The petitioners are entitled to the benefit of the Old Pension Scheme based on previous judgments and the fact that they applied before the New Pension Scheme was implemented.

JUDGMENT

Manmohan, J. (Oral)--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 22nd 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 exer