Service Law; Biju R. Vs. Commandant, 45th Battalion, Assam Rifles [Kerala High Court, 14-06-2016]

Central Civil Services (Pension) Rules, 1972 – Assam Rifles – Pensionary Benefits – Discharge from service on the basis of his request – Once the service is forfeited, one cannot seek any of the benefits out of such service.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.V. ASHA, J.

W.P.(C) No.3385 of 2013

Dated this the 14th day of June, 2016

PETITIONER

BIJU R, ASSAM RIFLES

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

J U D G M E N T

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 As per rule 26 of the Rules, a resignation from a service or a post, unless it is allowed to be withdrawn in public interest by the appointing authority, entails forfeiture of past service and therefore he is not entitled to pension.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 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.