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‘CAPFs are armed forces of Union’ — Delhi HC approves Old Pension Scheme for paramilitary

Court says scheme benefits applicable to all Central Armed Forces personnel, and Union govt must issue orders to ensure this within 8 weeks.

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New Delhi: The Central Armed Police Forces (CAPF) are a part of the armed forces, the Delhi High Court has ruled while ordering the implementation of the Old Pension Scheme (OPS) for the CAPF.

The New Pension Scheme (NPS) would not be applicable to the CAPF, it added.

A bench of Justices Suresh Kait and Neena Krishna Bansal referred to a 1981 decision of the Supreme Court as well as various government orders to hold that the paramilitary forces have been constituted as the armed forces of Union of India.

Since the 22 December 2003 notification that introduced NPS for government employees appointed after 1 January 2004 excludes the armed forces from its purview, CAPF personnel too would not be covered under the new pension scheme, the HC held Wednesday.

The pronouncement was made on a batch of 82 petitions filed between 2021 and 2022 by the personnel of various CAPFs. All of the petitioners had sought issuance of a writ of certiorari (to seek judicial review of a decision by a lower court or the government) to the government for quashing orders denying them the benefit of the OPS and also the office memorandum that said those appointed after 1 January 2004 would not be covered under OPS.

“It is made clear that the notification dated 22 December 2003 as well as office memorandum dated 17 February 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,” the court held in its judgment.

The 17 February 2020 order of the Department of Pension & Pensioners’ Welfare showed that the BSF, the CISF, the CRPF, the ITBP, the NSG, the Assam Rifles and the SSB are part of central forces under the Ministry of Home Affairs (MHA) and the 22 December 2003 notification is not applicable on personnel of these forces.

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Order to benefit all CAPF personnel         

The HC order means that the directions would not be restricted to just the 82 petitioners who approached the court, but would even include those who did not move any petition or will be recruited in the coming time. With the verdict, all the soldiers and officers working with the CAPF will come under the ambit of old pension.

The court commented on the role of armed forces in “safeguarding our country” and said, “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.”

In the court’s view, the December 2003 notification on NPS as well as the February 2020 office order clearly demonstrate that when the policy decision to implement NPS was taken, the armed forces were kept out of its domain. Therefore, the court added, these two notifications are required to be implemented in their true essence and quashed those orders that denied the benefit of OPS to CAPF personnel.

Though the HC has, in the past, dealt with the issue, the latest verdict has, for the first time, said that its decision shall be applicable in “rem,” meaning on all employees irrespective of whenever they join the forces.

Speaking to ThePrint, petitioners’ counsel Ankur Chibber explained that in its earlier judgments delivered between 2013 and 2019, the HC had given a similar opinion as it did in its latest decision. These judgments were upheld even by the Supreme Court when the government went there on appeal.

However, the government never extended the benefit of these decisions to all the employees and limited it to only those who filed the petitions and won, Chibber said.

While the petitioners initially sought relief for themselves, Chibber later expanded his arguments to seek benefit for all CAPF personnel.

When the petitions were originally filed, the plea taken was that since the petitioners’ recruitment and selection process began prior to the December 2003 notification, they would be covered under OPS. The petitioners said they made several representations before the competent authority of their respective force, but their prayer for grant of OPS was turned down.

The petitioners challenged their exclusion also on the ground that as members of CAPF, they were also members of the armed forces.

They quoted the December 2003 notification to point out that it had specifically excluded the armed forces from NPS. Hence, CAPF personnel should receive OPS in accordance with the rules by treating them as members of the armed forces.

Government’s stand

On its part, the government claimed that since the petitioners joined the forces in 2004 and 2005, they could no longer be recipients of the OPS. It asserted that the term ‘armed forces’ in the December 2003 notification implied the Army, Navy and Air Force, and not the entire armed forces of the Union.

It also said that the appointment letters issued to the petitioners categorically mentioned the “appointee shall be governed by the new pension scheme introduced by the Government of India.” Moreover, the judgments delivered by the HC to grant OPS to those who approached it were in “persona” and not in “rem.”

Rejecting the government argument, the court said when the advertisement was issued inviting applications, it was mentioned that the selected candidates shall be governed by the existing rules and acts. And, the existing rule at that time was the December 2003 notification on the NPS that specifically said all central government employees, except armed forces, shall be governed by the new scheme. Later, the office order of February 2020 also mentioned that the new pension scheme shall not be applicable to armed forces.

The judges said that when a set of employees were given relief by the court, all other identically placed persons need to be treated alike by extending the benefit to them.

The court also highlighted the MHA’s 2004 circular that declared that central forces under its administrative control are armed forces of the Union. This position, it added, cannot be disputed now.

(Edited by Smriti Sinha)

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