Mahinder Narain. J. (Oral)

( 1 ) ONLY a short question is involved in this petition. We issue Rule D. B. . and proceed to decide this petition.

( 2 ) THE petitioner Kuldip Singh says that he has joined the Border Security Force on 4. 9. 1971 as a constable (Radio Mechanic ). On 4. 2. 1973 he was promoted as head constable. He says that due to domestic circumstances, he had to resign from the service in 1973.

( 3 ) THE copy of the resignation letter has neither been filed with the petition, nor has it been filed by the respondent in response to the show cause notice. In fact, the respondent says that the resignation letter which was submitted by the petitioner was destroyed in the year 1991.

( 4 ) CONSEQUENT upon the resignation, the same was accepted. The acceptance order has been produced as annexure 1 by the respondents. The said acceptance of the resignation reads as under :-

. BRO No. 1008

DATED: 24. 2. 1983.

( 5 ) THE question raised in this petition is whether the petitioner is entitled to pensionary benefits, or can he be deprived of the pensionary benefit in terms of the acceptance of the resignation. To determine this question, one has to keep in mind the provisions of certain rules. Rule 19 (1) of the Border Security Force Rules, 1969 reads as under :-

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:

( 6 ) 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

(II) make such reduction in the Pension or other retirement benefits of the officer if so eligible as that Government may consider to be just and proper in the circumstances.

( 7 ) READING of Rule 19 (1) along with its provisos indicates that it is open under this Rule to the Central Government to permit a member of the Border Security Force to resign, and while accepting the resignation, it is also open to the Ceniral Government to put certain conditions which are slated in the provisos. One of the proviso enables. cost of training to be recovered from the officer concerned. The other proviso enables the pension and other retirement benefits to be reduced by the Government, if the officer concerned is eligible to receive pension and other bencfits. The reduction which has to be ordered by the Government, has to he just and proper in the circumstances of the case concerned.

( 8 ) THE abovesaid second proviso to Rule 19 (b) which is a statutory rule, makes it clear that pension is payable even upon resignation. Normally upon resignation, pen sion would be payable according to rules. Apparently in the case of Border Security Force Personnel, pension is to be given to those persons who resign from the service. The limitation is that in the order accepting the resignation, the pension to which a person may be found to be entitled or eligible, may be reduced by the order accepting the resignation, however, the same cannot be totally extinguished.

( 9 ) IN the inslant case there is no order directing the petitioner to refund the cost of training. Therefore, the first proviso has no application in this case.

( 10 ) THE order accepting the resignation, however, says that the resignation is accepted "without pensionary benefits" being available to the petitioner. The words "without pensionary bencfits" would mean that no pension is payable to the pctitioner. This would be contrary to the provisions of Rule 19 of the Border Security Force Rules, which only postulates "reduction".

( 11 ) IT is well settled that there is no estoppel against the statute. Counsel for the respondent has not been able to bring to our notice any judgment which is to the effect th

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