NPS to OPS: Old Pension Scheme applicable to personnel of All CAPFs: Delhi High Court Judgement in W.P.(C) 12712/2021 & connected petitions dated 11.01.2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 01, 2022
Pronounced on: January 11, 2023
1) + W.P.(C) 12712/2021
PAWAN KUMAR AND ORS. and connected petitions (see pdf)
Through: Advocate (appearance not given)
UNION OF INDIA AND ORS. ….. Respondents
Through: (see pdf)
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
SURESH KUMAR KAIT, J
1. The petitioners in the above captioned petitions are employees of different forces i.e. Central Reserve Police Force (‘CRPF’), Sashtra Seema Bal (‘SSB’), Border Security Force (‘BSF’) and Central Industrial Security Force (‘CISF’) Indo Tibetan Border Police (‘ITBP’) etc., who have preferred these petitions under Article 226/227 of the Constitution of India seeking issuance of a writ of certiorari to the respondents for quashing of orders denying them the benefit of Old Pension Scheme (‘OPS’) in accordance with CCS (Pension) Rules, 1972 to them vide different Office Memorandums and Signals issued by the respondents. In addition, also sought quashing of OM dated 17.02.2020 issued by respondents to the extent it does not grant benefit of Old Pension Scheme to the personnel who have been appointed pursuant to notifications/ advertisements dated 01.01.2004.
2. The primary relief sought by the petitioners in these petitions is for grant of OPS to the personnel, who have though been appointed after 01.01.2004, but had applied for the posts prior to 01.01.2004. Since the relief sought in these petitions is similar, therefore, vide order dated 08.08.2022 [in W.P.(C) No. 3424/2022] this Court had directed that W.P.(C) No. 12712/2021 shall be treated as the lead matter and with the consent of learned counsel for the parties, Mr. Ankur Chibber, Advocate and Harish Vaidyanathan Shankar, learned Standing Counsel, were called upon to put-forth the case on behalf of the petitioners and respondents respectively.
3. Mr. Ankur Chibber, learned counsel appearing on behalf of petitioners submitted that The Special Selection Board (CPOs-2002) in June 2002 had issued an advertisement inviting applications from eligible candidates for filing up 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 (Now Sashastra Seema Bal). As per the said advertisement, the last date for applying under the said examination was 30.06.2002. The written examination was scheduled for 02.03.2003 and the successful candidates appeared for PET, Interview and Medical examination between October, 2003 till February, 2004. The final result was declared in July, 2004. The petitioners were offered appointment for the post of Assistant Commandant during the period October, 2004 till 2005. In the interregnum, vide Notification dated 22.12.2003, New Contributory Pension Scheme (‘NPS’) was implemented w.e.f. 01.01.2004, however, the said scheme was not applicable to Armed Forces, as the Forces shall be governed by the OPS already existing.
51. There is no dispute to the position that at the time of publication of the advertisements, the OPS was in force. Also, when the advertisement itself states that the selected candidates shall be governed by the Act and Rules in force and thereafter, the Notification dated 22.12.2003 and OM dated 17.02.2020 specifically mention that the all the Central Government employees “except the armed forces”, shall be governed by the NPS, therefore, we do not find any reason for respondents to issue the appointment letters to the personnel of armed forces mentioning that “the appointee shall be governed by the new pension scheme introduced by the Government of India”. When vide Circular dated 6th August, 2004 issued by the Ministry of Home Affairs, Government of India has itself declared that the Central Forces under the administrative control of Ministry of Home Affairs are armed Forces of Union, the position cannot be disputed that the Armed Forces shall remain excluded from coverage under Notification dated 22.12.2003. We find that despite the fact that ‘armed forces’ are exception to Notification dated 22.12.2003, , however, without application of mind, have mentioned in the appointment letters of the candidates that the recruits shall be governed by NPS. Apparently, Article 246 read with List 1 Entry 2 of the VII Schedule of Constitution of India envisages Armed Forces of the Union of India includes “Naval, Military and Air Forces; any other armed forces of the Union”, so, the personnel of CAPFs deserve to get the benefit of OPS, as has been granted vide Notification dated 22.12.2003.
52. The Hon’ble Supreme Court and High Courts in various decisions have appreciated the role of armed forces in safeguarding our country. Having great respect for the personnel of forces, the Courts as well as Government of India, have always ensured that any policy decision should not be detrimental to their interest. The contents of Notification dated 22.12.2003 as well as OM dated 17.02.2020 clearly demonstrate that when policy decision to implement NPS was taken, the armed Forces of the country were kept out of its domain. Accordingly, we are of the considered opinion that the Notification dated 22.12.2003 as well as OM dated 17.02.2020 are required to be implemented in their true essence.
53. In the light of what we have observed above, we find that Notification dated 22.12.2003 as well as OM dated 17.02.2020 create a bar upon the respondents to not implement the Notification dated 22.12.2003, whereby New Contributory Pension Scheme (‘NPS’) has been executed w.e.f. 01.01.2004, upon the personnel of the paramilitary Forces i.e. Central Reserve Police Force (‘CRPF’), Sashtra Seema Bal (‘SSB’), Border Security Force (‘BSF’) and Central Industrial Security Force (‘CISF’) Indo Tibetan Border Police (‘ITBP’) (CAPFs) etc. Consequentially, the impugned Office Memorandums, Signals and Orders, to the extent it deny the benefit of Old Pension Scheme to the petitioners and similarly situated personnel of the armed forces, are hereby quashed.
54. A mandamus by way of direction is accordingly issued to the respondents to issue an Order to CAPFs mentioned above to implement the Notification dated 22.12.2003 as well as OM dated 17.02.2020 in essence noted above. It is made clear that the Notification dated 22.12.2003 as well as OM dated 17.02.2020 granting the benefit of Old Pension Scheme shall be applicable in rem. Meaning thereby, Old Pension Scheme shall not only be applicable in the case of petitioners herein but all the personnel of CAPFs at large. Accordingly, necessary orders be issued within eight weeks.
55. With aforesaid directions, these petitions and pending application, if any, are accordingly disposed of.
(SURESH KUMAR KAIT)
(NEENA BANSAL KRISHNA)
JANUARY 11, 2023
Neutral Citation Number: 2023/DHC/000201
W.P.(C) 12712/2021 & connected petitions