Madhya Pradesh High Court
Chandra Bhushan Tiwari vs The State Of Madhya Pradesh on 1 March, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF MARCH, 2023
WRIT PETITION No. 18135 of 2019
BETWEEN:-
1. RAM BAHADUR TRIPATHI S/O SHRI JAGDISH
PRASAD TRIPATHI, AGED ABOUT 63 YEARS,
OCCUPATION: RETIRED EMPLOYEE BAKIYA
COLONY POST DEKAHA REWA (MADHYA
PRADESH)
2. SURENDRA KUMAR TRIPATHI S/O SHRI RAM
GHANESH TRIPATHI, AGED ABOUT 65 YEARS,
OCCUPATION: RETIRED EMPLOYEE BAKIYA
COLONY MUKAM POST DEKAHA (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI AKASH CHOUDHURY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETARY VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. THE EMPLOYEES PROVIDENT FUND
ORGANIZATION THROUGH CHIEF PROVIDENT
COMMISSIONER BHAVISHYA NIDHI BHAWAN, 14
BHIKAJI CAMA PLACE, (DELHI)
3. COMMISSIONER REGIONAL PROVIDENT FUND
VIJAY NAGAR JABALPUR (MADHYA PRADESH)
4. ASSISTANT P.F COMMISSIONER (PENSION)
JABALPUR S.R.O JABALPUR (MADHYA PRADESH)
5. REGIONAL ACCOUNTS OFFICER JABALPUR
REGION JABALPUR (MADHYA PRADESH)
6. THE MANAGING DIRECTOR MADHYA PRADESH
STATE ROAD TRANSPORT CORPORATION
GANDHI BHAWAN MARG, BANGHANGA BHOPAL
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
3/1/2023 8:14:05 PM
2
(MADHYA PRADESH)
.....RESPONDENTS
(STATE BY SHRI PIYUSH BHATNAGAR - PANEL LAWYER)
(RESPONDENT NOS.2 TO 5 BY SHRI J.K.PILLAI - ADVOCATE)
WRIT PETITION No. 18344 of 2019
BETWEEN:-
1. CHANDRA BHUSHAN TIWARI S/O SHIV SHANKAR
PRASAD TIWARI OCCUPATION: ADULT R/O.
15/2421, BEHIND SAMAN POLICE CHOWKI GULAB
NAGAR TEH. HUZUR (MADHYA PRADESH)
2. RAMCHARIT SOHGAURA S/O SHRI JAWAHAR LAL
SOHGAURA, AGED ABOUT 69 YEARS, 353
SANTOSHI MATA ROAD ELECTRIC
TRANSFORMEN DHEKAHA REWA (MADHYA
PRADESH)
3. C.A THANKACHAN S/O SHRI C.O ABRAHA, AGED
ABOUT 64 YEARS, CHETTIYARA HOUSE
THALAYAR THIRUVALIA KUTTOOR P.O KUTTUR
PATHANAMTHITTA (KERALA)
.....PETITIONERS
(BY SHRI AKASH CHOUDHURY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR THE
SECRETARY MINISTRY OF TRANSPORT VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. THE EMPLOYEES PROVIDENT FUND
ORGANIZATION THROUGH CHIEF PROVIDENT
COMMISSIONER BHAVISHYA NIDHI BHAVAN 14
BHIKAJI CAMA PALACE (DELHI)
3. COMMISSIONER REGIONAL PROVIDENT FUND
VIJAY NAGAR JBP (MADHYA PRADESH)
4. ASSISTANT P.F COMMISSIONER (PENSION) S.R.O
JABALPUR (MADHYA PRADESH)
5. REGIONAL ACCOUNTS OFFICER JABALPUR
REGION JABALPUR (MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
3/1/2023 8:14:05 PM
3
.....RESPONDENTS
(STATE BY SHRI PIYUSH BHATNAGAR - PANEL LAWYER)
(RESPONDENT NOS.2 TO 5 BY SHRI J.K.PILLAI - ADVOCATE)
These petitions coming on for admission this day, the court passed the
following:
ORDER
With the consent of learned counsel for the parties, these writ petitions
are heard finally.
In these writ petitions under Article 226 of the Constitution of India, the
petitioners have not challenged any specific order but are aggrieved by non-
grant of higher pension on the basis of contribution made towards actual salary
under the Employees Pension Scheme,1995.
Learned counsel for the parties submit that the issue involved in this
petition is already settled by the decision of the Apex Court in Employees
Provident Fund Organisation & Another Sunil Kumar B & Others passed
in S.L.P.(C).Nos.8658-8659/2019 by which the Apex Court had disposed of
the S.L.Ps. by upholding the 2014 amendment carried out in the Pension Rules
of 1995 and certain directions have been issued in Paragraph No.44 of the
judgment with regard to entitlement of higher pension. The directions as
contained in the order of the Apex Court are reproduced below:-
"(i) The provisions contained in the notification no. G.S.R.
609(E) dated 22nd August 2014 are legal and valid. So far as present
members of the fund are concerned, we have read down certain
provisions of the scheme as applicable in their cases and we shall
give our findings and directions on these provisions in the
subsequent subparagraphs.
(ii) Amendment to the pension scheme brought about by the
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Signed by: AMIT JAIN
Signing time:
3/1/2023 8:14:05 PM
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 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 paragraph11(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.
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Signed by: AMIT JAIN
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Thus, all the employees who did not exercise option but were entitled
to do so but could not due to the interpretation on cutoff date by the
authorities, ought to be given a further chance to exercise their
option. Time to exercise option under paragraph 11(4) of the
scheme, under these circumstances, shall stand extended by a further
period of four months. We are giving this direction in exercise of our
jurisdiction under Article 142 of the Constitution of India. Rest of the
requirements as per the amended provision shall be complied with.
(v) The employees who had retired prior to 1st September
2014 without exercising any option under paragraph 11(3) of the pre-
amendment scheme have already exited from the membership
thereof. They would not be entitled to the benefit of this judgment.
(vi) The employees who have retired before 1st September
2014 upon exercising option under 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
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Signed by: AMIT JAIN
Signing time:
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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
a n y amendment is made, whichever is earlier, the employees
contribution shall be as stop gap measure. The said sum shall be
adjustable on the basis of alteration to the scheme that may be made.
(viii) We do not find any flaw in altering the basis for
computation of pensionable salary.
(ix) We agree with the view taken by the Division Bench in the
case of R.C. Gupta (supra) so far as interpretation of the proviso to
paragraph 11(3) (pre-amendment) pension scheme is concerned. The
fund authorities shall implement the directives contained in the said
judgment within a period of eight weeks, subject to our directions
contained earlier in this paragraph.
(x) The Contempt Petition (C) Nos.19171918 of 2018 and
Contempt Petition (C) Nos. 619620 of 2019 in Civil Appeal Nos.
1001310014 of 2016 are disposed of in the above terms".
In view of the aforesaid guidelines, these writ petitions can also be
disposed of with the direction to the Competent Authority to decide the claim
of the petitioners in accordance with the decision of the Apex Court in
Employees Provident Fund Organisation & Another Sunil Kumar B &
Others (supra).
It is also directed that in case the State enhances the rate of Dearness
Allowance in favour of the petitioners then the Regional Provident Fund
Commissioner shall take that enhancement, if made, into consideration, while
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Signed by: AMIT JAIN
Signing time:
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fixing the pensionay benefits keeping in view the pronouncement of law
rendered by the Apex Court in Employees Provident Fund Organisation &
Another Sunil Kumar B & Others (supra).
Let the entire exercise be completed as expeditiously as possible within a
period of two months from the date of receipt of certified copy of the order
being passed today.
In above terms, these writ petitions are disposed of.
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
3/1/2023 8:14:05 PM
