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2007 DIGILAW 298 (GAU)

Union of India v. Subir Sarkar

2007-04-17

MAIBAM B.K.SINGH, R.B.MISRA

body2007
JUDGMENT R.B. Misra, J. 1. Heard Mr. P.K. Biswas, learned Assistant SG for the Appellants. Also heard Mr. Somik Deb, learned Counsel for the Respondent-writ Petitioner. 2. The present writ petition has been filed by the Appellants challenging the judgment and order dated 14.2.03 passed in Civil Rule No. 191 of 1998 whereby the learned Single Judge directed the Commandant, 106 Bn. BSF to reinstate the writ Petitioner to join duty subject to the fulfillment of the conditions indicated in the impugned order dated 14.2.03. 3. It appears that the writ Petitioner was serving as L. Naik under 106 Bn. of Border Security Force (BSF) and after completing of 10 years of service he intended to take voluntary retirement as the BSF authorities have issued a memorandum dated 27.12.95 stating that the Government of India has changed the policy about the admissibility of pensionary benefits on acceptance of resignation in reference to the Rule 19(1) of 'BSF Rules', 1969 (for short called the 'BSF Rules'). The writ Petitioner had tendered resignation and the BSF authorities accepted with effect from 31.3.97. The writ Petitioner expected to receive pensionary benefits after voluntary retirement in terms of Rule 19(1) of the 'BSF Rules'. 4. For convenience, Rule 19 of 'BSF Rules' is reproduced herein below: 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: (a) Require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or (b) 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. 5. In view of the settled position of law, the entitlement of pension to the BSF personnel does not arise in reference to the provision of Rule 19 of the 'BSF Rules' since only the CCS (Pension) Rules, 1972 is applicable to the BSF personnel according to which an employee completing 20 years of service is entitled to be paid pensionary benefits. Having considered this aspect, the BSF authorities issued another circular/letter dated 15.10.98 allowing the BSF personnel including the writ Petitioner relieved on his resignation letter to resume duties under the term 'reinstatement' subject to the conditions mentioned therein. 6. The circular dated 15.10.98 issued by the opposite party - BSF is quoted below: Sub-Reinstatement: This is to inform you that it has been decided by the competent authority to reinstate all the personnel who resigned under BSF Rule 19 during 1996,1997 and 1998 with less than 20 years of service under mistakes impression with pensionary benefits and not granted pension. The reinstatement will be subject to the following conditions: (a) The intervening period from the date of resignation to date of reinstatement will be regularized as EL/HPL as due and remaining period by granting leave as the case may be. (b) They will have to refund the GPF and other dues paid to them. (c) They will retain their seniority. 2. In view of the above, you may join the duty immediately as a special case as HQ 106 in BSF Magra Camp, Bamer (Rajasthan). Sd/Illegible 15.10.98 Commandant, 106 Bn. B.S.F. 7. It appears that the writ Petitioner despite being aware of the aforesaid circular dated 15.10.98 allowing him to resume duty did not come forward and had kept silence but has preferred a writ petition/Civil Rule No. 191 of 1998. While disposing of the said writ petition/Civil Rule, this Court has issued a direction interpreting the above circular dated 15.10.98 in addition to imposing new conditions and has directed the Commandant, 106 Bn. BSF to reinstate the writ Petitioner on his report to the duties subject to the fulfillment of the following conditions indicated as below: (a) verification of physical fitness; (b) verification of antecedents for the intervening period between 1.2.1997 and the date of resumption. In case the Petitioner is found to be fit for reinstatement as ordered he would get no back wages for the aforesaid intervening period. However, his service may be counted for pensionary benefit, if otherwise eligible. 8. In case the Petitioner is found to be fit for reinstatement as ordered he would get no back wages for the aforesaid intervening period. However, his service may be counted for pensionary benefit, if otherwise eligible. 8. According to the learned Counsel for the Appellants such similarly situated persons more than two thousand in number have approached by different writ petitions before Hon'ble Supreme Court and the Supreme Court by its judgment in Raj Kumar v. Union of India (2006) 1 SCC 737 , has scrutinized the cases of such BSF personnel who tendered resignation in reference to the Rule 19 of the 'BSF Rules' and has categorically indicated in Para 14 of the judgment as below: We are unable to accept the contention urged on behalf of the Petitioners that the confusion with regard to the interpretation of Rule 19 of the BSF Rules was cleared only as a result of the judgment in Rakesh Kumar. Even before Rakesh Kumar was decided, way back in the year 1998 itself, the authorities seemed to have realized their mistake as evidenced by the letter dated 15.1.1998 followed by the circular dated 17.10.1998. Rakesh Kumar was decided only in the year 2001, almost 3 years later. Such of the BSF personnel who had resigned in the hope of getting pensionary benefits, although not eligible for pension under the CCS (Pension) Rules, 1972, had been given the opportunity of getting back into service by virtue of the circular dated 17.10.1998. Despite the deadline for reporting being extended from 30.4.1999 to 31.8.1999, about 697 personnel had failed to avail of the opportunity of returning to service. There cannot be any equity in favour of those that failed to avail of the opportunity of rejoining service. If any of them failed to take advantage of the offer for reeducation into service, they have only themselves to thank. In such cases, obviously, there cannot be any relief granted in the present writ petitions, contrary to the law declared by Rakesh Kumar" (2001) 4 SCC 309 Union of India v. Rakesh. 9. According to the learned Counsel for the Appellant-Union of India, the writ Petitioner was aware of the circular dated 15.10.98 and had deliberately chosen not to come forward to join duty even when the opportunity for reinstatement was provided to him vide circular dated 15.10.98. 9. According to the learned Counsel for the Appellant-Union of India, the writ Petitioner was aware of the circular dated 15.10.98 and had deliberately chosen not to come forward to join duty even when the opportunity for reinstatement was provided to him vide circular dated 15.10.98. Therefore, on his preferring writ petition/Civil Rule No. 191 of 1998, the learned Single Judge vide impugned judgment cannot grant any relief by interpreting and putting additional conditions in the circular and issuing Mandamus to the BSF authorities for allowing the writ Petitioner to join duty at the belated stage. On the other hand, Mr. Somik Deb, learned Counsel for the writ Petitioner has submitted that he has neither been intimated nor conveyed about such offer and circular dated 15.10.98 and the relief granted by the learned Single Judge cannot be overlooked in the light of the decision of the Supreme Court in Raj Kumar (supra). 10. We have perused the impugned judgment and order dated 14.2.03. The writ Petitioner though under the bona fide impression has tendered resignation after completion of only 10 years of service in reference to Rule 19(1) of the 'BSF Rules'. However, since pensionary benefit is not available to the BSF personnel or to the writ Petitioner in view of Rule 19(1) of the BSF Rules unless he has completed the requisite number of years of service and subject to the observance of the provisions of CCS (Pension) Rules, 1972. The writ Petitioner, however, had preferred writ petition/Civil Rule No. 191/98 for getting relief of pensionary benefits. However, the submission of the writ Petitioner was noted in paragraph 4 of the impugned judgment dated 14.2.03 that BSF authorities issued a letter bearing No. ESTT/1486/98/15487 from No. 196 Bn. BSF, Magra Camp, Bamer (Rajasthan) dated 15.10.98. 11. It is evident from above submission of the writ Petitioner before the learned Single Judge that he was aware of the circular dated 15.10.98 and despite knowledge of offer of reinstatement given by the BSF authorities, he did not choose to come forward and resume the duty. BSF, Magra Camp, Bamer (Rajasthan) dated 15.10.98. 11. It is evident from above submission of the writ Petitioner before the learned Single Judge that he was aware of the circular dated 15.10.98 and despite knowledge of offer of reinstatement given by the BSF authorities, he did not choose to come forward and resume the duty. The stand of the writ Petitioner was also reflected through his submission as noted in paragraph 7 of the impugned judgment that due to the pendency of the case and for physical illness and since at the relevant time, there was no dictum of Hon'ble Supreme Court interpreting the provision of Rule 19 of the Rules, instead of resumption of duty, the writ Petitioner expected to get relief in the present case. 12. The writ Petitioner since tendered resignation and the competent authority accepted the resignation with effect from 31.1.97. It is evident that the writ Petitioner retired from service from BSF subsequent to 1996. Therefore, the conditions indicated in Para 17(B)(ii) of Raj Kumar (supra) shall be applicable to the writ Petitioner. For convenience, Para 17(B)(ii) of the decision in Raj Kumar (supra) is reproduced below: (ii) Those who retired subsequent to 1996, were not sanctioned pension, and were directed to report for reeducation into service or to forfeit pension benefits by virtue of the circular dated 17.10.98 and the individual letters. Accordingly, by virtue of writ Petitioner's falling under category of Para 17(B)(ii), and by virtue of observations made by Hon'ble Supreme Court in Para 18 of Raj Kumar (supra) the writ Petitioner shall not be entitled to pensionary benefits. For convenience the said paragraph 18(i) is also quoted as below: The personnel falling in category (B)(ii) i.e. those persons who had retired subsequent to 1996 pursuant to the circular dated 27.10.1995 and had not been sanctioned pension, but who have been directed to report for reinduction in service shall necessarily have to forfeit their pension, if they have not reported for service by virtue of the circular dated 17.10.98. If, however, they have reported for service then there is no question of any relief in their case. 13. In view of the facts and circumstances stated above, it is clear that the writ Petitioner knowingly did not come forward to join duty in reference to the offer given to him by circular dated 15.10.98. If, however, they have reported for service then there is no question of any relief in their case. 13. In view of the facts and circumstances stated above, it is clear that the writ Petitioner knowingly did not come forward to join duty in reference to the offer given to him by circular dated 15.10.98. Therefore, the relief which was granted to him by the learned Single Judge of this Court vide judgment and order dated 14.2.03 is not legally sustainable in view of the guidelines and observations made by the Supreme Court in Raj Kumar (supra). 14. Consequently, this writ appeal is allowed by quashing the impugned judgment and order dated 14.2.03 passed in Civil Rule No. 191 of 1998. Appeal allowed