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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Appeal to unfreeze the DA/DR is dismissed by Delhi High Court Order

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 3308/2020
HITESH BHARDWAJ ….. Petitioner

Through: Dr. Pradeep Sharma with Mr. Harsh,
Advs.
versus
MINISTRY OF FINANCE, UNION OF INDIA AND ANR
….. Respondent
Through: Mr. Jasmeet Singh, CGSC.
Ms. Shobhana Takiar, ASC, GNCTD.

CORAM
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

O R D E R
01.06.2020

CM APPL. 11606/2020
Exemption allowed, subject to all just exceptions.
The Court fees be paid within a week.
The application stands disposed of.

W.P.(C) 3308/2020
The present writ petition has been preferred in public interest seeking following reliefs:

“a) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to withdraw the notification issued by the Ministry of Finance, Government of India

b) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to withdraw the endorsement against the notification, issued by the Ministry of Finance, Government of NCT of Delhi.

c) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to defreeze and release the enhanced Dearness Allowance to the Central Government Servants and pensioners as per norms.

d) Issue a Writ of Mandamus or any other appropriate Writ, order or direction to the Respondents to defreeze and release the enhanced Dearness Allowance to the Government Servants and pensioners of GNCTD as per norms.”

The respondent no. 1/Union of India issued an Office Memorandum dated 23.04.2020 which is the cause for the petitioner’s grievance in the present writ petition. The said Office Memorandum reads as follows:

Freezing of Dearness Allowance to Central Government employees and Dearness Relief to Central Government pensioners at current rates till July 2021.

The petitioner is also aggrieved by the consequent order issued by respondent no. 2/GNCTD dated 24.04.2020, whereby the GNCTD has followed suit in terms of the Office Memorandum dated 23.04.2020 issued by respondent no. 1. The Office Memorandum dated 23.04.2020, in effect, conveys the decision of the Central Government that Dearness Allowance due to the Central Government Employees and Dearness Relief due to the Central Government Pensioners from 01.01.2020 shall not be paid. It also states that additional installment of the Dearness Allowance and Dearness Relief due from 01.07.2020 and 01.01.2021 shall also not be paid. Pertinently, Dearness Allowance and Dearness Relief at the current rates would continue to be paid. The said Office Memorandum further states that as and when the decision to release future installment of Dearness Allowance and Dearness Relief due from 01.07.2021 is taken by the Government, rates of the Dearness Allowance and Dearness Relief as effective from 01.01.2020, 01.07.2020 and 01.07.2021 will be restored prospectively, and will be subsumed in the cumulative revised rate effective from 01.07.2020. No arrears from the period 01.01.2020 till 30.06.2021 shall be paid.

The first submission of the petitioner is that Central Government Employees and Central Government Pensioners have a vested right to receive the enhanced Dearness Allowance/ Dearness Relief which has already been declared effective from 01.01.2020. The said increase was declared at 4%. The petitioner also claims that such employees and pensioners also have vested right to continue to receive enhancement in Dearness Allowance/ Dearness Relief on and from 01.07.2020 and 01.01.2021.

To examine the merit of this submission, we may refer to the All India Services (Dearness Allowance) Rules, 1972. These statutory rules have been framed by the Central Government after consultation with the Government of the States concerned in exercise of powers conferred by SubSection (1) of Section 3 of All India Services Act,1952. Rule 3 of the said Rule is relevant and which reads as follows:

“3. Regulation of dearness allowance:
Every member of the Service and every officer, whose initial pay is fixed in accordance with sub-rule (5) or sub-rule (6A) of rule 4 of the Indian Administrative Service (Pay) Rules, 1954 or sub-rule (5) of rule 4 of the Indian Police Service (Pay) Rules, 1954 or sub-rule (6) of rule 4 of the Indian Forest Service (Pay) Rules, 1968, shall be entitled to draw dearness allowance at such rates, and subject to such conditions, as may be specified by the Central Government, from time to time, in respect of the officers of Central Civil Services, Class I.”

(emphasis supplied)

From the above Rule, it would be seen that Central Government servants shall be entitled to draw Dearness Allowance “at such rates, and subject to such conditions, as may be specified by the Central Government, from time to time, in respect of officers of the Central Civil Service, ClassI”. We may notice that there is no other statutory rule brought to our notice relating to payment of Dearness Allowance or Dearness Relief and it appears that the said Rule governs the payment of Dearness Allowance and Dearness Relief to Government servants and Government Pensioners of the Union in respect of all the classes of employees.

The above rule shows that the entitlement to draw Dearness Allowance and Dearness Relief is determined by the Central Government. The same may be specified by the Central Government from time to time, subject to whatever conditions the Government may deem fit to impose.

From the above Rule, it is clear to us that, firstly, there is no statutory rule which obliges the Central Government to continue to enhance the Dearness Allowance or Dearness Relief at regular intervals i.e. to revise the same upwards from time to time. Consequently, there is no vested right in the Central Government Employees, or Central Government Pensioners to receive higher Dearness Allowance or Dearness Relief on regular intervals.
Pertinently, by the impugned Office Memorandum, the Central Government has frozen – and not withdrawn, the Dearness Allowance and Dearness Relief being paid to Central Government Employees and Central Government Pensioners at the time of issuance of the said Office Memorandum.

Also check: Appeal to unfreeze the DA by the petitioner at Delhi High Court

So far as the submission with regard to increase of 4% Dearness Allowance or Dearness Relief with effect from 01.01.2020 is concerned, the impugned Office Memorandum does not seek to take it away. All that it does is to postpone its payment till after 01.07.2021. That power, in our view, resides with the Central Government, by virtue of Rule 3 of the All India Services (Dearness Allowance) Rule, 1972, since the Central Government is empowered to take the decision to make payment of Dearness Allowance / Dearness Relief, subject to such conditions as the Central Government may specify from time to time.

The submission of learned counsel for the petitioner is that the Central Government in the impugned Office Memorandum has referred to COVID19 pandemic as the reason for its decision contained in the said Office
Memorandum. However, the impugned Office Memorandum has not been issued by the competent authority under the Disaster Management Act. We do not find merit in this submission. The provisions of the Disaster Management Act are not the only repository of the power of the Government to take action in the light of the pandemic. As noticed above,
the power to determine as to how much Dearness Allowance is to be paid, i.e. at what rates, and subject to what condition, resides with the Central Government by virtue of Rule 3 of All India Services (Dearness Allowance) Rules, 1972. Merely because the said impugned Office Memorandum makes reference to the COVID-19 pandemic, it does not follow that the only provision which the respondents could have invoked are those contained in the Disaster Management Act. The Central Government, by referring to COVID-19 pandemic in the impugned communication, has merely provided
its reasons and justification for its decision contained in the said Office Memorandum.

The next submission of the learned counsel for the petitioner is that the impugned Office Memorandum is also in violation of Article 360(4) (a)(i) of the Constitution of India. Article 360 of the Constitution of India contains the provision as to financial emergency, and it provides that if the President is satisfied that a situation has arisen whereby the financial stability of credit in India or any part of the territory thereof is threatened, he may, by a proclamation make declaration to that effect. The submission is that President of India has not declared financial emergency. The further submission is that it is only during financial emergency declared by the
President, that by virtue of Sub-Article 4(a)(i) – a provision could be made requiring reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the State. Since no financial emergency has been declared, the Office Memorandum in question could
not have been issued which is referable to Article 360(4)(a)(i) of the Constitution of India.

We find this submission to be completely misplaced. This is for the reason that Article 360(4)(a)(i) deals with a situation where the Government seeks to reduce the salary or allowance of all, or any class of persons, serving in connection with the affairs of the State. In the present case, the Office Memorandum does not seek to reduce either the salaries or allowances, which includes Dearness Allowance and Dearness Relief in respect of serving Government servants, or its pensioners. All that it does is to freeze the payment of Dearness Allowance and Dearness Relief at the
pre-existing level, and to put in abeyance any increase in Dearness Allowance and Dearness Relief till July, 2021. The said freeze does not tantamount to reduction of either salary, or allowances, of persons serving in connection with the affairs of the State.

The further submission submission of learned counsel for the petitioner is that the Office Memorandum could not have been issued by mere issuance of an office order, and the same should have been either framed as a statutory rule, or by issuing a gazette notification. We do not find any basis for this submission. We have noticed Rule 3 of the All India Services (Dearness Allowance) Rules, 1972. The said Rule does not state that the Central Government can form, or communicate, its decision with regard to entitlement to draw Dearness Allowance, subject to conditions, only by framing another rule, or by a gazette notification. There is no such requirement in law. Therefore, we do not find any merits in this submission as well.

Also check: Expected DA 2020

So far as the right to receive the increase of Dearness Allowance / Dearness Relief already declared by the Government with effect from 01.01.2020 is concerned, it falls well within the domain of the Central Government to decide as to when to disburse the said increase. There is no
obligation in law upon the Central Government to disburse the increase in Dearness Allowance/ Dearness Relief within a time bound manner. Rule 3 of All India Services (Dearness Allowance) Rules referred to above, itself empowers the Central Government to lay down the conditions subject to
which Dearness Allowance may be drawn by officers of Central Government.

For the aforesaid reasons we do not find any merit in this petition and the same is, accordingly, dismissed.

VIPIN SANGHI, J
RAJNISH BHATNAGAR, J

JUNE 01, 2020

The post Appeal to unfreeze the DA/DR is dismissed by Delhi High Court Order appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

IMPORTANT – DELHI HIGH COURT JUDGEMENT ON MACP IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 06.07.2017
Pronounced on: 20.12.2017
W.P.(C) 9357/2016 HARI RAM & ANR ….. Petitioners

Through : Ms. Jyoti Singh, Sr. Advocate with
Sh. Padma Kumar S., Sh. Amandeep Joshi and Sh. Himanshu Gautam, Advocates.

versus

REGISTRAR GENERAL, DELHI HIGH COURT….. Respondent
Through : Sh. Sanjoy Ghose, Sh. Rhishabh
Jetley, Ms. Pratishtha Vij and Sh. Urvi Mohan,
Advocates

CORAM:
HON’BLE MR. JUSTICE S. RAVINDRA BHAT
HON’BLE MR. JUSTICE S.P.GARG

S. RAVINDRA BHAT, J.
1. Complaining of unjustified denial of third financial upgradation under the Modified Assured Career Progression Scheme (hereafter called “MACPS”, for convenience), the writ petitioners approach this Court under Article 226 of the Constitution for appropriate directions.

2. Both the petitioners joined the establishment of the High Court initially in the cadre of Upper Division Clerk [UDC] (the first petitioner on 05.09.1998 and the second petitioner on 22.10.1984) from which they were promoted to the cadre of UDC (again on 05.09.1998 and 13.05.1999 respectively) and finally to the cadre of Reader (first petitioner on 09.10.2007 and second petitioner on 18.07.2008). The action impugned is the denial of their claim for a third financial upgradation. The petitioners challenge an order of the Screening Committee of the High Court which rejected their claim for third financial upgradation. In terms of the MACPS, an employee is entitled to assured career progression at 10 years’ intervals – thus, the first financial up-gradation is after 10 years of service; the second after 20 years of service and the third, on completion of 30 years of service.

3. The MACPS had its precursor in Assured Career Progression Scheme (ACP), formulated by the Central Government and brought into force with effect from 09.08.1999. The ACP guaranteed career progression after completion of 12 years of service. The precondition for the applicability of ACP and MACPS is that the concerned officer or employee should not have been promoted. As corollary, in the event of promotion, the concerned career progression benefit at the appropriate stage was to be denied. For instance, if an individual is promoted before the completion of 10 years, she or he cannot avail the ACP/MACPS benefit upon completion of 10 years and would instead have to wait for the completion of 20 years for the second upgradation, provided she/he is not promoted a second time in the career. Initially, upon the publication of the ACP, several queries were urged and doubts sought to be allowed, through an Office Memorandum containing clarifications to Frequently Asked Questions. The first of these – applicable to the ACP was published on 01.02.2000. The second was made applicable after the MACPS was brought into force, i.e. 01.09.2008 (through the OM dated 19.05.2009).

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