R.S. Mongia, C.J.
1. The question involved in this appeal is whether a member of Border Security Force (in short, BSF), who has resigned from his post after serving for 10 or more years but less than 20 years, is entitled to pension/pensionary benefits under the relevant provisions of Border Security Force Act. 1968 (hereinafter called the Act) and the Border Security Force Rules, 1959 (hereinafter called the BSF Rules) or the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the CCS (Pension) Rules) ?
2. The aforesaid question has arisen under the following fact and circumstances:
3. Respondent - Writ petitioner L/Nk Bhadreswar Hira was enrolled in the BSF as a Constable on 20.2.1982. After completion of 15 years 9 months and 10 days of service; he submitted his resignation before the competent authority for acceptance On the ground of domestic problems. He was interviewed by the Commandant 193 BN BSF. The resignation of the writ petitioner (now respondent) was accepted by the competent authority by an order dated 16.9.1997 and he was struck off from the strength of the BSF w.e.f. 30.11.1997. By the said order accepting resignation of the writ petitioner and of one V. Arjunan, another member of the BSF was accepted. The order of acceptance of resignation reads as under:
'ORDER: Resignation submitted by the following personnel of this Unit due to their domestic problems are hereby accepted with effect from date as mentioned against each under Rule 19 of BSF Rule, 1969 with pensionary benefits :
1. No. 82711045 L/NK ... 30.11.1997(AN)
2. No. 87009528 CT ... 31.10.1997 (AN)
V. Arjunan
02. They will SOS from this Unit on the date of their resignation from service.
No. Estt/178/193/97/16256 dated the 16th Sept.'97
Sd/-XXX 15.09.97
(PARANJITSINGH)
COMMANDANT
193 BN BSF
Distribution :
1.2.
No. 82711045L/NK B. HiraNo. 8700958 CT V. Arjunan
You are hereby directed to report main office of the unit alongwith three copies of passport size photograph (husband & wife) Bank A/C number from where you intend to draw pension alongwith bank code number (national bank alongwith full address of bank) for preparation of pension paper. Two copies of passport size photograph (civil dress) may also be submitted to this office forpreparation of discharge book.'However, despite his resignation having been accepted with pensionary benefits, his pension/pensionary benefits were not released, which led him to file W.P.(C) No. 5308 of 1999 in this Court. Learned Single Judge by the impugned judgment dated 20.3.2001 allowed the writ petition relying on an earlier Single Bench judgment in Siraj Ali (MD) v. Union of India and Ors. (1999 (2) GLT 519) wherein the same question had arisen. The pension was refused to Siraj Ali on the ground that the writ petitioner Siraj Ali had not completed the minimum qualifying service. The learned Single Judge in-Siraj Ali's Case held that since the petitioner's resignation had been accepted with all pensionary benefits and the same was in conformity with the letter of the Director General of Border Security Force dated 27.12.1995, the writ petitioner was entitled to pensionary benefits in terms of Rule 49(2) (b) of the BSF Rules, 1969 and the subsequent letter dated 16.5.1998 could not be given retrospective effect. It may be observed here that the Himachal Pradesh High Court had taken a similar view in Civil Writ Petition No. 761 /98 decided on 20.4.1999 against which the Union of India's appeal was pending before the Apex Court. During the course of arguments in WP(C) 5308/99 this fact was brought to the notice of the learned Single Judge, but the learned Judge was of the view that since there was no stay regarding the operation of the judgment and order of the Himachal Pradesh High Court, he would rather follow the earlier judgment of this Court in Siraj Ali's case (supra). The matter has been made simpler for us, inasmuch as, the appeal against the Himachal Pradesh High Court as also an appeal against the similar judgment of the Kerala High Court have been accepted by the Apex Court in Union of India and Ors. v. Rakesh Kumar reported in AIR 2001 SC 1877.
4. Section 8 of the BSF Act and Rule 19 of the BSF Rules, 1969 may be noticed here :
'Section 8. - Resignation and withdrawal from the post. - No member of the Force shall be at liberty, -
(a) to resign his appointment during the term of his engagement; or
(b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority.'
'Rule 19 - Resignation. - (1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force 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:
Provided that while granting such permission the Central Government may:
(a) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer ; or
(b) make such reduction in the pension or other retirement benefit of the officer if so eligible as that Government may consider to be just and proper in the circumstances.
(2) The Central Government may accept the resignation under Sub-rule (1) with effect from such date as it may consider expedient:
Provided that it shall not be later than three months from the date of receipt of such resignation.
(3) The Central Government may refuse to permit an officer to resign -
(a) if an emergency has been declared in the country either due to internal disturbances or external aggression ; or
(b) if it considers it to be inexpedient so to do in the interests of the discipline of the Force ; or
(c) if the officer has specifically undertaken to serve for a specific period and such period has been not expired.
(4) The provisions of this rule shall apply to and in relation to subordinate officers and enrolled persons as they apply to and in relation to any officer of the Force and the powers vested in the Central Government under Sub-rules (1) and (2) shall be exercised in the case of a subordinate officer by a Deputy Inspector General and in the case of an enrolled person by a Commandant.'
(Note : With effect from 14.1.1988 proviso to Rule 19 has been omitted.)
5. It is not disputed and is rather accepted on both hands that for purpose of pension, the members of the BSF are governed by CCS (Pension) Rules. Some provisions of the CCS (Pension) Rules may be noticed:
'35. Superannuation Pension. - A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement.
36. Retiring pension. -A retiring pension shall be granted -
(a) to a Government servant who retires, or is retired in advance of the age of compulsory retirement in accordance with the provisions of Rule 40 or 48-A of these Rules, or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations ; and
(b) to a Government servant who, on being declared surplus, opts for voluntary retirement in accordance with the provisions of Rule 29 of these rules.
48. Retirement on completion of 30 years qualifying service. -
(1) At any time after a Government servant has completed thirty years' qualifying service -
(a) he may retire from service, or
(b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to retiring pension:
Provided.....
48A. 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.
Provided.....
49. Amount of pension. - (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) (a) In the case of a Government servant retiring in accordance with the provision's of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.
(b)In case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than Rupees three hundred and seventy five per mensem.
(c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible-under Sub-rule (2) of Rule 54.
(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service.
(4) .....'
6. The latter of Government of India dated 27.12.1995 on which strong reliance was placed by the Writ petitioner may be noticed here :
To
All Frontier Border
All SHO BSF including DIG(HQ), New Delhi
All Trg. Institutions
TSU/Cenwosto/CSMT/Signal Regt./
HQArty/SIW/SRO
AlIBnsBSF
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. F35036/3/78-Staff/ BSF/dated 4th November, 1981 conveying the decision of the Ministry of Home Affairs in the manner 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 give pensionary benefit 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 Rules. 1969 till such time separate pension Rules for the BSF Personnel are framed. The Government has also agreed to our view 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 fulfils 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 agreed 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 reduction 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, 1969 as mentioned in para 4 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 provision (ii) to Rule 19(i) 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 ones which are presently under adjudication it is incumbent on all authorities to undertake through 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 is G and Heads of Trg. Institutions will ensure that these instructions have been complied with by the Units/ Establishments under their administrative control.'
7. It is evident from reading of Section 8 of the Act (supra) that no member of the BSF as a right to resign. A prior permission in writing of the competent authority is required before a member of the BSF can resign. Rule 19 of the BSF Rules (supra) does not create any right to pension. The Rule enables the members of the BSF to resign from the force without attracting any penal consequences. It empowers the competent 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 may constitute the costs of training given to that officer. Further if the officer is eligible to get pension or retirement benefits , the rule empowers the Government to make reduction in the pension or other retirement benefits. In other words, Rule 19 only empowers the competent authority to recover the cost of training and to order reduction in the pension or other retirement benefits if the officer is eligible to pension and pensionary benefits. Consequently, Rule 19 of the BSF Rules does not talk of grant of pension rather it talks of that if under some other rules or law a person is entitled to pension then some reduction can be ordered therefrom.
8. The entitlement to pension is to be seen under the CCS Pension Rules. Therefore, we are to see whether a member of BSF is entitled to get pension on his resignation before the compulsory age of retirement or 20 years of service. As per Rule 35 of the CCS (Pension) Rules (supra) superannuation pension is granted to the Government servant who retires on attaining the age of compulsory retirement. Under Rule 36 of the CCS (pension) Rules, a retiring Government ; servant is also granted pensionary benefits who retires or is retired in advance of the age of compulsory retirement in accordance with provisions of Rule 48 or Rule 48A of the Rules or Article 459 of the Civil Services Regulation. It would be seen from Rule 48A of the CCS Rules (supra) that the Government can retire a Government servant compulsorily, who has completed 20 years of qualifying service by giving him 3 months' notice in writing, such an employee would be entitled to pension under the CCS (Pension) Rules. Similarly under Rule 48 of the CCS (Pension) Rules (supra) there are corresponding rights with the Government servant and his appointing authority to seek voluntary retirement after 30 years of service or the appointing authority may require such a government servant to compulsorily retire. In all these
eventualities retiree would be entitled to pension. As to what
quantum of pension such a retiree would be entitled to, resort
would have to be made to Rule 49 of the CCS (Pension) Rules for
quantifying the pension. Resignation from service and retirement
from service have different connotations and consequences in
service jurisprudence. Those are totally two different things. If the
resignation of a government servant is accepted, it does not mean
that he is retired from service, Resignation means a voluntary act
of quittingor leaving the job or service. Retirement implies a tenure
having been completed in the job (although it may not be full
tenure in the job) and thereafter the employee leaves the service.
Retirement can be at the age of superannuation, compulsory
retirement or retirement on exigencies of service like the employee
becoming invalid etc. Resignation does not mean retirement and
it in only retirement which entitles a Government servant to receive
pension.
9. Now coming to the letter of the Government of India dated 27.12.1995 (which has already been reproduced above) it is to be seen as to whether it creates any right in the person putting in resignation to receive pension. Is it in conflict with the pension rules The answer to this can be found in the observations made in para 20 of the judgment of the Apex Court in Rakesh Kumar's Case (supra), which are as follows :
'20. The aforesaid G.O. makes it clear that there was a demand
for grant of pensionary benefits on acceptance of the resignation
under Rule 19 and that demand was accepted by the
Government. Paragraph 2 of the G.O. makes it clear that
Government has agreed that member of the BSF is entitled to
get pensionary benefits on resignation under Rule 19 provided
he has put in requisite number of years of service and fulfils all
other eligibility conditions. Paragraph 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 the BSF is eligible to get such pension. Paragraph 5
provides that in future the competent authority who accepts
the resignation would specify in 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 paragraph 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 shortest possible time. Reading the aforesaid G.O.
as a whole, it nowhere reveals Government's intention to confer any additional pensionary benefits to the members of the 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 G.O. 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 the 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 G.O. 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 G.O. does not confer any additional benefit. Even 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.'
10. The Apex Court, after considering all the relevant provisions of the BSF Act, Border Security Force Rules, 1969 and CCS (Pension) Rules, 1972, to which reference have already been made, came to the following conclusion:
'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 G.O., the respondents who have retired after completing qualifying service of 10 years but before completing qualifying service of 20 years by voluntary retirement, are entitled to get pensionary benefits. Respondents who were permitted to resign from service under Rule 19 of the BSF Rules before attainment of 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 CCS (Pension) Rules. Rule 49 only prescribes the procedure for calculation and quantification of pension amount. The G.O. dated 27.12.1995 does not confer any additional right of pension on the BSF employees.'
11. For the foregoing reasons, we find that the judgment of the learned Single Judge is not correct in law and is liable to be set aside. It is further held that the law laid down in Siraj All's Case (1999 (2) GLT 519) is not good law and the said judgment is hereby overruled. The appeal stands allowed and the judgment of the learned Single Judge dated 20th March, 2001 passed in W.P.(C) No. 5308/99 is set aside.
12. However, despite the fact that the appeal has been allowed should the writ petitioner (now appellant) be left high and dry The writ petitioner's resignation had been accepted by the order dated 16.9.1997 (supra) with pensionary benefits. The authorities also understood that the employees like the writ petitioner who had put in his resignation after putting more than 10 years of service but less than 20 years was entitled to pension. There was a judgment of this Court in Siraj All's case (1999 (2) GLT 519) supporting the writ petitioner. There were other judgments of other High Courts like Himachal Pradesh and Kerala High Court, which favoured the writ petitioner. Of course these judgments have now been set aside by the Apex Court in Rakesh Kumar's case (supra). On 17th October, 1998 the Government of India had itself issued a letter regarding reinstatement of those employees who might have put in their resignation after the circular dated 27.12.1995 with less than 20 years of service under the mistaken impression that pension was due to them may be taken back in service. Letter dated 17th October, 1998 reads as under :
'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 Oct 1998.
To.
All Ftr HQrs BSF
All Sector HQrs BSF
BSF Academy, Tekanpur
BSF CSWT Indore
TC & S Hazaribagh
All BSF Bns/All STCs/CTSS/STS I & STS I :
Sub: - RESIGNATION UNDER BSF RULE 19: RE-INSTATEMENT THEREOF.
In continuation of this Dte's letters 24/1 /97-Pers/BSF dated 15 Jan 90 and Signal No. R-3408 dated 12th Oct 98, the following procedure may be adopted while considering the cases on the subject cited :
(a) In exercise of the powers conferred under Rule 28A read with Rule 6 of BSF Rules, 1969, the Director General directs that all personnel who have resigned after the circular of 27th 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, 1999 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 memberof 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) 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.
Sd/-K.K. Bharadwaj Dy DIRECTOR (PERS)'
13. In the grounds of appeal, it has also been mentioned that the writ petitioner was provided opportunity to re-join service by various communications starting from October, 1998 to August, 1999 but the writ petitioner did not join. There can be some justification with the writ petitioner not to join, inasmuch, there was earlier decision of this Court in Siraj Ali's case and his writ petition was pending, which was allowed by the learned Single Judge apart from other considerations, which have already been referred to above. We do hope that on peculiar facts and circumstances of this case, the authorities would take sympathetic view in the matter and give an opportunity to the writ petitioner to exercise his right under the letter dated 17th October, 1998 (supra).