Petitions from different forces – Old Pension Scheme is not implemented in accordance with the 1972 CCS Pension Rules 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

……. Petitioners

Through: Advocate (appearance not given)

Versus

UNION OF INDIA AND ORS. ….. Respondents

Through: (see pdf)

CORAM:

HON’BLE MR. JUSTICE SURESH KUMAR KAIT
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

JUDGMENT
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.

Judgement

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)
JUDGE

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 11, 2023

Neutral Citation Number: 2023/DHC/000201
W.P.(C) 12712/2021 & connected petitions

Download CAPF eligible for old pension scheme OPS Delhi High Court Judgement 2023 PDF

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22 FEB 2019

A Pre-Retirement Counselling (PRC) was held for Central Armed Police Forces (CAPFs) in Chennai today. This was the 46th workshop in the series organized by the Department of Pension and Pensioners Welfare.

Shri Sanjiv Narain Mathur, Joint Secretary, Department of Pension and Pensioners Welfare, Government of India is addressing the gathering at the Pre Retirement Counselling (PRC) held for Central Armed Police Forces (CAPF) in Chennai on 22.02.19.

Around 140 CAPF retirees were present in the workshop. Shri Sanjiv Narain Mathur, Joint Secretary, Department of Pension and Pensioners’ Welfare, Government of India, Shri D.V. Thomas, Commandant, CRPF and Shri S. Elango, DIG, CRPF were also present in the PRC.

The sessions covered retirement benefit, process involved in Pension Payment Order, CGHS facility, investment option and Income Tax benefit available to the senior citizens. The sessions provided a detailed over-view of entitlements of the pensioner & other benefits. They also got to know about Bhavishya Software which is a common online platform for processing of pension cases by all civil Ministries/Departments of Government of India. This system is now integrated with PAO and CPAO through their online module, PFMS and PARAS respectively.

This workshop was organized for the Central Armed Police Forces who are about to retire. It aims to prepare them for a seamless process of retirement.

PIB

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21 FEB 2019

In a significant decision, the Ministry of Home Affairs has approved the entitlement of air travel on Delhi-Srinagar, Srinagar-Delhi, Jammu-Srinagar and Srinagar-Jammu sectors to all the personnel of Central Armed Paramilitary Forces. The decision will immediately benefit approximately 7,80,000 personnel of the CAPFs in the ranks of Constable, Head Constable and ASI who were otherwise not eligible earlier. This includes journey on duty and journey on leave, i.e; while going on leave from Jammu and Kashmir to home and return.

This facility is in addition to the existing air courier services for CAPFs that have been steadily extended in all sectors by the MHA to help the jawans cut down on travel time during their journey to and fro from home on leave.

In Jammu and Kashmir Sector, it may be recalled that Air Courier Service for CAPF jawans was approved for the Jammu-Srinagar-Jammu sector.

Subsequently, the Service was extended to cover 1) Delhi-Jammu, 2) Jammu-Srinagar, 3) Srinagar-Jammu and 4) Jammu-Delhi sector in Dec 2017. The number of flights were further extended in Dec 2018.

In addition, air support is provided from IAF as and when required.

PIB

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The amount of ex-gratia lump sum compensation available to the families of Central Government Civilian employees, who die in the performance of their bona fide official duties under various circumstances, has been increased on the recommendations of the 7th Pay Commission w.e.f. 01/01/2016 vide DoP&PW OM No.38/37/2016-P&PW(A)(i) dated 04/08/2016, as under:

The rate of ex-gratia lump sum compensation for 100 percent disability to CAPFs & Assam Rifles personnel, who are disabled in the performance of their bonafide official duty under various circumstances and are boarded out from service on account of disability attributable to aggravated in service, has been revised vide this Ministry OM No.27011/64/2010-R&W (Part) dated 07/06/2017 from Rs. 09 lakhs to Rs. 20 lakhs w.e.f 01/01/2016.

The 7th CPC has recommended a common regime of Risk and Hardship Allowance for Army and CAPFs which has been accepted by the Government.

This was stated by the Minister of State for Home Affairs, Shri Kiren Rijiju in a written reply to question by Shri Bahadur Singh Koli in the Lok Sabha today.

PIB

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New Delhi: A group of retired paramilitary forces officials will hold a day-long protest at Jantar Mantar here tomorrow demanding grant of special pay, OROP and restoration of old pension scheme for lakhs of personnel.

Alleging “discrimination” by the government, the association of veterans of forces like CRPF, BSF, ITBP, CISF and SSB is also demanding sanction of a number of welfare benefits to both the serving and retired personnel of these forces tasked with the maintenance of internal security in the country.

“We have some genuine demands like the One Rank One Pension, paramilitary special pay, restoration of the old pension scheme that was stopped for those who joined these forces beginning 2004.

“These forces toil very hard to ensure the country’s security and the government should ensure the welfare of these personnel and their families,” General Secretary of the Confederation of Ex-Paramiltary Forces Welfare Association Ranbir Singh said.

He said apart from the dharna protest at Jantar Mantar, the veterans will march towards the Parliament in support of their demands and will submit a memorandum to the Home Ministry.

The wife and family of BSF jawan Tej Bahadur Yadav, who recently raised allegations of poor quality food being served to jawans, are also expected to join the protest, Singh said.

There are about 9 lakh jawans and officers in these forces, also called Central Armed Police Forces (CAPFs), that work under the command of the Union Home Ministry and they are tasked to not only conduct operations within the country but also to secure the borders.

PTI

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Since 29 June, the day when the Central government announced the acceptance of the 7th Pay Commission report, there have been quite a few voices of concern, anguish and plain anger have been emanating from military veterans over the issue of continuing degradation of the military’s status in the overall government hierarchy. Most of the anger is justified but some of the contentions are not, simply because they are not based on facts as they obtain at the moment.

Take the case of allowances and the case of non-functional financial upgrade have NOT been accepted by the government and remain on table for discussions and their eventual resolution. Unfortunately, in absence of the actual notification, the old issue about disparity in allowances to be given to a civil service officer posted in the north-east vis-a-vis a soldier posted in Siachen continues to be cited as fact when in reality, the government has refused to accept this anomalous recommendation. However, many write-ups, discussions, WhatsApp and Facebook messages continue to harp on this single point, creating confusion in the minds of majority of serving and retired personnel.

The need right now is to have patience and not hasty conclusions, past experience notwithstanding. The 7th Pay Commission had made some completely absurd recommendations which, the government, after proper analysis aided by the three service headquarters, has NOT accepted. Contrary to several emails and WhatApp messages going around, rations to the military personnel have NOT been discontinued. Neither has the disability pension been reduced. But many of seem to ignore this. Yes, several anomalies carried over from the 6th Pay Commission continue to remain unresolved; yes the Central Armed ​Police ​Forces (CAP​Fs) are becoming increasingly vocal demanding parity or even higher status from that of the military; yes, the bureaucrats will try their best to degrade the military. But, like their predecessors, the current military leadership is doing its best to fight the onslaught. Some battles will be won; some others will result in stalemate and a few will be lost. The trick is to lend full support to those who are leading the battle and not ridicule them.

But I am sorry to say many seniors are—wittingly or unwittingly—running down the current leadership across the three services without full knowledge of what they are trying. The best course forthe moment, in my view, is to hold the horses and wait for the notification to be available in writing before rushing to pronounce judgement.

I write this even as I get an earful every week from my 84-year old father—who retired as Subedar Major in 1982, for those who don’t know—for not being able to find out why his bank account does not show any enhanced pension more than six months after the announcement of the One Rank One Pension award! Despite my so-called reach and contacts, I am still waiting for a satisfactory answer from the department of Ex-servicemen (non) Welfare. That personal frustration notwithstanding, I feel the need is to wait a little more before deciding on the next course of action and not forward half-baked posts and ill-informed opinions without application of mind.

If considered judgement is not applied, the military community will once again look foolish as it did in forwarding—on a large scale– a fictitious interview with former IAS officer Vivek Rae (who was member of the 7th CPC), which ostensibly displayed his total contempt for the uniform. That is just one instance. As someone who has had the privilege of reporting on the government and especially on the MoD for over three decades, all that I can say is: don’t play into the hands of those inimical to the services. By making rash comments, sweeping generalisations and fictional charges, the military community is only aiding those who wish to see a servile, subservient and demoralised military.

This post is sure to anger many seniors and the perpetually ‘on the boil’ veterans but please view this issue in a broader perspective and introspect whether hasty conclusions are in the best interest of the organisation all of you had the privilege of serving.
Source: abplive.in

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No.E-27018/2/2011-Estt.II

Dated: 28 th April 2014

To

The ADG/APS,
The IsG (NS & NES).
Sub: Grant of Risk/Hardship based allowances to CAPFs personnel as per the recommendations of Sixth Central Pay Commission—Regarding
Kindly refer to FHQrs letter No.E-12013/1/10-Estt.11/4490 dated 04/12/2009 and letter of even No.(515) dated 23/02/2011 regarding admissibility for grant of Risk/Hardship allowance for CISF personnel posted in PSUs, Airports in J&K and NE region.

2. The matter was taken up with MHA and MHA has now intimated vide their letter No.11- 27012/25/CF-62360/2010-PF.1 dated 16/04/2014 that proposal for Risk/Hardship allowance for C1SF personnel deployed at PSUs, Airports in J&K and NE region has not been agreed to.
3. In view of the above, it is requested to give instructions to all Unit Commander’s under your jurisdiction to stop giving Risk/Hardship allowance with immediate effect.

4. A consolidate compliance report may be forwarded to FHQr (Estt Branch) by 30th April 2014 positively.

(Shikha Goa)
Dy.inspector General (Pers)

Source: http://www.cisf.gov.in
[http://www.cisf.gov.in/wp-content/uploads/2014/04/1601.pdf]

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The steps taken by the Government to provide additional incentives to women to join the para-military forces are as under:-

(i)    ‘Creches’ and ‘Day Care Centres’ have been provided by the CAPFs to women employees.

(ii)    Separate accommodation for women personnel with basic amenities.

(iii)    Toilet facilities are made available for the use of women employees by pitching of proper tents with commode in areas where appropriate locations are not available.

(iv)    Vehicles fitted with mobile toilets for women personnel during movement from one place to another and during picketing duties.

(v)    Facilities already available under the Central Government like Maternity Leave, Child Care Leave, are also applicable to CAPFs women personnel.

(vi)    Medical facilities with special care to the pregnant women. Lady Doctors are available to provide medical coverage.

(vii)    Education facilities to their children in KendriyaVidyalaya have been provided wherever available.

(viii)    Facilities have been provided to women personnel at par with their male counter parts at work place without any gender bias.

(ix)    In case of married women, generally husband and wife are posted in same station as far as possible.

(x)    Instructions issued vide Department of Personnel and Training’s OM No.35021/2/2009-Estt (C), dated 3.7.2009, regarding concerted effort to increase representation of Women in Central Government jobs are strictly adhered to while conducting recruitment to ensure adequate women candidates are attracted to join CAPFs.

(xi)    One female member is detailed as member of the board for making recruitment of women personnel.

(xii)    The Programme on Gender Sensitization in Govt. Service has been conducted by all CAPFs to educate their personnel. This has also been made part of the Basic Training Programme.

(xiii)    Committees have been constituted at all levels to check sexual harassment and to deal with the complaints of women personnel.  All CAPFs have included the NGOs in the Complaint Committees to enquire into complaints of sexual harassment.

(xiv)    There is proper mechanism established for redressal of Grievances of women employees of CAPFs.

(xv)    Ministry of Home Affairs have issued order suggesting time-limits for processing of the disciplinary proceedings on the complaints of Sexual Harassment at work place so that proceedings are concluded expeditiously by CAPFs.

(xvi)    Ministry of Home Affairs have directed all CAPFs to amend their respective Act/Rules suitably to make necessary provisions as per the guidelines and norms emanating from the Judgment of Supreme Court in the case of Vishaka and Ors Vs. State of Rajasthan and Ors. (JT 1997(7) SC 384).

(xvii)    Women personnel are given equal opportunity in their career progression i.e. promotion/seniority at par with male counter parts.

(xviii)    Women personnel are encouraged to be self-dependent by imparting proper training and talks during various courses.

(xix)    Separate General Pool Accommodation for women employees available to Central Government employees are also applicable to women employees in CAPFs.

(xx)    Women personnel are generally not being posted in units located in very remote and hostile areas.

 

Source: R.S.USQ No. 992 FOR 14.08.2013

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