IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 260 of 2006()
1. UNION OF INDIA, REP. BY THE SECRETARY,
... Petitioner
2. THE PAY AND ACCOUNT OFFICER,
3. THE DIRECTOR GENERAL, BORDER SECURITY
Vs
1. P.K.THANKAPPAN,
... Respondent
For Petitioner :SRI.JAYAPRADEEP. V., ADDL.CGSC
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/03/2007
O R D E R
P.R.RAMAN & ANTONY DOMINIC, JJ.
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W.A. NOS.OF 260 & 1304 OF 2006
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Dated this the 5th day of March, 2007
J U D G M E N T
P.R.Raman, J.
Union of India and others are the appellants. Respondent in
W.A.260/2006, an ex-member of BSF, proceeded on voluntary
retirement after completion of 25 years and 4 months of service.
In W.A. 1304/06, the respondent proceeded on voluntary
retirement after completion of 26 years, 9 months and 22 days.
The contention of the respondents were that the qualifying
service for calculation of pension is 30 years instead of 33 years.
This contention was accepted by the learned Single Judge
following the decision in Reghu Nandan Lal Choudhari v.
Union of India (AIR 1998 SC 2125). Impugning that
judgment, present writ appeals are filed. Annexure A1 produced
in both the cases, is a judgment in a batch of civil appeals by the
Apex Court, wherein the Apex Court has referred to Reghu
Nandan Lal Chaudhary and Others V. Union of India and held that
various High Courts have since been blindly following the said
W.A. NOS.OF 260 & 1304 OF 2006
: 2 :
judgment as having laid down that in all cases where a person
has retired on superannuation or retired at the age of 55 years,
the qualifying service should be 30 years. Since the correctness
of the decision in Reghu Nandan Lal Chaudhary was doubted, the
Division Bench of the Apex Court referred to a larger Bench and
that is how all these came before larger Bench.
2. After considering the decision in Reghu Nandan Lal
Chaudhary’s case, it was held that the said decision does not lay
down any proposition of law and that there is no reasoning in that
case and there is no reference to any Rule or to any other
provision which would govern payment of pension. Thus the
observations in Reghu Nandan’s case must be confined to that
case only. They cannot be used to give benefit to all. It was
therefore held that it is an admitted position that Rule 49 governs
in all these cases. Payment could only be as per the Rules. In the
absence of any challenge to the Rule, there is no ground of
discrimination in any of the petitions, the Rule cannot be
bypassed and all the Judgments of the High Courts are therefore
held unsustainable.
3. In the present case also, in the absence of any
W.A. NOS.OF 260 & 1304 OF 2006
: 3 :
challenge to Rule as stated, the dictum laid down in Annexure A1
judgment holds the field. As a matter of fact, the view expressed
by the learned Single Judge and confirmed in W.A.1761/2000 in a
similar case itself was under challenge in the batch of cases
before the Apex Court. In the result, following the judgment of
the Apex Court in Union of India and Another v. Satish
Kumar and Others(Annexure A1), these appeals are allowed.
The judgment of the learned Single Judge is set aside. Following
the observations in the last para of the judgment of the Apex
Court, we direct that the payments, if any made shall not be
recovered.
Writ appeals are allowed to the above extent.
P.R.RAMAN, JUDGE
ANTONY DOMINIC, JUDGE
Rp