Regular Second Appeal No.1515 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: January 21, 2010 Union of India & others ...Appellants VERSUS Ex NK No.790540101 Mohinder Singh ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.S.K.Sharma, Advocate, Central Government Counsel, for the appellants. Mr.Sanjay Mittal, Advocate, for the respondent. ***** RANJIT SINGH, J. Respondent, who was serving as a Naik in the Central Reserve Police Force, filed this suit seeking declaration with consequential relief of permanent injunction and mandatory injunction that he was entitled to prorata pension w.e.f. 12.3.1994 alongwith interest at the rate of 12% per annum. The respondent, Regular Second Appeal No.1515 of 2009 (O&M) : 2 : who had joined the C.R.P.F. On 6.12.1979, had resigned on 12.3.1994 on account of unavoidable domestic circumstances having 14 years 3 months and 6 days service to his credit. Relying upon provisions of Clause (2) of Rule 49 of Central Civil Services Pension Rules, 1972 (wrongly noted as 94 in the judgment), it is alleged that minimum 10 years of service is required for grant of pension. Claiming that he had rendered more than 10 years service, the prayer for permanent injunction and mandatory injunction was made. This suit was decreed by the trial court on 8.10.2007. The Union of India filed an appeal against the same, which was dismissed on 23.1.2009. The stand taken by the Union of India is that pension would be payable on completion of 20 years of service and as such the respondent was not eligible for grant of pension according to Rules of CCS (Pension) Rules, 1972 as he had rendered only 14 years 3 months and 6 days service at the time of submitting his resignation. Relying upon the decision of this court in Haryana State through Collector Versus Madan Pal Ahlawat, 2003(3) Labour & Services Judicial Reports 286, where person was allowed pension, who had completed 10 years and 15 days service when he resigned, the Appellate Court has held respondent entitled to proportionate pension as provided under Rule 6 and Rule 16(2) of Pension Rules. While taking this view, it has been specifically noticed by the Ist Appellate Court that no contrary law or provision has been placed before the court and accordingly the respondent was held entitled to pension w.e.f.12.3.1994. The courts below have apparently not appreciated the Regular Second Appeal No.1515 of 2009 (O&M) : 3 : issues in correct legal perspective. Conceded position is that the respondent had submitted his resignation. Though the appellants may not have been advised properly to plead their case before the courts below, but the legal position that would emerge from Rule 26 of CCS (Pension) Rules, 1972 cannot be ignored on that count. This rule provides that the resignation from service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service. There is nothing on record to show that the respondent had ever made any move to withdraw his resignation. Having resigned from the C.R.P.F., which was accepted on 12.3.1994, the respondent did not make any move to claim pension till he filed the present suit in the year 2006. Thus, the respondent has kept silent for nearly 12 years to claim his right to pension, if any, when he filed the present suit. The submission that pension would have a recurring cause can not be stretched to this extent that person who makes no move for 12 years should be allowed to make the claim without disclosing why he remained silent for so long. This aspect, however, would be insignificant as the claim of the respondent as allowed cannot be permitted to sustain. To counter the observation that there was no contrary view to the one cited before the courts, the counsel for the appellants would refer to the judgment in the case of Regular Second Appeal No.671 of 2004 (Union of India and others Vs. Net Ram), decided on 3.9.2008. While relying upon Rule 43(d)(i)(ii) and (v) of the Central Reserve Police Force Rules, 1955 (for short “C.R.P.F.Rules:), this court has held that where one resigns voluntarily from the force, he is not entitled to pension proportionate Regular Second Appeal No.1515 of 2009 (O&M) : 4 : to the service rendered by him in view of the provisions of Rules 16, 17 and 43(d)(i), (ii) and (v) of the C.R.P.F.Rules. It has accordingly been viewed that the Ist Appellate Court committed an error in invoking the provisions of Rule 49(2)(b) of the Pension Rules to grant pension to the respondent therein. While taking this view, this court has relied upon judgment of the Hon'ble Supreme Court in the case of Union of India Vs. Rakesh Kumar, 2001(2) SCT 1085. Reference has also been made to the case of Kedar Nath Sharma Vs. Union of India and others, 2005(3) RSJ 573 and Union of India and others Vs. Braj Nandan Singh, 2006(1) RSJ 769. Similar controversy arose in the case of Rakesh Kumar (supra) and the Hon'ble Supreme Court by making reference to the Rules under the Border Security Force Rules, 1969 has held as under:- “15. 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 Regular Second Appeal No.1515 of 2009 (O&M) : 5 : 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 months period of qualifying service. In this 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 Regular Second Appeal No.1515 of 2009 (O&M) : 6 : 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. 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) Rule giving such benefit to such government servants.” It is noticed that the Division Bench of this court had also considered this controversy in the case of Kedar Nath Sharma (supra), which is also under the Border Security Force Rules and after placing reliance has taken a similar view. It is on this basis, this court in the case of Net Ram (supra) has held that voluntary resignation from a Force would dis-entitle a person to receive pension proportionate to the service rendered by him in view of the provisions of the rules under the C.R.P.F.Rules. In view of this legal Regular Second Appeal No.1515 of 2009 (O&M) : 7 : position, it will be difficult to sustain the findings of the trial court as well as the Lower Appellate Court. In my view, the substantial question of law to the effect whether upon resignation person would be entitled to claim pension would arise in this case. Another substantial question of law would be whether the Rules framed under the C.R.P.F.Rules were required to be taken into consideration while considering the claim to pension proportionate to the service rendered by the respondent and whether ignoring the same would render the judgment liable to correction on that count. Since these questions of law have already been decided by this court on the basis of law laid down by the Hon'ble Supreme Court, it would not be possible to sustain the findings returned by the trial court as well as by the Ist Appellate Court. The present Regular Second Appeal is accordingly allowed. Judgments passed by the trial court as well as by the Ist Appellate Court are set-aside. Decree sheet be prepared accordingly. January 21, 2010 ( RANJIT SINGH ) ramesh JUDGE