Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 112 (JK)

Govind Singh v. Union Of India

2004-04-22

V.K.JHANJI

body2004
Petitioner, a constable, was enrolled in BSF with effect from 15.5.1988. Firstly, he was posted to 124 Bn. BSF and, thereafter, to 17 Bn. BSF. He remained on the strength of 73 Bn. BSF upto 1.10.1998. After completing ten years, three months and fifteen days of service in BSF the petitioner because of compelling family problems made a request to resign from service. On receipt of the application petitioner was interviewed by the Commandant on 27.6.1998. Petitioner was apprised about the rule position and was told that since he had not completed the qualifying service which would make him entitled for pension, he would not be provided with any pensionary benefits. He was told that if he still wanted to proceed with his resignation request, he would have to submit another application. Petitioner did not withdraw his request for resignation but submitted another application for leaving service with effect from 1.10.1998. On receipt of the application, the petitioner was again called by the Commandant on 15.9.1998 and was apprised of the rule position, that there was no provision of granting pensionary benefits without completing twenty years of service. Petitioner insisted on accepting his resignation and so his resignation was accepted by the Commandant with effect from 1.10.1998 without any pensionary benefits. By then, as noticed, petitioner had served the Force for a period of ten years three months and fifteen days only. Since the petitioner had not put in the qualifying service entitling him for pension, petitioner challenged order dated 19.9.1998 vide which his resignation was accepted with effect from 1.10.1998, by means of writ petition but, later on got the writ petition dismissed as withdrawn. 2. The present writ petition has been filed by the petitioner for issuance of writ in the nature of mandamus directing the respondents to recall the petitioner back and permit him to join the Force so as to enable him to complete qualifying service as has been done in the case of other similarly situated persons who were recalled after they had submitted their resignation. In addition petitioner is seeking directions to the respondents to give him due seniority alongwith all other consequential benefits. 3. In addition petitioner is seeking directions to the respondents to give him due seniority alongwith all other consequential benefits. 3. Upon notice of the writ petition, respondents have filed objections in which they have stated that the petitioner was apprised of the rule position not once twice before his resignation was accepted but, insisted that he be allowed to resign with effect from 1.10.1998 because of compelling domestice problems and it was at his instance that he was allowed to resign from the Force. Respondents have stated that under Rule 19 of the BSF Rules, 1969, petitioner is not entitled to pension as he had not put in minimum qualifying service i.e, twenty years. Respondents have also stated that the petitioner cannot as a matter of right seek that he be recalled to join the Force so as to enable him to complete twenty years of qualifying service. Respondents have also raised an objection that second writ petition on the same cause of action is not maintainable. 4. I have heard learned counsel for the parties and have carefully gone through the record of this case. 5. I am of the considered view that petitioner is not entitled to the directions sought for in this writ petition. Rule 19 of the BSF Rules provides that competent authority may, having regard to special circumstances of a case, permit a member of the Force to resign from the Force before 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 authority competent to grant such permission is also empowered to make such reductions in the pension on other retirement benefits of a member of the Force, if so eligible as it may consider just and proper in the circumstances of the case. 6. Under Section 8 of the BSF Act, no member of the Force is entitled to resign his appointment during the term of his engagement except with the permission of the prescribed authority. From a reading of Section 8 and Rule 19 one is left in no doubt that the member of the Force is not at liberty to resign from his appointment during the term of his engagement. However, the prescribed authority may permit a member of the Force to resign in certain special circumstances. 7. From a reading of Section 8 and Rule 19 one is left in no doubt that the member of the Force is not at liberty to resign from his appointment during the term of his engagement. However, the prescribed authority may permit a member of the Force to resign in certain special circumstances. 7. Section 8 of the Act and Rule 19 of the Rules were considered by Supreme Court in Union of India v. Rakesh Kumar, AIR 2001 SC 1877, Wherein their Lordships of the Supreme Court held that if the member of the BSF resigns before completing qualifying service of twenty years, he would not be entitled to pension. It was also observed that if pensionary benefits have been granted to someone by erroneous interpretation of the rules, the same mistake cannot be directed to be perpetuated on grounds of discrimination of hardship. 8. As regards the prayer of the petitioner for issue of mandamus directing the respondents to take him back in service to enable him to complete the qualifying service, learned counsel for the petitioner has not cited any law or rule to show that the respondents are under any statutory duty or even obliged to accept that request of the petitioner. The request of the petitioner, if any, made is not governed by any provisions of the Act or Rules. Therefore, such a direction cannot be issued by this Court. 9. In this case the petitioner had not completed twenty years of qualifying service but had put in ten years, three months and fifteen days service as on the date of his resignation and so he was not eligible to get any pension under any of the provisions of C.C.S.Pension Rules. 10. In view of the above, writ petition is, dismissed being without any merit.