JUDGMENT :

1. The brief facts of the case are as under:

2. The petitioner was appointed as a Constable with BSF vide order dated 13.10.2009. In the year 2014, the petitioner was diagnosed with anxiety and depression and thereafter he underwent treatment for the said ailments at various places wherever he was posted. In the year 2018, the petitioner was produced before the Medical Board constituted by the Department for his examination and the report of the Medical Board was to the effect that the petitioner was not fit for medical category SHAPE-I and he be placed in medical category S5H1A1P1E1. In pursuance to the said medical report, the petitioner was served with a show cause notice under Rule 25 of The Border Security Force Rules, 1969 (hereinafter referred as ‘Rules of 1969’) whereby it was informed to him that in terms of the findings of the Medical Board, the competent authority had decided to retire him from service on the ground of physical unfitness. Vide the notice, the petitioner was directed to file his representation, if any, in terms of Rule 25(4) of the Rules of 1969. No representation admittedly was filed by the petitioner in pursuance to the show cause notice dated 07.05.2018 and therefore, the order dated 23.07.2018 was passed whereby the petitioner was retired from service on the ground of physical unfitness. Aggrieved of the said order, the present writ petition has been filed.

3. Learned counsel for the petitioner submitted that firstly, the impugned order has been passed in contravention to Rule 25 of the Rules of 1969 as Proviso to Rule 25(3) specifically provides that before a delinquent is retired, the findings of the Medical Board and the decision to retire him shall be communicated to him. Learned counsel further submitted that the notice dated 07.05.2018 did not comply with the parameters as laid down in the said Rules. He submitted that no medical report comprising of the findings of the Medical Board was ever served on the petitioner before passing of the impugned order. In absence of the medical report, the petitioner could not have filed the representation which mandatorily required a medical certificate from a special medical officer to be annexed alongwith the same. It is the averment of the counsel that unless and until the report of the Medical Board could have been shown to the specialist medical officer, he could not have issued the certificate as required and therefore, the petitioner was not in a position to submit the certificate as required within the stipulated time. The second argument of the learned counsel is that the findings as reached by the Medical Board are totally biased as the same were based only on the report of the Commandant who had issued the unsuitability certificate qua the petitioner. Learned counsel argued that the Medical Board as constituted did not comprise of any specialist or psychiatrist and thus, the said Board was not competent to reach to a finding pertaining to the medical status of the petitioner. He further argued that the report of the Medical Board was totally on the basis of the prior medical status of the petitioner and on the basis of the report of the Commandant which cannot be said to be independent. Learned counsel further argued that the disability of 43% as calculated by the Board is also totally irrational as the said disability has been calculated only with an intention to somehow conclude his disability to be above 40% so that he could be retired from service as, if he would have been found to be disabled under 40%, he could not have been retired from the service. Learned counsel argued that the complete exercise has been undertaken with an ulterior motive to retire the petitioner from service so that he could not complete his term of 10 years of qualifying service. Learned counsel further submitted that the alleged show cause notice dated 07.05.2018 was served on the petitioner on 07.06.2018 and a perusal of the same shows that it was signed