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2000 DIGILAW 317 (KER)

Paul v. Border Security Force

2000-06-21

G.SASIDHARAN

body2000
JUDGMENT : G. Sasidharan, J. The question which arises for consideration in these Original Petitions is whether a member of the Border Security Force is entitled to receive pensionary benefits before completing 20 years of service. Incidentally, the question whether a member of the Border Security Force who resigns from service and whose resignation is accepted, is entitled to pension even though he has not completed 20 years of service also falls for consideration. 2. The resignation submitted by the petitioner in O.P.No. 31159 of 1999 after completing 10 years and 8 months of service was accepted by Ext. P1 order making it clear that the acceptance of the resignation was with full pensionary benefits in accordance with the order dated 27.12.1995 read with R. 49 of the CCS (Pension) Rules, 1972. The resignation submitted by the petitioner in O.P. No. 30743 of 1999 was accepted by Ext. P1 order saying that the acceptance was as per the provisions in R. 19(1) of the BSF Rules, 1969 read with order dated 27.12.1995 with retirement benefits as admissible under R. 49(1) of the CCS (Pension) Rules, 1972. At the time of accepting the resignation, the petitioner had 10 years and 2 months service in the Border Security Force. Acceptance of the resignation submitted by the petitioner in O.P. No. 30745 of 1999 was by saying that he was allowed to draw pensionary benefits admissible under the rules as he has completed more than 10 years qualifying service and became eligible to draw pensionary benefits. Subsequently, the petitioners were informed that they are not entitled to get pension for the reason that they have not completed 20 years of service in the Border Security Force. These Original Petitions are filed for giving directions to the respondents to pay pensionary benefits to the petitioners. 3. The contention raised by the respondents is that the claim of the petitioners for pension cannot be considered favourably since they are not entitled to pension as they have not completed 20 years of service. Their further contention is that there should be minimum 20 years of service for getting pension cannot be waived. 4. There are no separate Pension Rules for the Border Security Force. Their further contention is that there should be minimum 20 years of service for getting pension cannot be waived. 4. There are no separate Pension Rules for the Border Security Force. R. 182 of the Border Security Force Rules, 1969 (hereinafter referred to as the “B.S.F. Rules”) says that any rule or order applicable to the Force on the date those rules came into force will unless repugnant to those rules, continue to apply unless and until abrogated or modified by the Central Government or any other competent authority. In the counter affidavit filed by the respondents in O.P. No. 30743 of 1999, it is stated that the rules which were followed earlier before the commencement of the B.S.F. Rules, were applied even after the coming into force of the B.S.F. Rules to the extent those rules were not contrary to the provisions of the B.S.F. Rules. 5. R. 19 of the B.S.F. Rules provides that the Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force 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. The second proviso to R. 19(1) of the B.S.F. Rules says that while granting such permission for retirement, the Central Government may make such reduction in the pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances of the case. S. 48 of the CCS (Pension) Rules deals with payment of pension. The provision in the above rule is that at any time after a Government servant completes 30 years of qualifying service, he may retire from service. R. 48-A of the CCS (Pension) Rules deals with retirement on completion of 20 years of qualifying service. The provision in that rule is that at any time after a Government servant has completed 20 years of qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. R. 48-A of the CCS (Pension) Rules deals with retirement on completion of 20 years of qualifying service. The provision in that rule is that at any time after a Government servant has completed 20 years of qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. The argument advanced by the learned Standing Counsel appearing for the respondents is that in the light of the above provisions, it is necessary that for getting pension, one must have atleast 20 years of service even if the resignation of the employee is accepted by saying that he is entitled to retirement benefits. 6. The question arose for consideration of this Court in Jose v. Border Security Force, 1999 (3) KLT 904 . That was a case in which the resignation submitted by a Constable in the Border Security Force was accepted by the Commandant under R. 19 of the B.S.F. Rules with pensionary benefits. When subsequently pensionary benefits were denied to him, one of the Constables approached this Court for a direction to the authorities to pay pension. The contention raised there was that as per R. 48-A of CCS (Pension) Rules, pension is admissible only to persons who have completed 20 years of qualifying service. In the above decision, it was held by this Court that when the members of Border Security Force are allowed to resign with pensionary benefits under R. 19 of the B.S.F. Rules, their claim for pension has to be worked out under R. 49(2)(b) of the CCS (Pension) Rules. It was also observed that the above rule in CCS (Pension) Rules cannot be narrowly interpreted so as to deny the pensionary benefits to those who were allowed to resign with pensionary benefits. Decision in the above case was that those who resigned from service before completing 20 years of service and whose resignations were accepted with pensionary benefits are entitled to get pension. 7. A Division Bench of this Court in W.A. No. 2648 of 1998 had also occasion to consider the very same question. That was a case in which resignation of a member of the Border Security Force was accepted and subsequently his case was reviewed and he was allowed to draw full pensionary benefits. 7. A Division Bench of this Court in W.A. No. 2648 of 1998 had also occasion to consider the very same question. That was a case in which resignation of a member of the Border Security Force was accepted and subsequently his case was reviewed and he was allowed to draw full pensionary benefits. Then by saying that the order was issued due to wrong interpretation of the rules and instructions, pensionary benefits were denied to him. At the time of discharge of the member of the Force, he had put in 10 years, 8 months and 3 days of qualifying service. The Division Bench found, in the above Writ Appeal, that the member of the Force whose resignation was accepted when he was having qualifying service of only 10 years, 8 months and 3 days, is entitled to get pension. In the light of the decisions of this Court, the petitioners in these Original Petitions are also entitled to get pension for the reason that at the time of resignation, all of them had put in qualifying service of more than 10 years. 8. At the time of argument, the learned Standing Counsel for the respondents raised the contention that this Court has no jurisdiction to entertain these Original Petitions for the reason that the cause of action did not arise within the jurisdiction of this Court. According to the learned Standing Counsel, the mere fact that the communication refusing to grant pension was received by the petitioners within the jurisdiction of this Court will not be sufficient to say that the cause of action arose within the jurisdiction of this Court. The decision of a Full Bench of this Court in Nakul Deo Singh v. Deputy Commandant, 1999 (3) KLT 629 was relied on by the learned Standing Counsel appearing for the respondents. Jurisdiction under Art. 226 of the Constitution of India can be invoked by the High Court only if the cause of action wholly or in part arises within the jurisdiction of that Court. In the above decision, it was held that cause of action arises by action of the Government or authority and not by residence of the person aggrieved. It was also held that the receipt of communication by itself does not constitute a fact in the bundle of facts constituting the cause of action. In the above decision, it was held that cause of action arises by action of the Government or authority and not by residence of the person aggrieved. It was also held that the receipt of communication by itself does not constitute a fact in the bundle of facts constituting the cause of action. In rendering the above decision, the Full Bench of this Court said that communication only gives the party a right of action based on the cause of action arising out of the action complained of and when that action complained of takes place outside the territorial jurisdiction of the High Court, the cause of action wholly arises outside the jurisdiction of the High Court. 9. In the present case, the petitioners were denied the benefit of getting pension even though the decision for denying pension was taken by an authority outside the jurisdiction of this Court. Pension is payable to the petitioners within the jurisdiction of this Court for the reason that they are residing here. So, the petitioners are not saying that this Court has the jurisdiction to entertain the Writ Petitions for the reason that they are residing within the jurisdiction of this Court, but for the reason that the benefit of getting pension within the jurisdiction of this Court is denied by the authorities. No doubt, the benefit of getting pension within the jurisdiction of this Court is denied by the orders passed by the authorities outside the jurisdiction of this Court. In so far as the benefit of getting pension, when the petitioners are residing within the jurisdiction of this Court, is denied by the respondents, it can be said that part of the cause of action arises within the jurisdiction of this Court. Moreover, in the decision reported in Jose v. Border Security Force, 1999 (3) KLT 904 and the judgment in W.A. No. 2648 of 1998, which have already been referred to, the petitioners were residing within the jurisdiction of this Court and the orders of the authorities refusing to grant pension were made outside the jurisdiction of this Court. Decision in the above cases were taken by this Court invoking the jurisdiction under Art. 226 of the Constitution of India. Decision in the above cases were taken by this Court invoking the jurisdiction under Art. 226 of the Constitution of India. For the above reasons, there is no merit in the contention raised by the learned Standing Counsel appearing for the respondents that this Court has no jurisdiction to entertain the Original Petitions. 10. The petitioners are, therefore, entitled to pension and hence, the respondents are directed to grant pension to the petitioners in accordance with R. 49(2)(b) of the CCS (Pension) Rules. Orders in this regard will be made by the respondents within three months from the date of receipt of a copy of this judgment. The gratuity amount payable to the petitioners also will be paid by the respondents within the period mentioned above. The Original Petitions are disposed of as above.