Jammu & Kashmir High Court
Abdul Khaliq Ganai vs Union Of India (Uoi) And Ors. on 6 March, 2003
Equivalent citations: 2003(3)JKJ15
JUDGMENT Muzaffar Jan, J.
1. Petitioner, as per the averments made in the petition, was serving in Border Security Force. He appears to have sought retirement from the Force in terms of Rule 19 of the Border Security Force Rules and, accordingly, was retired with effect from 2nd June, 1979. The respondents appear to have processed his pension case which was, in fact, sanctioned in his favour. Right from the date of his retirement from the Force, he has been getting the pension from Pulwama Treasury. The record further reveals that in pursuance of communication dated 3.4.2002, addressed by Senior Accounts Officer, Indian Audit and Accounts Department, Government of India, to the Treasury Officer, Pulwama, the payment of pension to the petitioner has been stopped. In this petition a prayer is made for quashing the aforesaid communication with direction to the respondents to release his pensionery benefits.
2 Heard learned counsel for the parties.
Mr. Anil Bhan, Sr. CGSC, appearingfor the respondents, has submitted that those of the B.S.F. personnel, who were retired from the service of the Force under Rule 19 of the B.S.F. Rules and do not have the qualifying service of 20 years are not entitled to pension. He submitted that the decision to stop pension to all such retired B.S.F. personnel was' taken pursuant to the decision of the Supreme Court in Union of India v. Rakesh Kumar and Ors., Civil Appeal No. 6166/99 and that a similar issue was also involved in a batch of writ petitions in the High Court of Karnataka at Bangalore, the lead case being M.G. Hosmatch v. Union of India and Ors., Writ petition Nos. 41828, 41829, 41830, 41831 and 42057/2001 decided by that Court on 4.12.2001. Mr. Bhan has also produced a photocopy of the decision of the Karnataka High Court rendered in the aforesaid batch of writ petitions.
Since the matter has already been dealt with and decided by the Apex Court, it would be appropriate to reproduce hereunder the judgment of the Karnataka High Court, in which the decision of the Supreme Court in Union of India v. Rakesh Kumar and Ors. (supra) has been quoted as it clinches the whole controversy involved in the present petition. The judgment is extracted below:
"1. The facts of these cases and grounds raised are same/similar and hence a common order is passed in these petitions.
2. Petitioners were employed by Director General of Border Security Forces attached to Ministry of Home Affairs, New Delhi. Consequent upon their cessation of relationship with respondent 2, they were paid gratuity but pension was not settled. Petitioners were obliged to approach this Court and in terms of the order of this Court they are being granted pension by the respondent. Petitioners state that they have been paid pension right upto 1,8.01. In the month of September, 2001 they came to know about stoppage of pension in terms of annexure C order dated 20.8.01; Same orders are issued to other petitioners as well. All these petitioners challenge the validity of these annexures in these petitions.
3. Heard Sri M. Kumar, learned counsel for the petitioners.
4. The essential contention of Shri M. Kumar, learned counsel is that the order granted to them have not been specifically withdrawn. He also says that without notice these orders have been passed. Hi further contention is that the order of the Supreme Court is not applicable to the petitioners.
5. After hearing the petitioners I have carefully perused the material placed before me.
6. The Supreme Court in the case of Union of India v. Rakesh Kumar and Ors. in Civil Appeal No. 6166/99 has considered this very question as follows:
In the result there is no substance in the contention of the learned counsel for the respondents that on the basis of R 49 of the CCS (Pension) Rules or on the basis of GO the respondents who have retired after completing qualifying service of 10 years but before, completing qualifying service of 20 years by voluntary retirement are entitled to get pensionery benefits. Respondents who were permitted to resign from service under Rule 19 of the BSE Rules before the attainment of the age of retirement or before putting such number of years of service, as may be necessary under the Rules, to be eligible for retirement are not entitled to get any pension under any of the provisions under CCS (Pension) Rules. Rule 49 only prescribe the procedure for calculation and quantification of pension amount. The GO dated 27.12.95 does not confer any additional right of pension on the BSF employees.'
7. The respondent in the light of the law declared by the Apex Court have issued an endorsement to each one of the petitioners stating therein that instructions have been issued to the paying branch to stop payment of pension forthwith in terms of the order of the Supreme Court.
8. Petitioners counsel is unable to show to this Court that the said judgment of the Apex Court is not applicable to any one of the petitioners in the case on hand. In fact the facts mentioned in the note would show that air these petitioners are governed by the judgment of the Apex Court. In the light of the clear pronouncement of law by the Apex Court it cannot be said that the action of the respondent call for any interference by this Court.
9. In so for as contention of withdrawal and noticed is concerned I am of the view that the same contentions are not available in the light of the judgment of the Apex Court. When the Apex Court itself has specifically declared the law on the subject there is no need for passing a separate order of withdrawal as sought to be argued by the counsel. Even without a specific order of withdrawal respondents can stop the pension in the light of the law declared by the Apex Court. Therefore, the specific withdrawal argument does not appeal to me. In so for as the denial of notice is concerned the said argument is also to be rejected since no useful purpose would be served by issuing a notice in the light of the judgment of the Apex Court. It would be only an employ formality, and therefore, taking into consideration the law declared by the Apex Court the respondents are fully justified in their action.
10. The last argument of the judgment being not applicable to the petitioners in the case on hand is concerned, I am of the view that said argument is devoid of merits. Firstly, petitioner is unable to show that the said judgment is not applicable. Secondly, in the absence of any direction with regard to applicability of the judgment to the future employees are concerned, this argument has to be noticed and rejected.
11. In these circumstances, I am clearly of the view that no case is made out for any interference, whatsoever. All the petitions are rejected without being admitted."
It is seen from the facts disclosed in the writ petition, that the petitioner herein was retired from the B.S.F. Service in terms of Rule 19 of the BSF Rules. In the communication dated 3.4.2002. impugned by the petitioner in this writ petition, the Senior Accounts Officer, Indian Audit and Accounts Department, addressed to the Treasury Officer, Pulwama, has clearly stated as under:
".....It is to inform you that BSF personnel who have resigned from service under Rule 19 of BSF Rules, before completing qualifying service of 20 years, are not entitled to get pensionery benefits as decided by the Hon'ble Supreme Court of India in its judgment dated 30,3.2001 in respect of S.L. Nos. 6166 of 1999, 2121 of 2000 and 2491-92 of 2001.
The above judgment has been considered by M/O Home Affairs in Consultation with Department of Pension and Pensioners Welfare and it has been decided to stop payment to all ineligible pensioners.
You are, therefore, requested to stop the payment of pension forthwith with respect of Sh. Abdul Khaliq PPO No. BSF-3738 and return the PPO halves to this office desired by the M/O Home Affairs."
On consideration of the settled position of law and relevant facts attendant to the present writ petition, it is seen that the issue raised by the petitioner is no more res integra'. Further, the facts involved in the present writ petition are squarely identical to the ones involved in the aforesaid two cases decided by the Apex Court and the High Court of Karnataka. It that view of the matter, the matter having been already set at naught, this petition has no merit. It is accordingly dismissed.