Paramilitary Forces Are Armed Forces Of Union, Old Pension Scheme Applicable To Personnel Of All CAPFs: Delhi High Court

The Delhi High Court has ruled that the benefit of Old Pension Scheme (OPS) in accordance with CCS (Pension) Rules, 1972 shall be applicable for all the personnel of Central Armed Police Forces and directed the Centre to issue necessary orders within eight weeks.

The division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna, in its decision on a batch of 82 petitions seeking quashing of orders denying the benefit of OPS to personnel of CRPF, BSF, CISF and ITBP, said 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."

The court said Notification dated 22.12.2003 for New Contributory Pension Scheme (NPS) shows that in Para (i) it has been categorically mentioned that '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," said the court.

It noted that the Supreme Court's decision in Akhilesh Prasad Vs. Union Territory of Mizoram, (1981) clearly shows that CRPF 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," said the court.

The bench further took note of an Office Memorandum issued by the Department of Pension and PW, Government of India. "A perusal of the afore-noted 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," said the court.

Referring to another OM issued by the Ministry of Home Affairs, the court said the MHA "had directed all the CAPFs to extend the benefit of OPS to the petitioners in W.P.(C) 3834/2013, Paramnand Yadav to the petitioners therein as well as other similarly situated personnel. However, respondents in their counter affidavit have taken the stand that pursuant to decision of this Court in W.P.(C) 1358/2017, Shyam Kumar Chaudhar dated 09.04.2019, the DoP& PW noted that there were factual errors in the said decision and so, decided to implement the order of the this Court only to the case of petitioners in the said petitions."

Observing that the Supreme Court in State of U.P. and Ors. Vs. Arvind Kumar Srivastava and Ors. 2015 (1) SCC 347 has held that when a set of employees has been given relief by the Court, then all other identically placed persons need to be treated alike by extending the benefit to them, the court said that the plea of respondents that there were factual errors in judgment dated 09.04.2019  "is highly unacceptable to this Court, in view of the fact that the said order was upheld by the Supreme Court."

The court further said that when vide Circular dated 6th August, 2004 issued by the MHA, Government of India has itself declared that the Central Forces under the administrative control of MHA 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," said the court.

The bench further said that the 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," it added.

The court said 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," it added.

"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."

The petitioners in the case were appointed after 01.01.2004. While the process for appointment was on, the Centre issued a notification dated 22.12.2003 for implementation of NPS with effect from 01.01.2004. The court was told that the benefit of OPS was extended to only those personnel whose recruitment process was completed by 31.12.2003 but joined the force after 01.01.2004. The petitioners before the Court were denied the benefit of OPS for the reason that their recruitment process was completed after 01.01.2004 i.e. when the NPS was in force.

While some of the personnel in CAPFs were granted the benefit of OPS previously on account of court orders, the decision was not applied across the board. It was argued before the court that despite various court decisions and the fact that the Supreme Court has clarified that 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, the authorities are not covering the petitioners under the OPS, as has been applied in case of Army, Air force and Navy. 

Centre in response argued that Ministry of Finance, Government of India, vide Notification dated 22.12.2003 implemented NPS for new entrants to Central Government Service, except to Armed Forces, thereby replacing the OPS. Since the petitioners joined the services after coming into force the aforesaid Notification, these petitioners were not entitled to OPS under the CCS(Pension) Rules, 1972, the government argued.

Old Pension Scheme shall be applicable to all the personnel of Central Armed Police Forces: Delhi High Court directs Centre to issue necessary orders within 8 weeks pic.twitter.com/8KEHguOkkd

— Live Law (@LiveLawIndia) January 12, 2023

Title: PAWAN KUMAR AND ORS

Citation: 2023 LiveLaw (Del) 29

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