M.S. Malik vs The Director General, Bsf
2002 Latest Caselaw 1166 Del

JUDGMENT

B.N. Chaturvedi, J.

1. By an order dated 8.4.1969, the petitioner was appointed as a Draftsman, Grade-II(Civilian) in non-combatised stream. He joined BSF in that capacity on 14th April, 1969 in the Engineering Set-up of Border Security Force, Headquarters, New Delhi. He was promoted as draftsman, Grade I with effect from 21st of September, 1979. In the year 1993, the petitioner opted for a newly created temporary post of Subedar-Major(Draftsman) in the pay scale of Rs.2000-3200, which was a combatised post. In view of petitioner exercising option from civil stream to combatised. stream, his appointment to the combatised post of Subedar-Major(Draftsman) in the pay scale of 2000-60-2300-EB-75-3200(pre-revised) with effect from 30th of November, 1993 was approved vide a Headquarters (Director-General), BSF order dated 30.11.1993. The petitioner tendered his technical resignation from the post of Draftsman, Grade I with effect from 30th of November, 1993, which he held prior to his appointment and assumption of charge of the combatised post of Subedar-Major(Draftsman).

2. In August 2002, the petitioner received an intimation from the respondents that he was to retire on 31st of July, 2003 and he was, accordingly, asked to submit his necessary pension papers. Aggrieved by such a move on the part of the respondents, the petitioner made a representation to the authority concerned pleading for his retention in service until attaining the age of 60 years on the ground that he having been appointed to a civil post and being a member of civilian staff was to be retired in accordance with rules applicable to the incumbents of civil posts. His representation, however, did not find favor with the appropriate authority and the same was rejected.

3. Dissatisfied with the rejection of his representation, the petitioner filed the present petition seeking a writ in the nature of mandamus directing the respondents to retire him on attaining the age of 60 years in July, 2006 in stead of retiring him on 31st of July, 2003.

4. The respondents seek to defend the impugned action of retiring the petitioner on 31st of July, 2003 on attaining the age of 57 years as being the age of superannuation for the holder of a combatised post. The respondents say that with his appointment to the combatised post of Subedar-Major(Draftsman), the petitioner has been drawing pay and allowances admissible to combatised personnel. In their counter-affidavit, the respondents give a comparative statement of pay and allowances drawn by the petitioner and by a Draftsman, Grade I(Civilian) of Headquarters, BSF to point out the monetary benefit which the petitioner has been deriving on his appointment to the said combatised post as compared to one admissible to the holder of post of Draftsman, Grade I(Civilian). The age of superannuation of combatised staff being 57 years up to the rank of Commandant, it is pleaded, the petitioner is liable to be retired on 31st of July, 2003 when he attains the age of 57 years.

5. We have heard the parties' counsel.

6. There is no controversy on factual matrix. By virtue of Rule 182 of the Border Security Force Rules, Rule 43 of the Central Reserved Police Force Rules, 1955 governs the issue of superannuation of BSF personnel employed in combatised stream. The age of superannuation in terms of this Rule is 55 years, which has subsequently been raised to 57 years. Of course, in relation to civilian staff, age of superannuation is 60 years. The plea of the petitioner is that since he was appointed as Draftsman Grade II on 14th April, 1969 and later promoted as Draftsman Grade I with effect from 21st September, 1978 in non-combatised stream, he continued to be holder of a civil post only notwithstanding his appointment as Subedar-Major(Draftsman) in combatised category of the Border Security Force. He asserts that in his case the age of superannuation is 60 years, as applicable to civil posts referred to in clauses 10,11 & 12 of the Schedule appended to the BSF (Draftsman and Architectural Assistant) Recruitment (Amendment) Rules, 1999. Reliance on the aforesaid clauses, however, appears to be misplaced as the same provide for age of superannuation with reference to civil posts in relation to armed forces' personnel on deputation/transfer/re-employment. Clearly, the petitioner does not fall in any of these categories and, therefore, the aforesaid rules providing for age of superannuation in relation to personnel who are on deputation/transfer or re-employment and holding analogous post as a Government servant, is inapplicable in his case.

7. Admittedly, the petitioner voluntarily opted for appointment to the combatised post of Subedar-Major(Draftsman) vide his letter dated 11.11.1993 and on his appointment in that capacity by a letter dated 30.11.1993, he tendered his technical resignation from the post of Draftsman, Grade I(Civilian) with effect from that very date. With his resignation from the post of Draftsman, Grade I with effect from 30th November, 1993 and on his joining as Subedar-Major(Draftsman), he ceased to hold a civil post in non-combatised category. Ever since his appointment as Subedar-Major(Draftsman), the petitioner was placed at a higher pedestal in regard to pay scale and allowances admissible to the said post. Now, on reaching the age of superannuation applicable to the post of Subedar-Major(Draftsman), he seeks to revert to the stage when he held the post of Draftsman, Grade I(Civilian), to claim advantage of additional three years of service up to 60 years instead of 57 years. He cannot be allowed to have best of both worlds. Having reaped monetary benefits in terms of better emoluments attached to the combatised post of Subedar-Major(Draftsman) for all these years, now he cannot be permitted to claim additional years of service by seeking to continue in service until he attains the age of 60 years. Having ceased to hold a civil post in his pursuit for better financial prospects by opting for and joining the combatised stream post of Subedar-Major(Draftsman), he is now to be governed by Rule 43 of the CRPF Rules only, as applicable to BSF in regard to age of superannuation.

8. An order dated 23.4.2003 issued under the signature of Deputy Inspector General(Pers), concerning one Shri K.B.Batra, Chief Engineer (IRLA No.18027303), providing for retirement from service on attaining the age of 60 years in stead of 57 years was cited on behalf of the petitioner to re-enforce the argument that even in relation to a combatised post, a person was allowed to continue in service until attaining the age of 60 years. No doubt, Shri K.B.Batra, inspite of holding a combatised post, has been allowed to retire at the age of 60 years, he is found to belong Air Wing of the Engineering Directorate, having its separate set of rules which permit his continuance in service until attaining the age of 60 years. The rules governing service conditions of Shri K.B.Batra being not applicable in the case of holder of a post of Subedar-Major(Draftsman), the petitioner cannot rely on his case to his advantage.

9. To sum up, the petitioner being the holder of a combatised post of Subedar-Major(Drfatsman), his age of superannuation is to be determined with reference to Rule 43 of the Central Reserved Police Force Rules read with Rule 182 of the Border Security Force Rules and, accordingly, he is due to retire on attaining the age of 57 years. We find no merit in petitioner's plea that he is entitled to continue in service even after crossing the age of 57 years until he attains the age of 60 years. The plea of the petitioner in this regard being totally unfounded, the petition is liable to be dismissed.