JUDGMENT
Mukundakam Sharma, J.
1. As the facts and issues raised in these petitions are similar I propose to dispose of both the writ petitions by this common judgment/order.
2. The writ petitions are filed by the petitioners seeking for quashing and setting aside of the orders of retirement of the petitioner from service under the provision of Rule 26 of the Border Security Force Rules.
3. Both the petitioners were issued warning letters intimating them that there are red entries in their service records and that if they did not improve their conduct and discipline necessary action would have to be taken against them. Subsequently, show cause notices were issued to the petitioners contending inter alia that the service record of the petitioners indicate that several punishments and adverse entries have been awarded to the petitioners. It was also stated that in view of their consistent poor performance they were un-suitable for further retention on the Force. In view of the aforesaid position the competent authority issued the said show cause notices to the petitioners tentatively proposing to retire them from service under the provisions of Rule 26 of the Border Security Force Rules.
4. The petitioners submitted their replies wherein the award of punishment is not disputed. It was stated in the said replies that in future the petitioners would not do such type of work and that they might be excused. The Competent Authority considered the said replies submitted by the petitioner. The said authority however, found the said replies unsatisfactory and therefore, passed the impugned orders, the legality of which is challenged in the present writ petition.
5. It was contended by the counsel appearing for the petitioners that both the petitioners were allowed to cross efficiency bar sometime in the year 1994 and 1995 and therefore, the punishment awarded to them prior to the said date stood wiped out with the crossing of the aforesaid efficiency bar and the punishment awarded to the petitioners prior to the said date could not have been considered by the respondents for taking action under Rule 26 particularly in view of the circular issued by the Government of India, Ministry of Home Affairs of 2.6.1988 which provides that where a person is allowed to cross efficiency bar or is confirmed there would be no justification for declaring him un-suitable shortly after he was adjudged suitable for crossing the efficiency bar or confirmation. It was submitted by the counsel that both the petitioner had not only crossed the efficiency bar but were also confirmed by virtue of the deeming provision as they had completed more than two years of service. Counsel for the petitioner further submitted that the respondents have submitted in their counter affidavit that the retention of the petitioners was undesirable which was punitive in nature and therefore, no action under Rule 26 of the BSF Rules could have been taken by the respondents and the only recourse could have been through institution of appropriate departmental proceedings.
6. Ms. Jyoti Singh, appearing for the respondents, however, submitted that the petitioners had earned 5 punishments during the entire service. She also submitted that the deterioration in the discipline and conduct of the petitioners was brought to their notice by issuing letters of advice/warning and in spite of receipt of such warning the petitioners did not improve their discipline and conduct but on the other hand subsequent thereto they had earned more punishments. It was submitted by her that even after crossing the efficiency bar the petitioners have earned 2 or 3 more punishments each and therefore, the impugned action was taken against them after following the procedure prescribed under the provisions of Rule 26 of the Border Security Force Rules.
7. In the counter affidavit filed by the respondent the details of the punishments awarded to the petitioners have been set out. The same disclose that even after crossing the efficiency bar Shri Mahesh Kumar, petitioner in C.W.P. 4243/1999 had earned three punishments whereas the other petitioner had earned two punishments. Both the petitioners in their service carrier have earned five red entries which factor was assessed by the Competent Authority while taking aforesaid action under Rule 26 of the Border Security Force Rules. The petitioners were given letters of warning and even after issuance of the same the petitioners continued to earn RED ENTRIES in their service books. Rule 26 of the BSF Rules provides as follows:-
26. Retirement of enrolled person on the ground of unsuitability:-
Whereas a Commandant is satisfied that an enrolled person is unsuitable to be retained in the Force, the Commandant may, after giving such enrolled person an opportunity of showing cause (except when he considers it to be impracticable or inexpedient in the interest of security of the State to give such opportunity), retire such enrolled person from the Force.
In terms of the aforesaid provisions the show cause notices wee issued to the petitioners asking them to show cause why the proposed action should not be taken against them. In the said notices it was stated that the petitioners in their service career had earned several punishments the details of which are set out in their service records. The petitioners belonged to a disciplined force and the impugned actions were taken against the petitioners after making an assessment about the suitability of the petitioners who had bad records of service. The said assessment was made by Board of Officers which was duly constituted. The said Board recommended retirement of the petitions on the ground of unsuitability under the provisions of the Rule 26 of the Border Security Force Rules. The aforesaid orders were passed not because the petitioners were guilty of any misconduct but because it was found that their further retention in service was uncalled for. Therefore, the said orders cannot be said to be punitive in nature and therefore, no enquiry was called for as suggested by the counsel appearing for the petitioner. The aforesaid orders retiring the petitioners from service were not passed by way of penalty but exercising an independent and exclusive power conferred under Rule 26 of the Border Security Force Rules. Reference could also be made to the decision of the Division Bench of this court in case Ex. Head Constable Satbir Singh Malik v. Union of India and Ors.; CWP No. 4822/1995 disposed of on 27.10.1997. In the said decision it was held by the Division Bench that the purpose of enacting Rule 26 of the BSF Rules was to empower the Competent Authority to compulsorily retire a member of the Force which is necessary to ensure maintenance of utmost discipline in the force in the absence of which the Force cannot be expected to function efficiently. It was further held that in each case on examination of the service record, considering the punishments imposed and the poor performance, an opinion was formed by the Competent Authority that the petitioners were not suitable and had outlived their utility in the Force and therefore the action taken under Rule 26 cannot be said to be arbitrary.
8. In the present case also the duly constituted Board considering the service records of the petitioners in which red entries were recorded indicating the punishment imposed on the petitioners and on consideration of the same it was found that the performance of the petitioners was poor and on the basis of the said recommendations of the Board an opinion was formed by the Competent. Authority that the petitioners were not suitable and had outlived their utility in the force. In terms of the aforesaid, satisfaction the impugned orders were issued after complying with the procedure prescribed therein.
9. Counsel appearing for the petitioner strongly relied upon Clause (b) under the head “Final Order” of the circular dated 2.6.1988, the contents of which have already been set out in paragraph 5 above. A perusal of the same indicates that the aforesaid provision cannot be said to be mandatory. The same was issued in the form of a guideline to be substantive followed by the competent authority while taking action under Rule 26 of the BSF Rules. Besides, according to the petitioners they should be deemed to have been confirmed under deeming provisions as they had completed two years of service much prior to the date of passing of the impugned orders. Both the petitioners were allowed to cross efficiency bar in 1994 and 1995 whereas the impugned actions were taken in the year 1998 and that also after the petitioners incurred and underwent two more punishments in one case and three in the other case and therefore the said provisions is not applicable to the facts and circumstances of the present case. The said provision could apply to an appropriate case where the respondents proceed to take action under the aforesaid provision of Rule 26 shortly after the said person is adjudged suitable for crossing efficiency bar or for confirmation. There is a long time gap in the present cases between their crossing the efficiency bar and their confirmation even if the petitioners are assumed to have been confirmed under a deeming provision. The said provision cannot be made applicable to the cases in hand.
10. Counsel for the petitioner also relied upon the decision in S. Ramachandra Raju v. State of Orissa; and the decision in State of Gujarat v. Umedbhai M. Patel; 2001(2) Scale 261. In those cases it was held by the Supreme Court that the order of compulsory retirement is not a punishment and that the entire service record or Character Rolls or Confidential Reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the Appropriate Authority. It was further held that the entire service record more particularly the latest, would form the foundation for the opinion and furnish the bas to exercise the power under the relevant the bas to exercise the power under the relevant rule to compulsorily retire a Government Officer.
11. As discussed above, it is clear and apparent that in the present cases also the respondents before issuing the impugned order considered the service record of the petitioners including the fact that the petitioners during their service career had incurred about 5 red entries and on the basis of the service records of the petitioners, came to conclusion that they were not suitable for further retention in the Border Security Force.
12. In that view of the matter the decisions taken by the respondents in the cases of the petitioners cannot be said to be contrary to the propositions of law laid down by the Supreme Court. I therefore, find no merit in these petitions and the petitions stand dismissed. However, there will be no order as to costs.