/ 1/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8139 OF 2003 Shri.Dattatray Balkrishna Belsare & Anr. ...Petitioners V/s. Government of India Department of Science and Technology, New Delhi & Ors. ...Respondents Shri.A.B. Gatne i/b. A.V. Anturkar for Petitioners. Shri.N.D. Sharma for Respondent No.1 to 3. Shri.Suresh Kumar for Respondent No.4. CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. DATED : 17th MARCH, 2008. P.C.:- 1. The Petitioners are challenging the letter dated 3rd February, 2003 issued by the Under Secretary to the Government of India, Ministry of Science and Technology, Department of Science and Technology, New Delhi as also the letter written by the Assistant Provident Fund Commissioner, Pune dated 31st January, 2002 addressed to the Director, Maharashtra Association for the Cultivation of Science, Agarkar Road, Pune. They are also seeking a direction under Article 226 of the Constitution of India, directing the Respondents to give the benefit of the Employees' / 2/ Pension Scheme, 1995 to the Petitioners from the date on which the said pension scheme was made applicable and to pay forthwith the arrears from 1995. 2. Brief facts, in nutshell, are as under:- The Petitioners were working with the Maharashtra Association for Cultivation of Science, which is a Post Graduate Research Institution, affiliated to the University of Pune and Mahatma Phule Krishi Vidyapeeth, Rahuri. The Petitioner No.1 retired as Assistant in the year 1983 and the Petitioner No.2 retired in the year 1987. It is their case that they were not given the benefit of the Employees' Pension Scheme, 1995. The Petitioners, admittedly, were covered under the provisions of the Employees Provident Fund and Misc. Provisions Act, 1952. Sometime in the year 1971, Employees' Family Pension Scheme, 1971 was brought into force and an option was given to those employees, who had opted for Employees' Provident Fund and Misc. Provisions Act, 1952, to opt for 1971 Scheme. It is an admitted position that said option was not exercised by the Petitioners herein. Thereafter, Employees' Provident Fund and Misc. Provisions Act, 1952 was amended by Ordinance No.XIII of 1995 to introduce Employees' Pension Scheme for the Provident Fund Subscribers. It is case of the / 3/ Petitioners that they are entitled to the benefit of Employees' Pension Scheme, 1995. They have, accordingly, made various representations to the Respondents from time to time, seeking benefits of 1995 scheme. However, their representation was rejected by the letter dated 3rd February, 2003 which was issued by the Under Secretary to the Government of India on the ground that the Petitioners have been paid retirement benefit pertaining to the provident fund accumulation including superannuation benefits payable to them and therefore, they were not entitled to the benefits of Employees' Pension Scheme, 1995. Perusal of Employees' Pension Scheme, 1995 discloses that only those employees, who were in service in the year 1993 and who had given option for the said scheme, would be entitled to get benefit of said scheme. 3. In the present case, the Petitioner No.1 had retired in the year 1983 and the Petitioner No.2 had retired in the year 1987 and therefore, they had retired before the cut-off date and therefore, could not avail of the benefits which were given under the said scheme. The learned counsel appearing on behalf of the Petitioners relied on the para 6 and 7 of the Employees' Pension Scheme, 1995. He submitted that his case would fall under Para 6(d). Para 6 and 7 read as under:- “6. Membership of the Employees' Pension Scheme.- / 4/ Subject to sub-paragraph (3) of Paragraph 1, the Scheme shall apply to every employee,- (a) who on or after the 16th November, 1995, becomes a member of the Employees' Provident Fund Scheme, 1952 or of the Provident Funds of the Factories and other establishments exempted by the appropriate Government under Section 17 of the Act, or in whose case exemption has been granted under Paragraph 27 or 27-A of the Employees' Provident Fund Scheme, 1952, from the date of such membership; (b) who has been a member of the ceased Employees' Family Pension Scheme, 1971 before the commencement of this Scheme from 16th November, 1995. (c) who ceased to be a member of the Employees' Family Pension Scheme, 1971 between 1st April, 1993 and 15th November, 1995 and opts to exercise his option under Paragraph 7. (d) who has been a member of the Employees' Provident Funds or of Provident Funds of Factories and other establishments exempted by the appropriate Government under Section 17 of the Act or in whose case exemption has been granted under Paragraph 27 or 27-A of the Employees' Provident Fund Scheme, 1952, on 15th November, 1995 but not being a member of the ceased / 5/ Employees' Family Pension Scheme, 1971 opts to exercise his option under Paragraph 7. 7. Option for joining the Scheme.-(1) Members referred to under sub-para (c) of Paragraph 6 who have died between 1st April, 1993 and 15th November, 1995 shall be deemed to have exercised the option of joining the Scheme on the date of his death. (2) Members referred in sub-paragraph (c) of Paragraph 6 who are alive shall have the option to join the Scheme as per provisions of Paragraph 17 from the date of exit from the employment. (3) Members referred to in sub-paragraph (d) of Paragraph 6 shall have the option to join the Scheme as per the provisions of Paragraph 17 from 16th November, 1995.” 4. Perusal of Para 6 of Employees' Pension Scheme, 1995 discloses that case of the Petitioners would fall squarely under sub-para(a) and not under sub-para(d). Further, sub-para(c) specifically clarifies that those, who were in service in the year 1993 alone would be entitled to make that option regarding applicability of Employees' Pension Scheme, 1995. The Petitioner Nos.1 and 2 having retired in the year 1983 and 1987 respectively, therefore, had clearly retired before the cut-off date and, therefore, the Respondents / 6/ had rightly rejected the representation made by the Petitioners. There is no substance in the submissions made by the learned counsel appearing on behalf of the Petitioners. Writ Petition is, therefore, rejected. Rule is discharged. Under the circumstances, there shall be no order as to costs. ( D.K. DESHMUKH, J.) (V.M. KANADE, J.)