Dismissal from service does not negate prior service and pension eligibility unless explicitly stated in dismissal order; effectiveness of CCS Rules guide pension rights.

Sushrut Arvind Dharmadhikari, J.

The present intra-Court Appeal under Section 5 of the Kerala High Court Act 1958 assails the judgment dated 11.08.2023 passed in W.P.(C) No.28475/2014 whereby the writ petition filed by the respondent herein was allowed directing the appellants herein to assess the pension of the respondent in terms of the provisions of Rule 49(2) of the Central Civil Services (Pension) Rules 1972 (for short, 'CCS Rules').

2. The brief facts of the case are that the respondent had joined the Border Security Force on 19.11.1970 and was discharged on 19.05.1981 after having rendered ten years two months and twenty- three days of qualifying service, excluding 95 days of extraordinary leave as per the Discharge Certificate [Ext.P1]. From 15.12.1980 to 12.02.1981, the respondent could not rejoin duty due to domestic problems and had applied for discharge. But, this period was taken as absence, and the discharge was on account of dismissal from the service. The dismissal order [Ext.R1(c)] dated 19.05.1981 did not disclose whether he was denied the pension or otherwise. Being aggrieved, the respondent filed W.P.(C) No.28475/2014 with the prayer to quash Exts.P5, P6, P7 and P9 and direct the appellants to pay all eligible retirement benefits, etc.

3. The learned Single Judge, referring to the provisions of Rule

182 of the Border Security Force Rules 1969 (for short, 'BSF Rules') and Rules 24 and 49 of the CCS Rules concluded that in the absence of any such condition in the dismissal order [Ext.R1(c)] dated 19.05.1981 with regard to payment of pension or otherwise, the provisions of Rule 182 of the BSF Rules would continue to apply.

3.1 The learned Single Judge further held that Rule 24 of the CCS Rules, as relied upon by the appellants, would not support the impugned orders, since the dismissal was effected under the BSF Rules and not under the CCS Rules. The benefit of the CCS Rules will only be taken by taking the aid of Rule 182 transitory provisions in the BSF Rules. There is a separate chart provided for payment of pension to the employees who have rendered more than ten years and less than ten years of service. Since the petitioner admittedly has rendered more than ten years of service, the learned Single Judge came to the conclusion that the pension should be admissible to him under Rule

49(2) of the CCS Rules and set aside the impugned orders.

4. The learned Counsel for the appellant/Union of India contended that the learned Single Judge failed to consider the fact that the respondent had not completed the mandatory service of twenty years to secure a pension as per the CCS Rules. The respondent was tried in a Court of Inquiry for overstaying leave without sufficient cause, and after following due process and issuing a show-cause notice, the respondent was dismissed from service in terms of Rule 22 of the BSF Rules. A person who has completed 20 years of qualifying service is entitled to pensionary benefits, whereas the respondent was dismissed from service and that too after rendering only ten years, two months and twenty-three days of service. Hence, he is not entitled to pensionary benefits. As per Rule 24 of the CCS Rules, a government servant who is dismissed or removed from service or post entails forfeiture of his past service. Therefore, he is not entitled to the pensionary benefits.

4.1 Furthermore, the learned Counsel submits that the learned Single Judge ought not have entertained the writ petition, given the gross delay of 33 years, for which the respondent has provided no justification.

4.2 In view of the aforesaid, the learned Single Judge has erred in allowing the writ petition. Therefore, the judgment of the learned Single Judge is to be set aside and the appeal be