Rajasthan High Court - Jodhpur
Shaitan Singh vs Union Of India on 24 September, 2019
Author: Sangeet Lodha
Bench: Sangeet Lodha, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1807/2018
Hetram S/o Udaram, Aged About 52 Years, Caste- Bishnoi,
Village- Sawantsar, PO-Swatasar, Tehsil- Shri Dungargarh,
District Churu, State- Rajasthan
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001
2. Deputy Secretary, Department of Pension and Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur
5. Commandant, 182, Battalion Border Security Force, C/o
Hq Dg BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi-110003
----Respondents
Connected With
D.B. Spl. Appl. Writ No. 1355/2018
Trilok Singh S/o Jagmohan Singh, Aged About 51 Years, Caste-
Rajpurohit, Village Sarwari, Tehsil Pachpadra, District Barmer,
Rajasthan
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001
2. Deputy Secretary, Department of Pension and Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
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Road, Jodhpur
5. Commandant, 102 Battalion Border Security Force,
Baikunthpur, Distt- Jagaipuri (West Bengal)
6. Dy. Inspector General, Shq BSF Siliguri Radhabari, PO
Bhutkidangapara, Dist. Jalpaiguri
----Respondents
D.B. Spl. Appl. Writ No. 178/2019
Ganpat S/o Dev Shanker, Aged About 50 Years, Religion- Hindu,
Postal Address- Ex-Servicemen Welfare Association, Village-
Bairsar Bara, PO- Baisar Bara, Tehsil- Rajgarh, District- Churu,
State- Rajasthan.
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department of Pension and Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 37, Battalion Border Security Force, C/o Hq
DG BSF, Block No.10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
D.B. Spl. Appl. Writ No. 212/2019
Ramesh Kharadi S/o Ditaji Kharadi, Aged About 50 Years, Caste-
Kharadi, Postal Address- Ex-Servicemen Welfare Association,
Village- Bairsar Bara, PO- Baisar Bara, Tehsil- Rajgarh, District-
Churu, State- Rajasthan.
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry Of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department of Pension And Pensioners
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Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General Of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 145, Battalion Border Security Force, C/o
Hq DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
D.B. Spl. Appl. Writ No. 265/2019
Narendra Singh S/o Ram Singh, Aged About 53 Years, Caste-
Rajput, Resident Of- A-8, Shri Gopal Nagar, Sirsi Road, Near 21
No. Bus Stand, Meenawala, District- Jaipur, State- Rajasthan.
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department Of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General of BSF, Hqr DG BSF, Block No.10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 85, Battalion Border Security Force, C/o Hq
DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
D.B. Spl. Appl. Writ No. 407/2019
Bhagwan Singh S/o Late Magan Singh, Aged About 52 Years,
Caste- Rajput, Resident of F 3/6, Sector-Ii, Madhav Nagar, Bcw
Chanderia, District - Chittorgarh - 312021, State - Rajasthan.
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry Of Home
Affairs, North Block, Central Secretariat, New Delhi -
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110001.
2. Deputy Secretary, Department of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi -
110003.
3. Director General Of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi - 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 172, Battalion Border Security Force, C/o
Hq DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi - 110003.
----Respondents
D.B. Spl. Appl. Writ No. 413/2019
Jagna Ram S/o Late Shri Raju Ram, Aged About 51 Years, Caste
Jat, Behind Jambheswar Mandir, Near Adarsh High School, Sagar
Road, Tilak Nagar, District Bikaner, State Rajasthan.
----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry Of Home
Affairs, North Block, Central Secretariat, New Delhi
110001.
2. Deputy Secretary, Department Of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi
110003.
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi-110003.
4. Inspector General Of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant ,14, Battalion Border Security Force, C/o Hq
DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi-110003.
----Respondents
D.B. Spl. Appl. Writ No. 417/2019
Shaitan Singh S/o Dhan Singh Bhati, Aged About 55 Years,
Resident of Village- Devara, Po- Devera, Tehsil- Fatehgarh,
District Jaisalmer State- Rajasthan.
----Appellant
Versus
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1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department Of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 182, Battalion Border Security Force C/o
Hq DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
D.B. Spl. Appl. Writ No. 418/2019
Pawan Kumar S/o Manphool Singh, Aged About 54 Years, Caste-
Jat, Resident of A 5/11, Patel Nagar, Behind ITI, District- Bikaner,
State- Rajasthan.
----Appellant
Versus
1. Union Of India, Through Its Secretar, Ministry Of Home
Affaris, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department Of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Fronitier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 85, Battalion Border Security Force, C/o Hq
DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
D.B. Spl. Appl. Writ No. 422/2019
Bharat Lal S/o Harchand Ram, Aged About 52 Years, Resident Of
Village- Bairsar Bara, Po- Baisar Bara, Tehsil- Rajgarh, District-
Churu, State- Rajasthan.
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----Appellant
Versus
1. Union of India, Through Its Secretary, Ministry of Home
Affairs, North Block, Central Secretariat, New Delhi-
110001.
2. Deputy Secretary, Department of Pension And Pensioners
Welfare, Lok Nayak Bhawan Khan Market, New Delhi-
110003.
3. Director General of BSF, Hqr DG BSF, Block No. 10, CGO
Complex, Lodhi Road, New Delhi- 110003.
4. Inspector General of BSF, Frontier Hqr BSF, Mandore
Road, Jodhpur.
5. Commandant, 142, Battalion Border Security Force C/o
Hq DG BSF, Block No. 10, CGO Complex, Lodhi Road, New
Delhi- 110003.
----Respondents
For Appellant(s) : Mr.S.S.Gill with Mr.Kshamendra
Mathur and Mr.D.S.Rajpurohit
For Respondent(s) : Mr.Subhash Choudhary
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment Per Hon'ble Mr.Sangeet Lodha,J.
24th September, 2019
1. These special appeals are directed against common order dated 7.3.18 passed by the learned Single Judge of this court, whereby the writ petitions preferred by the appellants challenging the action of the respondents in denying pension and other post retirement benefits, have been dismissed.
2. For appreciation of the controversy involved in these appeals, the essential facts need to be noticed and for this (Downloaded on 24/09/2019 at 09:02:36 PM) (7 of 21) [SAW-1807/2018] purpose, the facts of the SAW No.1355/18, which was argued by the learned counsel for the appellant as lead case, are taken into consideration.
3. The appellant Trilok Singh was appointed as Constable (GD) in Border Security Force (BSF) on 25.11.85. He was promoted on the post of Lance Naik w.e.f. 15.3.93. While posted as Lance Naik in 102 Bn of BSF, the appellant tendered his resignation voluntarily on 5.7.96, which was accepted in conformity with the provisions of Rule 19 of BSF Rules, 1969 (for short "the BSF Rules") w.e.f. 31.10.96.
4. A circular dated 27.12.95 was issued by the DG, BSF (Personnel Director) notifying that Government had agreed that a member of the Force is entitled to get pensionary benefits on resignation under Rule 19 of BSF Rules provided he has put in requisite number of years of service and fulfills all eligibility conditions. The said circular was interpreted by the authorities to mean that any member of the Force could resign with the permission of the competent authority, even before completing qualifying service for pension and would be eligible for pension under Rule 19(1) of the BSF Rules.
5. Relying upon the said circular, number of personnel of BSF resigned under Rule 19 of the BSF Rules. Accordingly, the appellant's resignation was also accepted with pensionary benefits w.e.f. 31.10.96 by the Commandant, 102 Bn BSF. However, under the provisions of CCS (Pension) Rules, 1972 (for short "the Pension Rules"), the personnel who had resigned from service under Rule 19 of the BSF Rules before completion of qualifying service of 20 years was not entitled for grant of pensionary benefits. In this view of the matter, the case of the appellant for (Downloaded on 24/09/2019 at 09:02:36 PM) (8 of 21) [SAW-1807/2018] pensionary benefits was returned by Pay and Accounts Division, BSF, New Delhi. The appellant was paid the amount of GPF, leave encashment and other admissible benefits.
6. The respondents realising the mistake committed on account of erroneous interpretation of the said circular dated 27.12.95, issued a circular dated 15.1.98 rectifying the mistake. It was clarified that pension is not admissible on resignation under Rule 19 of BSF Rules. The DG, BSF issued yet another circular dated 17.10.98 conveying that all personnel, whose resignations after completion of 10 years of service were accepted with pensionary benefits during 1996, 1997 and 1998 pursuant to circular dated 27.12.95 may be taken back immediately in service treating their period of absence as an Earned Leave/Half Pay Leave (HPL) as due and remaining period of absence as leave without pay as a special case and that such personnel would have to refund the amount of GPF and other dues paid to them, however, they will retain their seniority. It was stipulated in unequivocal terms that member of the Force is not interested to rejoin, he will not be entitled for pension.
7. Pursuant to the circular dated 17.10.98, vide letter dated 22.10.98, the appellant was directed to join the duties immediately. The reminders were also sent to the appellant but he did not choose to rejoin the duty.
8. In the petition filed, appellant averred that he made several attempts from time to time for release of his pension. However, the appellant placed on record a representation dated 10.7.14 alleged to have been sent by him to the State Minister for Home Affairs. The appellant served a notice for demand of justice dated 25.1.16 claiming the pensionary benefits. The notice served by the (Downloaded on 24/09/2019 at 09:02:36 PM) (9 of 21) [SAW-1807/2018] appellant through his counsel was responded by the Deputy Inspector General, SHQ, BSF, Siliguri vide letter dated 9.3.16 informing that since the appellant had retired subsequent to 1969 pursuant to the circular dated 27.10.95 and had not been sanctioned pension, but was directed to report for re-induction in service. He was informed that having failed to rejoin the service, his pension was forfeited in accordance with the directions of the Supreme Court in WP(C) No.569 of 2001 "Raj Kumar & Ors. vs. UOI and others". [(2006)1 SCC 737].
9. Aggrieved by the action of the respondents in denying them applicable pension, post retirement benefits due from the retirement date and consequential benefits, the appellants preferred the writ petitions before this Court, which have been dismissed by the learned Single Judge by the order impugned.
10. Precisely, the case of the appellants before the learned Single Judge was that right to pension had accrued to the appellants by virtue of Rule 49 of the Pension Rules. It was contended that Rule 19 of the BSF Rules only allow reduction of pension but in no manner, it can have any effect of forfeiting the pension. While rejecting the claim of the appellants for pensionary benefits, notification dated 18.3.87 pertaining to acceptance of recommendation of IV Central Pay Commission, has not been taken into consideration. Further that the decision of the Supreme Court in the case of Raj Kumar (supra) and its earlier judgment in Union of India vs. Rakesh Kumar: (2001) 4 SCC 309, does not take into consideration the submissions made on behalf of the appellants as aforesaid.
11. The learned Single Judge observed that pursuant to circular dated 17.10.98, the appellants were directed to rejoin the service (Downloaded on 24/09/2019 at 09:02:36 PM) (10 of 21) [SAW-1807/2018] but they chose not to accept the said offer. The court observed that issue raised in this regard by similarly situated persons has already been decided by the Supreme Court in the year 2001 and subsequently, in the year 2006, the slumber of the appellants is not understandable. Accordingly, the writ petitions have been dismissed by the learned Single Judge holding that the controversy raised is covered by the decision of the Supreme Court in the case of Rakesh Kumar (supra) which was followed in case of Raj Kumar (supra).
12. Mr. S.S.Gill, learned counsel appearing for the appellants contended that as per Rule 49 (2) (b) of the Pension Rules, the appellants who had retired after completing qualifying service of more than 10 years, the amount of pension was required to be calculated on pro rata basis. Learned counsel would submit that as per Rule 19 (2)(b), a member of Force resigning from the Force before 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, shall be entitled to reduced pension or other retiral benefits but he cannot be denied pensionary benefits altogether. Learned counsel submitted that IV Pay Commission made recommendations to the Government of India in 1986 which were accepted and notified vide notification dated 18.3.87, whereunder the Government accepted that existing system of paying lump sum gratuity for service below 10 years and monthly pension for qualifying service of 10 years and more may continue and thus, the qualifying service required for pension at the time when the appellant voluntarily retired from service in 1996 was 10 years. It is submitted that the appellants could not rejoin the service inasmuch as, the respondents had put an onerous (Downloaded on 24/09/2019 at 09:02:36 PM) (11 of 21) [SAW-1807/2018] condition of depositing the amount of retiral benefits already availed by the appellants which comes to about Rs.3 lacs. Learned counsel submitted that Rakesh Kumar's case and Raj Kumar's case (supra) were based on circular dated 27.11.95 whereas, the appellants claim was based on Rule 49 (2) of Pension Rules. Drawing the attention of the court to the impugned order, learned counsel submitted that the appellants claim in terms of provisions of Rule 49(2) of the Pension Rules has not been considered by the learned Single Judge. Learned counsel submitted that the appellants are entitled for pro rata pension and terminal benefits in terms of Rule 49(2)(b) of the Pension Rules. In support of the contention, learned counsel relied upon decisions of the Supreme Court in the matters of Praduman Kumar Jain vs. Union of India :
1994 Supp. (2) SCC 548, Union of India & Ors. vs. Dr.Vijayapurapu Subbayamma : (2000) 7 SCC 662 and Union of India & Anr. vs. Bashirbhai R.Khiliji: (2007) 6 SCC 16. Relying upon a recent decision of Supreme Court in Civil Appeal No.10857 of 2016: All Manipur Pensioners Association by its Secretary vs. The State of Manipur & Ors., decided on July 11, 2019, learned counsel submitted that the BSF personnel who retired from service prior to 1995 and those who retired after 1995 cannot be treated to be different classes and thus, the bifurcation made by the respondents in the matter of grant of pensionary benefits in respect of the BSF personnel retiring pre 1995 and post 1995 is ex facie discriminatory.
13. On the other hand, the counsel appearing for the respondents submitted that pursuant to the circular dated 27.11.95 about 2209 personnel of the Force resigned under Rule 19 of the BSF Rules but pursuant to circular dated 17.10.98, 1065 (Downloaded on 24/09/2019 at 09:02:36 PM) (12 of 21) [SAW-1807/2018] personnel reported back to rejoin the service with the condition stipulated in the said circular, however, about 697 personnel including the appellants herein, did not turn up for rejoining the service. Learned counsel submitted that issue of grant of pensionary benefits to BSF personnel on their completion of 10 years of qualifying service but before completion of 20 years of qualifying service has already been decided by the Supreme Court in Rakesh Kumar's case which has been followed in Raj Kumar's case (supra), wherein it is specifically held that BSF personnel who were permitted to resign from service under Rule 19 of BSF Rules, after completing qualifying service of 10 years but before completing 20 years are not entitled to get any pension under the Pension Rules. The court observed that Pension Rules nowhere provides that a person who has resigned before completing 20 years of service as provided in Rule 48A is entitled for pensionary benefits. Rule 19 of BSF Rules also does not make any provision for grant of pensionary benefit, it only provides that if a member of Force who resigns and to whom permission in writing is granted to resign then authority granting such permission may reduce the pensionary benefits if he is eligible to get pension. Learned counsel submitted that if on account of erroneous interpretation of the Rules, pensionary benefits are granted to some one, it would not make others entitle for pensionary benefits so as to perpetuate an illegality. Learned counsel submitted that no pensionary benefits can be extended to the appellants dehors the relevant rules. Learned counsel would submit that as a matter of fact, the grievance raised by the appellants regarding the denial of the pensionary benefits belatedly after a lapse of about 20 years even otherwise, could not have been entertained by the learned (Downloaded on 24/09/2019 at 09:02:36 PM) (13 of 21) [SAW-1807/2018] Single Judge. It is submitted that the controversy raised being covered by the decisions of the Supreme Court in Rakesh Kumar and Raj Kumar's cases (supra), the learned Single Judge has committed no error in dismissing the writ petitions preferred by the appellants.
14. We have considered the rival submissions of the learned counsel for the parties and perused the material on record.
15. Indisputably, the appellants herein resigned from service under the provisions of Rule 19 of the BSF Rules, after completion of 10 years of qualifying service. A bare perusal of Rule 19 makes it abundantly clear that ordinarily a member of service shall retire on attaining the age of superannuation or putting in such number of years of service as may be necessary under the Rules to be eligible for retirement, but the Central Government taking into consideration the special circumstances of any case, may permit any member of the Force to resign from the Force even prior to attaining the age of superannuation or completing such number of years of service, as may be necessary for retirement. No member of the Force can claim discharge from the service by way of resignation as a matter of right. The Central Government may refuse to permit an officer to resign from service in the situations as delineated in Rule 19 (3) of the BSF Rules.
16. Proviso (b) to Rule 19 (1) of the BSF Rules heavily relied upon by the appellants, in no manner could be construed to be a provision providing for reduced pension to the member of the Force, who have resigned from service under Rule 19(1) of the Rules before attaining the age of superannuation or before putting in number of years of service necessary under the Rules to be eligible for retirement. As a matter of fact, as per proviso (a) to (Downloaded on 24/09/2019 at 09:02:36 PM) (14 of 21) [SAW-1807/2018] Rule 19(1), the Central Government while granting permission to resign may require the officer to refund to the Government such amount as would construed to the cost of training given to that officer. Suffice it to say that proviso (b) to Rule 19(1) of the BSF Rules providing for reduced pension, would operate only when an officer resigning, is otherwise eligible to get pension or retirement benefits in accordance with the Pension Rules.
17. Rule 49 of the Pension Rules deals with the amount of pension and provides for the manner in which the amount of pension payable to the Government servant retiring in accordance with the provisions of the Rules on superannuation or after completion of 30 or 33 years of service or in case of voluntary retirement after completing 20 years of qualifying service. As per Rule 49(1), a Government servant retiring in accordance with the provisions of Pension Rules before completing qualifying service of 10 years, is not entitled for the pension, however, shall be entitled for service gratuity calculated at the rate of half month's emoluments for every completed six months period of qualifying service. Rule 49 (2)(a) provides for calculation of pension payable to a Government servant retiring in accordance with the provisions of the Rules after completing qualifying service of not less than 33 years. Rule 49(2)(b) provides for entitlement of a Government servant for proportionate pension who has retired in accordance with the Rules before completing qualifying service of 33 years but after completing qualifying service of 10 years but, in no manner, the said rule can be made applicable to the Government servants, who have not retired from service in accordance with the Rules but have been discharged from service on their resignation being accepted in terms of Rule 19 of the BSF Rules. To put in other (Downloaded on 24/09/2019 at 09:02:36 PM) (15 of 21) [SAW-1807/2018] words, Rule 49 of the Pension Rules does not provide for pensionary benefits to the member of the Force resigning from service but in terms of Rule 19 (1), the members of the Force shall be entitled to reduced pension or other retirement benefits if they are so eligible.
18. As a matter of fact, the issues sought to be raised by the appellants have been dealt with by the Supreme Court in extenso in Rakesh Kumar's case (supra). After due consideration of Rule 19 of BSF Rules and all the relevant provisions of the Pension Rules including Rule 49(2)(b) heavily relied upon by the learned counsel in support of the appellants' claim for pensionary benefits, the court categorically held :
"12. A bare reading of Section 8 of the Act makes it clear that no member of the BSF will have right to resign except with prior permission in writing of the prescribed authority. The language is prohibitory and the member of the BSF is not having liberty to resign from his appointment during the term of his engagement, however, the prescribed authority may permit the member of the BSF to resign in certain special circumstances. Rule 19 does not create any right to pension. It is intended to enable members of BSF to resign from the Force without attracting any penal consequences. For that, Rule 19 provides that Central Government having regard to the special circumstances of any case may permit any officers of the Force to resign 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. Discretionary powers are given to the authority to accept or reject the resignation. Proviso to Rule 19(1) empowers the Central Government, while granting permission to resign, to require the officer to refund to the Government such amount as would constitute the cost of training given to that officer. Further, if the officer is eligible to get pension or other retirement benefits, the Rules empower the Government to make reduction in the pension or other retirement benefits.
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16. On the basis of Rule 49, it has been contended that qualifying service for getting pension would be ten years. In our view, this submission is without any basis. Qualifying service is defined under Rule 3(q) to mean service rendered (Downloaded on 24/09/2019 at 09:02:36 PM) (16 of 21) [SAW-1807/2018] while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. Rule 13 provides that qualifying service by a government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that qualifying service for getting pension is 10 years. On the contrary, there is a specific provision that if a government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement, he would not get pension but would get the amount of service gratuity calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service. In these appeals, we are not required to consider other conditions prescribed for qualifying service as it is admitted that the respondent members of the BSF have completed more than 10 years of qualifying service. Further, clause (2)(a) of Rule 49 specifically provides for grant of pension if a government servant retires after completing qualifying service of not less than 33 years. The amount of pension is to be calculated at fifty per cent of average emoluments subject to maximum provided therein. Clause 2(b) upon which much reliance is placed indicates that in case of a government servant retiring in accordance with the provisions of the Rules before completing qualifying service of 33 years, but after completing qualifying service of ten years, the pension shall be after completing qualifying service of ten years, the pension shall be proportionate to the amount of pension admissible under clause (2)(a) and in no case, the amount of pension shall be less than Rs.375/- per months. This would only mean that in case where government servant retires on superannuation i.e. the age of compulsory retirement as per service conditions or in accordance with the CCS (Pension) Rules, after completing 10 years of qualifying service, he would get pension which is to be calculated and quantified as provided under clause (2) of Rule 49. This clause would cover cases of retirement under Rule 35 and 36 that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after the prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. It is also to be stated that Rule 26 of CCS (Pension) Rules specifically provides that resignation from a service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies. Hence, on the basis of Rule 49 a member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefit. There is no other provision in the CCS (Pension) Rules giving such benefit to such government servants.(Downloaded on 24/09/2019 at 09:02:36 PM)
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20. The aforesaid GO makes it clear that there was a demand for grant of pensionary benefit on acceptance of the resignation under Rule 19 and that demand was accepted by the Government. Para 2 of the GO makes it clear that Government has agreed that a member of BSF is entitled to get pensionary benefits on resignation under Rule 19 provided he has put in requisite number of years of service and fulfills all other eligibility conditions. This para only reiterates Rule 19. It also clarifies that authority competent to grant permission to resign is also empowered to make reduction in pension if the member of BSF is eligible to get such pension. Para 5 provides that in future the competent authority who accepts the resignation would specify in the order the reduction to be made in the pension if any and if no such reduction is specified in the order, it would imply that no reduction in the pension has been made. Under para 6 directions are issued for pending cases where resignation was accepted but pensionary benefits were not allowed and provide that necessary orders should be passed within the shortest possible time. Reading the aforesaid GO as a whole, it no where reveals Government's intention to confer any additional pensionary benefits on the members of BSF who retired before completing the requisite qualifying service as provided under the CCS (Pension) Rules. It neither supplements nor substitutes the statutory rules. The GO read with Rule 19 of the BSF Rules would only mean that in case of resignation and its acceptance by the competent authorities, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible for getting the same under the CCS (Pension) Rules and to that extent Rule 26 which provides for forfeiture of service on resignation would not be applicable. Hence, there is no substance in the contention of the learned counsel for the respondents that in view of the GO or specific orders passed by the competent authority granting pension, appellants are estopped from contending that such officers are not entitled to get pensionary benefits. As stated above, the GO does not confer any additional benefit. Even in the specific order which is quoted above in favour of Naik Rakesh Kumar, the authority has stated that he would get pensionary benefits as admissible under the Rules. Under the Rules, he is not entitled to get such benefits.
21. Learned counsel for the respondents submitted that on the basis of GO, a number of persons are granted pensionary benefits even though they have not completed
20 years of service, and therefore, at this stage, the 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 (Downloaded on 24/09/2019 at 09:02:36 PM) (18 of 21) [SAW-1807/2018] 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 dehors 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 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." (emphasis added)
19. In Raj Kumar's case (supra), the Supreme Court while dividing the cases before it into the categories (A) and (B)(i) & B(ii), as under:
"(A) Pre-circular:
Personnel who resigned and were granted pension for specific reasons, even prior to the circular dated 27.12.1995 (B) Post-circular:
Personnel who resigned pursuant to the circular dated 27.12.1995. These persons can be further divided into two sub-categories:
(i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letters dated 31.10.1998 not to report for re-induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar (supra). These persons can be further divided in to two sub-categories:
(a) those who are in a position to be re-inducted into service even now (Downloaded on 24/09/2019 at 09:02:36 PM) (19 of 21) [SAW-1807/2018]
(b) those who cannot be re-inducted into service as a result of being age-barred or due to being medically or physically unfit.
(ii) Those who retired subsequent to 1996, were not sanctioned pension, and were directed to report for re-
induction in to service or to forfeit pension benefits by virtue of the circular dated 17.10.1998 and the individual letters." categorically held that the persons in the category B(ii) who had resigned subsequent to 1996 pursuant to circular dated 27.12.95 and did not report on duty pursuant to circular dated 17.10.98 shall necessarily have to forfeit the pension. The court passed the order in following terms:
"18. Having considered the peculiar facts arising in each of these groups. We make the following orders:
1. The personnel falling in category (B)(ii) i.e. those persons who had retired subsequent to 1996 pursuant to the circular dated 27.10.1995 and had not been sanctioned pension, but who have been directed to report for re-induction in service shall necessarily have to forfeit their pension, if they have not reported for service by virtue of the circular dated 17.10.1998, if however, they have reported for service then there is no question of any relief in their case.
2. In the case of persons falling in category (B)(i), they shall also be given the option of re-induction into service, and those falling in category (B)(i)(a) shall be so re-inducted, subject to the conditions stipulated in circular dated 17.10.1998 and on condition that they shall refund the GPF and pension amounts drawn by them till re-induction. The authorities shall indicate the deadline by which such persons shall offer themselves for re-induction.
3. In the case of persons who shall fall in category (B)(i)(b) i.e. persons who had retired in 1996, were sanctioned pension but who cannot be re-inducted today as they are age-barred or physically or medically unfit or for any other reason including their inability to return the amount of GPF, pension drawn or other dues, there shall be no question of continuing payment of pension which shall be liable to cease as a result of the decision in Rakesh Kumar (supra). We are however of the view that equity demands that in such cases there shall be no recovery of the pension amounts already paid to them.
4. In cases which fall under category (A) i.e. personnel who had resigned prior to the circular dated 27.12.1995 and had (Downloaded on 24/09/2019 at 09:02:36 PM) (20 of 21) [SAW-1807/2018] been granted pension for special reasons and continued to draw it till the stoppage of pension as a result of the judgment in Rakesh Kumar (supra), we think that irrespective of the position in law, equity demands that, as they have drawn their pension for long periods, they shall not be asked to refund their drawn pension amounts, nor shall their pension be stopped now." (emphasis added)
20. Admittedly, the appellants herein who were discharged from service on their resignations being accepted subsequent to 1996 pursuant to circular dated 27.12.1995, did not re-join duty despite directions being issued pursuant to circular dated 17.10.98 and thus, they falling within the category (B)(ii), have forfeited their right to pension.
21. As noticed by the learned Single Judge, the view taken by the Supreme Court in the cases of Rakesh Kumar and Raj Kumar (supra), has been reiterated in the matter of Union of India vs. Madhu E.V. & Anr.: AIR 2012 SC 4806.
22. We are of the considered opinion that the controversy raised by the appellants is squarely covered by the decisions of the Supreme Court in the cases of Rakesh Kumar, Raj Kumar and Madhu E.V. (supra). No directions can be issued by this court extending pensionary benefits to the appellants de hors the Rules, which stands interpreted by the Supreme Court as aforesaid. Even if some members of the Force have been extended benefits of the pension de hors the Rules, the parity cannot be extended to the appellants so as to perpetuate the illegality.
23. The decisions cited by the learned counsel for the appellants referred supra in given facts of the case, do not deal with the issues involved in the present appeals and thus, do not help the appellants in any manner whatsoever.(Downloaded on 24/09/2019 at 09:02:36 PM)
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24. For the aforementioned reasons, we are in full agreement with the view taken by the learned Single Judge of this court and thus, the special appeals deserve to be dismissed.
25. Accordingly, the special appeals are dismissed. No order as to costs.
(VINIT KUMAR MATHUR),J (SANGEET LODHA),J
Aditya/-
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