The eligibility for higher pension under the Employees Pension Scheme, 1995 is contingent upon the exercise of the option during the service, as per the relevant legal provisions and recent Supreme Court rulings.

JUDGMENT

(Prayer:Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus calling for the records of the order dated 18.01.2021 bearing no.TN/RO-RDY/Pension/Revision/2020-21 passed by the respondent and quash the same and consequently, directing the respondent to pay monthly pension of Rs.9,050/- as per PPO No.TB/PDY/00064304 dated 28.07.2018 and pass further orders.)

1. Seeking for an issuance of Writ of Certiorarified Mandamus by calling for the records of the order dated 18.01.2021 bearing no.TN/RORDY/ Pension/Revision/2020-21 passed by the respondent and to quash the same and consequently to direct the respondent to pay monthly pension of Rs.9,050/- as per PPO No.TB/PDY/00064304 dated 28.07.2018, the petitioner has come up with the present Writ Petition.

2. The brief facts of the case are as follows:-

(i) The Petitioner was an employee of M/s. Swadeshee-Bharathee Textile Mills Limited and the petitioner retired on 31/07/2011. The Petitioner had opted the scheme of Employees Pension Scheme, 1995 (EPS, 1995),[for brevity, herein after referred to EPS]. Under the said scheme, the employees'' contribution and the employer''s contribution were being deducted by the employer and remitted into EPFO Account. Accordingly PPO No.TB/PDY/00058098 dated 11/10/2011 was issued by the respondent in favour of the Petitioner. The monthly pension was Rs.1,985/- on wage ceiling limit of Rs.6,500/- under the provisions of EPS, 1995. Pursuant to the orders passed by the Hon’ble Supreme Court of India in RC Gupta & Ors Vs Regional Provident Fund Commissioner Employees Provident Fund Organisation & Ors, the Additional Central PF Commissioner, HQ (Pension), Employees Provident Fund Organisation issued Circular dated 23/03/2017 to all the Regional PF Commissioners, Regional Office/Sub-Regional Office directing the officers in charge to take necessary action in accordance with the order of the Hon’ble Supreme Court.

(ii) The circular stated that in a situation where the deposit of the employer’s share at 12% has been on the actual salary and not the ceiling amount, the Provident Fund Commissioner could seek a return of all such amounts that the concerned employees may have taken or withdrawn from their Provident Fund Account before granting them benefits of the proviso to Clause 11(3) of the Pension Scheme.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. As per the circular, the Petitioner returned an amount of Rs. 6,04,663/- to the Respondent and the Respondent also paid a sum of Rs.5,89,928/ to the Petitioner towards the difference. The Respondent issued a new PPO vide PPO No. TB/PDY/00064304 dated 28/07/2018 fixing the revised monthly pension at Rs.9,050/-.

(iii) Subsequently, the Additional Central PF Commissioner (HQ), Pension issued a additional circular dated 22/01/2019 under Reference No. Pen1/12/33/96/Amendment/Vol.IV/16762 to all Regional PF Commissioners directing “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 EPFO on the basis of such contribution received, then by action of employee employer and EPFO, it can be inferred that joint option of employee and employer has been exercised and accepted by EPFO Therefore, in such cases, for implementing the issue vide Head Office Circular Penson 1/12/33/EPS Amendment/96/Vol.11/34007 dated 23/03/2017 formal joint option of employee and employer should not be insisted.”

(iv) While that being so, the Respondent, by way of the impugned order dated 18/01/2021 bearing No. TN/RO-PDY/Pension/Revision/2020- 21 held that the Petitioner’s Application for revision of Pension has been reviewed in l