Sardari Lal vs Union of India

B.A. Khan, J.—Petitioner, a LNk in the BSF was prematurely retired from service by order dt. 28.11.1988 under Rule 26 of the BSF

rules. He questions this order on the ground that it was passed on mala fide considerations by respondent No. 2 who was not favourably disposed

towards him and had developed prejudice against him for ""filing a writ petition to question some order of punishment"" imposed on him earlier.

Respondents' stand is that petitioner was retired from service because of his unsatisfactory performance and for being negligent and careless in

the discharge of his duties. A Board of Officers had scrutinized his service record, which included his CR Dossier, etc. and found him unsuitable to

be retained in service. It is explained that he had carried five punishments during his service which included 14 days rigorous imprisonment under

Section 19(a), three days line confinement under Sec. 40 in 197374, was reprimand under Sec. 19(b) for overstaying the leave and then

punishment under Section 22(e) for refusing to obey the Unit order.

Petitioner has filed a rejoinder highlighting that the three punishments imposed on him from 1973 to 1975 preceded his promotion to the rank of

LNk in 1985 and thus could not be taken in regard to retire him from service. A reference is also made to a circular issued by the Home Ministry

dt. 2.6.88 on the subject matter, which amongst other things, cautioned against retirement on the ground of unsuitability shortly after a person was

allowed to cross the efficiency bar and was confirmed in service. On this basis, it is argued that the action against him was unjustified, unwarranted

and illegal.

At this stage, it becomes necessary to refer to Rule 26, which reads thus :

Where a Commandant is satisfied that an enrolled person is unsuitable to be retained in service, the Commandant may, after giving such enrolled

person an opportunity of showing cause (except where he considers to be impracticable to give such opportunity), retire from the force the said

enrolled person.

The provision empowers the Commandant to retire an enrolled person from service provided:

i) He gives the enrolled person an opportunity of showing cause against the proposed retirement except where it is impracticable to do so;

ii) He feels satisfied that the enrolled person was unsuitable to be retained in service.

The first step that is required to be taken by the Commandant is to give the person an opportunity of showing cause against the retirement. This is

in consonance with the principles of natural justice and to enable the affected person to show that he still retained utility for service. It is only after

exhausting this requirement that the Commandant may proceed to retire the person compulsorily. He can dispense with this only if it is

impracticable to put the person on notice for which he must give reasons to show that such impracticability was supported by some material or

surrounding circumstances.

The Commandant, thereafter, has to assume satisfaction regarding the unsuitability of the person on the basis of relevant material having nexus

with such unsuitability. Though, his satisfaction is subject to judicial review but it is enough if he proceeds on some basis. The court can't go into its

sufficiency or otherwise. Therefore, all that requires to be seen is whether or not the requisite satisfaction was drawn on the basis of some material.

If it is found based on no material, it can't sustain and the action would be rendered arbitrary. But where the satisfaction is drawn on some relevant

material having proximate relation to the unsuitability of the person, it is the end of the matter.

It is a matter of common knowledge by now that provisions of Article 311(2) of the Constitution are not attracted to the defence services. Nor

are these available in case of compulsory retirement even in Civil Services because it neither entails penal consequences nor amounts to dismissal

or removal from service. Even so, an order of compulsory or premature retirement is questionable on some specific grounds like arbitrariness or

perversity of action or that it was taken for mala fide or extraneous considerations. Nonetheless, it falls within the domain of the competent

authority to take action by taking in regard the whole service profile of the individual. The Authority can't be pinned down to consider the material

only upto a point, nor can it be faulted for taking any prepromotion material into consideration. It is for the Authority to derive satisfaction about

the unsuitability of the person in service upon all the available material.

Viewed thus, all that remained to be seen in the present case was whether respondent No. 2 reached the requisite satisfaction on some basis

and whether he had satisfied the requirement of R. 26.

It is the admitted position that Respondent No. 2 had put the petitioner on notice to which he replied and which was considered also. It also

goes without saying that he had taken the action on the recommendation of the Screening Board, which had found the petitioner unsuitable for

retention in service on the basis of his service on the basis of his service record, which disclosed more than one punishments suffered by him during

his service. It is true that the three punishments given to him from 1973 to 1975 preceded his promotion to the rank of LNk, but that by itself

would not vitiate the action because it was for the Competent Authority to feel satisfied upon all available material. Any promotion or approbation

received by the person in between was of little consequence unless the action was shown to be taken on no basis whatever.

Petitioner's reliance on Home Ministry's circular dt. 2.6.88 also does not bail him out because it provides some safeguards to the members of

the Force in the absence of Article 311(2) of the Constitution. It is more in the nature of a guideline than any mandatory command, breach whereof

may have the consequence of only rendering an action irregular. Moreover, Clause (b) of the circular falling under the caption ""final order

administers a caution against premature retirement shortly after a person is allowed to cross the efficiency bar or is confirmed. The word ""shortly

assumes crucial importance in this and envisages a situation where a person is sought to be retired immediately after crossing of efficiency bar or

after his confirmation, which would indicate his suitability for service. But even this does not advance petitioner's case because it is not his case that

he was retired shortly after he crossed efficiency bar or was confirmed. As a matter of fact, his last promotion dates back to 1985 and he was

retired three years after.

In the result, I find no merit in this petition, which is dismissed.

Petition dismissed.