ORDER
1. The petitioner claims to be the widow of one George D. Chandrashekaran. According to petitioner, her husband joined Military Accounts Department on 11-6-1942 and resigned from service in May 1960. The deceased Chandrashekaran was not drawing any pension during his lifetime. He died on 1-8-1989. Seven years after the death of her husband, the petitioner gave a representation dated 21-3-1997 to the second respondent and a representation dated 24-4-2000 to the first respondent, for grant of family pension under the CCS Pension Rules (‘Rules’ or ‘Pensiori Rules’ for short). The said request was considered and rejected by the second respondent by communication dated 9-5-1997 and by the first respondent by communication dated 3-5-2000. Her subsequent application dated 26-5-2000 addressed to Controller, Defence Accounts, Bangalore was rejected by letter dated 23-6-2000.
2. Feeling aggrieved, the petitioner approached the Central Administrative Tribunal, in O.A. No. 1725 of 2000, praying for grant of family pension by taking into account, the continuous service of 19 years rendered by her husband between June 1942 to May 1960. The petitioner urged the following contentions: (a) Though Rule 48-A of the Pension Rules provides that the minimum period of service to become eligible for pension is 20 years, having regard to Rule 49(2)(b), it should be held that a retired Government servant will be entitled to pension even on completion of 10 years of service; (b) The resignation of her husband should be treated as voluntary retirement and consequently, Rule 26 of the Pension Rules is inapplicable to her husband and it should be deemed that the deceased Chandrashekaran was entitled to pension on retirement; and as Rule 54(2)(b) of the Pension Rules provides that family pension will be payable on the death of a Government servant who on retirement was receiving pension, she should be granted family pension.
3. The respondents resisted the claim on the ground that petitioner’s husband was not entitled to pension as he rendered a qualifying service of only 19 years and the minimum qualifying service for earning pension is 30 years, as per Rule 48 of the Pension Rules. It is contended that Rule 48-A providing for payment of pension even in the case of voluntary retirement after a qualifying of 20 years was not applicable as it was introduced by notification dated 28-11-1978 in the Pension Rules long after the resignation of petitioner’s husband; and that even assuming that Rule 48-A was applicable, the petitioner’s husband was not entitled to retiring pension as he had not rendered a qualifying service of 20 years. It is next contended that as the deceased Chandrashekaran forfeited his service under Rule 26, on his resignation and was neither entitled to pension nor was drawing any pension, the petitioner is not entitled to family pension under Rule 54(2)(b).
4. On the contentions raised, the following questions arise for consideration:
(i) Whether a Government servant who voluntarily leaves the service, before attaining the age of compulsory retirement, with less than 20 years' service is entitled to receive retiring pension under the CCS Pension Rules? (ii) Whether the petitioner is entitled to family pension under clause (b) of Rule 54(2) ef the CCS Pension Rules? Re: Point No. (i).- 5. The petitioner's husband joined Government service in June 1942 and retired in May 1960 and had served for about 19 years. The question is whether a service of 19 years entitles a Government servant to pension. 6. Chapter V of the CCS Pension Rules deals with the classes of pension and conditions governing their grant. It enumerates and provides for the following classes of pension: (i) Superannuation pension (Rule 35); (ii) Retiring pension (Rule 36); (iii) Pension on absorption in or under a corporation, company or body owned/controlled by State/Central Government (Rule 37); (iv) Invalid pension (Rule 38); (v) Compensation pension payable on discharge owing to abolition of the post (Rule 39); (vi) Compulsory retirement pension (Rule 40); (vii) Compassionate allowance to Government servants who forfeit their pension on being dismissed or removed (Rule 41).
To be entitled to pension, a Government servant should therefore make out that his case falls under any one of the rules contained in Chapter V. A Government servant whose case does not fall under any of the categories of pensions specified in the rules in Chapter V, is not entitled to pension. The question of any Court or Tribunal relaxing the rules or exempting anyone from fulfilling the minimum requirements of the rules does not arise.
7. In this case, Rule 35 does not apply as the deceased Chan-drashekaran did not retire on account of attaining the age of superannuation. Rule 37 does not apply, as he was not absorbed into the service of any corporation, company or body owned/controlled by the Central/State Government. Rule 38 does not apply as he was not retired on account of any bodily or mental infirmity which permanently incapacitated him for the service. Rule 39 does not apply as he was not discharged owing to abolition of his permanent post. Rule 40 does not apply as he was not compulsorily retired from service after putting in the minimum period of service. Rule 41 does not apply as he was not dismissed/removed from service after putting in the minimum period of service. Therefore, necessarily the petitioner will have to establish that her husband’s case fell under Rule 36 if she wants to contend that he was entitled to pension.
8. Rule 36 provided that retiring pension shall be granted to a Government servant who retires, or is retired, in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 and 48-A of the Pension Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of the Pension Rules. It is not in dispute that the case of the husband of the petitioner does not fall under Rule 29 of the Pension Rules or under Rule 56 of the Fundamental Rules or under Article 459 of the Civil Service Regulations. Therefore, if the petitioner wants to make out that her husband was entitled to pension, she has to establish that he retired in advance of the age of compulsory retirement in accordance with the provisions of Rule 48 or 48-A of the Pension Rules. Rule 48 requires completion of 30 years of qualifying service. Rule 48-A requires completion of 20 years of qualifying service. While both (Rules 48 and 48-A) contemplate giving of three months’ notice by the Government servant of his voluntary retirement, Rule 48-A requires acceptance by Appointing Authority and Rule 48 does not require such acceptance. Admittedly, petitioner’s husband not having put in the minimum qualifying service as per Rule 48 or 48-A, was not therefore entitled to retiring pension under Rule 36.
9. The petitioner placed reliance on Rule 49(2) of the Pension Rules to contend that even 10 years of service is sufficient to get pension. The said contention is misconceived. Rule 49(2) provides how the amount of pension should be calculated in the case of a Government servant retiring in accordance with the provisions of the rules in cases where: (a) the retirement is after completion of a qualifying service of 33 years; (b) the retirement is after completion of qualifying service of 10 years but before completion of qualifying service of 33 years; and (c) the retirement is before completing the qualifying service of 10 years. Rule 49 does not relate to entitlement to pension. Nor does it prescribe the conditions for eligibility. It merely provides how pension should be calculated, if a Government is eligible to pension under any one of the provisions of Chapter V of the Pension Rules. Under Chapter V, as noticed above, a Government servant may be eligible for pension not only under Rule 36 which contemplates a minimum service of 20 years, but also Rules 35, 38 and 39 which do not prescribe any such minimum service. For example, Rule 35 entitles a Government servant who retires on attaining the age of superannuation to pension, even if he has not completed 20 years of service. Rule 38 entitles a Government servant who retires on account of bodily or mental infirmity (which permanently incapacitates him for the service) to pension, even if service is less than 20 years. Similarly, a Government servant who is discharged from service due to abolition of his post is also entitled to pension under Rule 39, irrespective of the length of service. When Rule 49 refers to payment of pension to a person who has completed only a qualifying service of 10 years or less than 10 years, it does not mean that the minimum period of service required under Rule 36 is reduced or that Government servants who voluntarily retire (before reaching the age of superannuation) with less than 20
years of qualifying service, are entitled to pension. Rule 49 presupposes that the Government servant is entitled to pension under any of the rules under Chapter V. Therefore, the mere fact that Rule 49 dealing with the quantum of pension refers to payment of pension even on completion of 10 years of qualifying service or even less than 10 years of qualifying service, does not mean that pension is payable under Rule 36 to persons who have not completed the required minimum number of years (20 years) of service.
10. A combined reading of Rules 26, 36, 48 and 48-A make the following position clear in regard to retiring pension, when a Government servant voluntarily leaves the service before attaining the age of compulsory retirement.-
(i) A Government servant who voluntarily leaves the service after completing 30 years of qualifying service, by giving three months' notice, is entitled to pension (vide Rule 36 read with Rule 48). (ii) A Government servant who voluntarily leaves the service after completing 20 years qualifying service by giving three months' notice, is also entitled to pension, provided his notice of voluntary retirement is accepted by the Appointing Authority (vide Rule 36 read with Rule 48-A). (iii) A Government servant who voluntarily leaves the service of the State before completing 20 years of service is not entitled to any pension as such an act entails forfeiture of past service (vide Rule 36 read with Rule 26).
For the purpose of Pension Rules, the act of voluntarily leaving the service before attaining the age of compulsory retirement with due notice, after rendering a minimum of 20 years qualifying service is referred to as ‘retirement’; and the act of voluntarily leaving the service of the State before attaining the age of compulsory retirement, with or without notice, before completion of 20 years of qualifying service is referred to as ‘resignation’.
11. The learned Counsel for the petitioner submitted that the Central Administrative Tribunal has held in several cases that Government servants who resigned from service before attaining the age of retirement even though they had not completed 20 years of service, are entitled to receive pension. Reliance is placed on an extract from Swamy’s News No. 11 of 1999 where there is a reference to three decisions of Central Administrative Tribunal in the cases of Om Prakash Singh v. Union of India, O.A. No. 353 of 1994, DD: 14-9-1998, A.P. Shukla v. Union of India, O.A. No. 623 of 1991 and Bimla Devi v. Union of India, 1992(2) SLI 310 holding that Government servants resigning from service, even with less than 20 years of qualifying service are entitled to pension. Even assuming that ‘resignation’ is synonymous with ‘retirement’, the Tribunal, in those cases, could not have ignored the specific provisions of the Pension Rules, to hold that even less than 20 years of service will entitle a Government servant to retiring pension under Rule 36 of the Pension Rules.
12. The learned Counsel for the petitioner next contended that the respondents, in their statement of objections, have not denied the fact that the Tribunal in other cases has given relief of pension even where the period of service is less than 20 years. He submitted that the respondents having accepted the decisions of Tribunal in those cases, is bound to apply them to similar cases and refusal to do so would amount to discrimination. The contention is misconceived. The fact that the respondents have given effect to some erroneous decisions of Tribunal directing payment of pension, even in the case of Government servants who resigned without the minimum service of 20 years, does not come in the way of respondents contending in other cases that such decisions of the Tribunal are erroneous. If the respondents are able to make out in this case that the rules did not entitle a Government servant to retiring pension if he had resigned before completing 20 years of qualifying service, petitioner cannot request that the respondents’ contention be rejected merely on the ground that it will lead to hostile discrimination. The Supreme Court in Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors., has observed as follows:
“The guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner”.
Re: Point No. (ii).-
13. Family pension is governed by Rule 54. The petitioner contends that Sub-rule (2)(b) provides that family of the deceased shall be entitled to family pension where the Government servant after retirement from service was on the date of death, in receipt of a pension or compassionate allowance. The petitioner contends that even though her husband was not drawing pension, we should hold that he was entitled to pension and consequently petitioner is entitled to family pension under Rule 54(2)(b). We have already held that petitioner’s husband was not entitled to pension. The case of the petitioner does not fall under any of the three classes of Sub-rule (2) of Rule 54.
Conclusion:
14. We accordingly answer both points in the negative. Whatever be our sympathies towards an old lady, in the absence of a legal right, it is not possible for us to direct the respondents to consider the case for payment of family pension or for payment of any arrears of pension. Petition is therefore dismissed.