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2018 DIGILAW 619 (JK)

Mohd. Hafiz Khan v. Union of India

2018-08-08

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioner in this petition seeks a direction to the respondents to fix and release pension in his favour retrospectively with effect from the date the petitioner was discharged from service i.e. 01.09.1983 and also to pay him the compensation for wrongfully withholding his pension. 2. Briefly stated, the facts leading to the filing of this petition are that the petitioner came to be appointed as Constable in the Border Security Force (BSF) on 28.02.1968. While the petitioner was posted in 23rd Bn of the BSF, the petitioner tendered his resignation voluntarily and the same was accepted by the competent authority w.e.f. 31.08.1983(A.N.) Since the petitioner had not served for the period qualifying for pension in terms of Central Civil Services (Pension) Rules, 1972 [CCS(Pension) Rules] read with Rule 19 of the Border Security Force Rules, 1969 (BSF Rules), as such, no pensionary benefits in his favour were sanctioned. Earlier the petitioner had even challenged the acceptance of his resignation in a civil suit filed in the Court of Senior Subordinate Judge, Jalandhar on the ground that the resignation submitted by him was not voluntary. The suit was dismissed on 30.03.1987 and the appeal preferred by the petitioner in the Court of Additional District Judge, Jalandhar was also dismissed on 08.08.1989. The petitioner also filed a writ petition registered as OWP No.325/1998 before this Court for release of pensionary benefits for having rendered 15 years and 5 months of service in the BSF. The writ petition was not pursued and was, thus, dismissed for non-prosecution on 16.10.1998. It appears that the petitioner without applying for restoration of the writ petition filed the instant writ petition on the same cause of action praying for the same relief’s by claiming fresh cause of action on the basis of the judgment rendered by the Supreme Court in the case of Raj Kumar and others v. Union of India and another; 2006(1) SCC 737 . 3. Learned senior counsel, appearing for the petitioner, submits that even though, the petitioner has not completed requisite qualifying service in terms of CCS (Pension) Rules, yet in view of the law declared by the Supreme Court in Raj Kumar (supra), the petitioner is entitled to all pensionary benefits as would have accrued to him had he completed the qualifying service for being eligible to claim pension. The plea of learned counsel for the petitioner that the so called resignation allegedly submitted by the petitioner involuntary cannot be accepted. The petitioner had challenged the acceptance of his resignation by the respondents in a civil court at Jalandhar which was dismissed and even the appeal preferred by the petitioner against the judgment and decree of the trial Court came to be dismissed. The issue, therefore, is no longer res integra. 4. On the other hand, learned ASGI appearing for the Union of India has relied upon the judgment of the Supreme Court rendered in the case of Union of India and others v. Rakesh Kumar; 2001(4) SCC 309 and also rendered in the case of Raj Kumar (supra), reliance whereof has also been placed by the learned senior counsel appearing for the petitioner. 5. Having heard learned counsel for the parties and perused the record, I am of the view that the writ petition of the petitioner is liable to be dismissed for more than one reason. 6. Admittedly, the petitioner had earlier come to this Court and filed the writ petition claiming the same relief’s as have been prayed for in this petition. The earlier petition filed by the petitioner i.e. OWP No.325/1998 was dismissed by this Court for non-prosecution on 16.10.1998. Without seeking restoration of the aforesaid writ petition, the petitioner filed the instant petition, even swearing in a false affidavit that the petitioner had not filed any other writ, suit or proceeding in this Court or any other Court or Tribunal. Para 12 of the writ petition may be reproduced for reference:- “12. That the petitioner has not filed any other writ, suit or proceedings in this Hon’ble Court or any other court or Tribunal. There is no proceedings pending in this Hon’ble Court or any other Court or Tribunal except the present writ petition.” 7. The petitioner has, thus, mis-represented before this Court and has withheld the relevant information from this Court. On this score only, this petition is liable to be dismissed. Needless to say that the writ jurisdiction vested in this Court under Article 226 of the Constitution of India is equitable jurisdiction and can be invoked only by the person who approaches this Court with clean hands. On this score only, this petition is liable to be dismissed. Needless to say that the writ jurisdiction vested in this Court under Article 226 of the Constitution of India is equitable jurisdiction and can be invoked only by the person who approaches this Court with clean hands. By making a mere reference to the earlier petition in the body of the petition without spelling out the type of writ petition and the relief claimed therein, was nothing short of an attempt to play smart and hoodwinkg the Court. 8. Since in the earlier writ petition which was dismissed for non-prosecution the issue raised by the petitioner had not been determined on merits, as such, despite my observations made above, I think it appropriate to deal with the writ petition on merits as well. 9. Admittedly, the petitioner was enrolled in the BSF on 28.02.1968 and the voluntary resignation submitted by him was accepted by the competent authority w.e.f. 31.08.1983 (A.N.). The petitioner had, thus, rendered service of 15 years, 05 months and 03 days. The qualifying service for being eligible to claim pension under the CCS (Pension) Rules is 20 years. That being so, the petitioner was not eligible to claim pension. This is amply made clear by the Rule 19 of the BSF Rules. Rule 19 of the BSF Rules which deals with resignation reads thus:- “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. (2) The Central Government may accept the resignation under sub rule (1) with effect from such date as it may consider expedient. Provided that it shall not be later than three months from the date of receipt of such resignation. (2) The Central Government may accept the resignation under sub rule (1) with effect from such date as it may consider expedient. Provided that it shall not be later than three months from the date of receipt of such resignation. (3) The Central Government may refuse to permit an officer to resign: (a) if an emergency has been declared in the Country either due to internal disturbances or external aggression; or (b) if considers it to be inexpedient so to do 2[due to exigencies of service or in the interests of the discipline of the Force; or (c) if the officer has specifically undertaken to serve for a specified period and such period has not expired. (4) The provisions of this rule, shall apply to and in relation to subordinate Officer and Enrolled Persons as they apply to and in relation to any officer of the Force and the powers vested in the Central Government under sub-rules (1) and (2) shall be exercised in the case of a Subordinate Officer by a Deputy Inspector General and in the case of an Enrolled Person by a Commandant” 10. A bare reading of Rule 19 of the BSF Rules would make it clear that though a member of the Force will not have right to resign without the prior permission of the prescribed authority, yet the prescribed authority may permit a member of the BSF to resign in certain special circumstances as enumerated under Rule 19. As is evident from the reading of Rule 19, the Rule in itself does create any right to pension and the same is regulated by CCS(Pension) Rules. The CCS (Pension) Rules clearly provide that an employee to be eligible to claim pension must have completed the qualifying service of 20 years. Admittedly, the petitioner did not have requisite qualifying service to his credit and was, therefore, rightly not held entitled to the pensionary benefits by the respondents. The CCS (Pension) Rules clearly provide that an employee to be eligible to claim pension must have completed the qualifying service of 20 years. Admittedly, the petitioner did not have requisite qualifying service to his credit and was, therefore, rightly not held entitled to the pensionary benefits by the respondents. The similar question was involved in a batch of appeals which came up for consideration before the Supreme Court in the case of Rakesh Kumar (supra) and the Supreme Court after threadbare discussion of Rule 19 of the BSF Rules and CCS(Pension) rules with particular reference to Rule 35, 36, 48 and 48-A, ruled that the members of BSF who were permitted to resign from services under Rule 19 of the BSF Rules before attainment of the age of retirement or before putting such number of years of service as may be necessary under Rules to be eligible for retirement were not entitled to get any pension under any of the provision of the CCS(Pension) Rules. 11. The argument raised by the petitioner on the basis of Rule 49 of the CCS(Pension) Rules to claim that the petitioner was entitled to pensionary benefits having rendered service more than 10 years, too, was subject matter of discussion in the in the case of Rakesh Kumar (supra) and the same was dealt with by the Supreme Court in paragraph No.16 of the judgment, which reads thus:- “16. On the basis of Rule 49, it has been contended that qualifying service for getting pension would be ten years. In our view, this submission is without any basis. Qualifying service is defined under Rule 3(q) to mean service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. Rule 13 provides that qualifying service by a government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that qualifying service for getting pension is 10 years. Rule 13 provides that qualifying service by a government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that qualifying service for getting pension is 10 years. On the contrary, there is specific provision that if a government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement, he would not get pension but would get the amount of service gratuity calculated at the rate of half months emoluments for every completed six monthly period of qualifying service. In these appeals, we are not required to consider other conditions prescribed for qualifying service as it is admitted that respondent- members of the BSF have completed more than 10 years of qualifying service. Further clause 2(a) of Rule 49 specifically provides for grant of pension if a government servant retires after completing qualifying service of not less than 33 years. The amount of pension is to be calculated fifty per cent of average emoluments subject to maximum provided therein. Clause 2(b) upon which much reliance is placed indicates that in case of a government servant retiring in accordance with the provisions of the Rules before completing qualifying service of 33 years, but after completing qualifying service of ten years, the pension shall be proportionate to the amount of pension admissible under clause (a) and in no case, the amount of pension shall be less than Rs.375/- per month. This would only mean that in case where government servant retires on superannuation i.e. the age of compulsory retirement as per service conditions or in accordance with the CCS (Pension) Rules, after completing 10 years of qualifying service, he would get pension which is to be calculated and quantified as provided under clause (2) of Rule 49. This clause would cover cases of retirement under Rules 35 and 36, that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. This clause would cover cases of retirement under Rules 35 and 36, that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. It is also to be stated that Rule 26 of CCS (Pension) Rules specifically provides that resignation from a service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies. Hence, on the basis of Rule 49 member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefit. There is no other provision in the CCS (Pension) Rules giving such benefit to such government servants.” 12. The position of law enunciated by the Supreme Court in the case of Rakesh Kumar (supra) was reiterated by the Supreme Court in the case of Raj Kumar (supra). However, by exercising the power under Article 142 of the Constitution in order to do complete justice, the Supreme Court issued certain directions which are contained in paragraph No.18 of the aforesaid judgment. Paragraph 18 is reproduced hereunder:- “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 (supra). 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 (supra), 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. 13. Notwithstanding the relief granted by the Supreme Court to BSF personnel who had availed of the benefit of pension due to mistaken interpretation by BSF authorities of Rule 19, the ratio laid down in the case of Rakesh Kumar (supra) was accepted. Para 15 of the judgment makes it abundantly clear. Para 15 of the judgment reads thus:- “There is no doubt that the position in law is that declared in Rakesh Kumar (supra) viz. that Rule 19 of the BSF Rules does not grant any right to pension in cases where pension is not payable under the CCS Rules 1972. Thus there is no question of this Court directing payment of pension to persons who are otherwise ineligible under the CCS Pension Rules 1972. The contention raised in all these petitions on the question of law must necessarily fail in the light of the clear pronouncement in Rakesh Kumar (supra)”. 14. Thus there is no question of this Court directing payment of pension to persons who are otherwise ineligible under the CCS Pension Rules 1972. The contention raised in all these petitions on the question of law must necessarily fail in the light of the clear pronouncement in Rakesh Kumar (supra)”. 14. In view of the authoritative pronouncement of the Supreme Court on the interpretation of Rule 19 of the BSF Rules and the CCS(Pension) Rules, referred to above, the petitioner who had voluntarily resigned and had rendered only service of 15 years 05 months and 03 days when his resignation was accepted, is not eligible and entitled to any pensionary benefits. On merits also, the petitioner has no case to maintain this writ petition. 15. For the foregoing reasons, this petition is found to be devoid of any merit. Same is, accordingly, dismissed. No costs.