RAJIV SAHAI ENDLAW,J. - (1.) The petitioner, a Commandant (Medical) with the respondent No.5 Assam Rifles and on inter-force transfer/deputation to the respondents No.2&3 Indo-Tibetan Border Police (ITBP) and presently posted at Referral Hospital ITBP, Greater Noida, Uttar Pradesh, has filed this petition (a) impugning the order dated 15th July, 2020 whereby the petitioner has been asked to report back to his parent cadre i.e. the respondent No.5 Assam Rifles; and, (b) seeking mandamus to the respondents to allow the petitioner to continue at his present place of posting, for another two years, as per the Office Memorandums (OMs) dated 22nd November, 2016 and 18th May, 2018, thereby allowing the petitioner to take medical treatment for his son; and, (c) in the alternative, seeking mandamus to the respondents to extend the benefit/relaxation as provided in the OMs dated 6 th June, 2014, 17th November, 2014 and 5th January, 2016 issued by the Department of Personnel and Training (DoPT).
(2.) It is the case of the petitioner, (i) that he was appointed as an Assistant Commandant (MO) in the respondent No.5 Assam Rifles in February, 2003 and was in the year 2007 promoted to the rank of Deputy Commandant; (ii) that the petitioner, in or about the years 2007-2008 applied for permission to apply for Post Graduation and which permission was granted and accordingly, the petitioner, in the years 2008-2011 completed his Doctorate in Medicine in Radio Diagnosis, from Armed Forces Medical College, Pune; (iii) that between the years 2011-2017, the petitioner remained posted at Nagaland, Dimapur and in the year 2012 promoted to the rank of Second-in- Commandant and in the year 2016 to the rank of Commandant; (iv) that a son was born to the petitioner and his wife on 27 th December, 2011, who in the years 2012-2013 was found to be suffering from squint and was under treatment at Shankar Netralaya, Guwahati; (v) that the son of the petitioner thereafter developed persistent seizure attacks and was diagnosed to be suffering from Hypoxic Ischemic Insult and secondary seizures/cerebral palsy and was being treated at Guwahati; (vi) that however the medical condition of the son of the petitioner kept deteriorating and he also developed deformities in his right leg and right hand and also suffered loss of learning abilities; (vii) that the petitioner, for all the said reasons took extended leave in the year 2016 for the medical treatment of his son; (viii) that the petitioner thereafter applied for the post of General Duty Medical Officer in ITBP, on deputation and the competent authority, vide order dated 30th May, 2017, approved the inter-force transfer of the petitioner from the respondent No.5 Assam Rifles to respondents No.2&3 ITBP and vide Signal dated 10th July, 2017 posted the petitioner to the Referral Hospital ITBP, Greater Noida, on compassionate grounds, for a period of three years only; (ix) that the petitioner since then is at Referral Hospital ITBP, Greater Noida and has been making all efforts to have his son treated at Vardhman Mahaveer Medical College (VMMC) and Safdarjung Hospital, New Delhi and the son of the petitioner has shown signs of improvement; (x) that the son of the petitioner requires regular follow up at VMMC and at Safdarjung Hospital as well as physiotherapy and has been attending Special Children School at Greater Noida and has been issued a "80% permanently physically handicapped" certificate; (xi) that the petitioner made a representation dated 22nd August, 2019 to the respondents requesting the respondents to extend his deputation tenure for five years as per the prevalent policy; (xii) that the Policy Guidelines for Deputation of Combatised Central Armed Police Forces (CAPFs) and Assam Rifles (AR) Personnel in Other Organisations, issued by the Ministry of Home Affairs (MHA) on 22nd November, 2016 clearly state that the tenure of deputation to the other CAPF and Central Government Organisations will initially be five years and further extendable upto seven years; (xiii) that the petitioner thus is entitled to the minimum tenure till 17th July, 2022; (xiv) that on the representation aforesaid of the petitioner, the respondent No.4 Additional Director General (ADG) (Medical) (CAPFs, National Security Guard (NSG) and AR), sought certain comments / recommendations on the requirement of the petitioner in the Referral Hospital, Greater Noida; (xv) that the Inspector General (IG) (Medical), Referral Hospital ITBP, Greater Noida vide letter dated 30 th November, 2019 clarified that the petitioner as a Radiologist is required to run and keep the department functional, as in Radiology Department of the hospital there is already heavy load of patients and the hospital is also in the process of expansion; it was also clarified that the petitioner is main care giver to his own son, who is differently abled; the petitioner was recommended the full term of five years; (xvi) that MHA, vide order dated 30th October, 2015 directed that the inter-force transfer/deputation of all doctors will continue to be decided by the MHA on the proposal of the Director General of the forces concerned and the recommendation of ADG(Medical); (xvii) that however the respondents are not extending the tenure of deputation of the petitioner and not forwarding the case of the petitioner to the MHA; (xviii) that even the OM dated 6th June, 2014 regarding posting of government employees who have differently abled dependants provides that a government servant who is also a care giver of disabled child may be exempted from the routine exercise of transfer/rotational transfer, subject to administrative constraints; (xix) that DoPT OMs dated 6th June, 2014, 17th November, 2014 and 5th January, 2016 also categorically provide that government employees who are care giver of disabled child will be exempted from the routine exercise of transfer/rotational transfer, subject to administration constraints; (xx) that as per the OM dated 18th May, 2018 of the DoPT also, the period of deputation/foreign service shall be as per the Recruitment Rules (RRs) of the ex-cadre post or five years in case no tenure regulations exist for the ex- cadre post; (xxi) that the RRs of the Medical Officer Cadre of the respondent No.5 Assam Rifles nowhere state the tenure of deputation and thus the petitioner, under the OM dated 18th May, 2018 is entitled to the deputation from the respondent No.5 Assam Rifles to the respondents No.2&3 ITBP at least for a period of five years; (xxii) that the respondent No.5 Assam Rifles, vide order dated 15th January, 2020 to the Referral Hospital ITBP Greater Noida, requested that on the deputation of the petitioner coming to an end on 17th July, 2020, the petitioner be released; (xxiii) that the petitioner made another representation dated 31st January, 2020 to the respondents; and, (xxiv) that the respondents, vide impugned order dated 15th July, 2020, rejected the petitioner "?s representation for extension of tenure and directed the petitioner to be relieved from the respondents No.2&3 ITBP.
(3.) It is the contention of the counsel for the petitioner that the respondent No.5 Assam Rifles is posted at the extremist and the remotest areas of the country and if the petitioner is repatriated to his parent organization i.e. Assam Rifles then he would be posted in such remote and extreme locations which would not be a suitable environment to raise his son aforesaid.;