Raj Kumar vs Union of India - 2006 Supreme(SC) 10

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 10

2006(1) Supreme 159
Supreme Court of India
(Under Article 32 of the Constitution of India)
B.N. Srikrishna and C.K. Thakker, JJ.
Raj Kumar & Ors. —Appellants
versus
Union of India and Anr. —Respondents
Writ Petition (Civil) No. 569 of 2001
With
W.P. (C) Nos. 87/2003, 235/2003, 244/2003, 211/2003, 699/2004, 8/2005, 32/2005, 411/2004, 420/2004 and 473/2004
Decided on 4-1-2006.
Counsel for the Parties :
For the Appearing Parties : A. Sharan, ASG, K. Ramamoorthi, N.N. Goswami, Dr. Shyamlha Pappur, Sr. Advocates, O.P. Khadaria, Sarwa Mitter, Amit Gupta, Mrs. Santosh Gupta, M/s Mitter and Mitter Co., Javed Mahmud Rao, C.S.N. Mohan Rao, S.N. Bhat, N.P.S. Panwar, D.P. Chaturvedi, Rameshwar Prasad Goyal, B.K. Choudhary, E.C. Vidya Sagar, Subramonium Prasad, Mrs. Indira Sawhney, Hemant Sharma, Ms. Sushma Suri, Amit Anand Tiwari, Deepak Khadaria, A.V. Rangam, Buddy A. Ranjanadhan, A. Ranganadhan, Rajesh Srivastava, Mohan Pandey, R. Krishnamoorthi, C.S.N. Mohan Rao Advocates.

Headnote:Service Law—Border Security Force Act, 1968—Border Security Force Rules, 1969—Rule 19(1)—CCS (Pension) Rules 1972—Pension—Confusion with regard to interpretation of Rule 19 of BSF Rules—Controversy with regard to entitlement to pension of BSF personnel resigning under Rule 19 of BSF Rules before completion of minimum length of qualifying service for eligibility for grant of pensionary benefits—G.O./Circular notifying that a member of the force is entitled to get pensionary benefits on resignation under Rule 19 of the Rules provided he has put in requisite number of years of service and fulfills all other eligibility conditions—In response to the said circular, about 2209 personnel of the force resigned under Rule 19 of BSF Rules—447 personnel started drawing pensions—Cases of about 1762 personnel of the Force were still pending sanction of pension amounts when authorities took rectification action—Order for re-induction of those who had not yet been granted pension—1065 personnel reported for work and they were allowed to rejoin the service—About 697 personnel, however, did not rejoin the service—Pensionary benefits payable to them were stopped—Directions made by the Supreme Court in exercise of powers under Article 142 of the Constitution—Constitution of India—Article 142.
       Held : There is no doubt that the position in law is that declared in Rakesh Kumar (supra) viz. that Rule 19 of the BSF Rules does not grant any right to pension in cases where pension is not payable under the CCS Rules 1972. Thus there is no question of this Court directing payment of pension to persons who are otherwise ineligible under the CCS Pension Rules 1972. The contention raised in all these petitions on the question of law must necessarily fail in the light of the clear pronouncement in Rakesh Kumar (supra). (Para 14)
       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 letters dated 31.10.1998 not to report for re-induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar (supra). These persons can be further divided into two sub-categories:-
       (a) those who are in a position to be re-inducted into service even now
       (b) those who cannot be re-inducted 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 re-induction in to service or to forfeit pension benefits by virtue of the circular dated 17.10.1998 and the individual letters.
       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 re-induction 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 re-induction into service, and those falling in category (B)(i)(a) shall be so re-inducted, subject to the conditions stipulated in circular dated 17.10.1998 and on condition that they shall refund the GPF and pension amounts drawn by them till re-induction. The authorities shall indicate the deadline by which such persons shall offer themselves for re-induction.
       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 re-inducted 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 (supra). 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 (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 shall their pension be stopped now.
       We have made the aforesaid directions in exercise of our powers under Article 142 of the Constitution in order to do complete justice to a section of the personnel who would otherwise be placed in an inequitable situation for which the authorities are also partly to blame. It is open to this Court to mould the relief by safeguarding the interest of the parties even while declaring the law. The paramount consideration in such cases should be to ensure that there is no injustice caused. (Paras 16 to 18)

JUDGMENT

Srikrishna, J.—The writ petitions in this group arise from the same set of facts and seek the same relief. They can conveniently be disposed of by a common judgment.

2. For the purpose of facts, it would be sufficient to refer to the facts narrated in Writ Petition (C) No. 569/2001. The petitioners were holding different posts under the Border Security Force (hereinafter referred to as "the force"), constituted under The Border Security Force Act, 1968 (hereinafter) referred to as "the BSF Act"). The First Respondent is the Union of India in the Ministry of Home Affairs and the Second Respondent is the Director General of the Border Security Force.

3. On 27.12.1995 the Second Respondent with the approval of the First Respondent and in consultation with the Department of Pension and Pensioners’ Welfare issued a G.O./Circular notifying that the Government had agreed with their views 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 fulfills all other eligibility conditions". (The Rules referred to are the Border Security Force Rules, 1969,) hereinafter referred to as "the BSF Rules") This G.O./Circular provided that the competent authority may, "having regard to the 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 circular empowered the competent authority granting such permission "to make such reductions in the pension or other retirement benefits of a member of the Force, if so eligible,..." (emphasis added). The circular also advised the competent authority that in future while accepting the resignation of a member of the Force, the order should specify the reduction to be made in the pension, if any, as per the provisions contained in proviso (b) to Rule 19(1) of the BSF Rules, and further that failure to do so would imply that there was no reduction in the pension made.

4. The G.O./Circular dated 27.12.1995 was interpreted by the authorities to mean that any member of the Force could resign with the permission of the competent authority, even before completing the qualifying service for pension and would be eligible for pension under Rule 19(1) of the BSF Rules. This circular appears to have been issued on the basis of some judgments of the High Courts, and the clarifications issued by the Department of Pension and Pensioners’ Welfare, Government of India under the mistaken impression that Rule 19 of the BSF Rules was concerned with entitlement to pension. In response to the said circular, about 2209 personnel of the Force resigned under Rule 19 of the BSF Rules and their resignations were accepted. In the case of about 447 personnel of the Force, the pension amounts were released and they started drawing pensions. The cases of about 1762 personnel of the Force were still pending sanction of the pension amounts.

5. In the meanwhile, it appears that the authority realised its mistake and took rectification action by a letter dated 15.01.1998 conveying the decision of the Director General of the Force, as follows :

"It is to inform you that DG BSF after careful consideration has now decided that all personnel who resigned under Rule 19 of the BSF Rules during 1996, 1997, 1998 with less than 20 years service under mistaken impression with pensionary benefits and not granted pension, to be taken back immediately.

2. The amount of GPF and other dues paid to you are required to be refunded.

3. You are directed to report to this HQ forthwith to continue in service.

4. This matter may be treated as urgent."

6. Further, on 17.10.1998 the Deputy Director (Personnel) issued a circular conveying that those personnel whose resignations had been accepted after the circular dated 27.12.1995 under Rule 19 of the

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2006 Supreme(SC) 10

Cases Referred (5)