Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This appeal is directed against the order of learned Single Judge dated 14th February, 1997 allowing the writ petition filed by the respondent and directing the appellants to determine and release the pension payable to the petitioner on his dismissal from service.
3. The brief facts necessary for the present purposes are that the petitioner was recruited as Constable in the Border Security Force on 27.8.1974 and was later on posted as Constable Nursing Assistant during the year 1984.
4. He was charged under Section 40 of the Border Security Force Act vide charge sheet dated 14.12.1994 and after he was tried by Summery Security Force Court, he was found guilty and penalty of dismissal from service was imposed.
5. Section 48 of the B.S.F. Act provides punishment which may be inflicted in respect of offence committed by the persons subject to B.S.F. Act and convicted by Security Force Court. The various punishments which can be imposed including dismissal from service as well as forfeiture of service for the purpose of increased pension or other prescribed purpose and it also envisaged that one or more penalties can be imposed for offence committed by the persons subject to the Act.
6. It is on the aforesaid premise, the petitioner claimed that since forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose is not the punishment imposed upon him notwithstanding dismissal from service, he is entitled to the benefit of pension. The contention of the petitioner was founded on the principle that when these two punishments are independent punishments and can be imposed alternatively or jointly the punishment of dismissal from service does not include the punishment of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose unless there is a punishment to that extent is imposed with dismissal from service does not come in the way of claiming his pension.
7. The writ petition was filed failing to secure any relief from the appellant, relying on the decision of the Supreme Court in case of Major G.S. Sodhi v. Union of India : (1991)2SCC371 and the decision rendered in Lt. Col. (T.S.) Harbans Singh Sandhu v. Union of India reported in 2002 (16) SCC Page 427.
8. The plea found favour with learned Single Judge and following the aforesaid two decisions, the writ petition was allowed and the non-petitioners-appellants have been directed to pay the entire pension, gratuity and provident fund under the Rules to the petitioners within 3 months with interest at the rate of 12% per annum from the date of receipt of this order. Hence, this appeal.
9. We have heard learned Counsel for the parties.
10. It is not disputed before us that the pension to the petitioner whose services are governed by B.S.F. Act is payable only in terms of the Central Civil Service Pension Rules, 1972 and not otherwise.
Under the pension Rules, 1972, Rule 24 reads as under:
24. Forfeiture of service on dismissal or removal.-
Dismissal or removal of a Government servant from a service or past entails forfeiture of his past service.
11. Non-petitioners-appellants have reliea on this rule to show that since the forfeiture has not been imposed by way of punishment but where the grant of pension is conditioned by the terms and conditions contained in rules and the pension dismissed from service is not entitled to pension, he cannot claim pension on the basis that he has not been visited with the penalty of forfeiture of service.
We find substance in this contention.
12. Imposition of penalty is one aspect of the matter and entitlement to the pension in terms and rules or regulation is entirely different consideration. The pension as such is not a vested or fundamental right but is a condition of service and depends upon the relevant rules under which pension becomes payable to an employee, therefore, for the purpose of claiming pension, the primary consideration is whether a person is entitled to a pension under; the Pension Rules. On this principle, in view of the clear provisions under Rule 24, the petitioner was not entitled to claim pension not because punishment of forfeiture has been imposed upon him but because under the pension Rules a dismissed employee is not entitled to pension.
13. In this conclusion, we are fortified with the decision of the Apex Court in Union of India and Anr. v. P.D. Yadav and Ors. cases : (2002)1SCC405 . This case had arisen under the Army Act. The pension payable to a person governed by Army Act is governed by Pension Regulations for the Army, 1961. Likewise persons employed in Navy are entitled to pension under Navy Pension Rules, 1964. The punishment for offence under Army Act has been provided under Section 71 of the Army Act. It enumerates the punishment which could be imposed for offence under Army Act. Section 71 is para meteria with the provision of Section 48 of the B.S.F. Act. The question had arisen in the like manner where punishment of dismissal was imposed under the Army Act but no punishment for forfeiture of service had been imposed. The incumbent had claimed pension and other retiral benefits on being dismissed from service on the basis of decisions rendered in Lt. Col. (T.S.) Harbans Singh Sandhu's case which was followed in Major G.S. Sodhi's case referred to above.
14. The Court clarified the distinction between the imposition of punishment under the Army Act and entitlement to pension under the Pension Regulations of Army or Navy as the case may be. The Court held that:
23. Section 71 of the Army Act provides for various kinds of punishments which may be imposed for offences committed by persons subject to the Act and convicted by Court Martial which may vary from death to stoppage of pay and allowances. In terms of Army Pension Regulation 16(a) and Navy Pension Regulation 12(2), pension may be forfeited partly or fully subject to the conditions mentioned therein. These Regulations are independent and the authority to grant or forfeit pension is the President of India and the Central Government respectively. As rightly found by the High Court, the said Regulations are neither inconsistent with nor contrary to the provisions of the Army Act or the Navy Act as the case may be. The said Regulations and the provisions dealing with the punishments under the Act cover different fields and have different purposes to serve. Punishments are imposed after trial on the basis of the misconduct proved. The Pension Regulations deal with the grant or refusal of pension depending on satisfactory qualifying service earned by a person and depending on the nature of punishment imposed, mentioned in the Regulations. The Regulations come into play at a stage subsequent to the imposition of punishment. No doubt, pension is not a bounty but it is the earning of a person after satisfactory completion of qualifying service and if not otherwise disentitled. Under Section 70(h), a punishment of forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose, can be imposed.
15. The Court further went to hold that:
Merely because punishment is not imposed under Clause (h) or (k) of Section 71 and other punishments are imposed, it does not mean that the President is deprived of his power and jurisdiction to pass order under Regulation 16(a); so also the Central Government under Regulation 15(2) of the Navy Pension Regulations taking note of the punishment imposed under Section 81 of the Navy Act. In a case where punishment is imposed under Section 81(m) of the Navy Act forfeiting pension and/or gratuity, need for passing an order forfeiting pension under Regulation 15 (2) of Navy (Pension) Regulations may not arise. But that does not mean that in case of punishments imposed, which are covered by Regulation 15 the Central Government is deprived of its power to pass appropriate orders under the said Regulation, when such power is specifically conferred on the Central Government under the very Regulations, which enables granting of pension and/or gratuity, it is rather not possible to accept the contention that a General Court Martial and Central Government from passing orders as provided for specifically and expressly under the Pension Regulations.
16. In coming to its conclusion the Court has distinguished the decision rendered by it earlier in Lt. Col. (T.S.) Harbans Singh Sandhu's case on the ground that was a case in which after imposition of punishment no order was passed under the Regulations for dis-entitling the incumbent to pension on the basis of such punishment and for the very reason the Sodi's case was also not held applicable.
17. We may further notice that the case before the Supreme Court in P.D. Yadav was founded on applicability of Pension Regulations which were in force by way of statutory rules promulgated under the legislative power of the State or by the executive orders. In the present case, the pension is governed by the rules framed under proviso to Article 309 and which specifically debars the eligibility of person dismissed from service under the Pension Regulations. The statute itself envisages no right of pension to dismissed employee.
18. As a result of the aforesaid discussion, we are unable to sustain the order of learned Single Judge and claim of the petitioner to relief. Accordingly, the appeal is allowed. The judgment under appeal is set aside and the writ petition is dismissed. No order as to costs.