REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 9647-9650 OF 2003
UNION OF INDIA & ORS. Appellant (s)
VERSUS
MADHU E.V. & ANR. Respondent(s)
J U D G M E N T
R.M. LODHA, J.
Delay condoned.
2. We have heard Mr. Tara Chandra Sharma, learned counsel for
the appellants, and Mr. M.P. Vinod, learned counsel for the
respondents.
3. The 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 Petitions.
4. The 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.
5. The 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.
6. Against 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.
7. The 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) Rules.
8. This 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.”
9. 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.”
10. In 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 :
“17. ....
(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 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.”
11. Having regard to the peculiar facts arising in each of the
above groups, this Court made 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
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.
2. In 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.
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 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.
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 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 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 not 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 not be recovered.
16. No costs.
.....................J.
(R.M. LODHA)
NEW DELHI; .....................J.
APRIL 26, 2012 (H.L. GOKHALE)
