Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 20TH DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 WA NO. 1751 OF 2023 AGAINST THE JUDGMENT DTD.02.08.2023 IN WP(C)No.36732/2022 OF HIGH COURT OF KERALA APPELLANT/PETITIONER: SUNAN.J S/O JAGADEESAN, AGED 54 YEARS, 162 BN BSF, (ANO), KANKER DISTRICT, CHATTISGARH-494665 WITH PERMANENT ADDRESS AT ANITHA BHAVAN, KATTIKADAVU P.O , KARUNAGAPALLI, KOLLAM DISTRICT, PIN - 690542. BY ADVS. V.JOHN MANI VARGHESE SABU SETHULAKSHMI K.K. SHAMEENA K.Y. RESPONDENTS/RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI - 110001. 2 THE DIRECTOR GENERAL, BSF, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110003. 3 THE DEPUTY INSPECTOR GENERAL, BORDER SECURITY FORCE, SHQ, THIRUVANANTHAPURAM - 695010. 4 THE COY COMMANDER, 162 BN BSF, C.O.B PHOOLPAR, ANTHAGADH, KANKER DIST., CHATHISGARH - 494665. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.10.2023, THE COURT ON 20.10.2023 DELIVERED THE FOLLOWING: W.A.No.1751 of 2023 - 2 - ANU SIVARAMAN & C.JAYACHANDRAN, JJ. ----------------------------------- W.A.No.1751 of 2023 ----------------------------------- Dated this the 20th day of October, 2023
JUDGMENT
C.Jayachandran, J.
The appellant (petitioner in W.P (C) No. Security Force as A.S.I (GD) at Chhattisgarh. The appellant's request for transfer to SHQ, Trivandrum on medical ground of his daughter and wife, both, being seriously sick was rejected twice by the 2nd respondent. Challenging Ext.P5 rejection order dated 05.09.2022, the instant writ petition was filed, which was substantially allowed by the learned Single Judge. However, the appellant carried this Writ Appeal on the apprehension that, dehors the directions in the impugned judgment, the competent authority among the respondents will not consider his request for transfer to SHQ, BSF, W.A.No.1751 of 2023 - 3 - Thiruvananthapuram sympathetically. The above apprehension stems from the two earlier rejection orders, albeit clear directions issued vide Exts.P2 and P4 judgments of this Court.
2. Ext.P2 judgment merely directed the authorities
to consider Ext.P9 representation of the appellant; however, in Ext.P4 there was a peremptory direction in the following lines, as regards the manner in which the appellant's representation has to be considered by the 2nd respondent:- “Needless to say that the 2nd respondent should consider the representation with maximum compassion and pass appropriate orders thereon, expeditiously.”
3. Nevertheless, the appellant's request was
turned down by the 2nd respondent as per Ext.P5 order. The reasons stated in Ext.P5 order are that the appellant's request was considered sympathetically in the past by posting him at W.A.No.1751 of 2023 - 4 - Thrissur and that his further request cannot be acceded to, since BSF is a combatised force, facing difficulties in accommodating large number of requests of low medical category personnel and their dependents seeking posting/transfer to avail better treatment facility in these locations. Operational/ administrative constraints and limited number of vacancies were also espoused.
4. We notice that the reasons stated by the 2nd
respondent in rejecting the appellant's request are far from satisfactory. We notice that not only the appellant's daughter, but also his wife are suffering from illness of a serious nature, as could be seen from Ext.P1 and Ext.P7 medical certificates respectively. The appellant's daughter had undergone a kidney transplantation surgery, where the donor is her mother. The situation of the appellant's daughter, as depicted in Ext.P1 medical certificate, is as follows: W.A.No.1751 of 2023 - 5 -
“Ms.Sayana Sunan 21yrs old female, daughter of Mr.Sunan.J MRD No:I-128354 Anitha Bhavan, Adhindu Village, Kattilkadavu P.O, Karunagappally, Kollam is a know case of chronic kidney disease/end stage renal disease was on dialysis for two months. She had undergone live related kidney Transplantation with her mother Mrs.Anitha Sunan 43yr old as donor on 21.09.2016. She had to undergo emergency re-exploration in the immediate post op due to decreased flow to the graft kidney. Patient will need to be on medication lifelong and regular follow up.”
Her medical situation, as recorded in Ext.P6 (3 rd page) certificate, is as under:
“Ms.Sayana Sunan 27/F MRD No.I-128354, Anitha Bhavan, Kattilkadavu K. K/C/O Systemic Hypertension/Bronchial Asthma/S/P Right Renal Transplantation for chronic Tubulo Interstitial Disease, is admitted in critical care ICU, Travancore Medical College on 14/9/22 with a provisional diagnosis of lower respiratory tract infection/acute laryngeal eden astor with impending respiratory arrest. She is currently in critical care ICU and is on mechanical ventilatory support.”
W.A.No.1751 of 2023 - 6 - Again, her condition as stated in Ext.P6(a) certificate is as follows:
“This is to certify that Ms Sayana Sunan, 27yrs Resident of Anitha Bhavan, Kattilkadavu P.O., Karunagappally, post renal transplant status, is under my treatment for incidentally detected chronic liver disease. She has visited my OPD on 15/10/2022, 25/10/2022 and 03/11/2022 respectively. She requires long term followup and medications. The details of expenditure already incurred till date has been herewith attached. This certificate is being issued as per patient's request for submission in Insurance Department.” (underlined by us for emphasis)
5. Similarly, the medical situation of the appellant's wife is stated thus in Ext.P7 ultrasound scan report: "IMPRESSION • Heterogeneous echopattern in liver. • Bulky uterus with myomas; • Thickened endometrium." Moreover, she was directed to undergo hysterectomy vide Ext.P7 (2nd page). W.A.No.1751 of 2023 - 7 -
6. It could be seen from the above reports that
the appellant's daughter has chronic kidney disease/end stage renal disease, besides chronic liver disease and that his wife is also suffering from liver disease. Needless to say that both requires serious medical attention, for which, we are of the definite opinion that, the presence of the appellant in Kerala is a sine qua non. We also notice that the appellant is the only caregiver for both his daughter and wife. Though we have taken note of Section 7 of the Border Security Force Act, 1968 and Rule 15(5) of the Border Security Force Rules, 1969, mandating a member of the Force to serve in any part of India, we are of the definite view that the existence of such provisions does not foreclose compassion and sympathetic consideration, wherever it is demonstrably warranted. W.A.No.1751 of 2023 - 8 -
7. In the circumstances, though we do not propose
to interfere with the impugned judgment
substantially, we should necessarily clarify that
the directions contained in the impugned judgment
surely enjoins the 2nd respondent to consider the appellant's request sympathetically, empathetically and in a meaningful manner, bearing in mind the extreme necessity of the appellant's presence in Kerala, as indicated earlier. We further direct that the appellant, who is faced with a very misfortunate situation in his life, shall not be compelled to approach this Court again, that is to say for the fourth time, in respect of the same cause of action, which aspect shall also be borne in mind by the 2 nd respondent, while considering his request for transfer to SHQ, BSF, Thiruvananthapuram or such other suitable place in Kerala. W.A.No.1751 of 2023 - 9 - The writ appeal will stand disposed of with the above clarification/observations. Sd/- ANU SIVARAMAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE skj