Karnataka High Court
Sri M Srinivas vs Union Of India on 10 December, 2021
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.60025/2014 (S-R)
C/W
WRIT PETITION NO.60024/2014 (S-R)
BETWEEN:
SRI M SRINIVAS
S/O LATE MUNIYAPPA
AGED ABOUT 48 YEARS
H.S.GARDEN, WARD NO.22
NEAR NETAJI SCHOOL ROAD
CHIKKABALLAPURA-562101.
...PETITIONER IN
W.P.No.60025/2014
SRI UDHAYA KUMAR
S/O LATE VEERANNA
AGED ABOUT 48 YEARS
R/AT CHIKKAHALLI
HIRCHALLI POST
TUMKUR DISTRICT-572168.
...PETITIONER IN
W.P.No.60024/2014
(BY SRI VASANTHA KUMAR B.G., ADV.)
AND:
1. UNION OF INDIA
DEPARTMENT OF FINANCE
REP. BY ITS SECRETARY
NEW DELHI-110062.
2
2. THE COMMANDANT
27 BN B.S.F
HEADQUARTERS 27 BN BSF
BORDER SECURITY FORCE
SAM ROAD, JAISALMER (RAJ)
PIN-345001, NEW DELHI.
3. THE ACCOUNTS OFFICER
(PENSION-III) PAD BSF
PUSHPA BHAWAN
MADANGIR ROAD
NEW DELHI-110062.
...RESPONDENTS
(COMMON IN BOTH PETITIONS)
(BY SRI B PRAMOD, CGC)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
THE RESPONDENTS TO SETTLE THE FAMILY PENSION OF THE
PETITIONER IMMEDIATELY AND PAY THE ARREARS OF
PENSION TO THE PETITIONER.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
In both the writ petitions, common prayer is sought and hence, both the writ petitions are heard together and disposed of by this common order.
2. Petitioners are before this Court under Article 226 of the Constitution of India, praying for a writ of mandamus or 3 appropriate order, directing the respondents to settle the family pension of the petitioners and to pay arrears of pension to the petitioners.
3. Heard learned counsel Sri.B.Pramod, CGC for respondents No.1 to 3. Perused the writ petition papers.
4. The petition averment indicates that both the petitioners enrolled or joined the services of the Border Security Force (for short "BSF") on 10.07.1985. Both petitioners served in the BSF for 10 to 11 years and thereafter, in the year 1996, both the petitioners submitted their resignation. Resignation of the first petitioner was accepted by order dated 06.09.1996 w.e.f. 31.10.1996 whereas the second petitioner's resignation was accepted by order dated 30.08.1996 w.e.f. 30.09.1996. On their retirement, the petitioners were informed by the respondents their entitlement for pension and they were paid pension. Subsequently, the petitioners were also intimated by letter dated 27.12.2012 (Annexure-C) in both the writ petitions with 4 regard to revision of pension and they were asked to submit certain documents stated therein. The grievance of the petitioners is that subsequently, without assigning any reasons, the pension was stopped in respect of both the petitioners. Hence, the petitioners are before this Court praying for a writ of mandamus directing the respondents to pay pension and family pension to the petitioners and arrears of pension.
5. Learned counsel for the petitioners contends that the respondents rightly paid pension to the petitioners on their retirement and without assigning any reason, payment of the pension was stopped. Since the petitioners served in the BSF for more than 10 years, the petitioners would be entitled for pension. Since the pension of the petitioners is stopped without assigning any reasons, it is prayed that the respondents be directed to pay pension to the petitioners.
6. Per contra, Sri.Pramod, learned CGC submits that the petitioners are not entitled for pension, since they have not 5 completed minimum number of years of service to become eligible for pension in the BSF. Learned counsel would point out that unless and until, a person completes 20 years of service, he would not become eligible for pension. He submits that both the petitioners enrolled to the service of BSF on 10.07.1985 and both of them resigned in October 1996. The petitioners have completed only 11 years of service and have not completed minimum service of 20 years as required under the Pension Rules. Further, he refers to Rule 19 of the BSF Rules 1969 (for short "1969 Rules") which permits resignation. Learned CGC submits that the petitioners would be entitled for pension in accordance with the Central Civil Service (Pension) Rules. Rule 49 of Pension Rules requires 20 years of minimum service to get pension. Learned counsel relies upon a decision of the Hon'ble Apex Court reported in (2001)4 SCC 309 in the case of RAKESH KUMAR v/s UNION OF INDIA AND OTHERS and another decision reported in (2006) 1 SCC 737 in the case of RAJKUMAR AND OTHERS v/s UNION OF INDIA AND ANOTHER to 6 contend that the petitioners are not entitled for pension or pensionary benefits. Further, he submits that the petitioners were given an opportunity to rejoin the BSF service under letter dated 14.05.2006 (Annexure-R4), but they have not utilized the same. Moreover, he submits that the petitioners were informed in the same letter that further pension would be stopped. The said endorsement or letter is not challenged. Thus, he prays for dismissal of the writ petitions.
7. A writ of mandamus could be issued where the petitioners establish their legal right and corresponding failure to perform the legal duty by the respondent- authorities. In the instant case, the petitioners have no right to claim pension as they have not completed minimum number of years of service required to get pension. Admittedly, both the petitioners enrolled as Constables in the respondent-BSF on 10.07.1985. The first petitioner's resignation was accepted w.e.f. 31.10.1996 whereas the second petitioner's resignation was accepted w.e.f. 7 30.09.1996. On acceptance of resignation, by mistake, petitioners were intimated that they would be entitled for pension and also for revision of pension. But, the petitioners who have not served for minimum 20 years in the BSF service would not be entitled for pension or pensionary benefits. It is not the case of the petitioners that they have served minimum service of 20 years to get pension, but the claim of the petitioners is based on the letter of intimation of their entitlement to pension. But the same would not give any right to claim pension, unless the petitioners establish that they have completed minimum of 20 years.
8. Similarly situated persons who had resigned from BSF service and had not completed minimum 20 years of service was the subject matter in RAKESH KUMAR (supra). In RAKESH KUMAR case, the question before the Hon'ble Supreme Court as stated in paragraph 2 was as follows:
"2. The question involved in these appeals is - whether members of BSF who has resigned from their posts after serving for ten or more years but less than 8 20 years are entitled to pension/pensionary benefits under the relevant provisions of the Border Security Force Act, 1968 (hereinafter referred to as "the BSF Act") and the Border Security Force Rules, 1969 (hereinafter referred to as "the BSF Rules") or the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the CCS (Pension) Rules)."
The Hon'ble Supreme Court considering Rule 19 of 1969 Rules as well as Pension Rules at paragraph 16 held that, 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 benefits. There is no other provision in the CCS (Pension) Rules giving such benefits to such government servants. Further at paragraphs 21 and 22, it is held as follows:
"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, Court should not interfere and see that the pensionary benefits granted to the respondents are not 9 disturbed and are released as early as possible. In our view, for grant of pension the members of BSF are governed by the CCS (Pension) Rules. CCS (Pension) Rules nowhere provide that a person who has resigned before completing 20 years of service as provided in Rule 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. It only provides that if a member of the force who resigns and to whom permission in writing is granted to resign then the authority granting such permission may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If the 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 10 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.
22. In the result, there is no substance in the contention of the learned counsel for the respondents that on the basis of Rule 49 of the CCS (Pension) Rules or on the basis of GO, the respondents who have retired after completing qualifying service of 10 years but before completing qualifying service of 20 years by voluntary retirement, are entitled to get pensionary benefits. Respondents, 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 the CCS (Pension) Rules. Rule 49 only prescribes the procedure for calculation and quantification of pension amount. The GO dated 27.12.1995 does not confer any additional right of pension on BSF employees."11
9. In Rajkumar (supra), while dealing with facts which are akin to present writ petition, referring to RAKESH KUMAR case supra at paragraph 11 and 15 it is held as follows:
"11. Thus, with this authority of the Court, the doubts, misgivings and misinterpretation of Rule 19(1) of the BSF Rules were finally cleared. It is in the light of the law laid down by this Court in Rakesh Kumar that we will have to decide if the writ petitioners before us are entitled to any relief.
15. There is no doubt that the position in law is that declared in Rakesh Kumar viz. that Rule 19 of the BSF Rules does not grant any right to pension in cases where pension is not payable under the CCS (Pension) Rules, 1972. Thus there is no question of this Court directing payment of pension to persons who are otherwise ineligible under the CCS (Pension) Rules 1972. The contention raised in all these petitions on the question of law must necessarily fail in the light of the clear pronouncement in Rakesh Kumar."
10. Thus, in view of the principles laid down in the above two decision, I am of the view that the petitioners who resigned from BSF service on completion of 10 years of 12 service before completion of 20 years would not be entitled for pension or pensionary benefits.
11. For the reasons recorded above, the writ petitions are rejected.
SD/-
JUDGE mpk/-* CT:bms