KARAM BIR SIMGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THERE are seventy (70) Petitioners before us all of whom prayed for the issuance of a writ of mandamus and further appropriate directions to the Respondents to allow pensionary benefits to them with all consequential benefits including the payment of arrears for the period when the benefits were withheld and further to allow the Petitioners to rejoin/be re-inducted to their respective services. It is the latter prayer which has been substantially pressed before us. The controversy, however, is no longer res integra in view of the decision of the Supreme Court in Union of India v. Rakesh Kumar, (2001) 4 SCC 309 and Raj Kumar v. Union of India, (2006) 1 SCC 737.

(2.) IN Rakesh Kumar the Petitioner had joined the Border Service Force as a constable on 15. 1. 1981 and continued to serve till he submitted his resignation on 11. 2. 1994, after rendering 12 years and 8 months of service. His resignation was accepted on 1. 3. 1994 under Rule 19 of the Border security Force Rules, 1969 (hereinafter referred to as 'the BSF Rules' ). By order dated 3. 5. 1997 Rakesh Kumar was allowed full pensionary benefits as admissible under the Rules consequent upon his resignation from the bsf. As the pension was not released the High Court of Himachal Pradesh was approached which directed the Competent Authority to quantify pensionary benefit of Rakesh Kumar as other similarly situated persons from the date of- their retirement. Their Lordships noted that the petitioner (s) in that batch of petitions had served for more than 10 years but were not eligible or entitled to get pensionary benefits and accordingly the high Court's directions tantamounted to perpetuating illegality. Their lordships further observed that payment of pension neither attracted article 14, nor estopped the Department from discontinuing payment and from seeking recovery. Since the Petitioner had not fulfilled the parameters of "qualifying service" as envisaged under the CCS (Pension) Rules it was held that the Respondents who were permitted to resign from service under rule 19 of the BSF Rules before the attainment of age of retirement or before putting such number of years of service as may be necessary under the Rules to gain eligibility for retirement, would not be entitled to get pension. It was further enunciated that the Government cannot amend or substitute statutory rules by administrative instructions, and only if the Rules are silent on any particular point could the Government fill up the gaps provided there was no inconsistency with the extant Rules. All the Petitioners before us have also not served the minimum period envisaged under CCS (Pension)Rules as would render them eligible for retirement with pensionary benefits.

(3.) IN Raj Kumar their Lordships noted that the GO/circular dated 27. 12. 1995 notifying that the Government had agreed with their views that