Kerala High Court
Union Of India vs P.P.Jose on 19 September, 2025
WA NO. 108 OF 2024
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"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 19TH DAY OF SEPTEMBER 2025 / 28TH BHADRA, 1947
WA NO. 108 OF 2024
AGAINST THE JUDGMENT DATED 11.08.2023 IN WP(C) NO.28475 OF 2014 OF HIGH
COURT OF KERALA
APPELLANT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL PUBLIC
GRIEVANCES AND PENSIONS, NORTH BLOCK NEWDELHI-110 001.
2 THE DIRECTOR, DEPARTMENT OF PENSIONS AND PENSIONER'S WELFARE
NORTH BLOCK, NEW DELHI-110 001.
3 DIRECTOR GENERAL - BSF
10, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003
4 THE COMMANDANT, 13 BATTALION, BORDER SECURITY FORCE, KOIRENGI P.O.
MANTRIPUKHRI, DISTT - IMPHAL (EAST), MANIPUR 795002
BY ADVS. SHRI.JAISHANKAR V.NAIR, SENIOR PANEL COUNSEL
SHRI.T.C.KRISHNA
RESPONDENT/S:
P.P.JOSE
EX-CONST NO.704770373, POOVATHINGAL HOUSE VELLANGALLUR P.O,
IRINJALAKUDA, THRISSUR DIST. KERALA-680 662.
BY ADV SHRI.JOHN T.PAUL
THIS WRIT APPEAL HAVING RESERVED ON 25.06.2025, THE COURT ON 19.09.2025
DELIVERED THE FOLLOWING:
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JUDGMENT
"C.R."
Sushrut Arvind Dharmadhikari, J.
The present intra-Court Appeal under Section 5 of the Kerala
High Court Act 1958 assails the judgment dated 11.08.2023 passed in
W.P.(C) No.28475/2014 whereby the writ petition filed by the
respondent herein was allowed directing the appellants herein to
assess the pension of the respondent in terms of the provisions of Rule
49(2) of the Central Civil Services (Pension) Rules 1972 (for short, 'CCS
Rules').
2. The brief facts of the case are that the respondent had
joined the Border Security Force on 19.11.1970 and was discharged on
19.05.1981 after having rendered ten years two months and twenty-
three days of qualifying service, excluding 95 days of extraordinary
leave as per the Discharge Certificate [Ext.P1]. From 15.12.1980 to
12.02.1981, the respondent could not rejoin duty due to domestic
problems and had applied for discharge. But, this period was taken as
absence, and the discharge was on account of dismissal from the
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service. The dismissal order [Ext.R1(c)] dated 19.05.1981 did not
disclose whether he was denied the pension or otherwise. Being
aggrieved, the respondent filed W.P.(C) No.28475/2014 with the prayer
to quash Exts.P5, P6, P7 and P9 and direct the appellants to pay all
eligible retirement benefits, etc.
3. The learned Single Judge, referring to the provisions of Rule
182 of the Border Security Force Rules 1969 (for short, 'BSF Rules') and
Rules 24 and 49 of the CCS Rules concluded that in the absence of any
such condition in the dismissal order [Ext.R1(c)] dated 19.05.1981 with
regard to payment of pension or otherwise, the provisions of Rule 182
of the BSF Rules would continue to apply.
3.1 The learned Single Judge further held that Rule 24 of the
CCS Rules, as relied upon by the appellants, would not support the
impugned orders, since the dismissal was effected under the BSF Rules
and not under the CCS Rules. The benefit of the CCS Rules will only be
taken by taking the aid of Rule 182 transitory provisions in the BSF
Rules. There is a separate chart provided for payment of pension to the
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employees who have rendered more than ten years and less than ten
years of service. Since the petitioner admittedly has rendered more
than ten years of service, the learned Single Judge came to the
conclusion that the pension should be admissible to him under Rule
49(2) of the CCS Rules and set aside the impugned orders.
4. The learned Counsel for the appellant/Union of India
contended that the learned Single Judge failed to consider the fact that
the respondent had not completed the mandatory service of twenty
years to secure a pension as per the CCS Rules. The respondent was
tried in a Court of Inquiry for overstaying leave without sufficient
cause, and after following due process and issuing a show-cause notice,
the respondent was dismissed from service in terms of Rule 22 of the
BSF Rules. A person who has completed 20 years of qualifying service is
entitled to pensionary benefits, whereas the respondent was dismissed
from service and that too after rendering only ten years, two months
and twenty-three days of service. Hence, he is not entitled to
pensionary benefits. As per Rule 24 of the CCS Rules, a government
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servant who is dismissed or removed from service or post entails
forfeiture of his past service. Therefore, he is not entitled to the
pensionary benefits.
4.1 Furthermore, the learned Counsel submits that the learned
Single Judge ought not have entertained the writ petition, given the
gross delay of 33 years, for which the respondent has provided no
justification.
4.2 In view of the aforesaid, the learned Single Judge has erred
in allowing the writ petition. Therefore, the judgment of the learned
Single Judge is to be set aside and the appeal be allowed.
5. Per contra, the learned Counsel for the respondent opposed
the prayer and submitted that Rule 22 of the BSF Rules empowers the
authorities competent to dismiss or remove a person other than an
officer on account of misconduct by specifying whether the benefit of
pension would be admissible or not. The order of dismissal does not
disclose such a fact, and thus, in view of the transitory provisions of
Rule 182 of the BSF Rules, in the absence of any circular/order issued
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by the Government, the provisions of the CCS Rules would not be
applicable.
5.1 The learned Single Judge has rightly allowed the writ
petition, and no interference is called for. The Writ Appeal deserves to
be dismissed.
6. Heard Ms T C Krishna learned Central Government Counsel
for the appellants, and Mr John T Paul learned Counsel for the
respondent, and perused the records.
7. The learned Single Judge, while allowing the writ petition,
held that the respondent is entitled to pension under Rule 49(2) of the
CCS Rules. The orders impugned in the writ petition failed to consider
this aspect and, being unsustainable, set aside the orders. The learned
Single Judge also directed the appellants to assess the pension of the
respondent in terms of the provisions of Rule 49(2) of the CCS Rules.
8. Clause (2) of Rule 49 of the CCS Rules reads as follows:
"(2) In the case of a Government servant retiring in accordance with the
provisions of these rules after completing qualifying service of not less
than ten years, the amount of pension shall be calculated at fifty per
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cent of emoluments or average emoluments, whichever is more
beneficial to him, subject to a minimum of three thousand and five
hundred rupees per mensem and maximum of forty-five thousand
rupees per mensem."
8.1 A perusal of Rule 49 of the CCS Rules shows that it lays
down the procedure for the calculation and quantification of the
pension amount, but does not prescribe the minimum qualifying
service. Therefore, it does not entitle the respondent to claim pension
under this Rule.
9. Rule 48-A of the CCS Rules reads thus:
"48-A. Retirement on completion of 20 years' qualifying service
(1) At any time after a Government servant has completed twenty years'
qualifying service, he may, by giving notice of not less than three
months in writing to the appointing authority, retire from service.
...."
9.1 Rule 48-A(1) provides that after a Government servant has
completed twenty years of qualifying service, he may retire from
service by giving the Appointing Authority a written notice of not less
than three months. According to this Rule, an employee becomes
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eligible for pension only after completing twenty years of qualifying
service. In the present case, admittedly, the respondent has put in only
ten years, two months and twenty-three days of service.
10. Rule 24 of the CCS Rules reads as follows:
"24. Forfeiture of service on dismissal or removal
Dismissal or removal of a Government servant from a service or post
entails forfeiture of his past service."
10.1 Rule 24 of the CCS Rules provides for the forfeiture of
service upon dismissal or removal from service. The CCS Rules contain
specific provisions addressing the forfeiture of pension in such cases.
Therefore, the respondent is not entitled to claim pension.
10.2 While the individual has completed 10 years of
service, which is generally a minimum requirement for pension
eligibility under the CCS Rules, the key factor here is the reason for
separation from service. Dismissal for unauthorized absence is a
disciplinary action, which falls under the rules concerning forfeiture of
pension. The unauthorized absence and subsequent dismissal would
likely fall under a rule that allows for the forfeiture of pensionary
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benefits.
11. The fact that the dismissal order does not explicitly
mention pension is not a guarantee of entitlement. The right to
pension is a statutory right governed by the applicable rules. When a
person is dismissed, it is the provisions of the relevant pension rules
that determine whether they are entitled to a pension or not,
irrespective of what the dismissal order states.
12. The Supreme Court in Union of India and others v. Rakesh
Kumar [(2001) 4 SCC 309] considered the question whether the
members of the BSF who have resigned from their posts after serving
for ten or more years, but less than 20 years were entitled to
pension/pensionary benefits under the relevant provisions of the BSF
Act and the Rules made thereunder. The Court held that the BSF Act
and Rules deal with the service conditions, discipline, and the
circumstances under which resignation may be accepted, but the
matter of pension is governed by the CCS (Pension) Rules. The Court
also clarified that the pension entitlements of BSF personnel are
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governed exclusively by the CCS Rules, not by the BSF Act or BSF Rules.
It is an established position that the right to pension is a statutory right
that must be based on the specific provisions of the applicable pension
rules.
12.1 Consistently, it is an affirmed principle that the BSF Act
and Rules are for service matters, while the CCS Rules are the exclusive
legal framework for determining pensionary benefits for BSF
personnel. This is particularly relevant in cases of dismissal or
resignation, where the service rules may dictate the terms of
separation, but the pension rules will determine the financial
consequences of that separation.
13. It is to be noted that the writ petition, filed by the
respondent a staggering 33 years after his dismissal, is untenable due
to the unexplained and inordinate delay. The respondent has also
failed to challenge the dismissal order for over three decades,
indicating that he has slept over his rights.
14. In view of the aforesaid, the learned Single Judge has erred
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in directing the appellants to calculate the pension according to the
provisions of Rule 49(2) of the CCS Rules 1972. We are of the considered
opinion that the order passed by the learned Single Judge cannot be
countenanced.
Accordingly, the judgment dated 11.08.2023 in W.P.(C)
No.28475/2014 is set aside. The Writ Appeal is allowed. No order as to
costs. All Interlocutory Applications as regards interim matters stand
closed.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
jjj
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RESPONDENT EXHIBITS
Exhibit R 1 True copy of the relevant portion of BSF Rule-26 published in
the Gazette of India as S.O. 2336 dated 9.6.1969
Exhibit R 2 True copy of the Border Security Force (Amendment) Rules-
1990 published in the Gazette of India as S.O. 436(E) dated
29.5.1990
Exhibit R 3 True copy of the relevant portion of Rule-11 of the CCS (CCA)
Rules-1965
Exhibit R 4 True copy of the relevant portion of the 4th Central Pay
Commission resolution No.2/13/87-PIC dated 18.3.1987
Annexure R 1 THE TRUE COPY OF THE OMISSION OF PROVISO TO BSF RULE-19
(1) (II) PUBLISHED IN THE GAZETTE OF INDIA AS PER S.O 166
DATED 14.1.1997
Annexure R2 TRUE COPY OF THE BSF DIRECTORATE GENERAL LETTER
NO.26001/ADM DTE-EOPIII)/32BN-RK/BSF/ 2024/98-184 DATED
21.2.2024
Annexure R3 TRUE COPY OF THE BSF FHQ ADM DIRECTORATE SIGNAL NO.
DTO:19 DATED 19.4.2024
Annexure R4 TRUE COPY OF THE JUDGMENT IN W.P (C) NO.2655 OF 2014
DATED 29.8.2024
Annexure R5 TRUE COPY OF THE JUDGEMENT IN RCA NO. 5284/16 DATED
21.10.2016
Annexure R6 TRUE COPY OF THE EX CONSTABLE VED SINGH'S PENSION
PAYMENT ORDER NO.021851702831 DATED 10.04.2017
Annexure R7 TRUE COPY OF THE RELEVANT PORTION OF BSF RULE
APPENDIX-I CONDITIONS OF SERVICE PUBLISHED IN THE
GAZETTE OF INDIA AS PER S.O 2336 DATED 09.6.1969
Annexure R8 TRUE COPY OF THE RELEVANT PORTION OF AMENDMENT OF
BSF RULE APPENDIX-I CONDITIONS OF SERVICE PUBLISHED IN
THE GAZETTE OF INDIA AS PER S.O 1040 DATED 25.3.1996
Annexure R9 THE TRUE COPY OF THE JUDGMENT IN WP (C) NO.16200 OF 2014
DATED 18.1.2019
Annexure R10 THE TRUE COPY OF THE JUDGMENT IN WA NO.938 OF 2019
DATED 03.2.2020
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PETITIONER ANNEXURES
Annexure A1(b) A true copy of the application dated Nil
Annexure A1(c) A true copy of the letter dated 15.01.1998
Annexure A1(a) True copy of the notice dated 10.04.1981 along with leave
application
