Union of India & Ors. v. Jai Bhagwan

order of trial Court as well as of the First Appellate Court, allowing the relief to the respondent-plaintiff holding him entitled for proportionate pension of amount proportion to the maximum qualifying service under the C.C.S. (Pension) Rules and for grant of arrears of such proportionate pension w.e.f. 01.09.1994 with interest at the rate of 6% etc. The appellate Court upheld the same and accordingly present Regular Second Appeal has been filed. Notice of motion was issued in this case and operation of the judgment under appeal was stayed. Reference was made to Rule 26 of the Central Civil Service (Pension) Rules, 1972 which reads as under:- “26 Forfeiture of service on resignation (1)Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing Regular Second Appeal No. 4911 of 2009 (O&M) 2 authority, entails forfeiture of past service.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 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 to not covered by leave due to him. (4) The appointing authority may permit a person to withdraw his registration 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 request, integrity, efficiency or conduct and the request for withdrawl of the resignation has been made as a 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 withdrawl 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 Regular Second Appeal No. 4911 of 2009 (O&M) 3 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 withdrawl 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 body controlled or financed by the Government. (6)When an order is passed by the appointing authority allowing a person to withdraw his registration 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 qualifying service. (7)A resignation submitted for the purpose of Rule 37 shall not entail forfeiture or past service under the Government.” The perusal of the above rule would show that this rule entails forfeiture of entire service before resignation of an employee and the submission accordingly made that the courts were not legally Regular Second Appeal No. 4911 of 2009 (O&M) 4 justified in granting the prayer of the respondent-plaintiff for proportionate pension on the ground that he had more than 10 years service, thus was put to challenge. On 25.02.2010, Sh. Sanjay Mittal, Advocate appeared for the respondent and prayed for time to argue the matter. The case was accordingly adjourned for today. The case was passed over twice to await the appearance of the learned counsel. After having waited for him almost for a considerable period and finding that no one has bothered to appear, the case is taken up for hearing and for final disposal. Since the substantial question of law raised in the present Regular Second Appeal has now been fully settled not only by the Full Bench of this Court but as well as by the Hon'ble Supreme Court, the Regular Second Appeal has been taken up for final disposal at the motion stage only. The issue of grant of proportionate pension on completion of 10 years of service where the employees have submitted his resignation, is no more res integra. The Hon'ble Supreme Court in the case of UOI and others versus Rakesh Kumar AIR 2001 Supreme Court 1877 (1), while interpreting the provisions of Border Security Force Act in the rules made thereunder, viewed in the context of Central Civil Services (Pension) Rules as under that the member of BSF, who resigns before completing qualifying service of 20 years is not entitled to pension. The pensionary benefits granted to some of the officers on completion of 10 years who had resigned was granted by erroneous interpretation of the rules and it was observed by the Hon'ble Supreme Court that the same mistake cannot be directed to Regular Second Appeal No. 4911 of 2009 (O&M) 5 be perpetuated on grounds of discrimination or hardship. The Hon'ble Supreme Court has observed as under:- “ In our view, for grant of pension the members of BSF are governed by CCS(Pension) Rules. CCS (Pension)Rules nowhere provide that a person who has resigned before completing 20 years of service as provided in Rule 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does not make any provision for grant of pensionary benefits. It only provides that if a member of the force who resigns and to whom permission in writing is granted to resign then the authority granting such permission may reduce the pensionary benefits if he is eligible to get the pension. Therefore, by erroneous interpretation of the rules if pensionary benefits are granted to someone it would not mean that the said mistake should be perpetuated by direction of the Court. It would be unjustifiable to submit that by appropriate writ, the Court should direct something which is contrary to the statutory rules. In such cases, there is no question of application of Article 14 of the Constitution. No person can claim any right on the basis of decision which is dehors the statutory rules nor there can be any estoppel. Further, in such cases there cannot be any consideration on the ground of hardship. If rules are not providing for grant of pensionary benefit it is for the authority to decide and frame appropriate rules but Court cannot direct payment of pension on the ground of Regular Second Appeal No. 4911 of 2009 (O&M) 6 so-called hardship likely to be caused to a person who has resigned without completing qualifying service for getting pensionary benefits.” Subsequently, this judgment has been followed in large number of cases and one such case can be quoted that is of Kedar Nath versus Union of India 2005 (3) Service Judicial Reports, 399. Since the question of law is fully settled, the judgment under appeal in the case of respondent-plaintiff to whom the same was identical provisions applies has to be answered accordingly. In this view, the judgment under appeal has been wrongly decided and would call for interference. The Regular Second Appeal is accordingly allowed. The judgment under appeal passed by the trial Court as well as by the First Appellate Court is, therefore, set aside. March 17, 2010 ( RANJIT SINGH ) JUDGE