Holding

A BSF member who resigns under Rule 19 before completing twenty years of qualifying service is not entitled to pensionary benefits.

Summary

The respondent, a former constable of the Border Security Force (BSF), resigned after 12 years and 8 months of service under Rule 19 of the BSF Rules, 1969. The Government of India, relying on a 1995 Government Order, granted him full pensionary benefits, which were not released, leading to a writ petition and subsequent appeals. The central issue was whether a BSF member who resigns after completing ten but less than twenty years of qualifying service is entitled to pension under the BSF Act, the BSF Rules, or the Central Civil Services (Pension) Rules, 1972. The Court held that resignation under Rule 19 does not create a right to pension; pensionary benefits are governed by the CCS (Pension) Rules, which require either superannuation or completion of twenty years of qualifying service for a retiring pension. Consequently, the respondent was not eligible for pension, and the Court set aside the High Court orders granting it. The appeals were allowed and no costs were awarded.

Issues considered

Whether a BSF member who resigns after ten but less than twenty years of qualifying service is entitled to pensionary benefits under the Border Security Force Act, 1968, the Border Security Force Rules, 1969, or the Central Civil Services (Pension) Rules, 1972.

Legislation cited

Border Security Force Act, 1968s. Section 8
Border Security Force Rules, 1969s. Rule 13, s. Rule 19, s. Rule 26, s. Rule 3(q)
Central Civil Services (Pension) Rules, 1972s. Rule 48-A, s. Rule 49
Code of Civil Procedure, 1908s. Section 80
Constitution of Indias. Article 14

Subjects

Service lawPensionBorder Security ForceRule 19Qualifying serviceAdministrative lawEstoppelArticle 14Central Civil Services (Pension) RulesResignation

Judgment

--, UNION OF INDIA AND ORS.
v.
A

RAKESH KUMAR

MARCH 30, 2001

[M.B. SHAH AND K.G. BALAKRISHNAN, JJ.] B

-> Service Law :

Bo1der Security Force Rules, 1969: Rule 19.

Pension-MemberofBSF-Entitlement to-On JP-signation-Memberof C
BSF resigned/mm his posl after serving more than ten yem:i but less than 20
yea1:i-Held : Grant of pension to members of BSF are governed by CCS
(Pension) Rules-A person who has resigned after more than JO years of
qualifying service but less than 20 years is not entitled to pensionary benefits-
Rule 19 also does not make any provision for grant ofpensionary benefits to D
such membPr-Iience, such member not entitled to pensiona1y bene,fits-
BorderSecurily Force Act, 1968, S. 8-Central Civil Services (Pension) Rules,
J972. R. 48-A.

Constilution of India, 1950 :
E
Article 14-Pension-Payment of-To some persons not entitled-Per-
sons sin1ilarly situated-Entitlement to-Held: Court cannot dh-ect something,
by issuance of an app1vpriate writ, which is contrary to statutory Rules-
Ar1icle 14 has no application in such cases-A mistake should not be perpetu-
ated by direction of court-Further, court cannot direct payment ofpension on
1he ground of so-called hardship. F

Administrative Law :

Administrative Instructions-Scope and ambil of-Held: Administrative
instructions cannot amend or substitute statutory Rules-But if Rules are silent
on a par1icular point, gaps can be filled up by administrative ins/ructions not G
;nconsistent with the Rules.

Words and l'hra<es :

"Qualifying service"-Meaning of-In lhe context of R. 3(q) of lhe
BOJder Securily Force Rules, !969. H
927
928 SUPREME COURT REPORTS [2001] 2 S.C.R.
A The respondent joined the Border Security Force (BSF) as a consta-
ble and continued to serve till he submitted his resignation after rendering
12 years and 8 months of service. His resignation was accepted under Rule
19 of the Border Security Force Rules, 1969. The appellant issued a Gov-
ernment Order (G.O.) conveying its decision in the matter of admissibility
of pensionary benefits on acceptance of resignation under Rule 19 of the
B
Rules. On the basis of the aforesaid G.O., the competent authority allowed
rull pensionary benefits to the respondent as admissible under the Rules.
However, as the pension was not released the respondent filed a writ
petition before the High Court, which was allowed. Hence this appeal.

c On behalf of the appellant it was contended that neither the Border
Security Act, 1968 nor the Rules made provision for grant of pension; and
that grant of pension to a member of the BSF was governed by the Central
Civil Services (Pension) Rules 1972.

On behalf of the respondent it was contended that under Rule 19 in ·
D the case of acceptance or resignation of an employee after 10 years of
senice he was entitled to get pension; that under Rule 49 the qualifying
service for getting pension was 10 years; that on the basis of the G.O. a
number of persons were granted pensionary benefits even though they had
not completed 20 years of service and, therefore, the pensionary benefits <
E granted to the respondent should not he disturbed; and that the appellant
was estopped from contending that the respondent was not entitled to get
pensionary benefits in view of the G.O.

The following question arose before this Court :

F Whether members or BSF who have resigned from tt.elr posts after
serving for ten or more years but less than 20 years are entitled to pension/
pensionary benefits under the relevant provisions of the Border Security
Force A~t, }968 and the Border Security Force Rules, 1969 or the Central
Civil Services (Pen&jpn) Rules, 1972?
G Allowing the appeal, the Court

HELD : 1. A hare reading of Section 8 of the Border Security Act,
1968 makes it clear that no member of the Border Security Force (BSF)
will have the right to resign except with prior permission in writing of the
H prescribed authority. The language is prohibitory and the member or the
U.0.1. v. RAKESH KUMAR 929
BSF is not having liberty to resign from his appointment during the term A
of his engagement. However, the prescribed authority may permit the
member of the BSF to resign in certain special circumstances. Rule 19 of
the Border Security Force Rules, 1969 does not create any right to pension.
It is intended to enable members of BSF to resign from the force without
attracting any penal consequences. (935-E]
B
2.1. The Scheme of the said Rules provides that normally a govern·
->- ment servant is entitled to get pensionary benefits after he retires at the
age of superannuation. [936-B]

The contention of the respondent that under Rule 49 of the Rules,
the qualifying service for getting pension would be ten years is nithout any
c
basis. Qualifying service is defined under Rule 3(q) to mean service ren·
dered while on duty or otherwise which shall he taken into account for the
purpose of pensions and gratuities admissible under these Rules. Rule 13
nowhere provides that qualifying service for getting pension is 10 years.
On the contrary, there is a specific provision that if a government servant D
retires before completing qualifying service of 10 years because of bis
attaining the age of compulsory retirement, he would not get pension but
would get the amount to service gratuity. [939-A ·CJ

2.2. Rule 49(2)(b) of the Rules indicates that in case of a government
servant retiring in accordance "ith the provisions of the Rules before E
completing qualifying service of 33 years, but after completing qualifying
service of ten years, the pension shall be proportionate to the amount of
pension admissible under Rule 49(2)(a) and in no case, the amount of
pension shall be less than a certain amount. Hence, on the basis of Ruic 49
a member of BSF who has resigned from his post after completing more F
than 10 years of qualifylng service but less than 20 years woul(I not be
eligible to get pensionary benefits. There is no other provision In, the
Central Civil Services (Pension) Rules, 1972 giving such benefits to such'·
government servants. (939-E; 940-A]

3. There is no substance in the contention of the respondenl• that in G
view of the Government Order (G.O.) or specific orders passed hy the
competent authority granting pension, appellants are estopped from con-
tending that such officers are not entitled to get pcnsionary benefits. The
G.O. does not confer any additional benefit. Even in the order the compe·
tent authority has stated that the respondent would get pensionary hen· H
930 SUPREME COURT REPORTS [2001] 2 S.C.R.
A efits as admissible under the Rules. Under the Rules, the respondent is not
entitled to get such benefits. [943-D]

4. For grant of pension the members of the 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
B 48-A is entitled to pensionary benefits. Rule 19 of the BSF Rules also does
not make any provision for grant of pensionary benefits. Therefore, by
erroneous interpretation of the Rules if pensionary benefits were granted -""- _
to someone it would not mean that the said mistake should he perpetuated
by direction of the Court. It would be unjustifiable that by an appropriate
C 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 or a decision,
which is de hm;,· the statutory rules, nor there can be any estoppel. Further,
in such cases there cannot he any consideration on the ground of hardship.
If Rules are not providing for grant for pensionary benefits it is for the
D authority to decide and frame appropriate Rules, but Court cannot direct
payment of pension on the ground of so-called hard•hip likely to he caused
to a person who has resigned without completing qualifying service for
getting pensionary benefits. As a normal rule, pen.•ionary benefits arc
granted to a government servant who is required to retire on his attaining
E the age or compulsory retirement except in those cases where there arc
special provision.,. [943-F-H; 944-A-B]

5. The Government cannot amend or substitute statutory Rules
by administrative instructions, but if the Rules arc silent on any parti-
cular point, the Government can fill up the gaps and supplement the
F Rules by issuing instructions not inconsistent \vitb the Rules. The Govern-
ment can also confer certain benefits on its employees by administrative
order. [940-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6166of1999.

G From the Judgment and Order dated 20.4.99 of the Himachal Pradesh
High Court in C.W.P. No. 761 of 1998.

WITH
Civil Appeal No. 2121of2000 and Civil Appeal Nos. 2491-92 of 2001.

H Mukul Rohtagi, Additional Solicitor Generai, Ms. B. Sunita Rao, Ms.
U.0.1. v. RAKESH KUMAR [SHAH, J.] 931
Halida Khatoon for D.S. Mehra and Ms. Sushma Suri (NP) for the Appellants. A
Javed Mahmud Rao, VJ. Francis and Jitender Mohan Sharma for the
Respondents.

The Judgment of the Court was delivered by
B
SHAH, J. Leave granted in S.L.P.(C) Nos.16644-45 of 1999.

- .> The question involved in these appeals is - whether members of BSF
who have resigned from tl1eir posts after serving for ten or more years but
less than 20 years are entitled to pension/pensionary benefits under the
relevant provisions of the Border Security Force Act, 1968 (hereinafter C
referred to as "the BSF Act") and the Border Security Force Rules, 1969
(hereinal\er referred to as "the BSF Rules") or the Central Civil Services
(Pension) Rules, 1972 (hereinafter refened to as "the CCS (Pension) Rules")?

Brief facts of Civil Appeal No. 6166 of 1991 are that - respondent filed
Civil Writ Petition No.761 of 1998 before the High Court of Himachal D
Pradesh praying for writ directing tl1e appellants to fortl1with release the
pension due to the respondent w.e.f. !st March, 1994 and for release of past
atTears of pension with interest. It is the case of the respondent that he joined
the Border Security Force (hereinafter referred to as 'BSF') as a constable
on 15.1.1981 and continued to serve till he submitted his resignation on E
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 BSF Rules.

TI1ereafter, tl1e Government of India, Ministry of Home Affairs issued
G.O. dated 27th December, 1995 conveying its decision to the Directorate
General, B .S.F. (Persom1el) in the matter of admissibility of pensionary F
benefits on acceptance of resignation under Rule 19 of tl1e Rules. The G.O.
was passed to finalise the claims made by number of Ex. BSF personnel for
getting the pensionary benefits on acceptance of their resignation under
Rule 19. On the basis of the aforesaid G.O., respondent represented to the
Inspector General, BSF on 2nd April, 1996 for grant of pensionary benefits.
G
Finally, after receipt of legal notice under Section 80 of CPC, the competent
authority passed the following order No. 3563/(PF.RK)/97-Est.Il/42328 on
3.5.1997:

"In partial modification of this office order No.34ll/Estt.-ll/94/
239 dated 28th Feb., 1994 and as approved by Competent Authority, H
932 SUPREME COURT REPORTS (2001] 2 S.C.R.
A No.810050310 Ex-Naik Rakesh Kwnar of I of A, BSF Academy
Tekanpur is hereby allowed full pensionary benefits as admissible
under rules consequent upon his resignation from BSF service, which
was accepted w.e.f. !st March, 1994 (FN) Rule 19 of BSF Rules."

(Emphasis added)
B
However, as the pension was not released the respondent was required
to approach the High Court. The High Court allowed the petition and directed ""-. -
the competent authority to quantify the pensionaty benefits which the
respondent was entitled to from the date of his retirement i.e., 1.3.1994. That
C order is challenged in this appeal.

Similar directions are issued on 22nd July, 1999 by the High Court of
Himachal Pradesh in Writ Petition No.783 of 1998 which are challenged in
Civil Appeal No. 2121 of 2000.

D In Civil Appeal No. of 2001 ansrng out of SLP (Civil)
Nos.16644-45, it is the case of respondent P.K. Surendran Nair that he was
enrolled in BSF in May, 1970. He resigned from the service and his
resignation was accepted with effect from 24.1.1981 after completing more
than IO-years of service. At that time pensionary benefits were not granted
to him. He submitted representation for grant of pension. By order dated
E 19.2.1997, competent authmity sanctioned full pensionary benefits as admis-
sible under the rules w.e.f. 24. l.1981. As the pensionary benefits were not
released in favour of the respondent, he approached the High Court of Kerala
by filing OP No.17228 of 1998 praying for a direction to the appellants to
disburse pensionary benefits. TI1e High Court by interim order dated 15.10.1998
F directed the appellants to disburse pensionary benefits to the respondent
pending disposal of the writ petition. That order was challenged in W.A.
No.2648 of 1998. After hearing the parties, by the impugned judgment and
order dated 4.3.1999, the Division Bench dismissed the writ appeal by
holding that the authority has sanctioned full pension for the service rendered
by tl1e respondent in the BSF in accordance with Rule 19 of the BSF Rules
G
and there cannot be any legal impediment for disbursing the same. Against
that order, the present appeal is filed.

The learned Additional Solicitor General Mr. Rohtagi appearing for the
Union of India submitted that the impugned orders passed by the High Courts
H are erroneous as the same misinterpret Rule 19 of the BSF Rules. It is his
U.0.1. v. RAKESH KUMAR [SHAH, J.] 933
contention that neither the Act nor the rules make provision for grant of A
pension. The proviso to Rule 19 empowers the Government to impose two
different penalties if it chooses to permit resignation. The two penalties
provided in sub-clause are: (i) the officer is required to refund to the
Government such amount as would constitute the cost of training given to
that officer; or (ii) it may make such reduction in the pension or other
B
retirement benefits of the officer "if so eligible" as the Government may
consider to be just and proper in the circumstances. The grant of pension to
the member of the BSF is governed by the CCS (Pension) Rules. It is his
->
submission that in case resignation of member of the Force is accepted it
would not mean that he has retired from service. Resignation would mean
voluntary act of qmtting the job/service and implies that employee though fit C
in all respects decides to quit and leave the service. As against this, retirement
implies a tenure although it may not be a full tenure having completed in tl1e
job and thereafter employee leaves the service. Retirement can be at tl1c age
of superannuation, compulsory retirement or retirement on exigencies like
becoming invalid etc. It is his submission that resignation of an employee D
would not mean that he has retired at the age of superannuation or there is
premature retirement which may be compulsory or because of other exigen-
cies and, therefore, there is no question of grant of any pension to the
employee under the CCS (Pension) Rules.

The learned counsel appearing on behalf of respondents however E
submitted that Rule 19 is interpreted by the Central Government hy issuing
GO dated 27th December, 1995. It clarifies that in case of acceptance of
resignation of an employee after lapse of JO years of service he is entitled
to get pension. May be that, competent authority may reduce some part of
the pension under proviso to Rule 19 on resignation being accepted. In any F
case, appellants are estopped from contending that the respondents are not
entitled to get pensionary benefits in view of the G.O.

In these matters, learned counsel for the parties accepted that for grant
of pension members of the BSF are governed by the CCS (Pension\ Rules.
However, learned counsel for the respondents submitted that Pension Rules G
are subject to Rule 19 of the BSF Rules and, therefore, they are entitled to
get pensionary benefits on the basis of GO issued by the Central Government
as well as specific orders passed by the competent authority. It is also stated
by the learned Additional Solicitor General that from 14.1.1998 proviso to
Rule 19 stood deleted. H
934 SUPREME COURT REPORTS (2001] 2 S.C.R.
A For appreciating the contentions raised by the learned counsel for the
parties it would be necessary to refer to Section 8 of the BSF Act and Rule
19 of the Rules which are as under:

"Section 8. - Resignation and withdrawal from the post.-No member ..
of the Force shall be aJ libeny,-
B
(a) to resign his appointment during the term of his engagement;
or

(b) to withdraw himself from all or any of the duties of his
appointment,
c
except with the previous permission in writing of the presc1ibed
1
authority. '

"Rule 19. - Resignation. - (1) The Central Government may, having .~
regard to the special circumstances of any case, permit any officer of
D
the Force to resign from the Force before the aJtainment 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:

Provided that while granting such pennission the Central
E Government may:-

(a) require the officer to refund to the Government such
amount as would constitute the cost of training given to
that officer; or

F (b) make such reduction in the pension or other retirement
benefits of the officer if so eligible as that Government
may consider to be just and proper in the circumstances.

(2) The Central Government may accept the resignation under
sub-rule (1) with effect from such date as it may consider expedient:
G
Provided that it shall not be later than three months from the date
of receipt of such resignation. ...
(3) The Central Government may refuse to permit an officer to
H resign-
U.0.1. v. RAKESH KUMAR [SHAH, J.] 935
(a) if an emergency has been declared in tl1e country either A
due to internal disturbances or external aggression; vr

(b) if it considers it to be inexpedient so to do in the interests
of the discipline of the Force; or

(c) if the officer has specifically undertaken to serve for a B
specific pe1iod and such period has been not expired.

(4) The provisions of this rule shall apply to and in relation to
Subordinate Officers and Enrolled Persons as they apply to and in
relation to any officer of the Force and the powers vested in the
Central Government under sub-rules (1) and (2) shall be exercised in
c
the case of a Subordinate Officer by a Deputy Inspector-General and
in the case of an Enrolled Person by a Commandant."

(Emphasis added)
D
Bare reading of Section 8 of the Act makes it clear that no member
of the BSF will have right to resign except with prior pennission in writing
of the prescribed authmity. The language is prohibitory and the member of
the BSF is not having liberty to resign from his appointment during the term
of his engagement, however, the prescribed authority may permit the member
of tl1e BSF to resign in certain special circumstances. Rule 19 does not create E
any right to pension. It is intended to enable members of BSF to resign from
force without attracting any penal consequences. For that, Rule 19 provides
that Central Government having regard to the special circumstances of any
case may pe1mit any otlicer of the force to resign before the attainment of
the age of retirement or before putting in such number of years of service F
as may be necessary under the Rules to be eligible for retirement. Discre-
tionary powers are given to the authority to accept or reject the resignalion.
Proviso to Rule 19(1) empowers the Central Gove1mnent, while granting
permission to resign, to require the officer to refund to the Gove1mnent such
amount as would constitute the cost of training given to that officer. Further,
if the officer is eligible to get pension or other retirement benefits, rules
G
empower the Government to make reduction in the pension or other retire-
ment benefits.

The next step is-once it is accepted that members of the BSF are
governed by the CCS (Pension) Rules, tl1en the question is whether a member H
936 SUPREME COURT REPORTS [2001] 2 S.C.R.
A is entitled to get pension on his resignation before compulsory age . of
retirement or 20 years of service or if he retires or is retired at the age of
30/33 years of qualifying service. The scheme of the said Rules provides that
normally a government servant is entitled to get pensionary benefits after he
retires at the age of superannuation. There are exceptions for grant of
pensionary benefit in cases where government servant voluntarily retires after
B
completing 20 years of qualifying service and also retires after completing
30/33 years of qualifying service, invalid pension or compensate pension or
on compassionate grounds etc. Chapter V deals with grant of pensions and
the conditions for such grants. As per Rule 35 superannuation pension is to
be granted to a government servant who retires on his attaining the age of
c compulsory retirement. Retiring pension is further given to a government
servant who retires or is retired in advance of age of compulsory retirement
in accordance with the provisions of Rule 48 after completing 30 years of
qualifying service or Rule 48-A of the CCS (Pension) Rules or Rule 56 of
the Fundamental Rules or Article 459 of the Civil Service Regulations. Rule
48- A provides for voluntary retirement after completion of 20 years quali-
D
fying service after giving three months notice in writing to the appointing
authority and if such notice is accepted he would get retiring pension.
Thereafter, Rule 49 provides for method of calculation of amount of pension
lo such government servant. Relevant parts of the CCS (Pension) Rules for
grant of pension are as under: -
E
"35. Superannuation Pension A superannuation pension shall be
granted to a Government servant who is retired on his attaining the
age of compulsory retirement.

36. Retiring Pension. A retiring pension shall be granted-
F
(a) to a Government servant who retires, or is retired, in
advance of the age of compulsory retirement in accord-
ance with the provisions of Rule 48 or 48-A of these rules,
or Rule 56 of the Fundamental Rules or Article 459 of the
Civil Service Regulations; and
G
(b) to a Government servant who, on being declared surplus,
opts for voluntary retirement in accordance with the
provisions of Rule 29 of these rules.

48. Retirement on completion of 30 years' qualifying service.
H
U.0.1. v. RAKESH KUMAR [SHAH, J.] 937
(I) At any time after a Government servant has completed thirty A
-+ 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 B
the Government servant shall be entitled to a retiring
-> pension:

Provided ...

48-A. Retirement on completion of 20 years' qualifying service.
c
(I) 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. D

Provided ... "

On behalf of respondents, heavy reliance is placed on Rule 49 which
reads thns:
E
"49. Amount of Pension. (!) In the case of a Govenunent servant
retiring in accordance with the provisions of these rules before
completing qualifying service of ten years, the amount of
service gratuity shall be calculated at the rate of half month's
emoluments for every completed six monthly period of quali- F
fying service.

(2) (a) In the case of a Government servant retiring in accordance
with the provisions of these rules after completing qualifying
service of not less than thirty-three years, the amount of pension
shall be calculated at fifty per cent of average emoluments, G
subject to a maximum of fonr thousand and five hundred rupees
per mensem.

(b) In case of a Government servant retiring in accordance with
the provisions of these rules before completing qualifying H
938 SUPREME COURT REPORTS [2001]2S.C.R.
A service of thirty-three years, but after completing qualifying
service of ten years, the amount of pension shall be proportion-
ate to the amount of pension admissible under clause (a) and in
no case the amount of pension shall be less than Rupees three
hm1dred and seventy-five per mensem.

B (c) Notwithstanding anything contained in Clause (a) and
Clause (b) the amount of invalid pension shall not be less tlian
the amount of family pension admissible under sub-rule (2) of
Rule 54.

(3) In calculating the length of qualifying service, fraction of a
c year equal to three months and above shall be treated as a
completed one half-year and reckoned as qualifying service.
,,
(4)

Aforesaid procedure under Rule 49, is for calculating and quantifying
D the amount of pension which a government servant is entitled to if he retires
on superannuation or if he retires or is retired after completion of 30 or 33
years of service or voluntarily retires after completing 20 years of qualifying
service and provides: -

(a) If the qualifying service is less than 10 years, the government
E
servant would not be entitled to get pension but he would be
entitled to receive the amount of service gratuity.

(b) Ifhe has completed qualifying service of not less than 33 years,
the amount of pension is to be calculated at 50 per cent of the
F average emoluments subject to the maximum provided therein.

(c) ·In case of government servant retiring before completing quali-
t'ying senrice of 33 years, but after completing qualifying
service of 10 years, he would get pension which would be
proportionate to the amount of pension admissible under clause
G (a).

(d) The minimum amount of pension shall not be less tlian Rs. 375
per month.
~
(e) Invalid pension also shall not be less than the amount of family
H pensioc admissible under sub-rule (2) of rule 54.
U.0.1. v. RAKESH KUMAR [SHAH, J.] 939
On the basis of Rule 49, it has been contended that qualifying service A
for getting pension would he ten years. In our view, this submission is without
any basis. Qualifying service is defined under Rule 3(q) to mean service
rendered while on duty or otherwise which shall be taken into account for
the purpose of pensions and gratuities admissible under these rules. Rule 13
provides that qualifying service by a government servant commences from
B
the date from which he takes charge of the post to which he is first appointed
either substantively or in an officiating Or temporaty capacity. This rule
-> nowhere provides that qualifying service for getting pension is 10 years. On
the contrary, there is specific provision that if a government ~ervant retires
before completing qualifying service of 10 years because of his attaining the
age of compulsory retirement, he would not get pension but would get the c
amount of service gratuity calculated at the rate of half months emoluments
for every completed six monthly period of qualifying service. In these
appeals, we are not required to consider other conditions prescribed for
qualifying service as it is admitted that respondent-members of the BSF have
completed more than 10 years of qualifying service. Further clause 2(a) of D
Rule 49 specifically provides for grant of pension if a government servant
retires after completing qualifying service of not less than 33 years. The
amount of pension is to be calculated fifty per cent of average emoluments
subject to maximum provided therein. Clause 2(b) upon which much reliance
is placed indicates that in case of a government servant retiring in accordance
with the provisions of the Rules before completing qualifying service of 33 E
years, but after completing qualifying service of ten years, the pension shall
be propmtionate to the amount of pension admissible under clause (a) and
in no case, the amount of pension shall be less than Rs. 375 per month. lbis
would only mean that in case where government servant retires on superan-
nuation i.e. the age of compulsory retirement as per sen'ice conditions or in F
accordance with the CCS (Pension) Rules, after completing 10 years of
qualifying service, he would get pension which is to be calculated and
quantified as provided under clause (2) of Rule 49. This clause would cover
cases of retirement llllder Rules 35 and 36, that is, voluntary retirement after
20 years of qualifying service, compulsory retirement atier prescribed age and
G
such other cases as provided under the Rules. However, this has nothing to
do with the quitting of service after tendering resignation. It is also to be
stated that Rule 26 of CCS (Pension) Rules specifically provides that resig-
nation from a service or post entails forfeiture of past service unless re.sig-
nation is submitted to take up, with proper pennission, another appointment
under the government where service qualifies. Hence, on the basis of Rule H
940 SUPREME COURT REPORTS (2001] 2 S.C.R.
A 49 member of BSF who has resigned from his post after completing more
tlian 10 years of qualifying service but less than 20 years would not be
eligible to get pensionary benefit. There is no other provision in the CCS
(Pension) Rules giving such benefit to such Government servants.

Tue learned counsel for the respondents however relied upon the G.O.
B dated 27.12.1995 issued by the Government and submitted that on the basis
of the aforesaid G.0., the competent authority has passed an order granting
pension and, therefore, the High Court was right in giving direction to the
Government to release the pension. It is further submitted that after interpret-
ing Rule 19 of the BSF Rules, the Government has power to grant pension
c to the member of BSF who is permitted to resign because of special
circwnstances. Special circumstances may be that the member might have
become invalid to render service, so his resignation is accepted. It is also
submitted that once the Government has issued administrative instructions
which supplement existing Rules specifically for the members of the BSF, it
cannot be said that the said G.O. is against the statutory rules and, therefore,
D it is not binding on the Government. For this purpose, reliance is placed on
Rule 6 which reads thus:

"6. Case unprovided for. - In regard to any matter not specifically
provided for in these rules, it shall be lawful for the competent
authority to do such tl1ing or take such action as may be just and
E
proper in the circumstances of the case."

As against this, the learned Additional Solicitor General submitted that
G.0. nowhere provides that such members are entitled to pensionary benefits
if they are not eligible. He submitted that if the interpretation of the rules
F given by the competent authority is against the statutory rules then it is not
binding on the Government and any subsequent order based on such G.O.
would be illegal.

In our view, there cannot be any doubt that Government cannot amend
or substitute statutory rules by administrative instrnctions, but if the rules are
G silent on any particular point, the Government can fill up the gaps and
supplement the rules by issuing instrnctions not inconsistent with the rules.
Government also can confer certain benefits on its employees by administra-
tive order. For finding out whether by the G.O. dated 27.12.1995 the.
Government has conferred certain benefits on the members of the BSF, we
H would refer to it as a whole, which is as nuder:
-1
U.O.l. v. RAKESH KU!v(AR [SHAH, J.] 941
"To A
All Frontier Border
All SHO BSF including DIG (HQ) New Delhi
All Trg. Institutions
TSU/Cenwosto/CSMT/Signal Regt./
HQ Arty/SIW/SRO
All Bns BSF
B
All Arty Reg ts BSF
->
Sub: GRANT OF PENSIONARY BENEFITS ON RESIGNATION
UNDER RULE 19 OF THE BSF RULES, 1969.
c
Attention is invited to this HQ letter No. F35036/3/78-Staff/BSF/
dated 4th November, 1981 conveying the decision of the Ministry of
Home Affairs in the matter of admissibility of pensionary benefits on
acceptance of resignation under Rule 19 of the BSF Rules, 1969.

2. In this connection the undersigned is directed to iuform that the D
matter was again refen-ed to the Government to review their decision
in order to give pensionary benefit to members of the BSF on
tendering resignation under Rule 19 of the BSF Rules, 1969. The
lvlinistry of Home Affairs in consultation with the Department of
Pension & Pensioners Welfare has agreed to our proposal and decided E
not to amend Rule 19 of the BSF Rules, 1969 till such time separate
Pension Rules for the BSF Personnel are framed. Tile Government has
also agreed to our views that a member of the Force is entitled to get
pensionary benefits on. resignation under Rule 19 of the said Rules
provided he has put in requisite number of years of service and.fulfill'
all other eligibility conditions. F

3. A number of Ex-BSF personnel have filed petitions in various
Courts of Law claiming for the grant of pension on their resignation
from service under the provisions of Rule 19 of the BSF Rules, 1969.
Besides this a number of notices nnder Section 80 CPC are also being
G
received in this regard.

4. Rule 19(1) of the BSF Rules, 1969 provides that the competent
authority may, having regard to special circumstances of 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 H
i
942 SUPREME COURT REPORTS (2001] 2 S.C.R.
A service as may be necessary under the rules to be eligible for
retirement. The authority co1npetent to grant 3Uch permission is also
empowered to make such reductions in the pension or other retire-
ment benefits of a member of the Force if so eligible as it may
consider just and proper in the circumstances of the case.

B 5. In view of the provisions contained in Rule 19 of the BSF Rules,
1969 as mentioned in Para 4 above and based on the approval of the
MHA as per para 2 above in future the authorities who accept the
resignation of a member of the Force shall specify in the order the
reduction to be made in the pension if any as per the provisions
c contained in provision (ii) to rule 19(i) of the BSF Rules, 1969. In
case no such reduction is specified in the order regarding acceptance
of resignation it would imply that no reduction in the pension has been
made.

6. In order to decide all pending cases including the ones which are
D presently under adjudication it is incumbent on all authorities to
undertake thorough review of all pending cases. For this purpose
cases of resignation accepted in respect of members of the Force who
have not been allowed pensionary benefits will be reviewed and pass
necessary orders within the shortest possible time limit. In this regard
Frontier is G and Heads of Trg. Institutions will ensure that these
E
instmctions have been complied with by the Units/Establishments
under their administrative control."

The aforesaid G.0. makes it clear that there was a demand for grmt
of pensionary benefit on acceptance of the resignation under Rule 19 and that
F demand was accepted by the Government. Paragraph 2 of the G.O. makes
it clear that Government has agreed that member of the BSF is entitled to
get pensionary benefits on resignation under Rule 19 provided he has put in
requisite number of years of service and fulfils all other eligibility conditions.
Paragraph only reiterates Rule 19. It also clarifies that authority competent
to grant pe1mission to resign is also empowered to make reduction in pension
G if the member of the BSF is eligible to get such pension. Paragraph 5 provides
that in future tl1e competent authority who accepts the resignation would
specify in order the reduction to be made in the pension if any and if no such
reduction is specified in the order, it would imply that no reduction in the
pension bas been made. Under paragraph 6, directions are issued for pending
-~cases where resignation was accepted but pensionary benefits were not

I
U.0.1. " RAKESH KUMAR [SHAH, J.] 943
allowed and provide tlrnt necessary orders should be passed within shortest A
possible time. Reading the aforesaid G.O. as a whole, it no where reveals
Government's intention to confer any additional pensionary benefit to the
members of the BSF who retired before completing the requisite qualifying
service as provided rmder the CCS (Pension) Rules. It neither supplements
nor substitutes the statutory rules. The G.0. read with Rule 19 of the BSF
B
Rules would only mean that in case of resignation and its acceptance by the
competent authorities, the member of the BSF would be entitled to get
pensionary benefits if he is otherwise eligible for getting the saine under the
CCS (Pension) Rules and to that extent Rule 26 which provides for forfeiture
of service on resignation would not be applicable. Hence, there is no
substance in the contention of the learned counsel for the respondents that C
in view of the G.O. or specific orders passed by tl1e competent anthority
granting pension, appellants are estopped from contending that such officers
are not entitled to get pensionary benefits. As stated above, the G.O. does
not confer any additional benefit. Even the specific order which is quoted
above in favour of Naik Rakesh Kumar, the authority has stated that he would D
get pensionary benefits as admissible under the Rules. Under the Rules, he
is not entitled to get such benefits.

Learned counsel for the respondents submitted that on the basis of
G.O., number of persons are granted pensionary benefits even though they
have not completed 20 years of service, and, therefore, at this stage, Court E
should not interfere and see tlrnt the pensionary benefits granted to the
respondents a:i:e not disturbed and are released as early as possible. 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
F
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 G
someone it would not mean that the said mistake should be perpetuated by
direction of the Court. lt 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 H
944 SUPREME COURT REPORTS [2001] 2 S.C.R.

A is de hors the statutory rules uor 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 benefits it is for the authority to
decide and frame appropriate rules but Court cannot direct payment of
pension on the ground of so-called hardship likely to be caused to a person
who has resigned without completing qualifying service for getting pensionary
B
benefits. As a normal rule, pensionary benefits are granted to a government
servant who is required to retire on his attaining the age of compulsory
retirement except in those cases where there are special provisions.

In the result, there ·is no substance in the contention of the learned
C counsel for the respondents that on the basis of Rule 49 of the CCS (Pension)
Rules or on the basis of G.O., the respondents who have retired after
completing qualifying service of 10 years but before completing qualifying
service of 20 years by voluntary retirement, are entitled to get pensionary
benefits. Respondents who were permjtted to resign from service under Rule
19 of the BSF Rules before the attainment of the age of retirement or before
D putting snch number 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. Rule 49 only prescribes the
procedure for calculation and quantification of pension amount .. The G.O.
dated 27.12.1995 does not confer any additional right of pension on the BSF
E employees.

Hence, the aforesaid appeals are allowed and the impugned orders are
set aside. There shall be no order as to costs.

v.s.s. Appeals allowed.