Vysan P.S. v. Union of India & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939** ## **WP(C).No. 3760 of 2015 (T)** **---------------------------** **PETITIONER :** **-----------------** **VYSAN P.S., S/O.LATE P.T. SATHYAN, NO.015240527, CONSTABLE GD, DISCHARGE W.E.F 24.04.2011 FROM CRPF, NOW RESIDING AT PULLANTHARA, THUNDIYIL HOUSE, POONITHURA P.O., ERNAKULAM DISTRICT, KOCHI - 682 038.** **BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SRI.ARUN BOSE** **RESPONDENTS :-:** **1. UNION OF INIDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110 001.** **2. THE DIRECTOR GENERAL OF CENTRAL RESERVE POLICE FORCE, HEAD QUARTERS CRPF, BLOCK NO.1, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **3. THE INSPECTOR GENERAL OF POLICE, CRPF, SREE NAGAR SECTOR, SREENAGAR.** **4. DEPARTMENT OF PENSION OF PENSIONERS WELFARE, REPRESENTED BY ITS SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONERS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI - 110 003.** **WP(C).No. 3760 of 2015 (T)** ## **---------------------------------------** ## **5. THE DEPUTY INSPECTOR GENERAL OF POLICE, GROUP CENTRE, CRPF CAMP, PALLLIPPURAM, THIRUVANANTHAPURAM, PIN - 695 316.** **R1 TO R5 BY ADV. SRI.N.NAGARESH, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 3760 of 2015 (T)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** **EXHIBIT P1: TRUE COPY OF THE CERTIFICATE OF SERVICE ISSUED BY THE CRPF AUTHORITIES. EXHIBIT P1(A): TRUE COPY OF THE ORDER NO.B.V.1/2011-ADM. - 01 DATED APRIL 2011 ISSUED BY THE DEPUTY INSPECTOR GENERAL (ADMN. SNR SECTOR. EXHIBIT P2: TRUE COPY OF THE RELEVANT PORTION OF THE 4TH PAY COMMISSION, RESOLUTION PUBLISHED IN THE GAZETTE OF INDIA DATED 18.03.987. EXHIBIT P3: TRUE COPY OF HTE O.M.NO.24/I/95-TERS/BSF DATED 27.12.1995. EXHIBIT P4: TRUE COPY OF THE JUDGMENT REPORTED IN 2013(0) SUPREME COURT (MAD) 100109. RESPONDENT(S)' EXHIBITS : --------------------------------------EXT.R1(a): COPY OF THE APPLICATION DATED 15/3/2011 IS PRODUCED ALONG WITH TRUE ENGLISH TRANSLATION. EXT.R1(b): COPY OF THE UNDERTAKING CERTIFICATE. EXT.R1(c): COPY OF THE OFFICE ORDER NO.D.V.1/2011-ADM-1 DATED 20/4/2011. EXT.R1(d): COPY OF THE RELEVANT PAGES OF SWAMY'S COMPLETE MANUAL ON ESTABLISHMENT AND ADMINISTRATION.** **//TRUE COPY// P.S. TO JUDGE** **bp** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.3760 of 2015-T ------------------------------------------- _Dated this the 21[st] day of November, 2017_ ## _**JUDGMENT**_ The petitioner joined Central Reserve Police Force (`CRPF' for short) on 16.03.2001 and he worked as a Constable for a period of 10 years and 33 days. He got discharged from CRPF as per Ext.P1(a) order in April, 2011. According to him, the qualified service for minimum pension has been reduced to 10 years as per Ext.P2 resolution issued on the basis of the 4[th] Pay Commission. Even though he requested for pension, the respondents denied it. He has filed this writ petition claiming pension asserting that he is eligible for pension since he has got a qualifying service of more than 10 years. 2. The respondents have filed a counter affidavit stating that the petitioner was discharged from service on the basis of his request and after he was explained the consequence of such a discharge. They have produced the application submitted by the petitioner as Ext.R1(a) in which he requested for discharge from service on the ground that there is nobody to look after his ailing mother since his father expired a few months back. The 2 W.P(C) No.3760 of 2015-T respondents thereafter explained the consequences arising out of discharge, to the petitioner. Based on this the petitioner submitted an undertaking Ext.R1(b) to the effect that he will not withdraw his application for discharge submitted on 15.3.2011 at a later stage and stating that the hardship he may face in the event of his discharge and the difficulties he will have to face in the economic age on account of it, were explained to him in detail. It was thereafter that Ext.R1(c)/Ext.P1(a) order dated 20.4.2011 was issued to the petitioner striking off his name from the strength of the office, accepting his application for discharge. 3. According to the petitioner, he did not submit resignation and his request was only for discharge from service and therefore he is entitled to pension. The learned counsel for the petitioner submits that there is a specific provision for discharge under Rule 17 of the CRPF Rules, 1955, which provides that any member of the Force would be entitled to claim his discharge from Force by submitting his application through his appointing authority through proper channel at any time after he completed 3 months' service or after completion of full period of service. It is also pointed out that resignation is provided under Section 16(d) of the Act and as per this provision, any member of the force can submit his resignation during the 3 W.P(C) No.3760 of 2015-T period of his appointment and the appointing authority will be free to consider it. 4. In the counter affidavit the respondents have stated that a person, who is discharged from service does not get any benefit of his past service and it is equivalent to resignation covered by Rule 26(1) of CCS (Pension) Rules which provides for resignation from service or post and that unless it is allowed to be withdrawn in public interest, the Government servant would not be entitled to any pension, gratuity or terminal benefits. In the case of the petitioner, his request for pension on the ground that he has completed 10 years of service cannot be accepted because Rule 49 of CCS (Pension) Rules 1992 is applicable only in a case where the retirement is in accordance with CCS (Pension) Rule, 1972 and Rule 49 of CCS (Pension) Rules cannot be applied in a case where a person who is discharged either on resignation or on discharge from service. The petitioner's case does not come under either Rule 38 or Rule 49 and it is not included in any of the kinds of retirements as provided in the CCS (Pension) Rules. It is stated that resignation and discharge are similar except with respect to the conditions applied for acceptance of resignation/discharge as specified in Section 6 of the CRPF Act and Rule 16 4 W.P(C) No.3760 of 2015-T and 17 of the CRPF Rules. Rule 48A of CCS (Pension) Rules prescribes a minimum service of 20 years for the purpose of voluntary retirement. But in the case of the resignation or discharge from service, there is no minimum qualifying service. At any rate, no provisions in the CCS (Pension) Rules provide for pensionary benefits to a person who is discharged from service at his own request. The CRPF Act or Rules which provides for resignation as well as discharge from service does not provide for pension to those get resigned or discharged. 5. I heard the learned counsel appearing for the petitioner and the learned ASGI for the respondents. 6. Pension and pensionary benefits to the members of the CRPF are governed by the provisions contained in the CCS (Pension) Rules. As long as there is no provision which allows pension and pensionary benefits to those who are discharged from service on completion of 10 years, the petitioner's claim is inadmissible. ## 7. Rule 26 of the CCS(Pension) Rules, read as follows: 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 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.”_ 5 W.P(C) No.3760 of 2015-T ## 8. The claim of the petitioner is on Rule 49 of CCS Pension Rules, ## relevant portion of which reads as follows: “49. (1) In the case of a government servant retiring in accordance with the provisions of these rules before completing qualifying service of 10 years, the amount of service gratuity shall be calculated at the rate of half months' emoluments for every completed six monthly period of qualifying service. Xxxx (2) In the case of a government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than 10 years, the amount of pension shall be calculated at the rate of 50% of emoluments or average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensum and a maximum of forty five thousand rupees per mensum for every completed six monthly period of qualifying service.” A reading of Rule 49(2) will make it clear that pension is admissible only in a case where the member of the force/Government servant 'retires' from service. There was no such 'retirement' in the case of the petitioner. Resignation can never be a retirement. Discharge on one's request also is not retirement, unless it is a voluntary retirement as provided in the rules. 9. The question relating to the eligibility of pension to persons, who resigned from service, was considered by the Apex Court in the judgments in **Union of India and Ors. v. Braj Nandan Singh** [2005 KHC 1887] : [(2005) 8 SCC 325] and in **Union of India & Ors. v. Madhu.E.V & Anr** . (2012) 5 SCC 474: 2012(2)KLT 558, where the Apex Court after elaborately considering various provisions contained in Rules 5, 14, 26, 35,36, 48, 48A and 49(2)(b) of **t** he CCS (Pension) Rules, 1972, held that W.P(C) No.3760 of 2015-T 6 the CCS (Pension) Rules do not provide that a person who has resigned before completing 20 years of service is entitled to the pensionary benefits. It was also held that Rule 49 only prescribes the procedure for calculation and quantification of pension amount and not the minimum qualifying service. 10. In the judgment in **Biju R v. Assam Rifles** : 2016(5)KHC 50 **,** I have also rejected a similar claim raised by an ex-member of Assam Rifles, another paramilitary force, who got discharged from service on his own request on personal reasons, following the judgments ( _supra_ ). 11. I find that the case of the petitioner, who got discharged from service on domestic grounds, is also covered by the judgments _supra_ . The petitioner is therefore not entitled to any benefit towards the service rendered by him, once he got discharged from service on his own request. In the above circumstances, the writ petition fails and is accordingly dismissed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_