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2018 DIGILAW 679 (JK)

Tek Chand v. Union of India

2018-09-05

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. 31.01.1997 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 09.08.1986. While the petitioner was posted in 10th Bn of the BSF, the petitioner tendered his resignation voluntarily and the same was accepted by the competent authority w.e.f. 31.01.1997. 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. 3. It may be relevant to note that the petitioner as on 31.01.1997 had completed only 10 years four months and 25 days service. The petitioner’s case for grant of pension, however, was submitted by the BSF authorities to the Pension and Account Division, BSF, New Delhi which was returned with the remarks that the case of the petitioner did not qualify for grant of pension. The decision with regard to grant of pension under Rule 19 was under consideration of the higher authorities and, accordingly, the petitioner was intimated that as and when an appropriate decision in the matter is taken, the case of the petitioner would be re-submitted for grant of pension. Subsequently, the Directorate General of BSF vide its communication No. 24/1/97-Pers/BSF dated 15.01.1998 also clarified the position with regard to the issue of grant of pension in terms of Rule 19 of the BSF Rules in favour of such BSF personnel who had voluntarily retired from service but had not completed the qualifying service, as envisaged under the Pension Rules. As is apparent from the communication, since the issue was pending before the Supreme Court, therefore, no final decision in the matter was taken. 4. While the aforesaid issue was pending adjudication before the Supreme Court, the respondents vide Communication dated 17.10.1998 recalled the petitioner to join back his duties. The letter was acknowledged by the wife of the petitioner. As is apparent from the communication, since the issue was pending before the Supreme Court, therefore, no final decision in the matter was taken. 4. While the aforesaid issue was pending adjudication before the Supreme Court, the respondents vide Communication dated 17.10.1998 recalled the petitioner to join back his duties. The letter was acknowledged by the wife of the petitioner. In the communication issued to the petitioner for recalling him to joint his duties it had been intimated that he would be required to refund GPF, amount of leave encashment and other government dues paid at the time of retirement etc etc. But later on keeping view the fact that the petitioner would be put to financial hardship, he was informed vide letter dated 14.11.1998 that the final payment of GPF received by the petitioner would not be recovered from his pay and allowances in one go but the same would be recovered in easy instalments on joining the duty. It is categorically stated by the respondents that the petitioner did not accept the call of the respondents to join the duties, instead filed the instant writ petition seeking pensionary benefits in terms of Rule 19 of the BSF Rules. 5. 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 further plea of the learned counsel for the petitioner is that at the time of acceptance of resignation of the petitioner, the respondents had specifically indicated that the petitioner upon retirement would be entitled to get pensionary benefits and, therefore, the respondents cannot be permitted to wriggle out of their obligation to pay pensionary benefits to the petitioner. It is urged that had the respondents not accepted resignation of the petitioner with a stipulation that that upon retirement the petitioner would get the pensionary benefits, the petitioner would not have applied for voluntary resignation at all. It is urged that had the respondents not accepted resignation of the petitioner with a stipulation that that upon retirement the petitioner would get the pensionary benefits, the petitioner would not have applied for voluntary resignation at all. It is submitted that the petitioner was misled by the Circular issued by the respondents providing, inter alia, that the persons resigning in terms of Rule 19 of the BSF Rules would be entitled to all pensionary benefits. 6. On the other hand, learned counsel appearing for the Union of India has relied upon the judgment of the Supreme Court rendered in the cases of Union of India and others v. Rakesh Kumar; 2001(4) SCC 309 and Raj Kumar and others v. Union of India and another; 2006(1) SCC 737 . 7. 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. 8. Admittedly, the petitioner was enrolled in the BSF on 09.08.1986 and the voluntary resignation submitted by him was accepted by the competent authority w.e.f. 31.01.1997. The petitioner had, thus, rendered service of 10 years, 04 months and 25 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. (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” 9. 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. 10. 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.” 11. 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. 12. In view of the facts and circumstances of the case, it is evident that the case of the petitioner clearly falls in category (B)(ii) carved out by the Supreme Court in the case of Raj Kumar (surpa), in which it is unequivocally laid down that those persons who retired subsequent to 1996 pursuant to circular dated 27.10.1995 and had not been sanctioned pension but had been directed to report for re-induction in service shall necessarily have to forfeit their pension, if they fail to report for service. If, however, they have reported for service, then they have no cause to raise any grievance. In the instant case, the petitioner had retired on 31.01.1997 i.e. subsequent to 1996 and he was not sanctioned pension by the Pension Payment Authority of the BSF. He was directed to report for re-induction in service, but he chose not to join back. That being the position, the petitioner forfeited his right to the pension. This is so categorically held by the Supreme Court in paragraph 18 of the Judgement in the case of Raj Kumar (supra). 13. He was directed to report for re-induction in service, but he chose not to join back. That being the position, the petitioner forfeited his right to the pension. This is so categorically held by the Supreme Court in paragraph 18 of the Judgement in the case of Raj Kumar (supra). 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. 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 after rendering service of 10 years 04 months and 25 days only and even chosen not to report for duty when called for re-induction in the service, is not eligible and entitled to any pensionary benefits. Therefore, 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.