Important Points:
• BSF Rules do not contain any rule relating to pension. Therefore, the provisions in CCS (Pension) Rules, 1972 would apply in respect of pension of BSF personnel in terms of Rule 182 of the BSF Rules- While the petitioner claims pension under Rule 49(2) of the CCS (Pension) Rules, the respondents limit it under Rule 40.
• R.49(2), though relates to those who did not have the qualifying service of the requisite number of years before they attained the age of superannuation, as the retirement of the petitioner was due to inefficiency, and not on account of misconduct or penalty, it cannot be said that the petitioner is entitled to pension only as compensation pension- As long as the retirement of the petitioner was not by way of penalty, it cannot be said that R.40 will govern the petitioner.

The petitioner, who was retired under R.26 of the Border Security Force (BSF) Rules claims pension on par with those who retired from service in accordance with R.49(2) of Central Civil Service (Pension) Rules.

2. The petitioner joined the BSF on 27.12.2000. Ext.P2 notice was issued to him on 04.06.2012 proposing his retirement on the ground that he was awarded 8 punishments during the 13 years of his service between 2001 and 2011. He was informed that in view of his consistent poor performance he was unsuitable for further retention and therefore it was proposed to retire him from service under R.26 of BSF Rules, 1969. Petitioner was required to furnish objection if any against the proposal within 15 days. As his explanation was not found satisfactory, Ext.P3 order was issued directing him to retire from service from 10.09.2013. In this Writ Petition, the petitioner seeks for a direction to the respondents to grant pension in tune with R.49(2) of CCS (Pension) Rules, on the ground that he has completed qualifying service of more than 10 years as on the date of his retirement.

3. The respondents filed a statement on 11.8.2014, an additional statement on 5.9.2018 and thereafter a counter affidavit. Respondents stated that compensation pension at the rate of 2/3rd of pension was sanctioned to the petitioner under R.40(1) of CCS (Pension) Rules as per Ext.P7 order dated 07.08.2014 produced along with I.A.No.6630/2015. He was granted compensation pension at the rate of Rs.3,500/- per month; in addition to this he was paid retirement gratuity and arrears of pension on 21.3.2015. The pension commutation amount of a sum of Rs.1,64,482/- was also sanctioned to him.

4. The respondents stated that the petitioner was awarded 9 punishments under the BSF Act and Rules within a short span of 12 years. In addition to that, he had also overstayed from leave without prior permission of superiors. Despite the ample opportunities given to him to improve, there was no progress. On account of his consistently poor performance he was retired from service under R.26 of the BSF Rules after giving him a show cause notice. It is stated that CCS Pension Rules provides for pension to a Government servant only on completion of 20 years of qualifying service; since the petitioner had not completed 20 years of qualifying service his pension was liable to be computed only under R.40(1) of CCS Pension Rules. In the Ministry of Finance letter dated 3.6.1957 of the Government of India, the guiding principles in the matter of reduction of pensionary benefits are given. R.40 prescribes the limits of retirement benefits admissible to an officer on whom a penalty of compulsory retirement is imposed. This penalty is introduced in cases where continuance of Government Servant is considered to be undesirable. Such persons should ordinarily be granted the full compensation pension and retirement gratuity as on the date of the compulsory retirement. However, it also provided that the competent authority which imposes the penalty of compulsory retirement would be free to make such reductions in the pensionary benefits within the limits prescribed. Reduction may be made in the retirement gratuity or in the pension or in both. In the case of the petitioner, pension was computed and disbursed in accordance with the guiding R.40(1) of CCS Pension Rules read with the guiding principles under the Government of India letter and he was granted pension at the rate of 2/3rd under R.40(1) of CCS Pension Rules.

5. In the counter affidavit filed by respondents 1 to 4, they have explained the 11 punishments awarded to the petitioner during the period between 13.08.2001, the date of his joining the BSF and his retirement in 2013. Out of the eleven, two were subsequently regularised granting earned leave. All other seven out of 9 punishments were imprisonments for 28 days, 21 days, 15 days, 14 days etc., and in one case 7 days’ pack drill. Since there was no improvement in his dis