Patna High Court
Shivdani KumarversusThe Union Of India and Ors
- Decided
- Disposal
- DISMISSED
Holding
The termination was valid as the petitioner was a probationer and the appointment letter did not require advance notice, rendering the procedural requirements of Rule 25(5) inapplicable.
Summary
Shivdani Kumar, a probationary constable in the Border Security Force, was terminated on 31 May 2013 after a medical board declared him permanently unfit due to tubercular pleural effusion. He challenged the termination by filing a writ petition seeking certiorari and mandamus, arguing that Rule 25(5) of the BSF Rules required referral to a Review Medical Board and prior notice. The respondents contended that the rule applied only to regular employees and that the appointment letter expressly allowed termination of probationers without advance notice. The court examined the medical board's findings, the applicable BSF Rules, and the terms of the appointment letter. It held that, as a probationer, the petitioner was not entitled to the procedural safeguards afforded to regular personnel and that the termination was valid. Consequently, the writ petition was dismissed for lack of merit.
Issues considered
- Whether termination of a probationary BSF constable found unfit by a medical board without referral to a Review Medical Board violates Rule 25(5) of the BSF Rules, 1969.
- Whether a probationer is entitled to advance notice of termination under the appointment terms.
Legislation cited
Subjects
- termination
- probation
- medical unfitness
- Border Security Force
- writ petition
- certiorari
- mandamus
- review medical board
- procedural fairness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17708 of 2013
======================================================
Shivdani Kumar S/O Shidheshwar Prasad Resident Of Village- Asthawan,
P.O- Asthawan, District- Nalanda.
... ... Petitioner/s
Versus
1. The Union Of India
2. The Director General Directorate General Border Security Force Block 10
Cgo Complex, New Delhi.
3. The Inspector General Border Security Force, Siliguri Kadam Tala North
Bengal
4. The Deputy Inspector General Border Security Force Campus, Kishanganj,
Khagra Camp
5. The Commandant- 14, B.N. Border Security Force, Kishanganj, Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Sudish Kumar, Adv.
For the UOI : Mr. Bindhyachal Rai, Sr. Panel Counsel
======================================================
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 19-01-2026
1. The present Writ petition is filed for
the following reliefs:
(i) For issuance of a writ in
the nature of certiorari quashing the
order dated 31.05.2013 vide order
No. 549(A/MBO/E SH/14Bn/ 13.9940-
46 passed by Commandant, 14 Bn
B.S.F., Kishanganj, Bihar
(respondent No. 2(Annexure-2))
whereby and whereunder the
petition has been terminated from
his service as a post of constable of
14 Bn B.S.F.
(ii) For issuance of a writ
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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in the nature of mandamus directing
the respondent to restore the
service of petitioner with
consequential benefits.
(iii) For issuance of such
other writ(s), Order(s) or direction(s)
as your lordship may deem fit and
proper.
2. The brief facts, as culled out from the
writ petition, are that the petitioner joined service
on 19.06.2012 as a Constable of 14 Bn., B.S.F.,
Kishanganj, vide Commandant No. 12/08/801. The
petitioner was recruited to the post of Constable
after successful examination by the Medical Board,
at the time of recruitment. Subsequently, the
petitioner got the treatment for tuberculosis but at
present, he is medically fit to discharge his duties,
as is evident from the certificate/prescriptions
dated 14.01.2013 issued by Kishanganj
Government Hospital. Without issuing any show-
cause notice, the petitioner was terminated from
his service vide Order No. 549(A)/M.B.O./East/
14Bn/13/9940-46 dated 31.05.2013 by respondent
No. 5, and no copy of the medical report was
served upon him. Being aggrieved by the same,
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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the petitioner preferred an appeal under Border
Security Force (BSF) Act, 1968 before D.I.G, B.S.F.,
Kishanganj on 25.09.2013. Thereafter, vide letter
No. 5546-47 dated 08.07.2013, he was informed
that the appeal was required to be preferred before
the I.G., B.S.F., North Bengal instead of the D.I.G.
Accordingly, the petitioner preferred an appeal
before the I.G. (respondent No. 3) on 12.07.2013.
However, due to inaction of the respondents, the
present Writ petition was filed.
3. During the pendency of the Writ
petition, the petitioner filed an I.A. No. 6568 of
2013 challenging the order of the appellate
authority, and the said I.A. was allowed. The relief
sought reads as follows:
(i) For issuance of a writ
Certiorari to quash the order
contained in letter (Estt 1/WO(CF)
shivdani/NBF/2013/11376-79 dt.
29.8.2013 issued by Respondent no
3 by which the petitioner
application/representation dt.
12.7.2013 for reconsideration of
termination of petitioner dt.
31.5.2013 on the recommendation
of medical Board for reinstatement
in service was rejected having no
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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grounds or no merit in the
representation.
(ii) Petitioner further prays
after quashing of representation of
petition dated 29.8.13 the petitioner
be resumed the service along with
all the consequential benefits the
period of termination of petitioner
be counted as continued as service.
4. A detailed counter affidavit was filed
on behalf of the respondents, denying the
allegations made in the Writ petition. The counter
affidavit disclose that the petitioner was
terminated by Commandant, 14 Bn., B.S.F., after
due compliance with the procedure and provisions
as envisaged under the B.S.F. Act and Rules. The
petitioner was found permanently unfit, for further
service in the B.S.F. by the Medical Board of
doctors, as he was suffering from “Tubercular
Pleural Effusion(LT)”, and thereafter, his services
were terminated.
5. The counter further disclose that the
order dated 31.05.2013 was issued in accordance
with the procedure prescribed under Rule 13,
Appendix-I, Part-II (Condition No.2) of B.S.F. Rules,
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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1969, and the instructions issued by FHQ, Pers.
Dte. (Rectt. Section) vide Letter No. 29/40/(WO)/99-
2002/ Rectt/BSF/1441-1741 dated 28.01.2003. It
was further submitted that there was no
requirement to give any advance notice to the
petitioner, prior to termination, as he was still on
probation, and this fact had been duly intimated to
him, in the offer of appointment dated 07.06.2012,
vide para (2)(b).
6. Further, the petitioner was examined
by Dr. N.K. Prasad, Head of Department of the
Revised National Tuberculosis Control Programme,
Sub-Divisional Hospital, District- Kishanganj, and
was diagnosed as “a suspected case of Pulmonary
Effusion(LT)” and CAT-I treatment was started after
examination.” Subsequently, the petitioner was
examined by the Medical Board, which found him a
case of “Tubercular Pleural Effusion(LT)” and
declared him unfit for further service in B.S.F.
7. Heard the Learned counsel for the
petitioner as well as the Learned counsel for the
respondents. Perused the records.
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8. The Learned counsel for the petitioner
relied on Rule 25(5) of The Border Security Force
Rules, 1969, which reads as follows:
25. Retirement of
subordinate officers and enrolled
persons on grounds of physical
unfitness.- [(1) Where a
Commandant is satisfied that a
Subedar Major, an Inspector], a Sub-
Inspector, an Assistant 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-Major, the
Inspector, the Sub-Inspector, the
Assistant 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 Director-
General.
[(3) Where the said
Subedar-Major, Inspector, Sub-
Inspector, Assistant 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-
Major, the Inspector, the Sub-
Inspector, the Assistant Sub-
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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Inspector, or as the case may be, the
enrolled persons:
Provided that before the
said Subedar-Major or Inspector or
Sub-Inspector or Assistant Sub-
Inspector or as the case may be, the
enrolled person is so retired the
finding of the Medical Board and the
diecision to retire him shall be
communicated to him.
(4) The Subedar-Major, the
Inspector, the Sub-Inspector, the
Assistant 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.
9. It is the contention of the Learned
Patna High Court CWJC No.17708 of 2013 dt.19-01-2026
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counsel for the petitioner that, as per the said
Rule, the petitioner ought to have been referred to
a Review Medical Board, which is to be constituted
in the manner determined by the Director General.
However, without referring the petitioner to the
Review Medical Board, he was terminated from the
service which is illegal and arbitrary in nature.
10. On the other hand, the Learned
counsel for the respondents contended that this
Rule applies only to regular government
employees and not to the probationers. Further,
the Learned counsel for the respondents
contended that the petitioner was initially
examined by the Civil Surgeon of the Government
Hospital and thereafter, he was referred to the
Medical Board. The Medical Board diagnosed the
petitioner and found that he was not fit for further
service, as he is suffering from “Tubercular Pleural
Effusion(LT).” Basing on the report of the Medical
Board, his service was terminated, and therefore,
there is no error or irregularity in the orders passed
either by the Commandant or by the appellate
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authority.
11. Taking into consideration the entire
material available on record and the submissions
advanced by the Learned counsel for both the
parties, this Court is of the considered view that
the Medical Board itself found the petitioner unfit
to continue the service. Moreover, the petitioner
was a probationer, and the letter of appointment
disclose that there was no requirement of issuing
any advance notice, prior to termination of service.
12. Therefore, this Court finds that there
is no merit in the case. Accordingly, the Writ
petition is dismissed, as it devoid of merits.
13. Interlocutory Application, if any, shall
stand disposed of.
(G. Anupama Chakravarthy, J)
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