Sangeet Lodha, J. - (1.) THIS writ petition is directed against order dt. 29.01.2013 passed by the Deputy Inspector General, STC, BSF, Jodhpur, whereby the petitioner -Inspector Narendra Bahadur Yadav has been placed under close arrest under Rule 36 of the Border Security Force Rules, 1969 (for short "the Rules") on being found guilty by the General Security Force Court (GSFC) of the charges for he was tried and sentenced to suffer rigorous imprisonment for two years and dismissal from service. The petitioner has also questioned the convening order the charge sheet and the sentence awarded by the GSFC. That apart, the directions are sought for early disposal of pre confirmation revision petition preferred by the petitioner under Sec. 117(1) of Border Security Force Act, 1968 (for short "the Act") and to release him pending disposal of the pre confirmation petition. During the pendency of the petition, the pre confirmation petition preferred by the petitioner was rejected by the Confirming Authority, Special Director General, BSF (West), Chandigarh vide order dt. 24.07.2013, which is placed on record by the respondents as Annexure R/1. The application preferred by the petitioner under Sec. 130 of the Act, for suspension of the sentence also stands rejected by the Director General, BSF, vide order dt. 06.09.2013, which is placed on record by the petitioner as Annexure -53. The petitioner has already preferred revision petition under Sec. 117(2) of the Act before the Central Government aggrieved by finding of GSFC, which stands confirmed by the Confirming Authority, the Special DG, BSF, which is pending consideration.
(2.) THE respondents have raised a preliminary objection questioning the maintainability of the petition before this Court on the ground that under Sec. 117(2) of the Act, the petitioner is entitled to present a post confirmation petition to the Central Government, Director General or any Prescribed Officer superior in command to one who confirmed such finding or sentence and therefore, in view of the availability of the appropriate remedy under the relevant statute, there is no reason as to why the petitioner should be permitted to invoke the extra ordinary jurisdiction of this Court questioning the validity of the finding of guilt recorded and the sentence awarded by the GSFC. Learned Assistant Solicitor General (ASG) appearing for the respondents contended that the petitioner having already availed the remedy of post confirmation petition available under Sec. 117(2) of the Act, cannot maintain this petition questioning the orders passed by the GSFC and the Confirming Authority, before this Court invoking its extra ordinary jurisdiction under Art. 226 of the Constitution of India. Learned ASG submitted that as a matter of fact, till the disposal of the petition preferred by the petitioner under Sec. 117(2), the writ petition preferred is pre mature. In support of the contentions, learned ASG has relied upon the decision of the Hon'ble Supreme Court in the matter of Union of India vs. Bodupalli Gopalaswami, : (2011) 13 SCC, 553 and decisions of this Court in the matter of V.S. Tiwari & Ors. vs. Union of India (UOI) & Ors., : RLW 2003(3) Raj. 1750 and Major General A.K. Lal vs. Union of India (UOI) and Ors.,, RLW 2009 (2) Raj. 1039. Learned ASG submitted that though the petitioner has preferred a revision petition under Sec. 117(2) of the Act before Central Government but, the said revision petition is required to be heard and disposed of by the DG, BSF inasmuch as, the Confirming Authority, Special DG, is an officer inferior in rank of the DG.
(3.) LEARNED counsel appearing for the petitioner submitted that the petitioner shall pursue the remedy of revision petition already preferred before the Central Government under Sec. 117(2) of the Act but then, the petitioner's application under Sec. 130 of the Act for suspension of sentence having been rejected by the DG, BSF, pending disposal of the petition under Sec. 117(2) by the Central Government, the petitioner's sentence of rigorous imprisonment for two years imposed upon him by the GSFC, deserves to be suspended pending disposal of the revision petition by the Central Government.;