Old Pension Scheme to be applicable to those who were selected via examinations in or before 2003 : Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Suppl. 50 to 65 W.P.8208 2020 SI MIN M.R. GURJAR AND ORS Through: Mr. Nikhil Palli Advocate. UNION OF INDIA AND ORS Through: Mr. Rakesh Kumar CGSC. W.P.9252 2020 SHABAD PRAKAASH PUNIA AND ORS Through: Mr. Ankur Chhibber Advocate. UNION OF INDIA AND ORS. Through: Mr. Arun Bhardwaj CGSC for UOI. W.P.9311 2020 JASVIR SINGH No.04254893 & ORS. Through: Mr. Nikhil Palli Advocate. UNION OF INDIA & ORS. Through: None. W.P.5075 2020 SUDESH KUMAR SINGH AND ORS Through: Mr. Ankur Chhibber Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS. Through: Mr. Manish Mohan CGSC with Mr. Manisha Saroha and Mr. Sameer Sinha Advocates. W.P.5080 2020 SUJAN SINGH YADAV & ORS. UOI & ORS. Through: Ms. Ankita Patnaik Advocate. Through: Ms. Shiva Lakshmi CGSC with Mr. Siddharth Singh Advocate. W.P.5443 2020 PRASIDDH NARAIN AND ORS. Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr.Nirvikar Verma and Mr.Shomendu Ghosh Advocates for W.P.5444 2020 PRAVEEN KUMAR AND ORS Through: Ms. Ankita Patnaik Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS Through: Mr. Jaswinder Singh Advocate. W.P.5445 2020 KULESH KUMAR PATEL AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr. Tanveer Ahmed Ansari W.P.5447 2020 GAIKWAD VALMIK S AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND OTHERS Through: Mr. Pardeep Kumar Sharma W.P.11097 2019 AMAR KUMAR Through: Mr. Anil Kumar Sahu Advocate. UNION OF INDIA AND ORS. Through: Mr. Ajay Digpaul CGSC with Mr. Kamal R Digpaul Advocate. W.P.(C) 8208 2020 & connected 60 W.P.12083 2019 KARAMVIR SINGH & ORS. Through: Mr. Anil Kumar Sahu Advocate. UNION OF INDIA & ORS. Through: Mr. G Tushar Rao Advocate for UOI. Mr. Manu Chaturvedi GP with Mr. Arjun Rekhi Advocate. W.P.7745 2020 HARBIR SINGH AND ORS Through: Mr. Ankur Chhibber Advocate. UNION OF INDIA AND ORS Through: Mr. Sushil Kumar Pandey Sr. Panel Counsel with Mr. Rahul Mourya Advocate. W.P.10317 2020 CM APPL.32656 2020 DILIP KUMAR SINGH AND OTHERS UNION OF INDIA AND OTHERS Through: Mr. Vinod Diwakar CGSC with Mr. Himanshu Pathak Advocate. W.P.11061 2020 SH BUDHI SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. W.P.(C) 8208 2020 & connected UNION OF INDIA AND ORS Through: Mr. Farman Ali with Mr. Athar Raza Farooquei Advocates for R 1. W.P.11063 2020 BIJENDRA SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Ms. Sarika Singh Sr Panel Counsel with Mr. Abhishek Khanna W.P.11065 2020 BHUPENDRA SINGH AND ORS Through: Ms. Ankita Patnaik Advocate. UNION OF INDIA AND ORS Through: Mr. Avnish Singh and Ms. Manpreet Kaur Advocates. Date of Decision: 15th January 2021 HON BLE MR. JUSTICE MANMOHAN HON BLE MS. JUSTICE ASHA MENON JUDGMENT MANMOHAN Jin the Central Reserve Police Force W.P.(C) 8208 2020 & connected Border Security ForceSashastra Seema Baland Indo Tibetan Border PoliceRules 1972 was applicable. The New Contributory Pension Scheme was introduced by a notification dated 22nd December 2003 and implemented with effect from 1st January 2004. Learned counsel for the petitioners state that by a notification dated 22nd December 2003 it was stipulated that the new scheme would not be applicable to Armed Forces and that they would be governed by the Old Pension Scheme. They point out that the Ministry of Home Affairsby a communication dated 6th August 2004 has clarified that the CRPF and ITBP is an Armed Force of the Union of India under the administrative control of the MHA and that even the Section 3(i) of the CRPF Act and Section 4of the ITBP Act clearly provides that there shall continue to be an Armed Force maintained by the Central Government and called the ‘CRPF’ ‘BSF’ ‘SSB’ and ‘ITBP’. They submit that even Article 246 read with List I Entry II of the Seventh Schedule of the Constitution of India clearly envisages Armed Forces of Union of India and includes Naval Military and Air Force any other Armed Force of the Union. They further submit that the Apex Court in the case of Akhilesh Prasad v Union Territory of Mizoram 1981 SCC 150 has categorically held that the sub section itself declares in no uncertain terms that CRPF is an Armed Force of the Central Government W.P.(C) 8208 2020 & connected which is the same thing as saying that it is a part of the Armed Force of the Union and that being the position even as per the notification dated 22nd December 2003 the scheme of New Pension Scheme has been excluded from the Armed Forces of the Union. They also contend that batchmates of most of the petitioners have been given benefit of Old Pension Scheme under various judgements passed by this Court in Patil Gopal Babulal & Ors. vs. Union of India & Ors. W.P.(C) 11646 2018 Tanaka Ram & Ors. vs. Union of India & Ors. 2019 174) DRJ 146 Shyam Kumar Choudhary and Ors. vs. Union of India being W.P.(C) No.13517 and Niraj Kumar Singh & Ors. vs. Union of India & Ors. W.P.(C) No.13129 2019. Pursuant to the notice issued in the present petitions the Respondents despite having been given adequate time have not filed reply in most of the matters till date. On behalf of the Respondents further time has been sought for the purpose of filing Counter Affidavit. It is urged that because of the large number of petitioners their factual details could not be verified and a last opportunity be given to them. Learned counsel for the respondents submit that without their counter affidavits being on record they will be handicapped in approaching the Supreme Court because they will not be able to give the mandatory undertaking that the facts stated therein were part of records before this Court. However in the counter affidavit filed in W.P.(C) 12083 2019 it is stated that admittedly since the entire recruitment process was initiated in the year 2004 and the appointment letters were issued between the months of June July 2004 the New Pension Scheme would be applicable and the petitioners would therefore not be entitled to the Old Pension Scheme. It is W.P.(C) 8208 2020 & connected further urged on behalf of Respondents that in W.P.(C) No. 5075 2020 the chart mentioned in the petition shows that the Written Examinations were itself held on different dates of January 2004 and therefore the Petitioners cannot legally exercise lien over a post from the date of advertisement i.e. from a date even prior to the Written Examination. Learned counsel for respondents submit that none of the earlier judgements including Patil Gopal Babulal & Ors. vs. Union of India & Ors. W.P.(C) 11646 2018 and Tanaka Ram & Ors. vs. Union of India & Ors. 2019DRJ 146are applicable to the present case inasmuch as in those cases the recruitment process had started in the year 2003 and some of the incumbents had been issued appointment letters in the year 2003 itself before the New Pension Scheme was made effective from 01st January 2004. Therefore according to them on facts the present batch of matters is different and the petitioners in the present case are not entitled to any relief The issue in the present batch of matters is no longer res integra. Consequently the request for additional time to file counter affidavit is as prayed for. In the case of certain constables of the BSF this Court by its judgment dated 12th February 2019 in Tanaka Ram allowed the prayer of those Petitioners and permitted them to avail of the benefit of the Old Pension Scheme. It was held that the option to continue the Old Pension Scheme should be extended to all those who had been selected in the examination conducted in 2003 but were issued call letters only in January or February 2004. It is also pertinent to mention that the Respondents aggrieved by the said judgment filed an SLP bearing No. 25228 2019 before W.P.(C) 8208 2020 & connected the Apex Court. The said SLP has been dismissed by the Supreme Court vide order dated 02nd September 2019. 10. This Court in Shyam Kumar Choudhary and Ors. vs. Union of India being W.P.(C) No.1358 of 2017 allowed similar petitions vide judgment dated 09th April 2019 against which the Respondents had again filed SLP bearing no. 31539 2019 which was again dismissed on 27th September 2019. The Respondents thereafter chose to file a review petition bearing no.2188 2020 before the Apex Court in the said matter and the said Review petition was also dismissed on merits vide order dated 24th November 2020. 11. Following the judgment of Shyam Kumar Choudhary the learned predecessor Division Bench in Niraj Kumar Singh & Ors. vs. Union of India & Ors. W.P.(C) No.13129 2019 granted similar benefit to 17 petitioners who had applied to the post of Sub Inspector in Central Police Organisations pursuant to an advertisement dated 21st June 2003 even when the written examination and physical efficiency test were held in November 2003 medical examination was held in January February 2004 and final result was declared in May 2004. The said 17 petitioners were issued offer of appointment on 02nd June 2005 and on accepting the same the appointment letter was issued on 14th July 2005 for joining the Sashastra Seema Bal. 12. Another Coordinate Bench vide judgment dated 06th November 2020 in W.P.(C) No. 6548 of 2020 as well 6989 2020 was pleased to allow the said petitions for grant of Old Pension Scheme by following the judgment in Shyam Kumar Choudhary8208 2020 & connected i.e. prior to coming into force of the present contributory pension scheme on 22nd December 2003 this Court is of the view that petitioners cannot be deprived of the benefit of the Old Pension Scheme. 14. This is more so when the batchmates of the petitioners are getting this benefit under various judgements passed by this Court. 15. For the above reasons the petitions are allowed. Respondents are directed to extend the benefit of Old Pension Scheme to each of these Petitioners and pass consequential orders within a period of eight weeks 16. Accordingly the writ petitions along with pending applications stand 17. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e mail. from today. disposed of. MANMOHAN J ASHA MENON J JANUARY 15 2021 W.P.(C) 8208 2020 & connected 

Summary: Old Pension Scheme is applicable to those who were selected in the examinations conducted in 2003 but were issued letter in January or February, 2004. The High Court bench consisting of J. Manmohan and  J. Asha Menon allowed a petition making Personnel Below Officer Rank in the Central Reserve Force Border Security Force, Sashastra Seema Bal and Indo-Tibetan Border Police, who gave their examination 2003, eligible for the Old Pension Scheme in the matter of SI/MIN M.R. Gurjar &amp; Ors. v. Union Of India [W.P. (C) 8208/2020]. All the petitioners had applied pursuant to the notification for the post of Constable/GD in Central Armed Police Forced and Sub-Inspectors through Staff Selection Commission and qualified in the said examination of 2003. On the basis of the advertisement, the Old Pension Scheme under CCS (Pension) Rules, 1972 was applicable. The New Contributory Pension Scheme was introduced by a notification dated 22nd December, 2003 and implemented with effect from 1st January, 2004. The Counsel for the petitioner stated that according to the 2003 notification, it was stipulated that the new scheme would not be applicable and the Old Pension Scheme would govern the Armed Forces. It was also contended that batchmates of most of the petitioners were given benefit of the Old Pension Scheme under various judgements passed by this Court such as in Patil Gopal Babulal &amp; Ors. v. Union of India &amp; Ors. [W.P. (C) 11646/2018]. In the counter affidavit filed, the respondents stated that since admittedly the recruitment process was initiated in 2004, the New Pension Scheme was to be made applicable.