Kerala High Court

N. Kamalakshy vs Union Of India on 12 April, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
         Wednesday, the 12th day of April 2023 / 22nd Chaithra, 1945
                            WP(C) NO. 6499 OF 2023
PETITIONERS:

  1. N. KAMALAKSHY AGED 79 YEARS CHAITHRAM, SOUTH ANNARA, TIRUR, PIN -
     676101
  2. C.P. MOHANDAS AGED 66 YEARS MRIYA, THEKKUMMURI, TIRUR, PIN - 676105
  3. K. SANKARANARAYANAN AGED 76 YEARS RAGAM, TRIKKANDIYUR P.O, TIRUR,
     PIN - 676104
  4. K.I. KUNHUNNI AGED 76 YEARS "HARISREE", SOUTH ANNARA, TIRUR, PIN -
     676101
  5. P. NARAYANAN AGED 74 YEARS PUTHUR MANA, POOKAYIL, TIRUR, PIN -
     676107
  6. V.K. NABEESA AGED 73 YEARS RUBY VILLA P.O. POOKAYIL BAZAR, TIRUR,
     PIN - 676107
  7. M. SREEDEVI AGED 71 YEARS MANGATT, "SREE NILAYAM", P.O,
     NIRAMARUTHUR, PIN - 676109
  8. A. VIJAYAM AGED 71 YEARS CHAITHRAM P.O, KLARI, TIRUR, PIN - 676501
  9. M. VISWANATHAN AGED 71 YEARS MANGALASSERI HOUSE, TRIKKANDIYUR,
     TIRUR, PIN - 676104
 10. P, LEELA AGED 71 YEARS DEEPAM, NADUKANDIYIL, P.O, CHEVAYUR, PIN -
     673303
 11. K. SANTHAKUMARI AGED 71 YEARS ARUN NIVAS, TRIKKANDIYUR, P.O,
     TRIKKANDIYUR, PIN - 676104
 12. V. GOVINDANKUTTY AGED 71 YEARS VALIL HOUSE, MUTHUR, TIRUR, PIN -
     676101
 13. A. VILASINI AGED 70 YEARS 'USHUS', TRIKKANDIYUR P.O, TIRUR, PIN -
     67604
 14. R.V. VALSALA AGED 69 YEARS 'PRIYA HOUSE, PORUR, VALLIKANHIRAM P.O,
     POOKAYIL, TIRUR, PIN - 676107
 15. P.P. SURENDRAN AGED 69 YEARS 'SUPARNA', P.O. B.P. ANGADI, TIRUR, PIN
     - 676102
 16. K. BALAKRISHNAN AGED 68 YEARS KALATHIL HOUSE, MUTHUR, TIRUR, PIN -
     676101
 17. P.P. VELAYUDHAN AGED 68 YEARS PATTUPARAMPIL HOUSE, SOUTH ANNARA,
     TIRUR, PIN - 676101
 18. V.K. CHANDRAN AGED 68 YEARS VDELANKANDI HOUSE, P.O, PACHATTIRI,
     TIRUR, PIN - 676105
 19. PARUKUTTY K AGED 68 YEARS 'INDRAPRASTHAM', TRIKKANDIYUR P.O, TIRUR,
     PIN - 676104
 20. KADEEJAKUTTY AGED 67 YEARS 'JASMIN', PATHAMPAD P.O, TIRUR, PIN -
     676107
 21. M. GOVINDAN AGED 66 YEARS MAMPATTA HOUSE, P.O, THAVANUR, PIN -
     676108
 22. M. BALAKRISHNAN AGED 75 YEARS "RADHIKA NIAVA", OPPOSITE PETROL PUMP,
     P.O. KANNIAMPURAM, OTTAPALAM, PIN - 679104
 23. T. KRISHNANUNNI AGED 72 YEARS "SAI DHAM", MANAVA NAGAR, POST
     KANNIAMPURAM, OTTAPALAM, PIN - 679104
24. N. REMANI AGED 72 YEARS "PREETHI", GOKULAM COMPOUND, PALAT ROAD,
    OTTAPALAM, PIN - 679101
25. A. VENUGOPALAN AGED 72 YEARS AVINJIKAT MANA, POST VALAPURAM,
    PULAMANTHOLE, MALAPPURAM, PIN - 679323
26. T.G. RAMAKUMARAN AGED 70 YEARS THALAPPIL HOUSE, POST SOUTH
    PANAMANNA, OTTAPALAM, PIN - 679104
27. P. BHANUMATHI AGED 69 YEARS FLAT NO. 205, "SYMPHONY MILLENIUM",
    VAKKIL RAMAN NAIR ROAD, THOTTAKKARA, OTTAPALAM, PIN - 679102
28. M. NARAYANAN AGED 68 YEARS "LAKSHMI" , BEHIND POSTAL QUARTERS,
    PALAPPURAM, PIN - 679103
29. N.R. BHAGYALAKSHMI AGED 76 YEARS "SANTHI BHAVAN", KANNANCHATH, PALAT
    ROAD, OTTAPALAM, PIN - 679521
30. REMADEVI W/O. LATE O.K. MADHAVANKUTTY, "MADHAVAM" POST MANISSERI,
    OTTAPALAM, PIN - 679521
31. P. NANDANAN AGED 65 YEARS "SREE VIHAR", PALAT ROAD, OTTAPALAM, PIN -
    679101
32. P.K.ENUTTY AGED 76 YEARS PULAKKOTTATHIL HOUSE, POST CHUNANGAD, PIN -
    679511
33. P. RAVINDRAN AGED 67 YEARS PALLUR HOUSE, PALAT ROAD, OTTAPALAM,
    PALAKKAD, PIN - 679101
34. A. RADHAKRISHNAN AGED 68 YEARS ANTHOOR KUNNATH HOUSE, POST
    KANNIAMPURAM, OTTAPALAM, PIN - 679104
35. A. UNNIKRISHNAN AGED 67 YEARS ,"KRISHNAKRUPA", KIZHEKKUMKARA KALAM,
    KAYILIYAD, SHORNUR, PIN - 679122
36. K.K. PRABHAKARAN AGED 74 YEARS "LAKSHMI VIHAR", POST CHUNANGAD,
    PALAKKAD, PIN - 679511
37. P.K. CHAMI AGED 71 YEARS "SANDHYA", SANTHI NAGAR, OTTAPALAM, PIN -
    679101
38. P.M. GOPALAN AGED 70 YEARS "SREE BHAVAN, S.R.K. NAGAR, OTTAPALAM,
    PALAKKAD, PIN - 679103
39. U.C.HARIHARAN AGED 69 YEARS SREENIVAS, PORUR P.O, MALAPPURAM, PIN -
    679339
40. INDIRA P.K AGED 66 YEARS AMBILI, THOTTEKAD, AMARAMBALAM P.O,
    MALAPPURAM, PIN - 679332
41. T.PADMINI AGED 70 YEARS ASWATHI, NILAMBUR R.S. P.O, MALAPPURAM, PIN
    - 679330
42. C.MANIAMMA AGED 67 YEARS MOHANAM NARIPOYIL, AMARAMBALAM P.O,
    MALAPPURAM, PIN - 679332
43. A.SETHUMADHAVAN AGED 68 YEARS REVATHI, VETTIKUTH, NILAMBUR P.O,
    MALAPPURAM, PIN - 679329
44. O.X ABRAHAM AGED 69 YEARS ORAPPUZHAKKAL HOUSE, AMARAMBALAM P.O,
    MALAPPURAM, PIN - 673332
45. K.UNNIKRISHNAN AGED 69 YEARS USHUS, MELEKALIKAVU, KALIKAVU P.O,
    MALAPPURAM, PIN - 676525
46. K. HARIKUMAR AGED 69 YEARS SANGETH,SRAMBIKKAL, PULLANGODE P.O,
    MALAPPURAM, PIN - 676525
47. K.BHASKARAN AGED 70 YEARS VALAKKULAM HOUSE, KALLEMPADAM, NILAMBUR
    P.O, MALAPPURAM, PIN - 679329
48. K. DAMODARAN AGED 68 YEARS KOORIKKAD HOUSE, MODAVANNA,
     ERANHAJIPPALAM P.O, MALAPPURAM, PIN - 679329
49. P.SIVASANKARAN AGED 67 YEARS SOUPARNIKA, MANALODY, NILAMBUR P.O,
    MALAPPURAM, PIN - 679329
50. K.RAMAKRISHNAN AGED 68 YEARS KOORKKAD HOUSE, ASWATHI, VETTEKODE,
    ERANHJIPPALAM P.O, MALAPPURAM, PIN - 679329
51. T.C.THEYYAN AGED 71 YEARS THRIKKAIKUTH, CHALAKKAL,THRIKKAIKUTH,
    KARAD P.O, PIN - 679329
52. B.P.SIVASANKARAN AGED 66 YEARS BHAVANAM PARAMBIL HOUSE,
    KIZHAKKETHALA, KURUVARKUNDU P.O, PIN - 676523
53. RAMLATH M W/O. LATE K.UMMER, KATTUMUNDA (H), ERANHIMANGAD P.O, PIN -
    679329
54. K.V.PADMANABHAN AGED 72 YEARS SNEHA, THACHINGANADAM P.O, VIA
    PATTIKKAD, MALAPPURAM, PIN - 679325
55. P.PRABHAKARAN AGED 73 YEARS PATHIYIL HOUSE, KALLEMPADAM, NILAMBUR
    P.O, MALAPPURAM, PIN - 679329
56. RAHMATHULLA P.P AGED 74 YEARS PULIKKOTTIL HOUSE, KATTUMUNDA,
    VADAPURAM P.O, PIN - 676542
57. ABDULLAH KUTTY E AGED 77 YEARS ZEENA MAHAL, PONGALLUR, MAMPAD P.O,
    PIN - 676542
58. P.ARAVINDAKSHAN AGED 68 YEARS PANGODATH HOUSE, PULPETTA P.O,
    MANJERI, PIN - 676126
59. IBRAHIM V.M AGED 76 YEARS VILAKKUMADATHIL HOUSE, THURAKKAL, MANJERI
    P.O, MANJERI, PIN - 676121
60. CHANDRASEKHARAN C AGED 67 YEARS KRISHNAKRIPA HOUSE, OZHUKKARA,
    MAYANAD P.O, PIN - 673008
61. N.ABDUL SALAM AGED 67 YEARS KANNATHODI HOUSE, NEDIYIRUPPU P.O,
    KONDOTTI, PIN - 673638
62. P. MOHANAN AGED 68 YEARS NANDANAM, PARUTHIPATTA HOUSE, KARUVAMBRAM
    P.O, ELAKAM, MANJERI, PIN - 676123
63. ABDUL HAKKIM C AGED 67 YEARS CHOORAPPILAN HOUSE, KARUVAMBRAM P.O,
    KIDANGAZHY, MANJERI, PIN - 676123
64. T.ALI AGED 70 YEARS THALETHODI HOUSE, KARUVAMBRAM P.O, MANJERI, PIN
    - 676123
65. C.M.AHAMED KUTTY AGED 67 YEARS CRESCENT, CHUNDIYANMOOCHI HOUSE,
    MULLAMPARA, MANJERI P.O, PIN - 676121
66. M.J.DAVIES AGED 67 YEARS MADATHUMPADY HOUSE, MERLIN GARDEN ROAD,
    P.O. NADATHARA, THRISSUR DISTRICT, PIN - 680851
67. P. JAYAPRAKASH NARAYANAN AGED 71 YEARS MARATH HOUSE, 'SREYAS',
    N.I.D. ROAD, P.O, ARIMBUR, PIN - 680620
68. P.S. RAVEENDRAN AGED 66 YEARS PAPPINIVATTATH HOUSE, "THUSHARA", NEAR
    TRIPRIYAR SREE RAMA TEMPLE, VALAPPAD P.O, PIN - 680567
69. P.K. INDIRA AGED 67 YEARS RARAMPARAMBIL HOUSE, PUMKUNNAM, THRISSUR,
    PIN - 680002
70. K. PREMA AGED 70 YEARS PALLATH HOUSE, KODANNUR P.O, PIN - 680563
71. SEETHA DAVY AGED 65 YEARS CHERUMADATHIL HOUSE, RAMAVARAMAPURAM P.O,
    NELLIKKADU, THRISSUR, PIN - 680631
72. R. PARAMESWARAN AGED 68 YEARS RAMANKANDATH HOUSE, MANNUKADU P.O,
    ENGINEERING COLLEGE, THRISSUR, PIN - 680009
73. C.S. RETHNAKUMARI AGED 67 YEARS T.K. HOUSE, CONVENT ROAD, ERA 137,
    P.O, KANIMANGALAM,THRISSUR, PIN - 680027
  74. M.V. SIMON AGED 74 YEARS MOOKEN HOUSE, ROSE GARDEN,NADATHARA P.O,
     PIN - 680751
 75. V.D. JOSE AGED 70 YEARS VENNUKARN HOUSE, NEAR KURUPPAL THODE, EAST
     FORT P.O, THRISSUR, PIN - 680005
 76. REKHA V.K AGED 56 YEARS NEDUMPARAMBIL HOUSE, MYTHRI NAGAR, PARALAM
     P.O, THRISSUR, PIN - 680563
 77. P.P.VARGHESE AGED 70 YEARS PALLISSERY HOUSE, NEAR GOVT. L.P. SCHOOL,
     AMMADAM P.O, PIN - 680563
 78. V.VIMALA AGED 70 YEARS "SREYESS", NORTH BAZAR P.O, OLLUR, PIN -
     680306
 79. O.D. JOSEPH AGED 73 YEARS OVUNGAL HOUSE, CHURCH BAZAR, NELLIKKUNNU,
     THRISSUR, PIN - 680005
 80. C.T. KUNHIMMU PUTHENPURAYIL HOUSE, ANDATHODE P.O, CHAVAKKAD, PIN -
     679569
 81. K. RAJAN KRISHNA NIAVAS, MANAKULANGARA P.O, KODAKARA, PIN - 680684
 82. T.KRISHNAKUMARI UNNIMANDIRAM, KURUVATHYPARAMBA, WEST NADA, SAMOOHAM
     ROAD, GURUVAOOR, PIN - 680101
 83. C.N. GANGADHARAN "SREEHARI", THAMARAYOOR P.O, THRISSUR, PIN - 680505
 84. K.C. APPUNNY PALLARA HOUSE, KARATTUPARAMBIL, ORUMANAYOOR P.O,
     CHJAVAKKAD, PIN - 680512
 85. T.P. VIJAYALAKSHMY THEKKOOT HOUSE, CHOOLPURAM, KOTTAPPADI P.O,
     THRISSUR, PIN - 680505
 86. E.K. CHANDRIKA CHETHRA BHAVAN, EAST NADA, GURUVAYOOR, PIN - 680101
 87. K.P. NARAYANAN KIZHAKKE PUSHPAKAM, EAST NADA, GURUVAYOOR, THRISSUR,
     PIN - 680101
 88. K. VALSALAN ROHITH NIVAS, KALPAKA COLONY, WEST NADA, GURUVAOOR,
     THRISSUR, PIN - 680101
 89. VINCENT O.A AGED 72 YEARS OODEN HOUSE, XX/425, CHETTIPARAMBU,
     IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680121
 90. P.S. BASHEER AGED 72 YEARS PALLINJALTHODI HOUSE, CHRIST COLLEGE
     JUNCTION, IRINJALAKUDA NORTH, PIN - 680125
 91. SUBASH KONIKKARA AGED 70 YEARS KONIKKARA HOUSE, SWADESI LANE-2,
     KATTUNGACHIRA, IRINJALAKUDA NORTH, PIN - 680125
 92. V.S. OMANA AGED 68 YEARS NADUVALAPPIL HOUSE, UZHUVATHUKADAVU,
     KODUNGALLOOR, PIN - 680664
 93. C.O. POULOSE AGED 75 YEARS CHACKACHAMPARAMBIL HOUSE, SANTHI NAGAR,
     IRINJALAKUDA NORTH, PIN - 680125
 94. INDIRA V.K AGED 73 YEARS 16/233, KANNAMPARAMBIL HOUSE, GANDHIGRAM
     ROAD, IRINJALAKUDA, PIN - 680121
 95. ANNIE JOSEPH AGED 71 YEARS CHATHELY HOUSE, ALOOR, VIA KALLETTUMKARA,
     TRICHUR, PIN - 680602
 96. RAJANI P AGED 72 YEARS GURURAVANKAVANAT PALACE, KOTTAPPADI,
     KOTTAKKAL, PIN - 676503
 97. ABDURAHIMAN M AGED 67 YEARS MUKRI HOUSE, PALAPPURA, KOTTAKKAL,
     MALAPPURAM DISTRICT, PIN - 676503
 98. BHARGAVI NALLAT AGED 74 YEARS "DREAMLAND", ELAYUR, IRUVETTY P.O,
     VIA. AREECODE, MALAPPURAM, PIN - 673639
 99. SANKARANARAYANAN P AGED 68 YEARS "PADMASREE", P.O, MUNDUPARAMBA,
     MALAPPURAM DISTRICT, PIN - 676509
100. HASSAN KUTTY C AGED 72 YEARS CHANNENGADAN HOUSE, P.O, KOTTAKKAL,
      CHANGUVETTY, MALAPPURAM, PIN - 676503
101. MOHANADASAN E AGED 70 YEARS "USHAS", PANDANGALAM, KOTTAKKAL P.O, PIN
     - 676503
102. T.M.HAMZA AGED 66 YEARS MOOZHIKKAL HOUSE, PARAPPUR P.O, KOTTAKKAL,
     PIN - 676503

RESPONDENTS:

  1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA,
     MINISTRY OF LABOUR AND DEPARTMENT OF EMPLOYMENT, SHRAM SHAKTI
     BHAVAN, NEW DELHI, PIN - 110001
  2. REGIONAL PROVIDENT FUND COMMISSIONER SUB REGIONAL OFFICE, EMPLOYMENT
     PROVIDENT FUND ORGANIZATION, BHAVISHANIDHI BHAVAN, KALOOR,
     ERNAKULAM, PIN - 682017
  3. REGIONAL PROVIDENT FUND COMMISSIONER-1, (PENSION) EPFO HEAD OFFICE,
     MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA,
     BHAVISHYANIDHI BHAVAN, 14-BHIKAJICAMA PALACE, NEW DELHI, PIN -
     110066
  4. REGIONAL PROVIDENT FUND COMMISSIONER BHAVISHYA NIDHI BHAWAN,
     ERANHIPALAM P.O, KOZHIKODE, PIN - 673006
  5. THE TIRUR URBAN CO-OPERATIVE BANK LTD HEAD OFFICE, TIRUR,
     REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 676101
  6. OTTAPALAM URBAN CO-OPERATIVE BANK LTD OTTAPALAM, PALAKKAD DISTRICT,
     REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 679101
  7. NILAMBUR CO-OPERATIVE BANK LTD NO. F.1043, NILAMBUR P.O, REPRESENTED
     BY ITS CHIEF EXECUTIVE OFFICER, PIN - 679329
  8. MANJERI CO-OPERATIVE URBAN BANK LTD KACHERIPADI, MANJERI, KERALA
     STATE, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 676121
  9. THE TRICHUR URBAN CO-OPERATIVE BANK LTD NO. 87 MISSION QUARTERS,
     TRICHUR, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 680001
 10. GURUVAYOOR CO-OPERATIVE URBAN BANK LTD GURUVAYOOR P.O, THRISSUR
     DISTRICT, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN - 680001
 11. THE IRINJALAKUDA TOWN URBAN CO-OPERATIVE BANK LTD IRINJALAKUDA,
     THRISSUR DISTRICT, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, PIN -
     680121
 12. KOTTAKKAL CO-OPERATIVE URBAN BANK LIMITED HEAD OFFICE, KOTTAPPADI,
     KOTTAKKAL, MALAPPURAM DISTRICT, REPRESENTED BY ITS CHIEF EXECUTIVE
     OFFICER, PIN - 676503

     Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the respondents 2 and 4 to disburse monthly pension from
january, 2023 (due as on 31st january, 2023) onwards regularly every
month, pending disposal of the above writ petition (civil), in the
interest of justice.
     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
22.03.2023 and upon hearing the arguments of M/S. JOHN VARGHESE, SONU
AUGUSTINE, A.L.GEORGE & SREENIVASAN K., Advocates for the petitioners,
M/S. ABRAHAM P.MEACHINKARA, NITA N.S, Advocates for R2,R3 & R4,
SHRI. DEVAPRASANTH P.J, Advocate for R5,R9 & R11, M/S. VINOD MADHAVAN,
 M.V.BOSE, BIJU VARGHESE ERUMALA & SANIYA C.V., Advocates for R6,   the
court passed the following:
                  ZIYAD RAHMAN A.A., J.
            ----------------------------
 W.P.(C) Nos.8979/2023, 16018/2020, 11737/2021,
    4958/2023, 5300/2023, 5442/2023, 5460/2023,
    5473/2023, 5503/2023, 5510/2023, 5513/2023,
    5790/2023, 5876/2023, 5987/2023, 6178/2023,
   6206/2023, 6260/2023, 6284/2023, 6292/2023,
    6499/2023, 6502/2023, 6681/2023, 6703/2023,
    6710/2023, 6723/2023, 6725/2023, 6731/2023,
    6740/2023, 6779/2023, 6811/2023, 6905/2023,
     6941/2023, 6990/2023, 7015/2023,7043/2023,
    7073/2023, 7105/2023, 7141/2023, 7261/2023,
    7547/2023, 7578/2023, 7614/2023, 7838/2023,
    7990/2023, 8412/2023, 8727/2023, 8777/2023,
    8990/2023, 9061/2023, 9177/2023, 9241/2023,
    9351/2023, 9358/2023, 9494/2023, 9614/2023,
  9659/2023, 9979/2023, 10175/2023, 10186/2023,
10219/2023, 10535/2023, 10650/2023, 10711/2023,
              11442/2023 & 11554/2023.
              ------------------------
       Dated this the 12th day of April, 2023


                           O R D E R

In all these cases, the issue involved is

pertaining to the legal entitlement of the

petitioners for higher pension, as per the

provisions of the Employees Provident Funds and

Miscellaneous Provisions Act, 1952. These writ

petitions are already admitted.

2. As per the decision rendered by the

Honourable Supreme Court in EPF Organisation v.

Sunil Kumar [2022(7) KHC 12 (SC)], certain

directions were issued in this regard with respect

to the options to be submitted by the employees

concerned, to be eligible for the benefits of

higher pension under the Employees Pension Scheme,

1995. In para 44 (iv) of the said decision, the

following observations were issued by the

Honourable Supreme Court.

" 44 (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 crystallized 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 the amended paragraph 11(4) of the pension scheme."

3. The Honorable Supreme Court permitted the

employees who could not submit the options in the

light of para 11(3) of the pre-amendment scheme,

to submit fresh options within a period of four

months. Though the said period expired on

3.03.2023, the same was further extended for two

months i.e. up to 3.05.2023. The petitioners in

these cases are employees intending to submit

their options in the light of directions of the

Honourable Supreme Court.

4. The EPF organization made available to the

employees the facility to submit the options

through online mode by providing necessary links

for the same on their website. Ext P9 in

WP(C)8979/2023 is the option form the employee has

to fill up while submitting the option.

      5.    The          grievance              highlighted             by        the

petitioners           is    that         one        of    the   details      to   be

furnished in the said option form is the copy of

the permission under para 26(6) of the Employees

Provident Fund Scheme, 1952. According to the

petitioners, even though they were permitted to

pay the contribution based on the salary,

exceeding the ceiling limit prescribed (Rs 5,000/-

and Rs 6,500/-), as contemplated under para 26(6)

of the Scheme 1952, no formal option has been

submitted. According to them, submission of such

an option was never necessitated or insisted upon,

and instead, higher contributions were being

accepted all along by the EPFO. Therefore, they

are unable to fill up the said column in the

online option form, and the said form is

formulated in such a fashion that, unless the

details of the option under para 26 (6) of the

Scheme, 1952 are incorporated, they cannot

successfully submit the online options. If they

are not submitting their options on or before the

cut-off date, i.e. 3.05.2023, they will be

deprived of the benefits of the Scheme to which

they are legally entitled. In such circumstances,

the petitioners seek an interim order permitting

them to submit options without insisting on the

details/copies of the options submitted by them

under para 26(6) of the Scheme 1952.

6. The prayer for interim relief is stoutly

opposed by the respective Standing Counsels for

the EPFO. According to them, the option under para

26(6) is one of the crucial requirements for

availing the benefits, and therefore, it is

absolutely necessary for processing the options

submitted by the employees.

7. The learned counsels for the petitioners

would point out that higher contributions were

being accepted by the EPFO all along, even without

formal options from the employees and without any

insistence for submission of options as referred

to above. The petitioners relied on various

circulars issued by the EPFO to substantiate the

said contentions.

8. In circular bearing No:

Pension/Misc.2005/65836 dated 22.011.2006, it was

mentioned in para 4 (4) that, if the option was

not exercised at the time of salary crossing the

statutory limit or on 16.3.1996 as the case may be

and the contributions were deposited on salary

exceeding the limit after receiving instructions

from the Office before the date of issue of

circular dated 22.06.2004, the department has the

vicarious liability(restricted to specific cases

only)of honouring such a commitment and hence the

pensionable salary shall be on the actual salary,

i.e. on the salary (exceeding the statutory limit)

on which contribution paid. However, it is true

that, in para 4 (5) of the said Circular, it was

clarified that, in cases where no options were

given, or no commitment was made by the concerned

office, but the contribution on higher pay was

deposited by the establishment/employee on their

own, excess contributions will be considered as

erroneous contributions, and the pensionary salary

will be restricted to statutory ceiling existing

from time to time. But the fact remains that the

said Circular clearly indicates that certain

offices of the EPFO used to give instructions for

accepting the higher contributions, even without

options being actually submitted, and permitting

payment of higher contribution.

9. Besides the same, in Circular No Pen-

1/12/33/96/Amendment/Vol.IV/16762 dated 22.01.2019

(Ext P3 in WP(C) 8979/2023), it is mentioned as

follows: "However, if an employer and employee have contributed under the EPF Scheme, 1952 on wages higher than the statutory wage

limit, without joint option of employee & employer, and the EPF

Account of the concerned employee has been updated by the EPFO on

the basis of such contribution received, then by action of

employee, employer and EPFO, it can be inferred that joint option

of the employee and employee has been exercised and accepted by

EPFO........."

10. Of course, the said Circular has been

withdrawn as per Circular dated 7.02.2019, in the

light of the observations made by a Division Bench

judgment of this Court in WP(C)13120 of 2015.

However, the said Circular dated 22.01.2019

clearly conveys the manner in which the EPFO

treated the issue as regards the necessity of

submitting options under para 26(6) of the Scheme

1952, and it indicates that the submission of

options was never made mandatory.

11. In addition to the above, the petitioners

have also raised a contention that, in the

judgment passed by the Division Bench of this

Court, in Sasikumar P. and others v. Union of

India and others [ILR 2019 (1) Kerala 614], it was

clarified that, the employees shall be entitled to

exercise the option stipulated by paragraph 26 of

the EPF Scheme without being restricted in doing

so by the insistence on a date. Therefore, even if

the submission of an option is mandatory, it is

still open for the employees to submit the same

without any cut-off date. It was further contended

that, even though the said judgment was set aside

by the Honourable Supreme Court in Sunil Kumar's

case (supra), it would not affect the direction of

the Division Bench judgment of this court in

Sasikumar's case (supra), as there is no contrary

finding in the decision of the Honourable Supreme

Court, with regard to the option under para 26(6)

of the Scheme 1952. In my view, this is also a

matter to be considered at the time of the final

hearing.

12. Thus, when all the above aspects are

considered, it can be seen that, right from the

inception, higher contributions were being

accepted by the EPFO, even without submitting

options under para 26(6) of the Scheme 1952. It is

also evident that in some cases, instructions were

issued from some of the offices of EPFO to accept

the same, and in some cases, accounts of

respective employees were also updated in tune

with such higher contributions.

13. Further, the petitioners also have a

contention that, going by the language used in

para 26(6) of the Scheme, 1952, it could be

interpreted as an enabling provision, which

provides the power to the EPFO to accept higher

contributions in certain circumstances and the

same cannot be treated as a provision which makes

the submission of option mandatory. The exercise

of such options and their acceptance by the EPFO

can be inferred from the conduct of the employees,

employers and the EPFO, as mentioned in Circular

dated 22.01.2019. After considering the provisions

in this regard, I am of the view that this is also

a relevant aspect to be considered in detail.

14. Thus, when considering all the above

aspects, the only view that can possibly be taken

is that the petitioners have succeeded in

establishing a prima facie case, warranting an

interim order in the matter. It is to be noted

that the balance of convenience also favours the

petitioners. Evidently, the Honourable Supreme

Court fixed the cut-off date as 3.05.2023 for

submitting the options. Now on account of the

insistence from the EPFO to furnish the details of

the option under para 26(6)of the Scheme, 1952,

and also in view of the peculiar nature of the

online facility provided for such submissions,

they are now prevented from submitting the said

options. There cannot be any dispute that if they

were not permitted to submit their options before

the cut-off date, they would be deprived of their

opportunity to claim the benefits of the judgment

of the Honourable Supreme Court forever.

 WP(C) No. 8979/2023 & Con.cases         12

Therefore,          the      petitioners       deserve      an   interim

order       for       that        reason,i.e.       the     balance    of

convenience, as well.

15. The learned Standing Counsel for the EPFO

also raised a contention that some of the writ

petitions are submitted by the employees of the

exempted establishments, and they cannot be

granted the benefits. However, in para 38 of the

judgment in Sunil Kumar's case (supra), this

aspect was considered, and it was found that

employees of the exempted establishments should

not be deprived of the benefit of remaining in the

pension scheme while drawing salary beyond the

ceiling limit. Therefore the said contention of

the EPFO is also not prima facie sustainable.