Benefit of old pension scheme to give all Central Armed Police Forces personnel : Delhi HC
The Delhi High Court directed the Centre Wednesday to grant the benefit of the old pension scheme (OPS) under the CCS Pension Rules 1972 to all personnel of the Central Armed Police Forces (CAPF). The court was hearing a batch of 82 pleas seeking quashing of orders denying the benefit of the scheme to certain paramilitary personnel.
A division bench of Justices Suresh Kumar Kait and Neena Bansal Krishna in its decision of January 11, while directing the Centre to issue necessary orders, said, “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.”
The petitioners in the case were appointed after January 1, 2004, who contended that on December 22, 2003, the Centre issued a notification for implementation of the new pension scheme with effect from January 1, 2004. They claimed that the benefits of the OPS was extended to only those personnel whose recruitment process was completed by December 31, 2003 but joined the force after January 1, 2004.
They claimed to have applied in 2002-03 and 2003-04 for various posts in the paramilitary forces like Indo Tibetan Border Police, Central Reserve Police Force etc. “However, given that this benefit was not extended to the personnel of the armed forces, a quite many of them took the plea that since their recruitment/ selection process commenced prior to Notification dated 22.12.2003, they shall be covered under the OPS, though the respondents have treated them as a member of NPS,” the court’s decision notes. The petitioners claimed that they made several representations on this issue before the competent authority of their respective Force, however, their prayer for grant of benefit of OPS was turned down.
The HC perused the December 22, 2003 notification holding that it categorically mentions, “The system would be mandatory for all new recruits to the central Government service from 1st of January 2004 (except the armed forces in the first stage).”
“Meaning thereby that the Scheme was not applicable to Armed Forces and the Armed Forces will be governed by the Old Pension Scheme already existing. Also, the said Notification stipulated that the scheme shall not be applicable to Armed Forces and they shall be governed by the Old Pension Scheme already existing,” the court observed.
The court also referred to a Supreme Court decision which held that the Central Reserve Police Force is a part of armed forces. “Also, the Ministry of Home Affairs, Government of India, vide Circular dated 6th August, 2004 clarified that the Central Forces under the administrative control of the Ministry of Home Affairs have been declared as Armed Forces of the Union,” the High Court noted.
The court perused through all the notifications, letters and office memorandum and said that the same shows that “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 High Court referred to another office memorandum dated April 13, 2018 of the Ministry of Home Affairs which showed that the ministry had directed all the Central Armed Police Forces to extend the benefit of the Old Pension Scheme to the petitioners in another petition (2013 decision of Delhi High Court in Paramnand Yadav vs UOI) as well as to “other similarly situated personnel”.
The High Court ruled that the appointment letters of the petitioners were issued in 2004-2005 after conclusion of the selection process “which took extra inordinate long time as the advertisement/ notification for appointment was released in the year 2002 & 2003 for different posts in the Forces”.
“It is not misplaced to mention here that the advertisement [in W.P.(C) No. 12712/2021 i.e. the lead matter] inviting applications for recruitment of Assistant Commandant in BSF/CRPF/ITBP/SSB noted that on joining an organization a candidate shall be governed by the Act and Rules as applicable to that organization and as amended from time to time,” the HC said. The HC emphasized that appointments have to be strictly made in terms of the advertisement and any breach would amount to “vitiation of the selection process,” the High Court said.
The High Court went on to hold that when the advertisements were published, the old pension scheme was in force.
It noted, “Also, when the advertisement itself states that the selected candidates shall be governed by the Act and Rules in force and 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 New Pension Scheme 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”.
“We find that despite the fact that ‘armed forces’ are an 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,” the court said.
Emphasising on the role of the armed forces in safeguarding the country, the High Court said, “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 the 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.”
The court finally ruled that the notification and the office memorandum as well as orders to the extent that they deny benefits of the old pension scheme to the petitioners as well as other similarly situated armed forces personnel are quashed.
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