Delhi High Court: In a batch of 82 petitions filed by the petitioners who are employees of different forces i.e., Central Reserve Police Force (‘CRPF'), Sashastra Seema Bal (‘SSB'), Border Security Force (‘BSF') and Central Industrial Security Force (‘CISF') Indo Tibetan Border Police (‘ITBP') etc., are seeking issuance of a writ of certiorari to Union of India (‘Respondent') for quashing of orders denying them the benefit of Old Pension Scheme (‘OPS') in accordance with CCS (Pension) Rules, 1972 vide different Office Memorandums and Signals issued by the respondents. The petition further seeks quashing of Office Memorandum dated 17-02-2020 issued by the respondents to the extent that it does not grant the benefit of Old Pension Scheme to the personnel who have been appointed pursuant to notifications/ advertisements dated 01-01-2004. A Division Bench of Suresh Kumar Kait and Neena Bansal Krishna, JJ., directed the Union to issue an Order to CAPFs mentioned above to implement the Notification dated 22-12-2003 as well as OM dated 17-02-2020 granting the benefit of Old Pension Scheme to apply in rem, thus, making the Old Pension Scheme to be applicable to all the personnel of CAPFs at large.
The primary relief sought by the petitioners in the petitions is for the 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.. The petitioners claim to have made different representations before the competent authority of their respective Forces, however, their prayer for the grant of benefit of OPS was turned down vide different Office Memorandums, Signals, etc. Hence, aggrieved by the denial of the Union towards granting the benefit of OPS, instant petitions were filed.
Counsel for the petitioners submitted that the personnel appointed pursuant to the advertisement issued prior to 31-12-2003 shall be eligible to get OPS. Further, the petitioners, deployed under different Forces, were members of the Armed Forces and hence, covered under the OPS as according to Article 246 read with List 1 Entry 2 of the Seventh Schedule, the Armed Forces of the Union of India included the Naval, Military and Air Forces and any other armed forces of the Union and even the Central Reserve Police Force was raised as an Armed Force of the Union of India and is governed by a special Act called CRPF Act, 1968.
The Court noted that the New Contributory Pension Scheme (NPS) was introduced vide Notification dated 22-12-2003, which was to be implemented w.e.f. 01-01-2004 and it reads as “The system would be mandatory for all new recruits to the Central Government service from 01-01-2004 (except the armed forces in the first stage). Thus, 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 shall be governed by the Old Pension Scheme already existing.”
Further, placing reliance on Akhilesh Prasad v. Union Territory of Mizoram, (1981) 2 SCC 150 and Circular dated 6-08-2004 issued by the Ministry of Home Affairs, Government of India clarifies the position that the Central Forces under the administrative control of the Ministry of Home Affairs have been declared as Armed Forces of the Union.
The Department of Pension and PW, Government of India issued another Office Memorandum dated 17-02-2020 stating that coverage under Central Civil Services (Pension) Rules, 1972, in place of the National Pension System, of those Central Government employees whose selection for the appointment was finalized before 01-01-2004 but who joined Government service on or after 01-01-2004.
Further, a perusal of the 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 Court recorded that it is the settled position that appointments must be strictly made on the terms stipulated in the advertisement and any breach would tantamount to vitiation of the selection process. Furthermore, at the time of publication of the advertisements, the OPS was in force and when the advertisement itself states that the selected candidates shall be governed by the Act and Rules in force and thereafter, the Notifications mention that all the Central Government employees “except the armed forces”, shall be governed by the NPS, therefore, there is no reason for the 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”.
The Court held that the 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 NPS has been executed w.e.f. 01-01-2004, upon the personnel of the paramilitary Forces.
The Court quashed 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 and issued orders to the respondents to issue an order to CAPF's to implement the Notification dated 22-12-2003 as well as OM dated 17-02-2020 in essence.
[Pawan Kumar v. Union of India, 2023 SCC OnLine Del 112, decided on 11-01-2023]
Advocates who appeared in this case :
Mr. Ankur Chhibber & Mr.Anshuman Mehrotra, Advocates for Petitioners 1-26
Ms. Ankita Patnaik, Advocate for petitioner 27-53
Mr. Nikhil Bhardwaj, Advocate for petitioner 54-57
Mr. Nikhil Palli, Advocate for petitioner 58-61
Mr. Rajat Arora, Mr. Dipu Kumar Jha and Mr. Miraj Kumar, Advocates for petitioner 61-69
Mr. Pankaj Kumar, Mr. Sandeep Kr. Singh, Mr. Shubhendu Saxena & Mr. Rishabh Agarwal, Advocates. for petitioner 70
Mr. Padma Kumar.S, Advocate for petitioner 71
Mr. Amit Bardhan Mohanty, Advocate for petitioner 72-73
Mr.Akash Mohan & Mr.Amit Bardhan Mohanty, Advocates for petitioner 74-76
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Aggarwal & Mr. Jatin Singh, Senior Panel Counsel with Ms. Geetanjali Tyagi, Government Pleader in W.P.(C) 14501/2022 Ms. Aakansha Kaul & Mr. Harsh Ojha, Advocates with Mr.Anirudh Shukla, Government Pleader in W.P.(C) 6379/2021; W.P.(C) 6900/2021; W.P.(C) 13112/2022; W.P.(C) 13181/2022 Mr. Jivesh Kumar Tiwari, Senior Panel Counsel & Ms. Samiksha, Advocate with Mr. Paramveer Singh, AC, LAW, BSF in W.P.(C) 3956/2017, Mr. T.P.Singh, Senior Central Government Counsel with Mr.Paramveer Singh, AC, LAW, BSF in W.P.(C) 110/2020; W.P.(C) 7088/2021; W.P.(C) 13762/2021; W.P.(C) 7065/2022 Mr. Harish Vaidyanathan, CGSC with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat & Mr. Alexander Mathai Paikaday, Advocates in W.P.(C) 12712/2021; W.P.(C) 2116/2021; W.P.(C) 11390/2021; W.P.(C) 11393/2021; W.P.(C) 14891/2021 Ms. Anju Gupta, Senior Panel Counsel with Mr. R.L. Goel, Advocate in W.P.(C) 1480/2020 Mr. Vikrant N. 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Pleader SI Prahlad Devenda in W.P.(C) 14227/2021; W.P.(C) 6177/2022 Mr. Shoumendu Mukherji, Senior Panel Counsel & Ms. Megha Sharma, Advocate in W.P.(C) 15271/2022 Mr. Dev. P. Bhardwaj, CGSC, Ms.Anubha Bhardwaj, Mr.Sarthak Anand, Mr. Madhulak Bhardwaj & Ms.Ankita Gautam, Advocates in W.P.(C) 2314/2022 Mr. Ritesh Vikram Srivastva, Senior Panel Counsel, Mr. Prajesh Vikram Srivastva, Advocates with Sh. Paramveer Singh, AC, LAW, BSF in W.P.(C) 3424/2022 Mr. Avnish Singh, Senior Central Government Counsel with Mr. Aditya Vikram Dembla, Advocates with Sh. Paramveer Singh, AC, LAW, BSF in W.P.(C) 3456/2022 Mr. Manish Mohan, CGSC & Mr.Jatin Teotia, Advocates in W.P.(C) 5333/2022 Ms. Talish Ray, Advocate in W.P.(C) 6137/2022 Mr. Hemant Kumar Yadav with Mr. Abhigyan Siddhant, Government Pleader in W.P.(C) 6789/2022 Ms. Pratima N. 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*Arunima Bose, Editorial Assistant has reported this brief
