DEEPAK KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 26.4.2007 issued by the respondent No. 4 (The Commanding Officer, 17 Bn, BSF) retiring the petitioner from service on the ground of physical unfitness under Rule 25 of the Border Security Force Rules, 1969 ("BSF Rules").

(2.) THE facts of the case, as pleaded by the petitioner, may be noticed at the outset. He was enrolled as Constable (General Duty) in the Border Security Force (BSF) on 14.1.2003 after being found fit in all respects whereafter he underwent physical training at the Subsidiary Training Centre at Salugora (West Bengal), which he successfully completed in December, 2003. While he was posted under the respondent No. 4, he absented himself from duty in the month of December, 2005, for which he was punished with 14 days' imprisonment in quarter guard. Due to tremendous pressure of service and the stress and strain of duties associated herewith, he could not attend to his domestic problems and started to have the feeling of insecurity and failed to get any support including proper medical attention from his superior officers. THE Unit Medical Officer accordingly referred him to the Civil Hospital, Tura where a Specialist Psychiatrist examined him for the first time on 25.9.2006. He was again examined by the Specialist Psychiatrist on 13.11.2006, who diagnosed him to be a patient of Dysthymic Disorder. On 13.2.2007, he was sent for check up when the Graded Specialist advised him for three months' rest at home with his family, for which the Specialist issued a Certificate to that effect. On 22.2.2007, while he was undergoing treatment with prescribed medication, he was brought before the Invaliding Medical Board comprising of the Unit Medical Officer and a Medical Officer of another Unit on 22.2.2007, and was diagnosed to be suffering from "F-20 Paranoid Schizophrenia" with 50% disability and placed him in S5H1A1P1E1 medical classification, which rendered him unfit for any duty under the BSF. On the basis of the aforesaid findings, the respondent No. 4 issued the notice dated 2.4.2007 (Annexure-P/5) informing him of his proposal to retire him from service on the ground of physical unfitness under Rule 25 of the BSF Rules and gave him the liberty to represent against the findings of the Medical Board and against his tentative decision to retire him from service to the next Officer superior in command i.e. Deputy Inspector General, BSF, Tura within 15 days of the receipt of the notice. He at once met the respondent No. 4 and apprised him that he was fit. No action was, however, taken on his representation. On the contrary, the respondent No. 4 issued the impugned order retiring him from service on the ground indicated earlier. THE day after he was boarded out, he reported to the Graded Specialist Psychiatry, Civil Hospital, Tura, who used to treat him on reference by the BSF Medical authorities, and was duly examined by him, who then issued the Certificate dated 27.4.2007 declaring that he had fully recovered and was fit to resume normal duty. Aggrieved by the injustice done to him, he on 2.5.2007 submitted a representation, but the same was rejected by the respondent No. 2 by his order dated 31.7.2007. This compelled him to submit a statutory petition dated 3.9.2007 under Rule 28-A of the BSF Rules to the respondent No. 2 for his reinstatement, which has never been disposed of till now. THE notice issued by him under Section 80 of the Code of Civil Procedure was, however, rejected by the respondent No. 3 mechanically. This is how this writ petition has been filed by him for appropriate relief.

(3.) IT is quite apparent from the pleadings of the petitioner vide para 8 of the writ petition that he did not make any representation against the above findings of the Medical Board as well as the tentative decision of the respondent No. 4 to retire him from service on the basis of those findings. What he actually pleaded therein is that he "at once took interview of the Commanding Officer and apprised him that he is fit". In paragraph 3 of the impugned order, it is clearly stated by the respondent No. 4 that no representation was received from the petitioner against the notice issued to him under Rule 25(3) of the BSF Rules, 1969. What is the effect of the failure on the part of the petitioner to make representation against the said notice, in my judgment, appears to be the moot point in this writ petition. At this stage, I may refer to Rule 25 of the BSF Rules, 1969, which reads thus: