Employees appointed to supernumerary posts before the 01.04.2013 cut-off are considered regular appointees. These posts are constituent parts of the service cadre, and such employees are entitled to the statutory pension scheme. Subsequent executive orders cannot retrospectively deny these benefits based on the date of administrative regularization.

JUDGMENT :

P.M. Manoj, J.

This Writ Petition is preferred by the petitioner, who is aggrieved by his exclusion from the statutory pension scheme under Part II of the Kerala Service Rules (KSR). Despite the petitioner exercising an option that was initially accepted by the Registrar General via Ext.P16, this decision was later revised.

2. Following the issuance of Ext.P8, which clarifies that individuals appointed to supernumerary posts under the compassionate appointment scheme and regularized after 01.04.2013 are governed by the National Pension System (NPS), and Ext.P13, which mandates compulsory enrolment in the NPS, the Registrar General directed the petitioner to join the NPS as per the Office Memorandum dated 13.12.2019.

3. The petitioner seeks a declaration that the option exercised under Ext.P16 remains valid and that he is not subject to the NPS implemented for State Government employees effective from 01.04.2013. Furthermore, the petitioner seeks to declare Ext.P8 as contrary to Ext.P6, characterising it as arbitrary, discriminatory, illegal, and violative of Articles 14 and 16 of the Constitution of India. Ultimately, the petitioner prays for the quashing of Exts.P8, P13, and P18(a).

4. The petitioner contends that he was appointed as an Assistant in the High Court of Kerala effective 14.03.2018. Prior to this appointment, he served as a Lower Division Clerk within the Police Department. His initial entry into service in the Police Department was made under the Compassionate Employment Scheme, effective from 27.12.2012.

5. The petitioner contends that between 2005 and 2011, there was an inordinate delay in appointing eligible candidates under the Compassionate Appointment Scheme, as contemplated under GO(P) No. 12/1999/P&ARD dated 24.05.1999. To address this backlog, the Government issued GO(MS) No. 292/2012/Home dated 20.11.2012, according sanction for the appointment of 305 candidates as Lower Division Clerks (LDC). The petitioner was among these appointees, as evidenced by Serial No. 117 in Ext.P1.

6. As the dependent of an employee who died in harness, the petitioner was entitled to an appointment that should have materialised well before 2012; however, despite the availability of vacancies, the process was delayed. In light of these circumstances, the Government issued GO(P) No. 174/2012/GAD dated 06.07.2012, creating 549 supernumerary posts across various departments, with the proviso that these posts would be adjusted against future vacancies. Pursuant to this order, the General Administration Department (GAD) issued orders on 16.08.2012, allotting the 549 supernumerary posts to various departments, 339 of which were assigned to the Home Department.

7. While the petitioner continued in the aforementioned post, the National Pension System (NPS) was introduced in the State via GO(P) No. 20/2013/Fin. dated 07.01.2013, which amended Part III of the Kerala Service Rules (KSR). This amendment stipulated that the KSR Part III Pension Scheme would not apply to employees who joined service on or after 01.04.2013.

8. Subsequently, by GO(P) No. 209/2013 dated 07.05.2013, the Government permitted employees appointed to State Government service prior to 01.04.2013, who later moved to other autonomous institutions, to remain under the KSR Part III sc