Dilip Kumar Khandwe Vs Employees Provident Fund Organization

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SYED ROSHAN ZAMIR ALI

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Digitally signed by SYED ROSHAN ZAMIR ALI

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2026:CGHC:17320 NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 7986 of 2024

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R.K. Chalisgaonkar S/o Shri Late Krishnarao Chalisgaonkar Aged About 72 Years R/o C/92, Shri Ji Madhuban Amlidih, Rajendra Nagar, Raipur, District- Raipur, Chhattisgarh

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... Petitioner

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versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block-D, Scheme-32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur (Chhattisgarh)

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Chhattisgarh State Co-Operative Dairy Federation Through Its Managing Director, Urla, Post Bmy Charouda, DistrictDurg, Chhattisgarh

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Additional Central Provident Fund Commissioner (Mpcg) Employees Provident Fund Organisation, Zonal OfficeBhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, DistrictBhopal (M.P.)

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... Respondents

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WPS No. 7731 of 2024

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Pradeep Kumar Sur S/o Shri N.K. Sur Aged About 72 Years R/o Village - Bhagutola, Kawardha Rajnandgaon Road Kawardha District - Kabirdham (C.G.)

--- Petitioner

versus

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Employees Provident Fund Organization Through Commissioner, Regional Office Block -D, Scheme - 32, Indira Gandhi Commercial Complex, Pandri Raipur District - Raipur (C.G.)

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Chhattisgarh State Co- Operative Dairy Federation Through Its Managing Director, Urla Post Bmy Charouda, District - Durg (C.G.)

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Additional Central Provident Fund Commissioner (M.P.C.G.) Employees Provident Fund Organization Zonal Office Bhavishya Nidhi Bhawan 59 Arera Hills Bhopal, District - Bhopal (M.P.)

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--- Respondent(s)

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WPS No. 8148 of 2024

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Bhagwati Verma S/o Chowa Ram Verma Aged About 68 Years R/o Village Kandul, Sunder Nagar Raipur District - Raipur (C.G.)

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--- Petitioner

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Versus

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Employees Provident Fund Organization Through Commissioner Regional Office Block- D Scheme - 32 Indira Gandhi Commerical Complex Pandri Raipur District - Raipur (C.G.)

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Chhattisgarh State Co- Operative Dairy Federation Through Its Managing Director Urla Post Bmy Charouda District - Durg (C.G.)

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Additional Central Provident Fund Commissioner (Mpcg) , Employees Provident Fund Organisation Zonal Office - Bhavishya Nidhi Bhawan 59 Arera Hill Bhopal District - Bhopal (Mp)

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--- Respondents

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WPS No. 8165 of 2024

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Kiran Sharma S/o Shri Uttam Prasad Sharma Aged About 69 Years R/o H.I.G.- 1/1 To 11, Deen Dayal Upadhyay Nagar, Raipur, District : Raipur, Chhattisgarh

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--- Petitioner

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Versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block- D, Scheme- 32, Indira Gandhi Commercial Complex, Pandri, Raipur, District : Raipur, Chhattisgarh

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Chhattisgarh State Co-Operative Dairy Federation Through Its Managing Director, Urla, Post B.M.Y. Charouda, District : Durg, Chhattisgarh

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Additional Central Provident Fund Commissioner (M.P.C.G.) Employees Provident Fund Organisation, Zonal OfficeBhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, District : Bhopal, Madhya Pradesh

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--- Respondents

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WPS No. 8138 of 2024

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Komal Lal Patel S/o Shri Jhaduram Patel Aged About 68 Years R/o House No. 111, Durgapara, Santoshi Nagar, Durga Mandir Ke Pass, Raipur, District - Raipur, C.G.

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--- Petitioner

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Versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block- D, Scheme-32, Indira Gandhi, Block-D, Scheme-32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur, C.G.

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Chhattisgarh State Co-Operative Dairy Federation Through Its Managing Director, Urla, Post B M Y Charouda, DistrictDurg, C.G.

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Additional Central Provident Fund Commissioner (M P C G) Employees Provident Fund Organisation, Zonal OfficeBhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, DistrictBhopal, M.P.

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--- Respondents

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WPS No. 8155 of 2024

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Sunil Koltey S/o Shri Dinkar Rao Koltey Aged About 71 Years R/o 204, Balaji Homes Vishal Nagar, Raipur, District Raipur, Chhattisgarh.

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--- Petitioner

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Versus

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Employees Providen Fund Organization Through Commissioner, Regional Office, Block -D, Scheme-32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur, Chhattisgarh.

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Chhattisgarh State Co-Operative Dairy Federation, Through Its Managing Director, Urla, Post Bmy Charouda, District - Durg, Chhattisgarh.

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Additional Central Provident Fund Commisstioner (Mpcg), Employees Provident Fund Organisation, Zonal Office - Bhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, District - Bhopal (M.P.).

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--- Respondents

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WPS No. 7993 of 2024

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Mahendra Kumar Bhanwar S/o Shri Ram Prasad Bhanwar Aged About 70 Years R/o Patel Gali, Mahamai Para, Purani Basti, Raipur, District- Raipur, C.G.

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--- Petitioner

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versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block- D, Scheme-32, Indira

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Gandhi Commercial Complex, Pandri, Raipur, District Raipur, C.G

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Chhattisgarh State Co-Operative Dairy Federation Through Its Managing Director, Urla, Post B M Y Charouda, DistrictDurg, C.G.

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Additional Cenral Provident Fund Commissioner (M P C G) Employees Provident Fund Organisation, Zonal OfficeBhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, DistrictBhopal, M.P.

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--- Respondent(s)

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WPS No. 8139 of 2024

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B. Bhaskar Reddi S/o B. Venkat Swamy Aged About 68 Years R/o Panchshil Nagar West Ward No. 17, Bmy Charoda Durg District - Durg (C.G.)

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--- Petitioner

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Versus

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Employee Provideng Fund Through Commissioner Regional Office Block - D Scheme - 32 Indira Gandhi Commercial Complex Pandri Raipur District - Raipur (C.G.)

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Chhattisgarh State Co- Operative Dairy Federation Through Its Managing Director Urla Post Bmy Charouda District - Durg (C.G.)

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Additional Central Provident Fund Commissioner (Mpcg) Employees Provident Fund Organisation Zonal Office Bhavishya Nidhi Bhawan 59 Arera Hill Bhopal District - Bhopal (M.P.)

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--- Respondents

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WPS No. 7997 of 2024

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C.L. Suman S/o Shri Brij Lal Suman Aged About 73 Years R/o Mig B - 03, Sahyog Park, Mahavir Nagar, Raipur, District Raipur Chhattisgarh.

--- Petitioner

versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block - D, Scheme - 32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur Chhattisgarh.

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Chhattisgarh State Co - Operative Dairy Federation Through Its Managing Director, Urla, Post Bmy Charouda, District Durg Chhattisgarh.

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Additional Central Provident Fund Commissioner (Mpcg) Employees Provident Fund Organisation, Zonal Office - Bhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, District Bhopal (M.P.).

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Respondent(s)

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WPS No. 8009 of 2024

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Dilip Kumar Khandwe S/o Late S. G. Khandwe Aged About 70 Years R/o B-6, Harikishan Kunj, Vasant Corner, Avanti Vihar, Telibandha, Raipur, District - Raipur, C.G.

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--- Petitioner

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versus

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Employees Provident Fund Organization Through Commissioner, Regional Office, Block-D, Scheme-32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur, C.G.

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Chhattisgarh State Co-Operative Dairy Federation Through Its Managing Director, Urla, Post B M Y Charouda, DistrictDurg, C.G.

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Additional Central Provident Fund Commissioner (M P C G) Employees Provedent Fund Organisation, Zonal OfficeBhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, DistrictBhopal, M.P.

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--- Respondents

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WPS No. 8508 of 2024

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V.K. Samuel S/o Shri Saniel Samuel Aged About 69 Years R/o Plot No. 34, New Adarsh Nagar, Potiyakala, Durg, District Durg Chhattisgarh.

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--- Petitioner

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versus

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Employees Provident Fund Organization, Through Commissioner, Regional Office, Block - D, Scheme - 32, Indira Gandhi Commercial Complex, Pandri, Raipur, District Raipur Chhattisgarh.

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Chhattisgarh State Co - Operative Dairy Federation Through Its Managing Director, Urla, Post Bmy Charouda, District Durg Chhattisgarh.

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Additional Central Provident Fund Commissioner (Mpcg) Employees Provident Fund Organisation, Zonal Office - Bhavishya Nidhi Bhawan, 59 Arera Hill, Bhopal, District Bhopal Madhya Pradesh.

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--- Respondents

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WPS No. 8511 of 2024

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Chhedilal Sharma S/o Gayadin Sharma Aged About 70 Years R/o Ward No. 11, Nagar Panchayat Sargaon Tahsil - Pandariya District- Mungeli (C.G.)

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... Petitioner

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versus

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Employees Provident Fund Organization Through Commissioner Regional Office Block - D, Scheme - 32, Indira Gandhi Commercial Complex Pandri Raipur District - Raipur (C.G.)

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Zila Sahkari Kendriya Bank Maryadit Bilaspur Through Chief Executive Officer Bilaspur District - Bilaspur (C.G.)

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... Respondents

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For Petitioner	: Mr. SP Sannat and Mr. Yogesh Sharma, Advocates
For respective Respondents	: Mr. Sunil Pillai, Advocate with Mr. Vishal Sahu, Advocate; Mr. Animesh Pathak,
	Advocate on behalf of Mr. Amrito Das,
	Advocate; Ms. Seema Verma, Advocate

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SB: Hon’ble Mr. Justice Parth Prateem Sahu

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Order on Board

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15.04.2026

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As the issue involved in above writ petitions are inextricably interlinked, therefore, they are heard together and are being decided by way of this common order.

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Common prayer of the petitioners in this bunch of writ petitions, who retired from service prior to 2014, is for grant of pension on the basis of actual salary drawn by them instead of calculating the same on the basis of ceiling fixed on the maximum wages. For the sake of convenience, facts of WPS No.7986/2024 are being referred hereinafter.

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Facts of the case, in brief, are that petitioner was employee of respondent No.2-Federation and retired from service on 08.12.2010 upon attaining age of 58 years. The employees of respondent No.2 are covered by the Employees Provident Funds and Miscellaneous Provision Act, 1952 (for short ‘the Act of 1952’) and the Employees Pension Scheme 1995 (for short ‘the Scheme of 1995’). After retirement, pension of petitioner was fixed at Rs.1745/- per month by respondent No.1. Pursuant to the order passed by Hon’ble Supreme

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Court in RC Gupta & Ors vs Regional Provident Fund Commissioner Employees Provident Fund Organization & Ors, reported in (2018) 14 SCC 809, declaring that there was no cutoff date for exercising option for higher pension in p r oviso to pa r ag r aph 11 (3) of the Scheme of 1995, as it stood before the 2014 amendment, respondent No.1 issued Circular dated 23.3.2017 inviting option from the members who had contributed on higher wages exceeding the statutory wage ceiling of Rs.6500/- to divert 8.33% of the salary exceeding Rs.6500/- to the pension fund with upto date interest as declared under the Scheme of 1952. This circular further mentions about return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them benefits of amended Scheme of 1995.

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Based on the aforementioned Circular dated 23.3.2017, the petitioner applied for revision of his pension and accordingly, pension payable to the petitioner stood revised on 11.10.2018 after obtaining additional contribution of Rs.2,01,096/- from him, which was deposited by petitioner with respondent No.1 on 7.9.2018. Thereafter, petitioner had been receiving Rs.22,265/- as monthly pension, however, respondent No.1 vide order impugned cancelled the revised PPO which was issued in favour of petitioner and has reduced monthly

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pension to Rs.2887/-.

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Learned counsel for petitioner submits that case of petitioner is covered with the decision of Hon’ble Supreme Court in case of R.C. Gupta (supra) wherein Hon’ble Supreme Court has considered that pre-amended provision under Clause 11 (3) of the Employees Pension Scheme which provides no ceiling limit to submit option and further considered that the Scheme of 1995 is a beneficial scheme and therefore, benefit is to be extended. It is also contention of learned counsel for petitioner that initially amount @ 12% is deducted from the salary of petitioner and 12% of actual salary is also contributed by employer. After coming into force of amended provisions and decision in case of RC Gupta (supra), respondent No.1-EPFO issued a circular asking the employees to submit their option for pension under the Scheme of 1952. Accordingly, petitioner submitted option before the employer along with declaration which was forwarded by the employer to respondent No.1. Petitioner was accordingly paid higher pension and arrears of pension from the date of exit from membership. He further contended that by impugned order/letter respondent No.1 has again asked the petitioner to submit documents or certificates showing that he has given option in view of pre-amended provisions of Section 11 (3) of the Scheme of 1995. When

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respondent No.1 stopped higher pension to petitioner, he preferred writ petition bearing WPS No.1981/2022 before the High Court, which was allowed quashing the decision of revision of pension of petitioner and also directed respondent No.1 to take appropriate steps after decision of review petition filed before the Hon’ble Supreme Court in case of The Employees Provident Fund Organization and another vs Sunil Kumar B, reported in (2023) 12 SCC 701 (erroneously mentioned in the order as ‘RC Gupta’). He also submits that in case of Sunil Kumar B (supra) also Hon’ble Supreme Court has observed that exercising of option before 1.9.2014 stands crystallized in case of RC Gupta (supra) and further made observation that 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 Para-11 (4) of the scheme, as it stands at present. In that decision, Hon’ble Supreme Court has extended the time to exercise option under Para 11 (4) of the Scheme by a further period of four months. As petitioner has already submitted option in the year 2018, therefore, petitioner is entitled for benefit of the observation of Hon’ble Supreme Court in case of Sunil Kumar B (supra). Hence, respondent No.1 be directed to again revised the pension of petitioner and to pay higher pension along with arrears.

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Learned counsel for respondent No.1 vehemently opposes submission of learned counsel for petitioner and submits that on the date of decision in case of RC Gupta (supra) as also Sunil Kumar B (supra), petitioner was not member of the Scheme of 1955 as he exited the scheme of pension after attaining age of 58 years much before 1.9.2014 as also retired from service upon attaining age of superannuation, therefore, petitioner cannot be permitted to reap the benefit of judgment of RC Gupta (supra). Hon’ble Supreme Court in case of RC Gupta (supra) does not contemplate exercise of provisions of Paragraph 11(3) of the Scheme of 1995 for a retired employee which otherwise would frustrate the real import of the proviso to Paragraph 11(3), rendering the proviso redundant.

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Benefit of exercise of option which is observed in case of Sunil Kumar B (supra) is only for existing members on 1.9.2014. Referring to Para 50.7 of the decision in Sunil Kumar B (supra), it is submitted that Hon’ble Supreme Court in the aforementioned decision has clarified the position with regard to status of the employees who existed the membership/ scheme or stood retired prior to 1.9.2014.

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He next contended that in Para 50 (7) of decision in Sunil Kumar B (supra), Hon’ble Supreme Court has clearly observed that the employees who had retired prior to

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1.9.2014 without exercising any option under Para 11 (3) of the pre-amended scheme have already exited from the membership thereof and therefore, they would not be entitled to the benefit of this judgment. He also contended that according to the scheme, employee upon attaining age of 58 years exists from the scheme and on that date he is being paid entire deposits along with all other benefits of the scheme. Petitioner has also been granted all such benefits after attaining the age of 58 years and he has enjoyed said benefits. He further submits that under amended para 11.4 of the Scheme of Pension, it is clearly envisaged that benefit is extended only to existing members.

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Referring to definition of ‘member’ given under sub-para (ix) of Para 2 of the Scheme of 1995, he pressed upon explanation appended to Para-2 (ix) to submit that employee after attaining age of 58 years ceases to be a member of pension fund and therefore, subsequent amendment though beneficial to employees cannot be extended to petitioner being ceased to be member of pension scheme and the benefit under the scheme and amended provision will be available only to existing members as on 1.9.2014.

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He next contended that though respondent No.1 has issued circular and given higher pension and arrears thereof, but it was due to mistake as decision of Hon’ble Supreme Court

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could not be understood in appropriate manner. Said mistake was subsequently corrected. He submits that misconception with regard to the provisions as also misunderstanding of decision in case of RC Gupta (supra) is only because the Division Bench of High Court of Kerala has set aside Employees Pension Amendment Scheme 2014. However, amendment brought in Employees Pension Scheme has been held to be valid in case of Sunil Kumar B (supra) in Para 44 (I) by Hon’ble Supreme Court.

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He also contended that retired employees of the Power Grid Corporation have approached Hon’ble Supreme Court for extending benefit of case of RC Gupta (supra), seeking implementation of direction given by Hon’ble Supreme Court in case of RC Gupta (supra) and upheld in Sunil Kumar B (supra), in the said proceeding Hon’ble Supreme Court has observed that the claim as made therein and the arguments to be misconceived. It is further observed that employees therein are ineligible for the reason that they had retired prior to 2014. It is also pointed out that in that case Hon’ble Court has further taken note of the fact that petitioners therein stood retired prior to 1.9.2014 without exercising option under preamended scheme and dismissed the applications. Case of petitioner herein is squarely covered with the aforementioned decision of the Hon’ble Supreme Court.

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I have heard learned counsel for respective parties and perused the documents available in record of writ petition.

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A proviso came to be inserted in Paragraph 11 (3) of the Scheme of 1955 w.e.f. 16.03.1996, whereby an option was given to the employer and employee to contribute beyond ceiling limit i.e. Rs. 6,500/- per month from the date of commencement of the scheme or from the date salary excess Rs.6500/-, whichever is later. Pursuant to above amendment, when some employees covered under the Scheme of 1995 have not been allowed to exercise the option under Section 11 (3) by the provident fund authorities on the ground that the employees who want to contribute beyond ceiling were bound to exercise option within stipulated time and whosoever had not filed option within time is not eligible to contribute beyond the ceiling, they preferred a writ petition before the High Court of Himachal Pradesh, which was decided in favour of petitioner-employees therein, against which an intra court appeal was filed by the Department before the Division Bench and the order passed by learned Single Judge was set aside by the Division Bench upholding the view of the Provident Fund Authority that under the proviso to Clause 11(3) of the Pension Scheme there was a cut-off date. Thereafter the matter went up to the Supreme Court in an appeal, which came to be registered as Civil Appeal (S) No.10013-

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10014/2016 (RC Gupta and others Vs. Regional Provident Fund Commissioner Employees Provident Fund Organization and Others). Said appeal came to be decided on 4.10.2016 and the cut off date which was fixed by the department was set aside. Relevant paragraph of the decision in RC Gupta’s case (supra) is extracted herein below for ready reference:-

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“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.

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Pursuant to judgment in R.C. Gupta’s case (supra), the respondent EPFO vide Circular dated 23.03.2017 invited

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applications for exercising option and the employees as per said judgment returned contribution received from provident fund, they also filed option, which was accepted and acted upon by respondent authorities in terms of provision of Paragraph 11 (3) of the Scheme of 1995. Respondent EPFO thereafter revised pension as well as released arrears to employees across the country. Pension payable to the petitioner herein also stood revised after obtaining additional contribution from the petitioner which was deposited with respondent No.1.

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In the interregnum, respondent No.1 vide Notification dated 22.8.2014, enhanced the wage ceiling from Rs.6,500/- to Rs.15,000/- by amending Para-11 of the Scheme of 1995; deleted the proviso thereto and also inserted sub-para (4) in Para-11, which reads as under:-

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“(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 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]:

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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:

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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:

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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:

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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.”

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13. As per the amendment brought to the Employees Pension Scheme 1995, which came into effect from 01.09.2014, the ceiling of maximum pensionable salary provided in Paragraph 11 (3) was raised to Rs.15,000/- per month. Proviso appended to Paragraph 11 (3) has been deleted with effect from 01.9.2014 and sub-para (4) is introduced in Paragraph 11 which provides that existing members as on 1.9.2014, who at the option of the employer and employee, had been continuing 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 Rs.15,000/- per month and pensionable salary for the existing members who prefer such fresh option shall be based on the higher salary. The option could be

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submitted within further period of six months, in case the authority under the Act found sufficient reasons therefor. This amendment also introduced a deeming clause whereby failure to exercise the option within the stipulated period of six months from 01.09.2014, further extended by six months on showing sufficient cause by the existing member, shall result in automatic exclusion from the benefit of higher pension, with excess contribution being diverted back to Provident Fund.

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Issue of applicability of paragraph 11(4) of the Scheme of 1995, which came into force with effect from 01.09.2014, came up for consideration before the Hon'ble Supreme Court in EPFO & Anr. Vs. Sunil Kumar B. & Ors., (2023) 12 SCC 701. It was observed as under:-

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"50.4. The members of the Scheme, who did not exercise option, as contemplated in the proviso to Para 11(3) of the Pension Scheme (as it was before the 2014 Amendment) would be entitled to exercise option under Para 11(4) of the post amendment Scheme. Their right to exercise option before 1-9-2014 stands crystallized in the judgment of this Court in R.C. Gupta. 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 Para 11(4) of the Scheme, as it stands at present. Their exercise of option shall be in the nature of joint options covering preamended Para 11(3) as also the amended Para

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11(4) of the Pension Scheme.

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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.

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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."

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15. From perusal of above quoted portion of decision in case of Sunil Kumar B (supra) it is clear that the members of the Scheme of 1995, who did not exercise option, as contemplated in the proviso to Para 11(3) of the Scheme of 1995 (as it was before 2014 Amendment) would be entitled to exercise option under Para 11(4) of the post amendment Scheme and the employees who had retired prior to 1-9-2014 without exercising any option under Para 11(3) of the preamendment Scheme have already exited from the membership thereof, they would not be entitled to the benefit of this judgment. In other words, all the employees who without filing option under proviso to Para 11 (3) of the Scheme of 1995 had retired prior to 01.09.2014 but have filed option after the decision of Hon’ble Court in case of R.C.

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Gupta (supra) are not entitled to revised higher pension.

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16. Relying on the observation of Hon’ble Supreme Court in Para 46 (v) and (vi) of the judgment rendered in case of Sunil Kumar B’s case (supra), the respondent No.1 decided that the employees who retired prior to 1.9.2014 without exercising option under Paragraph 11 (3) are not entitled to higher amount of pension. Accordingly, circular dated 29.12.2022 and 20.2.2023 have been issued calling upon the employees to apply online/digitally for validation of their option. Requirements for validation of joint option are that it must contain the proof of remittance of employer’s share in Provident Fund on higher wages exceeding the prevalent wage ceiling of Rs.5,000/6500 and proof of joint option under para 11 (3) as also Para 26 (6) of the Scheme of 1955 duly verified by the employer. Since petitioner-employee, who retired prior to 1.9.2014, did not submit proof of the exercise of joint option under erstwhile para 11 (3) of the Scheme of 1995 and also proof of remittance in provident fund on higher wages exceeding the prevalent wage ceiling despite above repeated circulars, respondent No.1 reopened the case of petitioner-employee and vide impugned order reduced monthly pension of the petitioner.

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Hence, the question arises for determination in this petition is whether an employee, who retired prior to 01.09.2014,

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without having exercised a joint option under the proviso to Paragraph 11 (3) of pre-amendment Scheme of 1995, during his/her service, is entitled to the benefit of higher pension?

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18. The Employees' Pension (Amendment) Scheme, 2014 was notified on 22.8.2014 and brought into force with effect from 01-09-2014. Effect of the amendment in 2014 was that maximum pensionable salary was increased from Rs.6500/to 15000/-; proviso to sub-para (3) of Para 11 enabling members to contribute in excess of the contribution due on the maximum pensionable salary was deleted and a new subpara (4) was added to Para-11 to deal with cases of existing members who had been contributing on actual salary as on 01.09.2014 by providing them an option (to be exercised in the manner prescribed) to continue to pay contributions with reference to their actual salary.

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At this stage, it is necessary to have a look at the definition of ‘existing member’ and ‘member’ provided in the Scheme of 1995. ‘Existing Member’ is defined in Section 2 (vi) of the Scheme of 1995, which reads as under:-

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“(vi) “existing member” means an existing employee who is a member of the Employees’ Family Pension Scheme, 1971.”

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‘Member’ is defined under Section 2 (ix), which reads as under:-

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“(ix) ‘member’ means an employee who becomes a member of the Employees Pension Fund in accordance with the provisions of this Scheme:

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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.”

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From perusal of explanation appended to the definition of ‘member’ given in Para-2 (ix) of the Scheme of 1995 it is clear that, 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. Thus, it is clear that amendment brought in the Scheme of 1995 in the year 2014 by which proviso to Clause 11(3) of the Scheme of 1995 was deleted w.e.f. 01/09/2014 , was in relation to the existing members i.e. those who were in still in service as on 01.09.2014 and not retired. Hence, benefit of proviso cannot be extended to any employee after 01/09/2014 if he had not exercised the option earlier and ceases to be a member of the Pension Fund.

¶175

22. In case of Sunil Kumar B (supra), Hon'ble Supreme Court, while dealing with issue of applicability of amendment made in the year 2014, has held that those employees who had retired prior to 1.9.2014 without exercising any option under paragraph 11 (3) of pre-amended scheme, besides had

¶176

24

¶177

already exited from the membership thereof, they would not be entitled to benefit of the judgment passed in R.C. Gupta's case (supra) nor they would become entitle to the pension scheme (amended) of 2014. It was further held that the existing members of the scheme or those who had not superannuated at the time of coming into force of 2014 amendment, if they had earlier not exercised option in terms of the proviso to paragraph 11 (3) of the Scheme of 1995, they would be entitled to exercise option under paragraph 11 (4) of the post amended scheme.

¶178

23. Recently, in Writ Petition (Civil) No.97 of 2025, parties being Powergrid Retired Employees’ Association (PREA) vs Union of India and others, decided on 19.3.2025, Hon’ble Supreme Court has reiterated that the employees, who retired prior to 01.09.2024 without exercising their option under paragraph 11(3) of the pre-amendment scheme, are not entitled to the benefits of amendment brought in 2014.

¶179

24. In case at hand, from the pleadings and submissions made on behalf of respective parties, it transpires that the petitioner herein retired before 01.09.2014 without exercising the option under Para 11 (3) of the Scheme of 1995. Para 11 (3) of the Scheme of 1995 which relates to joint option for higher contribution for pension funds stood deleted w.e.f. 1.9.2014. Petitioner submitted option admittedly only after decision in

¶180

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¶181

case of R.C. Gupta (supra), in the year 2018. Para 11 (4) of the Scheme of 1995, introduced on 1.9.2014, provides that fresh option shall be exercised by the existing member within a period of six months from 01.09.2014. Petitioner also failed to produce any material before the respondent department or this Court indicating that petitioner submitted option being member under the Scheme or prior to 1.9.2014, under Para 11 (3) of the Scheme of 1995 and pursuant thereto, there was remittance in pension fund on higher wages exceeding the prevalent wage ceiling of Rs.5000-6500/-. Thus, in the considered opinion of this Court, withdrawal of benefit of higher pension of the petitioner on the ground that he had retired prior to 01.09.2014 without filing their option, does not call for any interference in light of decision of Hon’ble Supreme Court in cases of Sunil Kumar B. (supra) and Powergrid Corporation (supra).

¶182

25. For the foregoing reason and discussions, in the considered opinion of this Court, the writ petitions have no merits, the same are liable to be and are hereby dismissed.

¶183

Sd/(Parth Prateem Sahu) Judge

¶184

roshan/-

Dilip Kumar Khandwe v. Employees Provident Fund Organization

Case brief

What is this about?

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Dilip Kumar Khandwe v. Employees Provident Fund Organization

Case brief

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What the court decided

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