Delhi High Court
Kulesh Kumar Patel And Ors vs Union Of India And Ors on 15 January, 2021
$~Suppl.-50 to 65
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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+ W.P. (C) 8208/2020
SI/MIN M.R. GURJAR AND ORS .....Petitioners
Through: Mr. Nikhil Palli, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Rakesh Kumar, CGSC.
WITH
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+ W.P. (C) 9252/2020
SHABAD PRAKAASH PUNIA AND ORS .....Petitioners
Through: Mr. Ankur Chhibber, Advocate.
Versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Arun Bhardwaj, CGSC for UOI.
WITH
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+ W.P. (C) 9311/2020
JASVIR SINGH, No.04254893 & ORS. .....Petitioners
Through: Mr. Nikhil Palli, Advocate.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: None.
WITH
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SUDESH KUMAR SINGH AND ORS .....Petitioners
Through: Mr. Ankur Chhibber, Advocate.
W.P.(C) 8208/2020 & connected Page 1 of 10
Versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Manish Mohan, CGSC with
Mr. Manisha Saroha and
Mr. Sameer Sinha, Advocates.
WITH
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+ W.P. (C) 5080/2020
SUJAN SINGH YADAV & ORS. .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UOI & ORS. .....Respondents
Through: Ms. Shiva Lakshmi, CGSC with
Mr. Siddharth Singh, Advocate.
WITH
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+ W.P. (C) 5443/2020
PRASIDDH NARAIN AND ORS. .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr.Nirvikar Verma and
Mr.Shomendu Ghosh, Advocates for
R/UOI.
WITH
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PRAVEEN KUMAR AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
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W.P.(C) 8208/2020 & connected Page 2 of 10
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Jaswinder Singh, Advocate.
WITH
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KULESH KUMAR PATEL AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Tanveer Ahmed Ansari,
Advocate.
WITH
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+ W.P. (C) 5447/2020
GAIKWAD VALMIK S AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UNION OF INDIA AND OTHERS .....Respondents
Through: Mr. Pardeep Kumar Sharma,
Advocate.
WITH
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+ W.P. (C) 11097/2019
AMAR KUMAR .....Petitioner
Through: Mr. Anil Kumar Sahu, Advocate.
Versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Ajay Digpaul , CGSC with
Mr. Kamal R Digpaul, Advocate.
WITH
W.P.(C) 8208/2020 & connected Page 3 of 10
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+ W.P. (C) 12083/2019
KARAMVIR SINGH & ORS. .....Petitioners
Through: Mr. Anil Kumar Sahu, Advocate.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. G Tushar Rao, Advocate for UOI.
Mr. Manu Chaturvedi, GP with
Mr. Arjun Rekhi, Advocate.
WITH
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+ W.P. (C) 7745/2020
HARBIR SINGH AND ORS .....Petitioners
Through: Mr. Ankur Chhibber, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Sushil Kumar Pandey, Sr. Panel
Counsel with
Mr. Rahul Mourya, Advocate.
WITH
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+ W.P. (C) 10317/2020, CM APPL.32656/2020
DILIP KUMAR SINGH AND OTHERS .....Petitioners
Through:
Versus
UNION OF INDIA AND OTHERS .....Respondents
Through: Mr. Vinod Diwakar, CGSC with
Mr. Himanshu Pathak, Advocate.
WITH
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SH BUDHI SINGH AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
W.P.(C) 8208/2020 & connected Page 4 of 10
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Farman Ali with Mr. Athar Raza
Farooquei, Advocates for R-1.
WITH
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BIJENDRA SINGH AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Ms. Sarika Singh Sr Panel Counsel
with Mr. Abhishek Khanna,
Advocate.
AND
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+ W.P. (C) 11065/2020
BHUPENDRA SINGH AND ORS .....Petitioners
Through: Ms. Ankita Patnaik, Advocate.
Versus
UNION OF INDIA AND ORS .....Respondents
Through: Mr. Avnish Singh and
Ms. Manpreet Kaur, Advocates.
% Date of Decision: 15th January, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. These Petitions have been filed by Petitioners who are Personnel
Below Officer Rank (PBOR) in the Central Reserve Police Force (CRPF),
Border Security Force (BSF), Sashastra Seema Bal (SSB) and Indo-Tibetan
Border Police (ITBP). All the petitioners applied pursuant to the notification
dated September 2003 and June 2003 for the post of Constable/GD in
Central Armed Police Forces 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 the 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.
2. 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 Affairs ('MHA')
by 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 4 (i) of 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'.
3. 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 (2)
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
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 22 nd
December, 2003, the scheme of New Pension Scheme has been excluded
from the Armed Forces of the Union.
4. 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 (DB); Shyam Kumar Choudhary and Ors. vs. Union of
India being W.P.(C) No.1358 of 2017 and Niraj Kumar Singh & Ors. vs.
Union of India & Ors.,W.P.(C) No.13129/2019.
5. 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.
6. 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
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.
7. 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., 2019 (174) DRJ 146 (DB) are 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
as prayed for.
8. The issue in the present batch of matters is no longer res integra.
Consequently, the request for additional time to file counter-affidavit is
declined.
9. In the case of certain constables of the BSF, this Court by its
judgment dated 12th February, 2019 in Tanaka Ram (supra) 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
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 27 th 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 (supra), 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 21 st 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 Choudhary (supra).
13. Having regard to the fact that in the present batch of cases also the
advertisement/notification was issued in September, 2003 and June, 2003
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
from today.
16. Accordingly, the writ petitions along with pending applications stand
disposed of.
17. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
JANUARY 15, 2021
KA
