EPS 95 Higher Pension: EPFO vide circular had issued Clarification on Revision of Pension on actual wages, regarding option under para 26(6) and 11(3) as under

09.01.2023 - OPTION AVAILABLE ONLY UNDER PARA 26(6) OF EPF SCHEME, 1952 & NOT UNDER PARA 11(3) OF EPS’95 3 

If he is already a member of the Fund and thereupon such employee shall be entitled to the benefits and shall be subject to the conditions of the Fund, provided that the employer gives an undertaking  in writing that he shall pay the administrative charges payable and shall comply with all statutory  provisions in respect of such employee.

Para 3 of The Employees’ Pension Scheme, 1995 

Employees' Pension Fund: 

(1) From and out of the contributions payable by the employer in each month under Section 6 of the Act or under the rules of the Provident Fund of the establishment which is exempted either under clauses (a) and (b) of sub-section (1) of Section 17 of the Act or whose employees are exempted under either paragraph 27 or paragraph 27-A of the Employees' Provident Fund Scheme, 1952, a part of contribution representing 8.33 per cent. of the Employee's pay shallbe remitted by the employer to the Employees' Pension Fund within 15 days of the close of every month by a separate bank draft or cheque on account of the Employees' Pension Fund  contribution in such manner as may be specified in this behalf by the Commissioner. The cost of  the remittance, if any, shall be borne by the employer.  

(2) The Central Government shall also contribute at the rate of 1.16 per cent. of the pay of the members of the Employees' Pension Scheme and credit the contribution to the Employees Pension Fund:

Provided that where the pay of the member exceeds fifteen thousand rupees per month the contribution payable by the employer and the Central Government be limited to the amount payable on his pay of fifteen thousand rupees only. 

[Please note that as per Para (3) (1), the employee has nothing to do for remittance into Pension Fund. It is for only the employer to remit an amount of 8.33% of employee’s pay towards Pension Fund i.e., if the employee was contributing @12% on ceiling wages or actual wages, the employer is required to remit in Pension fund 8.33% of ceiling wages or actual wages respectively.

So, option to contribute on actual salary is available only under Para 26(6) of the EPF Scheme,  1952 and NOT under Para 11(3) of the EPS, 1995 as clarified by EPFO vide circulars dt. 22.11.2006 and 08.11.2013 as above]

16-A. Guarantee of pensionary benefits: 

None of the pensionary benefits under the Scheme shall be denied to any member or beneficiary for want of compliance of the requirement by the employer under sub-paragraph (1) of paragraph 3 provided, however, that the employer shall not be absolved of his liabilities under the Scheme.