AI Insights
The case involves a group of petitioners who challenged certain notifications and amendments related to the Employees' Pension Scheme, 1995, arguing that these were arbitrary and violated the Constitution. The petitioners sought various writs to quash these notifications and to direct the authorities to calculate their pensions based on actual salary contributions rather than a ceiling limit. The respondents, including the Union of India and the Employees Provident Fund Organization, defended the amendments and notifications. The court considered the precedents set by the Supreme Court in similar cases, particularly focusing on the directions given in the case of Sunil Kumar, which addressed similar issues of pension calculation and contributions.
Appeal Details
Counselvise Citation
[2023] 140 COUNSELVISE.COM (IT) 803798 (HC-KARNATAKA)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
04-08-2023
Assessment Year
misc
Judgement Text
"IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2023 BEFORE THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA WRIT PETITION No.5951/2020 (L-PF) BETWEEN: 1. SRI. S.K.PATTANASHETTY AGED ABOUT 73 YEARS, S/O. LATE KRISHNAPPA, NO.168, NHIG D-1 BLOCK, 5TH PHASE, YELAHANKA NEW TOWN, BENGALURU – 560 064. 2. SRI. M.G.TAPAKEER AGED ABOUT 72 YEARS, S/O. LATE GOUSEMODIN, NO.170/2, ‘C’ BLOCK, 20TH CROSS, 7TH MAIN, SAHAKARANAGAR POST, BENGALURU – 560 092. 3. SRI. A.G.LAKSHMIPATHI AGED ABOUT 71 YEARS, S/O. LATE GOPAL RAO, NO.2, 1ST CROSS, HOSAHALLI, VIJAYANAGAR, BENGALURU – 560 040. 4. SMT. P.S.GEETHADEVI AGED ABOUT 70 YEARS, W/O. N. RANGAN, NO.139, 10TH CROSS, 2ND BLOCK, R.T.NAGAR, BENGALURU – 560 032. 5. SRI. L. VEERANNA AGED ABOUT 70 YEARS, S/O. LATE L.KOTEPPA, CHOWDI MANE ENCLAVE, - 2 - NO.7, HONNAMMA LAYOUT, NEAR GANESH TEMPLE, GOVT. SCHOOL, ASWATH KATTE, GUDDADALLI CIRCLE HEBBAL, BENGALURU – 560 032. 6. SMT. K.NAGARATHNA AGED ABOUT 69 YEARS, D/O. LATE K.S.MUNESHWARSA, NO.40/1, MANJUNATH NILAYA, 7TH CROSS, 6/N 485 MAIN, MALLESWARAM, BENGALURU – 560 003. 7. T. SHIVARUDRAPPA AGED ABOUT 69 YEARS, S/O. LATE THIPPANNA, 100FT. ROAD, NEAR WATER TANK, VEDAVATHI NAGAR, HIRIYUR, CHITRADURGA DIST. 8. SRI. N.VENKATESHAN AGED ABOUT 68 YEARS, S/O. LATE P.N.NATESA MUDALIAR, NO.404, 16TH CROSS, 4TH PHASE, J.P.NAGAR, BENGALURU – 560 078. 9. SRI. T.R.NARASEGOWDA AGED ABOUT 68 YEARS, S/O. LATE RAMANNA, NO.22, T.MAIN, 5TH CROSS, BEHIND BASAVESWARA SCHOOL, SUNKADAKATTE, SRINIVASA NAGAR, BENGALURU – 560 091. 10. SRI. J. MANBAHADUR AGED ABOUT 67 YEARS, S/O. LATE JOGA BAHADUR, C/O. NO-22, 5TH MAIN, 4TH CROSS, SRINIVASA NAGAR, SUNKADAKATTE, BENGALURU-560 091. 11. SRI. S.JAGADESWARAPPA AGED ABOUT 66 YEARS, - 3 - S/O. LATE SHIVAPPA, BEHIND L.G.GODWN, BHEL LAYOUT, BENGALURU – 560 078. 12. SRI. D. SIDDARTHA AGED ABOUT 66 YEARS, S/O. LATE PORAISWAMY, DOOR NO. 1753, ANGLO INDIAN COLONY, 6TH CROSS ROAD, ROBERTSONPET POST, K.G.F. – 563 122. 13. SRI. S.C. SIDDAPPA AGED ABOUT 66 YEARS, S/O. LATE CHIKKANNA SANKALPA HOUSE, 1ST MAIN, 2ND CROSS, GURU LAYOUT, KUVEMPU NAGAR, 3RD BLOCK, TUMKUR – 572 103. 14. SRI. K.S.VASUDEV AGED ABOUT 66 YEARS, S/O. LATE SANNASWAMY GOWDA, KAGGERE, K.R.NAGAR, MYSURU -571 602. 15. SRI. DYAMAPPA A. SHIDDAPANAVAR AGED ABOUT 66 YEARS, S/O. LATE DYAMAPPA ADEPPA, 1ST MAIN, 2ND CROSS, GOWRISHANKAR NAGAR, RANEBENNUR-581 115. 16. SRI. KALLAPPA D. HUGAR AGED ABOUT 65 YEARS, S/O. LATE K.DODDABASAPPA HUGAR, HOME NO.91, MAIN BAZAR, DAMBAL POST, MUNDARAGI TALUK, GADAG DISTRICT – 582 113. 17. SRI. V. RAMAPRASAD AGED ABOUT 65 YEARS, S/O. LATE K.V.VENKATACHALA SASTRY, H.NO.26 (OLD NO.383), 6TH CROSS, - 4 - NEXT TO NARMADA MEMORIAL SCHOOL, WILSON GARDEN, BENGALURU – 560 027. 18. SRI. G.K.SANJEEVAIAH, AGED ABOUT 65 YEARS, S/O. LATE KONDAIAH, NO.253, 4TH WARD, PRASANTH NAGAR, CHIKKABALLAPUR – 562 101. 19. SRI. SUDHAKAR AGED ABOUT 65 YEARS, S/O. LATE KANAKAYYA, H.NO.12-6-1237/149, LBS NAGAR, CHANDRABANDA ROAD, RAICHUR-584 102. 20. SRI.Y.BASAVARAJAIAH AGED ABOUT 64YEARS, S/O. LATE YALAGAIAH, NO. 243, 3RD CROSS, 5TH BLOCK, KHB COLONY, KORAMANGALA, BENGALURU – 560 095. 21. SRI. M. N MUDDEGOWDA AGED ABOUT 64 YEARS. S/O. LATE MALLEGOWDA, NAGALAPURA POST, KASABA HOBLI, HOLENARASIPURA TALUK HASSAN – 573 211. 22. SRI. SRINIVAS AGED ABOUT 64 YEARS, S/O. LATE HUCCHEGOWDA, YACHENAHALLI D-KALLENAHALLI POST, CHANNARAYAPATNA, HASSAN – 573 116. 23. SRI. B.K.JAYAPRAKASH AGED ABOUT 64 YEARS, S/O. LATE B.KEMPANNA, NO.73, 3RD CROSS, - 5 - VENKATADRI LAYOUT , R.V.COLLEGE POST, BENGALURU-560 059. 24. SRI. NEELAPPA T. SHIVALLI AGED ABOUT 64 YEARS, S/O. LATE TIRAKAPPA, NO.2256, MALATESH NILAYA, VANASIRI NAGAR, SATTUR, DHARWAD – 580 009. 25. SRI. M.S.SANJEEVAPPA AGED ABOUT 64 YEARS, S/O. LATE CHINNAPPA, NO.1, 4TH BLOCK, DODDABOMMASANDRA, VIDYARANYAPURA POST, BENGALURU – 560 097. 26. SRI. M.MAHESWARAPPA AGED ABOUT 63 YEARS, S/O. LATE MURDAPPA, DOOR NO.1595/3, 1ST MAIN, 6TH CROSS, JALINAGARA, DAVANAGERE-577 002. 27. SRI. MUPPANNA M. SAJJAN AGED ABOUT 63 YEARS, S/O. LATE MALLAPPA, PLOT NO. II, HONDADA, VEERABHADRESHWAR NAGAR, NEAR MAYUR PARK, YALAKKI SHETTAR COLONY, DHARWAD – 580 004. 28. SRI. BASAVARAJ IRAPPA HOOLI AGED ABOUT 63 YEARS, S/O LATE IRAPPA HOOLI, VIDYANAGAR 10TH CROSS, OLD ANTARAVALLI ROAD, RANEBENNURU – 581 115. 29. SRI. S.S.PATTANASHETTI AGED ABOUT 63 YEARS, S/O. LATE SHRISHAILAPPA M. PATTANASHETTI, PLOT NO.35, VIJAY COLONY, - 6 - NEAR AL AMMEN MEDICAL COLLEGE, VIJAYPUR – 586 101. 30. SRI. S.M.IFEKHARULLA AGED ABOUT 63 YEARS, S/O. LATE MD. SANAULLA, NO.21, 1ST FLOOR, 2ND CROSS, 6TH MAIN, BTM 2ND STAGE, BENGALURU -560 076. 31. SRI. RAMAKRISHNA AGED ABOUT 63 YEARS, S/O.LATE KARIGOWDA, NO.107, BHARATHI ENCLAVE, MARATI KYATHANAHALLI POST, GADDIGER MAIN ROAD, MYSURU-570 026. 32. SRI. N. VIJAYAKUMAR AGED ABOUT 63 YEARS, S/O. LATE NARAYANAPPA C/O. ANADARAJU NILAYA, NO.54/6, NETHRAVATHI LAYOUT, K.R.PURAM, BENGALURU – 560 036. 33. SRI. V.C.CHOUDHARI AGED ABOUT 63 YEARS, S/O. LATE CHANNAPPA CHOUDHARI, NO.176, OLD VEERAPUR ROAD, ROOPLAND, BAGALKOT – 587 102. 34. SRI. KARIBASAPPA HAMSABHAVI (K.V. HAMSABHAVI) AGED ABOUT 63 YEARS, S/O. VEERABHADRAPPA , OPP. KPTCL, HALGERI ROAD, BEERESHWAR NAGAR, RANEBENNUR – 581 115. 35. SRI. T. KRISHNAMURTHY AGED ABOUT 63 YEARS, S/O. LATE V. THIMMAIAH, C/O. KSSOCA, BELLARY ROAD, HEBBAL, BENGALURU – 560 024. - 7 - 36. SRI. T.C.DEVARAJU AGED ABOUT 62 YEARS, S/O. LATE CHELAVARYA SETTY, NO.17, OM NILAYA, SAPTHAGIRI LAYOUT, RMV 2ND STAGE, SANJAINAGAR, BENGALURU – 560 094. 37. SMT. GEETHA J. AGED ABOUT 62 YEARS, D/O. LATE S.R.JAGANNATH, NO.115/5, 4TH MAIN, BETWEEN 9TH AND 10TH CROSS, MALLESWARAM, BENGALURU – 560 003. 38. SRI. H.K.PADMANABHAN AGED ABOUT 62 YEARS, S/O. LATE KATALINGAPPA, YADARA STREET, HOLALKERE – 577 526. 39. SRI. BASVANTAPPA D. BENNI AGED ABOUT 61YEARS, S/O.LATE DEVENDRAPPA BENNI, PLOT NO.15, TEACHERS COLONY, KHASABAG, BELGAVI – 590 003. 40. SRI. S.B.SUDARSHAN AGED ABOUT 61 YEARS, S/O. LATE BASAVEGOWDA, NO.506/6, NEAR VINAYAKA CIRCLE, BOGADI, 2ND STAGE, MYSORE – 570 026 41. DR. M.Y.SHANBHOGUE AGED ABOUT 61 YEARS, S/O. LATE M.S.SHANBHOGUE, 418, PYRAMID, SHABARINAGAR, BYATARAYANAPUR, BENGALURU – 560 092. 42. SRI. NAGABHUSHANA REDDY AGED ABOUT 61 YEARS S/O. LATE B. RAMACHANDRA REDDY, NO.19, RAMALXMI NILAYA, - 8 - SAPTAGIRI LAYOUT, NAGASHETTIHALLI EXTENSION, SANJAYNAGAR, BENGALURU – 560 094. 43. SRI. S.R.BASAVARADDER AGED ABOUT 61 YEARS, KALIKA NAGAR, SHIVANAD NAGAR, 1ST CROSS, GADAG – 582 101. 44. SRI. S. STEPHEN AGED ABOUT 60 YEARS, S/O. LATE SABASTIAN, NO.22, GIRIJAS VILLA, 1ST CROSS, CMV LAYOUT, GUDDADAHALLI, HEBBAL, R.T.NAGAR POST, BENGALURU – 560 032. 45. SRI. S.G.SURESH AGED ABOUT 60 YEARS, S/O. LATE S.GANAPATHI, C/O. KSSC LTD., MACHENAHALLI INDUSTRIAL AREA, SHIMOGA – 577 229. 46. V. RAJANNA AGED ABOUT 59 YEARS, S/O LATE P. VENKATAPPA NO. 1063, EWS, 2ND STAGE, YELHANKA NEW TOWN, BENGALURU – 560 064. 47. H. ANJANEYA AGED ABOUT 59 YEARS, S/O. LATE H. BASAPPA, 1ST MAIN, 33RD WARD, AC. OFFICE ROAD, NEAR THAYAMMAP TEMPLE. HOSPET – 583 201. BELLARY DIST. 48. S.P. PRAHALLADA AGED ABOUT 59 YEARS, S/O. LATE PUTTEGOWDA, SRAVANUR AT POST, HOLENARASAPURATALUK – 573 211 HASSAN DIST. - 9 - 49. RAMESHA S/O. LATE THIMMAIAH, AGED ABOUT 59 YEARS, D.NO. 1101, 10TH MAIN ROAD, 6TH CROSS, NEAR RAGHAVENDRASWAMY TEMPLE, PRAKASHNAGAR, BENGALURU – 560 021. 50. EKASHIRAJAIAH AGED ABOUT 59 YEARS, S/O. LATE THIMMAIAH, NO.125, 3RD PHASE, C. ZONE, NACHANAHALLI KOPPALLUR, 17TH MAIN, 7TH CROSS, J.P. NAGAR, MYSORE – 570 031. 51. K. BASAVARAJ, AGED ABOUT 58YEARS, S/O. K. BASAVANAGOWDA, D. NO. 118, BASAVAMRUTHA, KAPPAGAL ROAD, 2ND CROSS, GANDHI NAGAR, BELLARY – 583 101. 52. S.S. SHAHAPUR S/O. LATE SHETAPPA SHAHAPUR AGED ABOUT 58 YEARS, OFFICE OF THE DEPUTY DIRECTOR KSSOCA NEAR GTC BELGUM ROAD, OPP. PEPSI FACTORY, P.B. ROAD, DHARWAD – 580 008. 53. M.N. NAGARAJ AGED ABOUT 58 YEARS, S/O. LATE NARASIMHAIAH NO. 733/1 4TH CROSS, LABOUR COLONY, MANDYA – 571 401. 54. GURUMURTHY C. AGED ABOUT 58 YEARS, S/O. LATE KARBHARI CHOKLA NAIK, KSSOCA, BELLARY ROAD, HEBBAL, BANGALORE – 560 024. 55. S.G. BANNIGIDAD, AGED ABOUT 58 YEARS, S/O. LATE GIRIYAPPA BANNIGADAD - 10 - OFFICE OF THE DEPUTY DIRECTOR KSSOCA NEAR GTC BELGUM ROAD, OPP. PEPSI FACTORY, P.B. ROAD, DHARWAD – 580 008. 56. ASHOK KUMAR S/O. SRI SHAIL RAO, AGED ABOUT 58 YEARS, OFFICE OF THE DEPUTY DIRECTOR KSSOCA BESIDE KSSC LTD. LINGASUGUR ROAD, NEAR ASKIHAL, RAICHUR-584 102. 57. V. RANGASWAMY S/O. LATE VENKATAIAH AGED ABOUT 58 YEARS, OFFICE OF THE DEPUTY DIRECTOR KSSOCA BESIDE KSSC LTD. LINGASUGUR ROAD, NEAR ASKIHAL, RAICHUR-584 102. ... PETITIONERS (BY SRI ABHINAV RAMANAND A., ADVOCATE) AND 1. UNION OF INDIA MINISTRY OF LABOUR & EMPLOYMENT, SHRAM SHAKTI BHAWAN, RAFI MARG, NEW DELHI – 110 001. REPRESENTED BY THE SECRETARY. 2. EMPLOYEES PROVIDENT FUND ORGANISATION (MINISTRY OF LABOUR & EMPLOYMENT, GOVERNMENT OF INDIA), BHAVISHYA NIDHI BHAWAN, 14 – BHIKAJI CAMA PLACE, NEW DELHI – 110 066. REPRESENTED BY THE CENTRAL PROVIDENT FUND COMMISSIONER (CPFC). 3. THE REGIONAL P.F. COMMISSIONER, ZONAL OFFICE, BENGALURU ZONE, EMPLOYEES’ ROVIDENT FUND ORGANISATION, RICHMOND CIRCLE, BENGALURU – 560 027. 4. THE REGIONAL P.F. COMMISSIONER, REGIONAL OFFICE, YELAHANKA, - 11 - EMPLOYEES’ PROVIDENT FUND ORGANISATION, NO.2, MARUTHI COMPLEX, 1ST A MAIN, HIG-A SECTOR, YELAHANKA NEW TOWN, BENGALURU – 560 064. 5. THE REGIONAL P.F. COMMISSIONER, EPFO, REGIONAL OFFICE, HUBLI, BHAVISHYA NIDHI BHAVAN, NEW BLOCK NO.10, BEHIND INCOME TAX OFFICE, NAVANAGAR, HUBLI – 580 025. 6. THE REGIONAL P.F. COMMISSIONER, EPFO, REGIONAL OFFICE, KALABURAGI, BHAVISHYANIDHI BHAVAN, ALAND ROAD, KALABURAGI- 585 101. 7. THE REGIONAL P.F. COMMISSIONER, BHAVISHYANIDHI BHAVAN, PF BUILDING, NO.109, 128 2ND STAGE, GAYATHRIPURAM, MYSORE – 570 019. 8. THE KARNATAKA STATE SEED AND ORGANIC CERTIFICATION AGENCY A GOVERNMENT OF KARNATAKA ORGANISATION KAIC PREMISES, OPP. BAPTIST HOSPITAL, BALLARI ROAD, HEBBAL, BENGALURU – 560 024 REPRESENTED BY ITS DIRECTOR. ... RESPONDENTS (BY SRI MADANAN PILLAI, ADVOCATE FOR R-1; SMT. NANDITA HALDIPUR, ADVOCATE FOR R-2 TO R-7; SRI K.H. SOMASEKHARA, ADVOCATE FOR R-8) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO a. QUASH THE NOTIFICATION BEARING NO.G.S.R. 609(E) DATED 22.08.2014 ISSUED BY RESPONDENT NO.1 AT ANNEXURE-D TO THE WRIT PETITION AS BEING ARBITRARY AND ULTRA VIRES CONSTITUTION OF INDIA AND CONSEQUENTLY AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 11/07/2023 FOR ORDERS AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: - 12 - O R D E R The petitioners have sought for the following reliefs: “a) Issue a Writ in the nature of certiorari quashing the Notification bearing No.G.S.R. 609(E) dated 22.08.2014 issued by Respondent No.1 at “Annexure D” to the Writ Petition as being arbitrary and ultra vires Constitution of India and consequently; b) Issue a Writ in the nature of certiorari quashing the Employees’ Pension (Fifth Amendment) Scheme, 2016 (2016 Amendment), published in the Gazette of India: Extraordinary bearing No.454 [Part II-Sec.3(i)] vide Notification No.G.S.R. 657(E) dated 01.07.2016 as per Annexure-E issued by Respondent No.1; c) As a consequence of the Notification dated 22.08.2014 at Annexure – ‘D’ being quashed, as per Prayer (a), an appropriate direction in the nature of Mandamus to be issued to Respondent No.1 to 5 to accept the difference in the contribution over and above the ceiling salary and thereby, determine, calculate and fix the pensionable salary in respect of each of the Petitioners on the basis of contributions made on actual salary even for the purpose of releasing pension, together with arrears with interest from the date the Petitioners have exited the Pension Scheme; - 13 - d) Consequent upon the quashing Notification bearing No.G.S.R.609(E) dated 22.08.2014 issued by Respondent No.1 at Annexure - D, to forebare Respondent No.1 to 5 from collecting additional contribution of 1.16% from its members on the higher contribution made by the members to the extent of contribution made exceeding the ceiling salary, w.e.f. 16.11.1995 or from the date from which the salary exceeded the ceiling salary till the date of exit from the Pension Scheme in respect of each of the Petitioners; e) A writ in the nature of Mandamus directing the Respondents No.1 to 5 to calculate the pensionable salary on the basis of the average pay (basic salary + DA and including arrears) paid or payable for a period of 12 months prior to the Petitioners exiting the Pension Scheme and not on the basis of the average pay of 60 months prior to the exit from the Pension Scheme pursuant to Annexure – ‘D’ Notification dated 22.08.2014; f) Issue a writ in the nature of mandamus directing Respondents No.1 to 5 to receive the difference of EPS contributions in relation to the Petitioners who have retired and upto 22.08. 2014, in the light the Respondent No.7 Employer having agreed to contribute difference of EPS contributions between - 14 - the statutory limits and actual salary limits for the unpaid period of 16.11.1995 to March 2008, as may be intimated by EPF authority Respondent No.4 and fix the pensionable salary on the said basis, pursuant to the communication dated 10.10.2018 vide Annexure- ‘G’ to the Writ Petition.” 2. Heard Sri. Abhinav Ramanand .A, learned counsel for the petitioners, Sri. Madanan Pillai, learned counsel for respondent No.1, Smt. Nandita Haldipur, learned counsel for respondent Nos.2 to 7 and Sri. K.H. Somasekhara, learned counsel for respondent No.8. 3. Learned counsel for the petitioners would submit that even pursuant to the judgment of the Apex Court in R.C. Gupta and others Vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization and others reported in (2018) 14 SCC 809 [R.C. Gupta] vide order dated 04.10.2016, the respondents are not granting the legitimate entitlements of pension to the petitioners on higher salary. - 15 - 4. Per contra, learned counsel for the respondents would submit that during the pendency of this writ petition, the Apex Court in the case of the Employees Provident Fund Organization and Anr. Etc. Vs. Sunil Kumar .B and Ors. Etc., reported in (2022) SCC Online SC 1521 [Sunil Kumar] has issued certain directions on the basis of which, the pension amount has to be recalculated and the present petition is squarely covered by the judgment of the Apex Court. 5. The Apex Court in Sunil Kumar’s case stated supra has issued certain directions, 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 - 16 - 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 option shall be in the nature of joint options covering pre-amended paragraph 11(3) as also - 17 - 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 cutoff 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 - 18 - 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 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. - 19 - (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) (preamendment) 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.” 6. Learned counsel for the petitioners would contend that prayer in the petition at (a) and (b) are covered as per the directions of the Apex Court in Sunil Kumar’s case, whereas, prayer Nos.(c), (d), (e) and (f) are not covered. 7. In prayer Nos.(c), (d), (e) and (f), the petitioners have sought direction to respondent No.1 to 5 to take into consideration, the arrears of salary including D.A. etc., for the purpose of determination of pensionable salary and calculation - 20 - of pension. The prayer sought at the said paragraphs is nothing but recalculation of pensionable amount and the same is squarely covered by the judgment of the Apex Court in the case of Sunil Kumar stated supra, wherein at paragraph No.36 it is held as under: “36. The other aspect of the controversy involves changing the method of computation of the pensionable salary. We have given the points and counter points articulated by the contesting parties pertaining to this feature of the controversy earlier in this judgment. In our opinion, this change of methodology comes within the power of the Central Government to modify a scheme under Section 7 of the 1952 Act read with item 10 of the Schedule III to the Act as also paragraph 32 of the scheme. This alteration of computation is ancillary to determination of scale of pension alongwith pensionary benefits and paragraph 32 of the pension scheme specifically authorises the Central Government to alter the rate of contribution payable under the Scheme or the scale of any benefit admissible under the scheme. There is a reasonable basis for effecting change in the computation methodology for determining pensionable salary and we do not find any illegality or unconstitutionality in effecting this amendment.” - 21 - 8. The Apex Court has held in the said para that a change of methodology comes within the power of the Central Government to modify a Scheme under Section 7 of 1952 Act read with item No.10 of Schedule III of the Act as also para No.32 of the Pension Scheme. 9. In light of the same, it would be appropriate, if this Court directs the petitioner/s to give representation/s to the pension authorities to recalculate the pension in terms of the directions of the Apex Court in Sunil Kumar’s case stated supra. 10. For the aforesaid reasons, the writ petition is disposed of reserving liberty to the petitioner/s to submit representation/s to the respondent-authorities and if such representation is/are made, respondent-authorities to consider the same, in light of the directions given by the Apex Court in the case of Sunil Kumar stated supra, in accordance with law. SD/- JUDGE MBM "
Other Referred Cases
R.C. Gupta and others Vs. Regional Provident Fund Commissioner, Employees Provident Fund Organization and others, Employees Provident Fund Organization and Anr. Etc. Vs. Sunil Kumar .B and Ors. Etc.
Laws Referred To
Constitution of India
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