UNION OF INDIA & ORS.versusMADHU E.V. & ANR.

                        [2012] 5 S.C.R. 470


A                    UNION OF INDIA & ORS.
                                 v.
                       MAOHU E.V. & ANR.
              (Civil Appeal Nos. 9647-9650 of 2003)

                          APRIL 26, 2012
B
            [R.M. LODHA AND H.L. GOKHALE, JJ.)

         Border Security Force Rules, 1969 - r. 19 - Constables
    in Border Security Force (BSF) resigning from service on
C completion of 10 years of service - Constables allowed to
    resign with pensionary benefits ulr. 19 - Pensionary benefits
    - Entitlement to - Held: r. 19 does not entitle any pensionary
    benefits on resignation of its personnel - However, by virtue
    of G.O. dated December 27, 1995 read with r. 19 of Rules, a
o member of BSF would be entitled to get pensionary benefits
    if he is otherwise eligible - Such personnel must satisfy
    eligibility under CCS (Pension) Rules which does not provide
    that a person who has resigned before completing 20 years
    of service is entitled to the pensionary benefits - On facts,
E constables had resigned from BSF service immediately after
  . completion of 10 years service, thus,. not entitled to any
   pensionary benefits - Central Civil Services (Pension) Rules,
    1972 - rr 26, 48-A and 49(2)(b).

       Respondents-constables in the Border Security
F Force (BSF) tendered their resignation on completion of
  10 years service under Rule 19 of the Border Security
  Force Rules, 1969. Their resignation was accepted and
  it was provided that the respondent would be entitled to
  pensionary benefits. However, subsequently the
G respondents were intimated that no pensionary benefits
  were admissible to them. The respondents filed writ
  petitions challenging the said communication. The Single
  Judge of the High Court held that when the petitioners

H                               470
  UNION OF INDIA & ORS. v. MAOHU E.V. & ANR.           471


were allowed to resign with pensionary benefits under         A
Rule 19 of the BSF Rules, then their claim for pension
must be worked out under Rule 49(2)(b) of the CCS
(Pension) Rules. The Single Judge allowed the writ
petitions and directed the appellants to grant pension to
the respondents in accordance with Rule 49(2)(b) of the       B
CCS (Pension) Rules. The Division Bench of the High
Court upheld the decision of the Single Judge. Therefore,
the appellants filed the instant appeals.

    Allowing the appeals, the Court
                                                              c
     HELD: 1.1. Rule 19 of the Border Security Force
Rules, 1969 does not entitle any pensionary benefits on
resignation of its personnel. The pensionary benefits are
not ordinarily available on resignation under Central Civil
Services (Pension) Rules, 1972 since Rule 26 provides for     D
forfeiture of service on resignation. However, by virtue of
G.O. dated December 27, 1995 read with Rule 19 of BSF
Rules, the member of BSF would be entitled to get
pensionary benefits if he is otherwise eligible. Such
personnel must, therefore, satisfy his eligibility under      E
CCS (Pension) Rules. The CCS (Pension) Rules does not
provide that a person who has resigned before
completing 20 years of service is entitled to the
pensionary benefits. Rule 49 only prescribes the
procedure for calculation and quantification of pension       F
amount and not the minimum qualifying service. [Para 12]
[479-A-D]
     1.2. In the instant case, the respondents had
resigned from BSF service immediately after completion
of 10 years service and, therefore, they are not entitled     G
to any pensionary benefits. [Para 14) [479-E-F]
   1.3. The view taken by the Single Judge of the High
Court and judgment of the Division Bench of the High
Court upholding the view taken by the Single Judge            H
    472      SUPREME COURT REPORTS               [2012] 5 S.C.R.


A   cannot be upheld and are set aside. However, the amount
    of pension paid to the respondents, if any, would not be
    recovered. [Paras 13 and 15] [479-E-H]

        Ex--Naik Rakesh Kumar vs. Union of India and Ors.
    C.W.P. No. 761 of 1998; Union of India and Ors. vs. Rakesh
8
    Kumar (2001) 4 sec 309: 2001 (2) SCR 927 - relied on.

        Raj Kumar and Ors. Vs. Union of India and Anr. (2006)
    1 SCC 737: 2006 (1) SCR 169 - referred to.

                         Case Law Reference:
c
          2001 (2) SCR 927     Relied on.        Paras 7, 10, 12
          2006 (1) SCR 169     Referred to.      Paras 10, 12

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 9647-9650 of 2003.
      From the Judgment & Order dated 25.8.2000 of the High
  Court of Kerala at Ernakulam in Writ Appeal No. 443 & 279 of
  2000 and order dated 28.9.2000 in Review Petition No. 413,
E 443 & 414 of 2000 in W.A. No. 279 of 2000.

        Tara Chandra Sharma, Neelam Sharma, Rashmi
    Malhotra, B.K. Prasad, Sushma Suri for the Appellants.

          M.P. Vinod, Neelam Saini for the Respondents.
F
          The Judgment of the Court was delivered by

          R.M. LODHA, J. 1. Delay condoned.

        2. We have heard Mr. Tara Chandra Sharma, learned
G counsel for the appellants, and Mr. M.P. Vinod, learned counsel
  for the respondents.

      3. The respondents were the original writ petitioners before
  the High Court. They were constables in the Border Security
  Force (BSF). On completion of 10 years service, they tendered
H resignation. Their resignation was accepted by the
  UNION OF INDIA & ORS. v. MAOHU E.V. & ANR.                473
               [R.M. LODHA, J.]
Commandant 48 BN BSF. The order accepting resignation              A
provided that they would be entitled to pensionary benefits at
their own request on extreme compassionate grounds. Later
on, it was found that the pensionary benefits were not
admissible to them and few others whose resignation was
accepted under Rule 19 of the Border Security Force Rules,         B
1969 (for short, 'BSF Rules'). Accordingly, on October 20, 1998,
a letter was sent intimating them that no pensionary benefits
were admissible to those who have proceeded on resignation
under Rule 19 of the BSF Rules. However, their case for
reinstatement in BSF would be considered subject to refund         c
of all payment made to them from the Government such as
GPF, Gratuity, CGEGIS, etc. on their resignation. The
respondents challenged the above communication by filing two
separate Writ Petitions.

     4. The writ petitions were contested by the present           D
appellants (respondents therein). Their stand in the High Court
was that the writ petitioners were governed by the Central Civil
Services (Pension) Rules, 1972 (for short, 'CCS (Pension)
Rules') and as per these rules the minimum qualifying service
for pension is 20 years and, therefore, they were not entitled     E
to any pension.

     5. The Single Judge of the High Court referred to Rules
19 and 182 of the BSF Rules and relevant provisions of CCS
(Pension) Rules, particularly Rules 26, 48-A and 49(2)(b). The     F
Single Judge held that when the petitioners (therein) were
allowed to resign with pensionary benefits under Rule 19 of the
BSF Rules, then their claim for pension must be worked out
under Rule 49(2)(b) of the CCS (Pension) Rules. Accordingly,
the Single Judge, by his judgment dated September 29, 1999,        G
allowed the writ petitions and directed the present appellants
to grant pension to the petitioner (respondents herein) in
accordance with Rule 49(2)(b) of the CCS (Pension) Rules.

    6. Against the order of the Single Judge, the present
appellants preferred Writ Appeals. The Division Bench of the       H
    474       SUPREME COURT REPORTS                    [2012] 5 S.C.R.


A Kerala High Court upheld the decision of the Single Judge and
  dismissed the Writ Appeals vide judgment dated August 25,
  2000. While doing so, the Division Bench referred to the
  decision of the Himachal Pradesh High Court in Ex-Naik
  Rakesh Kumar Vs. Union of India & Others- C.W.P. No. 761
B of 1998. It is from this order of the Division Bench that the
  present Appeals, by special leave, have arisen.

       7. The judgment of the Himachal High Court in Ex-Naik
  Rakesh Kumar Vs. Union of India & Others was challenged
C by the Union of India before this Court in the case of Union of
  India and Others Vs. Rakesh Kumar, (2001) 4 SCC 309. The
  question involved therein was - Whether members of BSF who
  have resigned their posts after serving for 10 years or more
  years but less than 20 years are entitled to pensionlpensionary
  benefits under relevant provisions of the Border Security Force
D Act, 1968 (for short, 'BSF Act') and the BSF Rules or the CCS
  (Pension) Rules.

                                             e
       8. This Court referred to Section of the BSF Act and Rule
  19 of the BSF Rules and the provisions of the CCS (Pension)
E Rules, particularly Rules 35, 36, 48, 48-A and 49. G.O. dated
  December 27, 1995 issued by the Central Government was
  also referred to. After quoting G.O. dated December 27, 19%,
  this Court in para 20 of the report observed as follows :-

          "20. The aforesaid GO makes it clear that there was a
F         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 the Government has agreed that a member of
          BSF is entitled to get pensionary benefits on resignation
G         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
H         of BSF is eligible to get such pension. Para 5 provides
   UNION OF INDIA & ORS. v. MAOHU E.V. & ANR.                 475
                [R.M. LODHA, J.]

     that in future the competent authority who accepts the           A
     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          B
     but pensionary benefits were not allowed and provide that
     necessary orders should be passed within shortest
     possible time. Reading the aforesaid GO as a whole, it
     nowhere reveals the Government's intention to confer any
    additional pensionary benefits on the members of BSF              c
    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             0
    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,
                                                                      E
    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, the 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            F
    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."                                                        G

    9. While dealing with the arguments of the ex BSF
personnel that on the basis of the G.O. dated December 27,
1995, a number of persons are granted pensionary benefits
even though they have not completed 20 years of service and,          H
    476       SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A therefore, the Court should not interfere and see that the
  pensionary benefits granted to the respondents (therein) are not
  disturbed and are released as early as possible, this Court
  observed that for grant of pension to the members of BSF, the
  provisions of the CCS (Pension) Rules are applicable and the
B 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 the pensionary benefits. It was
  expressly held that Rule 19 of the BSF Rules did not make any
  provision for grant of pensionary benefits. In para 22 of the
c report, this Court concluded:-

          "22. In the result, there is no substance in the contention
          of the learned counsel for the respondents that on the
          basis of Rule 49 of the CCS (Pension) Rules or on the
          basis of the GO, the respondents who have retired after
D         completing qualifying service of 10 years but before
          completing qualifying service of 20 years by voluntary
          retirement, are entitled to get pensionary benefits. The
          respondents, who were permitted to resign from service
          under Rule 19 of the BSF Rules before the attainment of
E         the age of retirement or before putting such number of
          years of 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 CCS (Pension)
          Rules. Rule 49 only prescribes the procedure for
F         calculation and quantification of pension amount. The GO
          dated 27-12-1995 does not confer any additional right of
          pension on the BSF employees."

       10. In a later decision in the case of Raj Kumar & Others
G Vs. Union of India and Another, (2006) 1 SCC 737, this Court
  was again concerned with the similar question. This Court
  referred to the earlier decision of this Court in Union of India
  & Others Vs. Rakesh Kumar(supra) and reiterated the position
  that was declared in Union of India & Others Vs. Rakesh
H Kumar (supra), namely, that Rule 19 of the BSF Rules did not
  UNION OF INDIA & ORS. v. MAOHU E.V. & ANR.               477
               [R.M. LODHA, J.]
grant any right to pension in cases where pension was not         A
payable under the CCS (Pension) Rules. In para 17 of the
report, the Court catalogued the cases before it as follows :

    "17. ....

    (A) Pre-circular. Personnel who resigned and were granted     B
    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       c
    divided into two sub-categories.

          (i) Personnel who retired in 1996, were sanctioned
    pension and were therefore asked vide letter dated 31-10-
    1998 not to report for reinduction. Their pension has been
    stopped pursuant to the judgment in Rakesh Kumar              0
    (supra). These persons can be further divided into two sub-
    categories:

          (a) those who are in a position to be reinducted into
    service even now; and                                         E

          (b) those who cannot be reinducted 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 F
    sanctioned pension, and were directed to report for
    reinduction into service or to forfeit pension benefits by
    virtue of the circular dated 17-10-1998 and the individual .
    letters."
                                                                  G
     11. Having regard to the peculiar facts arising in each of
the above groups, this Court made the following orders :

    "1. The personnel falling in category (B)(ii) i.e. those
    persons who had retired subsequent to 1996 pursuant to
                                                                  H
    478       SUPREME COURT REPORTS                     [2012] 5 S.C.R.


A         the circular dated 27-10-1995 and had not been
          sanctioned pension, but who have been directed to report
          for reinduction 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
B         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 reinduction into service, and
          those falling in category (B)(i)(a) shall be so reinducted,
c         subject to the conditions stipulated in the circular dated 17-
          10-1998 and on condition that they shall refund GPF and
          pension amounts drawn by them till reinduction. The
          authorities shall indicate the deadline by which such
          persons shall offer themselves for reinduction.
D
          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 reinducted today as they are
          age-barred or physically or medically unfit or for any other
E         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
F         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
G         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
H         shall their pension be stopped now."
   UNION OF INDIA & ORS. v. MAOHU E.V. & ANR.                 479
                [R.M. LODHA, J.]
      12. In view of the decisions of this Court in Union of India   A
 & Others Vs. Rakesh Kumar (supra) and Raj Kumar & Others
 Vs. Union of India and Another (supra), the legal position that
 emerges is this : Rule 19 of the BSF Rules does not entitle any
pensionary benefits on resignation of its personnel. The
pensionary benefits are not ordinarily available on resignation      B
under CCS (Pension) Rules since Rule 26 provides for
forfeiture of service on resignation. However, by virtue of G.O.
dated December 27, 1995 read with Rule 19 of BSF Rules,
the member of BSF would be entitled to get pensionary benefits
if he is otherwise eligible. Such personnel must, therefore,         c
satisfy his eligibility under CCS (Pension) Rules. The CCS
(Pension) Rules do not provide that a person who has resigned
before completing 20 years of service is entitled to the
pensionary benefits. Rule 49 only prescribes the procedure for
calculation and quantification of pension amount and not the         0
minimum qualifying service.

       13. The view taken by the Single Judge and judgment of
the Division Bench upholding the view taken by the Single
Judge cannot be upheld and have to be set aside in light of
the legal position noted above.                                      E

     14. In the present case, the respondents had resigned from
BSF service immediately after completion of 10 years service
and, therefore, they are not entitled to any pensionary benefits.

     15. We, accordingly, allow these Appeals and set aside          F
the orders dated August 25, 2000 passed by the Division
Bench and dated September 29, 1999 passed by the Single
Judge. We, however, observe that amount of pension paid to
the respondents herein, if any, shall not be recovered.
                                                                     G
       16. No costs.
N.J.                                         Appeals allowed.


                                                                     H