Lance Naik Banwari Lal vs Uoi And Ors
2010 Latest Caselaw 5866 Del

4
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +   W.P.(C)No.3496/2010

                           Date of Decision : 23rd December, 2010
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      LANCE NAIK BANWARI LAL               ..... Petitioner
                    Through : Major K. Ramesh with
                              Ms. R. Archana, Adv.
               versus

      UOI AND ORS                              ..... Respondents
                          Through : Mr. M.S. Oberoi, Adv. with
                                    Asstt. Comdt. Bhupinder
                                    Sharma, BSF.

CORAM :-
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may              YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?             YES

3.      Whether the judgment should be                     YES
        reported in the Digest?


GITA MITTAL, J. (Oral)

1. There is no dispute to the material facts giving rise to the

present writ petition. The petitioner was enrolled on 14th July,

1985 as a Constable with the Border Security Force („BSF‟

hereafter) and stood promoted to the rank of a Lance Naik.

2. It is also undisputed that on interpretation of Rule 19 of

the BSF Rules, 1969, the BSF had taken a view that pro rata

pension was admissible to personnel who sought retirement. In

this regard, certain Circulars including the Circular dated 27th

September, 1995 are stated to have been issued by the BSF.

3. Catalyzed by this view of the BSF, the petitioner had

submitted a first resignation letter dated 31 st March, 1996. We

may note that scores of other BSF personnel had also resigned

from the BSF induced by the same interpretation of Rule 19 of

the BSF Rules, 1969 by the respondents.

4. Unfortunately shortly after his resignation, the petitioner

was involved in an accident on 14th April, 1996 resulting in

amputation of his both legs.

5. So far as the correct interpretation of Rule 19 of the BSF

Rules is concerned, the issue was pending for consideration

before the Supreme Court. A judgment dated 30th March, 2001

reported at (2001) 4 SCC 309 titled Union of India and

Others vs. Rakesh Kumar as well as connected appeals was

pronounced by the Supreme Court. It was specifically held that

no pro rata pension was admissible to the personnel and that

members of the BSF had to complete minimum length of

qualifying service in order to be eligible for retirement and

benefits under Rule 19 of the BSF Rules, 1969. The court had

specifically held that the BSF personnel who were permitted to

resign from service under Rule 19 of the BSF Rules before

attaining the age of retirement or before putting such number

of years in 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 Central Civil Services

(Pension) Rules.

6. It appears that after having permitted some personnel to

resign and having granted pro rata pension, the BSF had also

realized its mistake and had taken rectification action by

issuance of the communication dated 15th January, 1998 to

some of its employees which reads as follows:-

"Office of the Commandant : 151 Battalion, BSF, Raninagar, PO/Dist. Jalapaiguri

L.No.24/1/97-Pers/BSF Dated 15.01.1998 To Ex-LNK Charan Singh Vill. Rohana, PO Rohana District Rohtak (Haryana) Sub: Resignation under Rule-19 It is to inform you that DG BSF after careful consideration has now decided that all personnel who resigned under Rule 19 during 1996, 1997, 1998 with less than 20 years service under mistaken impression with pensionary benefits and not granted pension, to be taken back immediately.

2. The amount of GPF and other dues paid to you are required to be refunded.

3. You are directed to report to this HQ forthwith to continue in service.

4. This matter may be treated as urged.

Sd/- for Commandant 151 BN BSF"

7. This Circular was followed by a circular dated 17th

October, 1998 to such BSF personnel who had not yet been

granted pension to also rejoin.

8. Writ petitions were also filed before the Supreme Court by

some persons who had failed to avail opportunity of returning

to service. In these writ petitions, the adjudication culminated

in the judgment dated 4th January, 2006 reported at (2006) 1

SCC 737 titled Raj Kumar and Others vs. Union of India

and Another. After detailed consideration, directions were

given by the Supreme Court in paras 17 and 18 of the

pronouncement, the relevant portion whereof reads as follows:-

"17. We find that the cases before us can be divided into the following categories:

(A) Pre-circutar: 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 letters dated 31.10.1998 not to report for re- induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar (supra). These persons can be further divided into two sub-categories:

(a) those who are in a position to be re-inducted into service even now

(b) those who cannot be re-

inducted 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 re- induction in to service or to forfeit pension benefits by virtue of the circular dated 17.10.1998 and the individual letters.

18. Having considered the peculiar facts arising in each of these groups, we made the following orders:

xxxxx (3) In the case of persons who shall fall in category B(i)(b), i.e. persons who had retired in 1996, were sanctioned pension but who cannot be re-inducted today as they are age- barred or physically or medically unfit or for any other reason including their inability to return the amount of GPF, pension drawn or other dues, there shall be no question of continuing payment of pension which shall be liable to cease as a result of the decision in Rakesh Kumar (supra). We are however of the view that equity demands that in such cases there shall be no recovery of the pension amounts already paid to them."

(Emphasis supplied)

9. So far as the present petitioner is concerned, in view of

the adjudication by the Supreme Court in the case of Raj

Kumar (supra), he had reported to the Group Centre on 4th

January, 2006 for being medically examined. The case of the

petitioner for re-induction into the service was rejected for the

reason that he had suffered amputation of both legs on 14th

April, 1996.

10. By way of the present writ petition, the petitioner has

urged that but for the wrong interpretation of the applicable

rules by the BSF Authorities and Circulars issued by them, the

petitioner would not have resigned from service or opted for

pension. Circulars issued by the respondents dated 27th

December, 1995, 17th October, 1998 and 24th February, 2006

lend some light on the manner in which the respondents were

working the rights and placement of the BSF personnel. The

Circular dated 27th December, 1995 reads as follows:-

"No.24/1/95-Pers/BSF Government of India Ministry of Home Affairs

Directorate General Border Security Force (Personnel Directorate).

Block No.10, 5th Floor Kendria Karyala Pariser Lodhi Road, New Delhi-03.

Dated the 27th Dec., 1995.

All Frontier HW BSF All SHQ including DIG (HQ) New Delhi. All Trg. Institutions TSU/CAnwosto/CSMT/Signal Regt./ HQ Arty /STN/SRO All Base BSF All Arty Regts BSF

SUB: Grant of pensionary benefits on Resignation under Rule 19 of the BSF Rules, 1969.

Attention is invited to this HQ letter No.F-35036/3/78-Staff/BSF dated 04th Nov., 1981 conveying the decision of the Ministry of Home Affairs in the matter of admissibility of Pensionary Benefits on acceptance of resignation under Rule 19 of the BSF Rules, 1969.

2. In this connection the undersigned is directed to inform that the matter was again referred to the Government to review their decision in order to given pensionary benefits to members of the BSF on tendering resignation under rule 19 of the BSF Rules, 1969. The Ministry of Home Affairs in consultation with the Department of Pension and pensioners Welfare has agreed to our proposal and decided not to amend rule 19 of the BSF Personnel 1969, till such time separate Pension Rules for the BSF Personnel are framed. The Government has also agreed to our views that a member of the force is entitled to get pensionary benefits on resignation under rule 19 of the said Rules provided he has put in requisite number of years of service and fulfills all other eligibility conditions.

3. A number of Ex-BSF personnel have filed petitions in various courts of law claiming for the grant of pension on their resignation from service under the provisions

of Rule 19 of the BSF Rules, 1969. Besides this a number of notices under section 80 CPC are also being received in this regard.

4. Rule 19(1) of the BSF Rules, 1969 provides that the competent authority may, having regard to special circumstances of a case, permit a member of the force to resign from the force before 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. The authority competent to grant such permission is also empowered to make such reductions in the pension or other retirement benefits of a member of the force, if so eligible, as it may consider just and proper in the circumstances of the case.

5. In view of the provisions contained in rule 19 of the BSF Rules, 1989 as mentioned in para 4 of the above and based on the approval of the MHA as per para 2 above, in future the authorities who accept the resignation of a member of the Force shall specify in the order, the reduction to be made in the pension, if any, as per the provisions contained in proviso (ii) to Rule 19(1) of the BSF Rules, 1969. In case no such reduction is specified in the order regarding acceptance of resignation, it would imply that no reduction in the pension has been made.

6. In order to decide all pending cases including the case which are presently under adjudication, it is incumbent on all authorities to undertake a thorough review of all pending cases. For this purpose, cases of resignation accepted in respect of members of the Force, who have not been allowed pensionary benefits will be reviewed and pass necessary orders within the shortest possible time limit. In this regard Frontier IsG and Heads of Trg Institutions will ensure that these instructions have been complied with by the Units/Establishments under their Administrative Control.

(B.N. chaturvedi) Deputy Director (Pres)."

11. The Circular dated 17th of October, 1998 reads as

follows:-

"No.13/19/1/98-Rectt/BSF/1367-1667 Government of India Ministry of Home Affairs Dte General Border Security Force (Pers Dte : Rectt Section) New Delhi - 3.

Dated 17th October, 1998

To All Ftr HQrs BSF All Sector HQrs BSF BSF Academy, Tekanpur BSF CSWT, Indore TC&S Hazri bagh All BSF Bn:/ All STCs/CTSS/STC I & STC II.

Sub:- RESIGNATION UNDER BSF RULE 19 : RE-INSTATEMENT THEREOF.

In continuation of this Dte‟s letters 24/I/97-Pers/BSF dated 17th Jan 98, 21/1/97- {ers/BSF dated 23 March 98 and Signal No.R- 3408 dated 12 Oct 98, the following procedure may be adopted while considering the case on the subject cited:-

(a) In exercise of the powers conferred under Rule 28-A read with Rule 6 of BSF Rules 1969, the Director General directs that all personnel who have resigned after the circular of 27 Dec 1995 with less than 20 years of service under the mistaken impression that pension was due to them may be taken back in service treating their period of absence as an Earned Leave/Half Pay Leave as due and treating the remaining period as leave without pay (EOL) as a special case. The personnel will have to refund GPF and other dues paid to them. They will retain their

seniority. Commandant will have a special police verification carried out about their period of absence.

(b) A Registered/AD letter be sent to all personnel whose resignation was accepted after circular of December, 1995 with pensionary benefits but were not granted pension to join back the duties in the Force immediately. They will retain their seniority on re- instatement in service and the period of absence will be treated as Earned Leave/Half Pay Leave as due and leave without pay (EOL) for the remaining period of absence as a special case subject to police verification of their period of absence. It should also be made clear that if a member of the Force is not interested to re- join, he will not be entitled to any pension. However, this will be subject to order of the Hon‟ble Court in any case pending before it.

(c) It has been All communication should be issued to affected personnel accordingly. The progress on the subject be intimated to this HQ for record.

A list of cases available in this Dte is enclosed.

(K.K. Dhardwaj) DY DIRECTOR (PERS)"

(Emphasis Supplied)

12. The above Circular was followed by a Circular dated 24th

of February, 2006 which read as hereafter:-

"No.13/19/1/98-Rectt/BSF/1367-1667 Government of India Ministry of Home Affairs Dte General Border Security Force (Pers Dte : Rectt Section)

Block No.10, 5th Floor, CGO Complex, Lodhi Rod, New Delhi - 110003

Dated, the 24th Feb., 2006.

To HQrs Addl DG (East/West) All Ftr HQrs BSF All Trg Instns

Subject:- IMPLEMENTATION OF JUDGMENT DATED 04 JAN 2006 PASSED BY HON'BLE SUPREME COURT IN WP(C)NO.569 OF 2001 FILED BY EX-LNK RAJ KUMAR AND ORS VS UOI AND OTHERS -BSF RULES-19.

Reference this HQ (D&L Branch) letter No.2/SLP-2005/D7L/BSF/530-55 dated 19/20 Jan‟2006 and this Dte Signal No.R/3402 dated 13/02/2006.

2. I am to inform that a case has been taken up with MHA to convey formal approval to implement the above order of Hon‟ble Supreme Court. The decision is likely to be received soon. Action may be taken by respective pension sanctioning authorities for implementation of judgment dated 04/01/2006 passed by Hon‟ble Supreme Court. However the implementation will only be after clearance of MHA is received and conveyed to all concerned. The required action is :-

a) All effected personnel who resigned in the year 1996, were sanctioned pension and further their pension was stopped pursuant to the Judgment dated 30/03/2001 passed by the Hon‟ble Supreme Court be recalled through Registered/AD letters to rejoin immediately.

b) Those who report for rejoining their medical examination as per instructions and special police verification (character and antecedents) of absence period be got carried out through

concerned police authorities in an expeditious manner.

3. Following conditions of re-joining be also mentioned in letters as per Hon‟ble Supreme Court order:-

a) The shall refund GPF and Pension amounts drawn by them till re- induction.

b) They will be re-inducted in service subject to medical fitness as per instructions and verification of character and antecedents for the absence period from concerned police authorities.

4. The cut off date of rejoining by such personnel to their respective units/HQrs for re-induction will be intimated after approval of competent authority.

(JAGIR SINGH SRAN) ADDL DIG (ESTT) 24 Feb‟2006"

13. The above Circulars would show that the respondents

have decided that upon reinstatement of the employees, so far

as the period between their resignation and their re-induction

into service was concerned, the respondents have regularized

the same against the leave which was admissible to them. The

respondents have also decided that such employees would

retain their seniority on re-induction.

14. Mr. K. Ramesh, learned counsel for the petitioner has

contended that in case the petitioner had not resigned from

service and had suffered the accident while he had been in

service on 14th April, 1996, the disability which he had suffered

would then have been held to be attributable to his service. He

would then have been entitled to several financial benefits.

In this background, the petitioner has prayed before this

court for grant of pay and allowances for the period between

1996 when he was induced to retire till 2006 when called upon

to rejoin as well as all benefits thereafter.

15. A grievance is made by the petitioner that in view of the

wrong interpretation of the rule by the respondents and his

having been induced to resign from service, grave injustice has

resulted to the petitioner. The submission is that for this

reason the petitioner entitled to the financial benefits. Learned

counsel for the petitioner has pointed out that such facts were

never placed before the Supreme Court at the time of

consideration in Union of India and Others vs. Rakesh

Kumar and Raj Kumar and Others vs. Union of India and

Another (Supra).

16. The respondents contend that in view of the directions

made by the Supreme Court in para 18 of the judgment in Raj

Kumar and Others vs. Union of India and Another (supra),

the present writ petition is not tenable. The relief sought by

the petitioner could at best be considered by way of

appropriate remedy before the Supreme Court. The

respondents dispute entitlement of the petitioners to any relief.

17. It is noteworthy that in case the respondents had not

interpreted Rule 19 wrongly, the petitioner would not have

resigned and would have still been in service. Further if the

accident would not have intervened and the petitioner would

not have suffered the amputations, the petitioner would have

been found medically fit. In terms of the above Circulars, the

period while he was out of service would have been regularized

towards the leave which was available to the petitioner. It is

not disputed that in case the petitioner had been involved in

the accident and suffered amputation while on earned leave,

the same would have been treated to be attributable to his

service and several benefits would have enured to the

petitioner.

18. The respondents have thus regularized the period

between the resignation and re-induction deeming and treating

such similarly placed personnel as if in continuous service. The

petitioner is seeking parity. It is pointed out that such

contingency has not been placed before the Supreme Court in

the aforenoticed pronouncements in Union of India & Others

vs. Rakesh Kumar and Raj Kumar vs. Union of India &

Others (supra)

19. However, in view of para 18 of the judgment in Raj

Kumar and Others vs. Union of India and Another (supra),

learned counsel for the petitioner has prayed that he may be

permitted to withdraw the present writ petition with liberty to

seek the reliefs which have been sought before this court by

way of appropriate remedy.

19. This writ petition is accordingly dismissed as withdrawn

with liberty as prayed for.

Dasti.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 23, 2010 mk