IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.1644 OF 2010 K.Gomathi ... Petitioner VS. 1.Additional Central Provident Fund Commissioner (Pension) Employees Provident Fund Organisation Ministry of Labour Government of India Bhavishya Nidhi Bhawan No.14, Bhikaji Cama Place New Delhi – 110 066. 2.Assistant Provident Fund Commissioner Dr.Balasundaram Road Coimbatore – 641 018. 3.St.Joseph Boys Higher Secondary School College Road, Coonoor – 643 102. Nilgiris. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the records from the file of the first respondent herein in his proceedings No. Pension.6(1)/2006/RTI/Vol.I/77283 dated 18.12.2009 and quash the same and direct the respondents 1 and 2 herein to pay the monthly pension to the petitioner herein under the Employees Pension Scheme 1995. For Petitioner : Mr.S.Jayaraman For Respondents-1 & 2 : Mr.K.Gunasekar, ACGSC O R D E R The petitioner has filed the present writ petition seeking to challenge the order dated 18.12.2009 of the first respondent – Additional Central Provident Fund Commissioner (Pension), New Delhi and seek to set aside the same with a further direction to the respondents to pay monthly pension to the petitioner under the Employees' Pension Scheme 1995. https://hcservices.ecourts.gov.in/hcservices/ 2.The writ petition was admitted on 01.02.2010. After notice, Mr.K.Gunasekar, learned standing counsel appears on behalf of the respondents 1 and 2 and a counter affidavit dated 05.09.2010 was also filed. 3.It is seen from the records that the petitioner was working as a Teacher in the third respondent School. She attained the age of superannuation on 10.04.2005. The petitioner had become a subscriber to the Employees' Provident Fund Scheme 1952 with effect from 01.06.1995. Her date of birth was recorded in the register as 10.04.1947. She also became a Member of the Employees' Family Pension Scheme, 1971 from the date of her joining namely on 01.06.1995. Consequent on the introduction of the Employees Pension Scheme, 1995 (with effect from 16.11.1995) she became a Member of the Employees Pension Scheme 1995 by virtue of paragraph 6(b) of the Scheme. After getting superannuated, she sent an application in Form 10-D to the second respondent claiming pension. On processing the application, it was found that the petitioner had put in 5 months and 14 days service under the Employees Family Pension Scheme 1971 and subsequently, her service under the Employees Pension Scheme 1995 was calculated as 9 years 4 months and 23 days. Her earlier service of 5 months and 14 days under the old scheme of 1971 was ignored and only the service under Employees Pension Scheme 1995 was considered. Since she did not have any past service counted for pension, the service under the Employees Pension Scheme 1995 was reckoned as 9 years 4 months and 23 days. Since the fraction of service was less than six months, the total service was rounded of to 9 years. Therefore, the petitioner was informed that under paragraph 9 of the Employees Pension Scheme 1995, her service was reckoned as only 9 years and since the contributions to the past Scheme were not received, her earlier service under 1971 scheme cannot be considered. Since she had less than 9 years of service under the Employees Pension Scheme 1995, she was not eligible to get monthly pension. 4.But however, in para 9 and 10(d) of the counter affidavit, the respondents have stated as follows: "9.It is submitted that though the petitioner has an aggregate total service of 9 years 10 months 7 days (from 16.11.1995 to 10.04.2005) the Head Office has instructed that the determination of eligible service has to be done under para 9 of the EPS 1995 by rounding off of past service and actual service. Based on the above, the petitioner's case which was referred to the head office was rejected as not having an eligible service of 10 years or more by letter of the first respondent dated 19.2.2009. Aggrieved by https://hcservices.ecourts.gov.in/hcservices/ the said order the petitioner made a representation before the first respondent. 10.(d) The petitioner being existing member (i.e. having service prior to 16.11.1995) the period of service rendered by her from the date of joining EFPS 1971 (i.e. 01.06.1995 to 15.11.1995) is past service as defined para 2(xii) of EPS'95. Therefore pensionable service does not include past service since the contribution is received in Employees Family Pension Fund @ 1.16% each of the employee and employer share. EPS'95 defines "Past Service" and "Pensionable Service" separately and these services are mutually exclusive and any period of service cannot be part of both the service at the same time." 5.Mr.S.Jayaraman, learned counsel for the petitioner assailing the reasons found in the impugned order and reiterated in the counter affidavit, had stated that it is unfair on the part of the respondents in denying monthly pension to the petitioner, even though she had put in 10 years of service as required. The petitioner was admittedly a Member of the Employees Family Pension Scheme 1971 and she has also continued to be a Member of the 1971 Scheme, when Employees Pension Scheme 1995. It is submitted that under para 9 of the Employees' Pension Scheme 1995, it was stipulated as follows: "9.Determination of Eligible Service – The eligible service shall be determined as follows:- (a) In the case of "new entrant" the "actual service" shall be treated as eligible service. The total service shall be rounded of to the nearest year. The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored. Explanation:- In the case of employees employed seasonably in any establishment the period of "actual Service" in any year, notwithstanding that such service is less than a year shall be treated as a full year. (b) In the case of the "existing member" the aggregate of actual service and the "past service" shall be treated as eligible service: Provided that if there is any period in the "past service" for which the contributions towards the Family Pension Scheme, 1971 has not been received, the said period shall count as https://hcservices.ecourts.gov.in/hcservices/ eligible service only if the contributions thereof have been received in the Employees' Pension Fund. Explanation:- For the purpose of this sub- paragraph the total past service for less than six months shall be ignored and the total past service for six months and above shall be rounded to a year." 6.If the original paragraph 9(b) of the Employees Pension Scheme 1995 stood as it is, there is no difficulty in counting the petitioner's service before introduction of the Employees Pension Scheme 1995, which works out to more than 9 years and 10 months, which is eligible for drawal of monthly pension. The Government of India amended paragraph 9(b) of the Employees Pension Scheme, 1995 and introduced an explanation with effect from 21.08.2009 vide G.S.R.No.594/E. After amendment, the following explanation was added: "2.In the Employees' Pension Scheme, 1995, in paragraph 9 in sub-paragraph (b), for explanation, the following explanation shall be substituted, namely:- "Explanation – For the purpose of this sub-paragraph, the aggregate of actual service and past service for less than six months shall be ignored and six months and above shall be rounded off to a year." 7.It is submitted that this explanation must be prospective and should not affect the right accrued to the petitioner. In this regard, a reference was made to the judgment of the Punjab and Haryana High Court in Regional Provident Fund Commissioner, Karnal Vs. Gurnam Singh and Others reported in 2009 (III) LLJ 33 (P&H) wherein, the Court held that if the employee had contributed to the Scheme for 9 years, he can get weightage of 2 years as per paragraph 10(2) of the Employees Pension Scheme 1995, which reads as follows: "10.(2) In the case of the member who superannuates on attaining the age of 58 years, and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years." 8.In the judgment referred to above, the Punjab and Haryana High Court in para 9, had observed as follows: "9.Concededly, as per the showing of the learned counsel for the appellant if an employee had completed 10 years of service and contributed to the scheme, he was entitled to the benefit of the family pension. It is the case of the https://hcservices.ecourts.gov.in/hcservices/ appellant that the plaintiff / respondent had contributed to the scheme for 9 years, therefore, if the benefit of Para 10 is awarded to the appellant by giving weightage of 2 years, he completes 11 years and becomes entitled to the benefit of the scheme. That apart, the appellant is estopped by its conduct on account of the fact that it had initially waived off the period from 1982 to 1990 enabling the employees to become members of the scheme without depositing the amount." 9.So looked it from any angle, the petitioner is entitled to succeed. The stand taken by the respondents in denying pension to the petitioner is totally unjustified and the impugned order stands set aside and the writ petition is allowed. The respondents are directed to grant monthly family pension to the petitioner in accordance with the Employees' Provident Fund Pension Scheme, 1995 and an order to the effect shall be passed within a period of eight weeks from the date of receipt of a copy of this order. No costs. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Additional Central Provident Fund Commissioner (Pension) Employees Provident Fund Organisation Ministry of Labour Government of India Bhavishya Nidhi Bhawan No.14, Bhikaji Cama Place New Delhi – 110 066. 2.The Assistant Provident Fund Commissioner Dr.Balasundaram Road Coimbatore – 641 018. 3.St.Joseph Boys Higher Secondary School College Road, Coonoor – 643 102. Nilgiris. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Mr. S Jayaraman, Advocate SR No.32958 + 1 cc to Mr. K. Gunasekar, Advocate SR No.32258 VSN(CO) SR/14.6.2011 ORDER MADE IN W.P.NO.1644 OF 2010 https://hcservices.ecourts.gov.in/hcservices/