ARBIND MAHARAJ Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 27.10.1998 (Annexure-3), passed by the Headquarters 107 Battalion Border Security Force (hereinafter referred to as BSF), whereby its earlier order dated 4.7.1997 (Annexure-3) has in substance and in effect been rescinded, and acceptance of the petitioner's resignation notice dated 23.6.1997 on account of domestic problems has been withdrawn with consequential directions.

(2.) THE petitioner was appointed on 6.5.1985 as Lance Naik, 107 Battalion, BSF. He served for more than 12 years, where after he submitted letter of resignation dated 23.6.1997 (Annexure-1), which was accepted by BSF by its order dated 4.7.1997 (Annexure-2), in terms of Rule 19(1) of the Border Security Force Rules, 1969 (hereinafter referred to as BSF Rules)"... due to some domestic problems at his home, with full pensionary benefits as per Rules...." His name was struck off the strength of the Force with effect from 13.9.1997 (A.N.). THE BSF thereafter issued order dated 27.10.1998 (Annexure-3), whereby the aforesaid order dated 4.7.1997 (Annexure-2) was in substance and effect rescinded on the ground that all those who had resigned under Rule 19 of the BSF Rules with less than 20 years of service be taken back and the period of absence be regularised as per Rules. THE petitioner was directed to join the duty forthwith, shall have to refund GPF and other dues paid to him, and the petitioner with all such persons shall retain their seniority.

(3.) IT is manifest from a plain reading of this provision that the same is by way of exception to the general provision with respect to grant of pension provided in the Pension Rules. IT is only in case of existence of special circumstances of a case that of a case that the Central Government may permit any officer of the Force to resign from the BSF with pension before attainment of the age of retirement or before putting in the specified number of years of service as per the rules. In case the Central Government is satisfied about the existence of special circumstances of a particular case, then either of the two provisos appended to Rule 19(1) may be pressed into service. The scale for fixation of pension is to be found in Rule 49 of the Pension Rules. Thereafter, the power under proviso (b) to Rule 19(1) of the BSF Rules will have to be read with Rule 49 of the Pension Rules. IT is relevant to state that Rules 29, 36, 37, 38, 39 and 40 of the Pension Rules dealing with the grant of pension in different kinds of situations need not detain us because it is the common case of the parties that the same are wholly inapplicable to the present case. I must notice the provisions of Rules 3(q), 26 and 48-A of the Pension Rules which are relevant in the present context and are reproduced here in below for the facility of quick reference:- 3... (q)'qualifying service1 means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these Rules. 26. Forfeiture of service on resignation. - (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service. (2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. (3) Interruption in service in a case falling under Sub-rule (2), due to the two appointments being at different stations not exceeding the joining time permissible under the Rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him. (4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely: (i) that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as result of a material change in the circumstances which originally compelled him to tender the resignation; (ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper. (iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days; (iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available. (5). Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government. (6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualify service. 48. Retirement on completion of 30 years qualifying service. - (1) At any time after a Government servant has completed thirty years qualifying service: (a) he may retire from service, or (b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension. Provided that: (a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and (b) the appointing authority may also give a notice in writing to a Government servant to least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice. Rule 48-A (1) and (2) of the tension Rules are also relevant in the present context and are set out here in below for the facility of quick reference: 48-A. Retirement on completion of 20 years' qualifying service. - (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. (2) The notice of voluntary retirement given under Sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.