Dinesh Mehta, J
1. By way of present writ petition, the petitioner has challenged the order dated 02.07.2020 (Annexure-3) whereby the petitioner was de-attached from Camel Mounted Band of STC BSF, Jodhpur.
2. Facts pertinent in the present case, are that the petitioner was initially appointed as Constable (GD) on 23.03.1990 whereafter, he was promoted as Head Constable.
3. The petitioner was firstly attached to Camel Mounted Band of STC BSF, Jodhpur, however, by way of the subsequent order dated 05.09.2011, he was de-attached/relieved to join his unit.
4. Later on, the petitioner was again attached with Band PI of Camel Wing STC JDR by way of order dated 07.10.2015.
5. Petitioner continued under the attachment unless the impugned order dated 02.07.2020 came to be passed, whereby the petitioner was de-attached from the band and was relieved to join back his platoon.
6. Mr. Agha, learned counsel for the petitioner argued that as there is no power/provision of de-attachment, the impugned order dated 02.07.2020 is void and lacks jurisdiction.
7. Learned counsel further argued that de-attachment seems to be done on the ground of misbehavior but on such account the respondent authorities could initiate disciplinary action but could not pass order of de-attachment.
8. While emphasising that transfer cannot be made by way of or in lieu of punishment, learned counsel argued that respondent-authorities, vide impugned order dated 02.07.2020, used the de-attachment/transfer as a mode of punishment. Learned counsel drew Court’s attention towards the judgment of Hon’ble the Supreme Court, rendered in the case of Somesh Tiwari vs Union of India and Ors. reported in 2009 2SCC 592 in support of his argument.
9. Mr. Rajpurohit, learned Deputy Solicitor General appearing on behalf of respondent-Union of India submitted that the office order dated 28.11.2019 issued by Ministry of Home Affairs governs the posting/transfer/attachment of Camel Handlers/Trainers in Camel Wing at STC BSF, Jodhpur, which order clearly postulates in Para 5, that camel handlers and trainers of STC BST, Jodhpur can be de-attached irrespective of their tenure on the ground of Administrative/Disciplinary proceedings. He produced a photocopy of the above order for perusal of the Court, the same is taken on record. He also submitted that petitioner’s behaviour with the higher officials and his colleagues was not in order, and also he was found carrying and taking on mobile phone while on duty, which necessitated his de-attachment from the Camel Mounted Wing. He argued that the impugned order dated 17.08.2011 came to be passed in better administration of disciplined force.
10. Heard learned counsel for the parties and perused the record.
11. So far as the petitioner’s first contention is concerned, that there is no power/provision of de-attachment order, this Court does not find any force therein. It is settled position of law, that if an authority has power to give, it has inherent power to take it back; as is provided under Section 21 of General Clauses Act,1977.
12. That apart, the Government order dated 28.11.2019 which deals with de-attachment/transfer of Camel handlers, clearly shows that petitioner and other persons working as camel handler and trainers, can be de-attached/transfered in case of administrative/ disciplinary actions.
13. Para 5 of the order dated 28.11.2019, issued by Ministry of Home Affairs, reads thus:-
“Camel handlers and trainers of STC BSF Jodhpur, irrespective of their tenure can however, be de-attached on administrative/disciplinary grounds by HQ Spl DG (Western Command) on the basis of recommendation of IG STC BSF, Jodhpur.”
14. So far as the judgment of Hon’ble the Supreme Court is concerned, same relates to transfer and the present order is not that of transfer but the same relates to de-attachment. May be the respondents in their reply have used the expression transfer/de-attachment, but having regard to the expression de-attachment and nature of duties discharged by the petitioner, the same cannot be equated with transfer.
15. Furthermore, the petitioner’s de-attachment which was made by order dated 07.10.2015 was for the purpose of five years and said period is now over.
16. Looking from any angle, this Court does not find any merit in the present writ petition, the same is hereby dismissed.
