Respondents Petitioner

the present petition has been filed by the Thus, at the level of the Apex court, it has been
petitioner claiming higher pension based on finalized that persons who have retired and
their higher salary/ actual pension since thereby ceased to be a member of the pension
22.04.2015 w.e.f. 05.06.2014. lt is the case of fund could exercise joint option under para
the petitioner that, during his service tenure, 11(3)
he has contributed towards Provident Fund and Further, para 11 of the order dated: 04-10-2016
was also member of the Pension Fund under of the Honourable Supreme Court clinchingly
the Employees Pension Scheme clause-11 (3) of declares that retirees too can seek revised
the said Pension Scheme an option was pension as per their higher actual salary.
provided to the employer and employee for
contribution on and not entitled to get the
benefit of higher pension, much salary, after his
retirement and after receiving his regular 1995.
lt is the further case of the petitioner that, as
per clause-11 (3) of the said Pension Scheme an
option wasn provided to the employer and
employee for contribution on actual salary
exceeding the ceiling limit as prescribed there
the said option so provided under the scheme
was not availed by the petitioner during his
service period till Scheme 1995 and nor the
contribution on the higher salary above the
ceiling limit was deposited in the pension fund
admitted case of the petitioner that, after
retirement, the pension account of the
petitioner was settled and that he was drawing
regular monthly pension, thus admittedly
ceased to be member of the pension fund. lt is
the further case of the petitioner that,
Supreme. in view of the judgment passed by
Hon'ble Court in the case of R.C. Gupta and
other..vs RPFC and others, the petitioner is
entitled for revised higher pension on the
higher salary by making payment of the
difference of the contribution. Accordingly, the
petitioner is seeking directions against
respondent nos. 1 to 3 to approve the cases of
petitioner and grant him the benefit of higher
pension or higher/actual salary over and above
the ceiling limit described under the Act and
also seeking payment of difference of arrears of
pension
the answering respondents humbly submits Further, para 11 and para 13 of the judgement
and is pertinent to point out that, the petitioner of the Honourable High Court of Kerala in
is seeking the relief by placing reliance on the respect of WP (C) 3846/2019 and 106 other
judgment and order passed by Hon'ble connected cases, rules that retirees cannot be
Supreme Court in case of R.C. Gupta and others debarred from seeking revised pension as per
..v/s.. RPFC & others in Civil Appeal No.100'13- their actual higher salary as under:
100'14/2016. ln this ln this a) lt is submitted (Para-11) “The contention of the respondents
that similar Petition was filed before Hon'ble (EPFO) that those employees (petitioners in all
Kerala High Court vide WP No. 13120/2015 the cases) have ceased to be members of the
which came to be decided on the same lines of scheme and therefore they are not entitled to
R.C. Gupta judgment vide judgment and order claim the benefits are only to be ignored. The
dl. 1211012018 passed by Hon'ble High Court Honourable Supreme Court in R C Gupta
of Kerala. lt is submitted that, the judgment and (supra) as held that the beneficial scheme
order dated 12.10.2018 passed by Hon'ble ought not to be defeated by such contention.”
Kerala High Court was challenged before (Para-13) “In respect of those employees who
Hon'ble Supreme Court by Union of lndia in SLP had retired prior to 01-09-2014 and who were
(C) 16721-16722 I 2019 and by EPFO in Review not permitted to exercise their higher option by
Petition no.1430- 143112019 in SLP (C) no. the organisation, (EPFO) the benefits of the
8658-8659/2019. Additionally, the reliefs judgement of this court in W.P. (C) No.
adjudicated upon in the judgment dated 6643/2007 and connected cases which was
12.10.2018 are also pending consideration of rendered on 04-11-2011 as reiterated by the
Hon'ble Supreme Court in a batch of 42 \Nrit Honourable Supreme Court by RC Gupta
Petitions and two Contempt Petitions, the lead (supra) shall be extended.”
matter being W.P.(C.) 23312018 M. This judgement makes amply clear that retirees
Chokalingamv. Union of lndia and others. All shall not be denied the chance of giving option
these petitions mentioned above, have been under para 11(3). Further, it makes it amply
tagged together by Hon'ble Supreme Court clear persons who retired prior to 01-09-2014,
before a Three Judge Bench by two orders like the petitioner, are squarely covered by the
dated 12.07 .20'19 and 06.02.2020, to be heard judgement dated 04-10-2016, in respect of R C
and decided on merits. The aforesaid clubbed Gupta and others.
matters were listed for hearing on 29.01.2021
when the Hon'ble bench at the Apex Court was
pleased to pass an order allowing Review
Appeal (C) No. 1430 & 1431 of Y 2019 preferred
by Employees Provident Fund Organization and
setting aside its order dated 01.04.2019 with a
direction and further order of listing of all the
said matters on 25.02.2021. Annexed hereto
and marked Annexure Z-3 is a copy of the
aforesaid order dated 29.01.2021.
lt is further humbly submitted that order of
Hon'ble Kerala High court in Sasrkurnar. P
(supra) had deleterious effect owards the long-
term sustainability of the fund. On one hand, by
striking down GSR dated 22.08.2014 which
enhanced wage ceiling from Rs.6500 to
Rs.15000, the net effect was that wage ceiling
was brought down to prenotification period of
2014 viz. Rs. 65001 only and therefore any
employee earning more than Rs. 65001 would
not get mandatorily covered for social security
benefits under EPFO. At a time when minimum
wages are more than Rs. 6500/- per month, the
net effect of the order was that by virtue of its
operation, almost all new employees earning
more than Rs. 65001 would be excluded from
benefit of social security. As it is evident that
the provision of the Employees' Provident Fund
& Miscellaneous Provisions Act, 1952
(hereinafter referred to as the Act)and
Employees' Pension Scheme-1995 (hereinafter
referred to as the Pension Scheme) has
provisions for evaluation of the health of
Employees' Pension Fund through Actuarial
valuation and thus it was natural that based on
recommendations of such valuer ovT. I and
seeing the health of the Pension Fund, the
Central Government would bring out such
provisions as to ensure long term sustainability
of the Fund. However, as the GSR dated
22.08.2014 was struck down, the order
curtailed operation of legislative notification.
Thereafter, the Central Government i. e. Union
of lndia has filed SLP (C.) 16721- 16722 I 2019
before Hon'ble Supreme Court of lndia. ln the
meantime, a division bench of the very Hon'ble
High Court of Kerala has heard another set of
Writ Appeals and has now referred the said
Writ Appeals for hearing by a full bench.
Relevant extract of the Reference Order dated
21.12.2020 issued in the matter of W.A. No.
811/2020.
The copies of all the above referred orders
passed by various of High Courts and Hon'ble
the Supreme Court are filed on record along
with the present affidavit. lt is humbly
submitted that for the averments made in this
affidavit, the present petition may either be
dismissed with liberty to the petitioner to
approach this Hon'ble Court afresh once the
subject matter of present petition pertaining to
granting of higher pension which is sub-judice
before Hon'ble Supreme Court are decided
finally OR the present petition may be
adjourned till the said matter of higher pension
are heard and decided by Hon'ble Supreme
Court in the review petition mentioned supra.
Judgement dated: 21-12-2020, in respect of W.
A. Nos. 811937 and a host of others connected
The answering respondents further humbly cases of 2020 of the Hon’ble High Court of
submlts and is pertinent to point out that, Kerala:
about 37 Writ Appeals which were filed before The respondent quotes this judgement at
the Hon'ble Division Bench of Kerala High Court length ardently to establish that the case of the
including those referred herein above petitioner is not covered by R C Gupta case but
challenging the common judgment passed by para 21 of the judgement features the
the learned Single Judge were taken up for following:
further consideration on 2111212020. That, it is Of course, the case of employees who have
important to submit here that, in all the Writ actually contributed on higher salary but in
Petitions filed before the learned Single Bench whose case the remittance to the pension fund
of Hon'ble Kerala High Court, the petitioner was only with reference to the maximum
therein claimed that, they are entitled to higher pensionable salary fixed under the scheme
pension as per the provisions of EPS 95 to be would be covered by the Judgment of the
calculated without reference to any ceiling limit Supreme Court in R.C. Gupta (supra).
upon further contributions to be remitted to In respect of the petitioner contribution to EPF
their pension fund and for which they placed right from 16-11-1995, when EPS came into
reliance upon the Judgment passed by the existence till his superannuation on 05-06-
Hon'ble Division Bench of the same Court in 2014, has been as per his actual higher salary.
case of P.Sasikumar & others //vs// Union of But the payment into the pension fund had
lndia & others and the judgment passed Y'y been restricted to 8.33% of the statutory wage
Hon'ble Supreme Court in the case of R.C. ceiling. Thus, as ruled in the above judgement
Gupta & others That, after hearing ail the the case of the petitioner is squarely covered
parties at rength, the Hon,bre Division Bench of under R C Gupta case.
Kerala High court thoroughry examined the
rerevant provisions of EpF Act, EpF Scheme as
well as of the EpS ig95 as amended for time to
time. The Hon,ble Court also took into
consideration the various circular issued by the
EpFo more particularly the ctrcutar dt.
23t03t2017 and 31t05t2017, the judgment
passed by Hon'ble Division Bench of the same
Court in case of P. Sasikumar & others //vs//
Union of lndia & others and the judgment
passed by Hon'ble Supreme Court in the case of
R.C. Gupta & others //vs// RPFC, EPFO &
others. The Hon'ble Division Bench while
passing the order dt: 2111212020 as
categorically observed that, the judgment
passed by Hon'ble Supreme Court in R.C. Gupta
case clearly shows that, the Hon'ble Court was
concerned only with the effect of providing a
cut-off date for exercise of option under the
proviso to sub-clause (3) of clause n. 'l 1 of the
pension scheme and also noticed that the I
view taken by the Kerala High Court regarding
the validity of the cut-off date was practically
confirmed by the Supreme Court through the
dismissal of S.L.p. (C) No. lO74l2O14 _ Regionat
Provident Fund Commissioner ..vs.. A. Majeed
Kunju. The Hon'ble Division Bench further
observed that, in respect of employees who
had already contributed on their actual salary
without reference to the ceiling limit under the
provisions of the pension scheme, the amount
lying to the credit of the employee In their
Provident fund account could be easily
transferred to the pension fund. lt is evident
that in R.C. Gupta's case the Hon'ble Supreme
Court was not concerned either with those who
had not made remittance with reference to
actual salary or with persons who were serving
under the exempted establishments having
their own Provident fund scheme and where
again the remittance to the pension scheme
was only with reference to the ceiling limit and
not with reference to the actual salary. The
Hon'ble Supreme Court did not go into the
question relating to the validity of the
amendments brought in through the
Employees Pension (Amendment) Scheme,
2014
. lnstead, Petitioner has relied upon an order of The respondent claims that R C Gupta and
Supreme Court in R. C. Gupta & ors v Regional other petitioners had given joint option under
Provident Fund Commissioner, Employees' para 11(3) during their service tenure and
Provident Funds Organisation (2018) 14 SCC attain superannuation during the pendency of
809 ("R. C. Gupta"). As submitted, the the case. Keeping this in mind, the Supreme
petitioner's case is not covered by R. C. Gupfa Court ordered the diversion of their
which dealt with incumbent members of EPS contribution from EPF account to pension fund
and not former members of EPS. But account.
additionally, petitioner' implicit reliance on the To say the least, this is completely false. As a
judgement of Kerala High Court for granting matter of fact and record (information obtained
pension on higher wages to erstwhile members from EPFO Shimla as well as HPTDC under RTI),
of Employees Pension Scheme, currently none of the petitioners of R. C. Gupta case had
withdrawing monthly pension, through exercised options under Para 26(6) of EPF 1952
mechanism of retrospective exercise of option Scheme and Para 11(3) of EPS 1995 till
and retrospective contribution to the Pension 04.10.2016.
fund is also misplaced because Kerala High
Court has ignored the structure of EPS and its
difference from EPFS and held that all members
of EPFS are entitled to maximum benefits of
EPS. This judgement is under consideration of
Supreme Court in SLP (C.) 16721-1672212019.
Therefore, the constitutionality of GSR 609(E) IS
yet to be determined. Additionally, as stated
above, the Division Bench of Hon'ble Kerala
High Court has referred the matter to the full
bench of that Hon'ble High court through order
dated 21.12.2020.

The prayer made by the petitioner run contrary

to the ratio of these judgements and any
reliance placed on the order in R. C. Gupta IS
misplaced to the extent it runs counter to these
judgements.
The order in R. C. Gupta is inapplicable to the The respondent strives to make one more
present case, especially in view of the differentiation between R C Gupta case and the
judgement of the Iarger ThreeJudges Bench of petitioner’s case. The contention of the
Supreme Court in Mafatlal as well as the respondent is that the petitioner had accepted
judgement of TwoJudges Bench in Ofis Elevator the pension being granted to him with
and the recent Judgment passed in the case of reference to statutory wage ceiling w.e.f. 05-
Pawan Hans Limited & others ..vs.. Aviation 06-2014, when he retired and claims that this
Karmachari Sanghatana The petitioner is not contrasts him from R C Gupta and others.
covered by the order in R. C. Gupta. The Once, again this is completely false. R C Gupta
dispute in R. C. Gupfa was this. Some too accepted the pension being granted to
employees who were members of EPFS and him with reference to prevailing statutory wage
EPS, wished to exercise the option under the ceiling and also withdrawn all his dues from EPF
provrbo to paragraph 11(3) retrospectively on his retirement, about eight years before 04-
from the date their salaries increased above Rs. 10-2016 when the judgement of the Supreme
6,500/-, or the date of their membership of Court came in favour of R C Gupta and
EPS, whichever later. Regional Provident Fund others. Thus, 2.7 of the reply filed by Dr. V P Joy
Commissioner rejected this request by holding the then CPFC in connection with the contempt
that the option should have been exercised petition (civil no 1816-17/2017) filed by R C
from the date the salaries increased above Rs. Gupta and others reads as under:
6,500/- or the date of their membership of EPS, i) “Most of the employees of the petitioner
whichever was later. Hon'ble Supreme Court corporation (R C Gupta and others) have retired
set aside this order such intention is not long back and provident fund amount stands
inferable from the text of the provlso to withdrawn and pension on statutory limit stand
paragraph 11(3). Exercise of the option under released.”
paragraph 11(3), according to Supreme Court Further RPFC-I Shimla, wrote to the central
could not be foreclosed unless the provident fund commissioner seeking direction,
circumstances warranting such foreclosure are in connection with a representation made by R
clearly indicated ln the instant case, the C Gupta with regard to the differential amount
petitioner had exited EPS w.e.f. 05.06.2014 and with up to date interest which he was supposed
has been drawing monthly pension since to deposit for getting the benefit of revised
22.04.2015. Hence, within the four corners of pension as per actual salary, as directed by the
the order in R. C. Gupta, petitione/s option to order dated 04-10-2016 of the Supreme Court.
revisit his choice under the proviso to Para-2 of the communication reads as under:
paragraph 1 1(3) stands foreclosed on their ii) “Sh. RC Gupta, ex-employee of M./s
superannuation or exit from EPS. To conclude Himachal State Tourism Development
othenvise would entail existence of an option Corporation Shimla (H.P.), on attaining the age
ad infinitum for all past and incumbent of 58 year on 20.11.2008 was sanctioned
members of EPS to continue revisiting their monthly member pension on statutory was
choices repeatedly until their death, and after ceiling, though his employer was remitting his
the death by the dependents ln Addition to the PF share on actual wages. His PF dues both
above, it is submitted that R. C. Gupta did not share, were paid and pension sanctioned on
consider that retrospective contributions to EpS Jan, 2009 w.e.f. 21.11.2008.”
as impermissible under paragraph 3 read with This amply proves that R C Gupta case is
paragraph 32 of EpS. lf contributions are entirely relevant to the case of the petitioner.
accepted retrospectively, then the fund is
deprived of the money at the relevant time but
is forced to pay benefits. Further, retrospective
contributions defeat the purpose of annual
valuation. The importance of paragraph 32 has
been dealt with by a Three-Judges bench of
Supreme Court in Mafatlal. \Nhile Mafatlal
dealt with paragraph 34D of Employees' Family
Pension Scheme, which is the predecessor of
paragraph 32 of EPS. Mafatlal was followed by
Two-Judges bench in Otis upholding the
constitutionality of EPS itself. Similarly in the
case ol Pawan Hans Limited & others ..vs..
Aviation Karmachari Sanghatana, vide
judgment and order dtd 17.01.2020 the Hon'ble
Supreme Court considered the working of
Provident Fund Scheme and was pleased to
hold lhal, "Provident Fund is normally managed
on actuarial basis; the contributions received
from employer and the employee are invested
and the income by way of interest forms the
substantial fund through which any pay-out is
made. For all these years the Fund in question
was subsisfing on contributions made by the
other employees and, if at this stage, the
benefit in terms of the judgment of the High
Court is extended with retrospective effect, it
may create imbalance. Those who had v never
contributed at any stage would now be
members of the fund. The fund never had any
advantage of their contributions and yet the
fund would be required to bear the burden in
case any pay-out is to be made. Even if
concerned employees are directed to make
good contributions with respect to previous
years with equivalent matching contribution
from the employer, the fund would still be
deprived of the interest income for past several
years in respect of such contributions."
Hon'ble Kerala High Court incorrectly held that With regard to Austin Joseph case, the
the amendment results in arbitrary respondent claims that Austin Joseph and
classification amongst members of EPS. lts others had exercised option under para 11(3)
finding that all members of EPFS must be during their service tenure, could be deduced
permitted all benefits of EPS is incorrect from the judgement dated 04-03-2014 of the
(paragraph 27 and 38 of the judgment). EPFS High Court of Kerala. There is no basis for this
recognizes that mandatory members need claim of the respondent. In fact EPFO opposed
special protection. Hence, Kerala High Court's the fact that Austin Joseph & Ors did not
observation in paragraph 27 ol lhejudgment exercise any option in the High Court of Kerala.
that all members of provident funds constitute Even assuming that Austin Joseph and others
a homogenous class is incorrect. Further the had exercised option under para 11(3) during
main target group of EPS is mandatory their service tenure and the same has been
members. Therefore, benefits of EPS cannot denied in view of the cut-off date set by EPFO,
extend to voluntary members on the same as claimed by the respondent, it makes no
scale as mandatory members. However, High difference. Obviously, the so called option
Court ignored this in paragraph 38 of the under para 11(3) alleged to have been given by
judgement and held EPS violated Article 14. It Austin Joseph and others and denied by the
held that the omission of the proviso with EPFO, can do nothing to make Austin Joseph
effect from 01.09.2014 arbitrarily disallowed and others different from the petitioner.
voluntary members to have their pensionable
salary determined on actual wages above the
wage threshold. lt listed four situations: (i)
Employees who have exercised the option
under the proviso to paragraph 11(3) of EPS
and continue in service on 01.09.2014. (ii)
Employees who have not exercised the option
under the proviso to paragraph 11(3) of EPS
and continue in service as on 0'l .09.2014 (iii)
Employees who have retired before 01.09.2014
without exercising the option under the proviso
to paragraph 1 1(3) of EPS. (iv) Employees who
have retired prior to 01.09.2014 after exercising
the option under the proviso to paragraph
11(3) of EPS.
For the purposes of actuarial calculation, a Proposal sent by the committee of senior
member's longevity post superannuation from officers of EPFO under the chairmanship of
EPS at the age of 58 years, is assumed as 23 CPFC to pension and EDLI committee (PEIC):
years (total age of 82 years). Thus, the For the implementation of the order dated 04-
accumulated corpus must suffice for paying 10-2016, of the Honourable Supreme Court in R
pension to a person till 82 years, followed by C Gupta case, a committee of senior officers of
other benefits for his dependents. Mortality is EPFO under the chairmanship of CPFC held a
calculated as per lndian Assured Live Mortality meeting on 23-11-2016 and sent proposal to
(2006- 08) which is a Published Mortality Table, pension and EDLI committee (PEIC) for
effective e '1st April 20'13, within the meaning redressal in three categories of cases, one of
of regulation 4 of IRDA (Asset, Liabilities and which is as under:
Solvency Margin of lnsurers). • c. Any member either retired or
receiving pension under Employees’ Pension
Scheme 1995 and who have contributed on
wages exceeding the statutory wage ceiling
under EPF Scheme 1952 and/or EPS 1995.
Bearing the above in mind, a cap of Rs. '15,000 Decision taken by the pension and EDLI
p.m. is prescribed in paragraph 11(3) of EPS. committee (PEIC):
This ensures that the contributions to be made The committee anonymously decided to
by employers are sustainable. lt also ensures comply with the order dated 04-10-2016 of the
that sovereign support of 1.160/o also remains Honourable Supreme Court in respect of all
sustainable for Central Government. Most similar cases, in the form of pension members
importantly, it ensures that pension remains including superannuated cases.
secured for a member up till his lifetime Decision of Central Board of Trustees (CBT):
The proposal as made by PEIC was approved
and recommended by the board. This means
CBT has also approved allowing the benefit of
revised pension as per actual higher salary to
pension members including superannuated
ones
EPS is not an annuity-based scheme. lnstead, Allowing benefit of revised pension as per
the pension is calculated formulaically, as actual higher salary will be applicable only in
provided for under paragraph 12(2). Therefore, those cases where the member/pensioners
existence of a cap on pensionable salary is have contributed on higher wages than the
essential v for the sustainability of the fund. lf statutory wage ceiling of Rs. 6500/- with or
wages in excess of the cap 147 were considered without exercise of option, prior to the issue of
for the determination of the pension, then the the notification for increase of wage ceiling to
fund would suffer an unsustainable actuarial Rs. 15,000/- effectively from 01-09-2014
deficit
Here it is submitted that EPS is actuarially Getting the approval from PEIC and CBT, EPFO
modelled to sustain pensions for mandatory sent this detailed note to MOL&E, seeking
members. Therefore, the formula in paragraph approval for sending administrative instructions
12 of EPS which bases the pension on to the field office for implementing the order
pensionable salary is applied up to the cap on dated 04-10-2016 of the Honourable Supreme
pensionable salary. This allows the mandatory Court. The crux of the text of the note is
members to get pension up to 50% of this cap. proposing to grant the benefit of revised
lf this formula were allowed to be applied on pension as per actual higher salary to pension
actual wages of voluntary members, the members including superannuated ones, who
pension fund would suffer a tremendous had contributed on their actual higher salary,
actuarial deficit as indicated in the valuation after getting joint option from them (obviously
reports. The consequent strain on the fund prospective).
would be unbearable, and lead to collapse of
the fund and loss of social security for all the
members of EPS. The worst affected would be
the mandatory members (bidi workers,
construction labourers etc.) who are the main
target group for EPS and are most dependent
on it. Copies of Valuation Reports dated
27.12.2018 & 20.06.2019 conducted in
pursuance to the P Sasikumar Judgment are
annexed hereto and marked as annexure Z6
It was agreed that compliance may be made
immediately in respect of the Provident Fund &
Pension Members including superannuated
cases whose accounts are maintained by EPFO
as their details are already available with EPFO
and contribution on higher wages has been
received by EPFO. Their pension settlement
may be regulated in accordance with the order
of the Hon'ble Supreme Court by taking joint
option from the employee and the employer
(obviously prospective) and transfer/payment
to Pension Fund as per details of payable
contributions with interest as applicable.”
P Sasikumar (supra) concluded that all benefits Ministry of Labour & Employment, GOI
of EPS must extend to all members of EPFS at thoroughly examined the proposal and
maximum scale. According to it, once a conveyed approval of competent authority to
voluntary member and his employer had the CPFC, EPFO vide its letter no. R-
exercised the option under paragraph 26(6) of 15011/01/2017-SS.II dated 16.03.2017 to issue
EPFS, further v exercise of option under the administrative instructions to allow members of
proviso to paragraph 11(3) was unnecessary, the Employees’ Pension Scheme 1995 who had
and that pension should be calculated on actual contributed on higher wages exceeding the
wage of the member. Resultantly, in paragraph statutory wage ceiling of Rs. 6500/- in the
38 of the judgment, it recorded discrimination Provident Fund to divert 8.33% of the salary
between members of provident funds based exceeding Rs. 6500/- to the Pension Fund with
on those who could who exercise the option up-to-date interest as declared under EPF
under the provlso to paragraph 11(3) and those Scheme, 1952 from time to time to get the
who could not. Then it recorded discrimination benefit of pension on higher salary on receipt
between members of provident funds based on of joint option of the Employer and Employee
the existence of the proviso to paragraph 11(3) (obviously prospective).
before 01.09.2014 and its omission thereafter
because of GSR 609(E). lt holds these
discriminations violative of Article 14.
For the same reason, charging of additional
contribution of 116% of wages from the latter
category of employees was also held incorrect
 EPFO headquarters issued this circular
communication to all regional officers directing
that revised pension as per actual higher salary
shall be granted to pensioners who had
contributed to EPF on their actual higher salary
and not the statutory wage ceiling. through the
trail of approvals listed above, expressions like,
“including superannuated cases, any member
either retired or receiving pension, with or
without giving option, after taking joint option”
and so on make it crystal clear that retirees
who have not given joint option during their
service tenure, are also fully eligible for giving
option under para 11(3) and claiming revised
pension as per actual higher salary
THE CONTENTS OF THE AFORESAID
COMMITTING REPLY OF CPFC BEFORE THE
APEX COURT HAS MADE IT VERY CLEAR THAT
PENSION CAN BE REVISED IN THE CASE OF
RETIREES TOO, AFTER SUBMISSION OF JOINT
OPTION AND BY RETURNING THE DIFFERENTIAL
AMOUNT W.E.F. 16.11.1995 UPTODATE. CPFC
HAS NOWHERE STATED THAT THE OPTION
UNDER PARA 11(3) OF EPS’95 CAN BE
EXERCISED ONLY DURING THE SERVICE TENURE
OF THE PENSIONER CONCERNED.
the present petition as framed and filed is The respondent insists that the petitioner had
devoid of any substance and the petitioner is not given option under para 11(3) during
not entitled to receive the Higher Pension, service tenure and hence not eligible to seek
much less, as claimed. The petition therefore revised pension as per higher salary.
deserves to be dismissed at the outset. 1. It is nowhere stipulated in EPS 95 that joint
However, without prejudice to the option under para 11 (3) has to be given only
aforementioned preliminary submission, it is during the service tenure.
humbly submitted that, any orders passed by 2. There is no GSR / letters / documents /
this Hon'ble Court would result in multiplicity of circulars /affidavits / directives issued to any
litigation and legal complications. lt is establishment with reference to para 11 (3)
therefore, humbly submitted that, the present that option under para 11 (3) has to be given
petition may either be dismissed with liberty to only during the service tenure of a member of
the petitioner to approach this Hon'ble Court EPS’ 95 scheme.
afresh once the subject matter of present RTI Application No. EPFOG/R/E/20/00511 dated
petition pertaining to granting of higher 7.1.2020 by Parveen Kohli - EPFO Head Office,
pension which is subjudiced before Hon'ble Pension Division
Supreme Court are decided flnally OR the For Complete application, please click the
present petition may be adjourned Sine-die till following link: http://bit.ly/38wtAVo
the said matter of higher pension are heard and (Instead of any letter, CPIO replied at the RTI
decided by Hon'ble Supreme Court in the SLP Online Portal itself on 8.1.2020)
and Review Petition mentioned supra. Information Sought Reply by CPIO/EPFO
Copy of GSR/decision of CBT/approval of
MoL&E reg exercising of joint option under
Para 11(3) during his service tenure. No
such information is available in Pension
 Division, EPFO.
3. EPFO has not released any public notice
informing the public/members regarding option
under para 11(3) introduced Vide GSR 134
dated 28/02/96 and that such option could be
given by any member of EPS ‘95 only during the
service tenure of the member.
4. EPFO has neither taken any stand in any
court of law nor mentioned in any counter
affidavit filed in any court during the period
from 16/11/95 to 30/04/19 to the effect that
option under para 11 (3) of EPS’ 95 can be given
by any member of EPS only during the tenure
of service of the member. The insistence of the
respondent that option under para 11(3) could
be given only during the service tenure, is an
untenable after thought.

It further observed that, the Division Bench, in Contribution both by way of employee’s share
Sasikumar case, struck down all the and employer’s share, in respect of the
amendments brought in through the 2014 petitioner had been as per his higher actual
amendment. By virtue of these amendments salary right from 16.11.1995and no objection
the option to contribute on actual salary came has been raised by the employer implying
to be limited to those who had earlier opted to consent and hence the petitioner is eligible for
do the same in terms of the proviso to sub- higher pension as per his higher actual salary.
clause (3) of clause 11 and had actually paid
such contributions. Most importantly, after the
2014 amendment, the scheme was not to have
any proviso, enabling members to opt for
payment on actual salary instead of the
maximum pensionable salary in so far as the
pension fund is concerned. The effect of P
Sasikumar (supra) is that the pension scheme
retains the maximum pensionable salary at Rs.
6,500/- and the proviso to sub-clause (3) of
clause 11 which was deleted through the 2014
amendment is still in force. Further by virtue of
the said judgment striking down the circular
dated 0111212004 which fixed a cut-off date
for exercise of option in terms of proviso to
sub-clause (3) of clause 11 of the pension
scheme, the option provided for in the proviso
can now be exercised at any point of time.
It is humbly submitted that, with the above- In all such cases where the employee has
mentioned observation and finding the Hon'ble contributed over and above the statutory limit
Division Bench specifically concluded that the either from 16.3.1996 or from the month in
course of action as has been directed by the which his salary exceeded the limit after having
Judgment in Sasikumar case would go against exercised his option and the same having been
the basic principle on which the PF Scheme accepted by the office, the pensionable salary
works as has been explained by the Hon'ble will be based on such salary.
Supreme Court in Pawan Hans case. 2. If the option was not exercised at the time of
Considering the factual position that a Special salary crossing the statutory limit or on
Leave Petition and a Review Petition against the 16.3.1996, as the case may be and the
judgment in Sasikumar case is pending for contribution was deposited on salary exceeding
consideration before the Hon'ble Supreme the limit after receiving instructions from the
Court, the Hon'ble Division Bench has been office before the date of issue of circular dated
pleased to refer all the Appeals for 22.6.2004, the department has the vicarious
consideration to a Full Bench of the Hon'ble liability (restricted to the specified cases only)
Kerala High Court. of honouring such a commitment and hence
the pensionable salary shall be on actual salary
i.e. on the salary (exceeding the statutory limit)
on which the contribution was paid. However,
this is subject to i) a satisfactory explanation to
be obtained and taken on record from the
officer who made such a commitment, ii) the
employer having remitted the administrative
charges and other contributions on such higher
salary.
3. In the cases where no option was given or no
commitment was made by the concerned
office, but the contribution on higher pay was
deposited by the establishment/ employee, on
their own, such excess contribution will be
considered as erroneous contributions and the
pensionable salary will be restricted to the
statutory ceiling existing from time to time.
The petitioner’s case is fully covered in sr. no. 1
above as he has been contributing as per his
actual salary over & above the statutory limit
w.e.f. 16.11.1995 and the same has been
accepted by the EPFO concerned.
The petitioner’s case is also fully covered in sr.
no. 2 also as he has contributed over & above
the statutory limit w.e.f. 16.11.1995 (after
receiving instructions from EPFO in 2018-19
after the issue of circulars dt. 23.03.2017 &
08.06.2018) and the same had been accepted
by the EPFO concerned.
At Sr no. 2 of letter dt. 22.11.2006, it has been
mentioned, "after receiving instructions from
the office before the date of issue of circular
dated 22.06.2004” but the latest stand/
objection regarding submission of option under
para 11(3) during service tenure only, cannot
be applied on the cases covered under sr. no. 1
& 2 above as EPFO cannot escape from their
vicarious liability in accordance with the policy
decision circulated vide circular dt. 22.11.2006,
especially in the case of the petitioner, wherein
the differential amount had been deposited (as
sought by EPFO) & accepted by EPFO and joint
options under Para 11(3) in the performa
 provided by EPFO having been submitted by
the petitioner in 2018-19 after the issue of
circulars dt. 23.03.2017 & 08.06.2018 and
accepted by EPFO.
ln the backdrop of submissions hereinabove, it circular makes it very clear that there is no
is humbly stated that earlier litigation and need even for insistence on giving of joint
judicial pronouncements have relied mainly on option under para 11(3) for seeking higher
aspect of the Act being social welfare legislation pension as per higher actual salary. The
and thus any scheme framed there under respondent clearly refers to all these circulars
should have purposive interpretation to extend issued by EPFO-HQ in page number 174 of the
the scope of benefits. With this broad view, response and thereby concedes that they are
earlier pronouncements have extended the effectively functional now. The respondent also
benefit to many categories of existing and concedes the vicarious liability of EPFO
erstwhile members of Pension Scheme. ln all highlighted in these circular.
such cases, petitioners were those who were However, the respondent resorts to volte-face
drawing salaries more than the prevailing wage later in the response, in page number 209 and
ceiling from time to time. ln such proceedings, claims that the different circulars issued by
other category of members of the Pension EPFO, may not be enforceable, when up against
Fund, viz. those members drawing salaries less statutory provisions of the EPF and MP Act
than the wage ceiling, were never represented. 1952. This argument does not hold good. There
The Pension Fund is a contributory pooled is no statutory stipulation in EPS that joint
fund. Though the Pension Fund is a option under para 11(3) could be given only
contributory fund, the benefit is not strictly as during the service tenure. Besides the Hon’ble
per contribution received and thus benefit is High Court of Kerala and even the Hon’ble
given in accordance with provisions of Pension Supreme Court have upheld that there shall be
Scheme and formula given therein. This also no cut-off date in this regard and that joint
means that if a person has died within even few option under para 11(3) could be given even
days of joining the Pension Fund and meagre/ after retirement.
almost negligible contribution in his respect has Currently, the respondent is on the task of
been received, his dependent spouse/family establishing his untenable retraction from the
members and child/children get monthly conscious decision taken at the level of the
pension to prevent them from penury and organization, based on judicial order, dated 04-
destitution. The deleterious effect of allowing 10-2016, given by the Supreme Court, followed
pension on higher wages without sufficient by approval from statutory bodies such as PEIC,
qualifying crlteria results into a situation where CBT, MOL&E and the clear directive circular
in higher wage-earning members who no dated 23-03-2017, issued by EPFO, HQ,
longer remain the members of the Pension involved in granting the revised pension to the
Fund and never exercised option to contribute petitioner and stopping the same abruptly, as
on such higher wages to the Pension Fund, get legal. By any stretch of imagination, this does
disproportionate benefit, resulting in a scenario not amount to exercising statutory quasi-
where the low wage-earning members of judicial powers, referred to in the judgement,
Pension Fund subsidize high wage-earning of the honourable High Court of Gujarat, in the
employees and impacting the health of the case of Gandhidham Spinning and MFG
Pension Fund acutely Company Limited versus Regional Provident
Fund Commissioner, reported in 1987(1) GLR
337 quoted by the respondent in page 209.
By permitting retrospective contributions by There is no reference to the judgment dated
individuals who are no longer members of the 12-10-2018 of the High Court of Kerala in the
pension fund, the judgment of 12.10.2018 petition filed by the petitioner. The respondent
forces EPFO to pay pension on amounts that just to confuse the court, intentionally tries to
were never the subject matter of the annual impute that the petitioner has implicit reliance
actuarial analysis conducted over several years. on the judgment dated 12-10-2018 of the high
Evidently, such retrospective contribution goes court of Kerala. The respondent baselessly
contrary to paragraph 32 of the pension alleges that a petition similar to the one filed by
scheme and the law laid down by Hon'ble the petitioner in the instant case, at the Kerala
Supreme Court in the Mafatlal Group case high court came to be decided on the same
(supra) and Otis Elevator case (supra). As per lines of R.C. Gupta judgment, on 12-10-2018.
the actuary appointed under paragraph 32, the This is entirely false.
implementation of 12.10.2018 judgment would
cause a net actuarial deficit of Rs. 15,28,519.47
crores to the EPS, even as its present value is
only Rs. 3.77 lakhs crores, as submitted earlier
lt is further humbly submitted that as The petitioner being pre 01-09-2014 retiree,
mentioned hereinabove, Pension Fund is a does not come under the purview of the
pooled fund made up of contributions received amendment dated 22-08-2014 w.e.f. 01-09-
from scores of employers in respect of millions 2014. Thus, the judgment dated 12-10-2018 of
of employees. lt may also be noted that it is a Kerala high court and the subsequent
defined benefit scheme which has no direct co- development with regard to the same in the
relevance with the contributions received in the Supreme Court, has nothing to do with the
fund. The Pension Fund caters to millions of petitioner and his case. Only retirees from
pensioners, out of which at least 23 lakh exempted establishments and serving
pensioners receive a minimum pension of employees/pensioners who retired on or after
Rs.1000/- even when their contributions to the 01-09-2014, are connected with the cases
Pension Fund were meagre as compared to the pending in the Supreme Court, with regard to
benefits being availed by them. These are the the judgment dated 12-10-2018 of the Kerala
very members who deserve the benefits of high court.
pension fund more than persons who, although
had a choice to contribute on higher wages,
while they were still employees and members
of the Pension Fund, chose not to do so.
It is also submitted that thee some of the The respondent keeps repeating and
petitioners of those cases had retired while rerepeating whatever he considers as the
their matters were still pending before lacuna in the judgment dated 12-10-2018,
respective regar forum. rn the instant case, the which has no relevance to the case of the
petitioner having attained the age of 5g years, petitioner, in his unduly lengthy response, as if
has ceased to be member of the pension his venture is to appeal against the judgment
Scheme in consonance with para 2(ix) thereof. dated 12-10-2018 of the high court of Kerala.
The petitioner herein, having taken an The repeated reference of the respondent to
informed decision of not exercising joint option the judgment of Kerala high court and
while still being a member of the pension Fund, subsequent development is only to misguide
made a deliberate choice and accordingly the Hon’ble high court of Gujarat into believing
received his pensionary benefits to which he that the cases pending in the Supreme Court
was legally entitled to. are relevant to the case of the petitioner and
thereby stall adjudication. The respondent
devotes a major part of the lengthy response
filed, to keep repeating the different
implications, undesirable as per the
respondent, of the judgment dated 12-10-2018
of the Kerala high court only to misguide the
high court of Gujarat into believing in, stopping
of adjudication in the case of the petitioner
immediately.
It is further humbly submitted that the The respondent claims that in the absence of
petitioner never raised any query or made any any joint option, employer’s share of the
representation about granting pension on contribution with reference to the salary
higher wage as he was well aware about exceeding the statutory wage limit, gets
appropriateness of sanctioned pension vide automatically credited into the provident fund
PPO No. VD/BRD/52893. lt was only upon account. However there is no specific
judgment in the case of RC Gupta Case and stipulation to this effect in EPS 95.
subsequent circular by EPFO Head Office dated By this claim of his, the respondent tries to
17.03.2017 that the petitioner started making absolve himself of the vicarious responsibility/
representations. The matter of pension on liability of ascertaining from the employer and
higher wage involved sufficient complexity, the employee regarding the manner in which
including actuarial valuation of the pension such excess contribution has to be accounted.
fund over long period of time, and it further Obviously, the respondent cannot accept any
impacted various categories of past and payment which comes without any cognizable
present members of the Pension Scheme. reason. The respondent not only accepted the
Therefore, it took some time to finalize excess contribution but also kept updating the
qualifying eligibility criteria for different EPF account of the petitioner. Further the
categories of existing and past members of the respondent had also accepted the
Pension Fund. lt is during this period that the administrative charges etc. paid by the
petitioner sent various representations for employer with reference to the excess
according pension at higher wages in response contribution given by the employer. It is
to which the Deponent accorded pension at needless to mention that it is not proper
higher wage. However, as soon the clarity administrative procedure to accept any
emerged, eligibility criteria for different contribution/payment without ascertaining the
categories were clearly delineated, the case of cognizable purpose for which the same has
petitioner was reviewed and thus monthly been received.
pension was restored to the level of original
pension that was correctly fixed through PPO
No. VD/BRD/52893
It is further humbly submitted that allowing It is amusing to observe that the respondent
monthly pension at higher wage to the insists, allowing monthly pension at higher
Petitioner will not only be disproportionately wages to the petitioner, will not only be
advantageous to the petitioner and fatally disproportionately advantageous to the
disadvantageous to a very larger section of petitioners and fatally disadvantageous to a
members of the Pension Fund, but it would be very large section of members of the pension
against Right to Equality and principles of fund, but it would be against the right to
equity and fairness vis-d-vis other pensioners equality and principles of equity and fairness vis
and similarly situated erstwhile members of the a vis other pensioners and similarly situated
Pension Fund. The disproportionate advantage erstwhile members of the pension fund. To say
to the petitioner can be estimated from the fact the least, it is entirely preposterous and far
that the petitioner was required to remit Rs.1 from the truth. It must be remembered that the
1,60,609/- amount towards additional higher pension granted to the petitioner is
employer share contribution towards the exactly as per the formula specified by the
pension fund and Rs.1,37,858/- amount of EPFO. If disproportionate advantage accrues to
1.16% of the Central Government share. the petitioner, it must be concluded that there
Therefore, the petitioner was required to pay a is something inherently faulty in the formula.
total of Rs.12,98,4671- and in lieu of this, he
was to get an arrear of Rs.8,03,1931 and
Rs.14,6391 as monthly pension against original
pension of Rs. 22161- per month. This reflect
that by virtue of an additional remittance of Rs.
4,95,274t-, the petitioner was to get enhanced
pension of Rs. 124231- per month. The above
reflect that the petitioner was to receive Rs.
1,49,076/- annually against additional
remittance of Rs. 4,95,2741-.This works out to
be providing interest of nearly 30% to
petitioner on additional remittance against
nearly 8.0-8.65% prevailing interest rate for
secured funds. The example of petitioner
reflects acute deficiency in sources of fund and
liability towards the pension at the higher
wage. Clearly, such disproportionate return is
not feasible for any social security fund and
shall severely impact sustainability of the
Pension Fund if extrapolated to all members of
Pension Scheme. Evidently, for a contributory
pooled fund, deficit would be created and this
deficit has to borne by employees drawing
salaries less than wage ceiling and who are at
disadvantageous position vis-a-vis petitioner
who has drawn wages higher than wage ceiling
prescribed under the Act. vii. Actuarial
valuation has been cond
. Actuarial valuation has been conducted by Assuming that in respect of the petitioner a
valuer for understanding sustainability of the total sum of Rs. 200000/- had been paid into
fund if pension at the higher wage is accorded. the pension fund with reference to the
Concluding statement submitted from report statutory wage ceiling in vogue from time to
submitted by the Actuary is reproduced as o Y time, from 16-11-95 till 05-06-2014, when the
Gov1 o Z under: v 189 "The actuarial shortfall as petitioner retired, the total sum of Rs. 14,
mentioned impties that the EPFO will not be 98,467/- (Rs.12,98,467 + Rs.2,00,000 =
able to honor its commitment of paying benefit Rs.14,98,467/- ) had been paid into the
to all its members as and when benefits pension fund for the petitioner to get higher
become due and will run out of corpus before pension of Rs. 14639 /- per month.
att the benefits are paid off' The above Deducting the pre revised pension of Rs. 2216
discussion clearly establishes that there is no per month got by the petitioner the net gain for
illegality, arbitrariness or perversity in the the petitioner due to revised higher pension is
impugned order dated 10.12.2019. On the Rs 12,423/- per month which works out to Rs.
contrary, the same is completely legal, fair, 1,49,076/- annually . In terms of percentage,
permissible and based on provisions of the Act the advantage gained by the petitioner is
and the Pension Scheme. The said order is also Rs.1,49,076 divided by Rs. 14,98,467 *100=9.94
in consonance with the laid down law in R C %. It is only 9.94% and not the astronomical
Gutpa case, as also the principles of fairness figure of 30% quoted by the respondent.
and equity, not only in respect of the In this connection, the following two points
petitioner, but all the members of the Pension must also be taken into consideration:
Fund, whose very interest would get 1. Pension fund will also gain interest on
jeopardized and threatened if the petitioner the total sum of Rs. 14,98,467/- at appropriate
were allowed pension on higher wages, having market rate eternally.
regard to the facts ofthe case 2. While collecting from the petitioner the
differential amount from 16-11-95 till 05-06 -
2014, when the petitioner retired, the
respondent collected the same with
 progressive interest at the rates in vogue from
time to time. But the respondent had not given
progressive interest to the petitioner for the
pension arrears, which was the petitioner’s
due.
Thus the claim of the respondent that the
petitioner will get disproportionate advantage
much to the fatal disadvantage of a large
section of pension fund members, is absolutely
hollow and malicious, intended only to
misguide the Hon’ble high court of Gujarat.
With respect to the averments of para 4.8, it is The respondent claims that the petitioner had
humbly submitted that the petitioner has made made his choice when he accepted the original
a misstatement and has tried to misguide this pre revised pension granted to him with effect
Hon'ble Court by making false and incorrect from 05-06-2014, when he retired.
statements. lt is a fact that the complainant This is absolutely false. The respondent was
attained the age 58 years on 05.06.20'14 and curtailed from giving joint option under Para
thus his membership of the Employees' Pension 11(3), when he retired. In fact this curtailment
Scheme 1995 got ceased, however, he is still was in vogue for more than a decade (since 01-
employed and also continues to be a member 12-2004 ) before the retirement of the
of the EPF Scheme-1952. lt is humbly submitted petitioner. Only after the judgment 4-10-2016,
that EPF 1952 and EPS 1995 both are v 190 more than two years after the petitioner’s
distinct and separate schemes of social security retirement, EPFO started accepting option
under EpF Act and the membership in both under Para 11(3).
schemes is governed through provisions of Thus, the petitioner had no other option, but to
respective schemes. rt is humbry submitted accept it, when the original pre revised pension
that the petitioner has not withdrawn his was granted to him. Thus, this was not by
provident Fund accumulations as per provisions choice but by fate accompli.
of Employees Provident Fund Scheme 1952
ln the instant case, as the petitioner had never The respondent further states that the
exercised joint option for contributing on petitioner did not raise any query or make any
higher wages in the Pension Fund under representation after getting the original pre
proviso to Para 11(3) of EPS 1995 (since revised pension. This is also baseless for as
deleted), his contribution towards the pension already pointed out, the petitioner had to
fund was Rates of contribution By Contribution accept the original pre revised pension by fate
Account EPF EPS EDLI tsmployee t2%/10% accompli and had no scope for making any
Difference of Employer share pension query or representation.
contribution 8.3 3%+ 0.50% C&tral Govemment It was only after the EPFO circular dated 23-03-
1.160/o upto wage ceiling A vr.ot v U Employer 2017 which followed the whole hog of approval
193 limited upto prevailing wage ceiling at from competent authority to allow revised
different points of time. This automatically pension as per actual salary to all pensioners
translated into diversion of contribution in eligible in the light of the order dated 4-10-
excess of the wage ceiling from employer's 2016 of the supreme court that the petitioner
share of contribution, which became integral got the scope to stake his claim for revised
part of the provident fund in absence of any pension, which the petitioner did exactly.
joint option, and accordingly, had been
accounted towards the provident fund of the
petitioner. However, when the petitioner
applied for revision of his pension relying upon
the ratio of RC Gupta Case, to act upon such
application, it became necessary to divert the
amount in excess of wage ceiling from
Provident Fund to the Pension Fund which was
previously credited and accounted towards his
Provident Fund Account in absence of any joint
option. Now the financial year in which the
petitioner attained the age 58, i.e. 2014-2015,
the opening balance standing to the credit in
his provident fund account as Employer's
Contribution stood at Rs.15,59,0131. This
amount consisted not only of the Employer's
contribution to the provident fund account of
the complainant, i.e. 3.670/o, but also the
amount of contribution out of 8.33 % in excess
of the statutory wage ceiling which needed to
be diverted to Pension Fund if ratio of RC Gupta
Case were to be considered to be applied in
case of the petitioner and pension revised at
higher wage as per hls request. lt is this excess
contribution than wage ceiling out of
employer's share contributed and accounted
towards Provident Fund which stood at
Rs.8,94,564/- as on June 2014. Since the
amount standing to the credit of his account as
on June-2014, i.e. Rs.8,94,564/- was not
withdrawn by the petitioner (it is still not
withdrawn), it had earned interest as applicable
from time to time. When the petitioner was
advised to give an undertaking to allow the
deponent to make necessary adjustment and
divert employer's contribution made towards
the provident fund in excess to wage ceiling
from his provident fund account to the pension
fund, which was on 04.09.2018, Annual lnterest
Processing, i.e. preparation of annual accounts
had already been carried out up to the year
2016-17 in respect of M/s. Prince Ashokaraje
Gaekwad School (the employer of the
petitioner where he continues to be employed).
The Opening Balance of the year 2017-2018
showed Rs.22,42,133/- to the credit of
petitioner's Provident Fund Account as
Employer's contribution. Naturally, the amount
which stood at Rs.8,94,5641- as on 05.06.2014,
had also earned interest and swelled to
Rs.11,60,609/-. lt was thus obvious that when
the amount had earned interest, the interest
earned on such amount also needed to be
diverted Following f able-2 provides abundant
clarity in the matter of diversion of provident
fund towards the pension fund
With respect to the contentions of para 4.10, it The respondent observes that the petitioner
is respectfully submitted that the contentions cannot revisit his choice to change his choice.
raised through this para are misleading and The observation is baseless, for the petitioner
vague. The petitioner states that he was had not made any choice to revisit the same
awarded pension on Higher Wages from June- and change the same. The petitioner had to
2014 to December-2019 although he had accept the original pre revised pension granted
attained the age of superannuation 3 years to him not by choice but by fate accompli.
back.lt is humbly submitted that by virtue of The respondent states that the petitioner did
Para 2(ix) of the EPS-I995, the petitioner ceased not exercise option from 16-03-1996 when Para
to be member of the EPS-1995 on attalnment 11(3) came into existence and 1-12-2004, when
of age of superannuation, i.e. 58 which, in the the cutoff date was introduced, this does not
case of the petitioner, is 05.06.2014. The arrear hold good because of the following:
paid to the petitioner was also from 05.06.2014 a. EPF contribution in respect of the
to 31.12.2019 after adjusting the pension he petitioner had been as per his actual higher
had already drawn earlier. Thus, there is no salary from 16-11-1995, when EPS came into
anomaly or discrepancy and hence, the existence, whereas Para 11(3) came into
allegations qua the contrary are denied being existence w.e.f. 16-03-96. Thus, the petitioner
false. is entitled for giving option under Para 11(3)
With respect to the contentions of para 4.11 , it and seeking of revised higher pension, as
is respectfully submitted that the contentions enshrined in the EPFO circular dated 22-04-
raised through this para are misleading and also 2004 referred to earlier above.
mis-statements have been made contrary to Obviously, the obligation of the employee is
the facts. lt is respectfully submitted that as restricted only to making P.F. contribution as
soon as superannuation, i.e. 58 which, in the per EPF 1952. As per EPS 95, the obligation of
case of the petitioner, is V 191 the clarity making monthly contribution to the pension
emerged, eligibility criteria for different fund, in respect of the employees, lies with the
categories were clearly delineated, the case of employer. Equal is the obligation of EPFO to
the petitioner was re-examined and it was ensure that the employer doesn’t make any
noticed that the petitioner was not eligible to default in the payment of this contribution to
receive pension on higher wages in pursuance employees’ pension fund. Thus, the employee
to the ratio of R C Gupta case as the facts and having made contribution as per actual salary
circumstances of that case and that of the higher than the ceiling limit, is automatically
present petitioner are completely different. entitled to higher pension in terms of proviso to
Thus, earlier pension being drawn by the Para 11(3) of EPS 95. Precisely Para 3(1) makes
petitioner which is Rs.22161- p.m. had to be it obligatory on the part of the employer to
restored. Since two PPOs cannot be operated contribute an amount equivalent to 8.33% of
concurrently, the Deponent was required to the employee’s salary as his share into the
cancel PPO No. 67126 (through which pension pension fund.
on higher salary was processed), recall the copy EPS 95 got introduced with effect from 16-11-
of this PPO from the Bank and from the 95. But proviso to Para 11(3) was inserted
pensioner and re-issue the revised PPO. subsequently by amendment with effect from
Therefore, the Deponent wrote to pension 16-03-1996 and has prospective effect only.
disbursing bank branch under intimation to the Significantly, no corresponding amendment
petitioner through letter dated 08.'1 1.2019 was effected in Para 3(1) of EPF 1952 for
seeking copy of original PPO No. 67126and restricting the pension contribution to be made
reminder was also issued on 03.12.2019. by the employer to any ceiling limit. It
Therefore, submission of the petitioner that he continues to be 8.33% of employee’s salary
was not aware of revocation of PPO 67126 fll without any ceiling limit to which pension
04.12.2019 is completely false and dehors the contribution is to be restricted. Therefore, the
material facts. ln fact, the Deponent reflected employer was under obligation to remit into
utmost urgency and one messenger from the the pension fund 8.33% of employee’s salary
Deponent office visited the pension disbursing with reference to which, the employee makes
bank branch personally to collect copy of PF contribution.
original PPO on 10.12.201 9 as no reply came In fact Para 11(3) of EPS 95 has no relevance to
from the pension disbursing branch fll pension contribution which is governed solely
09.12.2019. Thereafter, revised PPO No. 70225 by Para 3(1) of EPF 1952.
was issued on 12.12.2019 and petitioner's As on 16-11-95, when EPS 95 came into force,
pension was restored after completion of the petitioner had been making PF
administrative requirement of receipt of earlier contributions as per his actual salary higher
PPO 67126. lt is evident from the foregoing than ceiling limit. As stipulated in Para 3(1) of
submission that the deponent acted in most EPS 95, the employer had no other option but
prompt manner for ensuring smooth to remit 8.33% of the petitioner’s actual salary
remittance of monthly pension and also to keep higher than the ceiling limit as the employer’s
the pensioner intimated about the share into the pension fund. There was no
development. lt is humbly submitted that the requirement of obtaining or furnishing option
petitioner was granted this restored pension for the employer/EPFO to remit and accept
under new PPO NO. VD/BRD/00070225. remittance of 8.33% of the petitioner’s higher
Therefore, the averment of the petitioner that actual salary.
great loss and prejudice was caused to him is a Further, section 16 A of EPS guarantees pension
mere allegation having no basis. Pension in to the members irrespective of the fact
respect of the petitioner is being paid whether the employer makes contribution into
continuously. The amounts transferred from his pension fund or not. Of course, it has been
Provident Fund Account to his Pension Fund made clear that the official of EPFO, has to
account have also been readjusted and the ensure that the employer doesn’t make any
petitioner is also earning interest on such default with regard to contribution of his share
readjusted amount in his Provident Fund in into pension fund.
accordance with para 60 of the EPF Scheme-
1952. The payment received by the Joint option under para 11(3) of EPS 95.
respondents towards central government A. EPFO had publicized the EPS’95 scheme
contribution has also been returned to the widely through newspapers but no publicity
petitioner with interest thereon as applicable was done regarding the amendment of Para
from time to time under the EPF Scheme 1952 11(3) dated 28-02-1996.
101. As regards the averments of para 4.12& B. EPS 95 scheme was validated by
4.13, it is ref Supreme Court on 11-11- 2003.
C. EPFO issued circular to field offices on
05-02-2004 regarding decision dated 11-11-
2003
D. EPFO fixed a cut-off date as 01-12-2004
for accepting options.
E. So, the window for submitting options
was only from 05-02-2004 to 30-11-2004.
Thus, the claim of the respondent as mentioned
above is baseless and futile.
As regards the averments of para 4.9, it is The respondent claims, when he was not clear
submitted that the undertaking to divert the about the eligibility criteria for the grant of
amount received in Provident Fund as revised higher pension as per actual higher
employer's contribution out of the 8.33% salary, the petitioner kept sending various
employer's share (being in excess of wage representations seeking pension on higher
ceiling prevailing at relevant time) to the wages – and hence granted pension on higher
Pension Fund was received by the Respondent wages to the petitioner. Nothing can be more
Office on 12.09.2018 and necessary adjustment preposterous then to claim that the repeated
was carried out on date f 10.2018, i.e. an representation of the petitioner egged the
amount of Rs.11,60,609/- was diverted from e respondent to grant pension on higher wages
Provident Fund - employer's contribution to the to the petitioner, though the respondent was
Pension Fund of the petitloner. Thus, no delay not clear about the eligibility of the petitioner
was caused in such adjustment Subsequently, for the same.
his pension also came to be revised based on The claim of the respondent in this regard is
higher salary as requested and arrear from entirely false. Following the judgment dated 04-
05.06.2014 to December-20l8 was also released 10-2016 of the Supreme Court and obtaining
in January-2019. Hence, the contention that the the necessary approval from the echelons of
respondent did not revise the pension is statutory authorities including the MOL&E, the
completely false and vehemently denied. head office of EPFO issued crystal clear circular
communication dated 23-03-2017 directing all
the field officers like the respondent to grant
pension on higher wages to all eligible retirees
like the petitioner. Being unhappy about the
lukewarm follow up of the field officers like the
respondent, the head office once again sent a
directive circular dated 08-06-2018 sternly
instructing to comply with the instruction of
revising the pension as per actual higher salary
in all eligible cases like the petitioner, as
enshrined in the circular dated 23-03- 2017, lest
they should face the charge of disobedience.
The respondent asked the petitioner to send a
whole host of documents to get pension on
higher actual wages, vide letter dated 24-01-
2018, more than 10 months after getting the
directive circular dated 23-03-2017 from the
head office. The petitioner on the very next
day, send all the documents needed by the
respondent, vide the petitioner’s letter dated
25-01-2018. The respondent spent almost 8
months scrutinizing the document , ascertained
the eligibility of the petitioner to get pension on
higher wages and wrote to the petitioner
affirming his eligibility and also informing him
that he has to give consent for the diversion of
Rs. 11,60,609/- from his provident fund account
to pension fund account towards the
differential amount with progressive interest
thereon and also deposit separately by demand
draft drawn in favour of RPSC, Vadodara for an
amount of Rs. 1,37,858/- towards 1.16% of
government share vide the respondent’s letter
dated 04-09-2018, but signed on 06-09-2018.
This being the case ,the respondents claim that
he was not clear about the eligibility of the
petitioner seeking pension on higher wages at
the time of affirming the eligibility of the
petitioner to him and that he was egged on to
do the same because of various representations
made by the petitioner, is whopping falsehood,
to say the least. The respondent’s decision to
 affirm the eligibility of the petitioner was the
outcome of his conscious decision based on the
crystal clear instructions he had received
regarding the revision of pension as per actual
higher salary, from his head office almost
eighteen months ahead of 04-09-2018, when
he affirmed the eligibility of the petitioner to
get pension on higher wages and also granted
the same to the petitioner with arrears from
05-06-2014 when he retired from service.
grievance of the petitioner is misconceived that The claim of the respondent that when the
he was not provided any opportunity for eligibility criteria for different categories of
hearing before his pension was restored to pensioners were clearly delineated the case of
original level. Claim settlement is a routine the petitioner was revised leading to the
service function task for EPFO and in none of restoration of his pension to the level of
the cases any member is provided any original pension, is baseless in every respect.
opportunity for hearing. ln fact, now in The respondent took the conscious decision of
computer enabled environment, EPFO has put granting pension on higher wages to the
tn place mechanism of online claim settlement petitioner after thoroughly ascertaining, as per
and accordingly approximately 98% claims are the clear directives regarding the eligibility
submitted by members through online criteria enshrined in the EPFO head office
platforms and they are settled. ln all such cases, circular dated 23-03-2017, which was issued
no physical interface is required. Therefore, the after getting approval from all competent
petitioner's notion for his right under the authorities including MOL&E. The respondent
Principle of Natural Justice is misconceived. did not get any other directive circular after the
officers in Regional Office, Vadodara including one dated 23-03-2017 clearly delineating the
Officer-lnCharge, Regional Provident Fund eligibility criteria and thereby enlightening the
Commissioner (Finance & Accounts) and respondent further. It has been ascertained
Regional Provident Fund Commissioner Despite through RTI that the MOL&E approval
this, the petitioner has repeatedly met all enshrined in letter dated 16-03-2017 and EPFO
senior Y (Pension) several times and he was head office directive circular dated 23-03-2017,
made aware about the orrect legal position qua are effectively operational as on date. The
his misplaced claim. Therefore, the petitioner's avowed clarity regarding the petitioner being
notion is erroneous and misconceived not eligible that seems to have dawned on the
respondent, must be attributed to some satory,
which has no legal binding.
None of the argument levelled by the
respondent as establishing the ineligibility of
the petitioner to get pension on higher wages,
finds any mention in the EPFO head office
directive circular dated 23-03-2017. Obviously,
the respondent has no locus standi to deviate
from the directives given to him.
The plain fact is that the pension revision cases
in respect of superannuated cases is very much
the part of the order dated 4-10-2016 of the
supreme court and the stream of clear and
distinct approval accorded by the whole range
of statutory bodies such as PEIC, CBT, MOL&E
and even EPFO, HO. The respondent is just
misguiding the high court of Gujarat and bent
 upon creating discrimination in the
implementation of the orders dated 04-10-
2016 of the Supreme Court stopped.
ln the instant case, as the petitioner had never The respondent refers to the fact now that the
exercised joint option for contributing on petitioner had not exercised option under Para
higher wages in the Pension Fund under 26(6). There is no basis for this, for these
proviso to Para 11(3) of EPS 1995 (since (since amounts to simply shifting the goal post to
deleted), his contribution towards the pension arbitrarily deny to the petitioner his rightful due
fund waslimited upto prevailing wage ceiling at of getting pension on higher wages.
different points of time. This automatically 1. The APFC pension Vadodara did not
translated into diversion ofcontribution in seek the submission of option under Para 26(6),
excess of the wage ceiling from employer's when he sought a whole host of documents
share of contribution, which became integral from the petitioner to process his claim for
art of the provident fund in absence of any joint pension on higher wages, vide the letter dated
option, and accordingly, had been accounted 24-01-2018.
towards the provident fund of the petitioner. 2. The respondent 2 in his communication
However, when the petitioner applied for dated 10-12-2019, very belatedly informing the
revision of his pension relying upon the ratio of petitioner that his revised pension had been
RC Gupta Case, to act upon such application, it reaffixed at the level of original pension
became necessary to divert the amount in granted , did not refer to non-submission of
excess of wage ceiling from Provident Fund to option under 26(6) to be any reason for
the Pension Fund which was previously reaffixing his pension at the original level. There
credited and accounted towards his Provident is no stipulation in EPS 95 that option under
Fund Account in absence of any joint option. Para 26(6) has to be exercised during the
Now the financial year in which the petitioner service tenure. The order date 04-10-2016 of
attained the age 58, i.e. 2014-2015, the the Supreme Court does not specify that option
opening balance standing to the credit in his under Para 26(6), has to be exercised during
provident fund account as Employer's service tenure.
Contribution stood at Rs.15,59,0131. This 3. R.C. Gupta and others had not
amount consisted not only of the Employer's exercised option under Para 26(6) during
contribution to the provident fund account of service tenure.
the complainant, i.e. 3.670/o, but also the 4. Austin Joseph and others claimed that
amount of contribution out of 8.33 % in excess they had exercised option under Para 26(6) but
of the statutory wage ceiling which needed to EPFO vehemently denied it in the Supreme
be diverted to Pension Fund if ratio of RC Gupta Court. Thus, the respondent resorts to the
Case were to be considered to be applied in futile exercise of materializing non submission
case of the petitioner and pension revised at of option under Para 26(6) now.
higher wage as per hls request. lt is this excess
contribution than wage ceiling out of
employer's share contributed and accounted
towardsProvident Fund which stood at
Rs.8,94,564/- as on June2014. Since the
amount standing to the credit of hisaccount as
on June-2014, i.e. Rs.8,94,564/- was not
withdrawn by the petitioner (it is still not
withdrawn), it had earned interest as applicable
from time to time. When the petitioner was
advised to give an undertaking to allow the
deponent to make necessary adjustment and
divert employer's contribution made towards
the provident fund in excess to wage ceiling
from his provident fund account to the pension
fund, which was on 04.09.2018, Annual lnterest
been carried out up to the year 2016-17 in
respect of M/s Prince Ashokaraje Gaekwad
School (the employer of the petitioner where
he continues to be employed). The Opening
Balance of the year 2017-2018 showed
Rs.22,42,133/- to the credit of petitioner's
Provident Fund Account as Employer's
contribution. Naturally, the amount which
stood at Rs.8,94,5641- as on 05.06.2014, had
also earned interest and swelled to
Rs.11,60,609/-. lt was thus obvious that when
the amount had earned interest, the interest
earned on such amount also needed to be
diverted
As regards the averments of para 4.9, it is There is no basis for the spiel of respondent,
submitted that the undertaking to divert the reverberating through the lengthy response, on
amount received in Provident Fund as the ground of supposed cross subsidization
employer's contribution out of the 8.33% triggered by Para 11(3) leading to the anomaly
employer's share (being in excess of wage of providing disproportionate advantage to
ceiling prevailing at relevant time) to the claimants like the petitioner much to the fatal
Pension Fund was received by the Respondent disadvantage of the vast majority of other
Office on 12.09.2018 and necessary adjustment pensioners.
was carried out on date f 10.2018, i.e. an It was the conscious decision of EPFO, to insert
amount of Rs.11,60,609/- was diverted ffrom para 11(3) providing scope for the members to
provident fund-employer's contribution to the exercise option under para 11(3). EPFO must
Pension FundParticular Timeline/ Detail have visualized that any number of members
Date of cessation of membership from EPS could exercise this option and must have
1995 of the petitioner 05.06.2014 Starting ascertained that such option of members in
ofpension of the petitioner 22.04.201 5 w.e.f. large numbers would not endanger the
05.06.201 4 Additional deposited/ Rs. required sustainability of the pension fund. Further , it
to be w.e.f 05.06.2014 amount diverted has been legally established both by the high
Rs.8,94,5641 Date on which diversion took court of Kerala as well as the supreme court
place Amount of interest eamed by the that option under para 11(3) could not been
petitioner in his provident fund accumulation subjected to any cut-off date and could be
during intervening period of 05.06.2014 to exercised retrospectively.
04.10.2018 Rs. 2,66,045 Total amount to be It would be dubious on the part of EPFO, if it is
diverted on 04.10.2018 Rs. I 1,60,609/ ,I or \ of presumed that para 11(3) was introduced only
the petitloner. Thus, no delay was caused in to prevent the EPS members from giving option
such adjustment under para 11(3), insisting on a cut-off date.
Subsequently, his pension also came to be Thus EPFO must have visualized the supposed
revised based on higher salary as requested cross subsidization alleged by the respondent
and arrear from 05.06.2014 to December-20l8 and the consequent financial impact it would
was also released in January-2019. Hence, the have on the pension fund and planned for the
contention that the respondent did not revise same while introducing para 11(3).
the pension is completely false and vehemently It is rather bizarre to accept the claim of the
denied respondent that EPFO took eighteen long years
from 1996 to 2014 to realize that para 11(3)
could endanger the financial sustainability of
the pension fund and decided to delete para
 11(3) bringing in an amendment brought
through GSR 609(E) dated 22-08-2014 w.e.f. 01-
09-2014.
If at all claimants like the petitioner seek
pension on higher wages, it is solidly founded
on their rightful claim assured by EPS 95. The
respondent presumes that allowing retirees like
the petitioners to get pension on higher wages
is out of gratis.
The respondent’s effusive concern regarding
the sustainability of the pension fund leading to
social injustice is unfounded. This has been
proved by explaining how faulty the
respondent’s calculation intended to project
the supposed disproportionate advantage
gained by the petitioner as against the fatal
disadvantage of the vast majority of other
pensioners through the means of getting
pension on higher wages is! The respondent
projected an astronomical gain of 30% annually
for the petitioner, but it was proved that the
gained would be only about 9.94%.
With respect to the contentions of para 4.10, it The impugned order dated 10-12-2019 is
is] respectfully submitted that the contentions arbitrary, illegal and perverse
raised through this para are misleading and The claim of the respondent that the impugned
vague. The petitioner states that he was order dated 10-12-2019 is not arbitrary, illegal
awarded pension on Higher Wages from June and perverse, is devoid of any truth. As directed
2014 to December-2019 although he had by EPFO circular dated 23-03-2017 which had
attained the age of superannuation 3 years the backing of the approval of all statutory
back.lt is humbly submitted that by virtue bodies such as PEIC, CBT and also MOL&E, the
of Para 2(ix) of the EPS-I995, the petitioner respondent granted pension on higher wages
ceased to be member of the EPS-1995 on to the petitioner and also granted him pension
attalnment of age of 05.06.2014. The arrear arrears w.e.f. 05-06-2014, when the petitioner
paid to the petitioner was also from 05.06.2014 retired from service. The higher pension was
to 31.12.2019 after adjusting the pension he granted to him w.e.f 01-02-2019. However, the
had already drawn earlier. Thus, there is no higher pension granted to the petitioner was
anomaly or discrepancy and hence, the abruptly stopped without any intimation,
allegations qua the contrary are denied being personal hearing or show cause notice to the
false. petitioner, w.e.f. 01-11-2019. The respondent
With respect to the contentions of para 4.11 , it did not get any directive to the effect from
is respectfully submitted that the contentions EPFO, HO asking him to stop the higher pension
raised through this para are misleading and also being paid to the petitioner for nine months
mis-statements have been made contrary to from 01-02-2019 to 01-10-2019. It has been
the facts. lt is respectfully submitted that as ascertained through RTI that EPFO circular
soon as ,superannuation, i.e. 58 which, in the dated 23-03-2017 and MOL&E approval dated
case of the petitioner, is the clarity emerged, 16-03-2017, are fully operational as on date
eligibility criteria for different categories were and no other contrary directive has been issued
clearly delineated, the case of the petitioner to the respondent.
was re-examined and it was noticed that the Being kept under suspense, the petitioner
petitioner was not eligible to receive pension visited the respondent at his office on 04-12-
on higher wages in pursuance to the ratio of R C 2019, seeking clarification for the abrupt
Gupta case as the facts and circumstances of stoppage of the higher pension being paid to
that case and that of the present petitioner are him. And the petitioner was informed that a
completely different. Thus, earlier pension speaking letter would be sent to him in this
being drawn by the petitioner which is regard soon. In the absence of getting any such
Rs.22161- p.m. had to be restored. Since two speaking letter from the respondent, the
PPOs cannot be operated concurrently, the petitioner wrote to the respondent on 08-12-
Deponent was required to cancel PPO No. 2019, explaining in detail it would be arbitrary
67126 (through which pension on higher salary to stop abruptly the revised pension being paid
was processed), recall the copy of this PPO to him. This letter dated 08-12-2019 of the
from the Bank and from the pensioner and re- petitioner was sent to the respondent digitally
issue the revised PPO. Therefore, the Deponent on 08-12-2019, itself. Further, a hard copy of
wrote to pension disbursing bank branch under the same has been received by the respondent
intimation to the petitioner through letter on 09-12-2019.
dated 08.'1 1.2019 seeking copy of original PPO At the outset of the order dated 10-12-2019,
No.67126and reminder was also issued on the respondent acknowledges the fact the
03.12.2019. Therefore, submission of the petitioner called on the office of the EPFO,
petitioner that he was not aware of revocation Vadodara, on 04-12-2019. Having sanctioned
of PPO 67126 fll 04.12.2019 is completely false the revised pension paid to the petitioner, on
and dehors the material facts. ln fact, the the basis of the respondent’s conscious
Deponent reflected utmost urgency and one decision based on the approval accorded by the
messenger from the Deponent office visited the competent authority but stopping it abruptly
pension disbursing bank branch personally to without any approval from the competent
collect copy of original PPO on 10.12.201 9 as authority, is nothing but arbitrariness. Stopping
no reply came from the pension disbursing the higher pension being paid , from 01-11-
branch fll 09.12.2019. Thereafter, revised PPO 2019 without any intimation , personal hearing
No. 70225 was issued on 12.12.2019 and or show cause notice and waiting till the
petitioner's pension was restored after petitioner called on his office, receiving a
completion of administrative requirement of communication from the petitioner in this
receipt of earlier PPO 67126. lt is evident from regard on 09-12-2019 and sending the
the foregoing submission that thev 198 communication dated 10-12-2019 which was
deponent acted in most prompt manner for received by the petitioner only on 11-12-2019,
ensuring smooth remittance of monthly is nothing but arbitrary action.
pension and also to keep the pensioner The order dated 04-10-2016 does not stipulate
intimated about the development. lt is humbly that retirees cannot give option under Para
submitted that the petitioner was granted this 11(3) and get higher pension by paying the
restored pension under new PPO NO. differential amount. In fact the order of the
VD/BRD/00070225. Therefore, the averment of Supreme Court directs the respondent to get
the petitioner that great loss and prejudice was from even those retirees who have withdrawn
caused to him is a mere allegation having no their entire provident fund due, the differential
basis. Pension in respect of the petitioner is amount, after getting option under Para 11(3)
being paid continuously. The amounts and allow them the benefit of higher pension. If
transferred from his Provident Fund Account to this be so, the order dated 10-12-2019 is
his Pension Fund account have also been violative of the order of the Supreme Court and
readjusted and the petitioner is also earning hence illegal. Obviously, the respondent seems
interest on such readjusted amount in his to be more inclined to be fair to the other
Provident Fund in accordance with para 60 of pensioners by being extremely unfair to the
the EPF Scheme-1952. The payment received petitioner, by denying the petitioner his lawful
by the respondents towards central right of getting higher pension. This smacks of
government contribution has also been nothing but perversity.
returned to the petitioner with interest thereon
as applicable from time to time under the EPF
Scheme 1952
As regards the averments of para 4.12& 4.13, it Time Sequence regarding the diversion of
is reflective of sincerity of functioning of the differential amount and the payment of 1.16%
Deponent office. On average more than 1O0O of government share
claims for provident fund, pension and The claim of the respondent that the amount of
insurances related benefits are processed in the Rs. 11, 60, 609/- diverted from the petitioner’s
Deponent's office per day. Officials of the provident fund account, comprises Rs. 8, 94,
Deponent office are required to carry out 564/- towards 8.33% of employer’s
multifarious tasks relating to claim settlement, contribution with reference to that part of the
other service functions, quasi-judicial functions actual salary exceeding the statutory wage limit
etc, yet the petitioner has been afforded and the progressive interest thereon from 16-
umpteen opportunities of hearing whenever he 11-1995 up to 05-06-2014, when the petitioner
has visited the office of the Deponent. ln fact, retired and Rs. 2, 66,045/-, which the sum of
the petitioner hasv A t99 had meetings with Rs. 8, 94,564/- gathered by way of progressive
Officer -ln-Charge, Regional Provident Fund interest for the period 05-06-2014 to 04-08-
Commissioner-ll (Pension) and Regional 2018, when the diversion of Rs. 11, 60, 609/-
Provident Fund Commissioner-ll (F&A) several from the petitioner’s provident fund account to
times and had been appraised of all related pension fund account was effected, is not true
developments. As it is evident that the because of the following:
petitioner was informed via letter dated 08.1 1. The communication dated 04-09-2018
L2019 from the Deponent office, yet same was of APFC (Accounts) clearly specifies that the
done promptly through impugned letter dated sum of Rs. 11, 60, 609/- is towards difference of
10.12.2019, as has been admitted by the higher pension fund contribution and
petitioner. Therefore, the Deponent has been progressive interest thereon up to 2016-17.
most forthcoming, objective and prompt the 2. The detailed calculation sheet with
petitioner. Copy of the letter dated 08.11.2019 regard to the above furnished by the
written to the Banker of the Petitioner is respondent features the following details:
annexed hereto and marked as Annexure- 27. i) Differential amount with the
progressive interest thereon payable from 16-
11-95 to 05-06-2014, when the petitioner
retired is Rs. 8, 94,564/-.
It is further humbly submitted that as per ii) Progressive interest that Rs. 8, 94,564/-
details available with office of deponent, the gathered for the period June 2014 to March
petitioner was drawing wages higher than the 2017, (the post retirement period of 22 months
wage ceiling prevailing from time to time from from June 2014 to March 2017) is Rs. 2, 66,
the very beginning of the scheme, i.e. 045/-.
16.11.1995. However, the petitioner I iii) The member passbook of the petitioner
201 never exercised any option for contribution printed on 17-01-2019 indicates the diversion
on higher wages, neither under Para 26(6) of of Rs. 11, 60, 609/- from the provident fund
the EPF Scheme 1952 nor under proviso to para account to pension fund account, to have been
11(3) of Pension Scheme between 16.03.'1996 effected in April 2017.
till the issuance of circular delineating cut-off iv) The member passbook of the petitioner
date for exercise of such joint options. ln fact, printed on 31-01-2020 and afterwards,
no option was ever received from the indicates the diversion of Rs. 11, 60, 609/- from
petitioner during his membership with Pension the provident fund account to pension fund
Scheme. Collectively annexed hereto and account to be effected in May 2018 and not on
marked as Annexure-Z8 are copies of Form No. 04-10-2018, as claimed by the petitioner.
34 (monthly contribution cards) for the years v) The interest with reference to the
1995-96 to 2004-05 in respect of petitioner. iv. employer’s contribution updated as 31-03-2018
The petitioner had clearly made a choice of figure as Rs. 94, 838/-. This is so in the member
contributing in the pension fund up to the wage passbook of the petitioner printed on 17-01-
ceiling and not beyond that and therefore, the 2019 and 31-01-2020 and afterwards.
petitioner was estopped from exercising any vi) Interest updated with reference to the
joint option as contemplated under the proviso employer’s share as 31-03-2017 figure
to Para 1 1(3) of the Pension Scheme at a later as Rs. 1, 75, 672/-
stage after availing the pensionary benefits vii) Thus there is a steep fall in the interest
admissible to him under the then extant with reference to employer’s share updated as
provisions Pension Scheme and the same on 31-03-2018 by Rs. 80, 834/- (Rs. 1, 75, 672 -
having attained finality, as no grievance or Rs. 94, 838 = Rs. 80,834/-). This clearly proves
complaint of any wrongdoing or illegality in that the diversion of Rs. 11, 60, 609/- from the
settling such benefits was raised by the provident fund account to the pension fund
petitioner at the time of settlement or account was effected in April 2017.
thereafter till the Judgment in R C Gupta case viii) Thus, the petitioner was charged
ln the above circumstances, while re-examining progressive interest on the differential amount
the case, it was decided, based on the payable by him as on 05-06-2014, when he
provisions of the Act and Pension Scheme and retired, till April 2017 for almost three years
prudent evaluation of R C Gupta case, to after his retirement. This is precisely what the
process the pension of the petitioner based on petitioner indicates when he mentions that he
the actual contributions received from the was charged progressive interest till April 2017,
petitioner while he was still a member of though he retired almost three years earlier.
Pension Fund and was restored to original, i.e. Further, the bristling actual fact is that the
Rs. 22161- p.m revised higher pension was released only w.e.f.
With respect to the ground at 5A averred by 01-02-2019, meaning thereby, the petitioner
the petitioner, it IS respectfully submitted that got his first revised higher pension only after
perusal of submissions made hereinabove 01-02-2019, after collecting all the dues from
would clearly establish that the impugned the petitioner in April 2017 itself, a clear 22
order dated 10.12.2019 is legal and based on months earlier. This is the stark reality that caps
correct proposition of law and hence, not the climax.
repeated here for sake for brevity.
With respect to ground 58, it is respectfully The petitioner was not informed of the
submitted that the averment of the petitioner retraction of the respondent, properly
that before restoring pension to the original The respondent revised the pension of the
level and stopping pension at higher wage, he petitioner as per his actual higher salary and
was not provided opportunity to be heard also released pension arrears from the date of
under the Principle of Natural Justice is retirement, based on the directives enshrined
misconstrued. ln this regard, following is in the EPFO, HO circular dated 23-07-2017,
submitted: EPFO runs three schemes namely - which had the backing of the order dated 04-
Employees Provident Fund Scheme 1952, the 10-2016 of the supreme court and the approval
Employees' Pension accorded by statutory bodies like PEIC, CBT and
Scheme 1995 and the Employees' Deposit also MOL&E. It has been ascertained through
Linked Scheme 1976 through its '135 field RTI that neither the directive circular dated 23-
offices. ln these Schemes, contribution is 03-2017 has been amended or withdrawn nor
received for around 5 crore contributory any directives contrary to the ones enshrined in
members from over 5.5 lakhs establishments. the circular dated 23-03-2017, have been
EPFO receives more than 1.73 crore claims on issued. If this be so, the respondent has no
annual basis and o z locus standi to stop the revised pension
GoV1 process around 70000 claims on daily abruptly and restore it to the quantum of the
basis on average. Pension Scheme and prudent original pre-revised pension. This amounts to
evaluation of R C Gupta i. EPFO runs three disobedience to implement the instruction
schemes namely – Employees 203 t *Regional given by EPFO, HO, as the EPFO, HO circular
Office, Vadodara of EPFO receives over '1000 dated 08-06-2018, makes it very clear. This
claims per day. Of all the received claims' more could even be interpreted as content of court,
than 90% claims are processed within tendays. for the respondent has neglected the order
Considering the nature of work, the Act & dated 04-10-2016 of the Supreme Court, by
schemes framed there under clearly make a resorting to this.
distinction between functions which are Quasi- Though the respondent chooses to dub it only
judicial in nature where the stakeholder is to be as restoration to original pension, yet the
provided opportunity of hearing under the unassailable fact is, it led to the reduction of
Prrnciple of Natural Justice and other service pension by almost 600%.
functions like claim settlement. EPF Act This unilateral decision without any locus standi
provides for affording opportunity for hearing and without giving any chance to the petitioner
under provisions under Sectlon 7A and Section to explain why such action should not be taken,
148 of the Act which pertains to assessment of is highly arbitrary, to say the least.
dues and penalty against the establishment for The respondent’s marking a copy of the
late remittance. ii. The function of EPFO of communication addressed to the pension
settling claims and disbursing benefits is akin to disbursing bank, is of no relevance, for that
financial institution such as banks. As bank amounts to only to warranting the petitioner to
maintains account in respect of an account simply accept the unilateral decision of the
holder and provides various servlces and credits respondent, yes it is subjecting the respondent
interest on deposited fund, similarly, EPFO to fate accompli.
maintains one account (Universal Account Regarding the refund made to the petitioner,
Number) in respect of each member. All the respondent has neither informed the
contributions received in respect of a member, petitioner of the same nor has the calculation
is credited inhis account, annually interest is based on which the quantum of refund was
credited and when a member seeks any decided, was made available to the petitioner.
benefit (Advances for marriageeducation,
house construction etc., transfer of fund upon
change of employment, death related claims,
insuranc related claims, provident fund upon
superannuation or in case of non-employment,
pension claim etc.),.