28.11.2022 - Expert Legal Opinion of Mr. Gopal Sankaranarayanan, Sr. Advocate

11/28/22, 9:59 AM Gmail - Fwd: Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr.
h Mr. Gopal Sankaranarayanan, Sr Advocate…
PARVEEN KOHLI <pkkohli@gmail.com>
Fwd: Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr.
Gopal Sankaranarayanan, Sr Advocate , Observation and Opinion on the issues
arisen after the Judgment of the Hon’ble Supreme Court dated 4.11.2022
Neeraj Bhargava <nbhargava.0958@gmail.com> 28 November 2022 at 09:30

To: PARVEEN KOHLI <pkkohli@gmail.com>
---------- Forwarded message ---------
From: A.Venayagam Balan <lakshmivinayagamadvocates@gmail.com>
Date: Mon, 28 Nov 2022 at 9:28 AM
Subject: Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr. Gopal Sankaranarayanan, Sr
Advocate , Observation and Opinion on the issues arisen after the Judgment of the Hon’ble Supreme Court dated
4.11.2022
To: nbhargava.0958@gmail.com <nbhargava.0958@gmail.com>
Dear Sir,
Please find attached Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr. Gopal
Sankaranarayanan, Sr Advocate , Observation and Opinion on the issues arisen after the Judgment of the Hon’ble
Supreme Court dated 4.11.2022.
with regards
A.Venayagam Balan
Advocate-on-record,
Supreme Court of India,
LAKSHMI VINAYAGAM LAW ASSOCIATES
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2 attachments
Brief of discussions on 23.11.2022 with Sr. Advocate.docx
211K
Letter for opinion dated 28112022.pdf
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https://mail.google.com/mail/u/0/?ik=dcc4b0f8b7&view=pt&search=all&permmsgid=msg-f%3A1750710927532894098&simpl=msg-f%3A17507109275… 1/1
A.VENAYAGAM BALAN&C M SUNDARAM IYER
ADVOCATES SUPREME COURT OF INDIA, NEW DELHI
To, 28.11.2022
Mr.Neeraj Bhargava,
National Confederation of Retirees (NCR),
99 C, Pocket -I, MayurVihar, Phase -1,
Delhi --110091
Sub: Observation and Opinion of Mr. GopalSankaranarayanan, Sr

Advocateon the issues arisen after the Judgment of the Hon’ble
Supreme Court dated 4.11.2022
Respected Sir,
After due deliberations on each issue arisen after the Judgment of the Hon’ble
Supreme Court dated 4.11.2022 with Learned Mr. GopalSankaranarayanan, Sr
Advocate,the following are observed and opined:
The Senior Advocate referred to paragraph No.29, 32, 38, 40(ii) and 41 of the
judgement for the purpose of taking a decision on the further course of action in the
light of the direction contained in para 44 (i) to (x).
His explanation about those paragraphs in the present judgementare :-
Retirees prior to 1.9.2014:

(A) That at the time when R.C. Gupta judgement was delivered the present
Impugned Gazette Notification dated 22.8.2014 did not form part of judicial
notice/issue in R.C. Gupta; That R.C. Gupta considered the provisions of the
scheme that existed prior to 1.9.2014 and held as follows:
i) There is no cut of date to determine the eligibility of the employee to
indicate their option under the proviso to Clause 11(3) of the
PensionScheme; and
ii) If both the employer and the employee opt for deposit against the actual
salary and not the ceiling amount, exercise of option under Para 26 (6) of
the Provident Scheme is inevitable. Exercise of the option under Para
26(6) is a necessary precursor to the exercise of option under Clause
11(3).
(B) The Hon’ble Court in the present Judgment dated 4.11.2022 had upheld the
above findings of the RC Gupta’s Judgment in para 41 read with para 44 (vi) &
44 (ix) holding that:
i) The interpretation given to proviso 11 (3) prior to 2014 amendment in
R.C.Gupta Judgment does not require any reconsideration
ii) There is no time limit for exercising option under proviso 11 (3) as stood
before the amendment.
iii) 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.
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Therefore fresh option has to be exercised by the retirees retired prior to

1.9.2014 under 11 (3) proviso (pre-amended) as contemplated in R.C.Gupta’s
Judgment at the earliest. Upon exercising such option, they would be entitled to
the benefit of R.C.Gupta’s Judgment, to enable the Fund Authorities to
implement the said Judgment within 8 weeks as per direction contained in para
44 (ix). Therefore the retirees retired prior to 1.9.2014 who had opted to
contributed on higher salary under 26 (6) of EPF Scheme who are eligible for
giving such option, can request the Provident Fund Commissioner in the manner
contemplated in R.C.Gupta’s Judgment at the earliest as follows:
“All that the Provident Fund Commissioner is required to do in the case is

an adjustment of accounts which in turn would have benefited 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 employees concerned 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”
(C) The Senior Counsel is of the view that para 44 (v) of the Judgment relates to
Pre-01.09.2014 Retirees of Exempted &Unexemptedestts. who had NOT
exercised option under Para 11(3) (i.e. The retirees who have not opted to
contribute on higher salary under Para 26 (6) of the EPF Scheme, 1952) and
exited from the membership, and therefore did not have the benefit of
R.C.Gupta’s Judgment. Since they have exited from membership, they would
not be entitled to the benefit of the Judgment dated 4.11.2022 as also RC
Gupta’s Judgment.
Exempted Establishment:
(D) In para 38 of the Judgment, the Hon’ble Supreme Court held that the pension
scheme ought to apply to the employees of the exempted establishments in the
same manner as this scheme applies to the employees of unexempted
establishments. Therefore the benefit of the pension scheme as contemplated in
the Judgment in R.C. Gupta is applicable to both exempted and unexempted
establishment. So option can be exercised by the employees of both the
establishment. Hence a request be also made by the retirees of the Exempted
Establishment in following line as stipulate in para 39 of the Judgment:
“Taking that factor into account, we are of the view that in order to be entitled to
the benefits of the pension fund, the employer and the employee, simultaneously
with exercising option in terms of the order of this Court, shall also have to give
an undertaking of transferring the employers’ contribution at the stipulated rate
maintained by the trusts, which shall be equivalent to and not lower than the sum
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which would have been transferable, had such fund been maintained by the
provident fund authorities. Such transfer shall take place, immediately after
exercise of such option, within such period as may be directed by the
administrators of the pension fund.
(E) In view of the direction contained in 44 (ix), the fund authorities shall implement
the directives contained in the said judgment within a period of eight weeks.
Hence the retirees prior 10 1..2014 have to make appropriate representation as
contemplated above at the earliest to the concerned authorities to get the
benefit of the Judgment dated 4.11.2022 and R.C.Gupta’s Judgment
(F) The Senior Advocate Mr.GopalSankar Narayanan further opined that after
submitting such options by those retired prior to 1.9.2014, should then wait for
further unfolding of events arising at the end of EPFO on the options so to be
exercised. Thereafter the retirees retired prior to 1.9.2014 may seek clarification
from the Hon’ble Supreme Court depending upon the response from the EPFO.
Retirees after 1.9.2014 :
(G) The Senior Counsel by relying on para 29 & 32 of the Judgment had stated that
the Court has accepted the argument of the employees holding that it is a fact
that those who are covered by paragraph 26 (6) of the provident fund scheme
automatically enters into the pension scheme under proviso 11 (3) of the pre-
amended scheme. However the Hon’ble Court had rejected the challenge made
by the Employee to the amended scheme and upheld its validity. The relevant
portion of the Judgment reads as follows:
“It is a fact that those who are covered by paragraph 26(6) of the provident
fund scheme automatically enters into the pension scheme as well.But this
provision cannot be held to have precluded the Central Government from
laying down conditions to remain eligible for the pension scheme and
specify wage or salary ceiling for individual employees beyond which the
scheme may not operate. We also do not accept the argument that the pension
scheme considers employees as a homogenous group and no distinction can be
made among different categories of employees based on their monthly salary to
determine for whom the scheme shall operate in a particular manner. It is well
within the power and authority of the statutory authorities to reasonably classify
different sets of employees and categorise them for the nature of benefits they
might get from an existing scheme. In fact, the scheme, at its inception was
made applicable to those drawing wages upto Rs.5000/. The provision relating to
exercising option was introduced later, in the year 1996.”
(H) Further in para 32 and 44 (i) the Hon’ble Supreme Court had upheld the validity
of the Scheme :
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“We find that the amendment was made in exercise of power otherwise vested in
the authority making such amendment and the amendments were made on the
basis of certain relevant materials and not whimsically. In this context, the scope
of judicial scrutiny to test the constitutionality of the amendment provisions
becomes narrow.”
(I) Further in para 44 (viii) the Hon’ble Supreme Court held that there is no flaw in
altering the basis for computation of pensionable salary.
Therefore the Senior Counsel of the view that since the Hon’ble Court had
upheld the validity of the amended pensions scheme by holding the provision
[i.e. proviso to 11 (3)] which allows the employee seeking pension on higher
salary to enter the pension scheme automatically on exercise of option under 26
(6), cannot have precluded the Central Government from laying down conditions
to remain eligible for the pension scheme by way of an amended scheme, the
members of scheme (who continued to be members after 1.9.2014 in the EPS
till their retirement) can seek only review of that portion of the Judgment.
However the Hon’ble Court in para 44 (iv) had protected their rights which had
accrued to them till 1.9.2014 and which is crystallized in view of the Judgment in
R.C.Gupta.
(J) The Hon’ble Court in para 44 (iv) of the Judgment dated 4.11.2012 has held that
those members of the scheme (who continued to be members after 1.9.2014 in
the EPS till their retirement), even if they had not exercised an option before
1.9.2014 under the earlier 11(3) proviso as contemplated under R.C.Gupta
Judgment, is entitled to exercise the Joint option in the nature of covering
proviso to 11 (3) pre amended and under 11 (4) post amendment. In that event
exercise option under 11 (4) post amendment is extended for a period of 4
months.
(K) Therefore the members of the scheme (who continued to be members after
1.9.2014 in the EPS till their retirement), who did not exercise option, as
contemplated in R.C.Gupta’s Judgment under 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(3) of the pre amendment scheme as their
rights stands crystallised in RC Gupta. But as they are also covered under 11 (4)
of post amendment scheme which is upheld by the Hon’ble Court, 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 scheme.
(L) Meaning thereby, the members of the scheme (who continued to be members
after 1.9.2014 in the EPS till their retirement) will be entitled to pensionable
salary on the basis of 60 months average. The requirement of the
members/retirees to contribute under the amended scheme at the rate of 1.16
per cent of their salary to the extent such salary exceeds Rs.15000/per month
will be applicable only for the period after 1.9.2014 till their retirement. However
the requirement to contribute the said 1.16 percent will not be necessary if no
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amendment is carried out by the Central Government in this regard as held in

para
(M) Those serving now or retired after 1.9.2014 have time to exercise another option
under para 11(4) within FOUR months from the date of this judgement, hence
appropriate representation be made stating that their rights under the pension
scheme till 1.9.2014 stands crystallised inview of the Judgment in RC Gupta and
accordingly the benefits may be given. Then exercise a joint option in the nature
of covering both proviso to 11 (3) pre-amended and under 11 (4) post amended.
(N) The Senior Advocate Mr.Gopal Sankar Narayanan further opined that after
submitting such options by those members of the scheme (who continued to be
members after 1.9.2014 in the EPS till their retirement), should then wait for
further unfolding of events arising at the end of EPFO on the options so to be
exercised. Thereafter the retirees retired after 1.9.2014 may seek appropriate
clarification from the Hon’ble Supreme Court depending upon the response from
the EPFO.
(O) However if the members of the scheme (who continued to be members after
1.9.2014 in the EPS till their retirement) is aggrieved regarding the upholding of
the validity of the amended scheme as a whole or the 60 months average which
forms as the basis for computation of pensionable salary under the amended
scheme or with respect to the contribution of 1.16 percent to be made by the
employees for the period after 1.9.2014,if the Central government amends the
provisions of the PF Act, 1952, has to file a Review Petition. But at this stage no
review petition to be filed.
(P) So far as the affidavit filed in the Supreme Court in Contempt Petition no.
1816-1817 of 2017 (RC Gupta case), the then CPFC, EPFO (Dr. VP Joy, IAS)
stating that the pension of Retirees as well as serving employees was
being revised as per RC Gupta Judgement, is of no consequence as the
Hon’ble Court had subsequently upheld the validity of the Scheme by the
Judgment dated 4.11.2022. If the Employees are aggrieved by the same,
then they have mention the same a ground for review, in the event of
review is being filed.
CRISP OPINION :
1. Pre-1.9.2014 Retirees of the Exempted These retirees are eligible for benefit of the
Establishment R.C.Gupta Judgment to get pension on
higher pensionable salary, so they can
exercise the option at the earliest under
proviso to 11 (3) pre-amended EPS Scheme
and request the fund authorities to transfer
the funds to EPFO by giving suitable
undertaking.
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2. Pre-1.9.2014 Retirees of the un- These retirees are eligible for benefit of the
Exempted Establishment R.C.Gupta Judgment to get pension on
higher pensionable salary, so they can
exercise the option under proviso to 11 (3)
pre-amended EPS Scheme
3. Post 1.9.2014 Retirees of the Exempted These retirees are eligible for benefit of the
Establishment R.C.Gupta Judgment so far as the rights
accrued to them till 1.9.2014, thereafter they
would be covered by the amended scheme.
So they have to exercise Joint option in the
nature of covering both under proviso to 11
(3) pre-amended EPS Scheme and under
11 (4) of the amended scheme and request
the fund authorities to transfer the funds to
EPFO by giving suitable undertaking.
4. Post 1.9.2014 Retirees of the un- These retirees are eligible for benefit of the
Exempted Establishment R.C.Gupta Judgment so far as the rights
accrued to them till 1.9.2014, thereafter they
11 (4) of the amended scheme.
5. Presently serving employees of These Employees are eligible for benefit of

(Exempted & Un-exempted ) the R.C.Gupta Judgment so far as the rights
Establishment accrued to them till 1.9.2014, thereafter they
11 (4) of the amended scheme
A.VENAYAGAM BALAN &C M SUNDARAM IYER, ADVOCATES
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Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr. Gopal Sankaranarayanan, Sr
Advocate, Mr Venayagam Balan, AOR & Mr C M Sundaram Iyer, Advocate at 7 pm on 23-03-2022
---xxx---
The main participants were from the National Confederation of Retirees (NCR) represented by Mr. Gurumukh
Singh (President), Mr. Khem Singh Abrol (Vice President), Mr. SC Motan (Secretary), Mr. Ratish Maurya etc,
National Confederation of Officers’ Associations (NCOA) represented by Mr. VK Tomar, Secretary General
besides some other pensioners including Mr. Parveen Kohli & Mr. Neeraj Bhargava
Entire position was first explained in details by Mr Parveen Kohli to Mr Balan and then Mr Balan briefed the
same to Mr Gopal Sankaranarayanan. Most of the participants expressed their views and sought clarifications
of various issues.
Mr Kohli then explained and briefed the background of the entire case in chronological order as under:
1. Ever since the EPS’95 Scheme has been introduced, it is under continuous litigation for one reason or
the other that too due to wrong actions on the part of EPFO during the last 27 years.
2. Option for Contribution of salary exceeding the ceiling limit is available ONLY in Para 26(6) of the EPF
Act and NOT under Para 11(3) of the EPS’95 Scheme.
3. By filing an affidavit in the Supreme Court in Contempt Petition no. 1816-1817 of 2017 (RC Gupta case),
the then CPFC, EPFO (Dr. VP Joy, IAS) had submitted that the pension of Retirees as well as serving
employees was being revised as per RC Gupta Judgement and got relief from the Court as the Contempt
petition had been dismissed BASED ON THOSE SUBMISSIONS (details discussed subsequently).
4. Similar affidavit (as given by CPFC in Supreme court) was given by EPFO in Punjab & Haryana HC on 7 writ
Petitions wherein UOI & EPFO were the respondents and pension of all petitioners has been revised after
approval of HQ and an affidavit has also been filed in on 23.07.2019 informing the High Court. (Paper
books are available)
5. The sequence of events was narrated as under:
Date Particulars Remarks

16.11.1995 EPS’95 introduced
28.02.1996 Proviso to Para 11 was inserted at (3) which says that if at This joint option is for
the option of the employer and employee, contribution payment of
paid on salary exceeding Rs. 6500 per month from the date CONTRIBUTION in
of commencement of this scheme or from the date salary Provident Fund as per
exceeds Rs. 6500 whichever is later, and 8.33% share of the Para 26(6) of EPF
employers thereof is remitted into the pension fund, Scheme
pensionable salary shall be based on such higher salary. The remittance of the
amount in pension fund
as per statutory
provision @8.33% is for
the employer ONLY to
REMIT the amount
towards EPS’95
1995 to Several Writ Petitions had been filed against the EPS’95 across the country in various
1997 High Courts and at the instance of EPFO, all these cases were transferred to Supreme
Court
03.12.1997 SLP (C) No. 22316 of 1997 was the lead matter and all other petitions were tagged with
this
11.11.2003 OTIS Elevator Judgement pronounced - Validity of EPS Scheme was upheld
05.02.2004 EPFO issued circular for implementation of SC Judgement and issued direction to ROs:
Extracts:
Amount to be diverted is to be quantified and one lumpsum amount alongwith interest
is to be transferred. This is to be done from employer share and in case of shortfall
balance amount be diverted from employee share. If still there is shortfall an account of
loans taken by employee (e.g., under 68B etc.) then employee has to pay the balance in
one installment alongwith interest and if he is unable to pay then that period would be
considered as break in service.
This entry be marked as withdrawal on account of EPS membership as per Hon’ble

Supreme Court decision.
01.12.2004 EPFO adopted 01.12.2004 (date of issue of letter) as the Neither any circular was
Cut-off date wherein it was clarified that: issued by EPFO reg Cut-
off date nor any such
The employees whose salary as on 16.03.1996 was above communication was sent
statutory limit or exceeded the wage limit after 16.03.1996, to employees/ employers
but remittance made by the employer to a/c no. 10 is upto nor any public notice was
wage ceiling and not on such higher wages drawn by the published nor any GSR
employee, such workers cannot be allowed now to issued by EPFO.
contribute at higher wages.
Only the date of the
Thus, the window for REMITTANCE of 8.33% of employers’ letter (01.12.2004)
share towards pension fund remained open only from prohibiting the
05.02.2004 to 01.12.2004 (about 10 months only). This REMITTANCE of
wrong action resulted into re-start of litigation employers’ share
@8.33% on higher salary
Its effect issued by EPFO HQ to
w.e.f. 01.12.2004, onwards the employers had not diverted Sub-regional Office,
their remittance towards pension fund on higher salary but Visakhapatnam had been
the employees were affected adversely for no fault on their adopted as cut-off date
part as they had contributed @10%/12% on higher salary for REMITTANCE of said
(not on ceiling amount) amount, thus restricting
the amount of
pensionable salary.
01.12.2004 All regional offices stopped accepting contribution of employers towards pension fund
toll 2017 @8.33% on the salary exceeding the statutory ceiling limit
• After dismissal of 8 SLPs in SC the remittance on higher salary was allowed to
petitioners of those SLPs & tagged matters
• In cases of large number of WPs decided on the basis of above decisions, remittance on
higher salary was allowed and pension revised
• Similarly, after RC Gupta judgement, in compliance of RC Gupta judgement, pension of
24,672 RETIREES had been revised (RTI Information)
25.04.2006 EPFO once again directed field offices not to accept Pension fund contribution over &
above the wage ceiling
22.11.2006 Regarding Para 11(3), EPFO HQ clarified that:

Sr. no. 2: Option to contribute on a pay exceeding statutory limit is available to a
member ONLY under Para 26(6) of the EPF Scheme ,1952 AND NOT UNDER PARA 11(3)
of EPS. In fact, Para 11(3) clarifies the methodology of determination of pensionable
salary ONLY
Since opting to contribute on higher pay to EPS means a contribution on higher pay to
Provident Fund as well, Para 11(3) provision will apply to only such of those employees
who have been contributing on a higher pay under Para 26(6) of the EPF Scheme, 1952
In all such cases where the employee has contributed over and above the statutory
limit either from 16.03.1996 or from the month in which his salary exceeded the limit
after having exercised his option and the same having been accepted by the office, the
Pensionable Salary will be based on such salary.
2007 to This issue has already been settled by the Kerala High Court in WPC’s decided on
2014 04.11.2011, 24,02.2012, 12.04.2012, & 04.03.2014 and WA on 05.03.2013, 17.10.2014 &
20.10.2014 and all the EIGHT SLPs filed by EPFO in SC were dismissed - SEVEN on
31.03.2016 and ONE on 12.07.2016.
Judgements were implemented & pensions of all the petitioners in these cases and all
tagged matters was revised after permitting remittance of contribution in pension fund
RETROSPECTIVELY.
08.11.2013 Regarding Para 11(3), EPFO HQ clarifiedthat:

Sr. no. 4: As may be evident under EPS, there is no contribution payable separately
under Para 3 of the EPS,
…………….Option to contribute on a pay exceeding statutory limit is available to a
member ONLY under Para 26(6) of the EPF Scheme ,1952 AND NOT UNDER PARA 11(3)
of EPS
08.11.2013 “We are receiving the requests from members and employers also to allow the
retrospective option in Pension Scheme also.”
“The demand is considered in detail and it is observed that the pension on higher salary
results into cross subsidy on behalf of the poorer workers. Considering the demand, it is
decided to allow the retrospective option on higher salary under EPS 1995 subject to
payment of interest under Section 7Q and damages under 14B, on payment of interest
and damages, the pension on higher salary shall be allowed.”
31.03.2016 SC dismissed 7 SLPs filed by EPFO wherein the challenge was regarding the Cut-off date
01.12.2004 for option under Para 11(3) as set-aside by Kerala High Court being arbitrary
and against the Rules/Scheme.
12.07.2016 SC dismissed this SLPs filed by EPFO wherein ALL THE PETITIONERS WERE RETIRED
EMPLOYEES AND EPFOS STAND WAS THAT SINCE THEY ARE RETIRED EMPLOYEES, THEY
WERE NOT ELOGIBLE FOR HIGHER PENSION and the challenge was also regarding the
Cut-off date 01.12.2004 for option under Para 11(3) as set-aside by Kerala High Court
being arbitrary and against the Rules/Scheme.
04.10.2016 RC Gupta Judgement

• In the 8 SLPs filed by EPFO against the judgements of Kerala High Court setting aside
the arbitrary cut-off date 01.12.2004 (without any notification) had been dismissed
by Supreme Court.
• IN RC Gupta case and also in the 8 SLPs dismissed on 31.03.2016 (also mentioned in
RC Gupta judgement) & 12.07.2016 the petitioners were RETIRED EMPLOYEES AS
WELL AS SERVING EMPLOYEES
• In the SLP dismissed on 12.07.2016, all the affected petitioners were Retired
employees and the KHC & Sc had decided in their favour. The judgments had been
implemented and the pension of all Retirees had been revised
So, the issue regarding eligibility for higher pension in r/o Retirees as well as Serving employees had
attained FINALITY
23.11.2016 Meeting of Sr. Officers under Chairmanship of CPFC In all these meetings,
08.12.2016 Meeting of Pension & EDLI Implementation Committee proposals, approvals, it
19.12.2016 Meeting of CBT had been CLEARLY been
10.01.2017 Proposal of EPFO for implementation as sent to MoL&E mentioned that the
16.03.2017 Approval conveyed by MoL&E benefit will also be given
23.03.2017 EPFO HQ issued a circular for implementation of RC Gupta to superannuated
Judgement after following due process of law and Regional employees on payment
Offices across the country started revising pension of of differential amount
RETIREES after obtaining fresh options under deleted Para with interest and upon
11(3) through the employers and pension of 24,672 exercising joint option
RETIREES had been revised as on 17.01.2020 (RTI under 11(3) NOW.
Information) All these documents
were annexed as R-1 to
R06 with the affidavit dt.
13.12.2017 filed by the
then CPFC in the
Supreme Court by way
of an affidavit in
Contempt petition in RC
Gupta case itself
29.08.2017 Since pension of the petitioners of RC Gupta case was not being revised expeditiously,
they filed a CONTEMPT PETITION NO. 1816-17 of 2017 against Mr. VP Joy, the then CPFC,
EPFO in the Supreme Court
13.12.2017 VERY IMPORTANT

Mr. VP Joy, IAS, the then CPFC, EPFO filed his reply by way of sworn affidavit wherein all
the relevant documents dt. 23.11.2016, 08.12.2016, 19.12.2016, 10.01.2017, 16.03.2017
& 23.03.2017 were annexed as R-1 to R-6
Para 2.8: (Extracts) ……. “It is stated that besides HPTDC, there are many other similar
establishments whose employers are/were contributing on full salary and eligible for
revision of pension and cases of retired employees of these establishments are also
being revised…….”.
Para 2.9: (Extracts) ……. “It is stated that in cases where member is still in service the
amount is being diverted on receipt of option and in cases where the employee has
retired and withdrawn their PF, in those cases,they are being asked to deposit the
differential amount (the differential between the amount calculated @8.33% of the
actual salary and the amount already contributed by the employer @8.33% on the ceiling
limit of Rs.6,500/- on actual salary with interest”.
Para 3.2: (Extracts) …….“It is stated that in cases where members are still in service, the
amount is being diverted on receipt of option and in cases where the employees have
retired and withdrawn their Provident Fund, they are being asked to deposit the
differential amount on actual salary, being the difference in the amount calculated
@8.33% of the actual salary and the amount contributed by the employer @8.33%on the
ceiling limit of Rs.6,500/- and the interest ………………”.
Para 3.13. (Extracts) ……. “MOL&E vide letter dated 16-03-2017 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.6,500/- in the Provident Fund to
divert 8.33% of the salary exceeding Rs.6,500/- to the Pension Fund with up-to-date
interest as declared under EPF Scheme,1952 from time to time get the benefit of pension
on higher salary on receipt of joint option of the Employer and Employee”.

In view of the above submissions contained in the affidavit of Mr V P Joy, then CPFCin
the Contempt Petition no. 1816-17 of 2017, the Hon’ble Supreme Court dismissed the
same petition.
08.06.2018 EPFO HQ issued very stern directive to field offices for implementing the circular dt.
23.03.2017 seriously
In the Agenda of 224th Meeting of CBT, EPFO had explained

the complete position as narrated above and has been
accepted that:
9. In the meantime, various petitions against introduction OTIS Elevator case

of Employees’ Pension Scheme, 1995 were filed in different
High Courts and all cases were transferred to Hon’ble
Supreme Court through Transfer Petition. The Hon’ble
Supreme Court in the year 2003 decided the pending
matters by upholding the validity of the Employees’
Pension Scheme, 1995.
10. Since the matter was pending in Hon’ble Supreme Court OTIS judgement
up to 2003 and some interim orders were also passed implemented vide
during this period, many of the Employees who had not circular dt. 05.02.2004
opted to become members of Pension Scheme were given
opportunity to become members of the Pension Scheme
and also to contribute on higher wages as per the
provisions of Para 11(3) of Employees Pension Scheme,
1995 through detailed instructions dated 05.02.2004 for
payment of contribution.
11. Subsequently, considering the financial viability of the

Employees’ Pension Scheme, 1995 based on various Adopted 01.12.2004 as
actuarial reports till then, the opportunity for giving option cut-off date and
to contribute on higher wages on becoming member of the opportunity for giving
Employees’ Pension Scheme was stopped in the year 2004 option to contribute on
vide circular No.Pen 4(38)/96/WB/59867 dated 01.12.2004. higher wages on
A clarificatory circular discontinuing acceptance of becoming member of
contributions on higher wage in Pension Fund was also the Employees’ Pension
issued vide communication dated 22.11.2006. Scheme was stopped.
12. Although administrative instructions were issued Acceptance for validity

disallowing option to contribute on higher wages (wages of options from
exceeding ceiling amount), this provision for contribution 16.11.1995 to
on higher wage in scheme was not amended till the year 31.08.2014
2014. So legally, the provision for contribution on higher
wages continued from 16.11.1995 to 31.08.2014.
13. The provisions relating to option for commutation and

option for return of capital were deleted with effect from
26.09.2008 by GSR.688(E) dated 26.09.2008.
14. The scheme was amended in 2014 by omitting the 01.09.2014 GSR
proviso to clause 11 (3) by G.S.R. No.609 (E), dated
22.08.2014 (with effect from 01.09.2014).
15. During the period 2004 to 2014 many cases were filed in 2004-2014 cases in High
various forums and High Courts, praying for payment of Courts
pension on higher wages by allowing to contribute on
higher wages under the pension scheme.
16. On being aggrieved by the orders of the High Courts, CLEAR ADMISSION BY
EPFO appealed to the Hon’ble Supreme Court wherein EPFO BEFIORE CBT AS
thedepartment filed 8 SLPs in series against the orders of TO WHY THE PRE-
Hon’ble Kerala High Court. The said SLPs were dismissed by 01.09.2014 RETIREES
the Hon’ble Supreme Court vide order dated 31.03.2016 (7 COULD NOT EXERCISE
– SLPs) and dated 12.07.2016 (1-SLP) by bunching the SLPs. OPTION
Some of the Writ Petitions filed against the stand taken by
EPFO in this matter were as old as 2007, that is,
immediately after issue of circulars for stoppage of option
for contribution on higher wages.
July 2019 This matter was being dealt in the Pension Division till now This CONTEMPTUOUS
but after taking over this subject by the Legal Division, EPFO action was totally in
took a U-Turn and stopped pension revision across the contradiction of the
country submissions of CPFC in
Apex Court in the above
affidavit.
The particulars of following 10 SLPs were also brought to the notice during the meeting
6. After that the focus of discussion moved towards the present judgement dt.
04.11.2022
Brief Background:
• Pre-01.09.2014 retirees couldn’t exercise the joint option prior to 01.09.2014 due to an arbitrary cut-off
date (01.12.2004) adopted by EPFO for exercising option under Para 11(3) which had been set-aside by
the Kerala High Court & HP High Court and upheld by the Supreme Court on 31.03.2016, 12.07.2016 and
04.10.2016 by dismissing 8 SLPs filed by EPFO and allowing 2 SLPs filed by RC Gupta & another.
• The judgement in RC Gupta case was implemented vide a circular dt. 23.03.2017 issued by EPFO after
following due process of law and approvals from CBT (19.12.2016) & MoL&E (16.03.2017).
• Accordingly, in compliance of circular dt. 23.03.2017, upon exercising option under Para 11(3) in
2017/2018, pension of 24,672 retirees (including RC Gupta & other petitioners) had also been revised.
• RC Gupta judgement has been upheld repeatedly in the present judgement too and EPFO has been
directed to implement the same within 8 weeks (See sub-para 44.ix).
• It has also been directed that the employees from exempted as well as unexempted estts are on equal
footing for EPS’95.
footing for EPS’95. Earlier, they were being treated differently as per interim circular dt. 31.05.2017
• As per our interpretation,pre-01.09.2014 retirees are to be benefitted by RC Gupta Judgment dt.
04.10.2016 whereas the Judgement dt. 04.11.2022 is meant for post-01.09.2014 retirees & serving
employees as they were adversely affected by GSR 609 (which was the main issue for adjudication in the
present litigation).
Attention was now drawn towards the judgement dated 04.11.2022 especially Para 41 and Para 44
of the judgement for deliberation and legal interpretation by Mr. Gopal Sankaranarayanan, Sr
Advocate
Para 41 (Extracts) “………………………………….. our opinion is that the eligibility for enhancement
cannot be restricted to those employees only who had exercised the option to remain in the
scheme once their salary went beyond the capping of Rs. 6500/- per month. As we have
already discussed, in case of R.C. Gupta (supra), it has been specifically held that there was
no cut-off date in proviso to paragraph 11(3) as it stood before the 2014 amendment. In our
opinion, the interpretation given to the proviso to paragraph 11(3) prior to 2014 amendment
does not require any reconsideration. We agree with the reasoning of the two-judge Bench of
this Court on this point, as expressed in the said judgment. As there was no cut-off date to be
contemplated prior to the 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
the case of R.C. Gupta (supra). We are not holding that no option was required to be
exercised as per proviso to paragraph 11(3) of the scheme, as it stood prior to 2014
amendment. As held in the case of R.C. Gupta (supra), there was no time-limit for exercising
such option.”
• Post-01.09.2014 retirees/employees couldn’t exercise option under Para 11(4) due to stipulation of
cut-off date (01.09.2015) i.e., 6 months + 6 months after 01.09.2014 as contained in the GSR 609 dt
22.08.2014 which prompted the affected beneficiaries to approach High Courts/ Supreme Court.
• This cut-off date has been set-aside by the Supreme Court in the present judgement dt. 04.11.2022
and the beneficiaries have been allowed to exercise option under Para 11(3) as well as 11(4) within a
period of 4 months from 04.11.2022 making them eligible for higher pension on actual salary after
returning/ depositing the differential amount as per the provisions contained in RC Gupta case and the
directions contained in the present judgement.
• Only those persons will be eligible who had been contributing towards PF on their actual salary.
footing for EPS’95.
• Post-01.09.2014 retirees/serving employees will be benefitted by RC Gupta Judgment dt. 04.10.2016
and also the directions contained in Judgement dt. 04.11.2022.
As per our interpretation, Judgement in RC Gupta case has granted relief to all pre-01.09.2014 retirees
whereas thejudgement dt. 04.11.2022 has granted due relief to all the post-01.09.2014 retirees and serving
employees subject to their fulfilling eligibility i.e., contribution towards Provident Fund as per Para 26(6) of
EPF Scheme, 1952 on higher wages (NOT ON CEILING WAGES) upon exercising the related option(s) under
Para 11(3) &/or Para 11(4) and returning/ transferring the differential amount as per RC Gupta judgement
dt. 04.10.2016 (implemented vide circular dt. 23.03.2017).
Para 44.
We accordingly hold and direct: -
Sub
Directions given in the Judgement dt. 04.11.2022 Our submissions
para
(i) The provisions contained in the notification no. G.S.R. Relates to serving employees
609(E) dated 22nd August 2014 are legal and valid. and post-01.09.2014 retirees
So far as present members of the fund are concerned, GSR affecting post-01.09.2014
we have read down certain provisions of the scheme as retirees and present employees,
applicable in their cases and we shall give our findings has been held legal & valid
and directions on these provisions in the subsequent (Present members in view of
subparagraphs. restrictive/disputed GSR 609 dt.
22.08.2014 should be including
post-01.09.2014 retirees too)
(ii) Amendment to the pension scheme brought about by Relates to Post 01.09.2014
the notification no. G.S.R. 609(E) dated 22nd August retirees and serving employees
2014 shall apply to the employees of the exempted of Exempted Establishments
establishments in the same manner as the employees No distinction between
of the regular establishments. employees of exempted &
Transfer of funds from the exempted establishments unexempted establishments.
shall be in the manner as we have already directed. (also applicable for pre-
01.09.2014 retirees)
(iii) The employees who had exercised option under the Relates to Post 01.09.2014
proviso to paragraph 11(3) of the 1995 scheme and retirees & serving employees
continued to be in service as on 1st September 2014, who joined the EPS prior to
will be guided by the amended provisions of paragraph 01.09.2014 and had exercised
11(4) of the pension scheme. option under Para 11(3).
Option under Para 11(4) can be
exercised now
(iv) The members of the scheme, who did not exercise Relates to Post 01.09.2014
option, as contemplated in the proviso to paragraph retirees & serving employees
11(3) of the pension scheme (as it was before the 2014 who joined the EPS prior to
Amendment) would be entitled to exercise option 01.09.2014 and had NOT
under paragraph 11(4) of the post amendment scheme. exercised option under Para
Their right to exercise option before 1st September 11(3)
2014 stands crystalised in the judgment of this Court in
the case of R.C. Gupta (supra). The scheme as it stood Option under Para 11(3) & Para
before 1st September 2014 did not provide for any 11(4) can be exercised now
cutoff date and thus those members shall be entitled to within 4 months from the date
exercise option in terms of paragraph11(4) of the of judgement
Sub
para
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 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

Eshall be complied with.
(v) The employees who had retired prior to 1st September Relates to Pre-01.09.2014
2014 without exercising any option under paragraph Retirees of Exempted &
11(3) of the pre amendment scheme have already Unexempted estts. who had
exitedfrom the membership thereof. NOT exercised option under
They would not be entitled to the benefit of this Para 11(3) (i.e. The retirees
judgment. who have not opted to
contribute on higher salary
under Para 26 (6) of the EPF
Scheme, 1952 and exited from
the membership, and therefore
did not have the benefit of
R.C.Gupta’s Judgemnt)
Since they have exited from
membership, they would not be
entitled to the benefit of this
judgment.
Remedy for the Pre-01.09.2014

Sub
para
retirees have been given in the
sub-para (vi) whereby upon
exercising option under Para
11(3), the eligible beneficiaries
will be covered by the related
provisions
(vi) The employees who have retired before 1st September Relates to Pre-01.09.2014
2014 upon exercising option under paragraph 11(3) of Retirees of Exempted &
the 1995 scheme shall be covered by the provisions of Unexempted estts
the paragraph 11(3) of the pension scheme as it stood
prior to the amendment of 2014. These retirees will be eligible
upon exercising option under
Para 11(3) as allowed in RC
Gupta judgement as they have
opted to contribute under para
26 (6) of EPF, 1952. Further
upon exercising option under
deleted Para 11(3) as
contemplated under RC Gupta
Judgment, pension of 24,672
pensioners had been revised in
accordance with EPFO’s circular
dt 23.03.2017
(vii) The requirement of the members to contribute at the Relates to Post 01.09.2014
rate of 1.16 per cent of their salary to the extent such retirees and serving employees
salary exceeds Rs.15000/- per month as an additional Required to contribute amount
contribution under the amended scheme is held to be @1.16% on the wages
ultra vires the provisions of the 1952 Act. But for the exceeding Rs. 15,000 pm as a
reasons already explained above, we suspend stop gap measure for 6 months
operation of this part of our order for a period of six and by that time Government
months. We do so to enable the authorities to make will take a suitable decision for
adjustments in the scheme so that the additional revenue generation or for the
contribution can be generated from some other amendment of the Act.
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
Sub
para
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 Relates to Post 01.09.2014
computation of pensionable salary. retirees and serving employees
(ix) We agree with the view taken by the Division Bench in Relates to Pre-01.09.2014,
the case of R.C. Gupta (supra) so far as interpretation post-01.09.2014 retirees from
of the proviso to paragraph 11(3) (pre amendment) exempted as well as
pension scheme is concerned. The fund authorities unexempted estts.
shall implement the directives contained in the said EPFO has been directed to
judgment within a period of eight weeks, subject to implement RC Gupta
our directions contained earlier in this paragraph. Judgement within 8 weeks
subject to Courts directions
contained in earlier paragraphs
(x) The Contempt Petition (C) Nos.1917-1918 of 2018 and Relates to Post 01.09.2014
Contempt Petition (C) Nos. 619-620 of 2019 in Civil retirees and serving employees
Appeal Nos. 10013-10014 of 2016 are disposed of in
the above terms.
After due deliberations on each issue arisen after the Judgment of the Hon’ble Supreme Court
dated 4.11.2022 with Learned Mr. Gopal Sankaranarayanan, Sr Advocate, the following are
observed and opined:
The Senior Advocate referred to paragraph No.29, 32, 38, 40(ii) and 41 of the judgement for the
purpose of taking a decision on the further course of action in the light of the direction contained in
para 44 (i) to (x).
His explanation about those paragraphs in the present judgement are :-
Retirees prior to 1.9.2014:
(A) That at the time when R.C. Gupta judgement was delivered the present Impugned Gazette
Notification dated 22.8.2014 did not form part of judicial notice/issue in R.C. Gupta; That R.C.
Gupta considered the provisions of the scheme that existed prior to 1.9.2014 and held as
follows:
i) There is no cut of date to determine the eligibility of the employee to indicate
their option under the proviso to Clause 11(3) of the Pension Scheme; and
ii) If both the employer and the employee opt for deposit against the actual salary
and not the ceiling amount, exercise of option under Para 26 (6) of the
Provident Scheme is inevitable. Exercise of the option under Para 26(6) is a
necessary precursor to the exercise of option under Clause 11(3).
(B) The Hon’ble Court in the present Judgment dated 4.11.2022 had upheld the above findings of
the RC Gupta’s Judgment in para 41 read with para 44 (vi) & 44 (ix) holding that:
i) The interpretation given to proviso 11 (3) prior to 2014 amendment in R.C.Gupta
Judgment does not require any reconsideration
ii) There is no time limit for exercising option under proviso 11 (3) as stood before the
amendment.
i) 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.
Therefore fresh option has to be exercised by the retirees retired prior to 1.9.2014
under 11 (3) proviso (pre-amended) as contemplated in R.C.Gupta’s Judgment at the earliest.
Upon exercising such option, they would be entitled to the benefit of R.C.Gupta’s Judgment,
to enable the Fund Authorities to implement the said Judgment within 8 weeks as per
direction contained in para 44 (ix). Therefore the retires retired prior to 1.9.2014 who had
opted to contributed on higher salary under 26 (6) of EPF Scheme who are eligible for giving
such option, can request the Provident Fund Commissioner in the manner contemplated in
R.C.Gupta’s Judgment at the earliest as follows:
“All that the Provident Fund Commissioner is required to do in the case is an

adjustment of accounts which in turn would have benefited 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 employees concerned 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”
(C) The Senior Counsel is of the view that para 44 (v) of the Judgment relates to Pre-01.09.2014
Retirees of Exempted & Unexempted estts. who had NOT exercised option under Para 11(3)
(i.e. The retirees who have not opted to contribute on higher salary under Para 26 (6) of the
EPF Scheme, 1952 and exited from the membership, and therefore did not have the benefit
of R.C.Gupta’s Judgment. Since they have exited from membership, they would not be
entitled to the benefit of the Judgment dated 4.11.2022 as also RC Gupta’s Judgment.
Exempted Establishment:
(D) In para 38 of the Judgment, the Hon’ble Supreme Court held that the pension scheme
ought to apply to the employees of the exempted establishments in the same manner
as this scheme applies to the employees of unexempted establishments. Therefore the
benefit of the pension scheme as contemplated in the Judgment in R.C. Gupta is applicable to
both exempted and unexempted establishment. So option can be exercised by the
employees of both the establishment. Hence a request be also made by the retirees of the
Exempted Establishment in following line as stipulate in para 39 of the Judgment:
“Taking that factor into account, we are of the view that in order to be entitled to the
benefits of the pension fund, the employer and the employee, simultaneously with
exercising option in terms of the order of this Court, shall also have to give an
undertaking of transferring the employers’ contribution at the stipulated rate
maintained by the trusts, which shall be equivalent to and not lower than the sum
which would have been transferable, had such fund been maintained by the provident
fund authorities. Such transfer shall take place, immediately after exercise of such
option, within such period as may be directed by the administrators of the pension
fund.
(E) In view of the direction contained in 44 (ix), the fund authorities shall implement the
directives contained in the said judgment within a period of eight weeks. Hence the
retires prior 10 1..2014 have to make appropriate representation as contemplated
above at the earliest to the concerned authorities to get the benefit of the Judgment
dated 4.11.2022 and R.C.Gupta’s Judgment
(F) The Senior Advocate Mr.Gopal Sankar Narayanan further opined that after submitting such
options by those retired prior to 1.9.2014, should then wait for further unfolding of events
arising at the end of EPFO on the options so to be exercised. Thereafter the retirees retired
prior to 1.9.2014 may seek clarification from the Hon’ble Supreme Court depending upon the
response from the EPFO.
Retirees after 1.9.2014 :
(G) The Senior Counsel by relying on para 29 & 32 of the Judgment had stated that the Court has
accepted the argument of the employees holding that it is a fact that those who are covered
by paragraph 26 (6) of the provident fund scheme automatically enters into the pension
scheme under proviso 11 (3) of the pre-amended scheme. However the Hon’ble Court had
rejected the challenge made by the Employee to the amended scheme and upheld its
validity. The relevant portion of the Judgment reads as follows:
“It is a fact that those who are covered by paragraph 26(6) of the provident fund
scheme automatically enters into the pension scheme as well. But this provision
cannot be held to have precluded the Central Government from laying down
conditions to remain eligible for the pension scheme and specify wage or salary
ceiling for individual employees beyond which the scheme may not operate. We also
do not accept the argument that the pension scheme considers employees as a
homogenous group and no distinction can be made among different categories of
employees based on their monthly salary to determine for whom the scheme shall
operate in a particular manner. It is well within the power and authority of the
statutory authorities to reasonably classify different sets of employees and categorise
them for the nature of benefits they might get from an existing scheme. In fact, the
scheme, at its inception was made applicable to those drawing wages upto Rs.5000/.
The provision relating to exercising option was introduced later, in the year 1996.”
(H) Further in para 32 and 44 (i) the Hon’ble Supreme Court had upheld the validity of the
Scheme :
“We find that the amendment was made in exercise of power otherwise vested in the
authority making such amendment and the amendments were made on the basis of
certain relevant materials and not whimsically. In this context, the scope of judicial
scrutiny to test the constitutionality of the amendment provisions becomes narrow.”
(I) Further in para 44 (viii) the Hon’ble Supreme Court held that there is no flaw in
altering the basis for computation of pensionable salary.
Therefore the Senior Counsel of the view that since the Hon’ble Court had upheld the validity
of the amended pensions scheme by holding the provision [i.e. proviso to 11 (3)] which
allows the employee seeking pension on higher salary to enter the pension scheme
automatically on exercise of option under 26 (6), cannot have precluded the Central
Government from laying down conditions to remain eligible for the pension scheme
by way of an amended scheme, the members of scheme (who continued to be
members after 1.9.2014 in the EPS till their retirement) can seek only review of that
portion of the Judgment. However the Hon’ble Court in para 44 (iv) had protected
their rights which had accrued to them till 1.9.2014 and which is crystallized in view of
the Judgment in R.C.Gupta.
(J) The Hon’ble Court in para 44 (iv) of the Judgment dated 4.11.2012 has held that those
members of the scheme (who continued to be members after 1.9.2014 in the EPS till their
retirement), even if they had not exercised an option before 1.9.2014 under the earlier 11(3)
proviso as contemplated under R.C.Gupta Judgment, is entitled to exercise the Joint option in
the nature of covering proviso to 11 (3) pre amended and under 11 (4) post amendment. In
that event exercise option under 11 (4) post amendment is extended for a period of 4
months.
(K) Therefore the members of the scheme (who continued to be members after 1.9.2014 in the
EPS till their retirement), who did not exercise option, as contemplated in R.C.Gupta’s
Judgment under 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(3) of the pre amendment scheme as their rights stands crystallised in RC Gupta.
But as they are also covered under 11 (4) of post amendment scheme which is upheld
by the Hon’ble Court, 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 scheme.
(L) Meaning thereby, the members of the scheme (who continued to be members after
1.9.2014 in the EPS till their retirement) will be entitled to pensionable salary on the basis of
60 months average. The requirement of the members/retires to contribute under the
amended scheme at the rate of 1.16 per cent of their salary to the extent such salary
exceeds Rs.15000/per month will be applicable only for the period after 1.9.2014 till
their retirement. However the requirement to contribute the said 1.16 percent will
not be necessary if no amendment is carried out by the Central Government in this
regard as held in para
(M) Those serving now or retired after 1.9.2014 have time to exercise another option under para
11(4) within FOUR months from the date of this judgement, hence appropriate
representation be made stating that their rights under the pension scheme till 1.9.2014
stands crystallised inview of the Judgment in RC Gupta and accordingly the benefits may be
given. Then exercise a joint option in the nature of covering both proviso to 11 (3) pre-
amended and under 11 (4) post amended.
(N) The Senior Advocate Mr.Gopal Sankar Narayanan further opined that after submitting such
options by those members of the scheme (who continued to be members after 1.9.2014 in
the EPS till their retirement), should then wait for further unfolding of events arising at the
end of EPFO on the options so to be exercised. Thereafter the retirees retired after 1.9.2014
may seek appropriate clarification from the Hon’ble Supreme Court depending upon the
response from the EPFO.
(O) However if the members of the scheme (who continued to be members after 1.9.2014 in the
EPS till their retirement) is aggrieved regarding the upholding of the validity of the amended
scheme as a whole or the 60 months average which forms as the basis for computation of
pensionable salary under the amended scheme or with respect to the contribution of
1.16 percent to be made by the employees for the period after 1.9.2014,if the Central
government amends the provisions of the PF Act, 1952, has to file a Review Petition.
But at this stage no review petition to be filed.
(P) So far as the affidavit filed in the Supreme Court in Contempt Petition no. 1816-1817 of 2017 (RC
Gupta case), the then CPFC, EPFO (Dr. VP Joy, IAS) stating that the pension of Retirees as well as
serving employees was being revised as per RC Gupta Judgement, is of no consequence as the
Hon’ble Court had subsequently upheld the validity of the Scheme by the Judgment dated
4.11.2022. If the Employees are aggrieved by the same, then they have mention the same a ground
for review, in the event of review is being filed.
CRISP OPINION :
1. Pre-1.9.2014 Retires of the Exempted These retirees are eligible for benefit of the R.C.Gupta
Establishment Judgment to get pension on higher pensionable
salary, so they can exercise the option at the earliest
under proviso to 11 (3) pre-amended EPS Scheme and
request the fund authorities to transfer the funds to
EPFO by giving suitable undertaking.
2. Pre-1.9.2014 Retires of the un-Exempted These retirees are eligible for benefit of the R.C.Gupta
Establishment Judgment to get pension on higher pensionable
salary, so they can exercise the option under proviso
to 11 (3) pre-amended EPS Scheme
3. Post 1.9.2014 Retires of the Exempted These retirees are eligible for benefit of the R.C.Gupta
Establishment Judgment so far as the rights accrued to them till
1.9.2014, thereafter they would be covered by the
amended scheme. So they have to exercise Joint
option in the nature of covering both under proviso
to 11 (3) pre-amended EPS Scheme and under 11 (4)
of the amended scheme and request the fund
authorities to transfer the funds to EPFO by giving
suitable undertaking.
4. Post 1.9.2014 Retires of the un-Exempted These retirees are eligible for benefit of the R.C.Gupta
Establishment Judgment so far as the rights accrued to them till
1.9.2014, thereafter they would be covered by the
amended scheme. So they have to exercise Joint
option in the nature of covering both under proviso
to 11 (3) pre-amended EPS Scheme and under 11 (4)
of the amended scheme.
5. Presently serving employees of (Exempted & Un- These Employees are eligible for benefit of the
exempted ) Establishment R.C.Gupta Judgment so far as the rights accrued to
them till 1.9.2014, thereafter they would be covered
by the amended scheme. So they have to exercise
Joint option in the nature of covering both under
proviso to 11 (3) pre-amended EPS Scheme and under
11 (4) of the amended scheme
A.VENAYAGAM BALAN, ADVOCATE C M SUNDARAM IYER, ADVOCATE

28.11.2022 - Expert Legal Opinion of Mr. Gopal Sankaranarayanan, Sr. Advocate

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28.11.2022 - Expert Legal Opinion of Mr. Gopal Sankaranarayanan, Sr. Advocate

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11/28/22, 9:59 AM Gmail - Fwd: Brief of the discussions held through Zoom Meeting on 23.11.2022 with Mr.

h Mr. Gopal Sankaranarayanan, Sr Advocate…

PARVEEN KOHLI <pkkohli@gmail.com>

Neeraj Bhargava <nbhargava.0958@gmail.com> 28 November 2022 at 09:30

---------- Forwarded message ---------

From: A.Venayagam Balan <lakshmivinayagamadvocates@gmail.com>

Date: Mon, 28 Nov 2022 at 9:28 AM

To: nbhargava.0958@gmail.com <nbhargava.0958@gmail.com>

Supreme Court of India,

LAKSHMI VINAYAGAM LAW ASSOCIATES

Flat No.1101, Tower No.5,

Sector 99, Noida

Phone : 0120 - 4324354

Sub: Observation and Opinion of Mr. GopalSankaranarayanan, Sr

His explanation about those paragraphs in the present judgementare :-

Retirees prior to 1.9.2014:

Therefore fresh option has to be exercised by the retirees retired prior to

“All that the Provident Fund Commissioner is required to do in the case is

Retirees after 1.9.2014 :

amendment is carried out by the Central Government in this regard as held in

5. Presently serving employees of These Employees are eligible for benefit of

A.VENAYAGAM BALAN &C M SUNDARAM IYER, ADVOCATES

Date Particulars Remarks

This entry be marked as withdrawal on account of EPS membership as per Hon’ble

22.11.2006 Regarding Para 11(3), EPFO HQ clarified that:

08.11.2013 Regarding Para 11(3), EPFO HQ clarifiedthat:

04.10.2016 RC Gupta Judgement

13.12.2017 VERY IMPORTANT

20.04.2018 VERY IMPORTANT

In the Agenda of 224th Meeting of CBT, EPFO had explained

9. In the meantime, various petitions against introduction OTIS Elevator case

11. Subsequently, considering the financial viability of the

12. Although administrative instructions were issued Acceptance for validity

13. The provisions relating to option for commutation and

There was uncertainty as regards validity of the post

Rest of the requirements as per the amended provision

Remedy for the Pre-01.09.2014

“All that the Provident Fund Commissioner is required to do in the case is an

Retirees after 1.9.2014 :

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