The Old Pension Scheme is in Effect For Personnel Of All Capfs, And Paramilitary Forces Are Union Armed Forces: Delhi High Court

CAUSE TITLE:

Pawan Kumar And Ors

DATE OF ORDER:

January 11, 2023

JUDGE(S):

HON'BLE MR. JUSTICE SURESH KUMAR KAIT

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA 

PARTIES:

Petitioner: Pawan Kumar

Respondent: Ors.

SUBJECT 

The Delhi High Court declared that all members of the Central Armed Police Forces should be eligible for the Old Pension Scheme (OPS) benefit under the CCS (Pension) Rules, 1972, and ordered the Center to produce the required instructions within eight weeks.

In its ruling on a group of 82 petitions asking for the revocation of orders depriving CRPF, BSF, CISF, and ITBP personnel of the benefit of the Old Pension Scheme, the division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna stated that both the notification dated 22.12.2003 and the OM dated 17.02.2020 "shall be applicable in rem."

BRIEF FACTS

• The petitioners are employees of various forces, including the Indo-Tibetan Border Police ("ITBP"), the Central Reserve Police Force ("CRPF"), Sashtra Seema Bal ("SSB"), the Border Security Force ("BSF"), and the Central Industrial Security Force ("CISF"), who have submitted these petitions following Articles 226 and 227 of the Indian Constitution. requesting the issuing of a writ of certiorari to the respondents for the quashing of decisions denying them the benefit of the Old Pension Scheme (hereafter, "OPS") following CCS (Pension) Rules, 1972 to them via various Office Memoranda and Signals issued by the respondents.
• Additionally, it was requested that the respondents' OM of 17.02.2020 be quashed to the extent that it denied employees who were hired by notices or advertisements dated 01.01.2004 the benefit of the Old Pension Scheme.

QUESTIONS RAISED

Does every member of the Central Armed Police Forces qualify for the benefits of the Old Pension Scheme (OPS) under the CCS (Pension) Rules, 1972?

ARGUMENTS ADVANCED BY THE APPELLANT

• The Special Selection Board (CPOs-2002) published an advertisement in June 2002 inviting applications from qualified candidates for the Group "A" post of Assistant Commandants in the Border Security Force, Central Reserve Police Force, Indo-Tibetan Border Police Force, and Special Security Bureau, according to the learned counsel appearing on behalf of petitioners (Now Sashastra Seema Bal). The deadline for applications for the aforementioned examination was June 30, 2002, per the aforementioned advertisement. The written test was due on March 2, 2003, and the selected candidates showed up for PET scans, interviews, and medical exams between October 2003 and February 2004. The petitioners received an appointment offer for the position of Assistant Commandant from October 2004 to October 2005. The New Contributory Pension Scheme ("NPS") was established with effect from January 1, 2004, using a notification dated December 22, 2003, however, it was not relevant to the Armed Forces because they were controlled by the OPS that was already in place at the time.
• The learned counsel for the petitioner cited the Supreme Court's ruling in the State of U.P. and Ors. vs. Arvind Kumar Srivastava and Ors. 2015 (1) SCC 347 to argue that once a group of employees has received relief from the Court, all other similarly situated individuals must be treated equally by being granted the benefit.
• Next, it was argued by the petitioner's attorney that the OM dated 17.02.2020 issued by the Department of Pension and Pensioner's Welfare, which states that only applicants whose final recruitment results were announced before 01.01.2004 against openings that occurred on or before 31.12.2003 shall be eligible for OPS under the CCS (Pension) Rules, 1972, is unlawful because it is well-established that in situations where the recruitment process has been completed before that date, only those applicants shall be eligible

ARGUMENTS ADVANCED BY THE RESPONDENT

• The recent decision of a Division Bench of this Court in Satya Dev Prajapati and Others Vs. Delhi High Court, through its Registrar General and Anr. 2022 SCC OnLine Del 3911, wherein the petitioners were denied the benefit of OPS, was cited by the learned Standing Counsel for respondents. It was further argued that because the petitioners in Shyam Kumar Choudhary (Supra) and Ithape Pandit Kisanrao (Supra) received relief in person and the aforementioned rulings did not apply to their circumstances, these petitions should be dismissed.

ANALYSIS BY THE COURT

• According to the court, the New Contributory Pension Scheme (NPS) Notification dated December 22, 2003, clearly states that "the system would be mandatory for all new recs to the central Government service from January 1, 2004 (excluding the armed forces in the first stage)."
• "Consequently, the Armed Forces were not included in the Scheme and will continue to be administered by the Old Pension Scheme that is currently in place. Additionally, the aforementioned Notification specified that the Armed Forces would be governed by the Old Pension Scheme already in place and that the scheme would not apply to them "The court stated.
• The Supreme Court's ruling in Akhilesh Prasad v. Union Territory of Mizoram, (1981), was cited as conclusive evidence that the CRPF is a branch of the armed forces. The court added that the Ministry of Home Affairs in India "cleared that the Central Forces under the administrative supervision of the Ministry of Home Affairs have been declared as Armed Forces of the Union" in a circular dated August 6, 2004.
• The bench also took note of an office memo published by the Indian government's Department of Pension and PW. The court stated, "A perusal of the aforesaid Notification dated 22.12.2003; Clarification letter dated 06.08.2004 and Office Memorandum dated 17.12.2020 shows that the BSF, CISF, CRPF, ITBP, NSG, Assam Rifles, and SSB are part of Central Forces under the Ministry of Home Affairs and Notification dated 22.12.2003 shall not be applicable on personnel of these Forces."
• The Ministry of Home Affairs (MHA), according to another OM released by the ministry, "has asked all the CAPFs to provide the benefit of OPS to the petitioners in W.P.(C) 3834/2013, Paramnand Yadav to the petitioners therein as well as other similarly placed persons," the court stated. Respondents, however, claim in their counter affidavit that, in any court's ruling in W.P.(C) 1358/2017, Shyam Kumar ChauChaudharyted 9.04.2019, the DoP&PW chose to solely apply the ruling to the petitioners' case in those particular petitions since it had factual errors.
• The court noted that the Supreme Court in the State of U.P. and Ors. vs. Arvind Kumar Srivastava and Ors. 2015 (1) SCC 347 had d that when a group of employees received relief from the court, all other similarly situated individuals needed to be treated similarly by extending the benefit to them. The court stated that the resprespondent'sument that the judge's judgment on 09.04.2019 contained factual errors "is highly unacceptable to this Court, in because said order was upheld by the supreme court.
• The court added that since the Government of India had declared the Central Forces under its administrative control to be Armed Forces of the Union in a Circular dated 6 August 2004 issued by the MHA, it is indisputable that the Armed Forces shall continue to be exempt from coverage under the Notification dated 22.12.2003.
• "We discover that, though Notification dated 22.12.2003 makes an exception for the "military forces," the recruits' appointment letters state, carelessly, that NPS will rule them. The Forces of the Union of India include "Naval, Military and Air Forces; any other armed forces of the Union," as stated in Article 246 read with List 1 Entry 2 of the VII Schedule of the Constitution of India, and as such, the personnel of CAPFs deserve to receive the benefit of OPS, as was authorize Notification dated 22.12.2003 "The court stated.
• The bench added that the Supreme Court and High Courts have Rico recognized the importance of the military forces in protecting our nation in nuseveralings. It said, "Having great regard for the military personnel, the courts and the Indian government have always maintained that any policy choice should not be prejudicial to their interests.
• The court claimed that the information in the OM dated 17.02.2020 and the Notification dated 22.12.2003 plainly shows that the country's military forces were not involved when the policy decision to implement NPS was made. In light of this, it said, "We are of the considered opinion that the Notification dated 22.12.2003 as well as OM dated 17.02.2020 are necessary to be executed in their real essence."
• The court claimed that the information in the OM dated 17.02.2020 and the Notification dated 22.12.2003 plainly shows that the country's military forces were not involved when the policy decision to implement NPS was made. In light of this, it said, "We are of the considered opinion that the Notification dated 22.12.2003 as well as OM dated 17.02.2020 are necessary to be executed in their real essence."
• "Given the aforementioned observations, we determine that the Notification of December 22, 2003, and, the Order of February 17, 2020 pre, vent the respondents from enforcing the New Contributory Pension Scheme (NPS), which was implemented with effect from January 1, 2004, on the personnel of the paramilitary Forces, including the Central Reserve Police Force (CRPF), Sashtra Seema Bal (SSB), Border Security Force (BSF), and Central Industrial Security Force (CISF). As a result, the contested office memos, signals, and orders are therefore revoked to the degree that they deny the petitioners and other military personnel in a comparable situation the benefit of the Old Pension Scheme."
• In this case, the petitioners were chosen after January 1, 2004. The Center issued a notification on December 22, 2003, for the adoption of NPS with effect on January 1, 2004, while the appointment process was ongoing. The court was informed that only employees whose recruiting process was complete by 31.12.2003 but who joined the force after 01.01.2004 were eligible for OPS benefits. Because the petitioners' recruitment procedure was completed after January 1, 2004, when the NPS was in effect, they were not eligible for OPS benefits.
• Although certain CAPF employees received the advantage of OPS in the past due to court orders, the judge's judgment does not apply uniformly. It was argued before the court that the authorities are not covering the petitioners under the OPS, as has been applied in the case of the Army, Air Force, and Navy, despite several court decisions, the fact that the Supreme Court has clarified that the CRPF is an Armed Force of the Union of India, and the notification dated 06.08.2004 issued by the Government of India stating that the CRPF is the Armed Force of the Union.
• In response, the Centre claimed that the NPS was adopted for new hires to Central Government Service, except for the Armed Forces, by the Ministry of Finance, Government of India, via Notification dated 22.12.2003, thereby replacing the OPS. The government claimed that the petitioners were ineligible for OPS under the CCS(Pension) Rules, 1972 since they joined the military after the aforementioned Notification went into effect.

CONCLUSION

The Delhi High Court declared that all members of the Central Armed Police Forces should be eligible for the Old Pension Scheme (OPS) benefit under the CCS (Pension) Rules, 1972, and ordered the Center to produce the requisite instructions within eight weeks.

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