Merely Because There Are Cash Rewards, It Does Not Mean The Employee Is Fit To Be Retained In Service: J&K & L High Court

Clarifies Scope Of Judicial Review In BSF Rule 26 Cases 
 

Retirement Under Rule 26 Is Not A Punishment But An 

Administrative Action Based On Unsuitability — In a significant ruling High Court of Jammu & Kashmir and Ladakh at Jammu upheld the validity of compulsory retirement of a BSF constable under Rule 26 of the BSF Rules, 1969, holding that courts cannot interfere merely because the petitioner had received rewards or because the punishment inflicted earlier was lenient. Justice Rajnesh Oswal, rejecting the plea of double jeopardy and arbitrariness, categorically held, “Retiring an enrolled person on the ground of unsuitability by taking into consideration the earlier occasions when he was punished for the offences does not amount to punishing an individual twice for the same act.” 
 

The petitioner, Rattan Lal, who had rendered 15 years, 10 months, and 4 days of service in the BSF, was prematurely retired by the respondents on 31.07.2006 under Rule 26 of the BSF Rules. The petitioner’s contention was that the retirement order was based solely on adverse entries, overlooking his 15 cash rewards, and that he had already been punished earlier for those alleged offences. He argued that “he has been punished twice for the same offence”, invoking the protection against double jeopardy. 
 
The respondents, however, pointed out that the petitioner had a repeated history of misconduct, including six punishments and 30 days’ rigorous imprisonment awarded by the Summary Security Force Court (SSFC). Despite multiple warnings, including a specific caution vide notice dated 24.01.2004, the petitioner persisted in indiscipline. The respondents submitted that the decision was taken after “considering the entire service profile, including his failure to improve despite warnings.” 
 
 

Justice Oswal, while examining Rule 26, held that “the only requirement is to determine the unsuitability of enrolled person to be retained in force” and once such satisfaction is recorded by the competent authority after following the due process, courts cannot act as appellate bodies to assess whether the evidence was sufficient. 
 
Dealing directly with the argument of double jeopardy, the Court observed, “Retirement on account of unsuitability as per Rule 26 of the BSF Rules is not violation of any fundamental right of the petitioner and it is not a case of double jeopardy.” 
 
The Court further clarified, “The respondents have retired the petitioner by taking into consideration his overall conduct and performance.” 
 
Importantly, the Court noted that while the petitioner had secured 15 cash rewards, they were only indicators of specific good work and not a conclusive proof of sustained good conduct necessary for retention. The Court made it clear, “Merely doing good work for few occasions does not necessarily mean that the employee is very good and useful for the organization and cannot be retired prematurely when in the estimation of employer, the employee is not fit person to be retained in service.” 
 
 

Referring to the Supreme Court’s authoritative pronouncement in 
Amarendra Kumar Pandey vs. Union of India, the Court reiterated, “The Courts cannot act as an appellate or revisional authority for the purpose of determining as to the sufficiency of the material leading to formation of the opinion.” 
 
The Court emphasized that the power to retire is based on subjective satisfaction of the Commandant, provided the procedure is adhered to. Quoting directly from the judgment, the Court held, “Once the competent authority has recorded its satisfaction on the basis of some material with regard to unsuitability of the member of the force to be retained, the Courts cannot act as an appellate or revisional authority.” 
 
The Court distinguished the judgment relied upon by the petitioner in Veerendra Kumar Dubey vs. Chief of Army Staff, by holding, “The observations in Veerendra Kumar Dubey were made in the context of Rule 13 which does not statutorily provide for discharge based on a fixed number of red ink entries, but Rule 26 of BSF Rules specifically empowers such retirement based on unsuitability.” 
 
 

Justice Oswal concluded, “This Court does not find any infraction of rule which may compel this Court to take a view contrary to the opinion formed by the respondent No.5.” The Court firmly upheld that the decision was based on due consideration, was not arbitrary or mala fide, and could not be interfered with in judicial review. “The Court cannot be converted into an appellate forum in service matters where the competent authority, based on material available, forms a view regarding the utility of a member in a disciplined force,” the Judge further remarked. 
 
In conclusion, the writ petition was dismissed, affirming the authority of the employer under Rule 26 of the BSF Rules. 
 
  Date of Decision: 01 March 2025