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Judgment
This writ petition is filed seeking the following relief:
“…to issue an appropriate writ order or direction more particularly one in the nature of Writ of mandamus to declare the action of the 2nd Respondent in rejecting petitioners claim of pro-rata pension and other financial benefits by passing impugned proceedings No.26001/Adm Dte (EOP Sec(1/573/2022 (23)/-1234-1300 dt.12-10-2023 as illegal, arbitrary and violative of Articles 14, 16 and 21 of the constitution of India and contrary to the BSF Act, 1968 and Rules thereunder and CCS Pension Rules 1972 and against the principles of natural justice and consequently, set aside the same and direct the 2nd Respondent to grant Pro-rata Pension on the ground of Voluntary Retirement and having service of 12 years 2 months 26 days as per rules and decisions of Honble Apex court in the interest of justice …”
Brief facts of the case are that:
Petitioner was initially appointed as a Constable, vide Regimental No.950096926, on 16.02.1995 in the Border Security Force at Bangalore. He underwent training at STC Takanpur, Gwalior, Madhya Pradesh, in Batch No.62 from 16.02.1995 to March, 1996. Thereafter, he was posted to the 33rd Battalion, Bandipur Sector, Jammu & Kashmir, where he served from March, 1996 to March, 1998. Subsequently, he was posted to STC, BSF, Kharkan, Punjab, where he continued to serve up to 12.05.2007.
While so, on 12.05.2007, petitioner resigned from service on account of ill health of his father. Subsequently, due to the death of his father, he had the responsibility of looking after the welfare of his family comprising four sisters, one brother and his mother. In view of his financial constraints, he sought voluntary retirement and his application was considered for voluntary retirement under Rule 19 of the Border Security Force (BSF) Rules, 1969 and the Border Security Force Act, 1968.
To overcome his financial difficulties, petitioner, under the bona fide impression that the Government of India Circular dated 27.12.1995 provides pension to those who resigned from or voluntarily retired from service in the Para-Military Forces, sought voluntary retirement. As on the date of his resignation, petitioner had completed 12 years, 2 months and 26 days of service. However, except GPF amount of Rs.60,000/-, no other amount was paid to him. It was also stated that petitioner had subscribed to the Seema Prahari Yojana Scheme and pension payable scheme.
Aggrieved by it, petitioner submitted a representation dated 19.05.2017 to the 2nd respondent seeking payment of pension admissible to him on account of his having completed more than 10 years of continuous qualifying service, or, in the alternative, to reinstate him into service in the BSF in the event of any difficulty in sanctioning pension, so as to enable him to rejoin duty. Though he submitted various representations thereafter, his case was not considered. Subsequently, the 2nd respondent issued proceedings dated 12.10.2023, rejecting his case stating that there was no provision under the CCS (Pension) Rules for grant of pension to Government employees who had resigned from service before completion of 20 years of qualifying service.
Aggrieved by that, present writ petition is filed.
Respondents filed counter-affidavit denying the averments made in the affidavit filed in support of the writ petition and contended that, under Rule 49 of the CCS (Pension) Rules, a member of the BSF who has resigned from service after completing more than 10 years of qualifying service, but less than 20 years, is not eligible to receive pensionary benefits and, as such, petitioner is not entitled to the same. Though several other grounds were raised in the counter-affidavit, learned counsel for the respondents placed reliance on the judgment of the Hon’ble Apex Court in Union of India v. Rakesh Kumar 1 and contended that the Hon’ble Apex Court, in the said judgment, held that employees who have not completed the qualifying service of 20 years are not entitled to pensionary benefits. Therefore, as the petitioner admittedly had completed only 12 years of service, as stated above, he is not entitled to pensionary benefits. Accordingly, his case was considered and rejected. It is further contended by the respondents that Rule 49 of the CCS (Pension) Rules only prescribes the procedure for calculation and quantification of the pension amount. Therefore, the case of petitioner was rightly rejected by the respondents and no interference is warranted by this Court.
Denying the averments made in the counter affidavit, petitioner filed a reply affidavit and submitted that the Hon’ble Apex Court in D.S.Nakara v. Union of India2 held that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and pension is not an ex gratia payment but it is a payment for the past service rendered, and it is a social welfare measure rendering social-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer. It is further submitted that judgment relied upon by the respondents in Union of India v. Rakesh Kumar’s case (cited supra) is not applicable to the petitioner as the directions issued therein would apply only in case of superannuation and subsequently, the Hon’ble Apex Court rendered several other judgments contrary to the proposition in the above said judgment of Rakesh Kumar’s case.
Heard Sri S.S.Gill, learned counsel representing Sri A.Rama Krishna, learned counsel for petitioner and Sri T.Bhargav, learned counsel representing Sri Narasimharao Gudiseva, learned Central Government Counsel for Respondents.
The contention of learned counsel for petitioner is that Rule 19 of the BSF Rules empowers the authorities to allow a person to leave the BSF in special circumstances before completing such number of years of service as may be necessary for retirement or superannuation. The respondents have accepted the application filed by the petitioner for voluntary retirement, but have rejected his case for granting pension stating that qualifying service of 20 years is required for granting pension. There was no stipulation to the effect that the minimum qualifying service for pension was fixed at 20 years. As the petitioner had completed more than 10 years of qualifying service, he is entitled to pension even as per the rules prevailing at the relevant point of time. The minimum qualifying service for grant of gratuity or pension under Rule 49 of the CCS (Pension) Rules, 1972, clearly prescribes 10 years as the qualifying service. The expression ‘qualifying service’ is defined under Rule 3(1)(q), which states that qualifying service means service rendered while on duty or otherwise, which shall be taken into account for the purpose of pensions and gratuities admissible under the said Rules. Therefore, 10 years is the minimum qualifying service prescribed under Rule 49 of the Pension Rules. Therefore, the order passed by the respondents is contrary to the Rules
Learned counsel for petitioner placed reliance on the judgment of the Hon’ble Apex Court in DTC v. Balwan Singh3, wherein the relevant portion reads as under:
5.It appears that considerable litigation ensued in respect of both these aspects, on various accounts, inter alia on the issue of the eligibility for pension for persons who had put in 10 years or more of qualifying service, but less than 20 years. All these different issues have been settled in proceedings before the Delhi High Court or before this Court. Suffice to say that there is no controversy now, in view of the judicial pronouncements that there is no embargo in the Pension Rules that an employee having put in more than 10 years of service but less than 20 years would earn pro rata pension if he avails of the VRS.
Placing reliance on the above judgment, learned counsel submitted that there is no embargo in the Pension Rules that an employee having put in more than 10 years of service, but less than 20 years would earn pro rata pension if he avail of the VRS.
Learned counsel for petitioner also placed reliance on the judgment of the Hon’ble Apex Court in State of Odisha v. Manju Naik4, wherein the relevant portion reads as under:
20.The above view of ours is supported by the ratio in Union of India v. Bashirbhai R. Khiliji [Union of India v. Bashirbhai R. Khiliji, (2007) 6 SCC 16 : (2007) 2 SCC (L&S) 292] , where this Court was considering claim for invalid pension for an armed constable in the CRPF who suffered from pyrogenic meningitis and neurosensory deafness (bilateral). In that case, the CRPF personnel was declared unfit for active duty, and he was invalidated from service. He applied to authorities for invalid pension but that was rejected on the ground that he had not completed the qualifying service of 10 years. Instead, he was paid service gratuity. The High Court in Bashirbhai R. Khilji v. Union of India [Bashirbhai R. Khilji v. Union of India, 2004 SCC OnLine Guj 258 : (2004) 1 GLH 738] however, took the view that since the CRPF Constable's invalidity was 100 per cent, he was entitled to invalid pension and the stipulation of 10 years of qualifying service could not be invoked to deny him the invalid pension. However, A.K. Mathur, J. speaking for a two-Judge Bench of this Court while interpreting similar provisions in the applicable Rules, negated the High Court's view and pronounced on the issue of qualifying service for invalid pension, in the following [Union of India v. Bashirbhai R. Khiliji, (2007) 6 SCC 16 : (2007) 2 SCC (L&S) 292] manner: (SCC pp. 20-21, paras 9-10)
“9.We are presently concerned with two provisions of the Rules i.e. Rules 38 and 49. Rule 38, as reproduced above, contemplates the invalid pension. The procedure has been mentioned therein i.e. in case an incumbent retires from service on account of bodily or mental infirmity which permanently incapacitated him for the service, then a medical certificate of incapacity shall be given by the authorities concerned and in particular Form 23 the same may be applied before the competent authority. It is true that the qualifying service is not mentioned in Rule 38 but Rule 49 which deals with the amount of pension stipulates that 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. Therefore, the minimum qualifying service of ten years is mentioned in Rule 49. The word “qualifying service” has been defined in Rule 3(1)(q) of the Rules which read as under:
„3. (1)(q) “qualifying service” means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules;‟
10.Therefore, the minimum qualifying service which is required for the pension as mentioned in Rule 49, is ten years. The qualifying service has been explained in various memos issued by the Government of India from time to time. But Rule 49 read with Rule 38 makes it clear that qualifying service of pension is ten years and therefore, gratuity is determined after completion of qualifying service of ten years. Therefore, for grant of any kind of pension one has to put in the minimum of ten years of qualifying service. The respondent in the present case, does not have the minimum qualifying service. Therefore, the authorities declined to grant him the invalid pension. But the amount of gratuity has been determined and the same was paid to him.”
Placing reliance on the above judgment, learned counsel submitted that minimum qualifying service of 10 years is mentioned in Rule 49 and the expression ‘qualifying service’ has been defined under Rule 3(1)(q), which means service rendered while on duty or otherwise, which shall be taken into account for the purpose of pensions and gratuities admissible under the Rules. Thus, under Rule 49 of CCS (Pension) Rules, petitioner is entitled for pension on pro rata basis.
Learned counsel for petitioner also placed reliance on the judgment of the Hon’ble Apex Court in D.S. Nakara v. Union of India’s case (cited supra), wherein the relevant portion reads as under:
20.The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar [(1971) 2 SCC 330 : AIR 1971 SC 1409 : 1971 Supp SCR 634 : (1971) 1 LLJ 557] wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh. [(1976) 2 SCC 1 : 1976 SCC (L&S) 172 : AIR 1976 SC 667 : (1976) 3 SCR 360]
31.From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.
Placing reliance on the above judgment, learned counsel submitted that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and it creates a vested right. Pension is not an ex gratia payment, but it is a payment for the past service rendered and it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer.
Learned counsel for petitioner also placed reliance on the judgment of the Hon’ble Apex Court in Raj Kumar v. Union of India5, wherein the relevant portion 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 [(2001) 4 SCC 309 : 2001 SCC (L&S) 707] . 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
(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.
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.
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, 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.
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 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 [(2001) 4 SCC 309 : 2001 SCC (L&S) 707] . 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 [(2001) 4 SCC 309 : 2001 SCC (L&S) 707] 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.
Placing reliance on the above judgment, learned counsel submitted that referring to the judgment of Rakesh Kumar’s case (cited supra), Hon’ble Apex Court categorised the persons who retired subsequent to the year 1996, were not sanctioned pension and were, therefore directed to report for re-induction into service and such persons would necessarily have to forfeit their pension if they failed to report for re-induction and there is no embargo with regard to the application of 20 years of service for claiming pension.
Learned counsel for petitioner also placed reliance on the judgment of the Hon’ble Apex Court in Union of India v. Satish Kumar6, wherein the relevant portion reads as under:
12.So long as it is an admitted position that Rule 49 governs, payment of pension in all these cases, could only be as per the Rules. When there is no challenge to the Rule and there is no ground of discrimination taken in any of the petitions the Rule cannot be bypassed.
Placing reliance on the above, learned counsel submitted that Rule 49 governs, payment of pension in all the cases, could only be as per the Rules and the Rule cannot be bypassed, so long as there is no challenge to the Rule on the ground of discrimination.
Learned counsel for petitioner also placed reliance on the judgment of High Court of Rajasthan in Banwari Lal v. Union of India7, wherein the Hon’ble High Court of Rajasthan allowed the petition holding that in the light of Rule 49(2)(b) of the CCS (Pension) Rules, 1972, petitioner having completed more than 10 years of qualifying service prior to his voluntary retirement, is entitled to proportionate pension and all consequential pensionary benefits. In the above said judgment, learned judge considered the case law cited therein apart from considering the provisions of Rules 49 and Rule 19 of BSF Rules. The relevant portion of the judgment reads as under:
5.6.A bare perusal of Rule 49 reinforces this legal position, as it clearly envisages grant of proportionate pension to those who have completed at least ten years of qualifying service. The issue has now attained finality and is no longer res integra, the same having been comprehensively examined by a larger Bench of the Hon‟ble Supreme Court in Delhi Transport Corporation v. Balwan Singh and others (2019) 18 SCC 126 wherein it was reaffirmed that pension is a deferred right earned through qualifying service and cannot be arbitrarily withheld once the statutory threshold of ten years is met. The relevant Para No.5 is being reproduced as under:-
5.It appears that considerable litigation ensued in respect of both these aspects, on various accounts, inter alia on the issue of the eligibility for pension for persons who had put in 10 years or more of qualifying service, but less than 20 years. All these different issues have been settled in proceedings before the Delhi High Court or before this Court. Suffice to say that there is no controversy now, in view of the judicial pronouncements that there is no embargo in the pension rules that an employee having put in more than 10 years of service but less than 20 years would earn pro rata pension if he avails of the VRS.
As is evident from the communication dated 23.08.2001, the petitioner‟s pension had been duly sanctioned and was being regularly disbursed in accordance with the relevant service regulations. The said communication clearly reflects that the petitioner was in receipt of pensionary benefits for a period of about four years. However, the payment of pension was subsequently discontinued solely on the ground that, in the case of Union of India v. Rakesh Kumar, certain observations were made to the effect that a member of the Border Security Force who resigns from service after completing ten years but before twenty years of qualifying service would not be entitled to pension. 6. In view of the foregoing discussion and in light of Rule 49(2) (b) of the CCS (Pension) Rules, 1972, the petition is accordingly allowed. It is held that the Petitioner, having completed more than ten years of qualifying service prior to his voluntary retirement, is entitled to proportionate pension and all consequential pensionary benefits as envisaged under the said Rules.
Learned counsel for petitioner also placed reliance on the judgment of Delhi High Court in Kuldip Singh v. Union of India8, wherein it was held that Rule 49 of CCS (Pension) Rules permits payment of pension after completion of 10 years of qualifying service. Accordingly, as the petitioner therein had rendered more than 11 years of service, he was held entitled for pension.
Per contra, learned Central Government Counsel for respondents placed reliance on the judgment of the Hon’ble Apex Court in Union of India v. Rakesh Kumar’s case (cited supra), wherein the relevant portion reads as under:
12.A bare reading of Section 8 of the Act makes it clear that no member of BSF will have right to resign except with the prior permission in writing of the prescribed authority. The language is prohibitory and the member of 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 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 the Central Government having regard to the special circumstances of any case may permit any officer 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. 13. The next step is — once it is accepted that members of BSF are governed by the CCS (Pension) Rules, then the question is — whether a member is entitled to get pension on his resignation before the compulsory age of retirement or 20 years of service or if he retires or is retired at the age of 30/33 years of qualifying service. The scheme of the said Rules provides that normally a government servant is entitled to get pensionary benefits after he retires at the age of superannuation. There are exceptions for grant of pensionary benefits in cases where a government servant voluntarily retires after completing 20 years of qualifying service and also retires after completing 30/33 years of qualifying service, invalid pension or compensation pension or on compassionate grounds etc. Chapter V. deals with grant of pensions and the conditions for such grants. As per Rule 35 superannuation pension is to be granted to a government servant who retires on his attaining the age of compulsory retirement. Retiring pension is further given to a government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of Rule 48 after completing 30 years of qualifying service or Rule 48-A of the CCS (Pension) Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Services Regulations. Rule 48-A provides for voluntary retirement after completion of 20 years of qualifying service after giving three months' notice in writing to the appointing authority and if such notice is accepted he would get retiring pension. Thereafter, Rule 49 provides for method of calculation of amount of pension to such government servant. Relevant parts of the CCS (Pension) Rules for grant of pension are as under:
“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 48 or 48-A of these Rules, or Rule 56 of the Fundamental Rules or Article 459 of the Civil Services 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 a retiring pension: Provided.…
48-A. 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….” (emphasis supplied)
21.Learned counsel for the respondents submitted that on the basis of the 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 the CCS (Pension) Rules. The 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 can there be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If the Rules are not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but the 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, 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.
Placing reliance on the above judgment, learned counsel for respondents submitted that the scheme of the said Rules provides that, normally, a Government servant is entitled to pensionary benefits upon retirement on attaining the age of superannuation. There are exceptions for grant of pensionary benefits in cases where a Government servant voluntarily retires after completing 20 years of qualifying service. He further submitted that Rule 19 does not create any right to pension, but is intended to enable members of the BSF to resign from the Force without attracting any penal consequences. As such, the period of 10 years prescribed under Rule 19 cannot be treated as qualifying service under Rule 49 of the CCS (Pension) Rules, as the two provisions operate in distinct fields. It is further submitted that Rule 49 prescribes the procedure for calculation and quantification of the pension amount and does not confer any additional right to pension on BSF employees.
Considered the submissions made on either side and perused the entire material on record.
It is appropriate to extract Rule 19 of BSF rules, 1969 and Rule 49 of CCS (Pension) Rules, 1972:
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:
(i)require the officer to refund to the Government such amount as would constitute the cost of training given to that officer [or three months pay and allowances, whichever is higher] or provided further that an officer of the force tendering resignation, for accepting a job under Central or State Governments or local bodies, after having been granted cadre clearance for the same [or who has completed 10 years of service] shall not be required to refund the sum as provided here in above.
(2)The Central Government may accept the resignation under sub-rule (1) with effect from such date as it may consider expedient.
(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 considers it to be inexpedient so to do 26[due to exigencies of service] or in the interests of the discipline of the force; or
(c)if the officer has specifically undertaken to serve for a specified period and such period has not expired.
(4)The provisions of this rule, shall apply to and in relation to subordinate officer 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.
Rule 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 provisions 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 thirty-three years, but after 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”
A conjoint reading of the above rules makes it clear that, Rule 19 of the BSF Rules, 1969 prescribes the minimum age for permitting an employee to resign from service before retirement upon completion of 10 years of service in the force, whereas Rule 49 of the CCS (Pension) Rules, prescribes the qualifying service of 10 years for payment of gratuity at the rate of half month’s emoluments for every completed 6 monthly period of qualifying service. Under Rule 49(2)(a), an employee who had completed 33 years of qualifying service is entitled for full pension. However, the persons who had completed 10 years of qualifying service are also entitled for the proportionate pension admissible under clause (a) of Rule 49(2). The expression ‘qualifying service’ mentioned in the aforesaid rules is defined under Rule 3(1)(q), which reads as under:
“Qualifying service means service rendered while on duty or otherwise, which shall be taken into Account for the purpose of pension and gratuities admissible under these rules.”
A bare perusal of all the above provisions makes it clear that an employee who has rendered more than ten years of qualifying service is entitled for proportionate pension as per Rule 49(2) of CCS (Pension) Rules. Admittedly, petitioner had put in more than 10 years of qualifying service (i.e., 12 years 2 months and 26 days). As such, he is entitled for pro-rata pension/ proportionate pension as was held by the Hon’ble Apex Court in the judgments of DTC v. Balwan Singh’s case (cited supra), State of Odisha v. Manju Naik’s case (cited supra) and Hon’ble High Court of Rajasthan in the judgment of Banwari Lal v. Union of India’s case (cited supra) and Hon’ble Delhi High Court in the judgment of Kuldip Singh v. Union of India (cited supra). Moreover, pension is a right and it is neither a bounty nor an ex gracia payment, but it is a payment of past service rendered and the same is not a matter of grace depending upon the sweet will of the employer as was held by the Hon’ble Apex Court in D.S. Nakara v. Union of India’s case (cited supra). Therefore, in view of the above facts and circumstances of the case, this Court is of the considered opinion that petitioner is entitled for pro rata/ proportionate pension, as such, the impugned proceedings is liable to be set aside.
In view of the foregoing reasons, this writ petition is allowed. Consequently, the impugned proceedings dated 12.10.2023 is hereby set aside. Respondents are directed to fix the proportionate pension of the petitioner depending upon the length of service and pay the same within a period of four (4) months from the date of receipt of a copy of this order.
As a sequel, miscellaneous applications, pending, if any, shall stand closed.