Snehal Upadhyay-
Delhi High Court put a stay on the transfer of an HIV Positive Border Security Force (BSF) Jawan disapproving the demand of the BSF that commanded him to join his duty at a new place of posting in his precarious medical condition.
The division bench comprising of Justice C. Hari Shankar and Justice Subramonium Prasad heard a plea filed by an HIV+ Jawan against his transfer order which directed him to join the 134 Battalion of the BSF at Cachar, Assam, located on the Indo-Bangladesh Border.
The petitioner reportedly said that he had voluntarily applied for his retirement with effect on 30th September 2021. He also stated that how travelling to Cachar, Assam would be deteriorating to his health.
The petitioner also brought up to the notice of the Court the guidelines about the criteria of posting for the personnel who are in the P-3 medical category i.e. persons who have major disablement with limited physical capacity and stamina, which were issued by the Ministry of Home Affairs (MHA).
The counsel further argued that he cannot be posted at a place having a 75% humidity level around the year that does not have access to nearby specialist services.
The Court said that “Justice, it is well settled, has to be tempered with mercy and compassion. Justice to which mercy is alien is no justice at all. “
The Court further stated that there was no fault in the actions of the petitioner and also noted the fact of his wanting voluntarily retirement which, was totally under the rules and procedures of the BSF.
The Court said, “We cannot appreciate the insistence of the respondent on the petitioner joining duty at Cachar, in his precarious medical condition, even while keeping the application pending.”
