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2000 DIGILAW 350 (KER)

Prasannan v. Director General, B. S. F.

2000-07-10

K.A.ABDUL GAFOOR

body2000
Judgment :- K.A. Abdul Gafoor, J. The facts are not in dispute. They are in a narrow campass. They raise a substantial question of law. 2. The petitioner serving the Border Security Force resigned from service on completion of 10 years. That was under R.19 of the Border Security Force Rules, 1969. According to him, this was with the benefit of pension. But, he is not granted pension. He shall be granted pension. That is his case. R.19(1) is sufficient enough, according to the petitioner, to grant him pension. R.18(2) of the Central Civil Services (Pension) Rules is applicable to the members of Border Security Force as well. R.49(2)(b) of the C.C.S.(Pension) Rules make it clear that those who have put in ten years of service are also eligible for pension. Therefore, the persons who resign under R.19 on completion of ten years service are also eligible for pension, the petitioner submits. The petitioner relies on a single judge decision of this Court in Jose v. Border Security Force (1999 (3) KLT 904) and a Division Bench decision of this Court in W.A. No. 2648/1998 reported in Union of India v. Surendran Nair (1999 (2) KLT (SN) Case No. 3 at page No. 3). It has been held in Jose's case referred to above that, "If the petitioners are allowed to resign with pensionary benefits under R.19 of the BSF Rules, then the petitioner's claim for pension must be worked out under R.49(2)(b) of the C.C.S.(Pension) Rules. Therefore, R.49(2)(b) of the C.C.S.(Pension) Rules cannot be narrowly interpreted so as to deny the pensionary benefits to the petitioners who were allowed to resign with pensionary benefits as per Ext. P1 orders". It was in the above circumstances, pension was ordered to be paid to those who resign from the service on completion often years service, under R.19 of the B.S.F. Rules. 3. The case considered by the Division Bench has a different facet. There also, the incumbent resigned on completion of just less than 11 years. He was not granted pension. But, his case was reviewed and an order referred to as Ext. P1 in that judgment was issued granting him pension. Inspite of that, he was not paid the pension. Therefore, an interim order was passed directing payment in terms of the review order already passed by the Government. That was taken in Writ Appeal 2648 of 1998. But, his case was reviewed and an order referred to as Ext. P1 in that judgment was issued granting him pension. Inspite of that, he was not paid the pension. Therefore, an interim order was passed directing payment in terms of the review order already passed by the Government. That was taken in Writ Appeal 2648 of 1998. The Original Petition and the Writ Appeal were heard together and disposed of on 4th March, 1999. It is stated in the judgment that "it is not in dispute that the resignation of the petitioner was accepted by the appellants-respondents and, therefore, he is entitled to draw full pension on account of the qualifying service rendered by him". Accordingly, pension granted as per the review order Ext. P1 referred to in that judgment was directed to be paid. 4. According to me, the ambit and intent of R.19 which is the trump card of the petitioner herein is not examined. The said rule reads as follows: "19. Resignation:- (1) 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: Provided that while granting such permission the Central Government may, (1) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or (ii) 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. (2) The Central Government may accept the resignation under sub-r.(1) with effect from such date as it may consider expedient. Provided that it shall not be later than three months from the date of receipt of such resignation. (3) The Central Government may refuse to permit an officer to resign: (a) if any emergency has been declared in the country either due to internal disturbances or external aggression; or (b) if it considers it to be expedient so to do in the interests of the discipline of the Force; or (c) if the officer has specifically undertaken to serve for specified period and such period has not expired. (4) The provisions of this rule shall apply to and in relation to any officer of the Force and the powers vested in the Central Government under sub-rr. (1) and (2) shall be exercised in the case of a Subordinate Officer by a Deputy Inspector General and in the case of an enrolled person by a commandant." This rule does not make one eligible for pension. This rule only enables one to resign from service, "before the attainment of 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". Retirement and pension are not one and the same. The only part where pension is referred to in that rule is proviso No. (ii) which makes it clear that on such resignation the competent authority 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". Merely because R.19 enables the competent authority to make reduction from the pension "if so eligible" does not mean that R.19 makes a person, who had resigned from the service, eligible for pension. Admittedly, Border Security Force Rules do not contain any provision regarding grant of pension. So the Central Civil Services (Pension) Rules are adopted. Therefore, eligibility for pension shall be determined in terms of the rules contained in C.C.S.(Pension) Rules. Of course, as per R.49(2)(b) of the said Rules, one is entitled for pension after completion of 10 years. The rule reads as under: "in the 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 ten years, the amount 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 seventy five per mensem". (emphasis supplied) Thus retiring persons who have put in only ten years of service are also eligible for pension. This sub-rule opens with the words "in the case of a Government servant retiring in accordance with the provisions of these rules". (emphasis supplied) Thus retiring persons who have put in only ten years of service are also eligible for pension. This sub-rule opens with the words "in the case of a Government servant retiring in accordance with the provisions of these rules". Thus it is the case of the persons retiring from service on attaining the age of retirement and not the case of resignation in accordance with the Border Security Force Rules. Therefore, if a person retires on attainment of superannuation with only ten years service, necessarily, he will be entitled for pension. Otherwise, the provision for voluntary retirement which makes mandatory 20 years of service as provided in C.C.S.(Pension) Rules which is legislated by prescription in B.S.F. Rules, will render ineffective. All the relevant rules contained in the B.S.F. Rules and C.C.S.(Pension) Rules have to be considered in the aforesaid perspective. Therefore, to be eligible for pension, one shall have, on his retirement, the minimum years of service as required in R.49 of C.C.S.(Pension Rules. A person with ten years service will be eligible for pension only if he retires from service in accordance with the rules and not when he resigns from service. If a person resigns from service even after 20 years of service, necessarily, he will be entitled for pension as may be eligible for voluntary retirement clause. It is in such circumstances that one becomes eligible for pension on resignation as referred to the second proviso to R.19(1) of the B.S.F. Rules. In other words, R.19(1) of the Border Security Force Rules does not make a person eligible for pension. Eligibility shall be determined with reference to the qualifying service put in at the time of retirement. A person who thus resigns, is not entitled for pension in terms of C.C.S.(Pension) Rules. Therefore, the observation in the Single Judge decision "if the petitioners are allowed to resign with pensionary benefits under R. I9 of the B.S.F. Rules" is not in consonance with R.19 of the B.S.F. Rules. The rule as understood does not allow anyone to resign with pensionary benefits. Equally so, is the observation of the Division Bench "that the resignation of the petitioner was accepted". At that time, the Division Bench also did not consider whether R.18 as such creates any entitlement or eligibility for payment of pension in the case of persons who had resigned from service. Equally so, is the observation of the Division Bench "that the resignation of the petitioner was accepted". At that time, the Division Bench also did not consider whether R.18 as such creates any entitlement or eligibility for payment of pension in the case of persons who had resigned from service. Therefore, the issue requires, according to me, a further closer consideration at the hands of a Division Bench with reference to the perspective and ambit of R.18. Accordingly, I adjourn the matter for consideration by a Division Bench. Office shall place the files before the Hon'ble the Chief Justice for necessary action.