Biju R v. Commandant, 45th Battalion, Assam Rifles; Director General, Assam Rifles and Secretary, Ministry of Home Affairs

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938** **WP(C).No. 3385 of 2013 (W) ---------------------------** **PETITIONER:** **-----------** **BIJU R, NO.357935, ASSAM RIFLES, RESIDING AT VIJU BHAVAN, KARIYAM, SREEKARIYAM P.O., THIRUVANANTHAPURAM-695 017.** **BY ADV. SRI.S.VISHNU** **RESPONDENT(S):** **-------------** **1.THE COMMANDANT, 45TH BATTALION, ASSAM RIGLES, C/O.99 ARMY POST OFFICE, PIN-932 045.** **2.THE DIRECTOR GENERAL, MAHANIDHESHALAYA ASSAM RIGLES, DIRECTORATE GENERAL, ASSAM RIFLES, SHILLONG-793 011.** **3.THE SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.** **BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL OF INDIA BY ADV. SRI.T.SANJAY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 3385 of 2013 (W) --------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE DISCHARGE CERTIFICATE ISSUED BY THE COMMANDANT, 45 BATTALION.** **EXHIBIT P2. TRUE COPY OF THE COMMUNICATION NO.357935/45AR/DISCH/07/NE-IIIM DATED 1.8.2007 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3. TRUE COPY OF THE APPEAL DATED 26/10/2010 TO THE 2ND RESPONDENT.** **EXHIBIT P3a. TRUE COPY OF THE REPRESENTATION DATED 15/6/2012 TO THE 2ND RESPONDENT.** **EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED 20/3/2011 TO THE 3RD RESPONDENT.** **EXHIBIT P4a. TRUE COPY OF THE REPRESENTATION DATED 15/6/2012 TO THE 3RD RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1(A): TRUE COPY OF DISCHARGE APPLICATION FOR PREMATURE RELEASE FROM SERVICE WITH UNDERTAKING CERTIFICATE DATED 21.4.2006. EXT.R1(B): TRUE COPY OF RULES 26 OF CCS(PENSION) RULES, 1972. EXT.R1(C): TRUE COPY OF RULES 48-A OF CCS(PENSION) RULES, 1972.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **P.V.ASHA, J.** ## **W.P.(C) No.3385 of 2013** ## **Dated this the 14[th] day of June, 2016** ## **JUDGMENT** The petitioner who got discharged from Assam Rifles, based on his own request, claims pensionary benefits, treating his discharge from service as voluntary retirement, saying that he was not relieved on resignation. 2. The petitioner joined Assam Rifles, which is a Para Military Force under the Government of India, on 20.3.1995. In order to undergo infertility treatment, he requested for discharge from service and accordingly as per Ext.P1 discharge certificate, he was relieved from service on 31.8.2006, on completion of 11 years 5 months and 12 days of service. The petitioner claims that since he has completed more than ten years of service, he is eligible for pension in the light of Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the Rules for short). 3. The respondents have filed a counter affidavit stating that the petitioner was discharged on the basis of his own request on 21.4.2006 and that discharge from service on the basis of his request can only be reckoned as resignation. As per rule 26 of the Rules, a resignation from a service or a post, unless it is allowed to be W.P.(C) No.3385 of 2013 **==> picture [14 x 9] intentionally omitted <==** withdrawn in public interest by the appointing authority, entails forfeiture of past service and therefore he is not entitled to pension. The respondents have produced Ext.R1(a) which shows that at the time of relieving of the petitioner, as he he had applied for discharge from service on compassionate grounds, he was personally interviewed by the Commandant and it was explained to him that no pensionary benefits would be admissible to him. They have also produced the undertaking certificate dated 20.4.2006 by which the petitioner certified that he understood that he would not be entitled to any pensionary benefits for the service rendered by him in the Assam Rifles. Petitioner was discharged from service, on the basis of the recommendation by the Commandant, after issuing the certificate regarding in-admissibility of pensionary benefits for those discharged on request and after obtaining an undertaking from the petitioner. 4. Even otherwise discharge from service on the basis of one's own request, for his own personal purposes can only be treated as resignation. As the total service rendered by petitioner was only 11½ years, the relief from Assam Rifles cannot even be treated as voluntary retirement, since Rule 48A, which deals with voluntary retirement, requires a person to have 20 years of service for availing voluntary retirement. There is no provision under the Rules which enables the petitioner to seek pension. The petitioner is not one who W.P.(C) No.3385 of 2013 **==> picture [14 x 9] intentionally omitted <==** was compulsorily retired in the interest of Government. Therefore, he does not come under the purview of Rule 38, 39, 40, 47 or 48 also. 5. I heard the learned counsel appearing for the petitioner as well as the learned standing counsel for the Central Government. 6. From the documents produced on either side, it is clear that the petitioner was discharged on the basis of his own request when he did not have the requisite qualifying service for sanctioning pension. More over, in a case where an officer is discharged on request before completing the minimum qualifying service prescribed for becoming eligible for pension, he can only be considered to have tendered resignation which entails forfeiture of past service under Rule 26 of the Rules. 7. Under these circumstances, the petitioner does not have any right for pension as claimed by him. Hence the relief sought by the petitioner to direct the respondents to consider his representation seeking the very same relief also cannot be allowed. 8. Sri.Sanjay, the learned CGSC relied on the judgment of the Apex court in _**Union of India Vs. Braj Nandan** [2005 (8) SCC 325],_ in which it was held that a resignation which is submitted for a purpose other than for taking employment under Government will result in forfeiture of service under rule 26 and in such cases the officer will not be eligible for pension. In the judgments of the Apex W.P.(C) No.3385 of 2013 **==> picture [14 x 9] intentionally omitted <==** Court in _**Padubidri Damodar Shenoy Vs. Indian Airlines Ltd.** [2009 (10) SCC 514]_ and _**RBI Vs. Cecil Deniis Solomon** [2004 (9) SCC 465]_ the Apex Court has elaborately considered the difference between voluntary retirement and discharge from service. In _**Padubidri Damodar Shenoy's case** (supra)_ the apex court was considering the case of an Airport Manager of Indian Airlines who submitted application for voluntary retirement before he attained 55 years, but on completion of 29 years of service, but was not relieved even on completion of notice period. As the Service Regulations provided for voluntary retirement only for those who attained the age of 55 years, the action of the Airlines was upheld. Para 26 of the judgment reads as follows: _“26. In Jaipal Singh v. Sumitra Mahajan:(2004) 4 SCC 522 in an appeal from an election petition, this Court had an occasion to consider the difference between “voluntary retirement” and “resignation”. This Court held thus: (SCC p. 528, para 10)_ _“10. … In RBI v. Cecil Dennis Solomon (2004)9 SCC 461 this Court has laid down that in service jurisprudence there is a difference between ‘voluntary retirement’ and ‘resignation’ as they convey different connotations. It has been held that voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service and though both involve voluntary acts, they operate differently. One of the basic distinctions between the two is that in the case of resignation, it can be tendered at any time but in the case of voluntary_ :5: ## W.P.(C) No.3385 of 2013 _retirement, it can only be sought for after rendering prescribed period of qualifying service. In the case of resignation, a prior permission is not mandatory while in the case of voluntary retirement, permission of the employer concerned is a requisite condition. Under Rule 16 of the 1958 Rules, an employee who seeks voluntary retirement has to give three months’ notice to enable the employer to complete the designated mode of acceptance. (See Halsbury’s Laws of England, 4th Edn., Vol. 9, p. 133.) Lastly, in a given case, the appointing authority may refuse to waive the said notice period which shows that resignation may be unilateral whereas voluntary retirement is bilateral. A similar question came up before this Court in UCO Bank v. Sanwar Mal (2004) 4 SCC 412 in which this Court has inter alia held that in the case of ‘resignation’, the relationship of employer and employee terminates on acceptance of resignation whereas in the case of ‘retirement’, voluntary or on superannuation, the relationship continues for the purposes of payment of retiral benefits. In the case of retirement, there is a nexus between such retirement and retiral benefits.”_ 9. Thus in order to claim the benefit of voluntary retirement, one should have the requisite qualifying service of pension which has been fixed as 20 years, apart from the approval and acceptance of voluntary retirement. In this case the petitioner does not have 20 years of service and therefore he is not entitled to pension. Similarly in Border Security Force, in a case relating to resignation from BSF the Supreme Court has in the judgment in _**Union of India v. Madhu E.V.,** (2012) 5 SCC 474_ _**,**_ held that the BSF personnel who were permitted to resign W.P.(C) No.3385 of 2013 **==> picture [14 x 9] intentionally omitted <==** from service under Rule 19 of the BSF Rules before the attainment of the age of retirement or before putting the minimum pensionable service of 20 years will not be entitled to pension. Referring to the judgment in _**Shashikala Devi Vs. Central Bank of India** [2014 (16) SCC 260]_ , where the Apex Court directed that the deceased employee's letter cannot be treated as resignation at a time when he had the requisite qualifying service for seeking voluntary retirement, it is argued that in this case, the discharge from service cannot even be converted as voluntary retirement as held therein, since the petitioner does not have the minimum pensionable service. Similarly in the judgment reported in _**State of Kerala Vs. E.K.Varghese** [2016 (1) KHC 35]_ a Division Bench of this Court, to which I was also a party, had upheld the constitutional validity of Rule 29 of Part I KSR which provides that resignation entails forfeiture of service. Once the service is forfeited, one cannot seek any of the benefits out of such service. In the above circumstances, no reliefs can be granted to the petitioner. The writ petition fails and is dismissed. Sd/- **P.V.ASHA JUDGE** rkc