IMPORTANT POINT
Unless conditions of Pension Rules, including qualifying service, are fulfilled, employees do not become entitled to pensionary benefits.

JUDGMENT

R.M. Lodha, J.-Delay condoned.

2. We have heard Mr. Tara Chandra Sharma, learned counsel for the appellants, and Mr. M.P. Vinod, learned counsel for the respondents.

3. The respondents were the original writ petitioners before the High Court. They were constables in the Border Security Force (BSF). On completion of 10 years service, they tendered resignation. Their resignation was accepted by the Commandant 48 BN BSF. The order accepting resignation provided that they would be entitled to pensionary benefits at their own request on extreme compassionate grounds. Later on, it was found that the pensionary benefits were not admissible to them and few others whose resignation was accepted under Rule 19 of the Border Security Force Rules, 1969 (for short, ‘BSF Rules’). Accordingly, on October 20, 1998, a letter was sent intimating them that no pensionary benefits were admissible to those who have proceeded on resignation under Rule 19 of the BSF Rules. However, their case for reinstatement in BSF would be considered subject to refund of all payment made to them from the Government such as GPF, Gratuity, CGEGIS, etc. on their resignation. The respondents challenged the above communication by filing two separate Writ Petitions.

4. The writ petitions were contested by the present appellants (respondents therein). Their stand in the High Court was that the writ petitioners were governed by the Central Civil Services (Pension) Rules, 1972 (for short, ‘CCS (Pension) Rules’) and as per these rules the minimum qualifying service for pension is 20 years and, therefore, they were not entitled to any pension.

5. The Single Judge of the High Court referred to Rules 19 and 182 of the BSF Rules and relevant provisions of CCS (Pension) Rules, particularly Rules 26, 48-A and 49(2)(b). The Single Judge held that when the petitioners (therein) were allowed to resign with pensionary benefits under Rule 19 of the BSF Rules, then their claim for pension must be worked out under Rule 49(2)(b) of the CCS (Pension) Rules. Accordingly, the Single Judge, by his judgment dated September 29, 1999, allowed the writ petitions and directed the present appellants to grant pension to the petitioner (respondents herein) in accordance with Rule 49(2)(b) of the CCS (Pension) Rules.

6. Against the order of the Single Judge, the present appellants preferred Writ Appeals. The Division Bench of the Kerala High Court upheld the decision of the Single Judge and dismissed the Writ Appeals vide judgment dated August 25, 2000. While doing so, the Division Bench referred to the decision of the Himachal Pradesh High Court in Ex-Naik Rakesh Kumar Vs. Union of India & Others – C.W.P. No. 761 of 1998. It is from this order of the Division Bench that the present Appeals, by special leave, have arisen.

7. The judgment of the Himachal High Court in Ex-Naik Rakesh Kumar Vs. Union of India & Others was challenged by the Union of India before this Court in the case of Union of India and Others Vs. Rakesh Kumar,1 (2001) 4 SCC 309. The question involved therein was - Whether members of BSF who have resigned their posts after serving for 10 years or more years but less than 20 years are entitled to pension/pensionary benefits under relevant provisions of the Border Security Force Act, 1968 (for short, ‘BSF Act’) and the BSF Rules or the CCS (Pension) Rules.

8. This Court referred to Section 8 of the BSF Act and Rule 19 of the BSF Rules and the provisions of the CCS (Pension) Rules, particularly Rules 35, 36, 48, 48-A and 49. G.O. dated December 27, 1995 issued by the Central Government was also referred to. After quoting G.O. dated December 27, 1995, this Court in para 20 of the report observed as follows :-

“20. The aforesaid GO makes it clear that there was a demand for grant of pensionary benefit on acceptance of the resignation under Rule 19 and that demand was accepted by the Government. Para 2 of the GO makes it clear that the Government has agreed that a member of