Administrative decisions regarding compulsory retirement based on subjective satisfaction of authorities are not subject to judicial review unless proven to be arbitrary or mala fide.

JUDGMENT

Navin Chawla, J. (Oral)

The petition has been heard by way of video conferencing.

CM 36709/2021 (exemption)

Allowed, subject to all just exceptions.

W.P.(C) 11866/2021

1. This petition has been filed by the petitioner challenging the order dated 12.09.2020 passed by the Commandant, 100 BN, BSF directing compulsory retirement of the petitioner from service under Rule 26 of the Border Security Force Rules, 1969 (hereinafter referred to as the `Rules') with effect from 12.09.2020. The petitioner further challenges the order dated 13.01.2021, passed by the respondent no.3, dismissing the petition of the petitioner in challenge to the above order, and communications dated 12.02.2021 and 31.03.2021, informing the petitioner of such dismissal of his petition.

2. It is the case of the petitioner that the petitioner was enrolled as a Water Carrier in the Border Security Force (hereinafter referred to as `BSF') in the year 2014. For the first two years, he was posted in Jammu & Kashmir (Kupwada & Srinagar) with no complaints. However, for reasons best known to the Commandant 100 BN, BSF, the petitioner's APAR entries were downgraded and ten punishments were awarded to him during the period 2017 to May, 2020. The petitioner further asserts that the same Commandant then went on to pass the impugned order dated 12.09.2020, directing compulsory retirement of the petitioner from service. The petitioner asserts that his appeal/representation/petition against the said order was also rejected without appreciating the contentions raised in such appeal/representation/petition.

3. The learned counsel for the petitioner submits that the punishments awarded to the petitioner as also his downgrading of APAR has been done by the same Commandant and therefore, should not be taken at face value. He further submits that the appeal/representation/petition of the petitioner against the order dated 12.09.2020 has been dismissed without appreciating the contentions raised by the petitioner in such appeal/representation/petition. He submits that the petitioner was facing critical conditions at home with his son, wife, father and grandfather all being unwell and therefore, a compassionate view should have been taken in the matter.

4. To a pointed query of this Court as to whether the punishments awarded to and the APAR entries of the petitioner were challenged by the petitioner, the learned counsel for the petitioner fairly admitted that the same remained unchallenged, however, gave an explanation that in the Forces, the Commandant is considered like a father and no one raises a protest against his decision.

5. We have considered the submissions made by the learned counsel for the petitioner, however, find no merit in the same.

6. Rule 26 of the Rules is quoted herein below:

"26. Retirement of enrolled persons on grounds of unsuitability.-Where 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."

7. In the present case, the order dated 13.01.2021 dismissing the appeal/representation/petition of the petitioner records that in a period of service of 6 years, 4 months and 17 days, the petitioner has earned 10 punishments and has also overstayed leave five times. The order further notes that in the last seven years' assessment of the petitioner, his APARs have been `Good and Average' with the last two years being