Narpat Singh vs Union Of India
2022 Latest Caselaw 9860 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10998/2021

Narpat Singh S/o Bhim Singh, Aged About 54 Years, Caste- Rajpurohit, Resident Of- Village- Sarwari Purohitan, PO - Sarwari Purohitan, Tehsil- Pachpadra, District- Barmer, State- Rajasthan.

----Petitioner Versus

1. Union Of India, Through Its Secretary, Ministry Of Home Affairs, North Block, Central Secretariat, New Delhi- 110001.

2. Department Of Pension And Pensioners Welfare, Through Its Deputy Secretary, Lok Nayak Bhawan Khan Market, New Delhi- 110003.

3. Central Pension Accounting Office, Through Its Secretary, Ministry Of Finance, Department Of Expenditure, Government Of India, Trikoot-Ii, Bhikaji Cama Place, New Delhi- 110066.

4. Director General Of Bsf, Hqr Dg Bsf, Block No. 10, Cgo Complex, Lodhi Road, New Delhi- 110003.

5. Inspector General Of Bsf, Frontier Hqr Bsf, Mandore Road, Jodhpur.

6. Commandant, 14, Battalion Border Security Force, C/o Hq Dg Bsf, Block No. 10, Cgo Complex, Lodhi Road, New Delhi- 110003.

                                                                  ----Respondents


For Petitioner(s)         :     Mr. S.S.Gill.
                                Dr. Kshamendra Mathur.
For Respondent(s)         :     Mr. Mukesh Rajpurohit, ASG.


           HON'BLE MR. JUSTICE ARUN BHANSALI
                                     Order

27/07/2022

This writ petition has been filed by the petitioner seeking a

direction to the respondents to grant applicable pension, gratuity

and other post retirement and other benefits to the petitioner,

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restore the Pension Payment Order from the date it was stopped

and quash the impugned order dated 17/8/2001 (Annex.2) for the

stoppage of pension issued by the respondent BSF and decide the

case of the petitioner in terms of the larger Bench judgment in

DTC vs. Balwan Singh : (2019) 18 SCC 126.

The petitioner has filed this petition on 13/8/2021 with the

averments that on completion of more than 10 years of

satisfactory qualifying service, owing to some person reasons, the

petitioner, who was serving as Lance Naik with BSF, took voluntary

retirement on 30/8/1996. Pursuant to the retirement accorded to

the petitioner, the PPO was issued on 7/10/1996. However, by

order dated 17/8/2001 by indicating that pension to the petitioner

has been stopped forthwith as the petitioner had resigned from

service under Rule 19 of the BSF Rules before completing 20 years

of service and he is not entitled for pensionary benefits as decided

by Hon'ble Supreme Court in its judgment dated 30/3/2001 in

Civil Appeal No. 6166/1999 and the petitioner was required to

contact Director General, BSF for clarification, if any. It appears

from the record that on 24/2/2017 i.e. after about 16 years from

the date of the order dated 17/8/2001 (Annex.2), the petitioner

got issued a notice to the respondents claiming to have made

representations in the past requiring the respondents to grant him

pension and all applicable pensionary benefits or in the alternative

reinstate him in service with all consequential benefits.

Submissions have been made that action of the respondents

in denying pension to the petitioner with reference to the

judgment of Hon'ble Surpeme Court is not justified.

Learned counsel for the petitioner attempted to make

submissions that the determination made by Hon'ble Supreme

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Court itself is not correct and, therefore, in terms of provisions of

BSF Act and applicable Rules, the petitioner is entitled for grant of

pension and, therefore, the order impugned deserves to be set

aside with all consequential benefits.

Strong reliance has been placed on the judgment in the case

of DTC (Supra).

Emphasis was also laid that before passing the order

(Annex.2), the petitioner was not afforded any opportunity of

hearing and on that count also the order impugned deserves to be

quashed and set aside.

A reply to the writ petition has been filed by the respondents

inter alia indicating that the controversy involved in the present

case is no more res integra as the same has already been

adjudicated by Division Bench in Hetram vs. Union of India &

Ors. : D.B.Special Appeal Writ No. 1807/2018 and other

connected matters decided on 24/9/2019, whereby, the Division

Bench taking into consideration the position of law laid down by

Hon'ble Supreme Court in Union of India vs. Rakesh Kumar : AIR

2001 SC 1877, Raj Kumar & Ors. vs. Union of India & Ors. :

(2006) 1 SCC 737 & Union of India vs. Madhu E.V. & Anr. : AIR

2012 SC 4806 came to the conclusion that no direction can be

issued by the Court extending pensionary benefits to the

appellants de hors the Rules, which already stood interpreted by

Hon'ble Supreme Court.

Further submissions have been made that the petitioner was

erroneously granted pensionary benefits under the provisions of

Rule 19 of the BSF Rules and after the judgment of Hon'ble

Supreme Court in Civil Appeal No. 6166/99, 2121/2000 and

1491/2001 (UOI vs. Rakesh Kumar etc.) the pension was stopped

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and a detailed communication dated 31/10/2021 (Annex.R/2) was

sent to the petitioner.

It was denied that the petitioner sent any formal or informal

request/representation to the competent authority and that

pursuant to the judgment in the case of Raj Kumar (supra) the

petitioner was accorded sufficient opportunities to re-join the

duties by sending registered letters dated 15/5/2006, 17/6/2006,

3/7/2006, 31/7/2006, 28/8/2006, 30/4/2007 and 17/6/2007 filed

as Annex.R/3 to R/9, respectively. The notice sent by the

petitioner in the year 2017 was also duly replied on 29/5/2017

(Annex.R/10).

Submissions have been made that no person can claim any

right on the basis of a wrong decision, which is de hors the

statutory Rules and the same also cannot create any estoppel.

It was prayed that the petition, which has been filed after 20

years of passing of the order dated 17/9/2001 (Annex.2)/

31/10/2001 (Annex.R/2) deserves dismissal.

In response to the reply filed by the respondents, the

petitioner has not filed any rejoinder.

Learned counsel for the petitioner made vehement

submissions that action of the respondents in denying pension to

the petitioner is contrary to the applicable provisions and that

despite the judgment of Hon'ble Supreme Court in Rakesh

Kumar/Raj Kumar (supra) the petitioner is entitled for grant of

pension.

An attempt was made to make submissions with regard to

purported non-consideration of certain aspects in the case of

Rakesh Kumar (supra) and strong reliance was placed on the

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judgment in the case of DTC (Supra) and it was claimed that the

petitioner is entitled for grant of pension.

It was also sought to be emphasized that once the petitioner

was granted pension, the same could not have been stopped

without affording any opportunity of hearing to the petitioner and

as no opportunity was granted to the petitioner, on that count also

the impugned order is bad in law.

Learned counsel for the respondents made submissions that

the plea sought to be raised by the petitioner seeking to point out

the alleged deficiency in the judgment of Hon'ble Supreme Court

in the case of Rakesh Kumar (supra) cannot be countenanced

before this Court as the same is binding under Article 141 of the

Constitution of India.

Further submissions have been made that the judgment in

the case of DTC (supra) has no application to the facts of the

present case as the judgment in the case of Rakesh Kumar (supra)

holds the field insofar as the BSF Rules are concerned.

Submissions have also been made that the petitioner has

approached this Court after 20 years of passing of the order

Annex.R/2 and even after the notice was issued on behalf of the

petitioner in 2017, which was promptly responded in the year

2017 itself vide Annex.R/10, the writ petition has been filed after

04 years, and neither any explanation for approaching this Court

after 20 years from the date of passing of the order Annex.R/2 nor

after 04 years after notice was issued in 2017 has been

forthcoming.

It is submitted that the respondents have complied with the

directions given by Hon'ble Supreme Court requiring the

candidates like the petitioner to re-join and repeated notices were

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given to the petitioner, and as the petitioner failed to re-join, he is

not entitled to any relief and, therefore, the petition deserves

dismissal.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The petitioner, as noticed hereinbefore, is seeking to

resurrect the case in which order was passed way back in the year

2001 i.e. when his pension was stopped by communication dated

17/8/2001 (Annex.2) and an order in this regard dated

31/10/2001 (Annex.R/2) was served on him. After waiting for over

16 years, the petitioner got issued a notice (Annex.3) in the year

2017 and, thereafter has approached this Court in 2021.

Admittedly, the petitioner resigned on completion of 10 years

of service and without completing 20 years of service and was

accorded pension, which came to be stopped after the issue came

to be determined by Hon'ble Supreme Court in the case of Rakesh

Kumar (supra), which was later on reiterated in the case of Raj

Kumar (supra), wherein, Hon'ble Supreme Court gave detailed

directions.

Certain other petitioners approached this Court by filing writ

petitions, which came to be rejected by Single Judge and the said

order came to be upheld by the Division Bench in the case of

Hetram (supra), wherein the Division Bench after noticing identical

submissions, as made before this Court seeking to question the

determination made by Hon'ble Supreme Court in the case of

Rakesh Kumar (supra), dismissed the special appeals inter alia

observing as under:

"18. As a matter of fact, the issues sought to be raised by the appellants have been dealt with by the Supreme Court in extenso in Rakesh Kumar's case (supra). After due

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consideration of Rule 19 of BSF Rules and all the relevant provisions of the Pension Rules including Rule 49(2)(b) heavily relied upon by the learned counsel in support of the appellants' claim for pensionary benefits, the court categorically held :

"12. A bare reading of Section 8 of the Act makes it clear that no member of the BSF will have right to resign except with prior permission in writing of the prescribed authority. The language is prohibitory and the member of the BSF is not having liberty to resign from his appointment during the term of his engagement, however, the prescribed authority may permit the member of the BSF to resign in certain special circumstances. Rule 19 does not create any right to pension. It is intended to enable members of BSF to resign from the Force without attracting any penal consequences. For that, Rule 19 provides that Central Government having regard to the special circumstances of any case may permit any officers of the Force to resign 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. Discretionary powers are given to the authority to accept or reject the resignation. Proviso to Rule 19(1) empowers the Central Government, while granting permission to resign, to require the officer to refund to the Government such amount as would constitute the cost of training given to that officer. Further, if the officer is eligible to get pension or other retirement benefits, the Rules empower the Government to make reduction in the pension or other retirement benefits.

....xxxxx.......xxxxx

16. On the basis of Rule 49, it has been contended that qualifying service for getting pension would be ten years. In our view, this submission is without any basis. Qualifying service is defined under Rule 3(q) to mean service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.

Rule 13 provides that qualifying service by a government servant commences from the date from which he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. This rule nowhere provides that qualifying service for getting pension is 10 years. On the contrary, there is a specific provision that if a government servant retires before completing qualifying service of 10 years because of his attaining the age of compulsory retirement, he would not get pension but would get the amount of service gratuity calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service. In these appeals, we are not required to consider other conditions prescribed for qualifying service as it is admitted that the respondent members of the BSF have completed more than 10 years of qualifying service. Further, clause (2)(a) of Rule 49 specifically provides for grant of pension if a

(8 of 13) [CW-10998/2021]

government servant retires after completing qualifying service of not less than 33 years. The amount of pension is to be calculated at fifty per cent of average emoluments subject to maximum provided therein.

Clause 2(b) upon which much reliance is placed indicates that in case of a government servant retiring in accordance with the provisions of the Rules before completing qualifying service of 33 years, but after completing qualifying service of ten years, the pension shall be after completing qualifying service of ten years, the pension shall be proportionate to the amount of pension admissible under clause (2)(a) and in no case, the amount of pension shall be less than Rs.375/- per months. This would only mean that in case where government servant retires on superannuation i.e. the age of compulsory retirement as per service conditions or in accordance with the CCS (Pension) Rules, after completing 10 years of qualifying service, he would get pension which is to be calculated and quantified as provided under clause (2) of Rule 49. This clause would cover cases of retirement under Rule 35 and 36 that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after the prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. It is also to be stated that Rule 26 of CCS (Pension) Rules specifically provides that resignation from a service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies. Hence, on the basis of Rule 49 a member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefit. There is no other provision in the CCS (Pension) Rules giving such benefit to such government servants.

.....xxxxx......xxxxxx.

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 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 fulfills all other eligibility conditions. This para only reiterates Rule 19. It also clarifies that 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

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the shortest possible time. Reading the aforesaid GO as a whole, it no where reveals 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 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, 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 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 CCS (Pension) Rules. 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 there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If Rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but 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 getting pensionary benefits. As a normal rule,

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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."

(emphasis added)

19. In Raj Kumar's case (supra), the Supreme Court while dividing the cases before it into the categories (A) and (B)(i) & B(ii), as under:

"(A) Pre-circular:

Personnel who resigned and were granted pension for specific 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 in to 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 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."

categorically held that the persons in the category B(ii) who had resigned subsequent to 1996 pursuant to circular dated 27.12.95 and did not report on duty pursuant to circular dated 17.10.98 shall necessarily have to forfeit the pension. The court passed the order in following terms:

"18. Having considered the peculiar facts arising in each of these groups. We make the following orders:

1. The personnel falling in category (B)(ii) i.e. those persons who had retired subsequent to 1996 pursuant to the circular dated 27.10.1995 and had not been sanctioned pension, but who have been directed to report for re-induction in service shall necessarily have to forfeit their pension, if they have not reported for service by virtue of the circular dated 17.10.1998, if however, they have reported for service then there is no question of any relief in their case.

2. In the case of persons falling in category (B)(i), they shall also be given the option of re-induction into service, and those falling in category (B)(i)(a) shall be so re-inducted, subject to the conditions stipulated in circular dated 17.10.1998 and on condition that they shall refund the GPF and pension amounts drawn by

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them till re-induction. The authorities shall indicate the deadline by which such persons shall offer themselves for re- induction.

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.

4. In cases which fall under category (A) i.e. personnel who had resigned prior to the circular dated 27.12.1995 and had been granted pension for special reasons and continued to draw it till the stoppage of pension as a result of the judgment in Rakesh Kumar (supra), we think that irrespective of the position in law, equity demands that, as they have drawn their pension for long periods, they shall not be asked to refund their drawn pension amounts, nor shall their pension be stopped now."

(emphasis added)

20. Admittedly, the appellants herein who were discharged from service on their resignations being accepted subsequent to 1996 pursuant to circular dated 27.12.1995, did not re-

join duty despite directions being issued pursuant to circular dated 17.10.98 and thus, they falling within the category (B)

(ii), have forfeited their right to pension.

21. As noticed by the learned Single Judge, the view taken by the Supreme Court in the cases of Rakesh Kumar and Raj Kumar (supra), has been reiterated in the matter of Union of India vs. Madhu E.V. & Anr.: AIR 2012 SC 4806.

22. We are of the considered opinion that the controversy raised by the appellants is squarely covered by the decisions of the Supreme Court in the cases of Rakesh Kumar, Raj Kumar and Madhu E.V. (supra). No directions can be issued by this court extending pensionary benefits to the appellants de hors the Rules, which stands interpreted by the Supreme Court as aforesaid. Even if some members of the Force have been extended benefits of the pension de hors the Rules, the parity cannot be extended to the appellants so as to perpetuate the illegality.

23. The decisions cited by the learned counsel for the appellants referred supra in given facts of the case, do not deal with the issues involved in the present appeals and thus, do not help the appellants in any manner whatsoever.

24. For the aforementioned reasons, we are in full agreement with the view taken by the learned Single Judge of this court and thus, the special appeals deserve to be dismissed.

25. Accordingly, the special appeals are dismissed. No order as to costs."

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In the case of Hetram (supra), cases of the petitioners

therein were governed by clause (B)(ii) as indicated in para 17 of

the judgment in the case of Raj Kumar (supra), whereas, the

present case of the petitioner is governed under category B(i)(a)

and the Hon'ble Supreme Court in para 18, for the category of the

petitioner, inter alia provided as under:

"In the case of persons falling in category (B)(i), they shall also be given the option of re-induction into service, and those falling in category (B)(i)(a) shall be so re-inducted, subject to the conditions stipulated in circular dated 17.10.1998 and on condition that they shall refund the GPF and pension amounts drawn by them till re-induction. The authorities shall indicate the deadline by which such persons shall offer themselves for re- induction."

Though the petitioner was provided repeated opportunities to

be re-inducted by issuance of notices Annex.R/3 to R/9 to which

the petitioner chose not to respond. In fact, in terms of the

directions of the Hon'ble Supreme Court in Rakesh Kumar (supra),

the petitioner was required to refund the GPF & pension amount

drawn by him till re-inducted. However, as the petitioner chose not

to be re-inducted, nothing remained to be done on the part of the

respondents and issue stood closed at the relevant time itself.

The submissions now sought to be made by the petitioner

seeking to question the withdrawal of pension without providing

any opportunity of hearing also goes in oblivion as the entire

aspect of grant of pension has been dealt with by the Hon'ble

Court in the case of Raj Kumar (supra) & in exercise of powers

under Article 142 of the Constitution of India directions were

issued to deal with the situation arising out of judgment in the

case of Rakesh Kumar (supra), which have been complied with by

the respondents, as noticed hereinbefore, which aspect has not

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been denied by the petitioner, as no rejoinder to the reply has

been filed.

So far as the reliance placed on the judgment in the case of

DTC (supra) is concerned, the determination made therein has no

application to the facts of the present case and besides the above,

the entire subject matter having stood concluded by the

judgments/directions of Hon'ble Supreme Court, the settled

position cannot be disturbed based on a subsequent judgment.

In view of the above discussion, besides the fact that the

petition suffers from a huge delay of 20 years and laches, for

which no explanation worth the name has been given in the

petition, the issues sought to be agitated also stand covered by

the Division Bench judgment in the case of Hetram (supra) and

the entire aspect pertaining to the subject matter stands covered

by the judgments of Hon'ble Supreme Court in the case of Rajesh

Kumar (supra), Raj Kumar (supra) and Madhu E.V. (supra).

No case for any indulgence is made out in the present

petition, the same is, therefore, dismissed.

(ARUN BHANSALI),J baweja/-

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