Holding

Rule 19 of the BSF Rules does not confer any pension right; pension entitlement is solely under the CCS (Pension) Rules, 1972, and only limited equitable relief may be granted.

Summary

The petitioners were Border Security Force (BSF) personnel who, relying on a 1995 government circular, resigned under Rule 19 of the BSF Rules in the hope of receiving pension benefits, although they had not completed the qualifying service required under the Central Civil Services (Pension) Rules, 1972. After the mistake was realised, a 1998 circular called them back to re‑join the force; many did so, while others did not and had their pension payments stopped following the Supreme Court’s decision in Union of India v. Rakesh Kumar. The petitioners sought relief to retain their pensions or to be re‑inducted without forfeiture. The Court held that Rule 19 does not create a right to pension; entitlement is governed solely by the CCS (Pension) Rules, 1972, and those not eligible cannot claim pension. However, invoking Article 142, the Court granted limited equitable relief: re‑induction options for certain categories, no recovery of pension already drawn for long‑serving retirees, and forfeiture for those who failed to re‑join. All writ petitions were dismissed with these specific directions.

Issues considered

The applicability of Rule 19 of the BSF Rules versus the Central Civil Services (Pension) Rules, 1972 in granting pension to BSF personnel who resigned before completing qualifying service.
Whether BSF personnel who were misled by the 1995 circular are entitled to retain pension benefits or be re‑inducted into service.
The scope of equitable relief that can be granted under Article 142 of the Constitution in such service‑law matters.

Legislation cited

Subjects

pensionBorder Security ForceRule 19Central Civil Services (Pension) Rulesre‑inductionequityArticle 142service lawwrit petitionretirement benefits

Judgment

) RAJ KUMAR AND ORS. A
V.

UNION OF INDIA AND ANR.

JANUARY 4, 2006

(B.N. SRIKRISHNA AND C.K. THAKKER, JJ.] B

-~--
Service law:

Pensionary benefits-Entitlement to, when BSF personnel resigning
before completing minimum qualifYing service for grant ,.rpensionary benefits- c
Held: Not entitled as 1969 Rules do not grant right to pension to persons
otherwise ineligible under CCS Pension Rules, 1972-Border Security Force
Act, 1968/Rules, 1969, Rule 19.

On 27.12.1995, the authorities issued G.O./Circular notifying that
....
I the a member of the force is entitled to get pensionary benefits on D
resignation under Rule 19 of the Border Security Force Rules, 1969
provided he has put in requisite number of years of service and fulfills all
other eligibility conditions. In response to the said circular, large number
of personnel of the Force were prompted to resign from service in the hope
of getting pensionary benefits.
E
On 17.10.1998 the authorities issued a circular conveying that those
personnel whose resignations had been accepted after the circular dated
27.12.1995 under mistaken impres~ion of their entitlement to pensionary
~ benefits, but who had not yet been granted pension, should be called back
to rejoin immediately. Pursuant to this circular, those who reported for
work were allowed to rejoin the service subject to the conditions stipulated
F
' . in the said circular. In respect of those personnel who did not rejoin the
service, the pensionary benefits payable were stopped.

In these Writ Petitions, the grievance of petitioners is that, though
a large number of personnel had returned to duty after complying with
the conditions stipulated in circular dated 17.10.1998, in the cases where
G
pension had been sanctioned, they were prevented from coming back to
'
)'·
duty as a result of individual letters dated 31.10.1998. In such cases the
pension has been stopped pursuant to the judgment in Rakesh Kumar*
which has resulted in double jeopardy, as the personnel concerned lost
169 H
170 SUPREME COURT REPORTS [20061 I S.C.R.

A their service as well as pensionary benefit. '
Dismissing the Writ Petitions, the Court

Held: 1. The personnel of the Force who otherwise were not eligible
to pensionary benefits under the CCS (Pension) Rules, 1972 could not be
B conferred with this benefit as a result of the misreading of Rule 19(1) of
the BSF Rules as put forward in the G.O./Circula:- dated 27.12.1995.
(175-H; 176-AI -~

Union of India and Ors. v. Rakesh Kumar and Ors.,* 1200114 SCC 309,
relied on. [174-F)
c
2. Such of the BSF personnel who had resigned in the hope of getting
pensionary benefits, although not eligible for pension under the CCS
Pension Rules 1972, had been given the opportunity of getting back into
service by virtue of the circular dated 17.10.1998. Despite the deadline for
D reporting being extended from 30.04.1999 to 31.08.1999, about 697
personnel had failed to avail of the opportunity of returning to service.
There cannot be any equity in favour of those that failed to avail of the
opportunity of rejoining service. If any of them failed to take advantage
of the offer for re-induction into service, they have only themselves to
thank. In such cases, obviously, there cannot be any relief granted in the
E present writ petitions, contrary to the law declared by Rakesh Kumar*.
(176-H; 177-A-BI

Union of India and Ors. v. Lt. Col. P.S. Bhargava, (1997) 2 SCC 28
and Praduman Kumar Jain v. Union of India and Anr., 11994) Supp 2 SCC
548, held inapplicable. 1177-DI
F
4. Having considered the peculiar facts, the following orders are
made:-

(I) The personnel who had retired subsequent to 1996 pursuant to
the circular dated 27.10.1995 and had not been sanctioned pension, but
G who had been directed to report for re-induction in service, shall
necessarily have to forfeit their pension, if they had not reported for service
by virtue of the circular dated 17.10.1998. 1178-D-F)

(II) In the case of personnel, who retired in 1996, were sanctioned
pension, were asked not to report for re-induction and were in a position
H to be re-inducted into service even now, they shall also be given the option
RAJ KUMAR v. U.0.1. 171
)
of re-induction into service subject to the conditions stipulated in circular A
dated 17.10.1998 and on condition that they shall refund the GPF and
pension amounts drawn by them till re-induction. I178-F, GI
'"'
(III) In the case of personnel, who had retired in 1996, were
sanctioned pension but who cannot be re-inducted today as they are age-
barred or physically or medically unfit or for any other reason including B
their inability to return the amount of GPF, pension drawn or other dues,
~~
there shall be no question of continuing payment of pension, which shall
be liable to cease as a result of the decision in Rakesh Kumar*. Equity
demands that in such cases there shall be no recovery of the pension
amounts already paid to them. (178-G-H; 179-AI c
(IV) In case of personnel, who had resigned prior to the circular
dated 27.12.1995 and had !Jeen granted pension for special reasons and
continued to draw it till the stoppage of pension as a result of the judgment
in Rakesh Kumar*, irrespective of the position in law, equity demands
T D
that, as they have drawn their pension for long periods, they shall not be
asked to refund their drawn pension amounts, nor shall their pension be
stopped now. 1179-B-CI

5. The aforesaid directions are made in exercise of powers under
Article 142 of the Constitution in order to do complete justice to a section E
of the personnel who would otherwise be placed in an inequitable situation
for which the authorities are also partly to blame. It is open to this Court.
to mould the relief by safeguarding the interest of the parties even while
declaring the law. The paramount consideration in such cases should be
' to ensure that there is no injustice caused. 1179-C-DI
F
Deb Narayan Shyam and Ors. v. State of WB. and Ors., [2005) 2 SCC
286 and State of Bihar and Ors. v. Kameshwar Prasad Singh and Ors., 120001
9 SCC 94, relied on. (179-El

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 569 of
2001.
G

(Under Article 32 of the Constitution of India.)
-~·,

WITH
•
W.P. (C) Nos. 87, 235, 244. 211/2003, 699/2004, 8/2005, 32/2005,
H
172 SUPREME COURT REPORTS (20061 I S.C.R.

A 411/2004, 420/2004 and 473/2004.
A. Sharan, ASG, K. Ramamoorthi, N.N. Goswami, Dr. Shyamiha Pappu,
O.P. Khadaria, Sarwa Mitter, Amit Gupta, Mrs. Santosh Gupta, Mis Mitter
and Mitter Co., Javed Mahmud Rao, C.S.N. Mohan Rao, S.N. Bhat, N.P.S.
Panwar, D.P. Chaturvedi, Rameshwar Prasad Goyal, B.K. Choudhary, E.C.
B Vidya Sagar, Subramonium Prasad, Mrs. Indira Sawhney, Hemant Sharma,
Ms. Sushma Suri, Amit Anand Tiwari, Deepak Khadaria, A.V. Rangam,
Buddy A. Ranjanadhan, A. Ranganadhan, Rajesh Srivastava, Mohan Pandey, ->
R. Krishnamoorthi and C.S.N. Mohan Rao with them for the appearing parties.

The Judgment of the Court was delivered by
c
SRI KRISHNA, J. The writ petitions in this group arise from the same
set of facts and seek the same relief. Tiley can conveniently be disposed of
by a common judgment.

For the purpose of facts, it would be sufficient to refer to the facts r
D narrated in Writ Petition (C) No. 569/200 I. The petitioners were holding
different posts under the Border Security Force (hereinafter referred to as
"the Force"), constituted under The Border Security Force Act, 1968
(hereinafter referred to as "the BSF Act"). The First Respondent is the Union
of India in the Ministry of Home Affairs and the Second Respondent is the
E Director General of the Border Security Force.

On 27.12.1995 the Second Respondent with the approval of the First
Respondent and in consultation with the Department of Pension and
Pensioners' Welfare issued a G.O./Circular notifying that the Government
had agreed with their views that "a member of the force is entitled to get '
F pensionary benefits on resignation under Rule 19 of the said Rules provided
he has put in requisite number of years of service and fulfills all other eligibility
conditions." (The Rules referred to are the Border Security Force Rules,
1969, hereinafter referred to as "the BSF Rules") This G.O./Circular provided
that the competent authority may, "having regard to the special circumstances
G of a case, permit a member of the force to resign from the force before
attainment of the age of retirement or before putting in such number of years
of service as may be necessary under the rules to be eligible for retirement."
The circular empowered the competent authority granting such permission
"to make such reductions in the pension or other retirement benefits of a
member of the Force, if so eligible,. .. " (emphasis added). The circular also
H advised the competent authority that in future while accepting the resignation
_, ) RAJ KUMAR v. U.0.1. [SRIKRISHNA. J.] 173
of a member of the Force, the order should specify the reduction to be made A
in the pension, if any, as per the provisions contained in proviso (b) to Rule
19( I) of the BSF Rules, and further that failure to do so would imply that
there was no reduction in the pension made.

The G.O./Circular dated 27.12.1995 was interpreted by the authorities
to mean that any member of the Force could resign with the permission of B
.,,.. the competent authority, even before completing the qualifying service for
pension and would be eligible for pension under Rule 19( I) of the BSF
Rules. This circular appears to have been issued on the basis of some judgments
of the High Courts, and the clarifications issued by the Department of Pension
and Pensioners' Welfare, Government of India under the mistaken impression
that Rule 19 of the BSF Rules was concerned with entitlement to pension. In
c
response to the said circular, about 2209 personnel of the Force resigned
under Rule 19 of the BSF Rules and their resignations were accepted. In the
case of about 44 7 personnel of the Force, the pension amounts were released
T and they started drawing pensions. The cases of about 1762 personnel of the
Force were still pending sanction of the pension amounts. D
In the meanwhile, it appears that the authority realised its mistake and
took rectification action by a letter dated 15.01.1998 conveying the decision
of the Director General of the Force, as follows:

"It is to inform you that DG BSF after careful consideration has E
now decided that all personnel who resigned under Rule 19 of the
BSF Rules during 1996, 1997, 1998 with less than 20 years service
y under mistaken impression with pensionary benefits and not granted
pension, to be taken back immediately.

2. The amount ofGPF and other dues paid to you are required to be F
refunded.

3. You are directed to report to this HQ forthwith to continue in
service.

4. This matter may be treated as urgent." G
}-
. Further, on 17. I0.1998 the Deputy Director (Personnel) issued a circular
conveying that those personnel whose resignations had been accepted after
the circular dated 27 .12.1995 under Rule 19 of the BSF Rules under mistaken
impression of their entitlement to pensionary benefits but who had not yet
been granted pension. should be called back to rejoin immediately. It was H
174 SUPREME COURT REPORTS [2006] I S.C.R.
\
A conveyed that in their cases the period of absence would be treated as an
Earned Leave/ Half Pay Leave as due and the remaining period as leave
without pay (EOL) as a special case. but that such personnel would have to
refund the GPF and other dues paid to them. They would, however, retain
their seniority. Individual Registered/AD letters were sent to all such persons
whose resignation had been accepted pursuant to circular dated 27.12.1995
B conveying the aforesaid decision of the Director General, BSF. This circular
in terms stated that if a member of the Force was not interested to rejoin the
Force, he would not be entitled to any pension. Initially the first cut-off date
for rejoining was 30.4.1999, which was later extended up to 30.6.1999 and,
finally, up to 31.8.1999.
c Pursuant to the aforesaid circular of 17.10.1998, out of 1762 personnel
recalled, I065 personnel reported for work and they were allowed to rejoin
the service subject to the conditions stipulated in the said circular. About 697
personnel, however, did not rejoin the service and the pensionary benefits
payable to them were stopped. l
D
About 69 personnel who had less than 20 years qualifying service and
who had resigned from the year 1979 onwards had also been sanctioned
pension under Rule 19 of the BSF Rules even before the issuance of the
circular dated 27.12.1995. About 19 personnel had been sanctioned the
pensionary benefits under Rule 19 of the BSF Rules, pursuant to the directions
E given by some High Court orders.

Some of the personnel who had been permitted to resign under Rule 19
of the BSF Rules prior to the circular dated 27.12.1995, who did not have the
qualifying service for pension, sought pensionary benefits by placing reliance
F on the circular dated 27.12.1995. As the authorities did not concede their
right, they moved the High Court for relief. Three such cases came up to this
Court and were decided by this Court in its judgment in Union of India and
Ors. v. Rakesh Kumar and Ors., in Civil Appeal No. 6166/1999 along with
Civil Appeal Nos. 2121/2000 and 2491-92/2001 decided on 30.3.2001 reported
in (200 I) 4 SCC 309. The controversy with regard to the entitlement to
G pension of BSF personnel resigning under Rule 19 of the BSF Rules before
completion of the minimum length of qualifying service for eligibility for
grant of pensionary benefits, was finally decided and put to rest. This Court
held that entitlement to pension to BSF personnel did not arise on account of
Rule 19 of the BSF Rules, but only under the provisions of the Central Civil
H Services (Pension) Rules, 1972. After a detailed analysis of the provisions of
RA.I KUMAR v. U.O.L [SRIKRISHNA. J.] 175
)
the BSF Act and the BSF Rules, the relevant provisions of the CCS (Pension) A
Rules, 1972 and the provisions of the G.O./Circular dated 27.12.1995 this
Court held, (vide Paragraph 19) thus:

"Reading the aforesaid G.O. as a whole, it nowhere reveals
Government's intention to confer any additional pensionary benefit
to the members of the BSF who retired before completing the requisite B
qualifying service as provided under the CCS (Pension) Rules. It
neither supplements nor substitutes the statutory rules. The G.O. read
with Rule 19 of the BSF Rules would only mean that in case of
resignation and its acceptance by the competent authorities, the member
of BSF would be entitled to get pensionary benefits if he is otherwise C
e'/igible for gelling the same under the CCS (Pension) Rules and to
that extent Rule 26 which provides for forfeiture of service on
resignation would not be applicable." (emphasis added)

Further, th is Court observed, vide Paragraphs 20 and 21, thus:

"No person can claim any right on the basis of decision which is de D
hors the statutory rules nor there can be any estoppel. Further, in such
cases there cannot be any .:onsideration on the ground of hardship."

"Respondents who were permitted to resign from service under Rule E
19 of the BSF Rules before the attainment of the age of retirement or
before putting such numb~r of years of service, as may be necessary
under the Rules, to be eligible for retirement are not entitled to get
any pension under any of the provisions under CCS (Pension) Rules.
Ru le 49 only prescribes the procedure for calculation and quantification
of pension amount. The G.O. dated 27.12.1995 does not confer any F
additional right of pension on the BSF employees."

Thus, with this authority of the Court, the doubts, misgivings and
misinterpretation of Rule 19( I) of the BSF Rules were finally cleared. It is
in the light of the law laid down by this Court in Rakesh Kumar (supra) that
we will have to decide if the writ petitioners before us are entitled to any G
relief

That the personnel of the Force who otherwise were not eligible to
pensionary benefits under the CCS (Pension) Rules, 1972 are not conferred
with this benefit as a result of the misreading of Rule 19( 1) of the BSF Rules
H
176 Slil'REMI-: COIJRT REPORTS [20061 I S.C.R.
·,

A as put forward in the G.O./Circular dated 27.12. 1995 is beyond cavil from
the judgment of this Court in Rakesh Kumar (supra). This position is also not
contested by the learned counsel appearing for the petitioners in the different
matters before us. The learned counsel, however, submitted that the mistaken
interpretation of Rule 19 of the BSF Rules was on the part of the authorities
B for which the petitioners were not to blame. It is urged on behalf of the
petitioners that due to this mistaken impression, which the petitioners also
shared, because of what was conveyed by G.0./Circular dated 27 .12.1995, a •>
large number of personnel were prompted to resign from service in the hope
of getting pensionary benefits; that some of them had actually been sanctioned
pensionary benefits, and were in receipt thereof at the time when the judgment
C of this Court in Rakesh Kumar (supra) was pronounced.

It is also contended on behalf of the petitioners that in the cases of the
BSF personnel who had resig11ed before the circular dated 27.12.1995, some
as early as in 1980 and had been sanctioned pension by the authorities under
Rule 19 of the BSF Rules, as special cases, even though they had not completed l
D 20 years' service; after the judgment in Rakesh Kumar l~upra) was pronounced,
the authorities have stopped the pension payments though enjoyed by the
concerned BSF personnel for long periods. Doing so is entirely unjust and
iniquitous, according to the appellants. The. petitioners further urged that,
though a large number of personnel had returned to duty after complying
E with the conditions stipulated in circular dated 17. I0: 1998, in the cases where
pension had been sanctioned, they were prevented from coming back to duty
as a result of individual letters dated 31.10.1998 by which it was stated that
personnel already in receipt of pension would not be re-inducted into service.
However, even in such cases the pension has· been stopped pursuant to the •
judgment in Rakesh Kumar (supra). Counsel urged that this has resulted in
F double jeopardy in such cases, as the personnel concerned lost their service
as well as pensionary benefit.

We are unable to accept the contention urged on behalf of the petitioners
that the confusion with regard to the interpretation of Rule 19 of BSF Rules
was cleared only as a result of the judgment in Rakesh Kumar (supra). Even
G before Rakesh Kumar (supra) was decided, way back in the year 1998 itself,
the authorities seemed to have realised their mistake as evidenced by the
letter dated 15.01.1998 followed by the circular dated 17.10.1998. Rakesh
Kumar (supra) was decided only in the year 200 I. almost 3 years later. Such
of the BSF personnel who had resigned in the hope of getting pensionary
H benefits, although not eligible for pension under the CCS Pension Rules
) RAJ KUMAR v. U.O.L [SRIKRISHNA. J.] 177

1972, had been given the opportunity of getting back into service by virtue A
of the circular dated 17.10.1998. Despite the deadline for reporting being
extended from 30.04.1999 to 31.08.1999, about 697 personnel had failed to
avail of the opportunity of returning to service. There cannot be any equity
in favour of those that failed to avail of the opportunity of rejoining service.
If any of them failed to take advantage of the offer for re-induction into
service, they have only themselves to thank. In such cases, obviously, there
B
' \- cannot be any relief granted in the present writ petitions, contrary to the law
declared by Rakesh Kumar (supra).

There is no doubt that the position in law is that declared in Rakesh
Kumar (supra) viz. that Rule 19 of the BSF Rules does not grant any right
to pension in cases where pension is not payable under the CCS Rules 1972.
c
Thus there is no question of this Court directing payment of pension to
persons who are otherwise ineligible under the CCS Pension Rules 1972. The
contention raised in all these petitions on·the question of law must necessarily
-~
fail in the light of the clear pronouncement in Rakesh Kumar (supra).
D
Learned counsel referred to Union of India and Ors. v. Lt. Col. P.S.
Bhargava' and Praduman Kumar Jain v. Union· of India and Anr.'. After
perusal, we find that they are not of any help to us in deciding the issue
before us. The issue before us arises out of the terms of Rule 19( I) of the
BSF Rules and the provisions of the CCS (Pension) Rules, 1972 and has, in
fact been squarely decided in Rakesh Kumar (supra). E

We find that the cases before us can be divided into the following
~· . categories:

(A) Pre-circular:
F
Personnel who resigned and were granted pension for special reasons,
even prior to the circular dated 27.12.1995

(B) Post-circular:

Personnel who resigned pursuant to the circular dated 27.12.1995. These G
!--- persons can be further divided into two sub-categories:-

'II997J 2 sec 28

1[1994] surr 2 sec 54R. H
178 SUPREME COURT REPORTS [20061 I S.C.R.

A (i) Personnel who retired in 1996, were sanctioned pension and were
'
therefore asked vide letters dated 31.10.1998 not to report for re-
induction. Their pension has been stopped pursuant to the
judgment in Rakesh Kumar (supra). These persons can be further
divided into two sub-categories:-

B (a) those who are in a position to be re-inducted into service
even now

(b) those who cannot be re-inducted into the service as a result
of being age-barred or due to being medically or physically
unfit.
c (ii) Those who retired subsequent to 1996, were not sanctioned
pension, and were directed to report for re-induction in to service
or to forfeit pension benefits by virtue of the circular dated
17 .10.1998 and the individual letters.
1
Having considered the peculiar facts arising in each of these groups, we
D
make the following orders:-

I. The personnel falling in category (B)(ii) i.e. those persons who
had retired subsequent to 1996 pursuant to the circular dated
27 .10.1995 and had not been sanctioned pension, but who have
E been directed to report for re-induction in service shall necessarily
have to forfeit their pension, if they have not reported for service
by virtue of the circular dated 17.10.1998. If however, they have
reported for service then there is no question of any relief in i
~
their case.
2. In the case of persons falling in category (B)(i), they shall also
F
be given the option of re-induction into service, and those falling
in category (B)(i)(a) shall be so re-inducted, subject to the
conditions stipulated in circular dated 17.10.1998 and on condition
that they shall refund the GPF and pension amounts drawn by
them till re-induction. The authorities shall indicate the deadline
G by which such persons shall offer themselves for re-induction.
3. In the case of persons who shall fall in category B(i)(b), i.e.
persons who had retired in 1996, were sanctioned pension but
who cannot be re-inducted today as they are age-barred or
physically or medically unfit or for any other reason including
H their inability to return the amount of GPF, pension drawn or
RA.I KUMAR v. U.0.1. [SRIKRISHNA. J.] 179
)
other dues, there shall be no question of continuing payment of A
pension which shall be liable to cease as a result of the decision
in Rakesh Kumar (supra). We are however of the view that equity
demands that in such cases there shall be no recovery of the
pension amounts already paid to them.
4. In cases which fall under category (A), i.e. J'P~sonnel who had B
resigned prior to the circular dated 27.12.1995 and had been
granted pension for special reasons and continued to draw it till
the stoppage of pension as a result of the judgment in Rakesh
Kumar (supra), we think that irrespective of the position in law,
equity demands that, as they have drawn their pension for long
periods, they shall not be asked to refund their drawn pension C
amounts, nor shall their pension be stopped now.

We have made the aforesaid directions in exercise of our powers under
Article 142 of the Constitution in order to do complete justice to a section
of the personnel who would otherwise be -placed in an inequitable situation D
for which the authorities are also partly to blame. It is open to this Court to
mould the relief by safeguarding the interest of the parties even while declaring
the law. The paramount consideration in such cases should be to ensure that
there is no injustice caused (see in this connection Deb Narayan Shyam and
Ors. v. State of. W.B. and Ors' and State of Bihar and Ors. v. Kameshwar
Prasad Singh and Otrs.... Barring this limited relief no other relief is due to E
the petitioners before us. Subject to the aforesaid limited relief all the petitions
are dismissed.

D.G. Writ Petitions dismissed.

'12005] 2 sec 286, para 26 and 29.

'(2000] 9 sec 94. para 36.