Dinesh Maheshwari, J. - (1.) THIS writ petition is directed against the order issued by the Central Government on 30.09.2004 (Annex.26) whereby the petitioner, serving as Deputy Commandant at HQ Jaisalmer Sector, Border Security Force ('BSF'), was ordered to be compulsorily retired from service with immediate effect under Rule 21 of the BSF Rules, 1969.
(2.) THOUGH the petitioner has taken various grounds in the petition seeking to question the validity of the proceedings under Rule 21; and has urged, inter alia, that his ACRs were made without application of mind and actuated by malice of respondent No. 5 but then, learned Counsel for the petitioner gave up the allegations against the respondent No. 5 and limited his submissions on challenge to the impugned order only for non -compliance of the requirements of Clause (3) of Rule 21. On 18.07.2007, while admitting this petition, this Court thus noticed the respective stand of the parties: At the outset, learned Counsel for the petitioner submitted that the petitioner does not want to press any ground against the respondent No. 5 and his name may be permitted to be deleted from the array of the parties. Permission granted. Name of respondent No. 5 is ordered to be deleted. A note to that effect shall be put by the counsel for the petitioner in the cause title during the course of day and shall also put the same endorsement on the copy supplied to the counsel for the respondents. The precise point raised at the time of arguments by the learned Counsel for the petitioner is with reference to Clause (3) of Rule 21 of the BSF Rules, 1969 and it is submitted that while passing the impugned order dated 30.9.2004 (Annexure -26),respondents terminated the services of the petitioner by way of compulsory retirement with pensionary benefits but the petitioner was not called upon to retire or resign as per the requirement of the said Clause (3) that reads thus: The Central Government after considering the reports, the explanation, if any, of the officer and the recommendation of the Director General, may call upon the officer to retire or resign and on his refusing to do so, the officer may be compulsorily retired from the service with pension or gratuity, if any admissible to him. It is also submitted that the precise ground taken in that regard in this writ petition has not been controverted in the reply. Learned Counsel for the respondents contends that the phraseology used in the said Clause could only be treated to be directory in nature and not mandatory. The matter does require consideration. Hence, admit. Mr. M.S. Godara waives service for the respondents. The petitioner has filed a stay petition in this matter. Having regard to the nature of the impugned order, there does not appear any reason to pass any interim order at this stage. However, in view of a short question raised, and in the overall facts and circumstances, the present one appears to be a fit case to be taken up for final disposal at an earlier date. Therefore, without passing any final order on stay application, it is directed that the matter be listed for final disposal at orders stage on 22.10.2007. In view of the short point involved, a brief reference to the relevant facts and aspects would suffice. The petitioner was appointed in the Border Security Force as Assistant Commandant with effect from 05.10.1987 and was promoted to the rank of Deputy Commandant with effect from 13.02.1993. While posted at Sector Headquarter, Jaislamer, he was served with a notice dated 3/4th February, 2004 for initiation of action under Rule 21 of the BSF Rules, 1969 (Annex.24) on the grounds that there had been adverse remarks in his ACRs for the years 1996 -97 and 2001 -2002; that he had been warned/conveyed displeasure by the concerned DIGs and DG on 23.09.1996, 10.10.1996, 08.10.2001 and 21.02.2003; and that his CR Dossier reveals consistent average/poor gradings since the year 1996 -1997. It was alleged that due to his indisciplined activities, callous and casual attitude towards work/profession, physical weakness due to addiction to alcohol and overall inefficient and poor performance from 1996 onwards, his services were not useful to the organisation and he has become a liability to the Force.
(3.) IT was also stated that the petitioner was not amenable to discipline and has not shown any improvement in performance, discipline and conduct despite repeated advice/caution.;