Rajasthan High Court - Jodhpur
Shanta Devi Sharma vs Union Of India & Ors on 16 August, 2011
Bench: Arun Mishra, Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
D.B. CIVIL WRIT PETITION NO.980/2006
Shanta Devi Sharma. VS. Union of India & Ors.
DATE OF ORDER : 16.8.2011
HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA
HON'BLE MR.JUSTICE ALOK SHARMA
Mr.RS Saluja, for the petitioner.
Mr.VK Mathur a/w Mr.Lokesh Mathur, for the respondents.
_____ Heard.
In the writ application, legality of the order Annex.7 dated 1.10.2004 has been questioned passed by the Government of India not to release family pension as against PPO No.BSF/5416 to the petitioner.
The facts in short are that husband of petitioner - late Shyam Lal Sharma was in service of B.S.F. After serving approximately for 14 years, he sought voluntary retirement on 21.8.1980. A pension payment order (PPO) No.BSF/5416 was issued in his favour and a pension of Rs.70/- per month was sanctioned in his favour. It was further provided in the PPO that family pension for a sum of Rs.70/- per month for a period of seven years or upto the date petitioner's husband attaining age of 65 years in case of his survival, is sanctioned as family pension. After his retirement from B.S.F., the husband of the petitioner - late Shyam Lal was appointed as L.D.C. in District Judgeship, Bhilwara. He received pension from B.S.F. Till 15.1.2003. He died on 15.1.2003. Thereafter, family pension 2 was sanctioned in favour of the petitioner vide order dated 8.7.2003 by the State Government. As the family pension with respect to service rendered in B.S.F. was not released, as such, the petitioner submitted representation to the District Collector. Family pension was to be revived to the petitioner after the death of her husband. The Accounts Officer, Director General, B.S.F. vide letter dated 10.9.2004 informed the Pay & Accounts Officer, CPAO, Ministry of Finance, New Delhi that as per PPO No.BSF/5416, she is entitled to receive family pension. Thereupon, the Bank authorities wrote a letter dated 14.9.2004 informing that as the petitioner is in receipt of State Government pension in accordance with her option, thus, family pension with respect to service rendered by the petitioner's husband in B.S.F. cannot be sanctioned. Thereafter, the impugned letter dated 1.10.2004 was issued by the B.S.F. authorities not to release the family pension in favour of the petitioner and the P.P.O. was cancelled. Consequently, the writ application has been preferred.
The petitioner has questioned the constitutionality of Rule 54(13B) of the Central Civil Services Pension Rules, 1972 (for short 'the Rules of 1972'). It is submitted that the pension is claimed as of right. The action of withholding the same is violative of Articles 14 and 16 of the Constitution of India including the aforesaid provisions. In case, the Rules came in the way, the same be declared unconstitutional. Prayer has been made to declare Rule 54(13B) of the Rules of 1972 as unconstitutional and for further direction to the respondents to make the payment of family pension on and from 16.1.2003.
Mr.RS Saluja, learned counsel appearing on behalf of the 3 petitioner has submitted that as pension was released to the deceased by B.S.F. on rendering the service of 14 years, the family pension could not have been withdrawn and PPO could not have been cancelled. Learned counsel sought to draw assistance from Rule 19 of the Rules of 1972 which provides counting of military service rendered before civil employment. He has submitted that the option has not been submitted with the State Government by the petitioner or by her husband to count the services rendered by her husband in B.S.F. as the pension was being received from B.S.F. Thus, it is a case of double jeopardy. On the one hand, B.S.F. has cancelled the PPO and on the other hand, that period is not counted by the State authorities also. Thus, the counsel has submitted that the Rule 54(13B) of the Rules of 1972 be declared unconstitutional being repugnant to Article 14 of the Constitution of India. Rule is perse arbitrary in as much as, it denies pension to an incumbent who is in receipt of pension from any other State Government or Central Government.
Mr.VK Mathur, learned counsel appearing on behalf of the respondents has relied upon a decision of Hon'ble Apex Court in Union of India & Ors. vs. Rakesh Kumar (AIR 2001 SC 1877) in which it has been laid down that the qualifying service for eligibility of pension in B.S.F. is 20 years. Pension cannot be released to an incumbent who has sought voluntary retirement under Rule 19 of the Border Security Force Rules, 1969, dealing with resignation. Rule 54(13B) of the Rules of 1972 cannot be declared ultra vires provision cannot be said to be arbitrary and husband of the petitioner was not entitled for pension, hence there is no question of payment of family pension. It was 4 wrongly released to him as held by the Hon'ble Apex Court in Union of India vs. Rakesh Kumar (supra). Correct interpretation has been made by the Hon'ble Apex Court in Union of India vs. Rakesh Kumar (supra).
After hearing learned counsel for the parties, in our opinion, since the decision of the Hon'ble Apex Court in Rakesh Kumar's case (supra) holds the field and in which it has been laid down that in case member of B.S.F. resigns before completing qualifying service of 20 years, he is not entitled to pension under Rule 19 of the Rules of 1969. The Apex Court in Rakesh Kumar (supra) has laid down thus :-
"21. Learned counsel for the respondents submitted that on the basis of G.O. number of persons are granted pensionary benefits even though they have not completed 20 years of service, and, therefore, at this stage, Court should not interfere and see that the pensionary benefits granted to the respondents are not disturbed and are released as early as possible. In our view, for grant of pension the members of BSF are governed by CCS (Pension) Rules. CCS (Pension) Rules nowhere provide that a person who has resigned before completing 20 years of service as provided in Rule 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. It only provides that if a member of the force who resigns and to whom permission in writing is granted to resign then the authority granting such permission may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If rules are not providing for grant of pensionary benefits it 5 is for the authority to decide and frame appropriate rules but Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions."
The husband of the petitioner was also granted benefit on the basis of wrong interpretation of Rule 19 of the Rules of 1972. In our opinion, in view of Apex Court decision, pensionary benefit which was granted to husband of the petitioner on erroneous interpretation of the rules cannot be perpetuated by issuance of direction by this Court. It was not disputed that in case husband was not entitled to pension, his wife could not be said to be entitled for family pension. No person can claim any right on the basis of an illegal order which is contrary to the statutory rules. There cannot be any estoppel created against respondents. There cannot be any equitable consideration on the ground of undue hardship. In view of the aforesaid, in the instant case, the question of examination of constitutionality of Rule 54(13B) of the Rules of 1972 assumes academic significance. In view of the aforesaid decision of the Hon'ble Apex Court in Union of India vs. Rakesh Kumar (supra), the husband himself was not entitled for receiving pension which he had received in his life time.
Apart from above, we find prima-facie that Rule 54(13B) can not be said to be unconstitutional. It is reasonable and in case, a person is receiving any other pension, he would not be entitled to pension under the said Rule which is an exception to general Rule. Normally, such period spent in military service is 6 counted for pensionable qualifying service on re-employment.
Coming to the submission made by learned counsel for the petitioner with respect to option having not been exercised with State Government to count the services rendered by her husband in B.S.F. as qualifying service is concerned, as that is not the relief prayed in petition, we leave that matter open to be agitated, if necessary, in appropriate independent proceedings.
In view of the aforesaid discussion, the writ application deserves to be and is hereby dismissed. No costs.
(ALOK SHARMA), J. (ARUN MISHRA), CJ. S Phophaliya/-