Courts Update Delhi HC stays transfer and movement order of HIV...

Delhi HC stays transfer and movement order of HIV positive BSF jawan

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New Delhi, Jul 3 (ILNS) The Delhi High Court has stayed the transfer and movement order of an HIV positive BSF personnel, keeping in view the peculiar circumstances of the present case.

The Vacation Bench comprising Justice C Hari Shankar and Justice Subramonium Prasad yesterday issued notice to the Centre and the Director-General of Border Security Force, over the order served to the petitioner on June 22, 2021, directing him to join the battalion at Chachar, Assam by July 5, 2021.

The Bench observed, “It is a matter of common knowledge that over a period of time, HIV being a progressive disease, the condition of patients usually deteriorates.”

“Justice, it is well-settled, has to be tempered with mercy and compassion.” said the Bench, while granting stay on the transfer and movement order issued to the petitioner, till the next date of hearing.

The Bench remarked, “On the last date of hearing, we were hopeful that a more compassionate approach would have been adopted by the respondents, keeping in view the medical condition of the petitioner. Nevertheless, the respondents have chosen to contest the petition.”

The Counsel for the respondent submitted that the petition deserved to be dismissed outright as the petitioner was well aware that his posting at Delhi was only for a specific tenure.

He further submitted that the petitioner ought to have submitted his voluntary retirement application at least three months before the expiry of his tenure. He raised objection to the petitioner seeking posting at Delhi as a matter of right, on the ground that his was diagnosed with the affliction way back in 2007, but has been posted at Delhi only since 2017. He further submitted that a Government Medical College is available within 10 km from his place of posting at Assam.

The Counsel for the petitioner invited the Court’s attention to the guidelines issued by the Ministry of Home Affairs dated September 28, 2017, as per which, the petitioner cannot be posted at a place, which does not have access to nearby specialist services.

On a query raised by the Court to the respondent as to whether the place where the petitioner is being transferred has special facilities to treat HIV patients, the Counsel for the respondents submitted that he has no instructions on the same.

Furthermore, he contended that since the replacement of the petitioner has already joined at Delhi, there can be no question of accommodating the petitioner at Delhi. On a query raised by the Court, he was unable to apprise the Court as to whether the replacement joined prior to or subsequent to the issuance of the movement letter to the petitioner.

The matter is deferred till September 6.

The petition has been filed by Kavendra Singh Sidhu, posted as Assistant Commandant in the BSF since 1997. According to the plea, he was detected HIV positive in 2007 and as a consequence, he has been serving in the BSF in the same rank of an Assistant Commandant for the past 24 years, as he was denied promotion on account of being placed in the Low Medical Category.

He has been posted at New Delhi Headquarters since 2017, and is undergoing treatment at AIIMS, New Delhi and also at Army Base Hospital, New Delhi. The plea averred that vide order dated June 9, 2021, the petitioner was posted to District Chachar, Assam, located on the Indo-Bangladesh border. Subsequently, the petitioner tendered a notice of voluntary retirement on the same day, due to his advancing HIV infection and worsening health.

The plea further said that upon being informed that the said notice is defective, the petitioner furnished a fresh notice of voluntary retirement on June 16, 2021.

Since as per the rules, a minimum 90 days advance notice is to be given, the voluntary retirement of the petitioner would be effective from September 30, 2021. The plea contended that the petitioner preferred a grievance representation on June 16, 2021, seeking suspension of his transfer order for a period of three months, however, no decision was taken on his representation.

The petition sought quashing of the transfer order as also the movement order issued to the petitioner and further direction to process the voluntary retirement of the petitioner, without requiring him to join the posting at Chachar, Assam. ILNS/BG/RJ/SNG

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