Naik Ex. LN Mohan Ram vs Union Of India

Heard learned counsel for the parties and perused the

record.

The brief facts, which required for the purpose of

disposal of this writ petition are that the petitioner was

holding the post of Constable in the Border Security Force

(hereinafter referred as ''BSF'') and he submitted a

resignation under the provisions of Rule 19 of the Border

Security Force Rules, 1969 (hereinafter referred as ''the

Rules of 1969'') and was allowed pensionary benefits, after

his discharge from service on 31.03.1997.

This was in view of the Letter issued by the

Government of India dated 27.12.1995 granting pensionary

benefits under the Rules of 1969, on completion of 10 years

service.

It is submitted that petitioner has filed a

representation for grant of retiral benefits and he was

informed that he could not be granted pensionary benefits,

as he had not completed 20 years of service.

It is submitted that petitioner again filed a

representation on 06.03.1998 to consider his case in

accordance with letter dated 27.12.1995 issued by the

Government of India and extend him the benefits specially

when the same were allowed by order dated 12.03.1997.

By this representation, he appraised the respondents with a

harness he and his family were facing but to no avail and

once again the respondent Commandant intimated the

petitioner vide Communication dated 30.03.1998 that he is

not entitled for the pensionary benefits. Thereafter, the

respondent Commandant by Communication dated

15.10.1998 asked the petitioner to join back the Battalion

with certain conditions.

It is further submitted that since petitioner was

allowed to proceed on voluntary retirement (on submitting

resignation) with full pensionary benefits, the retiral

benefits were not granted and on contrary the respondents

asked the petitioner to join back the service, as such the

petitioner filed a writ petition before this Court seeking

direction upon the respondents to release the pensionary

benefits in pursuance to order dated 12.03.1997 and the

same was registered as S.B. Civil Writ Petition

No.1344/1998. This Court decided the writ petition filed by

the petitioner in light of the judgment26.04.2001 rendered

in identical case (bunch of cases) viz. Buxa Ram Vs.

Union of India & Ors. (S.B. Civi Writ Petition

No.4302/1998) and directed the respondents to take the

petitioner back on service. The petitioner obtained a copy

of the judgment of this Court dated 26.04.2001 and

dispatched the same by Registered AD Post to the

respondent Director General, BSF on 07.05.2001.

It is further submitted that in pursuance to the

judgment of this Court dated 26.04.2001 petitioner

proceeded to join that Battalion and reported at its base

office at Pantha Chowk, Sri Nagar on 11.06.2001 and

thereafter proceeded at the location of the Battalion on

12.06.2001 and requested the respondent Commandant to

take the petitioner and allow him to join service in

pursuance of the judgment of this Court dated 26.04.2001

and forward his matter to respondent Director General,

however, it was orally refused by the respondent

Commandant and he asked the petitioner to return back to

his native place since nothing can be done for allowing him

to rejoin the service, as such, the petitioner filed an

application before respondent Commandant to permit him

to accompany in the convoy from Kupwada to Jammu and

the same was allowed.

It is further submitted that since the petitioner was

intimated by Communication dated 13.08.2001 that his

case has been forwarded for rejoining of the service to the

higher authorities, he was anxiously waiting for the call

letter/approval to rejoin the service in pursuance of the

judgment of this Court dated 26.04.2001 though was living

in harness. However, the respondent Commandant

initimated the petitioner vide Communication dated

11.12.2003 that he cannot be permitted to rejoin in the

service.

It is further submitted that respondent Commandant

further intimated the petitioner by Communication dated

11.05.2004 and refused to permit him to rejoin his service

and also instructed the petitioner to not to have

correspondence in the subject matter any more.

It is further submitted that identical problem arose

with hundreds of Jawans of the Force who approached the

Courts in different parts of the country including this Court.

This Court after deciding the bunch of cases in light of

judgment passed in Buxa Ram Vs. Union of India

(Supra) and many persons including one Shri Hazari Ram

was permitted to rejoin in pursuance to the judgment of

this Court so also to treat the petitioner at par with the

other persons who were similarly situated like the petitioner

and was allowed to rejoin in the Force.

It is further submitted that respondents did not

reinduct the petitioner, therefore, the petitioner filed S.B.

Civil Writ Petition No.5750/2004 before this Court and the

same was disposed of by order dated 17.02.2006 and

directed the respondents to consider the case of the

petitioner in pursuance to the judgment passed by Hon''ble

Supreme Court in Raj Kumar Vs. Union of India

reported in 2006 (1) SCC 737.

As regards grant of pensionary benefits to the BSF

personnel, protracted litigation enshrined up to Hon''ble

Supreme Court and the Hon''ble Supreme Court in the case

of Raj Kumar (Supra) has held as under:-

"14. 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. Even before Rakesh Kumar 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 was decided only in the year 2001, almost 3 years later. 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 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 present writ petitions, contrary to the law declared by Rakesh Kumar (supra).

(underlining supplied for emphasis)

Thereafter the Supreme Court categorized the cases

before it as follows:

"17. We find that the cases before us can be divided into the following categories: (A) Pre-circular: 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 persons can be further divided into two sub- categories:- (i) Personnel who retired in 1996, were sanctioned pension and were therefore asked vide letter dated 31- 10-1998 not to report for re- induction. Their pension has been stopped pursuant to the judgment in Rakesh Kumar. These persons can be further divided into two sub- categories:-

(a) those who are in a position to be re-inducted into service even now; and (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. (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."

The petitioner filed a representation to the respondent

Director General along with copy of the judgment passed by

this Court in S.B. Civil Writ Petition No.5750/2004 dated

17.02.2006 directed the Director General to decide the case

of the petitioner for grant of pension or reinstatement in

terms of the judgment passed by the Hon''ble Apex Court in

the matter of Raj Kumar (Surpa) on 04.03.2006.

The Commandant informed the petitioner vide

Communication dated 24.06.2006 rejecting the case for re-

induction in service and for pension as well. The petitioner

again approached this Court by filing a Writ Petition

No.4036/2006 which came to be allowed vide judgment

dated 30.06.2008 with following directions:-

"In the aforesaid view of the matter, as the case of the petitioner Mohan Ram deserves but has not received the consideration, this Court is constrained to set aside the

order passed on his representation and to direct the authorities to decide his case dispassionately and objectively after taking consideration all the facts of the case and all the relevant circumstances; and keeping in view the writs already issued in this case.

(i) CWP No.4083/2006; Mohan Ram v. Union of India & Ors is allowed to the extent indicated above; the impugned communication dated 24.06.2006 is set aside; and the representation made by the petitioner stands restored for re- consideration by the authorities that shall be decided, as early as possible, preferably within two months from today, keeping in view the observations made above and after affording an opportunity of hearing to the petitioner."

The petitioner accordingly submitted his details to the

authorities once again and the Director General, vide order

dated 26.08.2008 passed the following directions:-

"Therefore, in the given facts and circumstances, I am inclined to agree to the request of the petitioner for his reinstated in service. Accordingly, the petitioner is reinstated in service subject to his medical fitness, character verification and other conditions as specified in the instructions issued vide Pers Dte letter dated 17 Oct 1998 and other instructions issued in this regard."

Taking the fact from the order passed by the Director

General, the Commandant while allowing the petitioner to

join back conducted his medical examination and the

Medical Officer, Civil Hospital, Bikaner declared him unfit for

reinstatement in service. Resultantly, the petitioner had to

again filed the present writ petition wherein he has prayed

as under:-

"a) order Annex.3 dated 24.10.2008 may kindly be quashed and set aside; b) respondent Commandant may kindly be directed to reinstate the petitioner in service and utilize his services for no-combatant as many other disabled persons are being utilized."

It is submitted by the counsel for the petitioner that

the order dated 26.08.2008 whereby the Director General

agreed to the request of the petitioner for his reinstatement

in service, wrongfully further added a condition of medical

fitness and character verification on the basis of letter dated

17.10.988. The action suffers from malice and with the

sole purpose to deny the petitioner, benefit of reinstatement

or notional benefits. It is submitted that there was no such

condition laid down by the Court either in Raj Kumar''s

case (Supra) or thereafter by this Court in order dated

30.06.2008 passed in Writ Petition No.4083/2006 filed by

him. The action of rejecting the petitioner and declaring

him unfit for reinstatement was thus, bad in law and is an

attempt to deprive him of the benefits of continuing in the

service. Accordingly, it is prayed that petitioner should be

now treated to be continuous in service and be given all the

benefits and further if the petitioner is unable to perform

combatant service, he may be placed for non-combatant

service done under the BSF.

Per contra, counsel for the respondents submitted that

on having found petitioner unfit, he could not be reinstated.

This Court directed the respondent to place before the

Court, the Government letter dated 17.10.1998 or any

other instructions issued with respect to reinstatement of

the erstwhile BSF personnel in terms of the judgment

passed in Raj Kumar''s case (Supra).

Counsel for the respondent has shown to this Court

during the course of hearing the letter dated 17.010.1988.

From the perusal of the letter dated 17.10.1998 which is

taken on record. It is seen that it nowhere directs erstwhile

member of the Forces to be again examined medically for

fitness or for character verification and other conditions as

mentioned in the order of the Director General dated

26.08.2008, by which, the petitioner was directed to be

reinstated subject to the conditions. It appears that the

order dated 26.08.2008 laying down the conditions of

reinstatement are not in consonance with the order dated

17.10.1998 passed by the Government of India, Ministry of

Home Affairs. The extract of the letter dated 17.10.1998 is

quoted as under:-

"No.13/19/1/98-Rectt/BSF/1367- 1667

Government of India Ministry of Home Affairs

Dte General Border Security Force

(Pers Dte : Rectt Section) New Delhi

Dated 17th October, 1998

To

All Ftr HQrs BSF

All Sector HQrs BSF

BSF Academy, Tekanpur BSF CSWT,

Indore TC&S Hazaribagh

All BSF Bns:/ All STCs/CTSS/STS I& STS II.

Sub:- RESIGNATION UNDER BSF RULE 19 : RE-INSTATEMENT THEREOF.

In continuation of this Dte''s letters 24/1/97-Pers/BSF dated 15th Jan 98, 21/1/97- Pers/BSF dated 23 March 98 and Signal No.R- 3408 dated 12 Oct 98, the following procedure may be adopted while considering the case on the subject cited:-

(a) In exercise of the powers conferred under Rule 28-A read with Rule 6 of BSF Rules 1969, the Director General directs that all personnel who have resigned after the circular of 27 Dec 1995 with less than 20 years of service under the mistaken impression that pension was due to them may be taken back in service treating their period of absence as an Earned Leave/Half Pay Leave as due and treating the remaining period as leave without pay (EOL) as a special case. The personnel will have to refund GPF and other dues paid to them. They will retain their seniority. Commandant will have a special police verification carried out about their period of absence.

(b) A Registered/AD letter be sent to all personnel whose resignation was accepted after circular of December, 1995

with pensionary benefits but were not granted pension, to join back the duties in the Force immediately. They will retain their seniority on re- instatement in service and the period of absence will be treated as Earned Leave/Half Pay Leave as due and leave without pay (EOL) for the remaining period of absence as a special case subject to police verification of their period of absence. It should also be made clear that if a member of the Force is not interested to re- join, he will not be entitled to any pension. However, this will be subject to order of the Hon?ble Court in any case pending before it.

(c) All communication should be issued to affected personnel accordingly. The progress on the subject be intimated to this HQ for record.

A list of cases available in this Dte is enclosed.

(K.K. Dhardwaj) DY DIRECTOR (PERS)"

Having looked into the record and submissions raised

by the petitioner as well as by the respondents, it is

apparent that the petitioner has been subjected to wrongful

discrimination vis-a-vis other similarly situated BSF

personnels. Admittedly, the petitioner was initally allowed

to proceed for voluntarily retirement on submitting

resignation with full pensionary benefits. However, in view

of the decision taken by the Government, the ten years

service would not be sufficient for releasing pension. The

Hon''ble Supreme Court in the case of Raj Kumar (Supra)

directed the personnel who resigned pursuant to the

Circular dated 27.12.1995 to be treated as per Para 17-B (i)

& (ii).

Admittedly, the petitioner falls in the category of

personnels who resigned pursuant to the Circular and

retired subsequent to 1996 and, therefore, the petitioner

was entitled to be reinducted into service by virtue of

Circular dated 17.10.1998. This Court by way of one after

another, in several Civil Writ Petitions filed by the

petitioner, had directed the respondents to examine the

case of the petitioner vide order dated 26.08.98, the

Director General, BSF took a decision ultimately to agree to

the request of the petitioner for reinstatement in service.

However, the condition was laid down that before

reinstatement he would be subjected to medical fitness in

terms of Circular dated 17.10.1998. From the perusal of

the Circular dated 17.10.1998, it is seen that there is no

such pre-condition for reinstatement even otherwise the

medical fitness examination which a personnel might be

possessing at the time of initial selection or continuining in

service years cannot be accepted to be attained after so

many years and as per the Circular dated 17.10.1998, the

character verification was only required to be conducted.

In these circumstances, the order dated 26.08.2008

so far as it directs for medical fitness examination before

reinstatement and the letter dated 24.10.2008 cannot be

allowed to be sustained and the petitioner is entitled to be

given his dues and be treated as reinstated in service as a

member of BSF.

Accordingly, this writ petition is allowed. The order

dated 24.10.2008 and the condition laid down in the order

dated 26.08.2008 are quashed and set aside, so far as it

requires petitioner to be subjected to medical fitness being

contrary to the conditions laid down in the Circular dated

17.10.1998. The petitioner is entitled to be reinstated as a

member of BSF with all consequential benefits as per

observations made in Raj Kumar''s (Supra) case and

Circular dated 17.10.1998. The consequences of

reinstatement shall be complied with within a period of

three months from the date of submission of certified copy

of this order. The petitioner is directed to report for duty on

or before 13.02.2017. It goes without saying that if the

order is not complied with within the stipulated period, the

petitioner shall be at liberty to initiate contempt

proceedings without further notice to this Court.