Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 430 (KER)

D. Muaraleedharan v. Union of India

2002-07-04

B.N.SRIKRISHNA, G.SIVARAJAN

body2002
Judgment :- Srikrishna, C.J. This original petition has been referred to us by a learned single Judge for opinion on the ground that the matter requires attention of the Division Bench. 2. The short facts necessary for disposal of this original petition are 3. The petitioner was enrolled in the Border of Security Force (BSF) as a Constable on 1.5.1971. He tendered his resignation, which was accepted with effect form 5.4.1982. At the time of resignation he had completed 10 years, 11 months and one day’s service. When pension papers were submitted to the Pay Accounts Division of the B.S.F. it was returned with the remark that the resignation of the petitioner was not accepted on compassionate grounds under Rule 19(1) with a copy to the individual and therefore the petitioner was not entitled to pensionary benefits. The petitioner moved writ petition O.P.No.2101 of 1993 before this court for a direction to the respondents to release the pensionary benefits. This petition was allowed and a direction was made in favour of the petitioner. Consequently, the petitioner has been granted a pension of Rs.65/- per month with effect from 6.4.1982, which was subsequently revised to Rs.375/- per month from 1.1.1996 and ever since then the petitioner has been drawing pension and continued to draw pension from the Union of India till by an order dated 22.8.2001 (Ext.P3) addressed to the State Bank of Travancore, with a copy to the petitioner, the petitioner was informed that the payment of pension had been stopped forthwith, as he had resigned from service under Rule 19 of the B.S.F. Rules before completing 20 years of service and was not entitled for pensionary benefits as decided by the Supreme Court of India in its judgment dated 30.3.2001 in respect of SLP Nos.6166 of 1999, 2121 of 2000 and 2491-92 of 2001. Being aggrieved by the said order, the petitioner has moved this original petition for quashing the said order and for continuance of his pensionary benefits. 4. A counter affidavit has been filed on behalf of the Union of India in which the only contention urged is that the question of grant of pension on resignation under Rule 19(1) of the B.S.F. Rules has now been decided by the Supreme Court in Union of India and others v. Surendran Nair and others (now reported in 2001(2) K.L.T.125 SC). The Supreme Court has taken the view that no pension can be granted under Rule 19 of the B.S.F. Rules unless the incumbent has put in 20 years of service. The learned counsel for respondents strenuously contended that, in view of law as declared by the Supreme Court in P.K.Surendran Nair’s case (Supra), there is no question of continuing the pensionary benefits which were wrongly granted to the petitioner and that the pensionary benefits had been justifiably and rightly discontinued by the order at Ext.P3. He thus contends that the said order is perfectly justified. dismissed. 5. With the help of the learned counsel appearing for the Union of India we have perused the judgment in Surendran Nair’s case (Supra) it is true that the judgment decides the correct interpretation to be put on Rule 19 of the B.S.F. Rules, 1969. It also takes the view that members of force resigning after completing service of 10 years or more but less than 20 years will not be entitled to full pension/pensionary benefits. Infact the observations in paragraph 20 of the judgment are instructive. One of the contentions advanced by the respondents in the said case was that a large number of other similarly situated persons had been granted pensionary benefits and it could be unjust not to grant similar pensionary benefits to the respondents in the said appeal before the Supreme Court. This contention was rejected by the Supreme Court holding that, merely because by an erroneous interpretation of the Rules 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 an 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 of India. 6. The issue before us is very simple. There is a judgment of this court in O.P.No.2101 of 1993 by which the issue was decided in favour of the petitioner and the Union of India was directed to pay the pensionary benefits by interpreting the rule in a particular manner. This judgment was dated 16.2.1996, as a consequence of which the petitioner has been paid the pensionary benefits retrospectively from 1982. This judgment was dated 16.2.1996, as a consequence of which the petitioner has been paid the pensionary benefits retrospectively from 1982. In other words, from 1982 till 2001 the petitioner continued to draw pension under the judgment in O.P.No.2101 of 1993 which has been fully implemented. Because of the interpretation of Rule 19 in some other proceeding by the Supreme Court taking a different view, it is not possible to disturb the operation of the judgment which has been fully implemented between the parties. It would also be barred by the principle of or analogous to res judicata, as the judgment in O.P.No.2101 of 1993 was never challenged by the Union of India. 7. The impugned order of the second respondent dated 22.8.2001 at Ext.P3 is hereby set aside. The respondents shall continue to pay the pensionary benefits to the petitioner until such time that the judgment in O.P.No.2101 of 1993 is not varied or set aside in accordance with law. Subject to the above observations, the original petition is allowed. No order as to costs.