Dismissed

The Union of India and 3 Ors. v. Ex-Constable, Force No. 89008021 Nirmal Kumar Sharma

Gauhati HC2 Apr 2025WA/392/2024

Case brief

AI extract

What is this about?

In this intra-Court appeal, the High Court considered an appeal against a Single Judge's order allowing an ex-BSF constable's resignation to be quashed. The Court held that prior permission is required for acceptance of resignation, not for its submission. Relying on precedent, it set aside the Single Judge's order as erroneous, thereby dismissing the petitioner's appeal and upholding the acceptan

What did the court decide?

The impugned judgment of the Single Judge allowing voluntary retirement was set aside; the writ petition is dismissed.

The Union of India and 3 Ors. Vs… — Pension and Retirement Benefits | Gauhati HC (2025)

Page No.# 1/13

GAHC010126972024

2025:GAU-AS:3943

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/392/2024

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THE UNION OF INDIA AND 3 ORS.

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REPRESENTED BY SECY TO GOVT OF INDIA MINISTRY OF HOME AFFAIRS JAISELMER HOUSE NO 26 MAN SINGH ROAD NEW DELHI, 110011

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2: THE DIRECTOR GENERAL

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BORDER SECURITY FORCE CENTRAL GOVT. OFFICE COMPLEX

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LODHI ROAD NEW DELHI PIN-110003

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3: THE INSPECTOR GENERAL

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BORDER SECURITY FORCE

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SHILLONG MEGHALAYA PIN-793006

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4: THE COMMANDANT

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128 BATTALION BORDER SECURITY FORCE PATGAON GUWAHATI ASSAM PIN-781017

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5: NAIMUDDIN

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THE THEN COMMANDANT 128 BATTALION ORDER SECURITY FORCE

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TO BE SERVED THROUGH THE RESPONDENT NO.

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VERSUS

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EX-CONSTABLE, FORCE NO. 89008021 NIRMAL KUMAR SHARMA S/O SHRI PREM NATH SHARMA, VILL KUNDE LALOWAL, P.O.JANGAL, TEHSIL GURDASPUR, DIST GURDASPUR, PUNJAB, PIN CODE - 143521

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Advocate for the Petitioner : MR H GUPTA,

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Advocate for the Respondent : , MR P RAI(R-1),MR. R DEKA(R-1),MS T WAPANGLA(R-1)

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Page No.# 2/13

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BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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Date of hearing : 01.04.2025

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Date of Judgment & Order : 03.04.2025

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JUDGMENT & ORDER (CAV)

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(N. Unni Krishnan Nair, J.)

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Heard Mr. Hareesh Gupta, learned CGC, appearing on behalf of the appellants. Also heard Mr. Rajesh Mazumdar, learned counsel appearing on behalf of the respondent.

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2. The present intra-Court appeal is instituted by the appellants, assailing the judgment & order, dated 17.08.2023, passed by the learned Single Judge in WP(c)2626/2011, allowing the writ petition filed by the respondent, herein, by interfering with the acceptance of the resignation submitted by the respondent on 08.04.2003, and further, directing that the respondent be deemed to have continued in service till the date of the judgment & order and be permitted to go on voluntary retirement from service w.e.f. 18.08.2023, with all consequential benefits, as directed.

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3. The respondent, herein, had submitted a resignation letter, on 08.04.2003, before the Commandant, 128 Battalion, Border Security Force, praying for resigning from his job voluntarily on account of some domestic problems faced by him. The said resignation letter, on being processed, came to be accepted by the Commandant, vide order, dated 25.04.2003, w.e.f. 30.04.2003. Accordingly, the respondent was permitted to proceed on resignation from service without pensionary benefits and his name was

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Page No.# 3/13

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struck-off of the strength of the Unit w.e.f. 30.04.2003. After lapse of around a year from the date of acceptance of the resignation application submitted by the respondent, herein, he had approached the learned Civil Judge(Junior Division), Gurdaspur, Punjab, by way of instituting a civil suit being Civil Case No. 372/2004, assailing the action on the part of the authorities in accepting the application for resignation submitted by him on the ground that the same was not an application voluntarily made by him but the same was so extracted from him by use of force which would have the effect of rendering the same null and void.

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4. The learned Civil Judge(Junior Division), Gurdaspur, Punjab, vide judgment, dated 18.09.2007, by holding that the resignation application submitted by the respondent, herein, was not proved by the appellants, herein, to be a voluntary one; proceeded to declare the order, dated 30.04.2003, to be null and void and the appellants, herein, were directed to allow the respondent, herein, to get the voluntary retirement benefits as per rules.

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5. The appellants, herein, being aggrieved; assailed the judgment, dated 18.09.2007, passed by the learned Civil Judge(Junior Division), Gurdaspur, Punjab, by way of instituting a civil appeal being Civil Appeal No. 21/2008, before the Court of the learned District Judge, Gurdaspur, Punjab. The learned District Judge, Gurdaspur, Punjab, vide order, dated 03.08.2009, noticing that the respondent, herein, at the relevant point of time, when the order, dated 30.04.2003, was issued, accepting his resignation; was posted at Patgaon, Guwahati, Assam, and the order was served at Patgaon, Guwahati, Assam, held that no cause of action in the matter having arisen

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Page No.# 4/13

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within the territorial jurisdiction of the trial Court, proceeded to set aside the impugned judgment & decree, dated 18.09.2007, passed by the learned Civil Judge(Junior Division), Gurdaspur, Punjab, and remitted back the matter to the learned trial Court with a direction to return the plaint in terms of the provisions of Rule 10 Order VII of the Code of Civil Procedure, 1908.

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6. Being aggrieved, the respondent, herein, approached the Punjab & Haryana High Court by instituting a writ petition being Civil Writ petition No. 14888/2010. The Hon'ble Court, vide order, dated 20.08.2010, proceeded to dismiss the said writ petition, holding that it did not have the jurisdiction to entertain the issue involved. Thereafter, the respondent, herein, had instituted approached this Court by way of instituting a writ petition being WP(c)2626/2011.

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7. The learned Single Judge upon hearing the learned counsels appearing for the parties and on perusal of the materials available on record, was pleased vide judgment & order, dated 17.08.2023, to allow the writ petition being WP(c)2626/2011, by interfering with the order, dated 30.04.2003. The operative portion of the judgment & order, dated 17.08.2023, in WP(c)2626/2011, being relevant, is extracted hereinbelow:

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“ 12. For the purpose of adjudicating the first issue, this Court finds it relevant to reproduce Section 8 of the BSF Act, 1968 which is quoted herein under :-

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“ 8. Resignation and withdrawal from the post.—No member of the Force shall be at liberty,—

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(a) to resign his appointment during the term of his engagement; or

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(b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority.”

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Page No.# 5/13

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A reading of Section 8(a) of the BSF Act, 1968 would show that there has to be a previous permission in writing of the prescribed authority before a member of the Force can be permitted to resign.

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13. This Court finds it relevant at this stage to reproduce Rule 19 of the BSF Rule, 1969. herein under :-

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“ 19. Resignation.—(1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the force to resign from the force before the attainment of the age of retirement or before putting in such number of years of service as may be necessary under the rules to be eligible for retirement:

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Provided that while granting such permission the Central Government may:

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(i) require the officer to refund to the Government such amount as would constitute the cost of training given to that officer [or three months pay and allowances, whichever is higher] or provided further that an officer of the force tendering resignation, for accepting a job under Central or State Governments or local bodies, after having been granted cadre clearance for the same [or who has completed 10 years of service] shall not be required to refund the sum as provided here in above.

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(2) The Central Government may accept the resignation under sub-rule (1) with effect from such date as it may consider expedient.

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(3) The Central Government may refuse to permit an officer to resign:-

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(a) if an emergency has been declared in the Country either due to internal disturbances or external aggression; or

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(b) if considers it to be inexpedient so to do [due to exigencies of service] or in the interests of the discipline of the force; or

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(c) if the officer has specifically undertaken to serve for a specified period and such period has not expired.

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(4) The provisions of this rule, shall apply to and in relation to subordinate officer and enrolled persons as they apply to and in relation to any officer of the force and the powers vested in the Central Government under sub-rules (1) and (2) shall be exercised in the case of a Subordinate Officer by a Deputy Inspector General and in the case of an Enrolled Person by a Commandant.

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14. A conjoint reading of Sub-Rule (1) and (4) of Rule 19 of the BSF Rule, 1969 with Section 8 of the BSF Act, 1968 and the same being applied to the facts involved herein, it would show that the Commandant of the 128 Battalion would have the authority to exercise the powers under Section 8(a) of the BSF Act, 1968 read with Rule 19(1) of the BSF Rules, 1969 subject to a previous permission in writing thereby permitting the Petitioner to resign from his services during the term of his engagement. The proviso to Sub-Rule (1) of Rule 19 stipulates that while granting permission by the prescribed Authority, it has to be taken into account that if an officer have rendered less than 10 years of service then the Central Government may require the officer to refund such amount which constituted the cost of training given to that officer or three months pay and allowances whichever is higher. However, the same shall not apply in respect to those officers who had accepted the job under the Central or the State Government or the Local Bodies after having granted cadre clearance for the same or who had completed 10 years of service with the BSF.

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15. Sub-Rule (2) of Rule 19 of the BSF Rule, 1969 confers the discretion upon the Commandant, 128th Battalion BSF to accept the resignation under Sub-Rule (1) of Rule 19 of the Rules w.e.f. the date as it may consider expedient. Sub-Rule (3) of Rule 19 of the BSF Rule, 1969 stipulates that the Central Government may refuse to permit an officer to resign. Therefore a combined reading of Section 8 of the BSF Act, 1968 read with Rule 19 of the BSF Rule, 1969 shows that without the previous permission in writing, an enrolled member like the petitioner cannot submit his resignation or such resignation if so submitted cannot be accepted.

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16. Under such circumstances, this Court put a query to Mr. H. Gupta, learned counsel for the respondents as to whether there was anything on records to show that any previous permission was granted prior to submission of the resignation or there was any intimation so given to the petitioner that he could apply for resignation in view of permission so granted. The records upon being produced do not show that there was any previous permission in writing prior to submission of the resignation or prior to acceptance of the resignation letter. Therefore taking into account as there is no previous permission in writing prior to submission of the resignation letter or even prior to acceptance of the resignation letter, the order dated 25.04.2003 by which the petitioner’s purported resignation dated 08.04.2003 was w.e.f. 30.04.2003 accepted was contrary to the provision of Section 8 of the BSF Act, 1968 and Rule 19 of the BSF Rules, 1969 for which the said acceptance of resignation vide the order dated 25.04.2003 is non est in the eyes of law and accordingly set aside and quashed.

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17. The next issue which arises is that what relief can be granted in the present facts and circumstances, taken into consideration that for the last 20 years, the petitioner is no longer in service. It is relevant to observe that the effect of setting aside the order dated 25.04.2003 whereby the petitioner’s resignation was accepted w.e.f. 30.04.2003 would mean that there was no resignation by the Petitioner and the petitioner would be deemed to be in service during this period of time from 01.05.2003 till date.

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18. This Court also cannot be unmindful of the fact that for the last more than 20 years, the petitioner is not in service and to reinstate him to a disciplined service like the BSF at this stage would not be in the interest of administrative exigency of a disciplined force. Further, due to long absence from a disciplined force, it is not known whether the Petitioner can be cope up. This Court cannot also be unmindful of the fact that the petitioner’s resignation was accepted contrary to the provision of the BSF Act, 1968 and the Rules. Under such circumstances, the petitioner’s interest is also required to be taken care of.

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19. Under such circumstances, this Court finds it relevant to take note of the contentions of the learned counsels for the parties.

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20. Mr. H. Bezbaruah, learned counsel for the petitioner submitted that the petitioner has no objection if he is given voluntary retirement w.e.f. today thereby granting him the pensionary benefits by regularizing his services till date for pensionary benefits.

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21. Mr. H. Gupta, learned counsel for the respondents submitted that reinstating the Petitioner at this stage would affect the discipline in service inasmuch as the

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Page No.# 7/13

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Petitioner had not been in service for 20 years.

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22. Upon considering the submissions, this Court is of the opinion that the interest of justice would be met if the petitioner is deemed to be in service till today and he is allowed to go on voluntary retirement w.e.f. today. This Court also agrees with the submission of Mr. H. Gupta, learned counsel for the respondents that allowing the petitioner to be reinstated would effect the administrative exigency of a disciplined service and in the further opinion of this Court, the Petitioner may not be able to cope up after the long passage of 20 years. It is also the opinion of this Court that as the petitioner had not rendered any service during this period, the question of the petitioner getting any benefits for the said period such as salary, promotion, etc. would not arise. However, as the petitioner would be deemed retired as on today, the said period of service be counted towards the pensionary benefits while computing the pensionary benefits of the petitioner.

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23. Accordingly, this Court sets aside the purported resignation of the Petitioner dated 08.04.2003 as well as the order dated 25.04.2003 whereby the Petitioner’s resignation was accepted. The petitioner would be deemed to be in service till today and the Petitioner be permitted to go on voluntary retirement w.e.f. 18.08.2023. The Respondent Authorities shall issue necessary orders in compliance to the said directions thereby permitting the Petitioner to go on voluntary retirement w.e.f. 18.08.2023. This Court further directs that during this period from 30.04.2003 till date, the petitioner would be entitled to any of the benefits such as salary, promotion, etc. but the said period till date shall be taken into consideration for computing the pensionary benefits of the petitioner. The above directions are passed taking into account the exceptional facts and circumstances of the instant case.

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24. Accordingly, in terms with the above observations and directions, this instant writ petition stands disposed of.”

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8. Assailing the judgment & order, dated 17.08.2023, passed by the learned Single Judge in WP(c)2626/2011, Mr. Gupta, learned counsel for the appellants, herein, has submitted that the learned Single Judge had drawn a conclusion that in absence of any prior permission granted to the respondent, herein, to submit an application for resigning from the force; the resignation application submitted by the respondent, herein, and its acceptance w.e.f. 30.04.2023, was contrary to the provisions of Section 8 of the Border Security Force Act, 1968, read with Rule 19 of the Border Security Force Rules, 1969.

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Page No.# 8/13

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9. Mr. Gupta, learned CGC, by referring to the provisions of Section 8 of the Border Security Force Act, 1968, has submitted that there is no requirement therein, of grant of a prior permission to submit an application for resignation by a member of the force from his service. The learned CGC has further submitted that the only requirement under the provisions of Section 8 of the Border Security Force Act, 1968, is that a member of the force would be permitted to proceed on resignation only on acceptance of the application submitted, by the competent authority, so prescribed. The learned CGC has also submitted that the application as submitted by the respondent, herein, on being processed, was duly accepted by the competent authority, vide order, dated 25.04.2003, and he was permitted to resign from his service w.e.f. 30.04.2003, without pensionary benefits.

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10. Mr. Gupta, learned CGC, has submitted that the order, dated 25.04.2003, issued towards accepting the resignation submitted by the respondent, herein, w.e.f. 30.04.2003, is in satisfaction of the provisions of Section 8 of the Border Security Force Act, 1968, and the same would not have mandated any interference. The learned CGC has further submitted that the resignation of the respondent, herein, being duly accepted by the competent authority w.e.f. 30.04.2003, vide order, dated 25.04.2003, in terms of the provisions of Section 8 of the Border Security Force Act, 1968; the learned Single Judge erred in interfering with the same and thereafter, directing the respondent, herein, to be deemed to be in service till the date of passing of the impugned judgment & order, dated 17.08.2023, and further, to permit him to proceed on voluntary retirement from service w.e.f. 18.08.2023, with consequential benefits.

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Page No.# 9/13

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11. Mr. Gupta, learned CGC, has further submitted that the resignation of the respondent having been accepted w.e.f. 30.04.2003, the employer employee relationship between the respondent, herein, and the appellants, herein, had ceased to exist after 30.04.2003, and accordingly, there was no occasion to deem that the respondent had continued in his service after 30.04.2003, and for further directing that he would be deemed to have proceeded on voluntary retirement from service w.e.f. 18.08.2003. In the above premises, Mr. Gupta, learned CGC, has submitted that the judgment & order, dated 17.08.2023, passed by the learned Single Judge in WP(c)2626/2011, would call for an interference from this Court.

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12. Per contra, Mr. Mazumdar, learned counsel appearing for the respondent, has submitted that a reading of the provisions of Section 8 of the Border Security Force Act, 1968, would go to reveal that for the purpose of a member of the force to resign his appointment during the term of his engagement, or, to withdraw himself from all, or, any of the duties of his appointment; he is required to obtain previous permission in writing from the prescribed authority. The learned counsel has further submitted that it is only on a permission being granted to the member of the force to submit a resignation application; he would be entitled to submit such application before the competent authority. The learned counsel has also submitted that the learned Single Judge, on perusal of the records, having not found any material to demonstrate that such previous permission was granted to the respondent, herein, to submit his resignation application, the acceptance by the authorities of the resignation submitted by the respondent, herein, was rightly interfered with by the learned Single Judge.

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Page No.# 10/13

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13. Mr. Mazumdar, learned counsel, has submitted that the learned Single Judge having interfered with the order, dated 25.04.2003, accepting the resignation of the respondent, herein, w.e.f. 30.04.2023; the direction towards permitting the respondent to proceed on voluntary retirement from service w.e.f. 18.08.2023, being a consequential direction, the same would not mandate any interference from this Court.

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14. We have heard the learned counsels appearing for the parties and also perused the materials available on record.

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15. The issue arising in the present proceeding is as to whether prior to submission of a resignation application, a member of the force is required to obtain a written permission for submission of such application from the competent authority.

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16. The provisions of Section 8 of the Border Security Force Act, 1968, mandates that no member of the force shall be at liberty to resign his appointment during the term of his engagement, or, to withdraw himself from all, or, any of the duties of his appointment, except with the previous permission in writing of the prescribed authority. The words “previous permission in writing of the prescribed authority”, finding place in the provisions of Section 8 of the Border Security Force Act, 1968; in our considered view, relates to the acceptance of an application for resignation submitted by a member of the force. The said term, in our considered view, cannot be construed to mean that a prior permission, in writing, is mandated from the competent authority to facilitate a member of the force, to submit his application seeking resignation from service.

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Page No.# 11/13

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17. In the case on hand, the respondent, herein, had submitted his resignation application on 08.04.2003. The said application was, thereafter, processed by the respondent authorities and vide order, dated 25.04.2003; the competent authority had accepted the resignation tendered by the respondent, herein, w.e.f. 30.04.2003(A/N), without pensionary benefits. Accordingly, the respondent came to be struck-off from the strength of the Unit w.e.f. 30.04.2023.

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18. In view of the above position, we are of the considered view that the resignation application of the respondent, herein, was duly accepted by the competent authority in terms of the provisions of Section 8 of the Border Security Force Act, 1968, and accordingly, no infirmity, thereon, is apparent on the face of the records.

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19. Support, in this connection, is drawn from a decision of the coordinate Bench of this Court in the case of Union of India & ors. v. Bikram Rana [judgment & order, dated 25.02.2025, in Writ Appeal No. 298/2021], wherein, considering pari materia provisions existing in the provisions of Section 8 of the Assam Rifles Act, 2006, relating to resignation of a member of the force, had drawn the following conclusions:

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“ 23. So far as the contention of the learned counsel for the respondent/writ petitioner to the effect that the provisions of Section 8 of the Assam Rifles Act read with Rule 27 of the Assam Rifles Rules have not been complied with is concerned, the same is considered but only for rejection. Section 8 of the Assam Rifles Act and Rule 27 of the Assam Rifles Rules are reproduced hereunder:-

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“ 8. Resignation and withdrawal from the post. – No member of the Force shall be at liberty –

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(a) to resign his appointment during the term of his engagement; or

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(b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority.”

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Page No.# 12/13

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“ 27. Resignation.–

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(1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force before completing the term of engagement: Provided that before granting such permission the Central Government may require the officer to refund to the Government three months pay and allowances drawn by him or the cost of training imparted to him, whichever is higher.

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(2) The Central Movement may accept the resignation under sub-rule (1) with effect from such date as it may consider expedient.

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(3) The Central Government may refuse to permit an officer to resign, - (a) if an emergency has been declared in the country either due to internal disturbance or external aggression; or (b) if it considers it to be inexpedient so to do in the interest of the discipline of the Force; or (c) if the officer has specifically undertaken to serve for a specified period and such period has not expired.

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(4) The provisions of this rule shall apply to and in relation to subordinate officers and enrolled persons as they apply to and in relation to any officer of the Force and the powers vested in the Central Government under sub rules (1) and (2) shall be exercised in the case of a Subedar-Major and Subedar by an Inspector-General, in the case of a Naib-Subedar by an officer not below the rank of Additional Deputy Inspector-General, and in the case of an enrolled person, by a Commandant.”

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24. A bare perusal of the above referred provisions makes it clear that an employee of the Assam Rifles cannot resign or withdraw himself during the term of his engagement, except with the previous permission in writing of the prescribed authority. As per Section 2(1)(t), “prescribed” means prescribed by the Rules made under the Act. The Assam Rifles Rules, 2010 are enacted in exercise of the powers conferred by Section 165 of the Assam Rifles Act. Subrule (1) of Rule 27 of the Assam Rifles Rules provides that the Central Government can permit any Officer to resign from the Force before completing his/her term of engagement, however, before granting such permission, it may require an Officer to refund to the Government 3(three) months’ pay and allowances drawn by him/her or the cost of training imparted to him/her, whichever is higher. It means that it is within the discretion of the Central Government to require an Officer, who sought premature retirement, to refund to the Government 3(three) months’ pay and allowances or cost of training imparted to him/her, whichever is higher. The Central Government can permit an employee premature retirement even without asking any refund of 3(three) months’ pay and allowances or the cost of training imparted to him/her. Sub-rule (3) of Rule 27 says that in certain conditions, the Central Government can refuse to permit an Officer from seeking premature retirement. However, sub-rule (4) specifies the authorities, who can exercise the powers vested on the Central Government in accepting the resignation or allowing premature retirement of an employee.

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25. From the analysis of the above provisions, it can be concluded that before allowing an employee of the Assam Rifles to withdraw from its services, previous permission of competent authority is required. In view of the above conclusion, there is no merit in the submission of the counsel for the respondent/writ petitioner that an employee of the Assam Rifles has to seek prior permission from the competent authority before submitting application for withdrawal from service.”

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20. Applying the decision of the co-ordinate Bench of this Court in the case of Bikram Rana (supra) to the facts of the present case; we are of the

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Page No.# 13/13

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considered view that the conclusion drawn by the learned Single Judge in the impugned judgment & order, dated 17.08.2023, that the submission of application for resignation by the respondent, herein, on 08.04.2023, not being preceded by any previous permission in writing for submission of such application, the same would be non-est in the eye of law; would not mandate acceptance and would call for an interference.

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21. We having concluded that the learned Single Judge vide the judgment & order, dated 17.08.2023, in WP(c)2626/2011, had erred in interfering with the order, dated 25.04.2003, issued towards accepting the resignation submitted by the respondent, herein, w.e.f. 30.04.2023, and the order, dated 30.04.2023, having been held, hereinabove, to be in compliance of the provisions of Section 8 of the Border Security Force Act, 1968; the subsequent direction passed by the learned Single Judge permitting the respondent, herein, to proceed on voluntary retirement from service w.e.f. 18.08.2003, along with pensionary benefits, would also call for an interference.

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22. In view of the above discussions, we are of the considered view that the impugned judgment & order, dated 17.08.2023, passed by the learned Single Judge in WP(c)2626/2011, cannot be sustained. Hence, the same is set aside. The writ appeal accordingly stands disposed of. Resultantly, the writ petition filed by the respondent, herein, also stands dismissed. No order as to costs.

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JUDGE CHIEF JUSTICE

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Comparing Assistant

The Union of India and 3 Ors. v. Ex-Constable, Force No. 89008021 Nirmal Kumar Sharma

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The Union of India and 3 Ors. v. Ex-Constable, Force No. 89008021 Nirmal Kumar Sharma

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