After the pronouncement of such Judgment, the petitioners are supposed to wait for the issue of circular implementing the same and in this case by the EPFO presumably after due deliberations/ interpretations/ approvals from the Pension & EDLI Implementation Committee (PEIC), Central Board of Trustees (CBT), EPFO and MoL&E, GOI but keeping in view our past experience and also the time bound directions given therein the Judgment and judicial limitations for filing Recalling Petition/ Review Petition/ Curative Petition/ Clarificatory Petition/ Modification Petitionetc. (if any to be filed), the matter essentially needs to be deliberated IMMEDIATELY with the concerned Advocates/AORs/ Sr. Advocates and also a common strategy is required to be planned by the likely to be adversely affected pensioners for ensuring relief for the left-out category of retirees, if any.
In this regard, the various Petitioners/ Associations/ Unions/ Individuals etc., MUST essentially join together by keeping their egos (if any) away in the common interest of all so that the limited financial resources could be pooled and effective Petitions based on authentic relevant information & data be filed through the 3-4 TOP/ Eminent Advocates so that they may present the case effectively & comfortably in the interest of all the concerned/ left-out petitioners/ retirees (if any).
In this Judgment, the due relief has been granted to the employees/retirees of exempted establishments and also to the Post 01.09.2014 retirees {subject to “present members” as mentioned in Para 44(i)} and presently serving employees but without any such prayer in the SLPs,some damaging/confusing directions have been recorded therein the Judgment which are not only self-contradictory but also discriminatory. EPFO is well capable to twist the wording in the Judgment to their advantage and try to deny the relief to most of the pensioners/serving employees. You must have read the Judgment by now and in the interest of brevity, the same is not being repeated. Only crux of the issue is being discussed here.
Factually, as per the prayers contained in the SLPs filed by EPFO, the entire Judgment is supposed to be relating to the provisions contained in r/o GSR 609(E) dt 22.08.2014/Challenging the KHC Judgement dt 12.10.2018 and for the grant of relief to the employees/retirees of exempted establishments but some confusion has been created in the Para 44 (i), 44(v), 44(vi) and 44(ix). Anti-dote for Para 44(v) is contained in Para 44(vi) itself. Another Para 44(ix) is also very important but confusing and requires deliberations. On one hand RC Gupta Judgment (duly implemented by EPFO) having attained finality has been upheld repeatedly in this Judgment but on the other hand, these confusing paras have been incorporated in the Judgment out of blues without any such prayers in the petitions.
Since there were no such prayers denying the benefit to pre-01.09.2014 retirees in the slp’s filed by epfo, there was no opportunity granted to the pre-01.09.2014 retirees to argue in the matter depriving their fundamental right to do so. This was since the benefit of R.C. Gupta judgment had already been allowed to pre-01.09.2014 retirees (from un-exempted estts) and a list of 21,229 such persons had also been annexed by epfo with the affidavit dt. 05.08.2022 filed in these cases in sc. Even in the present judgment dt. 04.11.2022, the decision of 2-judge bench dt. 04.10.2016 (R.C. Gupta case) has been upheld repeatedly and in many official documents relating to the implementation of R.C. Gupta judgment, it has been made amply clear that the same will also be applicable to the superannuated/retired employees. So, on one hand R.C. Gupta judgment has been implemented by epfo in r/o some of the pre-01.09.2014 retirees and upheld in the present judgment dt 04.11.2022 but on the other hand, in the para (ix), it has been directed to implement the R.C. Gupta judgment dt. 04.10.2016 subject to the directions contained in the present judgment dt 04.11.2022. Thus, in this judgment, a well settled R.C. Gupta judgment has been tried to be unsettled from back door without any review filed by epfo even though R.C. Gupta judgment has been upheld repeatedly in the present judgment dt 04.11.2022
Para 41 of the Judgement dt 04.11.2022
As contained in Para 41 of the Judgement dt. 04.11.2022 in r/o Post 01.09.2014
As we have already discussed, in case of R.C. Gupta (supra), it has been specifically held that there was no cut-off date in proviso to paragraph 11(3) as it stood before the 2014 amendment.
In our opinion, the interpretation given to the proviso to paragraph 11(3) prior to 2014 amendment does not require any reconsideration.
We agree with the reasoning of the two-judge Bench of this Court on this point, as expressed in the said judgment.
As there was no cut-off date to be contemplated prior to the 2014 amendment, limiting the entitlement of enhanced pension coverage to those employees only who had already exercised an option under Clause 11(3) of the unamended scheme would be contrary to the ratio of the decision of this Court held in the case of R.C. Gupta (supra).
We are not holding that no option was required to be exercised as per proviso to paragraph 11(3) of the scheme, as it stood prior to 2014 amendment. As held in the case of R.C. Gupta (supra), there was no time-limit for exercising such option.
Why discrimination with other similarly situated pre-01.09.2014
Why can’t this interpretation be applied in r/o pre-01.09.2014 retirees as they are also similarly situated but different direction has been given in Para 44(v).
It is also a matter of record that EPFO has already implemented this interpretation after due deliberation in r/o pre-01.09.2014 retirees after seeking approval from CBT & MoL&E and had issued a circular dt 23.03.2017 whereby pension of 24,672 pensioners (including RC Gupta and other petitioners of those SLPs) had also been revised after accepting joint options UPON EXERCISING OPTIONS UNDER PARA 11(3) OF THE 1995 Scheme.
Once this facility has been provided after due diligence that too being upheld in the judgement dt 04.11.2022; there can’t be any discriminatory and different yard stick for the pre-01.09.2014 retirees.
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