"Justice to which mercy is alien is no justice at all:" Delhi High Court stays transfer of HIV positive BSF Jawan

The Delhi High Court recently stayed the transfer of an HIV positive Border Security Force (BSF) jawan from Delhi to Cachar, Assam taking into account his health condition [Kavendra Singh Siddhu vs Union of India].A vacation bench of Justices C Hari Shankar and Subramonium Prasad also expressed its displeasure over the BSF's insistance that the jawan to go to Cachar, Assam without heeding his request for voluntary retirement. .The Court noted that the Jawan has not insisted on retaining his earlier posting at Delhi. Rather, it was noted that the jawan had, "very fairly and at the cost of his career" agreed to voluntarily retire in accordance with BSF Rules and procedure. ."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 (for voluntary retirement) pending", the Court said. .The case also prompted the Bench to make pertinent observations on the need to temper the administration of justice with mercy and compassion.."Justice to which mercy is alien is no justice at all. Our preambular goal is, moreover, not 'law', but 'justice', and law, and its administration must, consequently, defer, in any and every instance, to the dictates of justice. Within the confines of the law, compassion must inhere in the approach of every court which practices equity", the Court observed..Rape committed by HIV positive person not attempt to murder: Delhi High Court [READ JUDGMENT].Appearing on behalf of the Jawan, advocate Aditya Hooda had informed the Court that the jawan was undergoing Mega Highly Active Retroviral Therapy at All India Institute of Medical Sciences (AIIMS) at Delhi to treat his condition. It was also stated that after he was diagnosed as HIV positve in 2007, he had been posted in places where he had access to requisite medical facilities i.e. Kolkata, Gandhinagar and Delhi..Hooda went on to submit that travelling to Assam could have severely damaging effects on the jawan's health, especially in his condition. This was the reason for him applying for voluntary retirement, Hooda said. .Apart from two requests for voluntary retirement, the jawan had also applied to suspend the transfer order. The jawan later moved the High Court for relief when a movement order was issued on June 22 relieving him of his duties in Delhi and directing him to report in Assam. His second application for voluntary retirement and his application for the suspension of the transfer remained unconsidered. .Taking a compassionate view of the situation, the Court ordered that the BSF jawan's transfer order is stayed.."We are of the opinion that, given the peculiar circumstances in this present case, till the next date of hearing the petitioner is entitled to a stay of operation of the impugned order transferring him to Cachar as well as the movement order relieving him for the said purpose", the Court said. .The Court issued the stay order even though an application for stay was not filed along with the writ petition. The Bench took a lenient view of the default after taking on record Hooda's apology for failing to file the application. The Court also took note of his submission that the petitioner should not be made to suffer on account of the counsel's failure to file the application. ."In the circumstances in which the petitioner is placed, we are inclined to treat this default leniently ... subject to the petitioner filing during the course of the day, an application for stay ... the operation of the impugned order... shall stand stayed till the next date of hearing", the Court said..While issuing notice in the matter, the Bench has also asked the respondent-authorities to show cause as to why the rule nisi should not be implemented. The matter will be heard next on September 6, 2021. .[Read order]