This order disposes of a writ petition by 54 retired employees seeking pensions under EPS 95. Relying on apex court directions, the court held petitioners entitled to benefits and directed respondents to act within three months.
Respondents to comply with apex court directions within three months; stay applications disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6465/2019
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About 66 Years, Resident Of 2/95, Vidhyadhar Nagar, Jaipur.
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Renwal, Jaipur.
----Petitioners
----Respondents
For Petitioner(s) : Mr. Kunal Kant Rawat with Ms. Radhika Meharwal For Respondent(s) : Mr. Tej Prakash Sharma
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Order
01/05/2023
“It is, therefore humbly prayed that
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(i) the writ petition of the petitioners may kindly allowed / accepted.
(ii) By an appropriate order or direction the order dated 31.05.2017 may kindly be quashed and set aside.
(iii) By an appropriate Writ order or direction, the respondents be directed that the petitioners and all other similarly situated retired employees including the widows getting pension under EPS are entitled to get pension under the EPS, 95 on the basis of pensionable salary reckoned in accordance with their actual salary from the date of their joining the pension scheme under the Act of 1952 in terms of law laid down by the Hon’ble Apex Court judgment dated 04.10.2016.
(iv) by an appropriate writ or mandamus, direct the respondents No.-4 & 5 to transfer to the pension account of respective members of the petitioners and all other similarly situated retired employees including the widows of the retired employees getting pension under EPS, 95 from their respective Provident Fund Account, the arrears of contribution payable by them based on their actual salary i.e. Basic Pay + DA, ignoring the ceiling limit after completing necessary formalities in this regard as per law.
(v) by an appropriate order or direction the respondents be directed to seek a return of all such amounts that the members of Petitioners and all other such retired employees have taken or withdrawn from the provident fund account or else adjust such recoverable amount from the arrears which become due and payable to the petitioners, so as to grant consequential benefits to the members of the petitioners and all such other retired employees;
Any other order direction relief which may be deemed fit in the circumstances may also kindly be passed in favour of the members of the petitioners in the larger interest of equity justice of law pending the disposal of the Writ Petition.”
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Court in the case of The Employees Provident Fund Organisation and Anr. Etc. vs. Sunil Kumar B. & Ors. Etc. (Special Leave Petition (c) Nos.8658-8659/2019 on 04.11.2022 by issuing following directions in Para No.44 which reads as under:
“44. We accordingly hold and direct:-
(i) The provisions contained in the notification no. G.S.R. 609(E) dated 22nd August 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 subparagraphs.
(ii) Amendment to the pension scheme brought about by the notification no. G.S.R. 609(E) dated 22nd August 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.
(iii) 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 1st September 2014, will be guided by the amended provisions of paragraph 11(4) of the pension scheme.
(iv) The members of the scheme, who did not exercise option, as contemplated in the proviso to paragraph 11(3) of the pension scheme (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 1st September 2014 stands crystalised in the judgment of this Court in the case of R.C. Gupta (supra). The scheme as it stood before 1st September 2014 did not provide for any cut-off date and thus those members shall be entitled to exercise option in terms of paragraph 11(4) of the scheme, as it stands at present. Their exercise of
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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 scheme.
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.
Rest of the requirements as per the amended provision shall be complied with.
(v) 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 the membership thereof. They would not be entitled to the benefit of this judgment.
(vi) The employees who have retired before 1st September 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.
(vii) The requirement of the members to contribute at the rate of 1.16 per cent 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
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the 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.
(viii) We do not find any flaw in altering the basis for computation of pensionable salary.
(ix) 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.
(x) The Contempt Petition (C) Nos.1917-1918 of 2018 and Contempt Petition (C) Nos. 619-620 of 2019 in Civil Appeal Nos. 10013-10014 of 2016 are disposed of in the above terms.”
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also stand disposed of.
(ANOOP KUMAR DHAND),J
KuD/10
3 issues framed by the court
Whether petitioners are entitled to benefits under Supreme Court directions in EPC vs Sunil Kumar.
Whether respondents must comply with Apex Court directions regarding pension arrears.
Whether pending stay applications stand disposed of.
Colour shows how this judgement treated each authority
The Employees Provident Fund Organisation and Anr. Etc. vs. Sunil Kumar B. & Ors. Etc.Relied on¶100
The Employees Provident Fund Organisation and Anr. Etc. vs. Sunil Kumar B. & Ors. Etc. (Special Leave Petition (c) Nos.8658-8659/2019)
2 provisions across 2 enactments
Satya Narain Sharma
Union Of India
Anoop Kumar Dhand
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
