I/56102/2023

No. FCI HQ-EP049(11)/3/2022-EP

FOOD CORPORATION OF INDIA
HEADQUARTERS, NEW DELHI

Dated # Approved date

(Circular No. EP-08-2023-04)

Sub:– Hon’ble Supreme Court Judgement dated 04.11.2022 regarding

Employees’ Pension Scheme, 1995 (EPS-95) and availability of option for
contribution to EPS-95 on actual salary for pension – Reg-:

Attention is invited to the Circular No.EP-08-2019-21 dated 18 th June 2019

conveying instructions regarding pension based on higher salary under proviso to
Para 11(3) of the Employees’ Pension Scheme 1995, joint option of the employer
and employee thereof. The said instructions were issued in light of the directions of
Hon’ble High Courts of Kerala, Madras and Delhi which held that exempted trusts
are entitled to benefit of enhanced pension on the basis of their contribution with
reference to actual salary received by them to their Provident fund Accounts. In the
meanwhile, various petitions were also pending before the Hon’ble Supreme Court
on the subject matter filed by EPS-1995 members of FCI and various other
establishments.

Now, Hon’ble Supreme Court vide judgement dated 04.11.2022 has conveyed
instructions in this regard. As per paragraph 38, 39 & 44(ii) of the judgement, it is
also applicable to the EPS-95 members from the exempted establishments. After
due examination of the judgement of Hon’ble Supreme Court dated 04.11.2022 and
related instructions of EPFO, following are communicated for information and
compliance;

1. Food Corporation of India is an exempted establishment and the judgment is

applicable to the employees/ ex-employees of FCI subject to eligibility as
contained in the Hon’ble Supreme Court’s judgement dated 04.11.2022. All
employees of FCI are members of the Contributory Provident Fund Trust
(CPF Trust) and contribute to the provident fund at the prescribed rate on their
actual salary as applicable from time to time. FCI also makes matching
employer’s contribution on the actual salary to the CPF trust. However,
contribution to EPS-95 has been made from the employer’s contribution to the
PF @ 8.33% of prescribed wage limit applicable from time to time.
2. Consequent to the judgement of Hon’ble Supreme Court dated 04.11.2022,
EPFO has issued Circular No. Pension/2022/54877/15149 dated 29.12.2022
(Copy enclosed) and Corrigendum No. Pension / 2022/54877 dated
05.01.20232 (Copy enclosed), in compliance to Para-44(ix) read with Para-
44(v) and (vi) of the Supreme Court judgement. Para 5 of the said circular of

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EPFO specifies the employee who are eligible to exercise option as per the
SC judgement in R C Gupta Case.

3. Accordingly, all such ex-employees of FCI who are meeting the criteria
specified in the EPFO circulars, if they so desires, may submit their option as
per procedures along with the supporting documents as specified in para- 6 &
7 of EPFO circular dated 29.12.2022 and corrigendum dated 05.01.2023. As
required under clause –IV of Para-7, necessary undertaking shall be provided
by the Trustee of FCI CPF Trust.
4. Further, as per para 43 read with para 44(iv) of the Supreme Court’s
judgment, all employees, who were members of the EPS-95 as on 01.09.2014
i.e were below 58 years of age and who could not exercise the option, as
contemplated in proviso to paragraph 11(3) of the pension scheme to
contribute to EPS - 95 on actual salary instead of applicable wage ceiling, for
getting pension on actual pensionable salary as defined in EPS-95, would be
entitled to exercise option now under paragraph 11(4) of EPS-95 within a
period of four months from the date of judgement i.e on or before 03 rd March
2023.

5. Since the time to exercise the option by the eligible employees is available
only for a period of four (4) months from 04.11.2022, as per the judgment of
Hon’ble Supreme Court, all eligible employees have a onetime chance to
exercise their option to contribute to EPS-95 on actual salary instead of on
applicable wage ceiling, for getting pension on actual pensionable salary, as
defined in EPS-95. Employee(s)/ Ex-employee(s)/ EPS-95 pensioners,
exercising their option now would be required to pay arrears of EPS
Contribution, ie difference between the contribution of 8.33% on actual salary
less contribution already deposited on applicable wage ceiling from the date
of joining EPS-95. Additionally, such employees shall also be required to pay
interest on due arrears at applicable rate till the month of remittance.
Employees may also be required to contribute 1.16% of salary exceeding
Rs.15,000/- as additional contribution from September 2014. However, as per
Supreme Court Judgment, additional contribution can be recovered maximum
for a period of six months from the date of judgment i.e only till April 2023 or
till such time any amendment is made to generate additional contribution from
some other legitimate source within the scope of the Act, whichever is earlier,
as a stop gap measure. The said sum shall be adjustable based on alteration
to the scheme that may be made.

6. In regards to members who retired/attained age of 58 years prior to

01/09/2014, compliance to instructions at point no 7(iv) ad 7(vi) of EPFO Lr.
No. Pension/ 2022/54877/15149 dated 29.12.2022, shall be ensured.

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7. Accordingly, all the administrative offices of FCI are directed to initiate the
process of joint option for the benefit of higher salary in consultation with the
EPF office as per Annexure I to IV.

8. For existing employees, option forms and remittance particulars shall be

obtained through HRMS for which necessary provision shall be created in
HRMS. On exercising the option by the employee, the same will be
transferred to the concerned personnel/ finance/ bills officer for updation of
basic pay/ remittance particulars consequent to which the same shall be
forwarded to the CPF Division of ZO/ Hqrs as the case may be for further
action. Progress in this regard shall be monitored by concerned CPF Division
on daily basis.

9. The CPF Division of Zonal Office/ Headquarters on receipt of joint option form
along with salary particulars shall prepare details of monthly contribution in
the 7PS form in FCI format in respect of the said individual w.e.f.16.11.1995/
to the date of exit along with calculation sheet of differential EPS contribution
along with up to date interest. CPF Division shall also verify the documents
and submit the same to respective RPFC office or forward it to Headquarters
or return it to the concerned office if the documents are incomplete,
immediately.

10. One copy of the option form shall be kept in the service book of the concerned
employee, as well as in the CPF Division of ZO/ HQrs as the case may be.
The option form duly accepted by the Regional Provident Fund Commissioner
will be maintained in the CPF and Personnel Establishment Divisions. The
personnel section will coordinate with the bills section for preparation of salary
particulars during the service of the member employees. In such cases, the
pensionable salary shall be based on such higher salary.

11. The joint option form shall be subject to acceptance by EPFO as per Rules.

12. On acceptance of the options by the employees by the concerned Regional

Provident Fund Commissioner, 8.33% share of employer’s on such higher
salary along with up to date interest will be remitted by CPF Division to the
pension fund.
13. As per the Supreme Court Judgment, payment of arrears shall follow the
submission of joint declaration and arrears shall have to be remitted within the
time line, if any, prescribed by EPFO in this regard. Accordingly, ex-
employees who would exercise the option now and who have already
withdrawn PF from the CPF Trust shall have to arrange the fund for payment
of arrears to EPFO, within the prescribed time. Mode & manner of deposit of
arrears shall be informed by CPF Division in due course in consultation with
EPFO. Ex-employees- EPS-95 pensioners may also note that revision in
EPS-95 pension may take considerable time as the pension payment under

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EPS-95 is done by the concerned office of EPFO and FCI shall have no
control over the same.
14. In case of serving employees, payment of arrears shall be made from the PF
account of employees with the FCI CPF Trust.
15. Eligible retired employees shall contact the concerned FCI office from which
the employee has been retired/ superannuated for completion of procedures
in this regard.
16. All administrative authorities shall give wide publicity of above instructions.
17. Instructions/ modalities in pursuance of these instructions will be issued by the
CPF Division in consultation with EPFO from time to time keeping in view of
the instructions of EPFO/ Courts in this regard. Any formality and obligation
prescribed by the EPFO shall be complied by the employee/ ex-employees
submitting joint option for higher pension under EPS-95.
18. All related correspondences with FCI field offices, EPFO, issuance of
clarifications, obtaining option forms and remittance particulars, forwarding of
option forms to RPFC etc shall be monitored and ensured by CPF Division of
Headquarters/ ZO as the case may be. In the meanwhile, CPF Division,
Headquarters shall also continue to follow up with the EPFO for guidance/
directions on further course of action regarding implementation of the
judgment of Hon’ble Supreme Court and related issues.

19. It shall also be ensured that entire process regarding exercise of joint option
by the eligible employees/ ex-employees as per above guidelines shall be
completed within 15 days from the date of issue of these instructions.

20. DGM (CPF) of concerned Zonal Office / Headquarters shall be Nodal Officers
in this regard who shall be responsible to ensure daily monitoring and
compliance in this regard.
21. These instructions are subject to directions/ instructions of EPFO and or
decision of Court of Law (if any) issued from time to time in this regard.

//This issues with the approval of C&MD//

(Ashwani Kumar Gupta)

Chief General Manager (PE)

Distribution:
As per standard mailing list

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