* THE HON’BLE MR JUSTICE L.NARASIMHA REDDY +WRIT PETITION Nos.6527 and 14711 of 2007 %Dated 16.07.2008 #Battula Veera Swamy. …Petitioner. and $ The Regional Provident Fund Commisioner, Barkatpura, Hyderabad, and others. …Respondents ! Counsel for petitioner in W.P.No.6527 of 2007:Party-in-person Counsel for petitioner in W.P.No.14711 of 2007:Chandraiah Sunkara ^ Counsel for Respondents:B.Narasimha Sarma < GIST: > HEAD NOTE: ? Cases referred IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SIXTEENTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION Nos.6527 and 14711 of 2007 WRIT PETITION No.6527 of 2007 Between: Battula Veera Swamy, s/o Bapaiah, Senior Citizen, Mishra Dhatu Nigam Ltd., Hyderabad-58, r/o No.301, Santhosh Plaza, Sagar Road, Saidabad, Hyderabad-59. ..... PETITIONER AND 1 The Regional Provident Fund Commissioner, Barkatpura, Hyderabad-27. 2 The Central Provident Fund Commissioner, Hudco Vishila No.14, B.C.Place, R.K.Puram, New Delhi-110 066. 3 Secretary to the Government of India, Ministry of Labour, Shram Shakthi Bhavan, Rafi Marg, New Delhi-110 001. 4 The Secretary, Ministry of Personnel, Public Grievances & Pensions, Department of Pensions & Pensioners' Welfare 3rd Floor, Lok Nayak Bhavan, Khan Market, New Delhi 110 003. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ order or direction more particularly one in the nature of writ of mandamus, (a) directing the respondents 1, 2, & 3 to release pension payable to me with effect from 1-7-1994 along with interest of 8.5% per annum up to 31-10-2006 and penal interest @ 12% per annum from 1-11-2006 as provided in para 17(A) of the Pension Scheme 1995 and to deduct the withdrawal benefit and subscription due for the period of the exemption to Employees' Family Pension Scheme 1971 along with interest @ 8.5% per annum form the arrears of pension payable to me, (b) set aside the Notification of Exemption dt.30-9-1991 issued by the Central Provident Fund Commissioner, New Delhi, as it is illegal, null and void and unconstitutional, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:PARTY-IN-PERSON Counsel for the Respondents: MR.R.N.REDDY (SC FOR EMPLOY'S PF ORG.) WRIT PETITION NO : 14711 of 2007 Between: C.V.S.R.Anjaneya Sastry S/o.Late C.Narasimha Rao Hyderabad, Residing at 401, chandra gupta, Towers West maredpally, Secunderabad-500026 ..... PETITIONER AND 1 The Regional Provident Fund Commissioner, Barkatpura, Hyderabad-27 2 The Central provident Fund Commissioner, Bhavishya Nidhi Bhavan, No.14, Bhikajicama palace, R.K.Puram New Delhi-1100066 .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any appropriate writ order or direction particularly one in the nature of writ of mandamus granting the following relief. 1). Set aside the exemption notification dated 11.4.1992 as null and void issued without the authority of law 2). Set aside the letter dated 21.3.2007 being arbitrary, bad in law and violative of Article 14 of the constitution of India as well as Articles 16 and 21 of the constitution 3.). Direct the respondents to accept (a) the option exercised by the petitioner under the provisions of the Employees Pension Scheme, 1995 and (b) the application for the monthly pension submitted in the prescribed form along with the past period contribution of Rs.20,000 4). Issue a writ of mandamus or any appropriate writ orders or directions to settle my pension and other benefits like family pension under the Employees Pension scheme, 1995, within a short period that may be allowed by this court 5). Direct the respondents 1&2 to release pension payable to me with effect from 25.1.1996 along with penal interest at 12% per annum as provided in para 17(A) of pension scheme 1995 and to deduct the subscription due from me from 9.8.1980 to 24.1.1996 along with interest at 8.5.% per annum from arrears of pension payable to me by deducting the interest on the amount of Rs.20,000/- which was lying with R.P.F.C. for the period from 19.12.96 to 27.12.2000 6). pass any such order as this Hon`ble court deems fit and proper in the interest of justice including the awards of costs. Counsel for the Petitioner:MR.CHANDRAIAH SUNKARA Counsel for the Respondents: MR.R.N.REDDY (SC FOR EMPLOY'S PF ORG.) The Court made the following : COMMON ORDER: These two writ petitions arise under similar set of facts. Hence, they are disposed of through a common order. For the sake of convenience, the petitioner in W.P.No.6527 of 2007 is referred to as ‘the first petitioner’ and the petitioner in W.P.No.14711 of 2007 is referred to as ‘the second petitioner’. The first petitioner joined the defence service on 06.11.1959. He came on deputation to Mishra Dhatu Nigam Limited (Midhani), Hyderabad, on 27.01.1975. His services were permanently absorbed in Midhani, with effect from 01.08.1976, and correspondingly, he retired from the service of the Central Government on that day itself. He attained the age of superannuation, while serving in the Midhani, on 01.08.1994. The second petitioner was initially appointed in the office of the Accountant General on 29.07.1957. With effect from 09.06.1980, he has ceased to be the employee of that organization and came to be absorbed in the service of Bharat Heavy Electricals Limited, Hyderabad (BHEL). He attained the age of superannuation on 24.01.1996, while serving in BHEL. The Central Government framed the 1971 Employees Family Pension Scheme (for short “the 1971 Scheme”) in exercise of its powers under the relevant provisions of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short “the Act”). It is applicable to various organizations covered by the Act. Several Public Sector Undertakings (PSU) and other organizations introduced their own schemes for the benefit of their employees on retirement, or on death, while in service. Both the petitioners were members of the 1971 Scheme. To avoid over lapping of the 1971 Scheme, on the one hand, and those maintained in various organizations, on the other hand, the Government of India, Ministry of Personnel, Public Grievance and Pensions Department of Pension & Pension’s Welfare, issued Office Memoramdum, dated 22.01.1990, directing that the employees working in PSUs/Autonomous bodies must exercise option, either to continue to be governed by the 1971 Scheme, or those maintained by the PSU’s/autonomous bodies. The petitioners, in turn, exercised those options, and as provided for under the memo, dated 22.01.1990, applied to the Central Provident Fund Commissioner, the second respondent herein, for grant of exemption. Such exemptions were granted on 30.09.1991, in the case of the first petitioner, and on 28.02.1990, in respect of the second petitioner. The 1971 Scheme was replaced by the 1995 Employees Pension Scheme (for short “the 1995 Scheme). Though the 1995 Scheme came into force on 16.11.1995, it was also made applicable to those employees, who ceased to be in service between 01.04.1993 and 16.11.1995. While the first petitioner is covered by clause 6(c), the second petitioner was in service, when the 1995 Scheme was introduced. Both the petitioners were not extended the benefit under the 1995 Scheme. On coming to know that the Karnataka High Court in its judgment in Writ Appeal No.4673 of 2004, dated 21.04.2006, held the exemption granted by the second respondent from the 1971 Scheme for employees of PSU’s is untenable in law, the petitioners made applications to the second respondent with a prayer to extend the said benefit, duly withdrawing the orders of exemption granted in their cases. The second respondent took the view that the judgment of the Karnataka High Court has no application to the facts of the case of the petitioners. The acts of the second respondent are challenged in these Writ Petitions. Heard Sri Chandraiah Sunkara, learned counsel for the first petitioner, and the second petitioner, who appeared as party-in- person, and Sri B.Narasimha Sarma, learned counsel for the respondents. The controversy in these writ petitions is very limited, in its scope. It is not in dispute that the petitioners were covered by the 1971 Scheme. Obviously on being compelled under the official memorandum, dated 22.01.1990, they exercised the option to be out side that scheme and have preferred to avail the benefit of the schemes under the respective PSU’s. Necessary exemption was also granted by the second respondent. There is some dispute as to whether the amount of contribution made up to that date has been returned to the petitioners. The 1971 Scheme was replaced by the 1995 Scheme. Though it came into effect from 16.11.1995, it covered cases of those who ceased to be members of the EPF Scheme between 01.04.1993 and 16.11.1995, also. While the first petitioner retired from service of the PSU before 16.11.1995, but after 01.04.1993, the second petitioner retired from service, after the 1995 Scheme was introduced. A combined reading of clauses 6, 7 and 17 of the 1995 Scheme discloses that it applies only to those employees who were members of the 1971 Scheme as on 01.04.1993, or any subsequent date. In the instant case, the membership of the petitioners in the 1971 Scheme was brought to an end, on exercise of their option and on the exemption granted by the second respondent. Unless the said termination is set at naught, the petitioners cannot be extended the benefit under the 1995 Scheme. Even assuming that there was any illegality in requiring the petitioners to exercise option in the year 1990 or the resultant exemption granted by the second respondent, the entry of the petitioners into the 1995 Scheme is not automatic. An exercise needs to be undertaken to verify whether there existed a scheme, which is equally, or more beneficial to the concerned employees under the PSU’s, in which, they were employed, when compared with the 1971 Scheme; and whether after exercising their option to come out of the 1971 Scheme, the employees were extended any benefit under the alternative schemes. Another aspect is that even after it is found that the petitioners are entitled to be brought under the fold of the 1995 Scheme, the amount of contribution to be made by them and interest, if any, needs to be calculated. This Court of the view that the claims of the petitioners need to be examined from the above angle by the second respondent. Inasmuch as the petitioners are retired employees, the matter needs to be attended to, as early as possible. The Writ Petitions are disposed of, directing the second respondent i.e., the Central Provident Fund Commissioner, Hudco Vishila, New Delhi, to verify- a) whether there existed any scheme comparable to, or more beneficial than the one under the Employees Family Pension Scheme 1971 in the PSU’s, where the petitioners were working as on the date on which they were required to exercise their option under official memo, dated 22.01.1990, issued by the Government of India; b) whether the petitioners are entitled to revoke their options exercised by them and to come under the purview of the 1995 Scheme; and if so, c) the conditions subject to which the re-entry into the 1995 Scheme can be ordered. This exercise shall be completed peremptorily within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. ____________________ Dt.16.07.2008 L.NARASIMHA REDDY, J. L.R.copy to be marked. GJ