Andhra Pradesh High Court - Amravati
Nalla Haranadh Babu, E.G. Dist vs Prl Secy, Ministry Of Home Affairs, New ... on 16 August, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
WRIT PETITION No.21127 OF 2015
ORDER:
1. The petitioner seeks a writ of mandamus declaring the action of respondents in denying the petitioner's reinduction as BSF constable through the impugned letter of respondent No.5 vide No.03561- 250843, dated 04.02.2015, without considering the petitioner's representations as illegal, arbitrary and violative of the Articles 14, 16 and 21 of the Constitution of India and judgments of the Hon'ble Apex Court, and for a consequential direction to the respondents to reinduct the petitioner into service as BSF constable with all attendant benefits.
2. The petitioner's case, in brief, is thus:
(a) The petitioner joined as Constable in Border Security Force on 27.05.1992 to serve the country and after serving at different places he was posted in Sopur, Jammu & Kashmir. While so, he was on duty at Sopur in the year 2004 he received an intimation that his mother was suffering from severe heart attack and therefore, he applied for casual leave for 15 days to visit his native place to see his ailing mother. The Company Commander recommended 15 days casual leave and sent it to Commandant, Battalion Headquarters, Sopur. In normal circumstances, whenever leave is sanctioned by Company Commandant, respondent No.5, who is the Unit Commandant, will agree by granting leave depending upon UDPR,J W.P. No.21127 of 2015 2 circumstances. However, surprisingly respondent No.5 did not allow the petitioner to proceed on leave, but informed that if the petitioner wants to go he has to resign the job. In spite of the request of petitioner, he did not agree and pressurised the petitioner to resign the job. As the petitioner was in a piquant situation, he was forced to give the letter of resignation with a request to sanction pensionary benefits etc. It was a forced resignation tendered by the petitioner in a depressed mood as he was eager to go to his native place to see his mother, whose condition was bad. The petitioner submitted his resignation on 18.04.2004, but he was not allowed to leave battalion till his resignation was accepted on 30.06.2004.
(b) The further case of petitioner is that after he reached his village he sent the letter dated 06.07.2004 to respondent No.3 expressing his willingness to join the duty and requested them to permit him to join duty and he marked copies of his letter to respondent Nos.2 and 4. As there was no response from the respondents, he sent another letter dated 06.08.2004 to respondent Nos.2 to 4. Thereafter, he submitted the reminders dated 02.09.2004, 10.01.2005, 10.03.2005 and 05.01.2006 in person to the Headquarters, Central Registry Cell, CGO complex, New Delhi. In spite of his repeated requests there was no communication from the respondents from 2004 onwards. As there was no alternative, the petitioner sent letters dated 10.03.2014, 15.04.2014 and 16.05.2014 by registered post to respondent Nos.2 to 4 and also sent through the Hon'ble Member of Parliament of his constituency for taking necessary action.
UDPR,J W.P. No.21127 of 2015 3 Then the petitioner received two communications from the offices of respondent Nos.5 and 2 vide No.03561-250843 dated 04.02.2015 and reference No.13472-75 dated 19.06.2015 rejecting the petitioner's claim for reinstatement on the ground that his resignation was already accepted. Except stating that his resignation was accepted no other reason was given in the aforesaid two communications. The petitioner made representations to respondent Nos.2 to 5 within one month from the date of acceptance of his resignation expressing his willingness to join the duty and in view of Rule 28(a) of the Border Security Force Rules, 1969 (for short, 'the BSF Rules, 1969') the respondents were expected to pass an order on those applications either way. However, the respondents were not justified in keeping the matter pending for a long time and then pass the orders. Therefore, the impugned proceedings are liable to be set aside.
Hence, the writ petition.
3. The respondents filed counter affidavit denying the material averments in the writ petition inter alia contending thus:
(a) The petitioner was enrolled in BSF on 27.05.1992. He joined 13 Bn BSF on 02.10.1996 on his posting from Frontier HQ BSF, Rajasthan. On 18.04.2004, the petitioner had submitted application addressing the Commandant, 13 Bn BSF tendering his resignation from service on the ground of adverse situation of his home and requested the Commandant to accept his resignation. Since, in the said application, the petitioner did not mention any specific date for resigning service, he was asked to intimate a specific date from UDPR,J W.P. No.21127 of 2015 4 which he wants to resign from service, vide 13 Bn BSF letter No.THQ 13BN/Estt/Resig/04 dated 24.04.2004. Thereafter, the petitioner submitted another application dated 26.04.2004 through his Company vide letter No.THQ/Estt/04 dated 26.04.2004 requesting that his resignation from service may be accepted w.e.f. 30.06.2004. The petitioner was briefed by the Commandant about consequences of his resignation from service and also that after resigning from service he would not be entitled to receive pensionary benefits. However, the petitioner vehemently requested the Commandant to accept his resignation from service. Considering all the facts and the said request, the resignation of petitioner from service was accepted by the Commandant, 13 Bn BSF w.e.f. 30.06.2004 under the provision of Rule 19 of the BSF Rules, 1969 without any pensionary benefits vide 13 Bn BSF order No.Estt/13/THQ/Pension/2004/3720-29 dated 01.05.2004. Thereafter, in the year 2014, a representation dated Nil was received from the petitioner by HQr DG BSF, New Delhi on 14.03.2014 for his reinstatement into service and grant of all financial and pensionary benefits. The said application of petitioner was received by 13 Bn BSF from HQ DG BSF vide letter No.GRC/Misc/483-487/BSF/14/2420-26 dated 25.03.2014 with a direction to examine the case and convey suitable reply to the petitioner. Accordingly, the said application was examined and considered by the authority in the light of applicable Rules and Regulations. As per provision of Rule 26 of the Central Civil Services (Pension) Rules, 1972 (for short, 'the CCS Pension Rules'), the UDPR,J W.P. No.21127 of 2015 5 resignation from a service or post entails forfeiture of the past service.
Rule 26(4)(iii) of the CCS Pension Rules provides that period of absence from duty between the date on which the resignation become effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days. Further, the BSF personnel are governed by CCS Pension Rules for grant of pension and other pensionary benefits. The 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. Moreover, Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. Since the petitioner had tendered his resignation from service after completing 11 years 10 months and 22 days qualifying service and his resignation from service was accepted without any pensionary benefits, prayer of the petitioner for reinstatement into service and grant of pensionary benefits could not be acceded to by the authority and rejected being devoid of merit. The same was informed to the petitioner vide 13 Bn BSF letter No.7381-82 dated 29.04.2014.
(b) On 02.12.2014, a Demi Official (DO) letter of Sri Thota Narasimham, Hon'ble Member of Parliament, addressed to the Hon'ble Home Minister, Ministry of Home Affairs, was received by the Unit through HQr DG BSF letter No.Rule-19/07/2015- Estt/BSF/9785-88 dated 14.05.2015 regarding reinstatement of the petitioner into service. Accordingly, the case of petitioner was examined by the Inspector General, HQr North Bengal Ftr BSF in the UDPR,J W.P. No.21127 of 2015 6 light of applicable Rules and Regulations, but could not be acceded to by the competent authority being devoid of merit. Accordingly, the petitioner was intimated by the DIG, SHQ BSF Jalpaiguri vide letter No.6308-12 dated 06.06.2015. Further, the petitioner was also intimated about the same by HQr DG BSF (Pers Dte - Estt Section) vide their letter No.13472-75 dated 19.06.2015. Thereafter, again a Demi Official letter dated 09.03.2015 of Sri Thota Narasimham addressed to DG BSF, New Delhi regarding reinstatement of the petitioner in service was received by 13 Bn BSF vide HQr DG BSF, New Delhi letter No.GRC/DG's Sectt/BSF/15/3376-77 dated 24.03.2015 with the direction to forward status report. Accordingly, HQ DG BSF was informed vide 13 Bn BSF signal No.A-7001 dated 08.04.2015 that suitable reply had already been given to the petitioner. Again a DO letter dated 30.04.2015 of Sri Thota Narasimham regarding reinstatement of petitioner in service was received by the department, which was examined and considered by the Inspector General, North Bengal Ftr BSF in detail and after careful consideration, the prayer of petitioner could not be acceded to by the competent authority being devoid of merit and appropriate reply was sent to the petitioner vide letter No.13852-56 dated 14.12.2015.
(c) It is further submitted that keeping in view of the overall facts and circumstances, no fundamental or statutory right of the petitioner has been violated by the answering respondents for invoking extraordinary writ jurisdiction of this Court, and that BSF personnel are governed by CCS Pension Rules for grant of pension UDPR,J W.P. No.21127 of 2015 7 and other pensionary benefits. 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. Moreover, Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. Since the petitioner had tendered his resignation from service after completing only 11 years 10 months and 22 days qualifying service and his resignation from service was accepted without any pensionary benefits, prayer of petitioner for reinstatement in service and grant of pensionary benefits could not be acceded to by the authority and rejected being devoid of merit. Further, as per provision of Rule 26 of the CCS Pension Rules, the resignation from a service or post entails forfeiture of the past service. Rule 26(4)(iii) of the CCS Pension Rules also provides that period of absence from duty between the date on which the resignation become effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days and accordingly, application of the petitioner for reinstatement in service and grant of pensionary benefits could not be acceded to by the authority and rejected being devoid of merit. All the actions taken by the department are just, proper and in accordance with the governing Rules and Regulations, as such the petitioner is not entitled for any relief and the instant writ petition deserves to be dismissed being devoid of merit.
(d) It is further stated that the petitioner has not come to the Court with clean hands and filed this writ petition by suppressing the UDPR,J W.P. No.21127 of 2015 8 real facts and circumstances and also by making false and misleading statements, as such this writ petition is not maintainable and hence, the same is liable to be dismissed.
(e) The petitioner was enrolled in BSF on 27.05.1992 and joined 13 Bn BSF on 02.10.1996 on his posting from Frontier HQ BSF, Rajasthan. As regards his clean record of service, it is submitted that the petitioner was tried summarily by his Commandant on 29.09.2003 under the provisions of the BSF Act & Rules, on a charge under Section 19(b) of the BSF Act, 1968 for overstaying leave without sufficient cause and awarded punishment of "07 days Rigorous Imprisonment in Force Custody". Moreover, a warning was also issued to the petitioner vide letter No.5609-11 dated 14.04.2000 for his prolonged overstayal from leave. Hence, the contention of petitioner that he discharged his duties to the satisfaction of superior officers is false and incorrect.
(f) It is further stated that the factual matrix of the case is that the petitioner had proceeded on 60 days Earned Leave from 11.01.2003 to 11.03.2003 and he was further sanctioned 36 days Commuted Leave and 84 days Earned Leave w.e.f. 12.03.2003 to 09.07.2003. After expiry of said leave, the petitioner was required to join his duty on 09.07.2003 but he failed to report on due date and voluntarily reported on 21.09.2003 (FN) after overstayal of 73 days. Later on, the petitioner again proceeded on 60 days Earned Leave w.e.f. 05.01.2004 to 04.03.2004 on the ground of his sister's marriage. On 09.03.2004, an application dated 03.03.2004 was received from UDPR,J W.P. No.21127 of 2015 9 the petitioner stating that due to his mother's illness, marriage of his sister was postponed from 12.02.2004 to 15.03.2004 and further requested for extension of 30 days leave. Accordingly, the petitioner vehemently requested the Commandant to accept his resignation from service. Considering all the facts and request of the petitioner, his resignation from service was accepted by the Commandant, 13 Bn BSF w.e.f. 30.06.2004 under the provision of Rule 19 of the BSF Rules, 1969 without any pensionary benefits vide 13 Bn BSF Order No.Estt/13/THQ/Pension/2004/3720-29 dated 01.05.2004. The petitioner was never forced by any official to tender his resignation from service. Before accepting his resignation, the petitioner was also briefed by the Commandant about consequences of his resignation from service and he was also informed that after resigning service, he would not be entitled for any pensionary benefits. However, the petitioner vehemently requested the Commandant to accept his resignation from service and only thereafter the resignation of petitioner from service was accepted by the Commandant. It is further submitted that the application of resignation from service as attached by the petitioner to this writ petition as Annexure P-2 is false and fabricated to mislead this Court. Hence, this writ petition is liable to be dismissed.
(g) It is lastly submitted that the petitioner has resigned from service on 30.06.2004 on his own request, but this writ petition has been filed by him in the year 2015 after an unexplained delay of about 11 years. Hence, this writ petition is not maintainable and liable to be UDPR,J W.P. No.21127 of 2015 10 dismissed rightly on this short point. Since no fundamental or statutory right of petitioner has been violated by the respondents, the petitioner cannot invoke the extraordinary writ jurisdiction by filing the present writ petition.
4. The petitioner filed reply affidavit denouncing the averments in the counter. In explaining the delay of 11 years it is stated that after sending resignation letter on 30.06.2004, the petitioner immediately on 06.07.2004 sent letters to respondent Nos.2 to 4 narrating the factual aspects as to why he was forced to give resignation letter as respondent No.5 refused to grant leave. In spite of the fact that his mother fell sick seriously and as there was no other go, he submitted the resignation letter though he was not inclined to resign from service. Thereafter also he sent letters dated 06.08.2004, 02.09.2004, 03.11.2004, 10.01.2005, 10.03.2005, 05.01.2006 and 06.02.2006 to all concerned officials requesting them to reinstate him into service by cancelling his resignation. The petitioner denied that he tendered his resignation voluntarily on 26.04.2004 which was accepted with effect from 30.06.2004. The letter of resignation was given under duress and coercion of respondent No.5. The petitioner further contended that as per Rule 26 of the CCS Pension Rules the resignation from service or post entails forfeiture of past service and the person is allowed to resume duty as a result of permission of withdraw the resignation is not more than 90 days. Even assuming that the petitioner tendered the resignation letter on 26.04.2004 but in view of the fact that he submitted several representations within a period of 90 days, UDPR,J W.P. No.21127 of 2015 11 therefore, he ought to have been reinstated by cancelling his resignation.
5. Heard Sri Challa Dhanamjaya, learned counsel for the petitioner, and the learned Assistant Solicitor General, representing the respondents.
6. The main plank of arguments of learned counsel for the petitioner is that when the petitioner applied for casual leave on account of serious illness of his mother, respondent No.5 by force obtained the resignation of petitioner w.e.f. 30.06.2004 and in view of the critical health condition of his mother, the petitioner had no other choice except to submit his resignation. Within one month after submitting his resignation, the petitioner made several representations to the authorities making it clear that under duress he was to tender resignation as respondent No.5 was not willing to grant leave and therefore, while cancelling his resignation letter given earlier the authorities may reinstate him into service. Learned counsel would submit that he sent several letters repeatedly on 06.08.2004, 02.09.2004, 03.11.2004, 10.01.2005, 10.03.2005, 05.01.2006 and 06.02.2006, but the respondent authorities did not respond to his letters and they did not intimate him that they have accepted his resignation. It was only through letter dated 04.02.2015 the respondents communicated him about the acceptance of his resignation. It is further argued that as per Rule 26 of the CCS Pension Rules, an employee is entitled to withdraw his resignation if his period UDPR,J W.P. No.21127 of 2015 12 of absence from duty between the date on which the resignation become effective and date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than 90 days. He would submit that even assuming for argument sake the petitioner tendered his resignation voluntarily on 26.04.2004 and the same was accepted with effect from 30.06.2014, still, since he submitted the letters dated 06.08.2004, 02.09.2004 cancelling his resignation which are within a period of 90 days from the date of resignation came into effect, the authorities must have considered those letters and permitted him to join in service. They did not respond to his letters and it was only in the year 2015 the respondents informed him about the acceptance of his resignation, therefore he must be taken into service.
7. Per contra, the learned Assistant Solicitor General would argue that the petitioner, who was working as constable in BSF at Sopur, Jammu & Kashmir, voluntarily tendered his resignation on 18.04.2004 and said resignation was accepted w.e.f. 30.06.2004 under the provisions of Rule 19 of the BSF Rules, 1969 without pensionary benefits. He has completed 10 years of qualifying service and as such training charges were not recovered from him. The acceptance order was communicated to all including the petitioner on 01.05.2004. Since the petitioner voluntarily took retirement from service after a qualifying service of 10 years only, while accepting his resignation no pensionary benefits were granted to him as per the Rules in vogue. The petitioner having kept silent about 11 years filed the writ petition UDPR,J W.P. No.21127 of 2015 13 with an inordinate delay of 11 years and the same is liable to be dismissed.
8. The points for consideration are:
1. Whether the petitioner resigned his job voluntarily or by force applied by respondent No.5 and if so, whether he is entitled for reinstatement?
2. If the petitioner has voluntarily applied for resignation, whether he is entitled to pension?
9. POINT Nos.1 & 2:
(a) It is the case of the petitioner that admittedly petitioner has been working as BSF constable at Sopur, Jammu and Kashmir at the relevant time. His case is that during 2004, he received an intimation that his mother was suffering from severe heart attack and therefore, he applied for causal leave for 15 days to visit to his native place to see his ailing mother. Though the Company Commander recommended his leave and sent to respondent No.5, who is Unit Commandant, he refused to grant leave and on the other hand, directed him that if he wanted to go to his native place he has to resign the job. In spite of the request of the petitioner, he did not heed and therefore, under compelling circumstances, the petitioner had to resign the job w.e.f. 30.06.2004. However, the contention of respondents is that the petitioner voluntarily resigned the job and requested the commandant to accept his resignation. The petitioner was briefed by the Commandant about the consequences of his resignation and that UDPR,J W.P. No.21127 of 2015 14 he would not get pension if he applied for voluntary resignation. In spite of the same, the petitioner insisted for acceptance of his resignation and therefore, his resignation was accepted w.e.f.
30.06.2004.
(b) In this context, a perusal of the letter dated 26.04.2004 of the petitioner, a copy of which is filed into the Court along with the material papers annexed to the counter, would show that the petitioner mentioned therein that he was submitting his willingness for discharge from service w.e.f. 30.06.2004 due to adverse domestic conditions. It was further mentioned that he was giving undertaking that he would not put forward any legal claims. This letter was taken into consideration and the petitioner's resignation was accepted w.e.f. 30.06.2004 as per the proceedings in No.Estt/13/THQ/Pension/2004/3720-29 dated 01.05.2004. It is to be noted that in the said letter dated 26.04.2004, the petitioner has not mentioned that he was submitting his resignation due to the force applied by respondent No.5 and in such compelling circumstances. It is only in the subsequent stages the petitioner clamoured that he resigned due to the force and pressure applied by respondent No.5. Therefore, at the outset, the plea of the petitioner that he resigned the job due to the force applied by respondent No.5 cannot be accepted. Even assuming for a moment the contention of the petitioner that he resigned the job due to the pressure and force applied by respondent No.5 and that subsequently, he sent letters dated 10.03.2004, 15.04.2004 and 16.05.2004 to reinstate him to be true, he would not UDPR,J W.P. No.21127 of 2015 15 have waited for 11 years without taking legal course of action seeking his reinstatement. It should be noted that he filed the writ petition belatedly in the year 2015. Therefore, due to this inordinate delay of 11 years also, his plea that he resigned the job due to the force applied by respondent No.5 and that all the while, he was submitting letters to the authorities cannot be accepted to be true. On the other hand, the material available on record shows that he voluntarily resigned the job.
(c) The next argument of learned counsel for the petitioner is that his resignation was accepted on 30.06.2004 and within short time thereafter, he addressed several letters to the respondent authorities to reinstate him into service and since some of those letters dt.06.08.2004 and 02.09.2004 were within the period of 90 days from the date of acceptance of his resignation, he should be reinstated into service as per Rule 26 of the Central Civil Services (Pension) Rules, 1972. This argument is also not tenable. Rule 26 of the said Rules reads thus:
"126. Forfeiture of service on resignation:-
(1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.
(2) A resignation shall entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the 1 Substituted by Notification No.F.6(12)-E,V.(A)72, dated 7th April, 1977 UDPR,J W.P. No.21127 of 2015 16 Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :-
(i) that the resignation was
tendered by the Government
servant for some compelling
reasons which did not involve
any reflection on his integrity,
efficiency or conduct and the
request for withdrawal of the
resignation has been made as a
result of a material change in
the circumstances which
originally compelled him to
tender the resignation ;
(ii) that during the period
intervening between the date
on which the resignation
became effective and the date
from which the request for
withdrawal was made, the
conduct of the person
concerned was in no way
improper ;
(iii) that the period of absence from
duty between the date on
which the resignation became
effective and the date on which
the person is allowed to
resume duty as a result of
permission to withdraw the
resignation is not more than
ninety days ;
(iv) that the post, which was
vacated by the Government
servant on the acceptance of
his resignation or any other
comparable post, is available.
(5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in UDPR,J W.P. No.21127 of 2015 17 service but the period of interruption shall not count as qualifying service.2
[(7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government.]"
Sub-rule 4 is relevant at this juncture, which only states that the appointing authority may permit a person to withdraw his resignation in the public interest on certain conditions, one of which is envisaged under Sub-rule 4(iii), which says that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days. So, the Sub-rule 4 only confers discretion on the authorities but not the employee who resigned his job. Therefore, in the instant case, even assuming that the petitioner addressed several letters, dated 06.07.2004, 06.08.2004, 10.03.2014, 15.04.2014 and 16.05.2014 to the respondent authorities and they did not respondent to him does not mean that the petitioner is automatically deserved to be reinstated into service. Rule 26, Sub-rule 4(iii) does not connote to be such a deeming provision in favour of a resigned employee.
10. Since the petitioner held to be not entitled for reinstatement, the next question is whether he is entitled to pension. In this case, as per the proceedings No.Estt/13/THQ/Pension/2004/3720-29, dated 01.05.2004, while accepting the resignation with effect from 30.06.2004 (AN) under the provisions of Rule 19 of the Border Security Force Rules, 1969, the respondent authorities made it clear 2 Added by Notification No.4/15/88-P. & P.W.(D), dated 9th October, 1991.
UDPR,J W.P. No.21127 of 2015 18 that such acceptance of resignation is without pensionary benefits but, however, since he has completed 10 years of qualifying service, training charges would not be recovered from him. Thus, the respondent authorities made it clear that the petitioner would not be granted pensionary benefits.
11. The legal question as to whether a member of Border Security Force who had resigned from the post after serving for 10 or more but less than 20 years is entitled to pensionary benefit and Border Security Force Act, 1968 and the Central Civil Services (Pension) Rules, 1972 is no more res-integra in view of the decision of the Hon'ble Apex Court in Union of India (UOI) and others vs. Rakesh Kumar and others3, wherein it was held that such employees are not entitled to the pension. After exhaustively discussing the aforesaid Acts and Rules, the Apex Court held in Para 15 thus:
"15. 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 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 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 3 AIR 2001 SC 1877 UDPR,J W.P. No.21127 of 2015 19 the rate of half months 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 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 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 (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 Rules 35 and 36 that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after 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 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."
UDPR,J W.P. No.21127 of 2015 20
12. Referring to the above decision, the Hon'ble Apex Court in Union of India and others vs. Madhu E.V. and another4, held as follows in Paragraph Nos.12 to 14:
"12. In view of the decisions of this Court in Union of India and others v. Rakesh Kumar (supra) and Raj Kumar and others v. Union of India and another (supra), the legal position that emerges is this : Rule 19 of the BSF Rules does not entitle any pensionary benefits on resignation of its personnel. The pensionary benefits are not ordinarily available on resignation under CCS (Pension) Rules since Rule 26 provides for forfeiture of service on resignation. However, by virtue of G.O. dated December 27, 1995 read with Rule 19 of BSF Rules, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible. Such personnel must, therefore, satisfy his eligibility under CCS (Pension) Rules. The CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service.
13. The view taken by the Single Judge and judgment of the Division Bench upholding the view taken by the Single Judge cannot be upheld and have to be set aside in light of the legal position noted above.
14. In the present case, the respondents had resigned from BSF service immediately after completion of 10 years service and, therefore, they are not entitled to any pensionary benefits."
13. The points are accordingly answered. Thus, on a conspectus of facts and law, the writ petition does not merit consideration and accordingly, the writ petition is dismissed. No order as to costs. 4 2012 (5) SCALE 11 UDPR,J W.P. No.21127 of 2015 21
14. As a sequel, miscellaneous petitions, if any pending, shall stand closed.
_____________________________ U. DURGA PRASAD RAO, J Date: 16.08.2019.
MVA/SS/DSH