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2015 DIGILAW 145 (JK)

Sunil Kumar v. Union of India

2015-04-01

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar; CJ.:- 1. This appeal is filed against the order made in SWP No. 1066/2000, dated 05.04.2004 wherein the appellant has prayed for quashing the order dated 13.04.2000 and 12.03.1999 passed by the Commandant 66 Bn, BSF, and for direction to the respondents to consider the case of the appellant for re-instatement from the date he was struck off from the strength of the Unit w.e.f. 31.03.1999 and to pay him all service benefits including seniority. The case of the appellant before the learned Single Judge was that he was appointed on 12.06.1987 as Constable and was allotted No. 87003340. The appellant underwent training at Hazari Bagh, Bihar and he was posted in 43 Bn initially and thereafter was transferred to 66 Bn. The appellant rendered unblemished record of service. Due to domestic problem the appellant filed an application under Rule 19 of the Border Security Force Rules, 1969, seeking voluntary retirement along with pensionary benefits allegedly in terms of Government Order dated 27.12.1995, which stated that the BSF personnel who have completed more than 10 years of service are entitled for retirement along with pensionary benefits. The respondents vide order dated 12.03.1999 accepted the resignation of the appellant without pensionary benefits and struck of the appellant from the strength of the Unit w.e.f. 31.03.1999 and he was discharged on 31.03.1999. According to the appellant, before his name was struck off, the appellant on 15.02.1999 and on 22.03.1999 had sent a representation by registered post seeking withdrawal of his resignation and he has also filed an application for interview with the Commandant. Again on 25.04.1999 the wife of the appellant requested for reinstatement of the appellant by contending that the appellant has already made a representation seeking withdrawal of his resignation. 2. It is the contention of the appellant that the application for withdrawal of the resignation having been made before expiry of 90 days from the date of rendering resignation, the acceptance of the resignation letter on 12.03.1999, i.e. before the expiry of 90 days, cannot be put against him. 2. It is the contention of the appellant that the application for withdrawal of the resignation having been made before expiry of 90 days from the date of rendering resignation, the acceptance of the resignation letter on 12.03.1999, i.e. before the expiry of 90 days, cannot be put against him. On the above ground the appellant prayed to quash the order and the learned Single Judge, considering the counter affidavit filed and the record produced before him, dismissed the writ petition holding that the appellant has not submitted the withdrawal letter before his resignation was accepted on 12.03.1999 nor before he was relieved on 31.03.1999. 3. Same is the contention raised before this Bench by the learned counsel for the appellant and she has also relied on the registration slip dated 22.03.1999 and contended that if the records are called definitely the representation submitted by the appellant seeking withdrawal of the resignation dated 22.03.1999 will be on the file and the learned Single Judge having not perused the said record, the appellant is entitled to succeed. 4. In answer to the said submission, learned counsel appearing for the respondents has produced the entire original record maintained by the respondents including resignation letter, acceptance letter, giving personal hearing, relieving order and the application submitted by the appellant after his discharge that was dated 30.06.1999. 5. On perusal of the original record submitted by the respondents, the withdrawal letter said to have been sent on 22.03.1999 is not found on record. The learned counsel appearing for the appellant submitted that the appellant having sent the withdrawal letter by registered post on 22.03.1999, there is presumption of service of said notice of withdrawal as it has not been returned to the appellant. The Commandant who maintained the record shown the original file. The receipt of the said letter is rebutted/disputed in the counter affidavit filed before the learned Single Judge. Hence presumption prayed for by the learned counsel for the appellant in the facts and circumstances of the case cannot be accepted. Learned Single Judge has gone into the entire issue and found that the appellant was given chance to explain about the consequences of his resignation by giving interview and at that time also he has pleaded for acceptance of his resignation from service. Same is also reflected in the file maintained by the respondents. Learned Single Judge has gone into the entire issue and found that the appellant was given chance to explain about the consequences of his resignation by giving interview and at that time also he has pleaded for acceptance of his resignation from service. Same is also reflected in the file maintained by the respondents. The appellant having not served for 20 years as on 31.03.1999, he is not entitled to get any pensionary benefits in terms of Rule 19 of the BSF Rules. Application submitted after discharge of the appellant was rejected on 02.07.1999 and there is no illegality in the said order. The reliance of the appellant that resignation should have not been accepted before expiry of 90 days, cannot be accepted in view of the fact that this is the maximum period under which the person serving can submit letter of resignation and appellant having requested to relieve him by 31.03.1999, the official respondents were justified in considering the said resignation before the said date and he was relieved/discharged w.e.f. 31.03.1999 as per his request. 6. In the decision reported in (2012) 5 SCC 474 (Union of India and others v. Madhu E.V. and another) a similar issue arose as to whether a BSF Constable who resigned on completion of 10 years of service, is entitled to get pension with reference to Rule 19 of the BSF Rules. In paragraph No. 12 to 15 it is held thus:- "12. .............. Rule 19 of the BSF Rules does not entitle any pensionary benefits on resignation of its personnel. The pensionary benefits are not ordinarily available on resignation under CCS (Pension) Rules since Rule 26 provides for forfeiture of service on resignation. However, by virtue of G.O. dated December 27, 1995 read with Rule 19 of BSF Rules, the member of BSF would be entitled to get pensionary benefits if he is otherwise eligible. Such personnel must, therefore, satisfy his eligibility under CCS (Pension) Rules. The CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service. 13. Such personnel must, therefore, satisfy his eligibility under CCS (Pension) Rules. The CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service. 13. The view taken by the Single Judge and judgment of the Division Bench upholding the view taken by the Single Judge cannot be upheld and have to be set aside in light of the legal position noted above. 14. In the present case, the respondents had resigned from BSF service immediately after completion of 10 years service and, therefore, they are not entitled to any pensionary benefits. 15. We, accordingly, allow these Appeals and set aside the orders dated August 25, 2000 passed by the Division Bench and dated September 29, 1999 passed by the Single Judge. We, however, observe that amount of pension paid to the respondents herein, if any, shall not be recovered." In the light of the said undisputed facts, the appellant has not made out a case to interfere with the order of the learned Single Judge. Consequently this appeal is dismissed. No costs.