1

2026:CGHC:10669

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 4132 of 2023

Judgment Reserved On: 11.02.2026

Judgment Delivered On: 02.03.2026

 Lalman Sahu S/o Rugsa Sahu Aged About 67 Years R/o Milan Chowk,

Kududand, Sahu Bada, Bilaspur, District : Bilaspur, Chhattisgarh

--- Petitioner

versus

1 - Employees Provident Fund Organization, Through Commissioner,

Regional Office, Block-D, Scheme-32, Indira Gandhi, Commercial Complex,

Pandri, Raipur, District : Raipur, Chhattisgarh

2 - Zila Sahkari Kendriya Bank Maryadit Bilaspur Through Chief Executive

Officer, Bilaspur, District : Bilaspur, Chhattisgarh

--- Respondents

WPS No. 7763 of 2024

 Sunil Kumar Muttoo S/o Late Bishamber Nath Muttoo, Aged About 69

Years (Pre Retiree- 1/9/2014, Un - Exempted), R/o - A- 2829, First Floor,

Gate No. 24, Green Field Colony, Faridabad, Haryana - 121010

---Petitioner

Versus

1 - Employees Provident Fund Organization Through- Additional Central P. F.

Commissioner, (Mpcg), Employees Provident Fund Organisation Zonal Office

Bhavishya Nidhi Bhavan 59, Arera Hills, Bhopal- 462011

2 - Regional Provident Fund Commissioner, Employees Provident Fund

Organization, Regional Office - Block-D, Scheme 32, Indira Gandhi

Commercial Complex, Pandri Raipur, Chhattisgarh.

3 - Regional Provident Fund Commissioner, Employees Provident Fund

Organization, Wazirpur Industrial Area, Delhi-110052.

4 - Chhattisgarh State Co-Operative Dairy Federation, Through Its Managing

Director, Urla, Post - Bmy Charouda, District - Durg, Chhattisgarh.

--- Respondents

2

WPS No. 8104 of 2024

 P.N. Upadhyay S/o Shri Brijnandan Upadhyay Aged About 69 Years R/o-

Om Vihar, Near Ridhi Sidhi Garden, Mahavir Nagar, Raipur, District -

Raipur, Chhattisgarh.

---Petitioner

Versus

1 - Employees Provident Fund Organization Through- Additional Central P.F.

Commissioner, (Mpcg), Employees Provident Fund Organisation Zonal

Office, Bhavishya Nidhi Bhavan 59, Arera Hills, Bhopal (M.P.) Pin-462011

2 - Employees Provident Fund Organization, Through- Commissioner,

Regional Office- Raipur, Raipur Chhattisgarh - Block- D, Scheme 32, Indira

Gandhi Commercial Complex, Pandri Raipur, Chhattisgarh

3 - Chhattisgarh State Co-Operative Dairy Federation, Through Its Managing

Director, Urla, Post- Bmy Charouda, District- Durg Chhattisgarh

--- Respondents

WPS No. 8225 of 2024

 Satya Narayan Dubey S/o Shri Ghanshyam Prasad Dubey Aged About 69

Years Present Add.- R/o- E-23, Rishabh Nagar, Near Dronacharay

School, Amilidih, Ravigarm, Raipur, District- Raipur, C.G.

---Petitioner(s)

Versus

1 - Employees Provident Fund Organization Through- Additional Central P.F.

Commissioner, (M P C G), Employees Provident Fund Organisation Zonal

Office, Bhavishya Nidhi Bhavan 59, Arera Hills, Bhopal (M.P.) Pin- 462011

2 - Employees Provident Fund Organization Through Commissioner,

Regional Office- Raipur, Raipur Chhattisgarh- Block- D, Scheme 32, Indira

Gandhi Commercial Complex, Pandri Raipur, C.G.

3 - Chhattisgarh State Co-Operative Dairy Federation Ltd. Through Its

Managing Director, Urla, Post- B M Y Charouda, District Durg, C.G.

--- Respondents

WPS No. 1381 of 2025

 Ravindra Singh Thakur S/o Shri Shaiyalal Singh Thakur Aged About 71

Years R/o Thakur Kirana Store, Bhairoganj, Maharaj Bag, Seoni (M.P.)

---Petitioner

Versus

3

1 - Employees Provident Fund Organization Through Its Commissioner,

Regional Office- Raipur, Raipur Chhattisgarh- Block- D, Scheme 32, Indira

Gandhi Commercial Complex, Pandri Raipur (C.G.)

2 - Chhattisgarh State Co-Operative Dairy Federation, Through Its Managing

Director, Urla, Post- Bmy Charouda, District- Durg (C.G.)

--- Respondents

WPS No. 12334 of 2025

 Arun Kumar Jain S/o Hajari Lal Jain Aged About 72 Years R/o - Ward No.

7, Shivsathaliya Colony, Near Golden Zym, Ramlala Ward, Makroniya,

Sagar, District - Sagar (M.P.)

---Petitioner

Versus

1 - Employees Provident Fund Organization Through Its Managing Director,

Urla, Post - Bmy Charouda, District - Durg (C.G.)

2 - Chhattisgarh State Co-Operative Dairy Federation Through Its Managing

Director, Urla, Post - Bmy Charouda, District - Durg (C.G.)

--- Respondents

WPS No. 4659 of 2023

 Kunwar Singh Dewangan Son Of S.S. Dewangan, Aged About 68 Years

R/o. In Front Michalew School Samta Marg Govinnagar, District - Kanker,

Chhattisgarh.

---Petitioner

Versus

1 - Employees Provident Fund Organization Through Commissioner,

Regional Office, Block -D, Scheme -32, Indira Gandhi Commerical Complex,

Pandri, Raipur, District - Raipur, Chhattisgarh.

2 - Zila Sahkari Kendriya Bank Maryadit Jagdalpur, Through District - Raipur,

Chhattisgarh.

--- Respondents

WPS No. 5556 of 2023

1 - Sagun Lal Verma S/o Late Gaya Ram Verma Aged About 67 Years R/o A-

162, Housing Board Colony, Kota Raipur, Raipur (C.G.)

2 - R.S. Sahu S/o Late Khuman Singh Sahu Aged About 67 Years R/o Near

Abhanpur Police Station Raipur (C.G.)

4

3 - R.S. Sharma S/o Late Gaya Prasad Sharma Aged About 67 Years R/o C-

41, Vijaypuram Colony, Seepat Road, Sarkanda, Bilaspur (C.G.)

4 - G.S. Gavel S/o Phool Singh Gavel Aged About 73 Years R/o Village

Sukali Pali, Post Sulouni, Via Sakti, District : Janjgir-Champa, Chhattisgarh

---Petitioners

Versus

1 - Employees Provident Fund Organization Through Commissioner,

Regional Office- Raipur, Raipur Chhattisgarh Block -D, Scheme 32, Indira

Gandhi Commercial Complex, Pandri Raipur (C.G.)

2 - Chhattisgarh State Co-Operative Dairy Federation Through Its Managing

Director, Urla, Post - Bmy Charouda, District : Durg, Chhattisgarh

--- Respondents

WPS No. 5484 of 2023

1 - Prakash Bhalachandra Keskar S/o Late B.A. Keskar Aged About 67 Years

R/o H. No. 207, Om Garden, Near Gajanand Mandir, Parijat Colony, Nehru

Nagar, Bilaspur (C.G.)

2 - Virendra Narayan Shukla S/o Late Mahadev Shukla Aged About 68 Years

R/o V 128, Manas Akriti Vihar, Mahaveer Nagar, Raipur (C.G.) Permannent

Address H. No. 238, Harsevakpur, Rapti Nagar, Ph-4, Behind Sport College,

Gorakhpur (U.P.)

---Petitioners

Versus

1 - Employees Provident Fund Organization, Through Its Managing Director,

Head Office- Beej Bhawan, Ravigram, Telibandha, G.E. Road, Raipur (C.G.)

2 - Chhattisgarh State Beej Evan Krshi Vikas Nigam Limited Through Its

Managing Director, Head Office- Beej Bhawan, Ravigram, Telibandha, G.E.

Road, Raipur (C.G.)

--- Respondents

WPS No. 5106 of 2023

 Dhansi Ram Agrawal S/o Ram Kishan Agrawal, Aged About 67 Years R/o

Behind Central Jail Babu Para, Telephone Exchange Road, Ambikapur,

District Surguja Chhattisgarh.

---Petitioner

Versus

1 - Employees Provident Fund Organization Through Commissioner,

Regional Office, Block-D, Scheme-32, Indira Gandhi Commercial Complex,

Pandri, Raipur, District Raipur Chhattisgarh.

5

2 - Zila Sahkari Kendriya Bank Maryadit, Through Chief Executive Officer,

Ambikapur, District Surguja Chhattisgarh.

--- Respondents

WPS No. 4703 of 2023

 Puran Singh S/o Drig Pal Singh Aged About 70 Years R/o Mahaveer Ward

Dc Road Ambikapur, District : Surguja (Ambikapur), Chhattisgarh

---Petitioner

Versus

1 - Employees Provident Fund Organization Through Commissioner,

Regional Office, Block-D, Scheme-32, Indira Gandhi Commercial Complex,

Pandri, Raipur, District : Raipur, Chhattisgarh

2 - Zila Sahkari Kendriya Bank Maryadit Ambikapur Through Chief Executive

Officer, Ambikapur, District : Surguja (Ambikapur), Chhattisgarh

--- Respondents

WPS No. 4391 of 2023

 Ganesh Prasad S/o Damodar Prasad Swarnkar, Aged About 67 Years R/o

Ward No. 10, Ranger Gali, Akhra Bhata, Sakti, District Janjgir Champa ,

New District Sakti Chhattisgarh.

---Petitioner

Versus

1 - Employees Provident Fund Organization, Through Chief Executive

Officer, Bilaspur District Bilaspur Chhattisgarh.

2 - Zila Sahkari Kendriya Bank Maryadit Bilaspur, Through Chief Executive

Officer, Bilaspur District Bilaspur Chhattisgarh.

--- Respondents

WPS No. 4458 of 2023

 Shiv Kumar Singh Son Of Jhandu Singh, Aged About 68 Years R/o.

Sattipara Bechen Colony Ambikapur District - Sarguja Chhattisgarh.

---Petitioner

Versus

1 - Employees Provident Fund Organization Through Commissioner,

Regional Office, Block -D, Scheme -32, Indira Gandhi Commerical Complex,

Pandri, Raipur, District - Raipur, Chhattisgarh.

6

2 - Zila Sahkari Kendriya Bank Maryadit Ambikapur, Through Chief Executive

Officer, Ambikapur, District - Ambikapur, Chhattisgarh.

--- Respondents

For Respective

Petitioners

:Mr. Govind Ram Miri, Sr. Advocate with Mr. Yogesh

Chandra Sharma, Advocate Mr. S.P. Sannat,

Advocate Mr. Basant Kaiwartya, Advocate and Mr.

Neeraj Choubey, Advocate

For Respective

Respondents

:Mr. Sunil Pillai, Advocate Mr. Bhupendra Shrivas,

Advocate appears on behalf of Mr. Vinay Pandey,

Advocate Mr. Jitendra Shrivastava, Advocate with

Mr. Amit Kumar Verma, Advocate, Mr. V. Jayant

Kumar, Advocate appears on behalf of Mr. Prakash

Tiwari, Advocate Mr. Keshav Dewangan, Advocate

and Mr. Om P. Sahu, Advocate

Hon'ble Shri Narendra Kumar Vyas, J.

CAV ORDER

1.Since an identical issue and common question of facts and law are

involved in the bunch of these writ petitions, they are heard analogously

and are being decided by this common order.

2.The petitioners have filed the present petitions challenging the legality

and validity of letters issued by the respondent – Employees’ Provident

Fund Organisation, Regional Office, Raipur (C.G.), whereby the

respondent authority has discontinued the higher pension previously

granted to them and started paying lower pension as detailed in the

subsequent paragraph.

3.The petitioners have claimed following reliefs:-

(a) Issuance of direction to respondent No.1 to restore the higher

pension to the petitioners and also to pay the arrears with interest

@ 18% for delayed payment.

(b) The petitioners have also prayed for issuance of direction to

the EPF Organisation to extend the date 26.06.2023 of filling

application regarding pension on higher wages.

7

Or alternatively,

(c) They seek direction to the EPF Organisation to return the entire

contributory amount of the petitioners along with the interest @ of

20%.

4.For the sake of convenience, facts of WPS No. 4132 of 2023 are taken

into consideration for deciding the issue involved in the present writ

petition as lead case.

5.The brief facts as projected by the petitioner are that :-

(a)He was employed in Zila Sahkari Kendriya Bank Maryadit,

Bilaspur, District Bilaspur (C.G.)/respondent No.2. He joined

service on 14.06.1976 and retired on 30.11.2014. During his

service tenure, he was a member of the Employees’ Provident

Funds and Miscellaneous Provisions Act, 1952 and the schemes

framed thereunder.

(b)Initially, his monthly pension was sanctioned at Rs. 2,190/- by the

Employees’ Provident Fund Organisation (in short “the EPFO”).

The Government of India, Ministry of Labour amended the

paragraph 11 of the Employees Pension Scheme, 1995 w.e.f.

01.09.2014 and has amended para 11 as under :-

“11(4) The existing members as on the 1

st

day of

September, 2014, who at the option of the employer and

employee, had been contributing on salary exceeding six

thousand and five hundred rupees per month, may or a

fresh option to be exercised jointly by the employer and

employee continue to contribute on salary exceeding fifteen

thousand rupees per month and the pensionable salary for

the existing members who prefer such fresh option shall be

based on the higher salary.

Provided that the aforesaid members have to contribute at

the rate of 1.16 percent on salary exceeding fifteen

thousand rupees as an additional contribution from and out

of the contribution s payable by the employees for each

8

month under the provisions of the Act or the rules made

thereunder.

Provided further that the fresh option shall be exercised by

the member within a period of six months from the 1

st

day of

September, 2014:

Provided also that the period specified in the second

proviso may, on sufficient cause being shown by the

member, be extended by the Regional Provident Fund

Commissioner for a further period not exceeding six

months:

Provided also that if no option is exercised by the member

within such period (including the extended period ), ti shall

be deemed that the member has not opted for contribution

over wage ceiling and the contributions to the Pension Fund

made over the wage ceiling in respect of the member shall

be diverted to the Provident Fund account of the member

along with interest as declared under the Employees’

Provided Fund Scheme from time to time.”

(c)It is the case of the petitioner that the EPFO was not allowing the

members to contribute at the option of employer and employee

exceeding Rs. 6500/- per month from the date of commencement

of this Scheme or from the date salary exceeds Rs. 6500/- to the

employees who have retired, therefore, they have filed writ

petition before the High Court of Himachal Pradesh wherein the

writ petition was allowed and the Division Bench of Himachal

Pradesh High Court has reversed the judgment. The matter was

travelled upto the Supreme Court and the Hon’ble Supreme Court

in case of R.C. Gupta and Others vs. Regional Provident Fund

Commissioner and Others {2018 (14) SCC 809} has held that

there is no time limit for submitting the option form under the

amended provisions of para 11 of the Scheme, as such, the

authority cannot fix any time limit and deprive them to submit

option form. The Hon’ble Supreme Court in R.C. Gupta (supra)

has held in paragraph 6, 7 and 9 as under :-

“6.Clause 11 (3) of the Pension Scheme : -

9

(3) The maximum pensionable salary shall be limited to

[rupees six thousand and five hundred/Rs.6,500/-] per

month.

[Provided that if at the option of the 1 Subs. by

G.S.R.774(E), dated 8th October, 2001 (w.e.f. 1-6-2001) 2

Subs. by G.S.R. 134, dated 28th February, 1996 (w.e.f. 16-

3-1996) employer and employee, contribution paid on

salary exceeding [rupees six thousand and five

hundred/Rs.6,500/-] per month from the date of

commencement of this Scheme or from the date salary

exceeds [rupees six thousand and five hundred/Rs.6,500/-]

whichever is later, and 8.33 per cent share of the employers

thereof is remitted into the Pension Fund, pensionable

salary shall be based on such higher salary.]

7. Reading the proviso, we find that the reference to the

date of commencement of the Scheme or the date on which

the salary exceeds the ceiling limit are dates from which the

option exercised are to be reckoned with for calculation of

pensionable salary. The said dates are not cut-off dates to

determine the eligibility of the employer-employee to

indicate their option under the proviso to Clause 11(3) of the

Pension Scheme. A somewhat similar view that has been

taken by this Court in a matter coming from the Kerala High

Court, wherein the Special Leave Petition (C) No.7074 of

2014 filed by the Regional Provident Fund Commissioner

was rejected by this Court by order dated 31.03.2016. A

beneficial Scheme, in our considered view, ought not to be

allowed to be defeated by reference to a cut-off date,

particularly, in a situation where (as in the present case) the

employer had deposited 12% of the actual salary and not

12% of the ceiling limit of Rs.5,000/- or Rs.6,500/- per

month, as the case may be.

9.We do not see how exercise of option under paragraph

26 of the Provident Fund Scheme can be construed to

estop the employees from exercising a similar option under

paragraph 11(3). If both the employer and the employee opt

for deposit against the actual salary and not the ceiling

amount, exercise of option under paragraph 26 of the

Provident Scheme is inevitable. Exercise of the option

under paragraph 26(6) is a necessary precursor to the

exercise of option under Clause 11(3). Exercise of such

option, therefore, would not foreclose the exercise of a

further option under Clause 11(3) of the Pension Scheme

unless the circumstances warranting such foreclosure are

clearly indicated. “

(d)Thereafter, in compliance of the order of the Hon’ble Supreme

Court the EPFO issued a circular dated 23.03.2017 inviting

options from eligible employees who had retired after the cut-off

date i.e. 14.09.2014 for grant of higher pension on the basis of

10

higher wages. The operative part of the circular reads as under :-

“2) The Hon’ble Apex court in SLP No. 33032-33033 of 2015

observed that the reference to the date of commencement of

the Scheme or the date on which the salary exceeds the

ceiling limit are dates from which the option exercised are to

be reckoned with for calculation pensionable salary. The said

dates are not cut-off dates to determine the eligibility of the

employer-employee to indicate their option under the proviso

to Clause 11(3) of the Pension Scheme. It has further been

observed that a beneficial Scheme, ought not to be allowed to

be defeated by reference to a cut-off date, particularly, in a

situation where (as in the present case) the employer had

deposited 12% of the actual salary and not 12% of the ceiling

limited of Rs. 5000/- or Rs. 6500/- per month, as the case may

be.

In a situation where the deposit of the employer’s share at

12% has been on the actual salary and not the ceiling

amount, the Provident Fund Commissioner could seek a

return of all such amounts that the concerned employees may

have taken or withdrawn from their Provident fund Account

before granting them the benefits of the proviso to Clause

11(3) of the Pension Scheme. Once such a return is made in

whichever cases is due, consequential benefits in terms of

this order will be granted to the said employees.

Thus a member contributing to the Provident Fund on the

wages exceeding the statutory ceiling or who had contributed

to the Provident Fund on wages exceeding the Statutory

ceiling cannot be debarred from exercising the option to

contribute on such higher wages to the pension fund. (Copy of

the order of the Hon’ble Supreme Court enclosed).

3) Accordingly a proposal was sent to MOL&E to allow

members of the Employees’ Pension Scheme, 1995 who had

contributed on higher wages exceeding the statutory wage

ceiling of 6500/- in the Provident Fund to divert 8.33% of the

salary exceeding Rs.6500/- to the Pension Fund with up to

date interest as declared under EPF Scheme, 1952 from time

to time to get the benefit of pension on higher salary on

receipt of joint option of the Employer and Employee.

4) The MOL&E vide letter dated 03.2017 has conveyed its

approval to allow members of the Employees’ Pension

Scheme, 1995 who had contributed on higher wages

exceeding the statutory wage ceiling of Rs. 6500/- in the

Provident Fund to divert 8.33% of the salary exceeding

Rs.6500/- to the Pension Fund with up to date interest as

declared under EPF Scheme, 1952 from time to time to get

the benefit of pension on higher salary on receipt of joint

option of the Employer and Employee. (copy enclosed for

ready reference).

5) The officers in charge of all field offices are directed to

take necessary action accordingly in accordance with the

11

order of the Hon’ble Supreme Court in SLP No.33032- 33033

of 2015 as approved by the Government and as per the

provisions of the EPF & MP Act, 1952 and Schemes framed

there under.”

(e)Pursuant thereto, the petitioner submitted his option form on

17.04.2018. Upon consideration of the said option, the respondent

authorities granted the petitioner higher pension, and his monthly

pension was revised to Rs. 8,270/- vide Pension Payment Order

dated 18.05.2018. The petitioner continued to receive the said

higher pension till 25.02.2022. Subsequently, the respondents

withdrew the higher pension and reduced the petitioner’s pension.

Aggrieved thereby, the petitioner challenged the order dated

25.02.2022 before this Court by filing WPS No. 2358 of 2022. This

Court, vide order dated 05.04.2022, quashed the said order and

granted liberty to the Provident Fund Department to take

appropriate steps after the decision in the Review Petition pending

before the Hon’ble Supreme Court in R.C. Gupta (supra) after

affording the petitioner a fair and reasonable opportunity of

hearing.

(f)In purported compliance with the directions of this Court, the EPF

Organisation continued higher pension of Rs. 8270/-. Thereafter

the respondents passed the impugned order dated 22.03.2023

(Annexure P/1), whereby the petitioner’s pension has again been

reduced and a fresh PPO has been issued fixing his pension at

Rs. 2,190/- per month. The said order is under challenge in the

present writ petition wherein petitioner has prayed for continuation

of higher pension which has already been released in his favour

by the EPF Organisation.

12

(g)The details of all the individual petitioners consisting the names,

date of joining, date of retirement, initial pension, amount of higher

pension, effective date and current pension amount of all the

petitioners in brief are given below in tabular form:-

S.N

o.

WPS

No.

Name of

Petitioners

Date of

Joining

Date of

Retirement

1

st

PPO

(in Rs.)

Addition

al

Amount

(in Rs.)

Higher

Pension

2

nd

PPO

(in Rs.)

Date of

Grant of

Higher

Pension

(w.e.f.)

Allowed

WPS

Filed By

The

Petitione

rs

Current

Pension

3

rd

PPO

(in Rs.)

1.4132/

2023

Lalman Sahu14.06.197

6

30.11.201

4

2,190/-1,87,580/

-

8,270/-18.05.20

18

2358/20

22

2,190/-

2.4391/

2023

Ganesh

Prasad

26.06.197

6

19.09.201

3

2,303/-1,86,560/

-

6,432/-25.07.20

18

2248/20

22

2,303/-

3.4458/

2023

Shiv Kumar

Singh

06.12.197

7

30.09.201

1

2,104/-2,82,261/

-

7,944/-29.11.20

18

2660/20

22

2,104/-

4.4659/

2023

Kunwar

Singh

Dewangan

08.05.197

8

31.10.201

1

1,926/-2,77,500/

-

8,141/- - 2560/20

22

2,112/-

5.4703/

2023

Puran Singh10.10.197

7

31.07.201

2

1,963/-2,88,599/

-

4,944/-29.11.20

18

2378/20

22

1,963/-

6.5106/

2023

Dhansi Ram

Agrawal

01.08.197

7

31.05.201

8

2,282/-5,74,212/

-

14,534/-22.02.20

19

- 2,282/-

7.5484/

2023

P.B. Keshkar

V.N. Shukla

01.10.198

2

01.05.198

0

14.03.201

4

09.07.201

2

2,017/-

2,120/-

8,90,751/

-

7,20,022/

-

20,156/-

14,689/-

15.07.20

19

13.10.20

18

1725/20

22

1763/20

22

2,292/-

2,120/-

8.5556/

2023

Sagun Lal

Verma

R.S. Sahu

R.S. Sharma

G.S. Gavel

01.08.198

5

01.01.198

2

06.04.197

6

05.10.198

3

06.07.201

4

22.12.201

3

25.11.201

2

28.06.200

8

2,269/-

2,117/-

2,286/-

1,668/-

3,09,881/

-

5,08,139/

-

4,71,738/

-

2,30,304/

-

13,976/-

14,419/-

13,201/-

3,667/-

31.05.20

18

20.09.20

18

01.10.20

18

01.12.20

18

2521/20

22

1824/20

22

1849/20

22

2347/20

22

2,269/-

2,302/-

2,286/-

1,668/-

9.7763/

2024

Sunil Kumar

Muttoo

20.09.198

0

01.04.201

3

2132/-9,50,276/

-

27,333/-05.09.20

18

NA 2,318/-

10.8104/

2024

P.N.

Upadhyay

01.02.197

8

31.12.201

2

2,295/-2,20,505/

-

8,936/-23.08.20

18

1888/20

22

2,295/-

11.8225/

2024

Satya

Narayan

Dubey

19.06.198

2

31.05.201

4

2,157/-4,53,488/

-

14,821/-30.08.20

18

NA 2,343/-

12.1381/

2025

Ravindra

Singh Thakur

01.02.198

3

10.12.201

3

2,300/-4,26,760/

-

12,891/-04.09.20

18

NA 2,300/-

13.12334

/2025

Arun Kumar

Jain

01.05.198

1

20.11.201

1

1,861/-3,80,201/

-

10,127/-17.10.20

18

NA 2,046/-

6.The EPF Organization has filed their affidavit wherein they have relied

upon the judgment of the Hon’ble Supreme Court in case of The

13

Employees Provident Fund Organisation & Anr. vs. Sunil Kumar B.

& Ors." reported in (2023) 12 SCC 701 for declining the relief as

prayed by the petitioners and have contended that :-

(a) Since the 2014 amendments to the Employees’ Pension Scheme,

1995 (EPS, 1995) have been accepted by the Hon’ble Supreme

Court, as such, the pension must remain sustainably balanced with

contributions. The rate of pension cannot be amended prior to its

existence in the Scheme prior to 01.09.2014, as such, the

petitioners cannot seek revision of pension now after

superannuation.

(b)It has been further contended that the Pension Scheme is not

directly proportionate to individual contributions but it is funded by

diversion of 8.33% employer contribution and 1.16% Central

Government contribution (on wages up to the wage ceiling). It is

pertinent to mention here that on 01.09.2014, the wage ceiling has

been increased from Rs. 6,500/- to Rs. 15,000/-, contributions were

correspondingly enhanced, and the pensionable salary cap was

raised. The proviso to Paragraph 11(3), which earlier permitted

option to members to contribute on actual wages above the ceiling,

was omitted prospectively. Therefore, the existing members who

had already contributed on higher wages were permitted to

continue subject to additional contribution. It has also been

contended that the option under Paragraph 26(6) of the EPF

Scheme pertains only to membership of the Provident Fund (and by

extension, pension scheme membership under Paragraph 6),

whereas the option under the proviso to Paragraph 11(3) concerns

only computation of pensionable salary. The two operate in distinct

14

fields. The contention that option members under Provident Fund

automatically became entitled to pension on actual wages without

exercising option under Paragraph 11(3) deserves to be rejected.

(c)It has been further contended that in light of judgment of Hon’ble

Supreme Court in R.C. Gupta (supra) an option member who had

entered the Pension Scheme by exercising option under Paragraph

26(6) (read with Paragraph 6 of the unamended EPS) could

exercise the option under the proviso to Paragraph 11(3) at any

time during membership. The Provident Fund provides a one-time

lump sum upon exit, whereas the Pension Scheme ensures lifelong

monthly payments, including benefits to dependents as held by the

Hon’ble Supreme Court in Otis Elevators Employees' Union Society

Registered v. Union of India (2003) 12 SCC 68 and PEPSU Road

Transport Corporation, Patiala v. Mangal Singh (2011) 11 SCC 702.

It has been further contended that Hon’ble Supreme Court

categorically held that employees who retired prior to 01.09.2014

without exercising any option under the proviso to Paragraph 11(3)

of the pre-amended scheme have already exited from the

membership, cannot claim enhanced pension by making

retrospective contributions. Since their contributions were never

subjected to actuarial evaluation under Paragraph 32, the Pension

Fund was structured without factoring such enhanced liability.

Accordingly, transfer of funds from Provident Fund to Pension Fund

in such cases is impermissible and would refer to Paragraph 50.7 of

the judgment which is extracted below :

“The employees who had retired prior to 1st September

2014 without exercising any option under paragraph 11(3)

of the pre-amendment scheme have already exited from

15

the membership thereof. They would not be entitled to the

benefit of this judgment.”

(d)It has been further contended that the Hon’ble Supreme Court

further upheld the wage-based classification of members as

constitutionally valid. Confining Pension Scheme membership to

employees within the lower wage bracket was held to be rational

and consistent with the objective of providing social security to

economically weaker sections. Such classification satisfies the test

of Article 14, as recognised in Krishena Kumar v. Union of India

(1990) 4 SCC 207 and Mafatlal Group Staff Association v. Regional

Commissioner, Provident Fund (1994) 4 SCC 58.

(e)It has been further contended by the EPFO that after attaining the

age of superannuation of 58 years of age the initial pension was

fixed. After addition of weightage benefit, monthly pension has

been increased and arrears of weightage benefit have also been

released from date of commencement of pension. For instance, in

case of petitioner-Lalman Sahu monthly pension on higher wages

was fixed as Rs. 8270/- and difference of arrears Rs. 3,98,645/- for

the period from 14.11.2012 to 30.04.2018 were released. The

pension of the petitioner was originally enhanced to higher wages

not on the basis of Court order, but as per the application made by

the Pensioner stating himself to be eligible for pension on actual

salary vide his declaration/joint option dated 01.12.2017 (received

on 06.12.2017). But in view of the subsequent law laid down by the

Hon’ble Supreme Court, particularly para 50(vii) of the judgment

employees whoever retired prior to 01.09.2014 without exercising

option under para 11(3) of pre-amended scheme shall not be

16

entitled to higher pension.

(f)It has been further contended that since the petitioners stood

retired from service prior to 1st September 2014 without exercising

any option under paragraph 11(3) of the pre amendment scheme,

they have already exited from the membership thereof and the

EPFO is entitled to correct the mistakes as held by the Hon’ble

Supreme Court in case of Union of India and another Vs. Narendra

Singh reported in (2008) 2 SCC 750. It has also been contended

that since the petitioners have attained the age of 58 years and

ceased to be members of the Pension Scheme 1995, as per the

definition contained in Para 2 (ix) of the Employees Pension

Scheme 1995, they are not entitled to grant of higher pension and

therefore, the petitions deserve to be dismissed.

(g)It has been further contended by the EPFO that they have made

arrangements for obtaining application for validation of Option/Joint

Option from pensioners/members as per the Hon'ble Supreme

Court order dated 04.11.2022. Earlier the time was extended upto

03.05.2023. The timeline is being extended upto 26.06.2023 and

lastly upto 11.07.2023 to facilitate and provide ample opportunity to

the pensioners/members so as to ease out any difficulty being

faced by them. Though the petitioners have also prayed for

extension of time for filing application beyond 26.06.2023, the time

was already available upto 11.07.2023 and the petitioners failed to

exercise the same. It has been further contended that the

petitioners on one hand would submit that they have submitted

joint option on 01.12.2017 and on the other hand, they would

submit that timeline should be extended till September because the

17

petitioner needs more time to collect the documents from offices

which reflects that they have not submitted the joint option form, on

this count alone, their prayer deserves to be rejected and

consequently, the writ petitions deserve to be rejected.

7.The employer-Banks have filed return contending that the petitioners

have not raised any specific grievance against them. It is submitted that

the principal grievance of the petitioners is against the Employees’

Provident Fund Organisation. Therefore, the employers refrained from

filing reply to the present writ petitions at this stage.

8.Learned counsel for the petitioners would submit that the matter with

regard to grant of higher pension was agitated before the Hon'ble

Supreme Court in case of R.C. Gupta (supra) wherein Clause 11(3) of

the Pension Scheme was subject matter of scrutiny by the Hon'ble

Supreme Court and the Hon'ble Supreme Court in paragraphs 6 to 10

has examined the scheme which reads as under:-

"6. Clause 11(3) of the Pension Scheme is in the following

terms:

"11. Determination of pensionable salary.- (1)-(2) * * *

(3) The maximum pensionable salary shall be limited to [rupees

six thousand and five hundred/Rs.6,500/-] per month:

[Provided that if at the option of the employer and employee,

contribution paid on salary exceeding [rupees six thousand and

five hundred/Rs.6,500/-] per month from the date of

commencement of this Scheme or from the date salary exceeds

[rupees six thousand and five hundred/Rs.6,500/-] whichever is

later, and 8.33 per cent share of the employers thereof is

remitted into the Pension Fund, pensionable salary shall be

based on such higher salary.]"

7. Reading the proviso, we find that the reference to the date of

commencement of the Scheme or the date on which the salary

exceeds the ceiling limit are dates from which the option

exercised are to be reckoned with for calculation of pensionable

salary. The said dates are not cut-off dates to determine the

18

eligibility of the employer-employee to indicate their option under

the proviso to Clause 11(3) of the Pension Scheme. A somewhat

similar view that has been taken by this Court in a matter coming

from the Kerala High Court, wherein the Special Leave Petition

(C) No. 7074 of 2014 filed by the Regional Provident Fund

Commissioner was rejected by this Court by order dated

31.03.2016. A beneficial Scheme, in our considered view, ought

not to be allowed to be defeated by reference to a cut-off date,

particularly, in a situation where (as in the present case) the

employer had deposited 12% of the actual salary and not 12%

of the ceiling limit of Rs.5,000/- or Rs.6,500/- per month, as the

case may be.

8. A further argument has been made on behalf of the Provident

Fund Commissioner that the appellant employees had already

exercised their option under paragraph 26(6) of the Employees'

Provident Funds Scheme. Paragraph 26(6) is in the following

terms:

"26. Classes of employees entitled and required to join the

fund.- (1)-(5) * * *

(6) Notwithstanding anything contained in this paragraph, an

officer not below the rank of an Assistant Provident Fund

Commissioner may, on the joint request in writing, of any

employee of a factory or other establishment to which this

Scheme applies and his employer, enroll such employee as a

member or allow him to contribute more than [six thousand five

hundred rupees] of his pay per month if he is already a member

of the fund and thereupon such employee shall be entitled to the

benefits and shall be subject to the conditions of the fund,

provided that the employer gives an undertaking in writing that

he shall pay the administrative charges payable and shall

comply with all statutory provisions in respect of such

employee."

9. We do not see how exercise of option under paragraph 26 of

the Provident Fund Scheme can be construed to estop the

employees from exercising a similar option under paragraph

11(3). If both the employer and the employee opt for deposit

against the actual salary and not the ceiling amount, exercise of

option under paragraph 26 of the Provident Scheme is

inevitable. Exercise of the option under paragraph 26(6) is a

necessary precursor to the exercise of option under Clause

11(3). Exercise of such option, therefore, would not foreclose

the exercise of a further option under Clause 11(3) of the

Pension Scheme unless the circumstances warranting such

foreclosure are clearly indicated.

10. The above apart in a situation where the deposit of the

19

employer's share at 12% has been on the actual salary and not

the ceiling amount, we do not see how the Provident Fund

Commissioner could have been aggrieved to file the L.P.A.

before the Division Bench of the High Court. All that the

Provident Fund Commissioner is required to do in the case is an

adjustment of accounts which in turn would have benefitted

some of the employees. At best what the Provident

Commissioner could do and which we permit him to do under

the present order is to seek a return of all such amounts that the

concerned employees may have taken or withdrawn from their

Provident Fund Account before granting them the benefit of the

proviso to Clause 11(3) of the Pension Scheme. Once such a

return is made in whichever cases such return is due,

consequential benefits in terms of this order will be granted to

the said employees."

9.They would further submit that in pursuance of the judgment rendered

by the Hon’ble Supreme Court in R.C. Gupta (supra) and in terms of

Para 5 of the circular dated 23.03.2017, the Employees’ Provident Fund

Organisation directed the employers to invite options from eligible

employees for grant of higher pension on actual salary. In compliance of

the aforesaid directions and the law laid down by the Hon’ble Supreme

Court, the employer called upon the concerned employees to submit

their options. Accordingly, the petitioners submitted their joint options

along with the requisite declarations and also deposited the differential

arrears as required under the Scheme. After due verification of the

option forms submitted by the individual petitioners, the respondent

authorities recalculated the pension on higher wages and issued revised

PPOs granting higher pension in their favour. It is further submitted that

after disposal of the earlier writ petitions filed by the petitioners before

this Hon’ble Court, the respondents resumed payment of higher

pension. However, subsequently, the respondents again discontinued

the higher pension vide order dated 22.06.2023, which is arbitrary and

deserves to be quashed.

20

10.Learned counsel for the petitioners would submit that the petitioners fully

satisfied the statutory requirements as the petitioners were drawing

wages exceeding Rs. 6,500/- per month and their contributions were

duly deposited with the Employees’ Provident Fund Organisation.

Learned counsel would further submit that in view of Para 26(6) of the

Employees’ Provident Fund Scheme, 1952, once contributions on

higher wages were deposited and accepted by the EPF Organisation,

the petitioners stood covered within the ambit of the Scheme. Since

their salary exceeded Rs. 6,500/- and contributions were regularly

made, they were members of the EPF Scheme from the very inception.

As such, in view of amendment in para 11(3) of the Scheme the

petitioners rightly submitted joint option for grant of higher pension to

them and it has been rightly granted to them by the EPF Organisation

but without rhyme and reason, it has been withheld, which is without

any authority of law and liable to be quashed by this Court and would

pray for allowing the writ petitions.

11.They would further submit that the respondents after amendment in

11(3) have already asked the petitioners to deposit difference of PF

contribution beyond the ceiling and accordingly they have deposited the

same as detailed in foregoing paragraphs by this Court, thus they have

already fulfilled the requirement made in Para 26(6) along with judgment

of the Hon'ble Supreme Court in case of Sunil Kumar B. (supra)

particularly 50.8 therefore, would pray for allowing the petitions.

12. It has been further submitted that judgment of the Hon'ble Supreme

Court in case of Sunil Kumar B. (supra) has approved the finding in

RC Gupta (surpra) wherein it has been held that there was no cut-off

date in proviso to 11(3) as it stood before the 2014 amendment and has

21

held that interpretation given to the proviso to para 11(3) prior to 2014

amendment does not require any reconsideration. The Hon’ble

Supreme Court has also held that as there was no cut-off date to be

contemplated prior to 2014 amendment limiting the entitlement of

enhanced pension coverage to those employees only who had already

exercised an option under Clause 11(3) of the unamended scheme

would be contrary to the ratio of the decision of this Court held in R.C.

Gupta (supra). As such, he would submit that judgment of Hon’ble

Supreme Court in case of Sunil Kumar B. (supra) does not help the

respondents. They would further submit that since the matter has

already been settled, it cannot be re-opened and the pension which

petitioners are getting on higher side can be reduced, as such, this

order is in violation of order laid down by the Hon'ble Supreme Court in

case of R.C. Gupta (supra) and even in case of Sunil Kumar B.

(supra) action of the respondent in reducing the pension is per se

illegal. They would further submit that since the respondents in

compliance of the order passed by the Hon’ble Supreme Court has

issued circular dated 23.03.2017 and directed the petitioners to submit

option form and difference of pension which they have deposited and in

furtherance of the order of the Hon’ble Supreme Court in R.C. Gupta the

respondents have given higher pension to them which cannot be

withheld on the count that they have kept in abeyance the circular dated

23.03.2017 vide dated 20.03.2021 as the effect of stay and keeping the

things in abeyance will be effective from the date it has been stayed or

kept in abeyance as per the law laid down by the Hon’ble Supreme

Court, thus, keeping the payment of higher pension in abeyance is

illegal. They would further submit that the compliance of order of the

22

Hon’ble Supreme Court cannot be wiped out or withdrawn in view of

subsequent decision of the Hon’ble Supreme Court unless so specified.

In the present case, there is no such circumstance, as such abeyance

of higher pension suffers from perversity, illegality and arbitrariness on

the part of EPF Organisation.

13. To substantiate their submission they would refer to judgment of R.C.

Gupta (supra), Sunil Kumar B. (supra), Punjab and Haryana At

Chandigarh in case of Inderjit Singh Kaknian and Others Vs. Union

of India and Others (para 25) and Neelima Srivastava vs. The State

of Uttar Pradesh & Others decided on 17.08.2021 in Civil Appeal

No. 4840 of 2021.

14. Mr. Pillai and Mr. Pandey would submit that the Employees’ Provident

Fund Organisation, vide letter/circular dated 20.03.2021 has kept in

abeyance the earlier circular dated 23.03.2017 pending final

adjudication of the SLP in Sunil Kumar B. They would further contend

that the contribution deposited by the petitioners towards higher pension

is less than the total arrears of higher pension already paid to them for

the relevant period for instance petitioner Lalman Sahu has deposited

Rs. 1,87,580/- whereas he has been paid Rs. 3,98,645/- and would

submit that as per the classification of the members for entitlement of

higher pension as referred in para 50.7 to 50.11 the petitioners fall

within the category of para 50.7 of the judgment of Sunil Kumar B.

(supra), as such they are not entitled to get higher pension and would

pray for dismissal of the writ petitions.

15.They would further submit that pursuant to the amendment introduced in

the Employees’ Pension Scheme with effect from 01.09.2014, the

23

amended provisions are applicable only to existing members of the

Scheme, as clarified by the judgment of the Hon’ble Supreme Court in

Sunil Kumar B. (supra). Since the petitioners had already attained the

age of 58 years as such they were no longer existing members on the

relevant date, therefore, they are not entitled to exercise option for

higher pension. It is further submitted that the term “member” has been

defined under Para 2(ix) of the Employees’ Pension Scheme, 1995

according to which ‘Member’ means an employee who becomes a

member of the Employees Pension Fund in accordance with the

Provisions of this Scheme. The explanation Clause further provides that

an employee shall ceased to be member of the pension fund from the

date of attaining 58 years of age or from the date of vesting admissible

benefits under the Scheme, whichever is earlier.

16. They would also refer to ‘pension fund’ as defined in Clause XIV means

the employees pension fund setup under Subsection of 2 of Section 6A

of the Act. They would further submit that as per Para 26(6) of the

Employees’ Provident Fund Scheme, 1952, an employee may opt for

contribution on higher wages only by way of a joint option exercised

along with the employer. Since, no such joint option was exercised

during the petitioners’ service tenure in accordance with the amended

provisions, they cannot seek to exercise such option after retirement.

Learned counsel for the Organization has vehemently argued that since

the petitioners ceased to be members after attaining the age of 58

years, therefore, they cannot be given the benefit of amended provision

of Clause 11(3) of the Employees’ Pension Scheme, 1995. They would

further submit that any interpretation extending the benefit to persons

not expressly covered would amount to re-drafting the statutory scheme

24

which is impermissible within the jurisdiction of this Hon’ble Court and

would refer to judgment passed by the Hon'ble Apex Court in case of

Powergrid Retired Employees' Association (PREA) Vs. Union of

India & Ors. WPS (C) No. 97 of 2025 dated 19.03.2025 which reads

as under:-

"The petitioner-association primarily seeks a review of the

judgment passed by a three Judge Bench of this Court in the case

of Employees Provident Fund Organisation & Anr. vs. Sunil Kumar

B. & Ors." reported in (2023) 12 SCC 701, though Mr. Gopal

Sankaranarayanan, learned senior counsel for the petitioner-

association would argue that this is not so, and they are only

seeking implementation the directions given by this Court in the

case of "R.C. Gupta & Ors. vs. Regional Provident Fund

Commissioner, Employees Provident Fund Organisation & Ors."

reported in (2018) 14 SCC 809, which has been upheld in Sunil

Kumar B (supra). All the same, this argument is totally

misconceived since admittedly, the employees who are being

represented by the petitioner-association have been held to be

ineligible for the reason that they had retired prior to 01.09.2014,

without exercising their option under the pre-amendment

Scheme/Employees' Pension Scheme, 1995 as it stood prior to the

amendment in 2014. In fact, this position has been clarified by this

Court in Sunil Kumar B (supra) and the relevant excerpts are

reproduced herein as under:-

"50. We accordingly hold and direct:

50.7. The employees who had retired prior to 1-9-2014 without

exercising any option under Para 11(3) of the pre-amendment

Scheme have already exited from the membership thereof.

They would not be entitled to the benefit of this judgment.

50.8 The employees who have retired before 1-9-2014 upon

exercising option under Para 11(3) of the 1995 Scheme shall

be covered by the provisions of Para 11(3) of the Pension

Scheme as it stood prior to the amendment of 2014.

(emphasis provided)

In view of the fact that it is an admitted position that these

employees have retired prior to 01.09.2014 & that too without

exercising their option, we see no reason to entertain this petition

in exercise of our jurisdiction under Article 32 of the Constitution of

India.

The present petition is, accordingly, dismissed along with

pending application(s), if any. "

17.On the above factual and legal matrix the respondents would pray for

dismissal of the writ petitions.

25

18.I have heard learned counsel for the parties and perused the record with

utmost circumspection.

19.The issue involved in the case is “whether the benefit accrued to the

petitioners in pursuance of circular dated 23.03.2017 in furtherance of

order passed by the Hon'ble Supreme Court in R.C. Gupta and in

subsequent judgment affirming the same and even there is no

withdrawal of the circular by the E.P.F. Organization, action of the

respondent Organization in reducing the pension can be said to be legal

and justified?

20.To ascertain the issue involved in the matter, it is expedient for this Court

to go through the provisions of relevant provisions which are extracted

below :-

Para 2(ix) and 11 of the Employees' Pension Scheme, 1995 read as

under:

"2(ix) "member" means an employee who becomes a member

of the Employees' Pension Fund in accordance with the

provisions of this Scheme;

[Explanation.- An employee shall cease to be the member

of Pension Fund from the date of attaining 58 years of age or

from the date of vesting admissible benefits under the

Scheme, whichever is earlier.]

11. Determination of Pensionable Salary.- (1) The

pensionable salary shall be the average monthly pay drawn in

any manner including on piece rate basis during contributory

period of service in the span of sixty months preceding the

date of exit from the membership of the Pension Fund and the

pensionable salary shall be determined on pro-rata ·basis for

the pensionable service up to the 1st day of September, 2014,

subject to a maximum of six thousand and five hundred

rupees per month, and for the period thereafter at the

maximum of fifteen thousand rupees per month :

Provided that if a member was not in receipt of full pay during

the period of sixty months preceding the day, he ceased to be

the member of the Pension Fund, the average of previous

26

sixty months full pay drawn by him during the period for which

contribution to the pension fund was recovered, shall be

considered as pensionable salary for calculating pension.

(2) If during the said span of 60 months there are non-

contributory periods of service including cases where the

member has drawn salary for a part of the month, the total

wages during the 60 months span shall be divided by the

actual number of days for which salary has been drawn and

the amount so derived shall be multiplied by 30 to work out

the average monthly pay.

(3) The maximum pensionable salary shall be limited to fifteen

thousand rupees per month.

(4) The existing members as on the 1st day of September,

2014, who at the option of the employer and employee, had

been contributing on salary exceeding six thousand and five

hundred rupees per month, may on a fresh option to be

exercised jointly by the employer and employee continue to

contribute on salary exceeding fifteen thousand rupees per

month and the pensionable salary for the existing members

who prefer such fresh option shall be based on the higher

salary:

Provided that the aforesaid members have to contribute at the

rate of 1.16 per cent. [***] on salary exceeding fifteen

thousand rupees as an additional contribution from and out of

the contributions payable by the employees for each month

under the provisions of the Act or the rules made thereunder:

Provided further that the fresh option shall be exercised by the

member within a period of six months from the 1st day of

September, 2014:

Provided also that the period specified in the second proviso

may, on sufficient cause being shown by the member, be

extended by the Regional Provident Fund Commissioner for a

further period not exceeding six months:

Provided also if no option is exercised by the member within

such period (including the extended period), it shall be

deemed that the member has not opted for contribution over

wage ceiling and the contributions to the Pension Fund made

over the wage ceiling in respect of the member shall be

diverted to the Provident Fund account of the member along

with interest as declared under the Employees' Provident

Funds Scheme from time to time."

21.Section 2(j) and 2(kB) of the Employees' Provident Funds and

Miscellaneous Provisions Act, 1952 reads as under:

27

"2(j) "member" means a member of the Fund;

2(kB) "Pension Scheme" means the Employees' Pension

Scheme framed under sub-section (I) of section 6A"

22.Para 26 of the Employees' Provident Funds Scheme, 1952, reads as

under:

"Membership of the Fund

26. Classes of employees entitled and required to join the

fund

(1) (a) Every employee employed in or in connection with the

work of a factory or other establishment to which this scheme

applies, other than an excluded employee, shall be entitled

and required to become a member of the Fund from the day

this paragraph comes into force in such factory or other

establishment.

(b) Every employee employed in or in connection with the

work of a factory or other establishment to which this Scheme

applies, other than an excluded employee, shall also be

entitled and required to become a member of the fund from

the day this paragraph comes into force in such factory or

other establishment if on the date of such coming into force,

such employee is a subscriber to a provident fund maintained

in respect of the factory or other establishment or in respect of

any other factory or establishment (to which the Act applies)

under the same employer:

Provided that where the Scheme applies to a factory or other

establishment on the expiry or cancellation of an order of

exemption under section 17 of the Act, every employee who

but for the exemption would have become and continued as a

member of the Fund, shall become a member of the Fund

forthwith.

(2) After this paragraph comes into force in a factory or other

establishment, every employee employed in or in connection

with the work or that factory or establishment, other than an

excluded employee, who has not become a member already

shall also be entitled and required to become a member of the

Fund from the date of joining the factory or establishment.

(3) An excluded employee employed in or in connection with

the work of a factory or other establishment, to which this

Scheme applies shall, on ceasing to be such an employee, be

entitled and required to become a member of the Fund from

the date he ceased to be such employee.

(4) On re-election of an employee or a class of employees

exempted under paragraph 27 or paragraph 27-A to join the

Fund or on the expiry or cancellation of an order under that

paragraph, every employee shall forthwith become a member

thereof.

(5) Every employee who is a member of a private provident

28

fund maintained in respect of an exempted factory or other

establishment and who but for exemption would have become

and continued as a member of the fund shall, on joining a

factory or other establishment to which this Scheme applies,

become a member of the fund forthwith.

(6) Notwithstanding anything contained in this paragraph [an

officer not below the rank of an Assistant Provident Fund

Commissioner] may, on the joint request in writing, of any

employee of a factory or other establishment to which this

Scheme applies and his employer, enroll such employee as a

member or allow him to contribute more than rupees [fifteen

thousand rupees] of his pay per month if he is already a

member of the Fund and thereupon such employee shall be

entitled to the benefits and shall be subject to the conditions of

the Fund, provided that the employer gives an undertaking in

writing that he shall pay the administrative charges payable

and shall comply with all statutory provisions in respect of

such employee."

23.From the records of the case, it is quite vivid that the Ministry of Labour

& Employment has amended the Employees Pension Scheme by

amending Para 11(3) of the Scheme and deleted the proviso clause

which confines the limitation of Rs. 6500/- with effect from 01.09.2014

and now limit has been enhanced to maximum contribution to Rs.

15,000/-. By the said amendment the Ministry of Labour and

Employment have also amended Clause 11(4) which provides that

existing members as in the 1st day of September, 2014, who at the

option of the employer and employee, had been contributing on salary

exceeding six thousand and five hundred rupees per month, may on a

fresh option to be exercised jointly by the employer and employee

continue to contribute on salary exceeding fifteen thousand rupees per

month and the pensionable salary for the existing members who prefer

such fresh option shall be based on the higher salary. Clause 11(4)

further provides that the fresh option shall be exercised by the member

within a period of six months from the 1st day of September, 2014.

Hon’ble Supreme Court in case of R.C. Gupta (supra) has already held

that under the old Scheme there was no such time limit for submission

29

of option, therefore, as per Clause 11(3) of the Pension Scheme it would

not foreclose the exercise of a member to exercise such option and the

Hon’ble Supreme Court has also held that the Provident Fund

Commissioner what is required to do in the case is that an adjustment of

account which in turn would have benefitted some of the employees and

also permitted the Provident Fund Commissioner to seek a return of all

such amount that the employees concerned may have taken or

withdrawn from their Provident Fund account before granting them the

benefit of the proviso Clause 11(3) of the Pension Scheme. Hon’ble

Supreme Court has further held that once such a return is made in

whichever cases, return is due, consequential benefits will be granted to

the said employees.

24.In pursuance of the direction of the Hon’ble Supreme Court the

respondents have issued circular dated 23.03.2017, directed the

employer and employee to submit joint option form for granting higher

pension and also directed to deposit the PF contribution which has been

withdrawn by the employees, accordingly, the petitioners have

submitted the joint option form as well as additional PF amount which

has been withdrawn by them as detailed above. Thereafter, the

petitioners were given higher pension with effect from their date of

retirement.

25. The issue was again agitated before the Hon’ble Supreme Court in case

of Sunil Kumar B. (supra) wherein the Hon’ble Supreme Court has

approved the finding with regard to fact that there was no cut off date to

be contemplated prior to 2014 amendment and limiting the entitlement

of enhanced pension coverage those employees only who had already

exercised an option under Clause 11(3) of the unamended Scheme

30

would be contrary to the ratio of the case of R.C. Gupta (supra) and

thereafter, they have categorized the employees who can be given the

benefits of higher pension from paragraph 50.1 to 50.11.

“50. We accordingly hold and direct:

50.1 The provisions contained in the Notification No. G.S.R.

609(E) dated 22-8-2014 are legal and valid. So far as present

members of the fund are concerned, we have read down

certain provisions of the scheme as applicable in their cases

and we shall give our findings and directions on these

provisions in the subsequent sub-paragraphs.

50.2 Amendment to the Pension Scheme brought about by

Notification No. G.S.R. 609(E) dated 22-8-2014 shall apply to

the employees of the exempted establishments in the same

manner as the employees of the regular establishments.

Transfer of funds from the exempted establishments shall be

in the manner as we have already directed.

50.3 The employees who had exercised option under the

proviso to Paragraph 11(3) of the 1995 Scheme and continued

to be in service as on 1-9-2014, will be guided by the

amended provisions of Paragraph 11(4) of the Pension

Scheme.

50.4 The members of the Scheme, who did not exercise

option, as contemplated in the proviso to Paragraph 11(3) of

the Pension WScheme (as it was before the 2014

Amendment) would be entitled to exercise option under

Paragraph 11(4) of the post amendment Scheme. Their right

to exercise option before 1-9-2014 stands crystalised in the

judgment of this Court in the case of R.C. Gupta (supra). The

Scheme as it stood before 1-9-2014 did not provide for any

cut-off date and thus those members shall be entitled to

exercise option in terms of Paragraph11(4) of the Scheme, as

it stands at present. Their exercise of option shall be in the

nature of joint options covering pre-amended Paragraph 11(3)

as also the amended Paragraph 11(4) of the Pension

31

Scheme.

50.5 There was uncertainty as regards validity of the post

amendment Scheme, which was quashed by the aforesaid

judgments of the three High Courts. Thus, all the employees

who did not exercise option but were entitled to do so but

could not due to the interpretation on cut-off date by the

authorities, ought to be given a further chance to exercise

their option. Time to exercise option under Paragraph 11(4) of

the Scheme, under these circumstances, shall stand extended

by a further period of four months. We are giving this direction

in exercise of our jurisdiction under Article 142 of the

Constitution of India.

50.6 Rest of the requirements as per the amended provision

shall be complied with.

50.7 The employees who had retired prior to 1-9- 2014 without

exercising any option under Paragraph 11(3) of the pre-

amendment Scheme have already exited from the

membership thereof. They would not be entitled to the benefit

of this judgment.

50.8 The employees who have retired before 1-9-2014 upon

exercising option under Paragraph 11(3) of the 1995 Scheme

shall be covered by the provisions of the Paragraph 11(3) of

the Pension Scheme as it stood prior to the amendment of

2014.

50.9 The requirement of the members to contribute @ 1.16%

of their salary to the extent such salary exceeds Rs.15000/

per month as an additional contribution under the amended

scheme is held to be ultra vires the provisions of the 1952 Act.

But for the reasons already explained above, we suspend

operation of this part of our order for a period of six months.

We do so to enable the authorities to make adjustments in the

scheme so that the additional contribution can be generated

from some other legitimate source within the scope of the Act,

which could include enhancing the rate of contribution of the

employers. We are not speculating on what steps the

32

authorities will take as it would be for the legislature or the

framers of the scheme to make necessary amendment. For

the aforesaid period of six months or till such time any

amendment is made, whichever is earlier, the employees’

contribution shall be as stop gap measure. The said sum shall

be adjustable on the basis of alteration to the scheme that

may be made.

50.10 We do not find any flaw in altering the basis for

computation of pensionable salary.

50.11 We agree with the view taken by the Division Bench in

the case of R.C. Gupta (supra) so far as interpretation of the

proviso to Paragraph 11(3) (pre-amendment) Pension

Scheme is concerned. The fund authorities shall implement

the directives contained in the said judgment within a period of

eight weeks, subject to our directions contained earlier in this

paragraph.”

26.From perusal of paragraph 50.7 it is quite vivid that this clause is

applicable to those employees who have retired prior to 01.09.2014

without exercising any option under para 11(3) of the pre-amended

Scheme have already existed from the membership thereof.

The term “any” has been defined in the Cambridge Dictionary

to mean “some, or even the smallest amount or number of.” As such the

word “any” has wide amplitude may mean “even a single” or “none

whatsoever.”

In the present context, the expression “without exercising any

option” clearly contemplates a situation where no option at all was

exercised under paragraph 11(3) of the pre-amended Scheme.

27.Since, the petitioners have already submitted option before retirement

upon exercising option under para 11(3) of the pre-amended Scheme

1995, therefore, the case of the petitioners will be governed by para

33

50.8 of the judgment and not by 50.7 which has already been extracted

above. Therefore, the petitioners are entitled to get higher pensions as

they were already granted by the respondents in pursuance of judgment

passed by the Hon’ble Supreme Court in case of R.C. Gupta (supra)

and their own circular dated 23.03.2017. Consequently, the finding

recorded by the respondents that petitioners are not eligible to higher

pension on the strength of the documents to be submitted by them as

per the judgment of the Hon’ble Supreme Court and circular issued by

the department, is quashed. Consequently, the contention of the

respondents that the petitioners had retired prior to 1st September 2014

without exercising any option under paragraph 11(3) of the pre-

amendment scheme have already exited from the membership thereof

and the EPFO is entitled to correct the mistakes, is misconceived as the

petitioners have already submitted option before their retirement and

their case is covered by the paragraph 50.8 of the judgment not para

50.7 of the judgment.

28.The judgment in case of Narendra Singh (supra) is not applicable in the

present facts of the case as the Hon’ble Supreme Court in case of R.C.

Gupta (supra) has held that there is no time period for submission of

option form in the original scheme, therefore, it cannot be allowed to

insert by the amendment in the Scheme. The judgment of R.C. Gupta

has been affirmed in subsequent judgment of Sunil Kumar B. as such it

cannot be held that by mistake they have granted the benefits.

Therefore, the submission of the respondents that they can rectify the

mistake deserves to be rejected as the grant of higher pension is in

conformity with the law laid by the Hon’ble Supreme Court.

29.Further reliance of the respondents in case of Krishena Kumar (supra).

34

The judgment is distinguishable as in the pension scheme framed by

the Railways authorities there is a Railways Contributory Provident

Fund Scheme. The said scheme was before 1957 and in the year 1957,

the said scheme was replaced by pension scheme in the year 1957 and

employees who entered Railway service on or after 1957 were

automatically covered by the Railway Pension Scheme. The employees

who were already in service on 1

st

April, 1957 had to submit an option

and if they have not submitted the option they are deemed to be

members of pension scheme, as such, a cutoff date was prescribed

whereas in the Provident Fund Pension Scheme, 1995 there is no cutoff

date as held by the Hon’ble Supreme Court in case of R.C. Gupta and

Sunil Kumar B. (supra).

30.So far as judgment of Otis (supra) is concerned, in that case the EPF

Scheme 1995 was challenged which has been dismissed by the Hon’ble

Supreme Court and held that the EPF Act is social welfare legislation

and if legislation is not patently arbitrary, the Hon’ble Supreme Court will

not monitor implementation of such policy unless the same is

discriminatory and arbitrary. Since the scheme is for the welfare of the

employees, the same cannot be held to be violative of Constitution of

India. So far as this legal position is not in dispute, even otherwise in the

present case there is no challenge to scheme but its implementation

was sought as per the judgment of Hon’ble Supreme Court in case of

R.C. Gupta (supra).

31.Further reliance of the respondents in case of PEPSU Road Transport

Corporation (supra), wherein the issue raised in that case is as per

Regulation 4, the condition for exercise of the option on or before

15.12.1992 by an employee in order to avail the pensionary benefit

35

under the scheme. Subsequently, the corporation has also extended

this period by 3 months, still the employees had not exercised any

option for availing the benefits under the pension scheme and they were

granted all the benefits under the CPF and the Gratuity without any

objection or protest. However, on 01.06.2002, after merely 10 years,

from the retirements, the respondent filed a suit for declaration of

entitlement to pension and other benefits in the Court of Civil Judge,

Senior Division, Bhatinda. This is not the situation in the present case

as the petitioners immediately after judgment of Hon’ble Supreme Court

in R.C. Gupta and circular issued by the department itself submitted

option. This case is also distinguishable on the facts also as in the case

in hand, no cutoff date has been prescribed under the original scheme.

32. One of the contentions advanced by the learned counsel for the EPF

Organisation is that the Organisation has paid an amount exceeding

what was deposited by the petitioners and, therefore, they are facing

difficulties in making further higher payments. This contention is

contrary to the record as the petitioners have deposited the provident

fund amount received by them, and the EPF Organisation has paid

them arrears arising on account of revision of pension. For instance,

petitioner Lalman Sahu deposited a sum of Rs. 1,87,580/- towards the

provident fund amount received by him. Thereafter, he was paid Rs.

3,98,645/- towards differential arrears of pension for 65 months, from

14.11.2012 to 30.04.2018, over and above the lower pension already

paid. As such both the transactions relate to different heads. Thus, the

payment made by the EPF Organisation represents arrears of pension

lawfully due and not any excess return of the deposited amount. It

cannot, therefore, be accepted that the respondents have returned more

36

than what was deposited by the petitioners. Accordingly, the said

contention is rejected.

33.Further contention of the respondents is that they have kept the

implementation of grant of higher pension in abeyance as the matter in

case of Sunil Kumar B. (supra) was pending before the Honble

Supreme Court, though the Hon’ble Supreme Court while disposing of

the case of Sunil Kumar B. (supra) has directed the respondents to

implement the directives contained in the judgment within a period of 8

weeks subject to direction contained in aforesaid paragraphs vide its

judgment dated 22.12.2022. Despite that, the respondents have not

granted the higher pension to the petitioners, accordingly direction is

issued to them to restore the higher pension forthwith.

34.The arrears, if any, arising on account of reduction of pension shall be

calculated and released to the petitioners within a period of 90 days

from the date of receipt of a certified copy of this order. In case of

default, the amount shall carry interest at the rate of 6% per annum from

the date it becomes due till actual payment is made.

35.With the aforesaid observation and direction, the impugned orders

whereby the pension of the petitioners has been reduced, are hereby

quashed and the bunch of these Writ Petitions (S) is allowed.

Sd/-

(Narendra Kumar Vyas)

Judge

Bhumika/Kishore

HEAD NOTE

If an Employee exercised any option under paragraph 11(3) of the

pre-amended Employees’ Pension Scheme, 1995 prior to retirement, he is

eligible for higher pension as there is no cut-off date under the original

Scheme to opt for higher pension.

नि

र्णय सार

यदिकिसीकर्मचारीने सेवानिवृत्तिसे पूर्वकर्मचारी पेंशनयोजना

, 1995 (

संशोधनपूर्व

) क

े

पैरा

11(3)

के अंतर्गतकिसी

भी

विकल्पका प्रयोगकिया है

,

तो वह उच्च पेंशनप्राप्तकरनेका

अधिकारी है

,

क्योंकिमूल योजनाके अंतर्गत उच्च पेंशनकेलिएविकल्प चुनने हेतुकोईकट

-ऑफ

तिथिनिर्धारितनहींथी।