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2018 DIGILAW 695 (RAJ)

DEVI SINGH v. UNION OF INDIA

2018-03-07

ARUN BHANSALI

body2018
ORDER : Arun Bhansali, J. These writ petitions came up for admission before the Court and at the request of learned counsel for the parties and looking to the issue involved, the matters were finally heard. 2. The petitioners, who were enrolled in Border Security Force, after completing 10 years of service resigned from the service. The details such as date of enrolment, post and date of discharge qua each petitioner are as under: Petition No. Name of Petitioner Post Date of Enrolment Date of Discharge 9006/16 Trilok Singh Lance Naik 25/11/1985 31/10/1996 4572/17 Ramji Lal Constable 8/6/1987 31/12/1997 4529/17 Bhagwan Singh Lance Naik 5/3/1986 31/12/1996 4573/17 Jagaria Ram Constable 22/9/1987 31/3/1998 4574/17 Kamal Singh Lance Naik 5/12/1984 31/1/1997 4578/17 Ramesh Kharadi Lance Naik 11/1/1985 31/1/1997 4608/17 Bharat Lal Const/Driver 18/5/1987 1/10/1997 4619/17 Ganpat Lance Naik 5/7/1986 31/5/1997 4672/17 Het Ram Lance Naik 10/6/1986 31/1/1997 4673/17 Pawan Kumar Lance Naik 11/8/1986 31/12/1997 4675/17 Narendra Singh Lance Naik 5/3/1986 31/5/1997 4684/17 Shaitan Singh Lance Naik 5/3/1985 31/1/1997 10886/17 Devi Singh Constable 8/2/1988 31/10/2001 3. For the purpose of convenience, the facts/averments as contained in S.B. Civil Writ Petition No. 9006/2016 - Trilok Singh v. Union of India & Ors. have been taken into consideration, as the same was the first petition which came up for admission before the Court, wherein, notices were directed to be issued and following the said case, notices have been issued in other connected writ petitions. 4. Petitioner Trilok Singh has filed the present writ petition on 3/8/2016 and rest of the writ petitions were filed in 2017, seeking quashing of the order dated 9/3/2016 (Annex.4) in the case of Trilok Singh, which is a reply to the legal notice indicating that petitioners were entitled to any pension as claimed by them and a direction to respondents to grant applicable pension and other post retirement benefits to the petitioners. 5. It is inter alia claimed in the writ petitions that the petitioners took retirement/resigned from service in the year 1996, 1997 and 1998 seeking full pensionary benefits, which was accepted and petitioners were granted retirement. However, the benefits were paid to the petitioners and it is claimed that petitioners kept on sending representations for now over 20 years, which were responded to. 6. However, the benefits were paid to the petitioners and it is claimed that petitioners kept on sending representations for now over 20 years, which were responded to. 6. Ultimately, a notice through counsel dated 25/1/2016 (Annex.3) was got issued, which was responded by the impugned reply dated 9/3/2016 (Annex.4) inter alia indicating that petitioners along with 2209 BSF personnel proceeded on voluntary retirement under Rule 19 of BSF Rules, 1969 ('the BSF Rules') out of which pension to only 447 personnel was released, when the misinterpretation of the said Rule was realized, it was clarified that all personnel, who have resigned with less than 20 years of service under the mistaken impression that the pension was due to them may be taken back in service, the petitioners were directed to join the duties immediately by giving cut off for joining as 31/8/1998, which was later on extended to 30/6/1999 and finally upto 31/8/1999, however, the petitioners failed to join. Where after, placing reliance on the judgment of Hon'ble Supreme Court in Raj Kumar & Ors v. Union of India & Ors. : (2006) 1 SCC 737 , it was indicated that the cases of the petitioners fell in category (B) (ii), wherein, those persons who had retired subsequent to 1996 pursuant to Circular dated 27/10/1995 and had been sanctioned pension, but who have been directed to report for re-induction in service shall forfeit their pension, if they have reported for service by virtue of Circular dated 17/10/1998. 7. It was vehemently submitted by learned counsel for the petitioners that the action of the respondents in denying the pension to the petitioners based on the judgment of Hon'ble Supreme Court cannot be sustained. It was submitted that the petitioners had resigned/sought voluntary retirement under Rule 19 of the BSF Rules and at the relevant time, sub-rule (1) (b) of Rule 19 provided for reduction in the pension or other retirement benefits of the officer, if so eligible, the resignation may be accepted and same was accepted under the said provision. 8. Submissions were made that under Rule 182 of the Rules all the Central Government Rules unless repugnant to the BSF Rules are applicable and in terms of Rule 49(2)(b) of the Central Civil Services (Pension) Rules,1972 ('the Pension Rules') even if the petitioners had put in service of 10 years only, they were entitled to grant of pension. 8. Submissions were made that under Rule 182 of the Rules all the Central Government Rules unless repugnant to the BSF Rules are applicable and in terms of Rule 49(2)(b) of the Central Civil Services (Pension) Rules,1972 ('the Pension Rules') even if the petitioners had put in service of 10 years only, they were entitled to grant of pension. Submissions were made that gazette notification dated 18/3/1987 (Annex.6) pertaining to acceptance of recommendation of IV Central Pay Commission has been taken into consideration and that subsequently in case of one Lance Naik P.A. Nazar such relief was granted. 9. It was vehemently submitted that the Supreme Court judgment in the case of Raj Kumar (supra) and its earlier judgment in Union of India & Ors. v. Rakesh Kumar : (2001) 4 SCC 309 does take into consideration any of the above aspects/submissions and, therefore, they cannot be relied on for denying the benefits to the petitioners. 10. For the delay in approaching the Court i.e. after passage of over 20 years, reliance was placed on the judgment of Supreme Court in Madhukar v. State of Maharashtra : (2014) 15 SCC 565 . 11. It was prayed that the writ petitions be allowed and the respondents be directed to grant all retiral benefits along with interest to the petitioners from the date they were retired. 12. Learned counsel appearing for the respondents vehemently opposed the submissions made by counsel for the petitioners. It was submitted that the petitions are highly belated and have been filed after 20 long years from the date the petitioners were retired, they were offered reemployment, which was accepted by them and, therefore, the writ petitions deserve to the dismissed on this count alone. 13. Submissions were also made that the issue sought to be raised in the present writ petitions is no more res integra inasmuch as the Supreme Court judgments in the case of Rakesh Kumar (supra) and Raj Kumar (supra) after taking into consideration the entire gamut of submissions raised from time to time, have categorically laid down that persons like petitioners were entitled to any relief as the cases of petitioners squarely fall within the category (B) (ii) as laid down in the case of Raj Kumar (supra). It was further submitted that the Hon'ble Supreme Court in the latest judgment in Union of India v. Madhu E.V. & Anr. It was further submitted that the Hon'ble Supreme Court in the latest judgment in Union of India v. Madhu E.V. & Anr. : AIR 2012 SC 4806 after taking into consideration both the earlier judgments in the case of Raj Kumar (supra) and Rakesh Kumar (supra), has quashed and set aside the judgment of High Court delivered by Single Judge as upheld by the Division Bench, reiterated the earlier view and, therefore, the submissions made in this regard cannot be countenanced at all and it was prayed that the writ petitions be dismissed. 14. Further reliance was placed on the judgment in Karan Singh v. Union of India : D.B.Civil Special Appeal (Writ) No. 663/2008 decided on 8/1/2018. 15. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 16. A bare look at the table indicated hereinbefore clearly shows that all the petitioners other than Devi Singh had retired in the year 1996, 1997 or 1998. It is denied that they were offered reinstatement by the respondents based on the Circular dated 17/10/1998 and that they failed to join back the services. A submission has been made that as the offer for reinstatement made was fair, the petitioners chose to accept the said offer. Whereafter, though it is claimed that several representations were made, seeking relief of grant of pension, the fact that issue in this regard was already raised by similarly situated persons and had been decided by Hon'ble Supreme Court in the year 2001 and subsequently in the year 2006, the slumber of the petitioners is understandable. 17. Further, the cause of action has been sought to be revived on account of response given by the respondents to the notice issued by the counsel for the petitioners. The Honb'le Supreme Court in State of Uttranchal & Anr. v. Sri Shiv Charan Singh Bhandari & Ors. : (2013) 12 SCC 179 has considered the said aspect and has laid down that consideration of representation relating to a stale claim or dead grievance does give rise to a fresh cause of action. Apparently, the petitioners have sought revival of a dead/stale claim on account of response given by the respondents relying on the judgment in the case of Madhukar (supra), which judgment cannot apply irrespective of the circumstance of a given case. 18. Apparently, the petitioners have sought revival of a dead/stale claim on account of response given by the respondents relying on the judgment in the case of Madhukar (supra), which judgment cannot apply irrespective of the circumstance of a given case. 18. As noticed hereinbefore, in the response it is indicated that as many as 2209 BSF personnel proceeded on voluntary retirement out of which only 447 personnel were granted pension and whereafter, action was initiated to recall the benefits and offer re-induction, which aspect was challenged in right earnest in the case of Rakesh Kumar (supra), wherein, after a detailed consideration of the Pension Rules and Rule 49(2) (b) as well as factual position/hardship, it was laid down as under: "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. 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 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 required to consider other conditions prescribed for qualifying service as it is admitted that the 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 less than 33 years. The amount of pension is to be calculated at fifty per cent of average emoluments subject to maximum provided therein. Further clause (2)(a) of Rule 49 specifically provides for grant of pension if a government servant retires after completing qualifying service of less than 33 years. The amount of pension is to be calculated at 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 (2)(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 a 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 the 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 the 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 a member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would be eligible to get pensionary benefits. There is no other provision in the CCS (Pension) Rules giving such benefit to such government servants. 21. Learned counsel for the respondents submitted that on the basis of G.O., number of persons are granted pensionary benefits even though they have completed 20 years of service, and, therefore, at this stage, the Court should interfere and see that the pensionary benefits granted to the respondents are disturbed and are released as early as possible. In our view, for grant of pension the members of BSF are governed by CCS (Pension) Rules. In our view, for grant of pension the members of BSF are governed by CCS (Pension) Rules. The CCS (Pension) Rules nowhere provide that a person who has resigned before completing 20 years of service as provided in Rule 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does make any provision for grant of pensionary benefits. It only provides that if a member of the force who resigns and to whom permission in writing is granted to resign then the authority granting such permission may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the Rules if pensionary benefits are granted to someone it would mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is de hors the statutory rules nor can there be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If the rules are providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but the Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant who is required to retire on his attaining the age of compulsory retirement except in those cases where there are special provisions. 22. In the result, there is no substance in the contention of the learned counsel for the respondents that on the basis of Rule 49 of the CCS (Pension) Rules or on the basis of the G.O., the respondents who have retired after completing qualifying service of 10 years but before completing qualifying service of 20 years by voluntary retirement, are entitled to get pensionary benefits. Respondents who were permitted to resign from service under Rule 19 of the BSF Rules before the attainment of the age of retirement or before putting such number of years of service, as may be necessary under the Rules, to be eligible for retirement are entitled to get any pension under any of the provisions under the CCS (Pension) Rules. Rule 49 only prescribes the procedure for calculation and quantification of pension amount. The G.O. dated 27.12.1995 does confer any additional right of pension on the BSF employees." 19. The judgment in the case of Rakesh Kumar (supra) was followed in the case of Raj Kumar (supra) and looking to the overall circumstances of the case, the following order was passed: "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 sub-categories:- (i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letter dated 31.10.1998 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 subcategories:- (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 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. 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 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 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. 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 the circular dated 17.10.1998 and on condition that they shall refund 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. 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 be asked to refund their drawn pension amounts, nor shall their pension be stopped now." 20. Admittedly, the case of the petitioners fall within the category (B) (ii) as indicated in the above case dis-entitling them from any relief. 21. In yet another case of Madhu E.V. (supra), which is the last judgment in the series of similar nature cases, the Hon'ble Supreme Court again reiterating the principles as laid down in the case of Rakesh Kumar (supra) and Raj Kumar (supra), and again laid down as under: "12. 21. In yet another case of Madhu E.V. (supra), which is the last judgment in the series of similar nature cases, the Hon'ble Supreme Court again reiterating the principles as laid down in the case of Rakesh Kumar (supra) and Raj Kumar (supra), and again laid down as under: "12. In view of the decisions of this Court in Union of India & Others v. Rakesh Kumar (supra) and Raj Kumar & Others v. Union of India and Another (supra), the legal position that emerges is this : Rule 19 of the BSF Rules does entitle any pensionary benefits on resignation of its personnel. The pensionary benefits are 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 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 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 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 be recovered." 22. The law laid down in the case of Madhu E.V. (supra) applies on all force to the case of the petitioners and as such the petitioners are entitled to any relief. 23. We, however, observe that amount of pension paid to the respondents herein, if any, shall be recovered." 22. The law laid down in the case of Madhu E.V. (supra) applies on all force to the case of the petitioners and as such the petitioners are entitled to any relief. 23. The submissions made by the counsel for the petitioners with reference to the various provisions of BSF Rules, Pension Rules and certain circulars as well as orders passed by certain High Courts against which SLP has been dismissed by the Hon'ble Supreme Court cannot be countenanced in view of the categorical law laid down by Hon'ble Supreme Court repeatedly in similar nature writ petitions. 24. In case of Devi Singh (SBCW No. 10886/17) as the petitioner was discharged after Circular dated 17/10/1998 whereby, the position about entitlement to pension etc. was clarified, the petitioner has no case whatsoever and he cannot even claim parity with other petitioners. 25. So far as the plea regarding delay in filing the writ petitions is concerned, though the law laid down by the Hon'ble Supreme Court in the case of Sri Shiv Charan Singh Bhandari (supra) also applies to the present cases where the cause is sought to be revived after 20 years only account of response given to the representations made, in view of the fact that the issue even otherwise stands covered by three judgments of Hon'ble Supreme Court, the submissions made in this regard do require further adjudication by this Court. 26. In view of the above discussion, there is no substance in the writ petitions filed by the petitioners, the same are, therefore, dismissed. 27. No order as to costs.