VYAS, J. - (1.) IN this case, the petitioner has prayed for direction to the respondents to grant pension w. e. f. 1. 2. 1979 and pay him all consequential benefits along with interest @ 18% per annum.
(2.) AS per the facts of the case, the petitioner joined BSF on 30. 7. 66 as constable and further he was promoted to the rank of Havildar and then after completion of more than 12 years of service, the petitioner sought voluntary retirement from service. According to the petitioner, the respondent No. 4 accepted the resignation under Rule 19 of BSF Rules 1969 with full pensionary benefits. The petitioner has placed on record the certificate of termination of service issued by the respondent No. 4 dated 1. 1. 1979. As per the petitioner, a BSF employee is entitled to seek voluntary retirement after completion of 10 years of service under Rule 19 of the BSF Rules. The petitioner has reproduced Rule 19 under which the petitioner made a prayer for resignation from service. The petitioner is claiming pension on various grounds and with regard to his claim, it is submitted that the respondents had issued various policies for grant of pension to the employee and more specifically he has placed on record the policy issued on 27. 12. 1995 Annexure-2 and submitted that as per policy, the Government has agreed to the view that a member of Force is entitled to get pensionary benefits on resignation under Rule 19 of the BSF Rules. The petitioner's case is that the BSF authorities were accepting resignations from the members of the force after completion of ten years of service under Rule 19 with full pensionary benefits, therefore, the petitioner's case was to be governed by the position of Rule existed at the time of his retirement and also by policy Annexure-2. When the petitioner's claim for pension was not accepted then the petitioner personally visited the Battalion and requested the authorities for finalisation of his case for pension then he was assured by the respondent authorities that within short time his case will be finalized. On 25. 7. 1997, a letter was received by the petitioner by which he was informed that his case for pension is under consideration but there are some defects and a certificate of non employment was sought duly attested by a Gazetted Officer. As per the petitioner, he has submitted an affidavit as well as the certificate of non- employment issued by the Gram Panchayat, Bardawa duly attested by Development Officer, P. S. Didwana. The case of the petitioner was not finalized as assured by the respondent, therefore, after waiting for two years, the petitioner once again approached the Battalion then he was informed that there is dispute for grant of pension to those who have resigned but as per the petitioner, his case is different as he had resigned in the year 1979, therefore, the respondents are under obligation to finalize his case for pension. As per the petitioner since all the members of the Force, who had resigned are being granted pension except those who have resigned after 1997 or 1998 and they were again informed that the matter may take sometime. In the year 2003, the petitioner came to know that other members of BSF, who were in receipt of pension and have sought resignation after the petitioner, their pension has been stopped as they were not entitled for pension after completion of 10 years of service because as per Rule 19 of the BSF Rules, 20 years qualifying service is required for grant of pension. The petitioner again approached the Unit for sanction of pension, which is allowed to others from the date of resignation but he was informed that now as per Rule 19 and judgment of Apex Court, no pension is admissible, therefore, pension granted earlier after completion has been stopped in view of Rule 19 and judgment of Apex Court. As per the petitioner, through newspaper in February, 2006, he got information that Hon'ble Supreme Court has allowed pension to those personnel who had resigned prior to 27. 12. 1995 and whose pension was stopped. In this view of the matter, as per the petitioner he is entitled for pension as he has resigned prior to 27. 12. 1995 after completion of ten years of service. The main argument of learned counsel for the petitioner is that he has rendered more than ten years of service and resigned in the year 1979 and many other persons were granted pension who resigned from service after ten years in accordance with Rule 19 of BSF Rules. Therefore, the said benefit cannot be denied to the petitioner. Further it is submitted that when BSF has granted pension to all the members to sought voluntary retirement after ten years of service either prior to 1979 and even upto 1995 then why they are discriminating the case of the petitioner, therefore, as per the petitioner, he has been denied the pensionary benefits without assigning any reasons. The respondents filed reply in this case and it is specifically stated that though the petitioner was appointed in the year 1966 and continued upto his voluntary retirement on 31. 1. 1979 but he had completed service of 12 years six months and one day. The application for voluntary retirement was accepted by the then Commandant, 100 Bn BSF being appointing authority under the provisions of Rule 19 (1) of the BSF Rules without any pensionary benefits. The order Annexure-R/1 has been placed on record for substantiating the above submission as per Rules. In the year 1996, the petitioner had submitted an application and made request for pension in terms of communication dated 27. 12. 1995 whereas it is directed to review all cases of resignation accepted in respect of member of the force, who were not allowed pensionary benefits. In pursuance of the said communication, all such cases those who had proceeded on resignation has been reviewed including the case of petitioner and the pensionary benefits were allowed. The respondents have placed on record Annexure R/3 by which eight persons were allowed pensionary benefits. The case of the petitioner for grant of pension was sent to PAD BSF, New Delhi vide letter dated 13. 1. 1997 and in return, some additional documents asked by PAD, which was also sent. However, the pension case was not finally decided by the PAD. On 15. 1. 1998, FHQ (Pers Dte) BSF New Delhi issued memo under the signature of DG BSF and intimated to all formation of BSF that pension is not admissible on resignation/ voluntary retirement after 10 years of service. The respondents have placed on record the said communication dated 15. 1. 1998 as Annexure R/5.
(3.) IN continuance of the above letter on 28. 3. 1998, it was informed that issue with regard to grant of pension is pending in an appeal before Hon'ble Supreme Court. Therefore, keeping in view of above letters, the respondents not processed with petitioner's case and Unit also stopped the correspondence on the subject with PAD BSF New Delhi. The controversy involved in this case was finally decided by Hon'ble Apex Court in case of UOI Vs. Rakesh Kumar & Ors vide judgment dated 30. 3. 2001, reported in 2001 (4) SCC 309 and in the light of the said judgment, an order was issued by the respondents on 17. 7. 2001 whereby the payment of pension in respect of BSF personnel those who proceeded on resignation under Rule 19 (1) of the BSF Rules and not completed 20 years of qualifying service was stopped. After passing of above order dated 17. 7. 2001 in pursuance of the judgment by Hon'ble Apex Court in the above case, several petitions were filed by affected persons before Hon'ble Supreme Court and Hon'ble Supreme Court while considering the aforesaid case of Union of India Vs. Rakesh Kumar delivered a judgment in case of Raj Kumar Vs. Union of India & Ors. on 4. 1. 2006 and as per the said judgment of Hon'ble Apex Court, the petitioner is not entitled to pensionary benefits as he was not drawing pension as special case while accepting resignation by the competent authority earlier. In the case of Raj Kumar (supra), the Hon'ble Supreme Court on the basis of equality passed an order that pension of those pensioners shall not be stopped, who were getting/drawing pension before the judgment of Rakesh Kumar's case (supra ). Therefore, as per the respondents no case is made out in favour of the petitioner for grant of special pension upon resignation filed by the petitioner. Learned counsel for the respondents placed on record the judgment rendered by Hon'ble Supreme Court in case of Raj Kumar Vs. Union of India & Ors. (supra) and submitted that the petitioner is not entitled for pensionary benefits upon resignation filed by him under Rule 19 (1) of the BSF Rules because at the time of seeking voluntary retirement/resignation he had not completed 20 years of service, which is condition precedent for grant of pensionary benefits. It is also submitted that in view of judgment in case of Rakesh Kumar's case (supra) rendered by Hon'ble Apex Court wherein it has been held that there is no entitlement of pensionary benefits in view of Rule 19 of the BSF Rules and in subsequent judgment in Raj Kumar's case (supra), a sympathetic view was taken for those pensioners who were drawing pension. Admittedly, the petitioner was not getting any pension and his case was pending for want of final sanction. ;