was placed in a Low Medical Category and applied for voluntary retirement after being transferred to Cachar, Assam. His application was not processed, leading to the present petition. (Paras 1, 5)

Findings of Court:
The petitioner, given his precarious medical situation, was entitled to a stay on the transfer and movement orders pending the resolution of his retirement application. (Paras 21, 25)

Issues: The main issues were the adherence to medical guidelines for postings and the health implications of the transfer order on the petitioner. (Paras 12, 19)

Ratio Decidendi: The court ruled that adherence to Ministry guidelines is crucial, underscoring the principles of mercy and compassion in justice, especially concerning vulnerable health conditions. (Paras 19, 20)

Result: The operation of the transfer and movement orders was stayed until the next hearing.

Table of Content
1. medical condition affecting posting and retirement application. (Para 1 , 2 , 3 , 4)
2. court's request and response concerning petitioner's grievance. (Para 5 , 6)
3. arguments regarding procedure and conditions of posting. (Para 7 , 8 , 9 , 10)
4. mha guidelines relevant to medical postings. (Para 11 , 12 , 13 , 14)
5. justice requires compassion; consideration of medical condition. (Para 15 , 16 , 17 , 19)
6. judicial discretion to stay operation of transfer orders. (Para 20 , 21)
7. notice issued and next steps in writ petition procedure. (Para 22 , 23 , 26)

ORDER

(Video-Conferencing)

C. Hari Shankar, J. The petitioner joined the Border Security Force (BSF) on 10th 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 re- notified for today, stating that possibly the petitioner's grievan