Union of India &
Ors. Vs. Madhu E.V. & ANR.
[Civil Appeal Nos.
9647-9650 of 2003]
J U D G M E N T
R.M. LODHA, J.
have heard Mr. Tara Chandra Sharma, learned counsel for the appellants, and Mr.
M.P. Vinod, learned counsel for the respondents.
respondents were the original writ petitioners before the High Court. They were
constables in the Border Security Force (BSF). On completion of 10 years service,
they tendered resignation. Their resignation was accepted by the Commandant 48 BN
BSF. The order accepting resignation provided that they would be entitled to pensionary
benefits at their own request on extreme compassionate grounds.
Later on, it was
found that the pensionary benefits were not admissible to them and few others whose
resignation was accepted under Rule 19 of the Border Security Force Rules, 1969
(for short, ‘BSF Rules’). Accordingly, on October 20, 1998, a letter was sent intimating
them that no pensionary benefits were admissible to those who have proceeded on
resignation under Rule 19 of the BSF Rules. However, their case for
reinstatement in BSF would be considered subject to refund of all payment made
to them from the Government such as GPF, Gratuity, CGEGIS, etc. on their resignation.
The respondents challenged the above communication by filing two separate Writ
writ petitions were contested by the present appellants (respondents therein).
Their stand in the High Court was that the writ petitioners were governed by
the Central Civil Services (Pension) Rules, 1972 (for short, ‘CCS (Pension)
Rules’) and as per these rules the minimum qualifying service for pension is 20
years and, therefore, they were not entitled to any pension.
Single Judge of the High Court referred to Rules 19 and 182 of the BSF Rules
and relevant provisions of CCS (Pension) Rules, particularly Rules 26, 48-A and
49(2)(b). The Single Judge held that when the petitioners (therein) were
allowed to resign with pensionary benefits under Rule 19 of the BSF Rules, then
their claim for pension must be worked out under Rule 49(2)(b) of the CCS
(Pension) Rules. Accordingly, the Single Judge, by his judgment dated September
29, 1999, allowed the writ petitions and directed the present appellants to grant
pension to the petitioner (respondents herein) in accordance with Rule 49(2)(b)
of the CCS (Pension) Rules.
the order of the Single Judge, the present appellants preferred Writ Appeals. The
Division Bench of the Kerala High Court upheld the decision of the Single Judge
and dismissed the Writ Appeals vide judgment dated August 25, 2000. While doing
so, the Division Bench referred to the decision of the Himachal Pradesh High
Court in Ex-Naik Rakesh Kumar Vs. Union of India & Others – C.W.P. No. 761
of 1998. It is from this order of the Division Bench that the present Appeals,
by special leave, have arisen.
judgment of the Himachal High Court in Ex-Naik Rakesh Kumar Vs. Union of India
& Others was challenged by the Union of India before this Court in the case
of Union of India and Others Vs. Rakesh Kumar, (2001) 4 SCC 309. The question involved
therein was - Whether members of BSF who have resigned their posts after
serving for 10 years or more years but less than 20 years are entitled to
pension/pensionary benefits under relevant provisions of the Border Security
Force Act, 1968 (for short, ‘BSF Act’) and the BSF Rules or the CCS (Pension)
Court referred to Section 8 of the BSF Act and Rule 19 of the BSF Rules and the
provisions of the CCS (Pension) Rules, particularly Rules 35, 36, 48, 48-A and 49.
G.O. dated December 27, 1995 issued by the Central Government was also referred
to. After quoting G.O. dated December 27, 1995, this Court in para 20 of the
report observed as follows :- “20. The aforesaid GO makes it clear that there was
a demand for grant of pensionary benefit on acceptance of the resignation under
Rule 19 and that demand was accepted by the Government. Para 2 of the GO makes
it clear that the Government has agreed that a member of BSF is entitled to get
pensionary benefits on resignation under Rule 19 provided he has put in
requisite number of years of service and fulfills all other eligibility conditions.
This para only
reiterates Rule 19. It also clarifies that authority competent to grant
permission to resign is also empowered to make reduction in pension if the member
of BSF is eligible to get such pension. Para 5 provides that in future the
competent authority who accepts the resignation would specify in the order the
reduction to be made in the pension if any and if no such reduction is
specified in the order, it would imply that no reduction in the pension has been
made. Under para 6, directions are issued for pending cases where resignation was
accepted but pensionary benefits were not allowed and provide that necessary
orders should be passed within shortest possible time.
Reading the aforesaid
GO as a whole, it nowhere reveals the Government's intention to confer any
additional pensionary benefits on the members of BSF who retired before completing
the requisite qualifying service as provided under the CCS (Pension) Rules. It
neither supplements nor substitutes the statutory rules. The GO read with Rule 19
of the BSF Rules would only mean that in case of resignation and its acceptance
by the competent authorities, the member of BSF would be entitled to get pensionary
benefits if he is otherwise eligible for getting the same under the CCS
(Pension) Rules and to that extent Rule 26 which provides for forfeiture of service
on resignation would not be applicable.
Hence, there is no substance
in the contention of the learned counsel for the respondents that in view of the
GO or specific orders passed by the competent authority granting pension, the appellants
are estopped from contending that such officers are not entitled to get pensionary
benefits. As stated above, the GO does not confer any additional benefit. Even in
the specific order which is quoted above in favour of Naik Rakesh Kumar, the
authority has stated that he would get pensionary benefits as admissible under the
Rules. Under the Rules, he is not entitled to get such benefits.
While dealing with the arguments of the ex BSF personnel that on the basis of
the G.O. dated December 27, 1995, a number of persons are granted pensionary
benefits even though they have not completed 20 years of service and, therefore,
the Court should not interfere and see that the pensionary benefits granted to
the respondents (therein) are not disturbed and are released as early as
possible, this Court observed that for grant of pension to the members of BSF, the
provisions of the CCS (Pension) Rules are applicable and 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 the pensionary benefits.
It was expressly held
that Rule 19 of the BSF Rules did not make any provision for grant of pensionary
benefits. In para 22 of the report, this Court concluded:- “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 GO,
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.
The 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 not
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 GO dated 27-12-1995 does not confer any additional right
of pension on the BSF employees.”
a later decision in the case of Raj Kumar & Others Vs. Union of India and
Another, (2006) 1 SCC 737, this Court was again concerned with the similar
question. This Court referred to the earlier decision of this Court in Union of
India & Others Vs. Rakesh Kumar (supra) and reiterated the position that was
declared in Union of India & Others Vs. Rakesh Kumar (supra), namely, that Rule
19 of the BSF Rules did not grant any right to pension in cases where pension
was not payable under the CCS (Pension) Rules. In para 17 of the report, the
Court catalogued the cases before it as follows :
Personnel who resigned and were granted pension for special reasons, even prior
to the circular dated 27-12-1995.
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 not to report for reinduction. Their pension has been stopped
pursuant to the judgment in Rakesh Kumar (supra). These persons can be further divided
into two sub- categories: (a) those who are in a position to be reinducted into
service even now; and (b) those who cannot be reinducted 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 reinduction into service or to forfeit pension benefits by virtue of the
circular dated 17-10-1998 and the individual letters.”
regard to the peculiar facts arising in each of the above groups, this Court
made the following orders :
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 reinduction 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.
the case of persons falling in category (B)(i), they shall also be given the
option of reinduction into service, and those falling in category (B)(i)(a) shall
be so reinducted, 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 reinduction. The authorities shall indicate the deadline by which
such persons shall offer themselves for reinduction.
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 reinducted 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.
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
view of the decisions of this Court in Union of India & Others Vs. Rakesh
Kumar (supra) and Raj Kumar & Others Vs. Union of India and Another (supra),
the legal position that emerges is this : 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
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.
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.
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. 16. No costs. .