Indicative rough draft for non-exercising the options under Para 26(6) of EPF Scheme 1952 and Para 11(3) under EPS 1995

Dear friends,
On the request of many pensioners, Praveen Kohali Sir shared an indicative rough draft for EPS 95 Pensioners assistance and to appraise there advocates regarding non-exercising of options under Para’s 26(6) of EPF Scheme 1952 & 11(3) of EPS 1995.
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Indicative rough draft only for assistance
That so far as the question of non-exercising the options under Para 26(6) of EPF Scheme 1952 and Para 11(3) under EPS 1995 during the service tenure is concerned, it is submitted that the petitioners in this Writ Petition are similarly situated as those were in RC Gupta case (SLP 33032-33033 of 2015) and also in Austin Joseph case (SLP 19954 of 2015) which have attained finality and implemented by EPFO.

A) EXCERCISING OF OPTION UNDER PARA 26(6) OF EPF SCHEME 1952 DURING SERVICE TENURE
The petitioner of this Writ had submitted options under Para 26(6) of EPF Scheme 1952 long back while becoming a member of EPF Scheme and that is why the employer started deduction towards EPF on their actual/higher salary and also contributed employer’s share as well as paid administrative charges on the amount based on the actual salary of petitioners and the same had been accepted by EPFO (without any objection uptill the retirement of petitioners) and EPFO had also accounted for & updated the account of EPF on the basis of such contribution received from employee & employer. So, by virtue of action of employee/ employer and EPFO, it has to be inferred that joint option of employee & employer have been exercised and accepted by EPFO.
It is also a fact that none of the petitioners in RC Gupta case (SLP 33032-33033 of 2015) and also in Austin Joseph case (SLP 19954 of 2015) had exercised such an option under Para 26(6) of EPF Scheme 1952 but all the petitioners in these cases were contributing towards Provident Fund on their actual/higher salary. Since the petitioners of above two SLPs have been given the benefit of pension revision (by implementing the decision of Apex Court), the petitioners of this Writ, being similarly situated, cannot be denied the same treatment as that will amount to discrimination.

EPFO Shimla vide letter no. 351(2010) RO/HP Coord/RTI/xxx/2543 dt. 19.11.2019 (Annexure) has confirmed that NO PERMISSION UNDER Para 26(6) HAS BEEN GRANTED to the Petitioners of RC Gupta Case. Similarly, in Austin Joseph case wherein all the petitioners were retired employees, it has clearly been stated by EPFO (as recorded at Para no. 2 of the order of Kerala high Court in WP no.  254 of 2014 (Annexure ----) that exercise of joint option by employer and employee under Para 26(6) has not been done. But the said benefit has been accorded to them by EPFO after the SLP had been decided in favour of retired employees. Thus, the issue has attained finality.
In view of above, EPFO HQ /Respondent no. ------- had issued directions vide letter no. Pen-I/12/33/96/Amendment/Vol.IV/16762 dt 22.1.2019 (Annexure ----) wherein the field offices had been directed not to insist for option under Para 26(6) of EPF Scheme 1952 in similar cases.

 
B) EXERCISING OF OPTION UNDER PARA 11(3) OF EPS 1995 DURING SERVICE TENURE
Similar was the situation in respect of petitioners in RC Gupta case (SLP 33032-33033 of 2015) and also in Austin Joseph case (SLP 19954 of 2015) which have been decided by the Apex Court in favour of petitioners and implemented by EPFO, thus, have attained finality.
After the issue of circular dated 23.3.2017 by EPFO HQ allowing the benefit of pension revision to all retired employees in accordance with the approval accorded by the Ministry of Labour & Employment, Government of India vide letter dt. 16.3.2017, the petitioners of this Writ had submitted joint options of employee & employer under Para 11(3) through their employer when the same had been sought by EPFO/Respondent no ------- vide letter no. -------------------------- dated ------------ (Annexure ----) as also done by the petitioners of RC Gupta case (SLP 33032-33033 of 2015) who had also submitted similar joint options of employee & employer under Para 11(3) through their employer when the same had been sought by EPFO vide letter no. RO/HP/4022/Accounts Group -4/359 dated 19.4.2017 (Annexure ----)
Since the petitioners of above two SLPs have been given the benefit of pension revision, the petitioners of this Writ, being similarly situated, cannot be denied the same benefits otherwise  that will amount to unlawful discrimination.