Gyanendra Singh vs The Chairman

Sunil Ambwani, Actg. C.J.

We have heard Shri Gyanendra Singh, petitioner, appearing in person. Shri P.N. Mathur, OIC, appears for the Central Employees Provident Fund Organization.

By this writ petition, the petitioner has prayed for a direction to the respondents to declare the petitioner eligible for grant of monthly pension under the Employees'' Pension Scheme, 1995 (in short, ''the EPS, 1995''). He has also prayed for a direction to declare Rule 12(1)(a) of the EPS, 1995, which refers to the retiral age to be 58 years, as illegal and arbitrary.

The petitioner retired from military service in the year 1981. He was appointed as Officer in Jaipur Nagaur Aanchalik Gramin Bank, now named as Marudhara Gramin Bank on 28.01.1991. The retirement age of the Officers in the bank is 60 years. The petitioner retired on superannuation on 31.01.2002, after completing the age of 60 years. On that date, he had completed 11 years of service in Jaipur Thar Aanchalik Gramin Bank. On his retirement, the petitioner applied to the Commissioner, Central Employees Provident Fund Organization, which also regulates the pension payable under the EPS, 1995, and entitlement to the member''s monthly pension under the Scheme. He received a letter dated 17.08.2005 from the Assistant Provident Fund Commissioner (Pension) that for entitlement to pension under the EPS, 1995, the petitioner was required to serve for 10 years as eligible service with the age of retirement as 58 years. Since the petitioner had not completed 10 years of qualifying service on the date when he attained the age of 58 years, he was not entitled to pension under the EPS, 1995. The petitioner submitted representations beginning from 06.02.2002 to 30.11.2008, and the last one on 20.04.2009, and thereafter filed this writ petition for declaring the condition of retirement at the age of 58 years, as against the actual retirement age, under Rule 12(1)(a) of the EPS, 1995, as illegal, arbitrary and unreasonable.

The petitioner, appearing in person, submits that in order to be eligible for grant of pension under the EPS, 1995, for a person who is the member of Employees Provident Fund under the Employees'' Provident Funds And Miscellaneous Provisions Act, 1952 (in short, the Act''), the condition of completion of 10 years of service or more, is sufficient. The second condition of attaining the age of 58 years should not be necessary, if an employee has completed 58 years before attaining the age of superannuation, or may have retired on attaining the age of superannuation after 58 years, if the organization in which he is serving, has provided the age of superannuation beyond 58 years.

It is submitted by the petitioner that the EPS, 1995, substituted by G.S.R. 431(E), dated 15.06.2007, does not restrict the age of superannuation as 58 years, to be eligible for monthly member''s pension under the EPS, 1995. The provision only enables those persons and make them eligible, who have rendered 10 years service or more, and retires on attaining the age of 58 years. The Rule does not prohibit the eligibility to those persons, who have superannuated on the increased age beyond 58 years i.e. 60 years or more. The condition of rendering eligible service of 10 years or more is applicable to the age of superannuation and is not restricted to the retirement of only those employees, in whose organization the age of superannuation is 58 years.

In the reply filed by Shri Pradeep K. Sharma, Assistant Provident Fund Commissioner in the Office of Employees'' Provident Fund Organization, Regional Office, Jaipur, the joining of the petitioner in the bank on 28.01.1991 and his retirement on 31.01.2002, is admitted. It is however stated in paragraph 6, relying upon para 12(1)(a) of the EPS, 1995, that an employee must have rendered eligible service of 10 years and attained the age of 58 years, to be entitled to get monthly pension. Since the petitioner neither rendered eligible service of 10 years till the age of 58 years, and that his length of service was about 9 years till the age of 58 years, therefore, he is not entitled to get monthly pension. Relying upon para 14 of the EPS, 1995, it is stated that if a member has not rendered the eligible service prescribed in Paragraph 9 on the date of exit, or on attaining 58 years of age, whichever is earlier, he/she would be entitled to a withdrawal benefit, as laid down in Table-D, or may opt to receive the Scheme Certificate provided on date he/she has not attained 58 years of age. The Proviso to sub-para (1) of para 14 provides that an existing member shall receive additional return of contributions for his/her past service under the Employees'' Family Pension Scheme, 1971, computed as withdrawal-cum-retirement benefits, as per Table-A multiplied by factor given in Table-B.

Paragraph 12 and 14 of the Employees'' Pension Scheme, 1995, as substituted by G.S.R. 431(E), dated 15.06.2007, which was deemed to have come into force from the date from which the Employees'' Pension Scheme, 1995 came into force i.e. from 16.11.1995, are quoted as below:-

"12. Monthly Member''s Pension.-(1) A member shall be entitled to:-

(a) superannuating pension if he has rendered eligible service of 10 years or more and retires on attaining the age of 58 years;

(b) early pension, if he has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years.

(2) In the case of a new entrant, the amount of monthly superannuation pension or early pension, as the case may be, shall be computed in accordance with the following factors, namely:-

(3) In the case of an existing member in respect of whom the date of commencement of pension is after the 16th November, 2005,-

(i) superannuation or early pension shall be equal to the aggregate of:-

(a) pension as determined under sub-paragraph (2) for the period of pensionable service rendered from the 16th November, 1995 or Rs. 635/- per month whichever is more;

(b) past service pension shall be as given below:-

The past service pension payable on completion of 58 years of age on the 16th November, 1995."

Para 14:- Benefits on leaving service before being eligible for monthly member''s pension:-(1) If a member has not rendered the eligible service prescribed in Paragraph 9 on the date of exit, or on attaining 58 years of age whichever is earlier, he/she shall be entitled to a withdrawal benefit as laid down in Table D or, may opt to receive the Scheme Certificate provided on date he/she has not attained 58 years of age.

Provided that an existing member shall receive additional return of contributions for his/her past service under the Employees'' Family Pension Scheme, 1971 computed as withdrawal-cum-retirement benefits as per Table A multiplied by factor given in Table B."

It is submitted by Shri P.N. Mathur, OIC for the Employees'' Provident Fund Organization that since on the date, the petitioner attained the age of 58 years, he had not completed 10 years of service, he was not eligible for monthly member''s pension under the EPS, 1995.

We have heard the respective submissions and considered the provisions of Paragraphs 12 and 14 of the EPS, 1995.

The EPS, 1995 was made in exercise of the powers under Section 6A of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 with effect from 16.11.1995, giving the employees an option to become the members of the Scheme with effect from 01.04.1993. Para 1(3) of the EPS, 1995 provides that subject to the provisions of Section 16 of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, the Scheme shall apply to the employees of all factories and other establishments to which Employees'' Provident Funds And Miscellaneous Provisions Act, 1952 applies or is applied under sub-section (3) or sub-section (4) of Section 1 or Section 3 thereof.

The expression "actual service", "contributory service", "eligible member", "Pension", and "Member", is defined in Para 2(1)(ii)(iv)(v)(viii) and (ix) of the EPS, 1995, as follows:-

"2. Definitions.- (1) in this Scheme unless the context otherwise requires:-

(i) ...........

(ii) "actual service" means the aggregate of period of service rendered from the 16th November, 1995 or from the date of joining any establishment whichever is later to the date of exit from the employment of the establishment covered under the Act?

(iii) ........

(iv) "contributory service" means the period of ''actual service'' rendered by a member for which the contributions to the fund have been [received or are receivable];

(v) "eligible member" means an employee who is eligible to join the "Employees'' Pension Scheme";

(vi) .......

(vii) ......

(viii) "Pension" means the pension payable under the Employees'' Pension Scheme and also includes the family pension admissible and payable under the Employees'' Family Pension Scheme, 1971 immediately preceding the commencement of the Employees'' Pension Scheme, 1995 with effect from the 16th November, 1995;

(ix) "Member" means an employee who becomes a member of the Employees'' Pension Fund in accordance with the provisions of this Scheme."

The word "actual service", as defined under the EPS, 1995, means the aggregate of period of service rendered from the 16th November, 1995 or from the date of joining any establishment whichever is later to the date of exit from the employment of the establishment covered under the Act.

The word "contributory service" means the period of ''actual service'' rendered by a member for which the contributions to the fund have been received or are receivable.

"Member", as defined in para 2(1)(ix) of the EPS, 1995, means an employee who becomes a member of the Employees'' Pension Fund in accordance with the provisions of the Scheme. The Explanation to the expression "Member", inserted by G.S.R. 66, dated 22nd February, 1999, with effect from 6th March, 1999, provides that an employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age or from the date of vesting admissible benefits under the Scheme, whichever is earlier.

Para 12 of the EPS, 1995, provides for entitlement to superannuation pension, if a member has rendered the eligible service of 10 years or more and retires on attaining the age of 58 years. It also provides for an early pension, if a member has rendered eligible service of 10 years or more and retires or otherwise ceases to be in the employment before attaining the age of 58 years. Sub-para (2) of Para 12 provides for method of computation of monthly pension, and sub-para (3) provides for method of computation where the date of commencement of pension is after 16.11.2005.

The reference to 58 years in the Explanation in para 2(1)(ix) and para 12 of the Scheme, which makes a member entitled to superannuation pension or early pension, as the case may be, does not provide for age of superannuation, on which an employee retires from any organization, to which the provisions of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, are applicable. It only refers to the age on which an employee in such organization ordinarily retires.

In the present case, it is not denied that the petitioner was the employee of the bank, which is an organization, covered by the provisions of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, and that the retirement age of the Officers of the bank, who were contributing to the Employees Provident Fund, was 60 years. It is also not denied that the petitioner continued to contribute to the Employees Provident Fund even beyond the age of 58 years and upto the age of 60 years, when he retired on attaining the age of superannuation.

Considering the provisions of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 and the Employees'' Pension Scheme, 1995 which is a social welfare measure and is beneficial to a large number of employees, who are covered by the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, and to whom the pension scheme is applicable, the provisions of the EPS, 1995, have to be interpreted liberally for the purpose, for which the provisions were enacted.

The Explanation in para 2(1)(ix) of the EPS, 1995 only provides that an employee shall cease to be the member of Pension Fund from the date of attaining 58 years of age, or from the date of vesting admissible benefits under the Scheme, whichever is earlier. It does not have any correlation, if the actual period of eligible service if it is more than 10 years, if an employee who is a member of the Scheme, retires on attaining the age of superannuation, which is beyond 58 years.

In the present case, the petitioner was contributing to the Employees Provident Fund, and was a member of the Employees Pension Scheme, 1995. He did not complete 10 years of eligible service before attaining the age of 58 years, which is referable to be age of superannuation. He however had completed more than 10 years of service before attaining the age of 60 years, when he actually superannuated.

If we read the expression "actual service", "contributory service" with para 12 and 14 of the EPS, 1995, we do not see any reason to deny a person, who has completed 10 years of service on the date of exit from the employment of the establishment, covered under that Act (para 2(1)(ii) of the EPS, 1995), the benefit of monthly member''s pension.

As a social welfare scheme applicable to the employees who are contributing to the Employees Provident Fund, and who subscribe to the member of the Employees Pension Scheme, we must read down the provisions of para 12 to allow monthly member''s pension to all those members, who have rendered eligible service of 10 years or more on the date of their exit from employment for getting the benefit of superannuation pension. The calculation of pension given in sub-para (2) of para 12 of the EPS, 1995, in that case will not be affected nor would be different for members, who complete 10 years of service on superannuation.

It is submitted by the petitioner, appearing in person, that the substantial benefit of monthly pension to a member, who has rendered eligible service of 10 years, will be lost if the retirement age is treated to be 58 years for all those serving in the organizations where the retirement age is more than 58 years, leaving him with no cover of pension in their old age. The entire provisions of the EPS, 1995 are aimed to provide the old age pension(superannuation pension) to an employee serving in an organization, to which the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952 is applicable. There is no object to be achieved, if an employee who has rendered 10 years of service or more on the date of exit from the employment, by restricting superannuation pension to only those employees, who have rendered eligible service of 10 years before they attained the age of 58 years. We also find substance in the contentions of the petitioner that since the age of superannuation was 58 years in most of the organizations covered by the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952, the superannuation pension was made eligible to only those who had rendered eligible service of 10 years on the age of retirement at 58 years. The amendment in the Scheme however have failed to take into consideration those organizations, which are covered by the Act, in which the age of superannuation has been increased to 60 years.

The petitioner continued to subscribe to the Employees Provident Fund Scheme and the EPS, 1995, and made his contributions regularly even after attaining the age of 58 years. He had rendered 10 years of eligible service, as actual service, which is also a "contributory service" under the EPS, 1995. There is, thus, no reason as to why he should not be allowed the benefit of superannuation pension under para 12 of the EPS, 1995.

Article 38(1) and Article 39(d) of the Constitution of India in Part IV, direct the State to secure a social order for the promotion of welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of the national life. Article 38(2) strives to minimise the inequalities in income, status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The principle of one rank one pension has been accepted by Supreme Court of India in P. Ramakrishna Raju vs. Union of India (Writ Petition (Civil) No. 521 of 2002), decided on 31.03.2014. It is a principle based on equal protection of laws guaranteed under Article 14 of the Constitution of India. There is no reason as to why the principle be not applied to the facts of this case.

In the present case, the petitioner will be discriminated as against those employees, who have completed 10 years of service in an organization where retirement age is 58 years and those who have rendered eligible service of 10 years upto the age of exit from service i.e. the age of superannuation at 60 years. The petitioner who was the employee of the organization with age of superannuation at 60 years, having served for more than 10 years before exit from employment, has been deprived of the superannuation pension. We do not find any ground to allow such discrimination between the two sets of employees.

For the aforesaid reasons, we are of the view and direct that superannuation pension under para 12(1)(a) of the EPS, 1995, will also be applicable to those employees, who retire after the age of 58 years, provided they have rendered eligible service of 10 years before exit from service at the age of superannuation and those, who have contributed to the Employees'' Provident Fund Scheme upto the age of superannuation.

The writ petition is allowed with direction to the respondents to allow superannuation pension to the petitioner on a formula given under para 12(2) of the EPS, 1995 with effect from 31.01.2002, on his retirement attaining the age of 60 years, on superannuation from the bank. The superannuation pension will be computed and paid to the petitioner regularly with effect from 01.02.2002. The entire arrears will be paid within three months from the date, a certified copy of this order is produced in the Office of the Employees'' Provident Fund Organization. There shall be no order as to costs.