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Regulatory Alert - Option to opt for higher pension under Employee Pension Scheme, 1995

25 February 2023

Executive Summary

On 20th February 2023, Employees Provident Fund Organisation (EPFO) issued a circular providing guidelines on the procedure for the eligible employees to submit application for higher pension under the Employees’ Pension Scheme, 1995 (EPS).

This is in response to the direction issued by the Supreme Court (SC) of India in its judgment dated 4th November 2022, wherein SC provided window of four months in which the eligible employees can opt for higher pension under EPS. In line with this decision such window is expiring on 3rd March 2023.

The circular issued by EPFO in compliance with the SC judgement, provides that the following class of employees may submit joint option (along with their employers) to opt for higher pension:

a. Employees and employers who had contributed to Employees’ Provident Fund Scheme on salary exceeding the prevalent statutory ceiling and

b. Such employees had not exercised the joint option within the prescribed timelines provided earlier; and

c. Such employees were members of EPS prior to 1st September 2014 and continued to be a member on or after such date


Before deciding on whether or not to opt for higher allocation of contribution to EPS in line the directions as provided in circular issued by EPFO, lets understand the background leading to the recent circular:

a. As per the Employees’ Provident Fund Act, 1952, the employee’s contribution to Provident Fund (PF) is 12% of the PF wages. The employer makes the matching contribution of 12% of PF Wages.

b. On 16 November 1995, EPS came into effect, providing that 8.33% of the employer’s contribution should be allocated towards the EPS and the balance 3.67% of employer’s contribution will continue to flow towards the corpus of PF accumulation.

c. The EPS also provided for a maximum pensionable salary of INR 5,000/- which was later increased to INR 6,500/-

d. With Effect from Nov 1996, a proviso to para 11(3) under EPS was added giving an option to the employer and employee for contribution on salary exceeding INR 6,500/-

e. EPFO wide a notification dated 22nd August 2014 again amended the EPS. Few relevant amended provisions are as follows:

  • Amount of pensionable salary was increased to INR 15,000/- per month.
  • Proviso providing an option to the employees and employer to contribute to EPS on higher salary was removed w.e.f 1st Sep 2014
  • Para 11(4) was added providing that existing member as on the 1st September 2014, who had been contributing on salary exceeding INR 15,000/-, were allowed to contribute to EPS on salary exceeding INR 15,000/-, on exercising a fresh option. This option was required to be exercised by the member within six months from 1st September 2014.

f. Orders of Kerala High Court in the case of P. Sasikumar & Others vs. Union of India (UOI) passed in October 2018 and of Delhi High Court (Bhartiya Khadya Nigam Karamchari Sangh and Anr. vs. Union of India and Ors.) passed in May 2019 moved to restore the earlier option provided to employees. This was challenged by EPFO in the SC. 

g. SC Judgement: SC deliberated the matter raised and discussed by several high courts on this matter and finally on November 4, 2022, passed its judgment in the case of the Employees’ Provident Funds Organization & ANR. etc. vs. Sunil Kumar B. & ORS etc. The SC’s order held the following basis the category of employees:

  • Employees who had retired prior to 1st September 2014 without exercising any option for higher pension, would not be entitled to the same now.
  • Employees who had exercised option for higher pension and continued to be in service as on 1st September 2014, will be guided by the amended provisions of the pension scheme.
  • Employees retired before 2014, and their joint option request was denied by the Authorities, are entitled to submit a joint option and get a higher pension.
  • Employees who did not exercise option earlier, can opt for enhanced contribution within 4 months of the SC order (Last date being 3 March 2023).
  • PF Authorities to implement the directives in order within 8 weeks.

In line with above SC Ruling, EPFO has notified two circulars dated 29th December 2022 and 20th Feb 2023, providing directives to its officers for compliance with the above SC order, which provides the manner in which the eligible employees may apply to the concerned regional office to file the joint option to opt for higher pension.

Way forward

With higher allocation towards EPS, the contribution towards EPF corpus which is eligible for lumpsum withdrawal will reduce. Thus, a detailed analysis may be required giving regard to individuals personal situation and to arrive at the best possible model.

The employers should roll out communication to the employees to increase awareness of this option to opt for higher pension from EPFO post retirement.