Kuldip Singh vs Union Of India
1995 Latest Caselaw 675 Del

JUDGMENT

Mahinder Narain, J.

(1) Only a short question is involved in this petition. We issue Rule D.B.. and proceed to decide this petition.

(2) The petitioner Kuldip Singh says that he has joined the Border Security Force on 4.9.1971 as a constable (Radio Mechanic). On 4.2.1973 he was promoted as head constable. He says that due to domestic circumstances, he' had to resign from the service in 1973.

(3) The copy of the resignation letter has neither been filed with the petition, nor has it been filed by the respondent in response to the show cause notice. In fact, the respondent says that the resignation letter which was submitted by the petitioner was destroyed in the year 1991.

(4) Consequent upon the resignation, the same was accepted. The acceptance order has been produced as annexure 1 by the respondents. The said acceptance of the resignation reads as under :-

.BRONo. 1008

DATED:24.2.1983.

Resignation

THE resignation tendered by No.712980850 HC(RM) Kuldip Singh of 74 Bn Bsf is hereby accepted w.e.f. 1.3.1983 (FN) at his own request without pensionary benefit. He will be Sos from the same dale. Technical clearance for accepting resignation has been accorded vide Ho Ig Bsf Nef, Shillong letter No. Comn/17/83/437 did 2.2.83. SD/24/2 (HCSRawat) Commandant 74BnBSF DISTRIBUTION:- 1.The Ig Bsf (Comn.) Fhq New Delhi 2.The Ig Bsf Nef, Shillong 3.The Dig Bsf Tripura 4.The AC(T) 74 Bn Bsf 5Accounts Sec. 6.QM Section 7.Move Office 8.BO Book 9.No 712080850 H(RM) Kuldip Singh. Ctc

(5) The question raised in this petition is whether the petitioner is entitled to pensionary benefits, or can he be deprived of the pensionary benefit in terms of the acceptance of the resignation. To determine this question, one has to keep in mind the provisions of certain rules. Rule 19(1) of the Border Security Force Rules, 1969 reads as under :-

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:

(6) Provided that while granting such permission the Central Government may:

(I)require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or

(II)make such reduction in the Pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances.

(7) Reading of Rule 19(1) along with its provisos indicates that it is open under this Rule to the Central Government to permit a member of the Border Security Force to resign, and while accepting the resignation, it is also open to the Central Government to put certain conditions which are slated in the provisos. One of the proviso enables. cost of training to be recovered from the officer concerned. The other proviso enables the pension and other retirement benefits to be reduced by the Government, if the officer concerned is eligible to receive pension and other bencfits. The reduction which has to be ordered by the Government, has to he just and proper in the circumstances of the case concerned.

(8) The above said second proviso to Rule 19(b) which is a statutory rule, makes it clear that pension is payable even upon resignation. Normally upon resignation, pen sion would be payable according to rules. Apparently in the case of Border Security Force Personnel, pension is to be given to those persons who resign from the service. The limitation is that in the order accepting the resignation, the pension to which a person may be found to be entitled or eligible, may be reduced by the order accepting the resignation, however, the same cannot be totally extinguished.

(9) In the instant case there is no order directing the petitioner to refund the cost of training. Therefore, the first proviso has no application in this case.

(10) The order accepting the resignation, however, says that the resignation is accepted "without pensionary benefits" being available to the petitioner. The words "without pensionary benefits" would mean that no pension is payable to the pctitioner. This would be contrary to the provisions of Rule 19 of the Border Security Force Rules, which only postulates "reduction".

(11) It is well settled that there is no estoppel against the statute. Counsel for the respondent has not been able to bring to our notice any judgment which is to the effect that there can be a waiver of any statutory rights by an individual.

(12) In these circumstanees, it is not possible for us to hold that the petitioner is not entitled to any pension.

(13) We have now to deal with the contention of the respondent that it is in the resignation letter that the petitioner had staled that he be permitted to retire without .my pensionary henefils.

(14) There is no documentary proof before us today that such a request had been made by the petitioner. The petitioner denies having made such a request in his resignation letter. We find it strange that a resignation letter which has been given in 1983 came to he "destroyed" in the year 1990. We find it strange because the original resignation letter is staled to have been processed in a separate file, which was allegedly destroyed, but the order which was passed thereon is preserved, and available to us. We find it even more odd that some officer of the respondent has chosen to swear an affidavit on the basis of non-existing record that it is the petitioner who sought resignation without pensionary benefits. In the aforesaid circumstances, we accept the version of the petitioner that he did not seek resignation without any pensionary benefits.

(15) It is not disputed before us by the respondent that pension is payable to the members of the Border Security Force under the Central Civil Service (Pension) Rules. 1972. Rule 49 thereof reads as under :-

49.Amount of Pension

(1)In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of hall month's emoluments for every completed six monthly period of qualifying service.

(2)(A)In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years the amount of pension shall be calculated at filly`cent of average emoluments. subject to a maximum of four thousand and five hundred rupees per mensem.

(B)In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of thirty-three years, but after completing qualifying service of ten years, the amount of 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 rupees three hundred and seventy-live per mensem : (c) Notwithstanding anything contained in clause (a) and clause (b) the amount of invalid pension shall not be less than the amount of family pen- sion admissible under sub-rule (2) of Rule 54.

(3)In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half- year and reckoned as qualifying service.

(4)The amount of pension Finally determined under clause (a) or clause (b) of sub-rule (2), shall be expressed in whole rupees and where the pen- sion contains a fraction of a rupee it shall be rounded off to the next higher rupee.

(16) Rule 49 of the Central Civil Services (Pension) Rules, 1972, therefore, permits payment of pension after completion of 10 years qualifying service.

(17) The petitioner Kuldip Singh has served for more than Ii years and less than 12 years. Therefore, he would be. entitled to pension in accordance with the provisions of Rule 49 of the. Central Civil Services (Pension) Rules, 1972.

(18) The respondent should work out the pension payable to the petitioner under the applicable rules, and arrears be paid to the .petitioner within a period of one month from today.

(19) With the aforesaid observations, we allow the writ petition. In the facts and circumstances of the case, we do not order payment of any costs of the petition.