Patna High Court
Arbind Maharaj vs Union Of India (Uoi) And Ors. on 13 December, 2000
Equivalent citations: 2001(1)BLJR787
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. This writ petition is directed against the order dated 27.10.1998 (Annexure-3), passed by the Headquarters 107 Battalion Border Security Force (hereinafter referred to as BSF), whereby its earlier order dated 4.7.1997 (Annexure-3) has in substance and in effect been rescinded, and acceptance of the petitioner's resignation notice dated 23.6.1997 on account of domestic problems has been withdrawn with consequential directions.
2. The petitioner was appointed on 6.5.1985 as Lance Naik, 107 Battalion, BSF. He served for more than 12 years, where after he submitted letter of resignation dated 23.6.1997 (Annexure-1), which was accepted by BSF by its order dated 4.7.1997 (Annexure-2), in terms of Rule 19(1) of the Border Security Force Rules, 1969 (hereinafter referred to as BSF Rules)"... due to some domestic problems at his home, with full pensionary benefits as per Rules...." His name was struck off the strength of the Force with effect from 13.9.1997 (A.N.). The BSF thereafter issued order dated 27.10.1998 (Annexure-3), whereby the aforesaid order dated 4.7.1997 (Annexure-2) was in substance and effect rescinded on the ground that all those who had resigned under Rule 19 of the BSF Rules with less than 20 years of service be taken back and the period of absence be regularised as per Rules. The petitioner was directed to join the duty forthwith, shall have to refund GPF and other dues paid to him, and the petitioner with all such persons shall retain their seniority.
3. While assailing the validity of the impugned order, earned Counsel for the petitioner submits that the petitioner had resigned, and the authorities had accepted the same, in terms of Rule 19 of the BSF Rules and, therefore, the petitioner is entitled to pension in accordance with the scale provided in Rule 49 of the Central Civil Services (Pension) Rules (hereinafter called Pension Rules). He relies on the judgment dated 29.8.1985 (Annexure-8), passed by a Division Bench of the Delhi High Court in CWP No. 915 of 1994 Kuldip Singh v. Union of India. Learned Additional Standing Counsel for the Central Government submits in opposition that the aforesaid order dated 4.7.1997 (Annexure-2) was issued by the BSF under mistaken impression and was, therefore, rescinded by the impugned order. He further submits that there were no special circumstances in the petitioner's case justifying exercise of the order under Rule 19 of the BSF Rules. He further submits that the petitioner's case is in fact, covered by Rule 3(q) read with Rule 26 of the Pension Rules. He relies on the judgment dated 24.12.1998 (Annexure-A) of a learned Single Judge of the High Court of Jammu and Kashmir.
4. Having considered the rival submissions, I am of the view that this writ petition has to be dismissed. I must first of all deal with the contention advanced on behalf of the petitioner that his case is covered by the provisions of Rule 19 of the BSF Rules relevant portion of which reads as follows:
19. Resignation. - (1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force before the attainment of the age of retirement or before putting in such number of years of service as may be necessary under the Rules to be eligible for retirement:
Provided that while granting such permission, the Central Government may:
(a) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or
(b) make such reduction in the pension or other retirement benefits of the officer if so eligible as that Government may consider to be just proper in the circumstances.
5. It is manifest from a plain reading of this provision that the same is by way of exception to the general provision with respect to grant of pension provided in the Pension Rules. It is only in case of existence of special circumstances of a case that of a case that the Central Government may permit any officer of the Force to resign from the BSF with pension before attainment of the age of retirement or before putting in the specified number of years of service as per the rules. In case the Central Government is satisfied about the existence of special circumstances of a particular case, then either of the two provisos appended to Rule 19(1) may be pressed into service. The scale for fixation of pension is to be found in Rule 49 of the Pension Rules. Thereafter, the power under proviso (b) to Rule 19(1) of the BSF Rules will have to be read with Rule 49 of the Pension Rules. It is relevant to state that Rules 29, 36, 37, 38, 39 and 40 of the Pension Rules dealing with the grant of pension in different kinds of situations need not detain us because it is the common case of the parties that the same are wholly inapplicable to the present case. I must notice the provisions of Rules 3(q), 26 and 48-A of the Pension Rules which are relevant in the present context and are reproduced here in below for the facility of quick reference:-
3...
(q)'qualifying service1 means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules.
26. Forfeiture of service on resignation. - (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under Sub-rule (2), due to the two appointments being at different stations not exceeding the joining time permissible under the Rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:
(i) that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as result of a material change in the circumstances which originally compelled him to tender the resignation;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper.
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
(5). Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualify service.
48. Retirement on completion of 30 years qualifying service. - (1) At any time after a Government servant has completed thirty years qualifying service:
(a) he may retire from service, or
(b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension.
Provided that:
(a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and
(b) the appointing authority may also give a notice in writing to a Government servant to least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice.
Rule 48-A (1) and (2) of the tension Rules are also relevant in the present context and are set out here in below for the facility of quick reference:
48-A. Retirement on completion of 20 years' qualifying service. - (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
(2) The notice of voluntary retirement given under Sub-rule (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
6. It is manifest on a conjoint reading of the aforesaid provisions that a member of the BSF must render the qualifying service within the meaning of Section 3(q) of the Act to entitle him to pension and gratuity admissible under these Rules, As stated hereinabove, the petitioner's case is not covered by Rules 29, 36, 37, 38, 39 and 40 of the Pension Rules. Insofar as Rule 48(a) is concerned, the petitioner can retire on completion of 20 years of qualifying service in which case he shall be entitled to full pension in terms of Rule 49 of the Pension Rules. As stated hereinabove, Rule 49 provides the scale for grant of pension in different situations. It is manifest that the petitioner's case is not covered by the provisions of Rule 48-A of the Pension Rules because the same applies only after an employee completes twenty years of service, whereas the petitioner completed a little more than 12 years of service.
7. As stated hereinabove, the petitioner's resignation was not accepted in terms of Rule 19 of the BSF Rules, because the Government did not find special circumstances justifying exercise of power under Rule 19(1) of the BSF Rules. It appears to me that the power under Rule 19 of the BSF Rules is by way of an exception and is meant to be exercised in rare and special circumstances, for example, a person having rendered devoted and exemplary service to the nation may be allowed proportionate pension even though he has not completed the qualifying period of service. As is manifest from the petitioner's resignation letter dated 7.6.1997 (Annexure-1) that the petitioner had resigned exclusively and entirely for family reasons which, in my view, would not justify exercise of the power under Rule 19(1) of the BSF Rules.
8. Paragraph 8 of the counter-affidavit is relevant in the present context and is set out here in below for the facility of quick reference:
8. That there are about 1,80,000 personnel in the BSF which has both officers above the rank of Assistant Commandant and other ranks from Constable to Inspectors. They are involved in manning the borders, lot of money and time is spent in training the officers other ranks in the BSF and after rigorous training and experience the Personnel are required to work for the safety and unity of the country by manning the Borders. Some kind of continuity is expected from the said work force.
9. Having excluded the possibility of the various provisions under the BSF Rules or the Pension Rules, I am convinced that the petitioner's case is covered by Rule 26(1) of the Pension Rules. The petitioner's case is obviously covered by the provisions of Rule 26 of the Pension Rules because he resigned from service before completion of 20 years of service which entails forfeiture of the benefits of past service. Had the petitioner completed 20 years of service, his case would have been covered by Rule 48-A of the Pension Rules. The petitioner's case is, therefore, covered by Rule 26 of the Pension Rules and his resignation just after completion of 12 years of service disentitles him from the benefits of past service.
10. I must also consider the two judgments relied on by the rival parties. With respect to the judgment of the Delhi High Court relied on by the earned Counsel for the petitioner, the petitioner therein had resigned from the BSF after completing approximately 12 years of service and the same was accepted after obtaining technical clearance of the Headquarters. The judgment was rendered on a consideration of Rule 19 of the BSF Rules and Rule 49 of the Pension Rules. It does not take into account the effect of the provisions of Rules 3(q), 26 and 48-A of the Pension Rules. With great respect there for, I am unable to agree with the Division Bench judgment of the Delhi High Court. On the other hand, earned Counsel for the respondents has rightly relied on the judgment of the High Court of Jammu and Kashmir. The petitioner therein had submitted his resignation after serving for 10 months and 17 days which was accepted under Rule 19 of the BSF Rules and was denied pension. The writ petition was preferred for a direction to grant pension in terms of Rule 19 of the BSF Rules. The same was dismissed on consideration of Rule 19 of the BSF Rules and Rule 26 of the Pension Rules. I respectfully agree with the conclusion of the Jammu and Kashmir High Court. In that view of the matter, I reach the conclusion that the petitioner's case is not covered by Rule 19(1) of the BSF Rules because the Central Government did not find any special circumstance in favour of the petitioner. The petitioner's case is covered by the provisions of Rule 26 of the Pension Rules. Having resigned from the service before completion of 20 years of qualifying service, he has disentitled himself from the benefits of past service and, therefore, cannot enjoy the benefit of pension.
11. In the result, this writ petition is dismissed, and the impugned order dated 27.10.1998 (Annexure-3) is hereby upheld. Let it be recorded that this Court, while admitting this writ petition by order dated 8.12.1999, had not granted stay of operation of the impugned order. However, in the circumstances of this case, there shall be no order as to costs.