Surender v. Union of India

1. The present review petition under Order XLVII Rule 1 of CPC read with Section 151 of the Code of Civil Procedure (CPC), 1908, has been instituted on behalf of the original petitioner seeking review of an order passed by the Co-ordinate Bench of this Court on 17.07.2019, whereby his petition seeking quashing of orders dated 02.11.2018 and 23.07.2018, rendered by the Border Security Force (BSF), in accordance with Rule 25 of the Border Security Force Rules, 1969, retiring him from service on the ground of physical unfitness w.e.f. 23.07.2018, came to be dismissed.

2. Learned counsel appearing on behalf of the review petitioner, has invited our attention at length to the order under review dated 17.07.2019.

3. It is an admitted position that, prior to his retirement from service on the grounds of physical unfitness, the review petitioner was served with a show-cause notice under Rule 25 of the Border Security Force Rules, 1969, requiring him to respond to the proceedings of the Medical Board, which had found him to be suffering from 59% disability due to Bipolar Affective Disorder (for short ‘BPAD’).

4. For the sake of completeness, Rule 25 of the BSF Rules, 1969, is reproduced herein below:-

25. Retirement of subordinate officer and enrolled persons on grounds of physical unfitness.-30 [(1) Where a Commandant is satisfied that a Subedar- Major, an Inspector], a Sub-Inspector, an Assistant Sub-Inspector or an enrolled person is unable to perform his duties by reason of any physical disability, he may direct that the said Subedar-Major, the Inspector,] the Sub-Inspector, the Assistant Sub- Inspector] or the enrolled person, as the case may be, to be brought before a Medical Board.] (2) The Medical Board shall be constituted in such manner as may be determined by the Director- General. (3) 31 [Where the said Subedar-Major, Inspector, Sub- Inspector, Assistant Sub- Inspector or enrolled person is found by the Medical Board to be unfit for further service in the force, the Inspector General, the Deputy Inspector-General or as the case may be, the Commandant may, if he agrees with the finding of the Medical Board order the retirement of the Subedar- Major, the Inspector, the Sub-Inspector, the Assistant Sub-Inspector, as the case may be, the enrolled persons: Provided that before the said Subedar-Major or Inspector or Sub-Inspectoror Assistant Sub-Inspector or as the case may be, the enrolled person is so retired the finding of the Medical Board and the decision to retire him shall be communicated to him. (4) The Subedar-Major, the Inspector, the Sub- Inspector, the Assistant Sub- Inspector or, as the case may be, the enrolled person may, within a period of fifteen days from the date of receipt of such communication, make a representation to the officer next superior in command to the one who ordered the retirement.] (5) The said superior officer shall have the case referred to a Review Medical Board which shall be constituted in such manner as may be determined by the Director-General. (6) The superior officer may, having regard to the finding of the Review Medical Board, pass such order as he may deem fit. (7) Where a representation has been made to a superior officer under sub-rule (4), an order passed under sub-rule (3), shall not take effect till it is confirmed by such superior officer.

5. It is further an admitted position that the review petitioner did not respond to the show-cause notice dated 31.05.2018 (Annexure R-1), till the date of his retirement i.e. 23.07.2018.

6. It is in that backdrop that the review petitioner was retired on the grounds of physical unfitness, in terms of the said Rule 25 of the Border Security Force Rules, 1969, w.e.f. 23.07.2018.

7. Additionally it is also observed from the record that the representation filed by the petitioner regarding the medical pension was also made, belatedly, on 14.09.2018.

8. The review petitioner thereafter submitted a representation dated 10.08.2018 to the Inspector General along with a medical certificate issued by Institute of Mental Health, UHS, (PGIMS) Rohtak, admittedly even the said certificate dated 10.08.2018, categorically opined that the review petitioner was suffering from BPAD and assessed his current disability at less than 40%.

9. In view of the foregoing, by way of the order under review dated 17.07.2019, this Court observed that:

10. The review petitioner despite a specific query from the Bench, has been unable to establish how the order under review dated 17.07.2019, suffers from an error apparent on the face of the record, save and except to state that he had appeared before the competent authority i.e. the Medial Committee and was not granted any benefit.

11. The review petitioner has, however, attempted to re-argue the petition itself before this Court.

12. In view of the foregoing, we find no merit in the present review petition and the same is accordingly dismissed and disposed of.

13. A copy of this judgment be uploaded on the website of this Court forthwith.