Eligibility for pension upon resignation from Border Security Force is determined by qualifying service at the time of retirement as per C.C.S.(Pension) Rules, not R.19 of BSF Rules.

K.A. Abdul Gafoor, J.

The facts are not in dispute. They are in a narrow campass. They raise a substantial question of law.

2. The petitioner serving the Border Security Force resigned from service on completion of 10 years. That was under R.19 of the Border Security Force Rules, 1969. According to him, this was with the benefit of pension. But, he is not granted pension. He shall be granted pension. That is his case. R.19(1) is sufficient enough, according to the petitioner, to grant him pension. R.18(2) of the Central Civil Services (Pension) Rules is applicable to the members of Border Security Force as well. R.49(2)(b) of the C.C.S.(Pension) Rules make it clear that those who have put in ten years of service are also eligible for pension. Therefore, the persons who resign under R.19 on completion of ten years service are also eligible for pension, the petitioner submits. The petitioner relies on a single judge decision of this Court in Jose v. Border Security Force (1999 (3) KLT 904) and a Division Bench decision of this Court in W.A. No. 2648/1998 reported in Union of India v. Surendran Nair (1999 (2) KLT (SN) Case No. 3 at page No. 3). It has been held in Jose's case referred to above that,

"If the petitioners are allowed to resign with pensionary benefits under R.19 of the BSF Rules, then the petitioner's claim for pension must be worked out under R.49(2)(b) of the C.C.S.(Pension) Rules. Therefore, R.49(2)(b) of the C.C.S.(Pension) Rules cannot be narrowly interpreted so as to deny the pensionary benefits to the petitioners who were allowed to resign with pensionary benefits as per Ext. P1 orders".

It was in the above circumstances, pension was ordered to be paid to those who resign from the service on completion often years service, under R.19 of the B.S.F. Rules.

3. The case considered by the Division Bench has a different facet. There also, the incumbent resigned on completion of just less than 11 years. He was not granted pension. But, his case was reviewed and an order referred to as Ext. P1 in that judgment was issued granting him pension. Inspite of that, he was not paid the pension. Therefore, an interim order was passed directing payment in terms of the review order already passed by the Government. That was taken in Writ Appeal 2648 of 1998. The Original Petition and the Writ Appeal were heard together and disposed of on 4th March, 1999. It is stated in the judgment that "it is not in dispute that the resignation of the petitioner was accepted by the appellants-respondents and, therefore, he is entitled to draw full pension on account of the qualifying service rendered by him". Accordingly, pension granted as per the review order Ext. P1 referred to in that judgment was directed to be paid.

4. According to me, the ambit and intent of R.19 which is the trump card of the petitioner herein is not examined. The said rule reads as follows:

"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,

(1) 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.

(2) The Central Government may accept the resignation under sub-r.(1) with effect from such date as it may consider expedient.

Provided that it shall not be later than three months from the date of receipt of such resignation. (3) The Central Government may refuse to permit an officer to resign:

(a) if any emergency has been declared in the country either due to internal disturbances