Punjab-Haryana High Court
Soni Devi And Others vs Union Of India And Others on 23 September, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.3233 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3233 of 2012
Date of decision: 23.9.2013
Soni Devi and others
...Appellants
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Vinay Puri, Advocate for the appellants.
Mr. Ram Chander, Sr. Panel counsel for respondents.
****
Rakesh Kumar Garg, J.(ORAL)
The plaintiff-appellant has filed a suit for mandatory injunction directing the respondents to pay him the pension along with other allowances payable to him at the time of discharge on 31.4.1982 along with interest.
Briefly stated, it is the case of the appellant that he joined service in PAP, Jammu as Washerman on 15.2.1967 and became the employee of BSF w.e.f. 1.6.1967. He served the BSF regularly till he was discharged on 31.4.1982. Despite his requests, he was not paid any pension. Hence, the instant suit.
The suit was contested by the respondents raising various preliminary objections. On merits, it was averred that plaintiff-appellant had not Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -2- completed qualifying service of 20 years for the purpose of pensionary benefits and thus he was not entitled to any pension. It was further averred that appellant has come to the Court after a lapse of 21 years from his resignation knowingly fully well that he will not get any service benefits. It was further averred that his resignation was accepted by B.S.F. w.e.f. 31.12.1982 and therefore he was not entitled to the pension.
The issues were framed on the basis of the averments made and parties were allowed to lead evidence in support of their respective case. The appellant has produced on record the discharge book as Ex.P1. However, it is a matter of record that the respondent Union of India had failed to lead any evidence and its evidence was closed by order of the Court. While deciding issue No.1 the Trial Court observed as under:-
"I have considered the arguments advanced by the learned counsel for the parties and have given my thoughtful consideration to the facts and circumstances of the case. In the order dated 26 December, 1982, the Commandant, 54 Battalion BSF who is the competent authority in the case of the plaintiff no doubt had made clear to the plaintiff during his interview that he will not get any financial service benefits due to this resignation. But in my considered view, this condition imposed by the Commandant does not carry any weight because the plaintiff was a civil servant and is governed by CCS Pension Rules which are framed under Section 311 of the Constitution of India. So undertaking if any given by the plaintiff to the Competent Authority that he will not claim any pension does not carry any weight. So, in my considered view the plaintiff is entitled Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -3- for the proportionate pension as provided under rule 49(4) © of CCS Pension Rules. Since the plaintiff has reportedly died. His legal heirs are entitled for the pensionary benefits as provided under Rule 49(4)(C) of CCS Pension Rules. So far arrears are concerned, the same are restricted to only 38 months prior to filing of the suit i.e. from 9.6.2003 alongwith interest at the rate of 9% per annum. Accordingly, this issue is decided in favour of the plaintiff and against the defendants."
The Trial Court decreed the suit of the plaintiff-appellant in the following manner:-
"It is ordered the suit of the plaintiff partly succeeds and is partly decreed with costs. The legal heirs of the plaintiff are declared entitled for proportionate pension and other allowances payable to the plaintiff as per Rule 49(4)(C) of CCS Pension Rules. But for the payment of arrears, the defendants are directed to pay the arrears of 38 months prior to filing of the suit i.e. from 09.06.2003 along with interest @ 9% per annum."
However, appeal filed on behalf of the respondents - Union of India and others was accepted by the Ist Appellate Court vide impugned judgment and decree dated 8.9.2011, observing as under:-
"13. In the present case controversy is limited to whether the appellant/respondent is entitled for grant of pension on account of his service rendered with BSF from 1.6.1967 to 31.4.1982 which less then 15 years. As Rule 49 of CCS(Pension) Rules 1972, the Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -4- eligibility/qualifying period of service for grant of pension is 20 years. The personnel taking voluntary retirement and being accordingly retired under Rule 19 of BSF Rules, before attaining the age of retirement or before putting requisite years of service, cannot be granted pensionary benefits.
14. In the considered opinion of this Court the learned trial Court failed to appreciate the legal proposition as well as statutory law regarding eligibility of the respondent qua pension. As per above Rule 49, period of service of 20 years is required in order to be eligible for pensionary benefits. In this regard reliance is placed upon case titled as 'Union of India Vs. Rakesh Kumar and others', wherein, Hon'ble Apex Court has held that Rule 19 of the BSF does not create right to pension. It was further held by their lordships as under:-
"In the result, there is no substance in the contention of the learned counsel for the respondents that on the basis of Rule 49 of the CCS (Pension) Rules or on the basis of G.O., the respondents who have retired after completing qualifying service of 10 years but before completing qualifying services of 20 years by voluntary retirement, are entitled to get pensionary benefits. Respondents who were permitted to resign from service under Rule 19 of the BSF Rules before the attainment of the age of retirement of before putting such number of years of service, as may be necessary under the Rules, to be eligible for retirement are Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -5- not entitled to get any person under any of the provisions under CCS(Pension) Rules, Rules 49 only prescribes the procedure for calculation and quantification of pension amount. The G.O. Dated 27.12.1995 does not confer any additional right of pension or the BSF employee".
15. The facts of the above case as well as the ratio of law is very much applicable to the present case. The learned counsel for the respondent has placed reliance upon case titled as 'Raj Kumar & others Vs. Union of India and others'. I am in respectful agreement with the law laid down in above case by the Hon'ble Apex Court. However, above ruling is nowhere helpful to the case of the respondent as in the above judgment as well, it has held by Hon'ble Apex Court in para No.11 that "There is no doubt, that proposition of law is that declared in Rakesh Kumar (supra) viz. that Rule 19 of the BSF Rules does not create any right to pension in cases where pension is not payable under CCS Rules 1972. Thus, there is no question of this Court directing payments of pension to persons who are otherwise ineligible under CCS Pension Rule 1972. The contentions raised in all these petitions under question of law must necessarily fails in the light of the clear pronouncement in Rakesh Kumar (supra)". In the above judgment, Hon'ble Apex Court had issued directions only qua the person who were already drawing pensionary benefits despite putting in less than 20 years of service and there was no direction to grant pension to other person who had not been granted pensionary benefits having resigned under Rule 19 Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -6- of BSF Rules. Above position has again been discussed and explained by Hon'ble Apex Couirt in SLP No.4281/2008 in case titled as Satyabir Singh Vs. Union of India and others decided on 15.9.2009 wherein it was held as under:-
Having considered the submission made on behalf of the parties, we are of the view that the order of the High Court does not warrant any interference. We are unable to accept Mr. Kaushik's submissions that the petitioner should have been given the same benefits as those, who has resigned under Rule 19 of the BSF Rules, but have still been granted pension and such benefit was continued as far as they were concerned by virtue of the order passed in Raj Kumar's case. As pointed out by Mrs.Maryaputtam, the distinguishing feature in his case is that at the very initial stage at the time when his resignation was accepted, the petitioner was informed that he would not be entitled to any pensionary/financial benefits. Since the petitioner had resigned on his own volition for personal reasons and had not been granted pension, his case could not be treated at par with those who were given the special benefit under paragraphs 18(4) of the judgment in Raj Kumar's case. In fact, it was the said difference which persuaded the High Court to reject the petitioner's prayer for grant of pension.
16. Ratio of law laid down in case Raj Kumar (supra) was that relief of pension benefit had been granted only to person who were Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -7- already receiving the same and direction was not to disturb the same and in the present case the plaintiff/respondent was never granted or released any pension as he has sought retirement under Rule 19 of BSF Rules without completing 20 years of qualifying service and as such, could not have been held entitled to any pensionary benefits. Thus, keeping in view the above facts as well as judicial pronouncements, the learned trial Court erred in partly decreeing the suit of the plaintiff while holding them entitled to proportionate pensionary benefits as well as allowances and same is liable to be set-aside.
Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decree of Lower Appellate Court submitting that the following substantial questions of law arise in this appeal:-
Ist Whether the appellant through its legal representative is entitled for any pensionary benefit including family pension?
2nd Whether by rejecting of giving any kind of pension to the appellant or his legal heirs is being violations of article 14 & 16 of the Constitution of India?
3rd Whether the First Appellate Court has below has taken hyper technical and pedantic approach and decline the grant of substantial justice?
4th Whether the grave and manifest injustice has been caused to the appellant or his legal heirs?
In support of his case, learned counsel for the appellant has Mohan Brij 2013.09.27 15:28 I attest to the accuracy and integrity of this document Chandigarh RSA No.3233 of 2012 -8- vehemently argued that the Ist Appellate Court has failed to consider that the respondents have failed to lead any evidence in support of their version and with regard to the fact that appellant had resigned from the post of Washerman whereas according to the appellant, he was discharged from the service and in the case of discharge, Rule 49(4)(C) of CCS cannot be made applicable for denying the pension to the appellant.
However, learned counsel for the respondents has submitted that keeping in view the judgments of the Hon'ble Supreme Court, the plea of the appellant is not tenable.
I have considered the arguments raised before this Court. It has been submitted by the learned counsel for the respondents that discharge book produced by the appellant as Ex.P1 itself proves the reason of discharge which is mentioned as resignation. The aforesaid fact could not be disputed before this Court on behalf of the appellant.
In view thereof, this Court finds that appellant who was a member of BSF on resignation is not entitled to pensionary benefits, if he does not fulfil the necessary period of 20 years of service to earn such a benefit.
No other point was raised.
Thus, no substantial question of law, as argued, arises in this appeal.
Dismissed.
23.9.2013 (RAKESH KUMAR GARG)
Brij JUDGE
Mohan Brij
2013.09.27 15:28
I attest to the accuracy and
integrity of this document
Chandigarh