over looked the judgement of the Supreme Court , dated 4-11-2022 and following is my opinion in short.
1) The judgement is very unfair, without taking into consideration the constitutional rights of the pensioners and judgement is written in a very peculiar manner to support the Govt and to decide the matter in the favour of Government of India.
2) By this judgement, the honorable Supreme court changed its own decision of dated 1-04-2019. This is very unfortunate and to be shameful .
3) By this judgement, the provision of pension on full/ actual salary, in EPS 95 scheme is brought to an end with effect from 1-09-2014. The honorable Supreme court has totally forgotten that this is a welfare scheme, as it was held in the Ottis Elevator case.
4) The majority of cases are from the employees who retired from service and are pensioners, however, the honorable Supreme court did not issued any specific and cleared order or direction to the EPFO, in this regard.
5) For the employees who did not exercise option and retired prior to 1-09-2014, the decision in R C Gupta case is applicable and they are entitled for the benefit of pension on actual salary accordingly, However, this is not mentioned by the honorable Supreme Court and therefore, EPFO may find out the excuse.
6) Similarly, the honorable Supreme Court didn't mention anything about the employees who retired from 1-09-2014 to the date of judgement and created ambiguity.
7) It is a fact that the honorable Supreme Court has to decide the amendments made in the scheme with effect from 1-09-2014, however, the honorable Supreme didn't touch many other issues pertaining to the scheme and which were the subject matter of the prayers of the petitions. This is very unfortunate.
8) This judgement is mainly applicable to the existing employees who were also in service as on 1-09-2014 and are working presently. There is not a single sentence regarding the relief to the retired employees that may be prior to or post to 1-09-2014.
9) However, the most important and beneficial point of this judgement is that the honorable Supreme Court did not disturbed the R C Gupta judgement and held to be legal. In my opinion this is most remarkable gain of this judgement for the pensioners.
10).Other important gain of this judgement is that, by this judgement Exempted - Unexempted, discrimination came to an end as, the honorable Supreme Court upheld the earlier judgements of the various High courts and held Exempted -Unexempted as one class.
At present not much detailed analysis is possible and everything can not be mentioned here. In short, in my opinion, the judgement is not at all pleasant and not in favour of us. We will have to think and continue the fight for our right.
That Persons retired before 1-09-2014 , are entitled for higher pension, as per the decision/ judgement in R C Gupta ( which is held legal in this order) and can submit the option accordingly. For this purpose, circular of EPFO dated 23-03-2017 is relevant. However, EPFO has kept this circular in abeyance from 2020 and unfortunately, the honorable Supreme court did not clear this point.
The honorable Supreme Court has given eight weeks time to Fund authority to implement the directions given in R C Gupta , however, it is not cleared against whom those directions are to be implemented. This is all ambiguous. The honorable Supreme court should have written one sentence that " the cases of the employees who retired before 1-09-2014 or after 1-09-2014 , without exercising option under para 11(3), to be settled as per the decision in R C Gupta and circular of EPFO dated 23-03-2017 " . With this sentence all the ambiguity could have been ended and total purpose of the judgement could have been fulfilled.
Moreover, important issues regarding the retired employees which are actually subject matter of the instant cases and incorporated in prayers thereof are not decided by the court and this is the apparent error on the face of the record of the order of the honorable Supreme court. This is my opinion, please.
Dada Tukaram Zode
What Mr George Simon is trying to interpret para 44(vi), is feasible only if a coma ( , ) exists between '2014' and 'upon'
Even then, last line of para 44(v) contradicts it, as it categorically states that - 'They would not be entitled to the benefit of this judgement'
My view
The 04/11/22 SC VERDICT which denied pension on actual salary basis to - pensions who retired before 1/9/14 is baffling because of the following reasons.
1) The 4/11 verdict did not nullify RCG SC Verdict. RCG Verdict clearly stated that if both the employee and employer contributed @ 12% on the actual salary, and amount transferred to pension fund is based on limit, then balance amount based on actual salary , could be transferred from PF to pension fund... by way of book adjustment or refund.
2) Accordingly EPFO issued circular dated 23/03/2017, after obtaining MOL&E approval dated 16/03/17 to all field offices to take n/a ( receive refund of PF amount along with Interest and arrange for payment of pension based on actual Salary.)
The Circular also suggested the pensioners to submit a joint declaration with their respective Employers opting for availing actual salary based pension.
3) As many retirees were preparing for the above, within 1 .5 months of the above Circular, on 31.5.17, EPFO Issued a new Circular in which it stated inter alia, that retirees from Exempted establishments are not eligible for availing the facility, as PF Funds and Pension Funds are "managed by seperate Legal entities".
4) Whereas SC Verdict 4.11.22 , did not differentiate eligibility of the scheme based on exempt / non- exempt basis.
In view of the above - it is quite intriguing- that retirees before 1.9.14 is termed as exited from the scheme & barred from exercising ing the option .
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