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2000 DIGILAW 454 (KER)

Director General B S F v. Jose

2000-08-25

D.SREEDEVI, S.SANKARASUBBAN

body2000
JUDGMENT S. Sankarasubban, J. 1. Appellants in both these Writ Appeals are same. The question involved in both these appeals is also the same and hence both these Writ Appeals are heard together and are disposed of by this common judgment. 2. W. A. No. 279 of 2000 is filed against the judgment in O. P. No. 3295 of 1999. O. P. No. 3295 of 1999 was filed by the respondent in the appeal, who was a Constable in the Border Security Force. He joined service on 10.7.1987 and after 10 years, 2 months and 20 days of service, he tendered his resignation. The resignation was accepted by the second appellant with effect from 30.9.1997, as per Ext. P1 order dated 31.8.1997 under R.19 of the Border Security Force Rules, 1969 (hereinafter referred to as 'the B.S.F. Rules') with pensionary benefits. Subsequently, FHQ, Border Security Force, New Delhi intimated that personnel resigned from service before completion of 20 years of qualifying service are not entitled to pensionary benefits and this was communicated to the respondent by letter dated 20.10.1998. Thereafter, the respondent appeared before the second appellant on 2.12.1998 and submitted an application for joining duties, but the same was withdrawn by the respondent on 7.12.1998. The respondent's request for pensionary benefit was turned down by the Pay and Accounts Division of the Border Security Force on the ground that he had not completed 20 years of qualifying service as required under R.48A of the Central Civil Services Pension Rules (hereinafter referred to as 'the CCS (Pension) Rules) to enable him to earn pension. Thereafter, the Original petition was filed by the respondent praying for settlement of his pension immediately and to disburse the same with all retirement benefits. 3. In the counter affidavit filed by the respondents in the Original Petition/appellants herein, it is clearly stated that the respondent herein was governed by the CCS (Pension) Rules and as per R.48A of the CCS (Pension) Rules, pension is eligible only after putting 20 years of qualifying service. Thereafter, the Original Petition was filed by the respondent praying for a direction to settle his pension immediately and disburse the same with all retirement benefits. Thereafter, the Original Petition was filed by the respondent praying for a direction to settle his pension immediately and disburse the same with all retirement benefits. In the counter affidavit it is clearly stated that the petitioner was governed by the CCS (Pension) Rules and as per R.48A of the CCS (Pension) Rules, pension is eligible only to persons, who had completed 20 years of qualifying service. It was also brought to the notice of the court that under R.26 of the CCS (Pension) Rules, on resignation the person forfeits his past service and therefore, the petitioner in the Original Petition is not entitled to any pension. It was also submitted that the respondents did not retire from service as contemplated under R.49(2)(b) of the CCS (Pension) Rules, but was allowed to resign from service and therefore the above Rule has no application. Learned single Judge held that if the petitioner is allowed to resign with pensionary benefit under R.19 of the BSF Rules, then his claim for pension must be worked out under R.49(2)(b) of the CCS (Pension) Rules. It is against that the Writ Appeal is filed. According to the appellants, Ext. P1 order was issued under a mistaken impression. 4. W. A. No. 443 of 2000 is filed against the judgment in O. P. No. 2920 of 1999. That Original Petition was filed by Ex. Cont. Madhu, who was a Constable in the Border Security Force. He had completed 10 years and 4 months of qualifying service when he resigned from service. The resignation was accepted by the second appellant by order dated 1.7.1997 under R.19 of the B.S.F. Rules with pensionary benefits under a mistaken impression. He filed the Original Petition for enforcing the pensionary benefits. The same contention as was taken in the other Original Petition was also taken in O. P. No. 2920 of 1999. Both these cases were heard together by the learned single Judge and the learned single Judge allowed both the Original Petitions. It is against the above judgment that W. A. No. 443 of 2000 is filed. 5. The contention urged by the learned counsel for the appellants is as follows: The CCS (Pension) Rules are applicable to personnel of the Border Security Force. It is against the above judgment that W. A. No. 443 of 2000 is filed. 5. The contention urged by the learned counsel for the appellants is as follows: The CCS (Pension) Rules are applicable to personnel of the Border Security Force. Under R.26 of the CCS (Pension) Rules, resignation from service or a post unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service. Under R.48A of the CCS (Pension) Rules, at any time after a Government servant has completed twenty 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 notice of voluntary retirement given under sub-r.(1) shall require acceptance by the appointing authority. R.49 of the CCS (Pension) Rules deals with amount of pension. That Rule says that if 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 the appropriate amount as stated in that Rule. In the case of a Government servant retiring in accordance with the provisions of these Rules after completing qualifying service of not less than thirty years the amount of pension shall be determined as prescribed in the Rule. Under R.49(2)(b) of the CCS (Pension) Rules, 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 sixty per mensem. According to the counsel, it is only for those persons, who are retiring in accordance with the Rules that the amount of pension under R.49(2) can be given. R.35 of the CCS (Pension) Rules deals with superannuation pension. A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement. R.36 of the CCS (Pension) Rules deals with retiring pension. R.35 of the CCS (Pension) Rules deals with superannuation pension. A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement. R.36 of the CCS (Pension) Rules deals with retiring pension. A retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement, in accordance with the provisions of R.48 of 48A of the CCS (Pension) Rules or R.56 of the Fundamental Rules or Art.459 of the Civil Service Regulations and to a Government servant who, on being declared surplus, opts for voluntary retirement in accordance with the provisions of R.29 of the CCS (Pension) Rules. R.38 of the CCS (Pension) Rules deals with invalid pension. Under this Rule, invalid pension may be granted if a government servant retires from the service on account of any bodily or mental infirmity which permanently incapacitates him for the service. R.48 of the CCS (Pension) Rules says that at any time after a Government servant has completed thirty years of qualifying service, he may retire from service or he may be required by the appointing authority to retire in the public interest. As already stated, R.48A of the CCS (Pension) Rules deals with retirement on completion of twenty years of qualifying service. In the present case, according to the appellants, the respondents had completed only more than 10 years of service, but less than 11 years of service and it is not a question of retirement. Hence, according to them, the respondents are not entitled to pension. 6. Respondents relied on R.19 of the BSF R.1969. The B.S.F. R.1969 were framed in exercise of the powers conferred by sub-s.(1) and (2) of S.141 of the B.S.F. Act, 1968. The Border Security Force Act, 1968 ((hereinafter referred to as 'the B.S.F. Act') came into force on 1.3.1969. It was an Act provided for the constitution and regulation of an Armed Force of the Union for ensuring the security of the borders of India and for matters connected therewith. S.141 of the B.S.F. Act, enables the Central Government to make Rules for the purpose of carrying into effect the provisions of this Act by notification. S.141(c) of the B.S.F. Act enables the Central Government to make Rules regarding conditions of service including deductions from pay and allowances of members of the Force. S.141 of the B.S.F. Act, enables the Central Government to make Rules for the purpose of carrying into effect the provisions of this Act by notification. S.141(c) of the B.S.F. Act enables the Central Government to make Rules regarding conditions of service including deductions from pay and allowances of members of the Force. Chap.4 of the B.S.F. Rules deals with termination of service. R.17 of the B.S.F. Rules is with regard to retirement on grounds of unsuitability. R.18 of the B.S.F. Rules deals with retirement on grounds of physical unfitness. R.19 of the BSF Rules deals with resignation. It says as follows: "19. Resignation:- 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:- (i) 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" R.181 of the B.S.F. Rules says that all rules and orders relating to the matters covered by these rules shall stand repealed in so far they are inconsistent with any of the provisions of these rules. 7. Learned counsel for the appellants submitted that unless a person retires as mentioned in the CCS (Pension) Rules, he will not be entitled for pension, since under R.49 of the CCS (Pension) Rules it is stated that amount of pension will be paid to those persons following these Rules. And if a person wants to voluntary retirement, he has to complete 20 years of qualifying service. Further, it was brought to our notice that under R.26 of the CCS (Pension) Rules, on resignation from a service entails forfeiture of past service. We are unable to accept the arguments of the learned counsel for the appellants. It is true that the CCS (Pension) Rules are applicable to personnel of the Border Security Force. Further, it was brought to our notice that under R.26 of the CCS (Pension) Rules, on resignation from a service entails forfeiture of past service. We are unable to accept the arguments of the learned counsel for the appellants. It is true that the CCS (Pension) Rules are applicable to personnel of the Border Security Force. But that does not mean that regarding the Border Security Force, the Central Government cannot frame any Rule with regard to their conditions of service. R.181 of the B.S.F. Rules merely says that all rules and orders relating to the matters covered by these rules shall stand repealed in so far as they are inconsistent with any of the provisions of these rules. S.141(2)(c) of the B.S.F. act enables the Central Government to frame Rules with regard to conditions of service of members of the Force. The appellants have no case that R.19 of the B.S.F. Rules is invalid. It is pertinent to note that R.18 of the B.S.F. Rules, which deals with retirement on grounds of physical unfitness and R.17 of the B.S.F. Rules deals with retirement on grounds of unsuitability. These two Rules do not provide for any pension. Hence, persons who retire under R.17 or 18 of the B.S.F. Rules will be entitled to pension, provided they are entitled so under CCS (Pension) Rules. R.19 of the B.S.F. Rules clearly says that the Central Government may 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. Thus, a power is given to the Central Government to accept the resignation of persons before they attaining the age of retirement or before putting in such number of service necessary for retirement. The proviso says that in such cases, the Government can require an officer to refund the amount to the Government which constitutes the cost of training to that officer or make reduction in pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances. The proviso says that in such cases, the Government can require an officer to refund the amount to the Government which constitutes the cost of training to that officer or make reduction in pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances. Thus, as per R.19 of the B.S.F. Rules in the case of a person who will be entitled to pension under the Rules the Government has got power to make deduction in the pension, if it grants permission to him to resign. Thus, R.19 of the B.S.F. Rules stands on a different footing from R.26 of the CCS (Pension) Rules. R.26 of the CCS (Pension) Rules says that resignation from service may entail forfeiture of past service. R.19 of the B.S.F. Rules states that such persons will be entitled to pension, if they are entitled to get under the Rules. We are of the view that Clause.(ii) of the Proviso to R.19 of the B.S.F. Rules will become otiose, if we are interpreting R.19 of the B.S.F. Rules as subject to R.26 of the CCS (Pension) Rules. That is not the intention. This is also clear from R.181 of the B.S.F. Rules. The intention of R.19 of the BSF Rules appears to be person resigning before attaining the age of retirement or before putting the number of years for retirement will also be treated as a retired person. If that be so, such person will be entitled to pension under R.49(2)(b) of the CCS (Pension) Rules, because minimum service required for pension is 10 years. In these two cases, both the petitioners in the Original Petitions have resigned after completing 10 years of service. 8. A similar question came up before the Himachal Pradesh High Court in Ex Naik Ramesh Kumar v. Union of India & others, CWP No. 761 of 1998. In the Division Bench of the Himachal Pradesh High Court, their Lordships followed the Division bench decision of the Delhi High Court reported in Kuldip Singh v. Union of India, Delhi Reported judgments (36) 1995 page 25. In the Division Bench of the Himachal Pradesh High Court, their Lordships followed the Division bench decision of the Delhi High Court reported in Kuldip Singh v. Union of India, Delhi Reported judgments (36) 1995 page 25. Their Lordships observed that a careful consideration of the above Rules would go to show that the petitioner therein would be entitled to proportionate pension having completed 10 years of service and the contentions of the claimant urged to the contrary are not either tenable in law or acceptable. According to us, a joint reading of R.19 of the B.S.F. Rules and R.49 of the CCS (Pension) Rules will show that notwithstanding the resignation from service, if resignation is with permission, the resigning person will be entitled to the benefit as per R.49 of the CCS (Pension) Rules. Before a person is allowed to resign, he is to get permission. The discretion is given to the Authorities to grant permission or not to grant permission. If permission is granted, such person will be entitled to get pension as stated in R.19(2) of the B.S.F. Rules. For the purpose of calculating, one will have to refer to R.49 of the CCS (Pension) Rules. Thus, we are of the view that the learned single Judge was correct in holding that the petitioners are entitled to pension under R.49(2)(b) of the CCS (Pension) Rules. With respect, we are not able to agree with the reasoning given by a learned single Judge of the Karnataka High Court in Writ Petition No. 4876 of 1998 and connected cases dated 29.11.1999. The learned judge was of the view that the grant of permission for resignation under R.19 has nothing to do with grant of pension or entitlement to pension. All that R.19(1)(ii) contemplates is reduction of pension where the officer is otherwise eligible for pension. As already stated, it was not necessary there to mention the second proviso to R.19(1) of the B.S.F. Rules that persons will be entitled to pension, if resignation entails forfeiture of past service. According to us, the B.S.F. Act is a Special Law enabling the Government to frame Rules regarding conditions of service and the B.S.F. Rules also from part of the Special Law. The Special Law will prevail over General Law. According to us, the B.S.F. Act is a Special Law enabling the Government to frame Rules regarding conditions of service and the B.S.F. Rules also from part of the Special Law. The Special Law will prevail over General Law. We also agree with the decision of the Division Bench of the Madhya Pradesh High Court in Tula Ram v. Union of India and Others, 1989 MPLJ 466 . Another decision, which was brought to our notice is a Division Bench decision of this Court in W. A. No. 2648 of 1998. In that case also, this Court held that the resignation of the petitioner was accepted by the appellants respondents therein and, therefore, he was not entitled to draw full pension on account of the qualifying service rendered by him. 9. In the above view of the matter, we find no merits in these Writ Appeals and they are dismissed. The appellants shall pass appropriate orders granting pension within a period of two months from today.