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2006 (1) TMI 637 - SUPREME COURT

2006 (1) TMI 637 - SUPREME COURT - 2006 AIR 938, 2006 (1) SCR 169, 2006 (1) SCC 737, 2006 (1) JT 49, 2006 (1) SCALE 67 - Writ Petition (civil) 569 of 2001 - Dated:- 4-1-2006 - B.N. Srikrishna & C.K. Thakker, JJ. JUDGMENT: SRIKRISHNA, J. The writ petitions in this group arise from the same set of facts and seek the same relief. They can conveniently be disposed of by a common judgment. For the purpose of facts, it would be sufficient to refer to the facts narrated in Writ Petition (C) No. 569 .....

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h the Department of Pension and Pensioners' Welfare issued a G.O./Circular notifying that the Government had agreed with their views that "a member of the force is entitled to get pensionary benefits on resignation under Rule 19 of the said Rules provided he has put in requisite number of years of service and fulfills all other eligibility conditions." (The Rules referred to are the Border Security Force Rules, 1969, hereinafter referred to as "the BSF Rules") This G.O./C .....

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orce, if so eligible,..." (emphasis added). The circular also advised the competent authority that in future while accepting the resignation of a member of the Force, the order should specify the reduction to be made in the pension, if any, as per the provisions contained in proviso (b) to Rule 19(1) of the BSF Rules, and further that failure to do so would imply that there was no reduction in the pension made. The G.O./Circular dated 27.12.1995 was interpreted by the authorities to mean th .....

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lement to pension. In response to the said circular, about 2209 personnel of the Force resigned under Rule 19 of the BSF Rules and their resignations were accepted. In the case of about 447 personnel of the Force, the pension amounts were released and they started drawing pensions. The cases of about 1762 personnel of the Force were still pending sanction of the pension amounts. In the meanwhile, it appears that the authority realised its mistake and took rectification action by a letter dated 1 .....

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this HQ forthwith to continue in service. 4. This matter may be treated as urgent." Further, on 17.10.1998 the Deputy Director (Personnel) issued a circular conveying that those personnel whose resignations had been accepted after the circular dated 27.12.1995 under Rule 19 of the BSF Rules under mistaken impression of their entitlement to pensionary benefits but who had not yet been granted pension, should be called back to rejoin immediately. It was conveyed that in their cases the period .....

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hat if a member of the Force was not interested to rejoin the Force, he would not be entitled to any pension. Initially the first cut-off date for rejoining was 30.4.1999, which was later extended up to 30.6.1999 and, finally, up to 31.8.1999. Pursuant to the aforesaid circular of 17.10.1998, out of 1762 personnel recalled, 1065 personnel reported for work and they were allowed to rejoin the service subject to the conditions stipulated in the said circular. About 697 personnel, however, did not .....

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en permitted to resign under Rule 19 of the BSF Rules prior to the circular dated 27.12.1995, who did not have the qualifying service for pension, sought pensionary benefits by placing reliance on the circular dated 27.12.1995. As the authorities did not concede their right, they moved the High Court for relief. Three such cases came up to this Court and were decided by this Court in its judgment in Union of India and Ors. v. Rakesh Kumar and Ors., in Civil Appeal No. 6166/1999 along with Civil .....

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of the Central Civil Services (Pension) Rules, 1972. After a detailed analysis of the provisions of the BSF Act and the BSF Rules, the relevant provisions of the CCS (Pension) Rules, 1972 and the provisions of the G.O./Circular dated 27.12.1995 this Court held, (vide Paragraph 19) thus: "Reading the aforesaid G.O. as a whole, it nowhere reveals Government's intention to confer any additional pensionary benefit to the members of the BSF who retired before completing the requisite qualify .....

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." (emphasis added) Further, this Court observed, vide Paragraphs 20 and 21, thus: "No person can claim any right on the basis of decision which is de hors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship." .... "Respondents who were permitted to resign from service under Rule 19 of the BSF Rules before the attainment of the age of retirement or before putting such number of years of service, .....

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the light of the law laid down by this Court in Rakesh Kumar (supra) that we will have to decide if the writ petitioners before us are entitled to any relief. That the personnel of the Force who otherwise were not eligible to pensionary benefits under the CCS (Pension) Rules, 1972 are not conferred with this benefit as a result of the misreading of Rule 19(1) of the BSF Rules as put forward in the G.O./Circular dated 27.12.1995 is beyond cavil from the judgment of this Court in Rakesh Kumar (sup .....

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ber of personnel were prompted to resign from service in the hope of getting pensionary benefits; that some of them had actually been sanctioned pensionary benefits, and were in receipt thereof at the time when the judgment of this Court in Rakesh Kumar (supra) was pronounced. It is also contended on behalf of the petitioners that in the cases of the BSF personnel who had resigned before the circular dated 27.12.1995, some as early as in 1980 and had been sanctioned pension by the authorities un .....

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ar dated 17.10.1998, in the cases where pension had been sanctioned, they were prevented from coming back to duty as a result of individual letters dated 31.10.1998 by which it was stated that personnel already in receipt of pension would not be re-inducted into service. However, even in such cases the pension has been stopped pursuant to the judgment in Rakesh Kumar (supra). Counsel urged that this has resulted in double jeopardy in such cases, as the personnel concerned lost their service as w .....

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d only in the year 2001, almost 3 years later. Such of the BSF personnel who had resigned in the hope of getting pensionary benefits, although not eligible for pension under the CCS Pension Rules 1972, had been given the opportunity of getting back into service by virtue of the circular dated 17.10.1998. Despite the deadline for reporting being extended from 30.04.1999 to 31.08.1999, about 697 personnel had failed to avail of the opportunity of returning to service. There cannot be any equity in .....

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in cases where pension is not payable under the CCS Rules 1972. Thus there is no question of this Court directing payment of pension to persons who are otherwise ineligible under the CCS Pension Rules 1972. The contention raised in all these petitions on the question of law must necessarily fail in the light of the clear pronouncement in Rakesh Kumar (supra). Learned counsel referred to Union of India and Ors. v. Lt. Col. P.S. Bhargava1 and Praduman Kumar Jain v. Union of India and Anr.2. After .....

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ular: Personnel who resigned pursuant to the circular dated 27.12.1995. These persons can be further divided into two sub-categories:- (i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letters dated 31.10.1998 not to report for re- induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar (supra). These persons can be further divided into two sub- categories:- (a) those who are in a position to be re-inducted into service even now ( .....

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y (B)(ii) i.e. those persons who had retired subsequent to 1996 pursuant to the circular dated 27.10.1995 and had not been sanctioned pension, but who have been directed to report for re-induction in service shall necessarily have to forfeit their pension, if they have not reported for service by virtue of the circular dated 17.10.1998. If however, they have reported for service then there is no question of any relief in their case. 2. In the case of persons falling in category (B)(i), they shal .....

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