O VERGHESE Vs. UNION OF INDIA

JUDGEMENT

(1.) In the present petition the petitioner claims For a declaration that the service rendered by the petitioner in the Border Security Force (B.S.F.) for the period from 18.9.1973 to 31.3.1982 i.e. prior to acceptance of his resignation, be treated as qualifying service for the purpose of pensionary benefits and also for quashing of the order of respondent No.2 rejecting the aforesaid claim of the petitioner.

(2.) The petitioner Joined the B.S.F. as a Constable, on 18.9.73. The petitioner was appointed as Assistant Sub-Inspector (Clerk) after having qualified in a competitive test and was appointed as S.I.(Steno) through departmental test, on 1.7.79. On 21.8.82, the petitioner sent a letter to the Inspector General, B.S.F. stating therein that he had been thinking in terms of leaving the service for settling certain personal/domestic affairs. It was further stated in the said letter that, therefore, the said letter might be treated as his resignation letter requesting for acceptance of the said resignation from service on compassionate ground w.e.f. 31.8.82. In the said letter the subject of the letter was described as "resignation from service." The aforesaid letter was processed by the respondents and the same was accepted and the petitioner was released from service on 31.8.82. After expiry of some years, thereafter, the petitioner submitted a request to allow him to re-join duties. Accepting the request of the petitioner the petitioner, as a case of fresh appointment, was sent for fresh medical examination in which he was found fit and accordingly was re-enlisted in the B.S.F. w.e.f. 23.9.86. In the said order issued by the respondents on. 24.9.86 it was specifically and categorically mentioned that the petitioner is re-enlisted in the B.S.F. as S.I.(Steno) without benefit of his past service, in terms of Headquarters letter dt.18.9.86. The petitioner accepted the said appointment along with the terms and conditions of his re-enlistment and joined duties and has been working in the aforesaid capacity. However, as the petitioner was not granted the benefit of the past service for all purposes including for the purpose of pensioarny benefit, the petitioner submitted an application on 4.1.94 bringing to the notice of the respondents that while re-enlisting, the benefit of his past service had not been granted to him and in that view of the matter requested that his past service of 8 years 11 months and 12 days with the B.S.F. be counted for pension purpose only together with his present continuous service w.e.f. 23.9.86. The aforesaid prayer of the petitioner was considered by the competent authority and the same was rejected by order dt.24.11.94 wherein it was stated by the respondents that re-enlistment of the petitioner in B.S.F. was on the specific condition that he would not get the benefit of his past service and, therefore, no change in the appointment letter was possible at the belated stage. Being aggrieved by the aforesaid rejection, the petitioner has filed the present petition in this court.

(3.) Counsel appearing for the petitioner while supporting the contention in the writ petition, submitted that the petitioner had worked in the B.S.F. before submission of his resignation, for a period of 8 years 11 months and 12 days and the said period should be counted towards payment of pensionary benefit only. In support of the aforesaid contention, counsel relied upon the provisions of Rule 19 of the B.S.F.Rules. He also placed reliance on the decisions of the Supreme Court in SUSHIL KUMAR YADUNATH JHA VS. UNION OF INDIA AND ANOTHER reported in (1986) 3 SCC 325, U.P.AWAS EVAM VIKAS PARISHAD AND OTHERS VS. RAJENDRA BAHADUR SRIVASTAVA AND ANOTHER reported in 1995 Supp.(4) SCC 76, SECRETARY-CUM-CHIEF ENGINEER (CHANDIGARH) VS. HARI OM SHARMA AND OTHERS reported in (1998) 5 SCC 87.