Karnataka High Court

Dr H K T Kumara vs Union Of India on 4 August, 2023

Bench: K S Hemalekha

     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.27286/2019 (L-PF)

BETWEEN:

1.   DR. H.K.T. KUMARA
     AGED ABOUT 65 YEARS,
     S/O. LATE H.K.HALEGOWDA,
     #9, MYLARALINGASWAMYNILAYA,
     3RD MAIN, VINOBHANAGAR,
     TUMAKURU - 572 101.

2.   DR. K.L. SHIVABASAPPA
     AGED ABOUT 63 YEARS,
     S/O. LATE K.LINGAPPA,
     SOBAGU, 1ST CROSS, 4TH MAIN,
     SIDDAGANGA EXTENSION,
     TUMAKURU - 572 101.

3.   DR. V. SHIVAPRASAD
     AGED ABOUT 64 YEARS,
     S/O. V.MUSTOORAPPA,
     SHIVAKRUPA, TPK ROAD,
     1ST CROSS, 1ST MAIN,
     SAPTHAGIRI EXTENSION,
     TUMAKURU - 572 101.

4.   DR. UMASHANKAR
     AGED ABOUT 62 YEARS,
     S/O. LATE M.C.RAMAIAHSETTY,
     #2, PRASHANSA,
     BEHIND CHETANAVIDYAMANDIRA,
     BATAWADI,
     TUMAKURU - 572 103.

5.   DR. K.P. SHIVAMURTHY
     AGED ABOUT 61 YEARS,
     "SHIVAKRUPA", 1ST FLOOR,
                                -2-
      5TH CROSS, SRINAGAR,
      SIDDAGANGAMATH ROAD,
      TUMAKURU - 572 104.

6.    SRI. D.N. JAYARAM
      AGED ABOUT 62 YEARS,
      S/O. NARAYAN D.,
      SRI SKANDANIVAS,
      6TH MAIN, 4TH CROSS,
      DEVANUR ROAD,
      VIJAYANAGAR,
      TUMAKURU - 572 102.

7.    SRI. B. BASAVARAJAIAH
      AGED ABOUT 68 YEARS,
      S/O. LATE GANGADHARAIAH,
      8TH MAIN, 3RD CROSS,
      SRI KRISHNA NAGAR,
      BADDIHALLY, KATHASANDRA POST,
      TUMAKURU - 572 104.

8.    SRI. S.R. SIDDAGANGAIAH
      AGED ABOUT 68 YEARS,
      S/O. LATE S.L. RAJASHEKARAIAH,
      SIDDAGANGA QUARTERS BUILDING,
      BANDEPALYA, D. PATNA ROAD,
      TUMAKURU - 572 104.

9.    SRI. R.S. SIDDESHAIAH
      AGED ABOUT 63 YEARS,
      S/O. SHIVANANJAPPA,
      VIBHU 7TH MAIN,
      PRASHANTH NAGAR,
      DEVARAYAPATNA,
      TUMAKURU - 572 104.

10.   SRI. H.S. SHIVARUDRAIAH
      AGED ABOUT 60 YEARS,
      S/O. SHAMBHULINGAPPA,
      SHIVAGANGANILAYA, 3RD MAIN,
      DEVANUR ROAD, UPPARAHALLI,
      TUMAKURU - 572 102.

11.   SRI. T.H. NAGABHUSHANA
      AGED ABOUT 66 YEARS,
                               -3-
      S/O. LATE A.M. HANUMANTHACHAR,
      BENAKA, 5TH CROSS, GARIKE ROAD,
      GOKULA EXTENSION,
      TUMAKURU - 572 104.

12.   SRI. D.H. KANTAPPA
      AGED ABOUT 59 YEARS,
      S/O. LATE HALAPPA D.,
      3RD MAIN, 9TH CROSS,
      NRUPATHUNGAEXTN.,
      TUMAKURU - 572 102.

13.   SRI. T.H. MALLIKARJUNA
      AGED ABOUT 60 YEARS,
      S/O. LATE M. HANUMANTHACHAR,
      SHREE YAGATIMALLIKARJUNANILAYA,
      9TH CROSS, GOKULA EXTENSION,
      TUMAKURU - 572 104.

14.   SRI. B.M. SREEKANTAMURTHY
      AGED ABOUT 60 YEARS,
      S/O. MUDDAIAH B.S.,
      SHIVAKRUPA, 3RD MAIN, 1ST CROSS,
      JAYANAGAR EAST,
      TUMAKURU - 572 102.

15.   SRI. PARAMESWARAIAH
      AGED ABOUT 66 YEARS,
      S/O. K.M.SHIVANNA,
      NO.148, ASHIRWAD,
      3RD MAIN, 3RD CROSS,
      SRI KRISHNANAGAR,
      KYATHASANDRA,
      TUMAKURU-572 104.

16.   SRI. C.P. LOKESH
      AGED ABOUT 62 YEARS,
      S/O. PARAMESWARAIAH C.R.,
      C/O. HPS TAILORS,
      OPP. YATRI NIVAS,
      NEAR RAILWAY GATE,
      BASAVESHWARA BADAVANE,
      KYATHSANDRA,
      TUMAKURU - 572 104.
                                 -4-
17.   SRI. A. RAJU
      AGED ABOUT 60 YEARS,
      S/O. ARUNACHALAM,
      #D-1 MBA QTAR SIT CAMPUS,
      BH ROAD,
      TUMAKURU - 572 103.

18.   SRI. RENUKAPPA S.
      AGED ABOUT 67 YEARS,
      S/O. N.R. SIDDAIAH,
      UMESH KRUPA,
      BEHIND MARP QUARTERS,
      SIDDALINGAIAHNAPALYA,
      TUMAKURU - 572 103.

19.   SRI. GOVARDHAN RAO
      AGED ABOUT 60 YEARS,
      S/O. ESWARARAO,
      8TH CROSS, 5TH MAIN,
      SS PURAM,
      TUMAKURU - 572 102.

20.   SRI. B. CHANDRASHEKARAIAH
      AGED ABOUT 63 YEARS,
      S/O. LATE BASAVAIAH,
      DIVYA NILAYA,
      SRI KRISHNA NAGARA,
      3RD MAIN, 3RD CROSS,
      BOODIHALLI KYATHSANDRA,
      TUMAKURU - 572 104.

21.   SRI. R.T. RANGANATHAPPA
      AGED ABOUT 64 YEARS,
      10TH CROSS, BADDIHALLI,
      KYATHSANDRA,
      TUMAKURU - 572 104.

22.   SRI. P. GURUSIDDAPPA
      AGED ABOUT 64 YEARS,
      S/O. PARAMESHWARAPPA,
      LAKSHMI NARSIMHA KRUPA,
      4TH MAIN, 2ND CROSS,
      JAYANAGAR WEST,
      SHETTYHALLI MAIN ROAD,
      TUMAKURU - 572 102.
                              -5-

23.   SRI. G.H. JAYAKUMARASWAMY
      AGED ABOUT 60 YEARS,
      S/O. H.HALAIAH,
      3RD MAIN ROAD, NO.31,
      NRUPATUNGA EXTENSION,
      TUMAKURU - 572 102.

24.   SRI. K.N. VIJAYAKUMAR
      AGED ABOUT 61 YEARS,
      S/O. NARASIMHA BHATTA K.G.,
      4157/E, SUBRAMANYANAGAR,
      RAJAJINAGAR 2ND STAGE,
      BENGALURU - 560 021.

25.   SRI. K.L. LAKSHMIKANTH
      AGED ABOUT 62 YEARS,
      S/O. K.P.LAKSHMINARASHIMAIAH,
      NEAR SIDDAGANGA PETROL BUNK,
      BH ROAD, KYATHASANDRA,
      TUMAKURU - 572 104.

26.   SRI. B. SOMESWARA RAO
      AGED ABOUT 63 YEARS,
      S/O. B.KAMESWARA RAO,
      7TH CROSS-A, VIDYANAGAR,
      TUMAKURU - 572 103.

27.   SRI. A.S. SHANTHA KUMAR
      AGED ABOUT 67 YEARS,
      S/O. LATE SIDDALINGAPPA,
      25THCROSS, SIT EXTENSION,
      TUMAKURU - 572 103.

28.   SRI. B. SUDARSHAN
      AGED ABOUT 60 YEARS,
      S/O. LATE T.G. BASAVARAJ,
      CHANNABASAWESWARA NILAYA, 8TH MAIN,
      SIDDARAMESWARA EXTENSION, BATAWADI,
      TUMAKURU - 572 103.

29.   SRI. C.M. PARAMESWARA
      AGED ABOUT 64 YEARS,
      S/O. LATE C.B. MURUDAPPA,
      "YESHAS", 5TH CROSS,
                               -6-
      SOMESWARAPURAM,
      TUMAKURU - 572 102.

30.   SRI. H.M. SHIVAPRAKASH
      AGED ABOUT 70 YEARS,
      S/O. LATE H. MARULAIAH,
      "HARSHA NILAYA" 6TH MAIN.
      7TH CROSS, SADASHIVANAGAR,
      TUMAKURU - 572 103.

31.   SRI. Y.S. RAVIKUMAR
      AGED ABOUT 63 YEARS,
      S/O. SHIVARUDRAPPA.Y.R.,
      SREE VEERBHADRASWAMY NILAYA,
      13TH CROSS, 80 FEET ROAD,
      MAHALAKSHMI NAGARA, BATAWADI,
      TUMAKURU - 572 103.

32.   SRI. G.S. LOKESWARAPPA
      AGED ABOUT 71 YEARS,
      S/O. LATE G.B.SIDDAPPA,
      "KAVITHA NILAYA",
      TPK ROAD, RAGHAVENDRANAGARA,
      (NEAR ANIL INDUSTRY)
      TUMAKURU - 572 103.

33.   SRI. N. MAHADEVASWAMY
      AGED ABOUT 71 YEARS
      S/O. LATE N. NANJAPPA
      "SREEVINAYAKA"
      12TH CROSS, 1ST MAIN,
      SAPTHAGIRI EXTENSION,
      NEAR NALANDA CONVENT,
      TUMAKURU - 572 102.

34.   SRI. B. S. MANJUNATH
      AGED ABOUT 60 YEARS,
      S/O. R. SIDDAIAH,
      #25, "SARALA" 2ND MAIN,
      KENGERI SATELLITE TOWN,
      BANGALORE - 560 060.

35.   SRI. T. MURALIDHARA
      AGED ABOUT 61 YEARS,
      S/O. THIMMAPPA,
                               -7-
      SREE NANDAN, 4TH MAIN, 4TH CROSS,
       4TH LINK, JAYANAGARA WEST,
      TUMAKURU-572 102.

36.   SRI. N. CHANDRAIAH
      AGED ABOUT 63 YEARS,
      S/O. LATE NANJAPPA,
      HEBBAKA ROAD,
      NEAR PETROL BUNK, OORUKERE,
      TUMAKURU - 572 106.

37.   SRI. MAHANTESH MALLABADI
      AGED ABOUT 60 YEARS,
      S/O. LATE VEERABHADRAPPA,
      DEAD END 'B' CROSS,
      RAILWAY PARALLEL ROAD,
      MARUTHI NAGAR,
      TUMKURU - 572 102.

38.   SRI. K.M. RUDRESH
      AGED ABOUT 69 YEARS,
      S/O. LATE K.M. SHIVANANDA SWAMY.
      "SWATHI" 8TH 'B' CROSS,
      40 FEET MAIN ROAD,
      MARUTHINAGARA,
      TUMAKURU - 572 102.

39.   SRI. I.B. SIDDALINGAPPA
      AGED ABOUT 68 YEARS.
      S/O. LATE BASAVAIAH,
      "KALPATHARU" 11TH CROSS,
      GANGOTRI ROAD, SIT EXTENSION,
      TUMAKURU - 572 103.

40.   DR. S.M. SHASHIDHARA
      AGED ABOUT 69 YEARS,
      S/O. LATE SAVANUR MURUGAPPA.
      S.M.S.BUILDING, 3RD MAIN,
      SIDDAGANGA EXTENSION,
      TUMAKURU - 572 102.

41.   SRI. R.S. SHIVAKUMAR
      AGED ABOUT 61 YEARS,
      S/O. LATE M.V. SHIVAPPA,
      "SHREE RENUKA', 8TH CROSS,
                               -8-
      7TH MAIN, S.S.PURAM,
      TUMAKURU - 572 102.

42.   DR. R.H. JAYAPRAKASH
      AGED ABOUT 63 YEARS,
      S/O. LATE R. HALAPPA,
      SRI. VEERABHADRESWARA KRUPA,
      MANJUNATHA NAGARA,
      TUMAKURU - 572 104.

43.   SRI. M. S.CHANDRASHEKAR
      AGED ABOUT 62 YEARS.
      S/O. LATE M.A. SHIVAPUTHREGOWDA,
      HEBBANAHALLY, MOOGALI POST,
      SAKALESHPURTALUK,
      HASSAN DISTRICT.

44.   SRI. VINAYAKA VITTAL PAI
      AGED ABOUT 60 YEARS,
      S/O. LATE VITTAL VAMAN PAI,
      "SIDDI" 1ST MAIN ROAD,
      JAYANAGAR EAST,
      TUMUKURU-572 103.

45.   SRI. A.B. RAJASHEKHARAIAH
      AGED ABOUT 60 YEARS,
      S/O. LATE BASAVAIAH,
      SHIVADAMANILAYA, NEAR WATER TANK,
      DEVARAYAPATNA POST, SREE NAGARA,
      TUMKURU - 572 104.

46.   SRI. G. SIDDABASAVAIAH
      AGED ABOUT 64 YEARS
      S/O. LATE GANGANNA,
      SIDDALINGAIAHNAPALYA,
      BEHIND POLICE QUARTERS,
      1ST CROSS, GANGADARESHWARANILAYA,
      TUMAKURU - 572 103.

47.   SRI. B.R. NAGARAJ
      AGED ABOUT 65 YEARS
      S/O. LATE RANGAIAH.
      PUMP HOUSE, OPP. H.M.S COLLEGE,
      SHETTIHALLI MAIN ROAD,
      TUMAKURU - 572 103.
                               -9-

48.   SRI. S. MUDDABYRAPPA
      AGED ABOUT 71 YEARS
      S/O. LATE SHANKARAPPA
      KOTHAGERE HOBLI,
      KUNIGAL TALUK, SULEKUPPE,
      TAREDAKUPPE,
      TUMKUR - 572 120.

49.   SRI. T. B. UDAYA SHANKAR ARADHYA
      AGED ABOUT 64 YEARS
      S/O. LATE T.G.BASAVARADHYA
      H.NO-1371,"GEET" 3RD CROSS,
      K.R.EXTENSION,
      TUMAKURU - 1.

50.   SRI. T. G. SOMASHEKHARAIAH
      AGED ABOUT 60 YEARS,
      S/O. N. GURUSIDDAIAH, "PRAKRUTHI",
       40 FEET ROAD, 7TH CROSS,
      GOKULA EXTENSION,
      TUMAKURU - 572 104.

51.   SRI. BASAVARAJAIAH
      AGED ABOUT 59 YEARS,
      S/O. LATE GANGADHARAIAH,
      "GANGADHARESWARA NILAYA",
      3RD CROSS, BEHIND VIDYAVAHINI COLLEGE,
      GIRINAGARA, KYATHASANDRA,
      TUMAKURU - 572 104.                    ... PETITIONERS

(P-1 TO P-9, 11, 15, 16, 18, 20, 21, 22,
24 TO 33, 35, 36, 38, 39 TO 43, 46 TO 49
SENIOR CITIZENS BENEFIT NOT CLAIMING)

(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
                             - 10 -
2.   EMPLOYEES PROVIDENT FUND ORGANISATION
     (MINISTRY OF LABOUR & EMPLOYMENT,
     GOVERNMENT OF INDIA),
     BHAVISHYANIDHIBHAWAN,
     14-BHIKAJI CAMA PLACE,
     NEW DELHI - 110 066.
     REPRESENTED BY THE CENTRAL PROVIDENT
     FUND COMMISSIONER, (CPFC).

3.   THE ADDL. CENTRAL P.F. COMMISSIONER (HQ)
     ZONAL OFFICE KARNATAKA: GOA
     EMPLOYEES' PROVIDENT FUND ORGANISATION
     "KAVERI", BHAVISHYANIDHI ENCLAVE
     HMT MAIN ROAD, JALAHALLI,
     BENGALURU - 560 013.

4.   THE REGIONAL PF COMMISSIONER
     EPFO, REGIONAL OFFICE, TUMKUR
     1ST FLOOR, BILWASHREE ARCADE,
     15TH CROSS, S.I.T. MAIN ROAD,
     TUMAKURU- 572 103.

5.   SIDDAGANGA INSTITUTE OF TECHNOLOGY
     B.H.ROAD, TUMAKURU - 572 103.
     REPRESENTED BY ITS PRINCIPAL.

6.   SREE SIDDAGANGA COLLEGE OF PHARMACY,
     TUMAKURU - 572 102
     REPRESENTED BY ITS PRINCIPAL.              ... RESPONDENTS

(BY DSG FOR R-1;
    SMT. NANDITA HALDIPUR, ADVOCATE FOR R-2 TO R-4;
    R-5 AND R-6 ARE SERVED)

     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 VIDE ANNEXURE-C 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:
                              - 11 -
                           ORDER

"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 - 'C' 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 - 'D' issued by Respondent No.1.

c) Quash Condition 6(d) in the communication bearing Ref.No.KN/TMK/Pension/2018- 19 dated 16.01.2019 at Annexure - 'G' issued by Respondent No.3;

d) A writ in the nature of Mandamus directing the Respondents No.1 to 3 to receive from the Petitioners the difference contribution (between actual salary and ceiling salary) to the Pension Fund in respect of the Petitioners and to calculate 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

- 12 -

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 - 'C' Notification dated 22.08.2014;

e) Issue a writ in the nature of Mandamus directing Respondent Nos.1 to 3 to henceforth notify any proposed changes or amendments to the Employees Pension Scheme, 1995 inviting objections from the members, consider the objections if any and thereafter to finalize the changes and amendments to the Employees Pension Scheme, 1995;

f) As a consequence of the Notification dated 22.08.2014 being quashed, as per Prayer (a), an appropriate direction in the nature of Mandamus to be issued to Respondent Nos.1 to 3 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;

      g)       Consequent       upon     the      quashing
Notification      bearing      No.G.S.R..609(E)     dated

22.08.2014 issued by Respondent No.1 at Annexure - 'C', to forebare Respondent Nos.1 to 3 from collecting

- 13 -

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;

h) A writ in the nature of Mandamus directing the Respondent Nos.1 to 3 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."

2. Heard Sri. Abhinav Ramanand .A, learned counsel

for the petitioners, Smt. Nandita Haldipur, learned counsel

for respondent Nos.2 to 4.

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

- 14 -

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.

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

- 15 -

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

- 16 -

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 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.

- 17 -

(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

- 18 -

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.

(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

- 19 -

the directions of the Apex Court in Sunil Kumar's case,

whereas, prayer Nos.(c), (d), (e), (f), (g) and (h) are not

covered.

7. In prayer Nos.(c), (d), (e), (f), (g) and (h), the

petitioners have sought direction to respondent No.1 to 3 to

take into consideration, the arrears of salary including D.A.

etc., for the purpose of determination of pensionable salary

and calculation 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

- 20 -

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."

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.

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10. For the aforesaid reasons, the writ petition is