IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2747 of 2008 Anil Kumar Mandal, Son of Shree Sagar Mandal, Resident of Village – Usmanpur, P.S. – Kharik Bazar, P.O. Lattipur, District – Bhagalpur (Bihar)…………………………………………………. Petitioner Versus 1. The Union Of India through Director General Border Security Force, Block No. 10, Kendriya Karyalay Parisar, Lodhi Road, New Delhi- 110003. 2. Commandant (ESTT), Block No.-10, 5th Floor, C.G.O. Complex, Lodhi Road, New Delhi-110003. …………… Respondents ---------------------------------- 2 24/8/2011 Heard Sri Uma Shankar Singh, learned counsel for the petitioner and Sri Vinay Kumar Pandey, learned Central Government Counsel, appearing on behalf of Respondents. The present writ petition has been filed with a prayer to quash an order issued by Respondent No. 2 /Commandant (ESTT), C.G.O. Complex, Lodhi Road, New Delhi, dated 20th September, 2000, whereby the claim of the petitioner for entitlement of grant of pension has been refused. It has further been prayed to direct the Respondents to grant pension and other retiral dues to the petitioner. Learned counsel for the petitioner submits that the petitioner was posted as „Lans Naik‟ and before completing twenty years of service he tendered resignation which was accepted by the competent authority vide order dated 28th July, 1997. The resignation of the petitioner was accepted in terms of Rule 19 of the BSF Act, 1969 with pensionary benefits as admissible in accordance with Government of India order dated 27th December, 1995. Subsequently, vide Annexure -4 to the writ petition the petitioner was directed to re-join duties and deposit/refund G.P.F. and other 2 dues within thirty days from receipt of the letter. The said order was passed by the Commandant, 105 BN BSF in the month of October, 1998. Aggrieved with the order contained in Annexure -4 to the writ petition the petitioner approached this court by invoking its writ jurisdiction vide C.W.J.C. No. 3262 of 1999. A Bench of this court after hearing the parties disposed of the writ petition with a direction that Director General should examine the grievance of the petitioner and pass an appropriate order in accordance with law by its order dated 12/5/2000. In compliance with the order of this court the impugned order was passed by the competent authority on 20th September, 2000 vide Annexure -6 to the writ petition. While rejecting the claim of the petitioner for grant of pension, the competent authority in Annexure -6 of the writ petition has indicated that decision was subject to the outcome of Special Leave Petitions pending in the Hon‟ble Supreme Court in identical cases. Learned counsel for the petitioner in this case has filed supplementary affidavit with a prayer to pass an order in the present case in the light of decision of the Hon‟ble Supreme Court reported in (2001) 4 SCC 309 (Union of India & Ors. Vs Rakesh Kumar) and other connected writ petitions. Learned counsel for the petitioner at the time of hearing of the present writ petition has submitted that in terms of observation of the Hon‟ble Apex Court in paragraph no. 19 of the aforesaid judgment this writ petition may be disposed of granting liberty to the petitioner for filing fresh representation for its 3 reconsideration in terms of Government of India order dated 27th December, 1995. Sri Pandey, learned Central Government counsel submits that in paragraph no. 19 of the judgment of the Hon‟ble Apex Court in Rakesh Kumar Case (Supra) the Hon‟ble Supreme Court has only quoted the Government of India order i.e. GO dated 27/12/1995. It was submitted that the Hon‟ble Apex Court has negated the claim of Respondents for grant of pension even on tendering resignation before completing twenty years of service. It was submitted that in the present case it is not in dispute that petitioner had not completed twenty years of service. He had only completed 10½ years of service, and thereafter, he had tendered resignation. It is true that resignation was accepted in the year 1997 vide Annexure -2 to the writ petition but the order of acceptance of resignation was itself clear that the resignation was accepted in terms of Rule 19 of the BSF Act, 1969 with pensionary benefits as admissible in accordance with the Government of India order dated 27th December, 1995. It was argued that for claiming pensionary benefits it was condition precedent to complete at least twenty years of service. Before completion of service of twenty years as per provisions contained in CCS Rules an employee of BSF was not entitled to claim pensionary benefits. It was further submitted that subsequently the petitioner was directed to re-join vide Annexure -4 to the writ petition and he was asked to deposit/refund GPF and other dues. However, the petitioner instead of joining had 4 approached this court by filing a writ petition which was disposed of vide Annexure -5 to the present writ petition with a direction to consider the case of the petitioner. In compliance with the order of this court the competent authority vide Annexure -6 to the writ petition has already rejected the claim of the petitioner. It was submitted that it is true that at the time passing the impugned order the Hon‟ble Apex Court had not decided the matter and matter was pending before it. Now the matter/dispute has already been set at rest by the Hon‟ble Apex Court and it has been held that before completing twenty years of service no employee of BSF was entitled to get pensionary benefits. Accordingly, it has been prayed to reject the present writ petition. Besides hearing learned counsel for the parties I have also perused the materials available on record including the order passed by the Hon‟ble Apex Court reported in (2001) 4 SCC 309. In similar situation the Hon‟ble Apex Court had minutely examined the provisions contained in BSF Rules as well as CCS Rules, and thereafter, it was held that the CCS Rules was equally applicable in case of employees of the BSF and as per provisions contained in the CCS Rules for claiming pensionary benefits completion of twenty years of service was must. The Hon‟ble Apex Court has also examined the Government of India order i.e. GO dated 27/12/1995. In sum and substance, it has been categorically held that unless an employee completes twenty years of service he is not entitled to get pensionary benefits even if he tenders resignation. Rule 19 of the 5 BSF Rules, 1969 was also examined and it was held that Rule 19 of the BSF Rules was indicative of the fact that if an employee tenders resignation the employer would be at liberty to reduce pensionary benefits. For just decision in the matter it would be appropriate to quote paragraph nos. 20, 21 & 22 of the judgment of the Hon‟ble Apex Court in Rakesh Kumar Case (Supra) which is 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 fulfils all other eligibility conditions. This para only reiterates Rule 19. It also clarifies that the 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 the 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 6 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.” “21. Learned counsel for the respondents submitted that on the basis of the GO, a number of persons are granted pensionary benefits even though they have not completed 20 years of service, and, therefore, at this stage, the Court should not interfere and see that the pensionary benefits granted to the respondents are not disturbed and are released as early as possible. In our view, for grant of pension the members of BSF are governed by the 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 not 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 not 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 dehors 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 not 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 7 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 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 the pension amount. The GO dated 27-12-1995 does not confer any additional right of pension on BSF employees.” After going through the Hon‟ble Apex Court decision there is no ambiguity to come to the conclusion that petitioner was not at all entitled to claim pensionary benefits and the Respondent has rightly rejected the claim of the petitioner which requires no interference. The writ petition stands dismissed. Praful ( Rakesh Kumar, J.)