IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER (1) Mohan Ram Vs. UOI & Ors. S.B. CIVIL WRIT PETITION NO. 4083/2006 (2) Idan Singh Vs. UOI & ors. S.B.CIVIL WRIT PETITION NO. 4257/2006 ::: Date of Order :: 30th June 2008. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.G.R.Punia with Mr.Y.P.Khileree for the petitioner in CWP No.4083/2006 Dr.P.S.Bhati for the petitioner in CWP No.4257/2006 Mr.V.K.Mathur with Mr.M.S.Godara for the respondents ...... BY THE COURT: By way of these petitions for writ, the petitioners seek to challenge the orders passed by the competent authorities on their representations as made in pursuance of the directions issued by this Court in their earlier writ petitions. For similarity of background facts these two petitions (CWP Nos. 4083/2006 and 4257/2006) have been heard together and are taken up for disposal by this common order; however, as shall be noticed hereafter, there remains 1 dissimilarity on crucial facts in relation to the two writ petitioners and hence, their individual cases have been dealt with separately. Background facts, relevant provisions, and the decisions of the Hon’ble Supreme Court Profitable it shall be to notice at the outset the relevant statutory provisions and the decisions of the Hon’ble Supreme Court that govern the fundamentals of the issues involved with the background facts that run common to both the petitions. Section 8 of the Border of Security Force Act, 1968 and Rule 19(1) of the Border of Security Force Rules, 1972 (‘the BSF Rules’) relevant for the present purpose read as under:- “Section 8. Resignation and withdrawl from the post.- No member of the Force shall be at liberty,- (a) to resign his appointment during the term of his engagement; or (b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority.” “Rule 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 2 (b) make such reduction in the pension or other retirement benefits of the officer if so eligible as that Government may consider just and proper in the circumstances … … ….” On the question of grant of pensionary benefits to a member of Force on his resignation under the aforesaid Rule 19 of the BSF Rules, the Director General of the Border Security Force (BSF) proceeded to issue a Government Order/Circular on 27.12.1995 with the approval of the Union of India and in consultation with the Department of Pension and Pensioner’s Welfare notifying that a member of BSF would be entitled to get pensionary benefits on resignation under the said Rule 19 provided he had put in requisite number of years of service and fulfilled other eligibility conditions. This Circular also provided that the competent authority may, under special circumstances of a case, permit a member of BSF to resign before attainment of the age of retirement or before putting in requisite number of years of service as may be necessary under the Rules to be eligible for retirement; and that the competent authority was empowered to make such reduction in the pension or other retirement benefits of a member of BSF, if so eligible, as it may consider just and proper in the circumstances of the case. This Circular was taken to mean that any such member of BSF could resign with the permission of the competent authority even before 3 completing the qualifying service for pension and would be eligible for pension under Rule 19(1) of the BSF Rules. In response to the said Circular, 2209 personnel did resign under Rule 19 of the BSF Rules and their resignations were accepted. After such resignations, in 447 cases, the pension amounts were released whereas the cases of about 1762 personnel were pending sanction of the pension. In the meanwhile, realising the mistake, a letter dated 15.01.1998 came to be issued by the concerned authority conveying the decision of the Director General, BSF that all such personnel who had resigned under Rule 19 of the BSF Rules during the years1996, 1997, and 1998 with less than 20 years’ service under mistaken impression with pensionary benefits and were not granted pension, be taken back immediately and that the amount of GPF and other dues paid were to be refunded. Further, on 17.10.1998, the Deputy Director (Personnel) issued a Circular conveying that those personnel whose resignations had been accepted after the said Circular dated 27-12-1995 and under mistaken impression of their entitlement to pensionary benefits but who had not yet been granted pension, should be called back to rejoin immediately; and that in their cases, the period of absence would be treated as an earned leave/half pay leave as due and the remaining as leave without pay as a special case but such personnel shall have to refund GPF and other dues paid to them; however, they 4 would retain their seniority. This Circular also stated that if a member of the Force was not interested to rejoin, he would not be entitled to any pension. Individual communication were sent to all such persons whose resignations had been accepted pursuant to the Circular dated 27.12.1995; and initially the first cut-off date for rejoining was 30.04.1999, which was later extended up to 30.06.1999 and, finally, up to 31.08.1999 Pursuant to the aforesaid Circular, out of 1762 personnel recalled, 1065 reported back and they were allowed to rejoin the service subject to the conditions stipulated; and about 697 personnel did not rejoin the service and the pensionary benefits payable to them were stopped. However, about 19 personnel had been sanctioned the pensionary benefits under Rule 19, pursuant to the directions given by some High Courts; and there was another category of about 69 personnel who had less than 20 years' qualifying service and who had resigned from the year 1979 onwards and had been sanctioned pension under Rule 19 even before issuance of the said Circular dated 27.12.1995. The decision in Union of India v. Rakesh Kumar The said Circular/GO dated 27.12.1995 came to be considered by the Hon’ble Supreme Court in the case of Union of India v. Rakesh Kumar: (2001) 4 SCC 309 wherein the question arose as to whether the members of BSF resigning under Rule 19 after serving 5 for ten or more years but less than 20 years were entitled to pensionary benefit; and one of the contentions of the respondents before the Hon’ble Supreme Court was that by the said GO dated 27.12.1995, the Union of India had interpreted Rule 19 of BSF Rules to imply that in case of acceptance of resignation of an employee after a lapse of 10 years of service, he is entitled to get the pension. While rejecting such contention of the respondents, the Hon’ble Apex Court specifically held that pensionary entitlement depends only upon eligibility as per the Central Civil Services (Pension) Rules. The Hon’ble Supreme Court said,- “…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….” The Hon’ble Supreme Court found that the persons who were permitted to resign under Rule 19 before the age of retirement or before putting in requisite number of years of service, were not entitled to get any pension under CCS (Pension) Rules. The Hon’ble Court held,- “21…..No person can claim any right on the basis of decision which is dehors the statutory rules nor can there be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship.... “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 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 6 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 the pension amount. The GO dated 27-12-1995 does not confer any additional right of pension on BSF employees.” The decision in Raj Kumar v. Union of India Thereafter, several writ petitions having variety of fact situations were filed before the Hon’ble Supreme Court by the affected personnel who had resigned before or after the said Circular dated 27.12.1995. It was submitted before the Hon’ble Supreme Court that the mistaken interpretation of Rule 19 was on the part of the authorities for which the petitioners were not to blame; that due to the mistaken impression that was shared by the petitioners too, a large number of personnel were prompted to resign from service in the hope of getting pensionary benefits and some of them had actually been sanctioned such benefits, and were in receipt thereof at the time when the judgment in Rakesh Kumar’s case (supra) was pronounced; that the BSF personnel who had resigned before the Circular dated 27-12-1995 had been sanctioned pension by the authorities under Rule 19 of the BSF Rules, as special cases, even though they had not completed 20 years' service but after the Judgment in Rakesh Kumar, the authorities had stopped the pension 7 payments though enjoyed by the personnel concerned for long periods. It was also urged that, though a large number of personnel had returned to duty after complying with the conditions stipulated in the Circular dated 17.10.1998, in the cases where pension had been sanctioned, they were prevented from coming back to duty as a result of individual letters dated 31-10-1998 by which it was stated that personnel already in receipt of pension would not be reinducted into service however, even in such cases, the pension had been stopped pursuant to the Judgment in Rakesh Kumar that has resulted in double jeopardy, as the personnel concerned lost their service as well as pensionary benefit. Rejecting the submissions made on behalf of the personnel, the Hon’ble Supreme Court, while deciding such batch of petitions in its decision in Raj Kumar v. Union of India: (2006) 1 SCC 737 held ,- “14.We are unable to accept the contention urged on behalf of the petitioners that the confusion with regard to the interpretation of Rule 19 of the BSF Rules was cleared only as a result of the judgment in Rakesh Kumar. Even before Rakesh Kumar was decided, way back in the year 1998 itself, the authorities seemed to have realised their mistake as evidenced by the letter dated 15-1-1998 followed by the circular dated 17-10-1998. Rakesh Kumar was decided only in the year 2001, almost 3 years later. Such of the BSF personnel who had resigned in the hope of getting pensionary benefits, although not eligible for pension under the CCS (Pension) Rules, 1972, had been given the opportunity of getting back into service by virtue of the circular dated 17-10-1998. Despite the deadline for reporting being extended from 30-4-1999 to 31-8-1999, about 697 personnel had failed to avail of the opportunity of returning to service. There cannot be any equity in favour 8 of those that failed to avail of the opportunity of rejoining service. If any of them failed to take advantage of the offer for reinduction into service, they have only themselves to thank. In such cases, obviously, there cannot be any relief granted in the present writ petitions, contrary to the law declared by Rakesh Kumar . (underlining supplied for emphasis) Thereafter, the Hon’ble Supreme Court categorized the cases before it as follows: “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 not to report for reinduction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar. 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.” At this stage, apposite it is to point out that the petitioners before this Court in these writ petitions are the personnel who did resign in the wake of the Circular dated 27.12.1995 in the year 1997; and were not sanctioned their pension; hence, only the category B(ii) supra shall be relevant in these petitions; and hence, the directions issued by the Hon’ble Supreme Court, albeit under Article 142 of the 9 Constitution of India, only in relation to the said category B(ii) are noticed 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 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. … … …” In the backdrop of the aforesaid position of the facts and the law, the individual cases of the present two petitioners could be considered. It may be pointed out that this being third round of litigation for both the petitioners, the records relating to the former writ petitions, being relevant for the present purpose, have been requisitioned and examined; and salient features from such petitions shall also be referred hereafter. The case of Mohan Ram (CWP No. 4083/2006) In the case of Mohan Ram, the petitioner joined BSF on 03.06.1986 and resigned, under Rule 19 of the BSF Rules and in terms of the said Circular dated 27.12.1995, and his resignation was accepted under the communication dated 12.03.1997 (Annex.1) with effect from 31.03.1997, i.e., after his putting in 10 years 9 months and 27 days of service. The communication dated 12.03.1997 stated about full pensionary benefits, but the petitioner having not been 10 granted such pensionary benefits, made a representation dated 24.02.1998 (Annex.3) for grant of pensionary benefits that was replied on 06.03.1998 (Annex.4) in the manner that the personnel whose resignation had been accepted under Rule 19 were not entitled for any pensionary benefits and they will not be re-appointed in BSF. The petitioner again made a representation on 06.03.1998 (Annex.5) stating his difficulties and stating that had there not been the proposition available per Rule 19, he would not have submitted such resignation. The said representation was turned down under the communication dated 20.03.1998 (Annex.6) reiterating inadmissibility of pension and further stating that no case shall be considered for re-appointment after the incumbent himself resigned. Aggrieved by the aforesaid communications, on 21.04.1998, the petitioner filed a writ petition to this Court being S. B. Civil Writ Petition No. 1344/1998. While maintaining that he was entitled to pension per Rule 19 and further submitting that if he was not paid the pensionary benefit, the acceptance of his resignation was void and non-est, the petitioner prayed for the reliefs that the said communications dated 06.03.1998 and 20.03.1998 be declared illegal and the respondents be directed to grant pensionary benefits; and, in the alternative, the petitioner prayed that the respondents be directed to treat him in service and he be allowed all the benefits of continuity in service. The respondents filed a reply to this writ 11 petition on 08.10.1998 maintaining that for having not put in 20 years of qualifying service, the petitioner was not entitled for pensionary benefits. On 15.10.1998, the respondents addressed a communication to the petitioner to rejoin the service and to report by 16.12.1998 at the Force Headquarters at Mopat Shillong ( Annex.7). However, the matter remained pending in the said writ petition; and it appears that such an order issued to the petitioner was not immediately brought to the notice of this Court by either of the parties. While the said writ petition was pending with other matter of the like nature, the Hon’ble Supreme Court delivered the Judgment in Rakesh Kumar’s case (supra) on 30.03.2001 and thereafter, such writ petitions were considered by this Court. A case of Baksa Ram (CWP No. 4302/1998) was decided on 25.04.2001 wherein this Court noticed the ratio of Rakesh Kumar and held that the petition was liable to be dismissed but then, noticed the fact that there was a stay operating in favour of the said petitioner, and, in the interest of justice, directed the said petitioner to make a representation and the authorities were requested to consider the case of the said petitioner for taking him back in service in accordance with Rules and also in pursuance of the order calling him back in service and to determine as to how to treat the interregnum. 12 Thereafter, on 26.04.2001, the petitioner Mohan Ram’s writ petition (CWP No.1344/1998) was also decided by this Court in the light of the said decision in Baksa Ram’s case with the following order (Annex. 8):- ''The controversy involved in this case is squarely covered by the decision rendered by this Court in Baksa Ram v. Union of India & ors. S.B.C. Writ Pet. No.4302/98 decided on 25.4.2001 and the petition deserves to be disposed of accordingly. Thus, the respondents are requested to consider the case of the petitioner for taking him back in service in accordance with Rules and also in pursuance of the order calling him back in service, if he is not otherwise ineligible/unsuitable. The authority shall further determine as to how it shall treat the interragnum period strictly in accordance with law. With the aforesaid observations, the petition is disposed of. No order as to costs.'' The petitioner’s case is that he sent a copy of the said order with his letter dated 07.05.2001 (Annex.9); then he reported to the concerned battalion at its base office at Pantha Chowk, Sri Nagar on 11.06.2001 (Annex.10) and thereafter proceeded at the location of the battalion on 12.06.2001. According to the petitioner, he requested the Commandant to allow him to rejoin but, on being not allowed to join, he made a request and was allowed to accompany the canvoy from Kupwada to Jammu under the letter dated 16.06.2001 (Annex. 11). The petitioner has further averred that upon his falling ill while at the location of the battalion at Kupwada, he 13 was treated by the BSF doctor on 19.06.2001 (prescription slip Annex.12). The petitioner was, thereafter, informed by the communication dated 13.08.2001 (Annex.13) that his matter had been sent to the headquarter for necessary orders. The petitioner then received a communication dated 11.12.2003 (Annex.14) that he cannot be allowed to join. The petitioner again addressed representations on 04.02.2004 and 31.03.2004 (Annex.15) pointing out his adverse conditions wherefor he could not join earlier and requested for relief. The petitioner was, however, informed by the communication dated 11.05.2004 (Annex.16) that there was no such rule in BSF whereunder he might be taken back on duty after a lapse of about six years; and he was requested not to enter into correspondence over again. The petitioner has pointed out a fact that another similarly situated person Hajari Ram was indeed allowed to join under the communication dated 03.08.2004 (Annex.17) in pursuance of the orders of this Court. The petitioner thereafter filed another writ petition to this Court on 01.10.2004, being S. B. Civil Writ Petition No. 5750/2004. The said writ petition, with other writ petitions, including that of the other petitioner Idan Singh, was decided on 17.02.2006 (Annex.19). By that time, the Hon’ble Supreme Court had delivered the Judgment in Raj Kumar’s case (supra) on 04.01.2006. Noticing the said decision in Raj Kumar, this Court disposed of the writ petitions 14 including that of the present petitioner with the following directions as per the consensus of the parties:- ''Learned counsel for the parties have agreed for disposal of the petitions suggesting that the cases of the petitioners do not fall within the ambit of sub-para (A) of para no.17 of the Raj Kumar's judgment delivered in (2006) 1 SCC 737. The dispute raised by the other side is that some of the petitioners were recalled by the respondents and they have not joined whereas some of the petitioners have joined on recalling. Therefore, the Supreme Court has distinguished the facts and categorized the cases. Accordingly, as agreed by learned counsel for the parties, the petitions are disposed of in the following terms:- 1. The petitioners shall file a representation indicating their all claims for pension before the respondent D.G. BSF within a period of two weeks from the date of receipt of the certified copy of this order by the respondents. 2. The respondents shall take notice of the judgment of Raj Kumar's case (supra) and passed a fresh speaking order in individual case keeping in view the facts of the individual case. This exercise shall be done by the respondents within a period of four months from the date they received certified copy of this order by the petitioners. The disposal of the representation shall also be conveyed by the respondents to the petitioners.'' In pursuance to the directions so issued by this Court, the petitioner made another representation on 04.03.2006 (Annex. 20) and again made a request to allow him to rejoin. The representation so made has been rejected by the respondents with the observations that his case comes under category B(ii) i.e., where pension was not granted to him but he was given number of chances to join the Force but he did not report for service. Hence, according to the 15 respondents, the petitioner was neither entitled for re-instatement nor for pensionary benefits. The relevant part of the communication so issued by the respondents on the representation of the petitioner on 24.06.2006 (Annex. 21) reads as under:- “Refer to your representation dated 04/03/2006 addressed to the DG BSF regarding the re-instatement in BSF on the implementation of court order dated 17/02/2006 passed in CWP No.5750/2004 filed by Ex-LNK Mohan Ram of 62 BN BSF v/s UOI and others before Hon'ble Court of Judicature for Rajasthan at Jodhpur. 2. Competent Authority has examined the case in details, as per the Supreme Court Judgment dated 04/01/2006 in WP(C) No.569/2001 filed by Ex-LNK Raj Kumar v/s UOI, your case comes under category B(ii) i.e. pension was not granted to you but you were given numbers of chances to come and join the force but you did not report for service.