Jang Bahadur and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/624194
SubjectService
CourtPunjab and Haryana High Court
Decided OnMar-13-2008
Judge Hemant Gupta and; Mohinder Pal, JJ.
Reported in(2008)2PLR547
AppellantJang Bahadur and anr.
RespondentUnion of India (Uoi) and ors.
DispositionPetition dismissed
Cases ReferredRaj Kumar v. Union of India
Excerpt:
- - where the records of service of the individual are exceptional; the petitioners have failed to avail the offer, therefore, in terms of conclusion (i) of para no. therefore, the first condition of sanction of pension is not satisfied in the case of the petitioners.hemant gupta, j.1. the petitioners have invoked the extra-ordinary writ jurisdiction of this court for claiming pension, having retired on 31.12.1996 and 30.9.1996, respectively.2. petitioner no. 1 was enrolled in the border security force on 10.4.1986 whereas petitioner no. 2 on 3.1.1986. on 27.6.1979, a circular was issued by the government of india for grant of pensionary benefits under rule 19 of the border security force rules, 1969 (for short 'the rules'). such circular contemplated that if in special circumstances, a member of the force has submitted his resignation, yet he would be allowed pensionary benefits.3. the special circumstances, which were enumerated in the circular are extreme compassionate grounds; where the records of service of the individual are exceptional; and indifferent health. after the said circular was issued, petitioner no. 1 submitted his resignation (annexure p.2) on the ground that his mother is suffering from cancer and father from a heart trouble and he being the only responsible member of his family be relieved with full pensionary benefits to take care of his aged parents. on the basis of the said request, petitioner no. 1 was relieved with full pensionary benefits. similar request of petitioner no.2 was also accepted. though petitioners were relieved with full pensionary benefits, but admittedly, the pensionary benefits were not released.4. it is pointed out that vide communication dated 17.10.1998 (annexure r-1) addressed to petitioner no. 1 and annexure r-2 dated 12.4.1999 addressed to petitioner no. 2, both the petitioners were called upon to rejoin the services and it was also communicated that the petitioners shall retain their seniority on reinstatement in service and period of absence will be treated as earned leave/half pay leave as due and leave without pay for the remaining period of absence. the said offer was made as it was realized by the respondents that to offer retiral benefits before the completion of 20 years of service is not permissible under rules. admittedly, the petitioners did not join the duties in pursuance of the said communications addressed in the year 1998-99.5. the question of grant of pension to similar situated pensioners such as the petitioners, came up for consideration before the hon'ble supreme court in union of india v. rakesh kumar : [2001]2scr927 . wherein it was held that the members of the border security force are governed by the central civil services (pension) rules, 1972, and such rules nowhere provides that a person, who has resigned before completing 20 years of service, as provided in rule 48-a of the rules, is entitled to pensionary benefits. rule 19 of the bsf rules, also does not make any provision for grant of pensionary benefits. in view of the said fact, it was concluded that on the basis of rule 49 of the central civil services (pension) rules, 1972, a member of border security force v/ho 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 benefits.6. the respondents also rely upon the judgment of hon'ble supreme court in raj kumar v. union of india : air2006sc938 , wherein it was held that a member of force, who is discharged after acceptance of his resignation, but has not been granted pension, falls under category (b)(ii) as culled out in para no. 17 of the aforesaid judgment. the relevant extract in respect of categories as defined and culled out, reads as under:17. we find that the cases before us can be divided into the following categories:(a) pre-circular. personnel who resigned and were granted 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 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. these persons can be further divided into two sub categories:(a) those who are in position to be reinducted into service even now; and(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 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.6. in the present case, the pension was not sanctioned to the petitioners and they were directed to report for reinduction in service. the petitioners have failed to avail the offer, therefore, in terms of conclusion (i) of para no. 18 of the aforesaid judgment, the petitioners are not entitled to any relief. the said para reads as under: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 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 reported for service then there is no question of any relief in their case.7. learned counsel for the petitioners has vehemently argued that the petitioners fall in clause (i) of category (b) as mentioned in para no. 17 of the judgment and therefore, the petitioners are entitled to be reinducted into service even now. however, the said clause is not applicable in respect of the petitioners as though the petitioners resigned in the year 1996, but were not sanctioned pension. therefore, the first condition of sanction of pension is not satisfied in the case of the petitioners.8. since the case of the petitioners falls in category (b)(ii) as described in raj kumar 's case (supra), therefore, the petitioners are not entitled to any pension having submitted their resignation after 10 years of service.in view of the said fact, the present petition is dismissed with no orders as to costs.sd/- mohinder pal, j.
Judgment:

Hemant Gupta, J.

1. The petitioners have invoked the extra-ordinary writ jurisdiction of this Court for claiming pension, having retired on 31.12.1996 and 30.9.1996, respectively.

2. Petitioner No. 1 was enrolled in the Border Security Force on 10.4.1986 whereas petitioner No. 2 on 3.1.1986. On 27.6.1979, a circular was issued by the Government of India for grant of pensionary benefits under Rule 19 of the Border Security Force Rules, 1969 (for short 'the Rules'). Such circular contemplated that if in special circumstances, a member of the Force has submitted his resignation, yet he would be allowed pensionary benefits.

3. The special circumstances, which were enumerated in the circular are extreme compassionate grounds; where the records of service of the individual are exceptional; and indifferent health. After the said circular was issued, petitioner No. 1 submitted his resignation (Annexure P.2) on the ground that his mother is suffering from cancer and father from a heart trouble and he being the only responsible member of his family be relieved with full pensionary benefits to take care of his aged parents. On the basis of the said request, petitioner No. 1 was relieved with full pensionary benefits. Similar request of petitioner No.2 was also accepted. Though petitioners were relieved with full pensionary benefits, but admittedly, the pensionary benefits were not released.

4. It is pointed out that vide communication dated 17.10.1998 (Annexure R-1) addressed to petitioner No. 1 and Annexure R-2 dated 12.4.1999 addressed to petitioner No. 2, both the petitioners were called upon to rejoin the services and it was also communicated that the petitioners shall retain their seniority on reinstatement in service and period of absence will be treated as earned leave/half pay leave as due and leave without pay for the remaining period of absence. The said offer was made as it was realized by the respondents that to offer retiral benefits before the completion of 20 years of service is not permissible under Rules. Admittedly, the petitioners did not join the duties in pursuance of the said communications addressed in the year 1998-99.

5. The question of grant of pension to similar situated pensioners such as the petitioners, came up for consideration before the Hon'ble Supreme Court in Union of India v. Rakesh Kumar : [2001]2SCR927 . wherein it was held that the members of the Border Security Force are governed by the Central Civil Services (Pension) Rules, 1972, and such Rules nowhere provides that a person, who has resigned before completing 20 years of Service, as provided in Rule 48-A of the Rules, is entitled to pensionary benefits. Rule 19 of the BSF Rules, also does not make any provision for grant of pensionary benefits. In view of the said fact, it was concluded that on the basis of Rule 49 of the Central Civil Services (Pension) Rules, 1972, a member of Border Security Force v/ho 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 benefits.

6. The respondents also rely upon the judgment of Hon'ble Supreme Court in Raj Kumar v. Union of India : AIR2006SC938 , wherein it was held that a member of Force, who is discharged after acceptance of his resignation, but has not been granted pension, falls under Category (B)(ii) as culled out in para No. 17 of the aforesaid judgment. The relevant extract in respect of categories as defined and culled out, reads as under:

17. We find that the cases before us can be divided into the following categories:

(a) Pre-circular. Personnel who resigned and were granted 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 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. These persons can be further divided into two sub categories:

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

(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 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.

6. In the present case, the pension was not sanctioned to the petitioners and they were directed to report for reinduction in service. The petitioners have failed to avail the offer, therefore, in terms of conclusion (i) of Para No. 18 of the aforesaid judgment, the petitioners are not entitled to any relief. The said para reads as under:

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 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 reported for service then there is no question of any relief in their case.

7. Learned Counsel for the petitioners has vehemently argued that the petitioners fall in Clause (i) of Category (B) as mentioned in para No. 17 of the judgment and therefore, the petitioners are entitled to be reinducted into service even now. However, the said clause is not applicable in respect of the petitioners as though the petitioners resigned in the year 1996, but were not sanctioned pension. Therefore, the first condition of sanction of pension is not satisfied in the case of the petitioners.

8. Since the case of the petitioners falls in category (B)(ii) as described in Raj Kumar 's case (supra), therefore, the petitioners are not entitled to any pension having submitted their resignation after 10 years of service.

In view of the said fact, the present petition is dismissed with no orders as to costs.

Sd/- Mohinder Pal, J.