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 on 31.05.2018. Counsel pointed out that the said notice mentions the fact of the approval by the competent authority on 09.05.2018 which is a date post 07.05.2018 and therefore, it is clear that the said notice was prepared in advance which also clarifies the mala fide intention of the authority issuing the same.

4. Per contra, learned counsel for the respondents submitted that the Medical Board was constituted in terms of the Rules of 1969 and the Medical Board so constituted, after thorough clinical examination and the complete analysis of the mental status of the petitioner reached to the conclusion that the petitioner was medically unfit. Learned counsel further submitted that in terms of Rule 25, soon after the receipt of the report of the Medical Board, the petitioner was served with a show cause notice which was served on 07.06.2018. The petitioner did not choose to file any representation within the stipulated period and therefore, the Department had no other option than to pass an appropriate order in terms of Rule 25 of the Rules of 1969. Learned counsel further submitted that the requirement of Rule 25 was only to serve the findings of the Medical Board to the delinquent and not the report of the Medical Board. He submitted that the show cause notice specifically clarifies the findings of the Medical Board and therefore, the requirement as mentioned in Rule 25 of the Rules of 1969 was completely taken care of. Learned counsel submitted that the format of the medical certificate which was required to be submitted by the petitioner alongwith his representation was annexed alongwith the show cause notice and the same being not submitted within the stipulated time, the petitioner cannot now challenge the order of termination which was passed after the lapse of the stipulated period. Learned counsel also submitted that Rule 28A of the Rules of 1969 specifically provides for an alternative remedy i.e. a petition to the competent authority being available to the petitioner which he did not avail of and submitted the present petition directly before this Court which cannot be entertained.

5. Heard learned counsel for the parties and perused the material available on record.

6. So far as the first ground of learned counsel for the petitioner that the report of the Medical Board was not served on him is concerned, consideration of Rule 25 for that matter would be relevant. Rule 25 of the Rules of 1969 reads as under:

“25. Retirement of subordinate officer and enrolled persons on ground of physical unfitness. - (1) Where a Commandant is satisfied that a Subedar, 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, 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 DirectorGeneral.

(3) Where the said Subedar, 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, the SubInspector, or as the case may be, the enrolled persons:

Provided that before the said Subedar or 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, the Inspector, 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.”

7. A bare perusal of Proviso to Rule 25(3) of the Rules of 1969 makes it clear that what is required to be communicated to the enrolled person is the finding of the Medical Board and the decision to retire him. The show cause notice dated 07.05.2018 (signed on 31.05.2018) reads as under:

“Whereas, you were produced before a duly constituted Medical Board held at Composite Hospital, BSF, Jodhpur on 19 March 2018, which has examined your medical fitness for efficient discharge of your duties as Constable (GD). After careful examination, the medical board has placed you under low medical category S5H1A1P1E1 with 43% disability d-ue to “Mixed Anxiety Depressive Disorder” and declared you medically unfit for further service in the Force. The board proceedings have been approved by the Competent Authority i.e. IG/Director (Medical), R K Puram, New Delhi on 09 May 2018.

2. Whereas, I, the undersigned agree with the findings of the Medical Board and after careful consideration, I have decided to retire you from service on the grounds of physical unfitness under provisions of Rule 25 of BSF Rules, 1969.”

8. A bare reading of the show cause notice makes it clear that the specific finding that the Medical Board has found the petitioner to be under low medical category S5H1A1P1E1 with 43% disability due to “Mixed Anxiety Depressive Disorder” has been incorporated in the same. Meaning thereby, the finding of the Medical Board had specifically been communicated to the petitioner. Vide the said notice, the petitioner was also specifically directed to file his representation in terms of law within the prescribed time if he wished to do so. Admittedly, the said notice was served on the petitioner on 07.06.2018 and the impugned order of termination was passed on 23.07.2018 i.e. after more than 1½ months of service of the notice. The petitioner did not prefer any representation or any communication to the respondent Department either raising any objection qua non-service of the medical report or his inability to file the representation in absence of the said report. The petitioner did not even choose to pray for extension of time for filing the representation because of his medical condition. Therefore, as held by the Division Bench of Delhi High Court in H.C. Kashinath Yadav Vs. Border Security Force & Anr reported in (2004) 1 SLR 591, the respondents were not obliged to wait for him endlessly and were entitled to conclude in the circumstances that he had accepted the finding of the Medical Board and did not want to seek any review. The Division Bench while dealing with the ground that the petitioner therein was denied the opportunity to make the representation observed as under:

“7. Having said that, it does not appear to us that petitioner was denied the opportunity to make the representation under Rule 25(4) which would have entitled him to a second check by the Review Medical Board. Because it is not his case that he had made the requisite representation even till the last minute on 12.5.2000 or that he was preparing to do it even on 13.5.2000. His only plea is that respondents had not waited till 13.5.2000 and that they should have passed the order only on 14.5.2000. This, in our view, is only an attempt to catch at straws. Because the fact remained that petitioner had all the time to make the representation after receipt of notice on 28.4.2000 but which he had failed to do. The respondents were not obliged to wait for him endlessly and were entitled to conclude in the circumstances that he had accepted the finding of the Medical Board and did not want to seek any review. A day here and there becomes inconsequential in such a situation. Because the petitioner had at no stage shown any intention or action to indicate that he was in the process of making a representation or that respondents acted in hot-haste to close his option in the matter.

8. Petitioner’s second plea must also fail because his unfitness for physical disability was to be ascertained by the duly constituted Medical Board under the Rules and not in a routine annual medical check-up to be conducted by the Unit doctor. The report of such a check-up would not, Therefore, over-ride the findings of a duly constituted Medical Board under Rule 25 which were conclusive, if not challenged or opposed before the Review Medical Board and if not upset in the process.”

9. In view of the above observations, in the present matter, it cannot be concluded that the service of the report of the Medical Board was mandatory in terms of the Rules of 1969 and that the petitioner could not have filed his representation in absence of the said report. Secondly, so far as the argument of the learned counsel for the petitioner pertaining to the date of show cause notice is concerned, it is clear on record that although the notice is dated 07.05.2018, it has been signed on 31.05.2018 and was served on the petitioner on 07.06.2018. Meaning thereby, it had been signed and dispatched after the receipt of the approval by the competent authority on 09.05.2018. It had been pleaded by the petitioner in the writ petition that he could not submit his representation because he was not well and he had joined on 07.06.2018 only after availing his medical leave and again went back on medical leave from the very next day. The said fact has been denied in the reply to the writ petition and it has been specifically averred that the petitioner was very well on duty not only on the date of service of notice but also the date prior to that.

10. So far as the ground of the report of the Medical Board being biased is concerned, I have gone through the complete medical reports as placed on record. The Medical Board had not only clinically examined the petitioner but had made a thorough examination of his medical status right from the inception of his ailment. The relevant observations of the Medical Board reads as under:

“The Individual was at his home in Jodhpur in the month of Nov’ 2014. His father had noticed some abnormal behaviour and loss of appetite and excessive alcohol intake by the individual (his son). Then the father took him to the OPD of Dept of Psychology of Dr. S N Medical college, Jodhpur on 18.11.2014. He was noted of having complaints of sleep deprivation, depression, loss of appetite, alcoholism. He was diagnosed, Psychological test report enclosed dated 18.11.14, as case of Depression with alcohol dependence and given medication for 60days. Again he was taken to same hospital on 29.11.2014 for the same complaints where he was given medications. He was in regular followup since then. He consulted Dr. G D Koolwa on 06.12.14 at Jodhpur. He was diagnosed as a case of Depression and was advised medicine for 02 months. He was placed in LMC S2(T24)H1A1P1E1 wef 01.01.2015 by unit MO for ‘depression with alcohol dependence syndrome’. On 30.01.15 he suffered from breathlessness and hypertension and was taken to CH, CRPF, Palipuram,Kerala. He was managed conservatively. Trop-T was negative. He was referred then to medical college hospital Thiruvananthapuram. He recovered from his illness after conservative treatment. He came back and again consulted psychiatrist Mental Health Centre Thrissur on 02.02.2015 and took medication for one month. Later he stopped medications on his own due to complaints of drowsiness and weight gain. He was referred to Psychiatrist SMCH Silchar on 30.12.15 where he was given medications and review after 2 months. He was placed in LMC S3(T24)H1A1P1E1 on 23.02.2016 by MB.

After that he was in regular follow-up at SMCH, Psychiatrist since 14.05.2016. Later he was sent to Psychiatrist SMCH on 19.09.2016 where he was adviced regular follow- up and medications. Presently, after joining 157 BN BSF he is a F/U case of PBM Hospital, Bikaner with the diagnosis of Mixed anxiety depressive disorder. On 19.07.17 the patient consumed 14 Acetalopram and Propranolol 10 Tab at his residence and was evacuated to CHC, Khajuwala in semi-conscious state. Gastric Lavage was done and he was manged conservatively, after which he recovered well. This was a suicidal attempt on his part and thus his mental state is unpredictable. He attended OPD of PBM Hospital, Bikaner on 28.07.17. He was on medication Tab Elcitalopram (10mg) 01 OD, Tab Propranolol ½ OD, Tab Clonazepam (0.5mg) ½ ---0---1. He is also a F/U case of MDM Hospital, JDR and CH, CPMF, JDR. He attended PBM Hospital, Bikaner on 22.02.18. On 26.02.18 at PBM Hospital, Bikaner he was advised medicines:- TabElcitalopram 10 mg 1-0-0, Tab- Propranolol 40 mg ½–-0--½, Tab- Sodium valproate 200 mg 1- 0-1, Tab- Diazepam 5mg ½–-0--1, Cap- PantopD 01 OD AC. As per report he has no compliance at work in the 157 BN. He is also being reported with excessive consumption of alcohol. He complains of sleep deprivations and depression off and on since beginning. It is again aggravated after consuming alcohol. He is not allowed to handle arms and ammunition.”

11. A bare perusal of the above observations makes it clear that not only the present medical status but the history of the ailment of the petitioner right from the year 2016 to 2018 was considered in detail along with the specific opinion of the specialist. It is after thorough examination and the complete consideration of the medical history of the petitioner that the Medical Board reached to the conclusion that the petitioner was not medically fit. Therefore, it cannot be concluded that the report of the Medical Board was biased or based only on the report of the Commandant as alleged by the counsel.

12. In view of the observations and in view of the ratio as laid down in the case of H.C. Kashinath Yadav (supra), this Court is not inclined to interfere in the impugned order dated 23.07.2018 and the present writ petition is therefore, dismissed.

13. All the pending applications also stand disposed of.