Delhi District Court
Shri Mahender Kumar vs Union Of India on 27 August, 2011
Suit No. 394/2007
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 394/2007
Shri Mahender Kumar
S/o Shri Prabhu Dayal,
R/o House No. 1568, Bajaj Gali,
Gali No. 5, Kotla Mubarakpur,
New Delhi.
.......PLAINTIFF
VERSUS
1. Union of India
through its Secretary Home,
Ministry of Home Affairs,
South Block, New Delhi110001
2. Director General,
Border Security Force,
C.G.O. Complex, New Delhi 110003.
.....................Defendants
DATE OF INSTITUTION : 30.10.2007
DATE OF RESERVATION : 23.08.2011
DATE OF DECISION : 27.08.2011
Sh. Mahender Kumar Vs. Union of India & Ors. 1/21
Suit No. 394/2007
JUDGMENT: This is a suit for mandatory injunction filed by the plaintiff against the defendants. The facts in brief are that:
1) That the plaintiff joined the services of the defendant no. 2 as Constable on 16.09.1987 and was alloted no. 87006184. That the defendant no. 2 issued the Government Order dated 27.12.1995 calling upon BSF personnel to seek voluntary retirement with pensionary benefits on completion of ten years of qualifying service in terms of Rule 19 of BSF Rules, 1969. That the plaintiff applied for his voluntary retirement under Rule 19 of the BSF Rule, 1969 with effect from 30.11.1997. That the officers of the defendant no. 2 issued a letter dated 29.12.1997 to the plaintiff thereby intimating him that the matter in respect of release of pension to BSF employees under Rule 19 of BSF Rules, 1969 was pending consideration of the defendant no. 1/UOI and as such the plaintiff can be released from the services if he undertakes not to resort to any litigation in case he does not get any financial benefits. That the plaintiff sent accordingly his resignation dated 22.09.1998. That the defendant no. 2 issued, through its Deputy Commandant of the 38 Battalion, a letter No. ESTT/7249/38/98/906773 dated 13.10.1998 thereby communicating the acceptance of plaintiff's resignation under Sh. Mahender Kumar Vs. Union of India & Ors. 2/21 Suit No. 394/2007 BSF Rule 19 and the plaintiff was directed to be relieved on 15.10.1998.
No retirement benefits were released to the plaintiff in view of pending litigation in various courts.
The defendant no. 2 issued the circular dated 4.10.1998 thereby directing all BSF personnel, who have resigned under Rule 19 during 1996, 1997 and 1998 with less than twenty years of service, to report for duties irrespective of the fact whether they were getting any pension or not. However, the plaintiff was not allowed to join. That the plaintiff had no alternative than to wait for the outcome of the court cases. He applied for resuming his duties in terms of judgment of the Hon'ble Supreme Court titled as Raj Kumar and Others Vs. Union of India and Others as his case was covered under category no. 2 amongst the various categories of employees as carved out in the said judgment. However, the defendant no. 2 neither allowed the plaintiff to resume his duties nor allowed the plaintiff to receive his pension and intimated the plaintiff through its Assistant Commandant, 38 Battalion that no pension is disbursable under Rule 19 of the BSF Rules, 1969 and the pension is paid only to those personnel who have completed twenty years of service in terms of CCS (Pension) Rules, 1962. That the issue of qualifying service under Rule 49 of the CCS (Pension) Rules 1972, which apply to the Sh. Mahender Kumar Vs. Union of India & Ors. 3/21 Suit No. 394/2007 plaintiff on account of Rule 19 of the BSF Rules, 1969, came to be interpreted by the Hon'ble Supreme Court in Union of India versus Bashirbhai, 2007 Vol. VII, AD(SC) 656 wherein it has been held that the qualifying service for being eligible to receive pension under Rule 49 of the CCS (Pension) Rules, 1972 is ten years.
That the plaintiff has made all efforts with the defendant no. 2 but the same went in vain. The plaintiff was left with no other alternative remedy except serving upon the defendant no. 2 a legal notice dated 08.08.2007 and was eventually constrained to file the present suit seeking the relief that defendant no. 1 and 2 be directed to allow the plaintiff to resume his duties in terms of the directions of the Hon'ble Supreme Court in Raj Kumar Versus Union of India alike other BSF personnel who had applied for voluntary retirement under Rule 19 of BSF Rules, 1969 and to direct the defendants to release all retirement benefits as well as arrears of pensions and pensionary benefits in terms of the Hon'ble Supreme Court's verdict in Union of India versus Bashirbhai.
2) Defendants contested the suit and filed his written statement. Denying the allegations in the plaint, it was specifically stated that the case of the plaintiff stands disposed of by the Hon'ble Supreme Court disposed vide a common judgment titled as UOI & Others Vs. Rakesh Kumar and Sh. Mahender Kumar Vs. Union of India & Ors. 4/21 Suit No. 394/2007 others (AIR 2001 SC 1877) along with similarly situated matters on 30.03.2001. The Hon'ble Supreme Court had held that the person who had resigned after completion of 10 years of qualifying service but before completion of qualifying service of 20 years are not entitled to get pensionary benefits. Feeling aggrieved, a number of persons approached Hon'ble Supreme Court again and the Hon'ble Supreme Court in a common judgment titled Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC 938). The Hon'ble Supreme Court reiterated the view expressed by it in the case of UOI Vs. Rakesh Kumar to the extent that pension was not admissible on resignation unless the individual had 20 years of qualifying service. However, the court divided different categories of persons on the basis of length of period. Viz (a) Personnel who were getting pension before December, 1995 were not touched. (b) Further, personnel who retired subsequent to 1996 and had not been sanctioned pension but were directed for reporting for induction in service shall have to forfeit their pension if they have not reported for service pursuant to the circular dated 17.10.1998. (c) It was further made clear that in case they have reported for service then there is no question for any relief in their case.
Sh. Mahender Kumar Vs. Union of India & Ors. 5/21 Suit No. 394/2007 Further, in the year 1998 itself, HQ DG BSF had issued directions to all the BSF formations vide its circular dated 15.01.1998 for stoppages of pension to all ineligible persons who were given pension on a misinterpret ion of the rules. This circular was the bone of contention as far as stoppage of pension was concerned before the Hon'ble Supreme Court. After the passage of both the judgments, as mentioned above, situation has been clarified absolutely and pension is not admissible before completion of qualifying service of 20 years. In this light, when the case of the plaintiff was examined, it was found that plaintiff had proceeded on resignation w.e.f 15.10.1998 and was not sanctioned any pension. That the plaintiff has got no case for release of pensionary benefits or in lieu thereof for his resumption on duties in terms of the directions in the above cases by Hon'ble Supreme Court.
3) The plaintiff filed his replication to the written statement of defendant wherein the plaintiff denying the averments made by the defendant in the written statement, reiterated and reaffirmed the contents of the plaint. The same are not being reproduced herein for the sake of brevity.
4) From the pleadings of the parties, following issues were framed by my Ld. Predecessor on 24.12.2008: Sh. Mahender Kumar Vs. Union of India & Ors. 6/21 Suit No. 394/2007
1. Whether the plaintiff is entitled to decree of mandatory injunction as as prayed for? OPP
2. Whether the plaintiff has no cause of action to file the present suit? OPD
3. Whether the suit of plaintiff is barred by limitation? OPD
4. Relief.
5) Plaintiff adduced only one witness to prove his case. The plaintiff himself entered into the witness box as PW1 who vide is affidavit Ex. PW1/X reiterated the contents of the plaint. He relied upon the documents Ex.PW1/1 to Ex. PW1/6. Ex. PW 1/1 is the letter dated 29.12.1997 emanating from the officers of the Force, Ex PW 1/2 is the relieving letter dated 13.10.1998, Ex PW 1/3 is the letter dated 25.01.2006 and Ex PW 1/4, PW 1/5 and PW 1/6 are the legal notice dated 08.08.2007, postal receipts dated 08.08.2007 and AD card date dated 08.08.2007 respectively.
6) On the other hand, defendant also examined only witness. DW 1 is Sh. Man Singh, Dy. Commandant, 38 Battallion, Border Security Force, Ramgarh, Jaisalmer, Rajasthan who vide his affidavit Ex. DW1/X reiterated the contents of the written statement and relied upon document Mark A which is the copy of the judgment dated 30.03.2001 titled as Sh. Mahender Kumar Vs. Union of India & Ors. 7/21 Suit No. 394/2007 Union of India & Ors Vs. Rakesh Kumar & Ors.
7) My issuewise findings are as follows:
Issue no. 1: Whether the plaintiff is entitled to decree of mandatory injunction as as prayed for? OPP The onus to prove this issue was upon the plaintiff. The plaintiff vide the testimony of PW 1 has proved that the plaintiff applied for his voluntary retirement under Rule 19 of the BSF Rule, 1969 with effect from 30.11.1997. That the officers of the defendant no. 2 issued a letter dated 29.12.1997 to the plaintiff thereby intimating him that the matter in respect of release of pension to BSF employees under Rule 19 of BSF Rules, 1969 was pending consideration of the defendant no. 1/UOI and as such the plaintiff can be released from the services if he undertakes not to resort to any litigation in case he does not get any financial benefits. That the plaintiff sent accordingly his resignation dated 22.09.1998. That the defendant no. 2 issued, through its Deputy Commandant of the 38 Battalion, a letter No. ESTT/7249/38/98/906773 dated 13.10.1998 thereby communicating the acceptance of plaintiff's resignation under BSF Rule 19 and the plaintiff was directed to be relieved on 15.10.1998. No retirement benefits were released to the plaintiff in view of matter being subjudice. Thereafter Sh. Mahender Kumar Vs. Union of India & Ors. 8/21 Suit No. 394/2007 the defendant no. 2 issued the circular dated 04.10.1998 thereby directing all BSF personnel, who have resigned under Rule 19 during 1996, 1997 and 1998 with less than twenty years of service, to report for duties irrespective of the fact whether they were getting any pension or not. However, the defendant no. 2 intimated the plaintiff through its Assistant Commandant, 38 Battalion that no pension is disbursable under Rule 19 of the BSF Rules, 1969 and the pension is paid only to those personnel who have completed twenty years of service in terms of CCS (Pension) Rules, 1962. Letter dated 29.12.1997 is proved as Ex. PW 1/1, Ex PW 1/2 is the relieving letter dated 13.10.1998 and Ex PW 1/3 is the letter dated 25.01.2006 On the other hand defendant/UOI vide the testimony of DW 1 has proved that the Hon'ble supreme Court vide a common judgment dated 30.03.2011 titled as UOI & Others Vs. Rakesh Kumar and others (AIR 2001 SC 1877) in similarly situated matters had held that the person who had resigned after completion of 10 years of qualifying service but before completion of qualifying service of 20 years are not entitled to get pensionary benefits. Feeling aggrieved, a number of persons approached Hon'ble Supreme Court again and the Hon'ble Supreme Court in a common judgment titled Raj Kumar & Ors. Vs. UOI and others (AIR Sh. Mahender Kumar Vs. Union of India & Ors. 9/21 Suit No. 394/2007 2006 SC 938) disposed of the matter reiterating the view expressed by it in the case of UOI Vs. Rakesh Kumar to the extent that pension was not admissible on resignation unless the individual had 20 years of qualifying service. However, the court divided different categories of persons on the basis of length of period. Viz (a) Personnel who were getting pension before December, 1995 were not touched. (b) Further, personnel who retired subsequent to 1996 and had not been sanctioned pension but were directed for reporting for induction in service shall have to forfeit their pension if they have not reported for service pursuant to the circular dated 17.10.1998. (c) It was further made clear that in case they have reported for service then there is no question for any relief in their case.
The moot point of controversy in the present case revolves around the government order dated 27.12.1995. In the case of UOI & Others Vs. Rakesh Kumar and others (AIR 2001 SC 1877), it has been observed by the division bench of Hon'ble Supreme Court that on the analysis of the said order dated 27.12.1995 it is revealed 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 Paragraph 2 of the G.O makes it clear that Government has agreed that member Sh. Mahender Kumar Vs. Union of India & Ors. 10/21 Suit No. 394/2007 of the 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. Reading the aforesaid G.O as a whole, it no where reveals Government's intention to confer any additional pensionary benefit to the members of the BSF who retired before completing the requisite qualifying service as provided under the CCS(Pension) Rules, it neither supplements nor substitutes the statutory rules."
Thus it is clear from the aforesaid finding of Hon'ble Supreme Court that The G.O 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 the BSF would be entitled to get pensionary benefits if he is otherwise eligible for getting the same under the CCS (Pension) Rules.
Thus the next issue which catches attention and is necessary to be deliberated upon is what are the CCS Rules under which Government grants pension to BSF officials. Chapter V of the CCS Rules deals with the grant of pension and conditions of such grant. The relevant rules are reproduced herewith for the sake of clarity: Sh. Mahender Kumar Vs. Union of India & Ors. 11/21 Suit No. 394/2007 48A Retirement on completion of 20 year's 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.
"Rule 49. Amount of Pension.
(1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less then thirtythree years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.
(b) In case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty three years but after completing qualifying service of thirtythree years, but after completing qualifying service of ten years, the amount Sh. Mahender Kumar Vs. Union of India & Ors. 12/21 Suit No. 394/2007 of pension shall be proportionate to the amount of pension admissible under clause (a) and in no case the amount of pension shall be less than Rupees three hundred and seventyfive per mensem.
(c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under subrule (2) of Rule 54. (3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one halfyear and reckoned as qualifying service.
(4) ......".
8) On the basis of Rule 49, it is clear that concerned official has to complete number of years of qualifying service for getting the pension. Rule 3 (q) which defines qualifying service states that "service rendered while on duty or otherwise which shall be taken into account for the purpose of pension and gratuity admissible under these rules."
The said rules have been deeply dealt with by the Hon'ble Supreme Court in case of UOI & Others Vs. Rakesh Kumar and others and it was held that on the basis of Rule 49 members of BSF who has resigned from his post after completing more than 10 years of qualifying Sh. Mahender Kumar Vs. Union of India & Ors. 13/21 Suit No. 394/2007 service but less than 20 years would not be eligible to get pensionary benefits. Those who were permitted to resign from service under Rule 19 of the BSF 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.
The said judgment was thereafter upheld by the Hon'ble Supreme Court in case of Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC 938), wherein the case of BSF officials were further divided into following category :
(A) Precircular :
Personnel who resigned and were granted pension for special reasons, even prior to the circular dated 27.12.1995.
(B) Postcircular Personnel who resigned pursuant to the circular dated 27.,12.1995.
These persons can be further divided into two subcategories:
(i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letters dated 3.10.1`998 not to report for re induction. Their pension has been stopped pursuant to the judgment in Sh. Mahender Kumar Vs. Union of India & Ors. 14/21 Suit No. 394/2007 Rakesh Kumar (supra). These persons can be further decided into two subcategories :
(a) those who are in a position to be reinducted into service even now.
(b) those who cannot be reinducted into the service as a result of being agebarred 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 reinduction in to service or to forfeit pension benefits by virtue of the circular dated 17.10.1998 and the individual letters.
It was categorically held by the Hon'ble Supreme Court that :
Having considered the peculiar facts arising in each of these groups, we make the following orders : The personnel falling in category (B) (ii) are 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 a reinduction 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.
Sh. Mahender Kumar Vs. Union of India & Ors. 15/21 Suit No. 394/2007
9) Coming to the case in hand, it is an admitted fact that plaintiff resigned subsequent to the circular of Government dated 27.12.1995 before completing the required 20 years of qualifying service and is covered under the category B (ii) as laid down by the Hon'ble Supreme Court in Raj Kumar Vs. UOI. According to the said judgment it was incumbent upon the plaintiff to have reported for service else he was liable to get his pension forfeited.
10) In the later judgment of the Hon'ble Supreme Court in the case of Union of India & Anr. Vs. Bashirbhai 2007 VII AD (S.C) 656 relied upon by the plaintiff which pertained to a similar dispute of pension with regards to the personnel of CRPF governed by the similar CCS Rules, while interpreting Rule 49 of Hon'ble Supreme Court clarified that the minimum qualifying service which is required for the grant of pension as mentioned in the Rule 49 is 10 years, it had been held that "It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension, stipulates that the Government servant retiring in accordance with the provisions of these Rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for Sh. Mahender Kumar Vs. Union of India & Ors. 16/21 Suit No. 394/2007 every completed six monthly period of qualifying service. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49"
11) Thus on the conjoint reading of the two judgments of the Hon'ble Supreme Court in the case of Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC 938) and Union of India & Anr. Vs. Bashirbhai 2007 VII AD (S.C) 656, it is clear that the personnel falling in the category of BII in the earlier judgment, i.e those who had retired subsequent to 1996 pursuant to circular dated 27.10.1995 and had been not sanctioned pension but who have been directed to report for service shall necessarily have to forfeit their pension if they have not reported for service and the qualifying years of service shall be 10 years. It is an admitted case of the plaintiff himself that the defendant no. 2 had issued a circular thereby directing all the BSF personnel who have resigned under Rule 19 after 1996 with less than 20 years of service to report for duties irrespective of the fact that they were getting any pension or not. The said fact has been proved by the plaintiff vide his own testimony Ex PW1/1 but not an iota of oral or documentary evidence has been adduced on behalf of the plaintiff to show that he took requisite steps to report for Sh. Mahender Kumar Vs. Union of India & Ors. 17/21 Suit No. 394/2007 service. The plaintiff has relied on a letter Ex PW 1/3 dated 25.01.2006.
The said letter has been written by the defendants to the plaintiff in response to his request for grant of pension wherein the defendants have stated that he is not entitled to pension. During the course of arguments, it was submitted by Ld. counsel for the plaintiff that through this letter Ex PW 1/3 request of the plaintiff to report for service has been refused by the defendant authority. There is no mention of any letter written by the plaintiff to the defendant authority that he wanted to report for service rather even the subjecthead of the said letter Ex PW 1/3 deals only with the demand of pension made by the plaintiff.
There are no postal receipts/AD card filed on behalf of the plaintiff to show that he had ever written any letter to the defendants intimating that he is reporting for service after the judgment of Hon'ble Supreme Court in Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC
938) . No witness or documents have been summoned by the plaintiff from the defendant department in this regard. In the age of Right to Information Act, it was not very difficult for the plaintiff to have obtained the information with regard to when and how was his letters to report for service served upon the defendants if at all he had reported for service.
Sh. Mahender Kumar Vs. Union of India & Ors. 18/21 Suit No. 394/2007 From the aforesaid observations, it can be safely inferred that plaintiff never reported for service whereas as is already been discussed it was incumbent rather mandatory for him in terms of the judgment of Hon'ble Supreme Court in Raj Kumar & Ors. Vs. UOI and others to have reported for service failing which he is liable to get his pension forfeited. Even the case of Union of India versus Bashirbhai, 2007 Vol. VII, AD(SC) 656 as is already discussed above is of no help to the plaintiff since in that case the judgment of Raj Kumar Vs. UOI & Ors. was never set aside by Hon'ble Supreme Court and thus remains law of land till date. Bashirbhai's judgment only clarifies the meaning of qualifying service as mentioned in the case of Raj Kumar Vs. UOI & Ors.
Thus the mandate of reporting for service always existed after the said judgment. As is already discussed above, plaintiff failed to report for his service and therefore he is liable to get his pension forfeited in terms of the directions of the Hon'ble Supreme Court in case of Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC 938).
Therefore in view of the aforesaid findings as regards prayer
(a) of the prayer clause of the plaintiff the same is decided against the plaintiff. As regards prayer (b) of the plaintiff his pension is liable to be forfeited in view of the order of Hon'ble Supreme Court. However, in Sh. Mahender Kumar Vs. Union of India & Ors. 19/21 Suit No. 394/2007 case there are other retirement benefits, which are still lying with the department, let the same be released to the plaintiff but as per rules and after due verification by the department. Thus this issue is decided accordingly.
12) Issue no. 2 Whether the plaintiff has no cause of action to file the present suit? OPD The Onus to prove this issue was upon the defendant. In view of my findings in the issue no. 1 this issue is disposed of accordingly.
13) Issue no. 3 Whether the suit of plaintiff is barred by limitation? OPD.
The onus to prove this issue was upon the defendants. It is contended by the defendant that since the plaintiff had retired from service in the year 1998 whereas the present suit has been filed in the year 2007, therefore the present suit is barred by law. It is admitted that the matter regarding the grant of pension of the BSF officials was subjudice before the Hon'ble Supreme Court and it was only on 04.01.2006 the controversy was put at rest by the judgment of Hon'ble Supreme Court in the case of Raj Kumar & Ors. Vs. UOI and others (AIR 2006 SC 938) decided on 04.01.2006. Thereafter the matter was further clarified by the judgment of Hon'ble Supreme Court in Sh. Mahender Kumar Vs. Union of India & Ors. 20/21 Suit No. 394/2007 Bashsirbhai's case, which was decided on 16.05.2007. The present suit has been filed by the plaintiff in October, 2007 i.e just after the judgment in Bashirbhai case and hence I am of the considered opinion that present suit is within limitation. Hence this issue is decided in favour of the plaintiff and against the defendants.
Relief :
In view of the aforesaid discussions, the suit of the plaintiff is hereby dismissed. In case there are other retirement benefits except the pension, which are still lying with the department, the same may be released to the plaintiff but as per rules and after due verification by the department. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 27.08.2011 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 27.08.2011 Sh. Mahender Kumar Vs. Union of India & Ors. 21/21