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2018 DIGILAW 104 (RAJ)

Karan Singh v. Union of India

2018-01-08

PRADEEP NANDRAJOG, RAMCHANDRA SINGH JHALA

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JUDGMENT : Pradeep Nandrajog, J. The appellant joined Border Security Force (BSF) as a Constable on 30th July, 1966 and earned promotion to the rank of Naik on 16th February, 1968 and thereafter as a Head Constable on 1st April, 1969. Having rendered 12 years 6 months and 1 day service he submitted his resignation which was accepted and the appellant ceased to be in employment with effect from the afternoon of 31st January, 1979. 2. As per the appellant, letter accepting resignation informed him that it would be with full pensionary benefits. Letter of acceptance of the resignation has not been produced by either party. But as per the respondents the resignation was accepted without any pension sanctioned. 3. As per the appellant in view of Rule 19 of the BSF Rules members of the Force were entitled to seek voluntary retirement on completion of 10 years service. On the issue of pension, a policy circular dated 27th December, 1995 was issued and that in terms of the policy circular his entitlement for grant of pension was considered but no pension was paid to him. 4. The writ petition filed by the petitioner has been dismissed by the learned Single Judge vide impugned order dated 30th May, 2008. The learned Single Judge held that in view of the decision of the Supreme Court reported as 2006 (1) SCC 737 , Raj Kumar & ors. v. Union of India & anr. no relief can be granted. 5. Evinced from the decision of the Supreme Court reported as (2001) 4 SCC 309 , Union of India & ors. v. Rakesh Kumar, is the fact that misinterpreting Rule 19 of the BSF Rules 1969 the Commandants of various battalions of BSF while accepting resignations by members of the Force who had not served for a period of 20 years, which was the minimum period prescribed as per the Pension Rules to be entitled to pension, directing proportionate pension to be paid keeping in view the number of years the members of the Force had served. 6. On 27th December, 1995 the Government of India through the Ministry of Home Affairs conveyed its decision having a bearing on entitlement to pension and based on the said office memorandum a large number of BSF personnel who had not completed 20 years service also submitted voluntary resignation. But pensions were not paid to them. 7. 6. On 27th December, 1995 the Government of India through the Ministry of Home Affairs conveyed its decision having a bearing on entitlement to pension and based on the said office memorandum a large number of BSF personnel who had not completed 20 years service also submitted voluntary resignation. But pensions were not paid to them. 7. In Rakesh Kumar's case (supra) the Supreme Court held that in view of the CCS (Pension) Rules no person would be entitled to pension upon voluntary retirement if 20 years service was not rendered. The memorandum dated 27.12.1995 was interpreted as not conferring any additional benefits of pension to the members of the BSF. The claim for pension by those who had sought voluntary retirement after completing 10 years service but before completing 20 years service was declined. 8. After the decision of the Supreme Court the BSF authorities withdrew pension which had been sanctioned contrary to the law declared by the Supreme Court and the matter was litigated once again and we have the decision in Raj Kumar's case (supra). 9. The decision in Raj Kumar's case evinces that the office memorandum dated 27th December, 1995 was misinterpreted by the authorities as if members of the Force who had served for more than 10 years but less than 20 years would be entitled to pension and thus those who had submitted resignations in light of the circular dated 27th December, 1995 were held liable by the Supreme Court to be treated differently. The Supreme Court also noted that since the authorities in BSF had mis-interpreted the circular dated 27.12.1995 a rectification letter was issued on 15.1.1998, as per which the Force personnel were to return the pension which they had received. The Supreme Court also noted that on 17.10.1998 another circular was issued informing BSF personnel who had resigned after 27.12.1995 to re-join and refund the dues which they had received. 10. In the aforesaid backdrop of the facts noted, in paragraph 17 of the decision, the Supreme Court divided the Force personnel in the categories enumerated in paragraph 17. We reproduce the para 17:- "17. We find that the cases before us can be divided into the following categories: (A) Pre-circular. Personnel who resigned and were granted pension for special reasons, even prior to the circular dated 27.12.1995. (B) Post-circular. Personnel who resigned pursuant to the circular dated 27.12.1995. We reproduce the para 17:- "17. We find that the cases before us can be divided into the following categories: (A) Pre-circular. Personnel who resigned and were granted pension for special reasons, even prior to the circular dated 27.12.1995. (B) Post-circular. Personnel who resigned pursuant to the circular dated 27.12.1995. These persons can be further divided into two subcategories:- (i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letters dated 31.10.1998 not to report for re-induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar. These persons can be further divided into two sub-categories:- (a) those who are in a position to be re-inducted into service even now; and (b) those who cannot be re-inducted into the service as a result of being age-barred or due to being medically or physically unfit. (ii) Those who retired subsequent to 1996, were not sanctioned pension, and were directed to report for re-induction in to service or to forfeit pension benefits by virtue of the circular dated 17.10.1998 and the individual letters." 11. Thereafter directions were issued in paragraph 18 as under:- "18. Having considered the peculiar facts arising in each of these groups, we make the following orders:- 1. 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 re-induction in service shall necessarily have to forfeit their pension, if they have not reported for service by virtue of the circular dated 17.10.1998. If however, they have reported for service then there is no question of any relief in their case. 2. In the case of persons falling in category (B)(i), they shall also be given the option of re-induction into service, and those falling in category (B)(i)(a) shall be so re-inducted, subject to the conditions stipulated in circular dated 17.10.1998 and on condition that they shall refund the GPF and pension amounts drawn by them till re-induction. The authorities shall indicate the deadline by which such persons shall offer themselves for re-induction. 3. The authorities shall indicate the deadline by which such persons shall offer themselves for re-induction. 3. In the case of persons who shall fall in category B(i)(b), i.e. persons who had retired in 1996, were sanctioned pension but who cannot be re-inducted today as they are age-barred or physically or medically unfit or for any other reason including their inability to return the amount of GPF, pension drawn or other dues, there shall be no question of continuing payment of pension which shall be liable to cease as a result of the decision in Rakesh Kumar. We are however of the view that equity demands that in such cases there shall be no recovery of the pension amounts already paid to them. 4. In cases which fall under category (A), i.e. personnel who had resigned prior to the circular dated 27.12.1995 and had been granted pension for special reasons and continued to draw it till the stoppage of pension as a result of the judgment in Rakesh Kumar, we think that irrespective of the position in law, equity demands that, as they have drawn their pension for long periods, they shall not be asked to refund their drawn pension amounts, nor shall their pension be stopped now." 12. Now, the appellant has not resigned pursuant to the circular dated 27.12.1995. Thus, learned counsel for the parties were in agreement that entitlement of the appellant cannot be considered by placing him in the category of employees contemplated by Sub-para (B) of paragraph 17 of the decision in Raj Kumar's case. 13. Learned counsel for the appellant urged that appellant's entitlement would be as per the category (A) and thus counsel urged that direction no. 4 in paragraph 18 of the decision in Raj Kumar's case would govern the entitlement of the appellant. 14. It is in this context it assumes importance that the appellant has not placed on record letter issued to him accepting his resignation and the claim that while accepting appellant's resignation he was intimated that pension would be paid to him needs to be decided in light of said fact. 15. As per the respondents the letter intimating appellant that his request for resignation was accepted did not record that pension would be paid to him. 16. In the absence of the primary document the conduct of the parties would guide the case. 17. 15. As per the respondents the letter intimating appellant that his request for resignation was accepted did not record that pension would be paid to him. 16. In the absence of the primary document the conduct of the parties would guide the case. 17. As noted above, the appellant remained on the strength of BSF till 31.1.1979. He never made any representation that pension be disbursed to him on account of the reason that while accepting his resignation proportionate pension had been sanctioned. It was only when the memorandum dated 27.12.1995 was issued and misinterpreted by the BSF authorities that the appellant demanded pension to be paid to him. Thus, direction no. 4 as per paragraph 18 of the decision in Raj Kumar's case would not apply to the appellant for the reason said direction would be applicable to those Force personnel who had resigned prior to 27.12.1995 and were granted pension which was stopped as a result of the decision in Rakesh Kumar's case. 18. We note that said direction was issued by the Supreme Court in exercise of its power under Article 142 of the Constitution of India for the reason that it was the demand of equity that those who had resigned prior to 27.12.1995 and were erroneously paid pension would be allowed to retain the pension received and also continue to receive the pension. The reason is obvious. Those who were conveyed when they resigned that pension would be paid to them would have a legitimate expectation of pension to be paid. 19. In the case of the appellant we have held that in the absence of primary document the conduct shows that while accepting the resignation of the appellant he was never informed that pension would be paid to him. 20. Affirming the view taken by the learned Single Judge, the writ appeal is dismissed. 21. No costs.