On January 11, a division bench of the Delhi High Court led by Justice Suresh Kumar Kait and Justice Neena Bansal Krishna ruled that the benefit of the Old Pension Scheme (OPS) under the CCS (Pension) Rules, 1972 should be extended to all personnel of the Central Armed Police Forces and directed the Centre to issue the necessary orders within eight weeks. In its decision on a batch of 82 petitions seeking quashing of orders denying the benefit of OPS to personnel of the CRPF, BSF, CISF, and ITBP, the bench stated that the notification dated 22.12.2003, as well as the OM dated 17.02.2020 granting the benefit of Old Pension Scheme, were both invalid "shall be applicable in rem."

According to the court, the Notification dated 22.12.2003 for New Contributory Pension Scheme (NPS) states categorically in Para I that 'the system would be mandatory for all new recruits to the central Government service from the 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.

The bench also took note of an Office Memorandum issued by the Government of India's Department of Pension and PW. "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.

The court stated, in reference to another OM issued by the Ministry of Home Affairs, that 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."

The court also stated that because the Government of India has declared that the Central Forces under the administrative control of the MHA are armed Forces of the Union via Circular dated 6th August, 2004, the position cannot be disputed that the Armed Forces shall remain excluded from coverage under Notification dated 22.12.2003.

The bench also stated that the Supreme Court and High Courts have praised the role of the armed forces in protecting our country in various decisions."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 stated that the contents of the Notification dated 22.12.2003 and the OM dated 17.02.2020 clearly demonstrate that when the policy decision to implement NPS was made, the country's armed forces 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."

In response, the Centre argued that the Ministry of Finance, Government of India, implemented NPS for new entrants to Central Government Service, except the Armed Forces, via Notification dated 22.12.2003, thereby replacing the OPS. The petitioners were not entitled to OPS under the CCS(Pension) Rules, 1972, the government argued, because they joined the services after the aforementioned Notification went into effect.

Title: Pawan Kumar And Ors Vs.   Union Of India And Ors
Citation: W.P.(C)  12712 / 2021

Link: http://164.100.69.66/jupload/dhc/SKT/judgement/12-01-2023/SKT11012023CW127122021_105047.pdf