Fixing Different Age of Superannuation Based On Ranks In CRPF, ITBP, BSF Unconstitutional: Delhi HC
The above classification has no rational nexus to the object sought to be achieved, which is keeping high the morale of the CAPFs, who are performing yeoman service and supplementing the efforts of the armed forces and the police throughout the country.
Delhi High Court on Thursday declared that the fixing of the age of superannuation of members of the ranks of Commandant and below in the ITBP, CRPF, BSF and SSB different from those in the ranks above that of the Commandant is violative of Articles 14 and 16 of the Constitution.
A Division bench comprising Justice S.Muraleedhar and Sanjeev Narula held that there appears to be no justification in discriminating amongst the CAPFs particularly when the retirement age of all members of the CISF and AR is 60 years and whereas the retirement age of those of the rank of Commandant and below in BSF, CRPF, SSB and ITBP is 57 years.
"This Court is of the view that the Petitioners have made out a case of discrimination, that is violative of Articles 14 and 16 of the Constitution, based on empirical data that the fixing of the age of superannuation of members of the ranks of Commandant and below in the ITBP, CRPF, BSF and SSB different from those in the ranks above that of the Commandant is not based on a rational criteria and that such differentiation has no nexus to the object sought to be achieved".
The Court also noted that the expert body that was required to examine the matter and make its recommendations, i.e. the CPC, by a majority of 2:1 favoured the enhancement of the retirement age. The concerned CAPFs themselves i.e. the BSF, CRPF, ITBP and SSB have also favoured the removal of the discrimination.
"The above classification has no rational nexus to the object sought to be achieved, which is keeping high the morale of the CAPFs, who are performing yeoman service and supplementing the efforts of the armed forces and the police throughout the country. The CAPFs have become an indispensable part of the security apparatus in the country. It is difficult to think that the Government whether at the Centre or at the States would be able to combat the serious challenges of safety and security and of its people without the participation and the sacrifices made by members of the CAPFs. Their morale definitely needs to be preserved. Discrimination in the matter of the age of retirement amongst members of two wings of the CAPFs will contribute to lowering the morale rather than bolstering it".
The Court held that Rule 43 (a) of the CRPF Rules which presently states that "Retirement of member of the Force shall take effect from the afternoon of the last day of the month in which such member attains the age of 57 years" is held to be discriminatory and violative of Article 14 of the Constitution vis-à-vis members of the CRPF of the rank of Commandant and below. The Court has quashed the Office Memorandum dated 1st April 2013 issued by the MHA rejecting the plea of the Petitioners.
Though the primary challenge is to Rule 43 (a) of the CRPF Rules, the Court found that the corresponding challenge is in effect to separate rules applicable to each of the three CAPFs in question i.e. the CRPF, the BSF, and the ITBP.
Hence the Court declared that that Rule 43 (a) of the CRPF Rules, 1955 as it presently stands is unconstitutional and liable to be struck down, correspondingly Rule 14 of the CRPF Group (A) General Duty Officers Recruitment Rules, 2001, Rule 8 (a) of the ITBP General Duty in Group „A‟ Posts Rules and Rule 12 of the BSF (General Duty Officers) Recruitment Rules, 2001 to that extent are also held to be unconstitutional and liable to be struck down.
The Court has also directed that the Respondents shall, unless this judgment is further challenged and subject to any interim order in such proceedings, implement it across the board to all members of the CAPFs without insisting on each of them approaching the Court for identical relief. For that matter, even though the members of the SSB have not yet approached this Court, if they are identically placed as these Petitioners, it should be implemented for them as well.
The Court has directed that within a period of four months from today the MHA in consultation with the CAPFs concerned will take all consequential steps by way of implementation of this judgment.
This will include arriving at a decision as regards the retirement age which will uniform for all members of the CAPFs irrespective of their rank thus bringing all of them, including the CISF and the AR, on par and fixing the date from which such changed retirement will take effect.
The Court has further clarified that the present judgment will not have the effect of reinstatement of the Petitioners who have already retired.
In view of the principle of „no work, no pay‟, it will also not have the effect of their being entitled to any arrears of pay for any further period beyond their retirement. However, for the purposes of calculation of retiral benefits, including pension and gratuity, the differential period (in the event of enhancement of the retirement age) will be added to period of service actually rendered by each of them. In other words, their notional date of retirement would be arrived at by adding the differential years to their actual date of retirement. On such calculation they would be entitled to the arrears of retirement benefits after adjusting the amount already paid.