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TMI Blog2001 (3) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 6166 of 1991 are that-respondent filed Civil Writ Petition No. 761 of 1998 before the High Court of Himachal Pradesh praying for writ directing the appellants to forthwith release the pension due to the respondent w.e.f. 1st March, 1994 and for release of past arrears of pension with interest. It is the case of the respondent that he joined Board Security Force (hereinafter referred to as 'BSF') as a constable on 15.1.1981 and continued to serve till he submitted his resignation on 11.2.1994 under Rule 19 of the BSF Rules. 4. Thereafter the Government of India Ministry of Home Affairs issued G.O. dated 27th December, 1995 conveying its decision to the Directorate General, B.S.F.(Personnel) in the matter of admissibility of pensionary benefits on acceptance of resignation under Rule 19 of the Rules. The G.O. was passed to finalise the claims made by number of Ex. BSF personnel for getting the pensionary benefits on acceptance of their resignation under Rule 19. On the basis of the aforesaid G.O., respondent represented to the Inspector General, BSF on 2nd April, 1996 for grant of pensionary benefits. Finally, after receipt of legal notice under Section 80 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The learned Additional Solicitor General Mr. Rohtagi appearing for the Union of India submitted that the impugned orders passed by the High Courts are erroneous as the same misinterpret Rule 19 of the BSF Rules. It is his contention that neither the Act not the rules make provision for grant of pension. The proviso the Rule 19 empowers the Government to impose two different penalties if it chooses to permit resignation. The two penalties provided in sub-clause are: (i) the officer is required to refund to the Government such amount as would constitute the cost of training given to that officer; or (ii) it may such reduction in the pension or other retirement benefits of the officer if so eligible as the Government may consider to be just and proper in the circumstances. The grant of pension to the member of the BSF is governed by the CCS (Pension) Rules. It is his submission that in case resignation of member of the Force is accepted it would not mean that he has retired from service. Resignation would mean voluntary act of quitting the job/service and implies that employee though fit in all respects decides to quit and leave the service. As against this, retirement implies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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:- (a) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer; or (b) 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-rule (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) it an emergency has been declared in the country either due to internal disturbances or external aggression; or (b) if it considers it to be inexpedient so to do in the interests of the discipline of the Force; or (c) it the officer has specifically undertaken to serve for a specific period and such period has been not expired. (4) The provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of qualifying service and also retires after completing 30/33 years of qualifying service, invalid pension or compensate pension or on compassionate grounds etc. Chapter V deals with grant of pensions and the conditions for such grants. As per Rule 35 superannuation pension is to be granted to government servant who retires on his attaining the age of compulsory retirement. Retiring pension is further given a government servant who retires or is retired in advance of age of compulsory retirement in accordance with the provisions of Rule 48 after completing 30 years of qualifying service or Rule 48-A of the CCS (Pension) Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations. Rule 48-A provides for voluntary retirement after completion of 20 years qualifying service after giving three months notice in writing to the appointing authority and if such notice is accepted he would get retiring pension. Thereafter, Rule 49 provides for method of calculation of amount of pension to such government servant. Relevant parts of the CCS (Pension) Rules for grant of pension are as under:- 35. Superannuation Pension A superannuation pension shall be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess than Rupees three hundred and seventy-five per mensem. (c) Notwithstanding anything contained in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub rule (2) of Rule 54. (3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated as a completed one half-year and reckoned as qualifying service. (4).. .. 14. Aforesaid procedure under Rule 49, is for calculating and quantifying the amount of pension which a government servant is entitled to if he retires on superannuation or if he retires or is retired after completion of 30 or 33 years of service or voluntarily retires after completing 20 of qualifying service and provides:- (a) If the qualifying service is less than 10 years, the government servant would not be entitled to get pension but he entitled to receive the amount of service gratuity. (b) If he completed qualifying service of not less than 33 years, the amount of pension is to be calculated at 50% of the average emoluments subject to the maximum provided therein. (c) In case of government servant retiring before c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be less than Rs.375/- per months. This would only mean that in case where government servant retires on superannuation i.e. the age of compulsory retirement as per service conditions or in accordance with the CCS (Pension) Rules, after completing 10 years of qualifying service, he would get pension which is to be calculated and quantified as provided under clause (2) of Rule 49. This clause would cover cases of retirement under Rules 35 and 36 that is, voluntary retirement after 20 years of qualifying service, compulsory retirement after prescribed age and such other cases as provided under the Rules. However, this has nothing to do with the quitting of service after tendering resignation. It is also to be stated that Rule 26 of CCS (Pension) Rules specifically provides that resignation from a service or post entails forfeiture of past service unless resignation is submitted to take up, with proper permission, another appointment under the government where service qualifies. Hence, on the basis of Rule 49 member of BSF who has resigned from his post after completing more than 10 years of qualifying service but less than 20 years would not be eligible to get pensionary benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IG (HQ) New Delhi All Trg. Institutions TSU/Cenwosto/CSMT/Singal Regt./ HQ Arty/SIW/SRO All Bns BSF All Arty Regis BSF Sub: GRANT OF PENSIONARY BENEFITS ON RESIGNATION UNDER RULE 19 OF THE BSF RULES, 1969. Attention is invited to this HQ letter No.F35036/3/78- Staff/BSF/dated 4th November. 1981 conveying the decision of the Ministry of Home Affairs in the matter of admissibility of pensionary benefits on acceptance of resignation under Rule 19 of the BSF Rules, 1969. 2. In this connection the undersigned is directed to inform that the matter again referred to the Government to review their decision in order to give pensionary benefit to members of the BSF on tendering resignation under Rule 19 of the BSF Rules, 1969. The Ministry of Home Affairs in consultation with the Department of Pension @ Pensioners Welfare has agreed to our proposal and decided not to amend rule 19 of the BSF Rules, 1969 till such time separate Pension Rules for the BSF Personnel are framed. The Government has also agreed to our 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther eligibility conditions. Paragraph only reiterates Rule 19. It also clarifies that authority conditions. Paragraph only reiterates Rule 19. It also empowered to make reduction in pension of the member of the BSF is eligible to get such pension. Paragraph 5 provides that in future the competent authority who accepts the resignation would specify in order the reduction to be made in the pension if any and if no such reduction is specified in the order, it would imply that no reduction in the pension has been made. Under paragraph 6 directions are issued for pending cases where resignation was accepted but pensionary benefits were not allowed and provide that necessary orders should be passed within shortest possible time. Reading the aforesaid G.O. as a whole, it no where reveals Government's intention to confer any additional pensionary benefit to the members of the BSF who retired before completing the requisite qualifying service as provided under the CCS (Pension) Rules. It neither supplements nor substitutes the statutory rules. The G.O. read with Rule 19 of the BSF Rules would only mean that in case of resignation and its acceptance by the competent authorities, the mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not providing for grant of pensionary benefits it is for the authority to decide and frame appropriate rules but Court cannot direct payment of pension on the ground of so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits. As a normal rule, pensionary benefits are granted to a government servant who is required to retire on his attaining the age of compulsory retirement expect in those cases where there are special provisions. 21. In the result, there is no substance in the contention of the learned counsel for respondents that on the basis of Rule 49 of the CCS (Pension) Rules or on the basis of G.O., the respondents who have retired after completing qualifying service of 10 years but before completing qualifying service of 20 years by voluntary retirement, are entitled to get pensionary benefits. 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, as may be necessary under the Rules, to be eligible for retirement are not entitled to get any pension under any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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