Court upheld NPS applicability post-implementation date for appointed employees, negating claims for earlier pension scheme benefits.

J U D G M E N T

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The petitioners are Assistant Section Officers / Senior Grade Assistants working under the High Court of Kerala. They seek to declare that as they are appointed on the basis of notification and rank list published prior to the date of implementation of NPS, they are not mandatorily to be included under the NPS regulated by PFRDA Act, 2013 and that they are eligible to be covered by Part III KSR as it existed on the date of Ext.P1 notification and so entitled to Statutory Pension Scheme.

2. The 4^th respondent-High Court of Kerala issued Ext.P1 notification dated 28.09.2011 inviting application for appointment to the post of Assistants. The petitioners applied for the post and qualified in the selection process consisting of written test and interview. They joined in service as Assistants on various dates between

22.05.2013 and 03.08.2015.

3. The employees under the High Court of Kerala were governed by the Kerala Service Rules (KSR) Part III Pension Scheme till 31.03.2013. The Government of Kerala issued Ext.P3 Government Order dated 07.01.2013 introducing National Pension Scheme (NPS) to the State Government employees whereunder NPS was made mandatory for all appointments made on or after 01.04.2013. Therefore, the petitioners who joined High Court service on and after 22.05.2013 were included in the NPS in spite of the fact that they were included in Ext.P2 rank list dated

08.08.2012, which is prior to 01.04.2013.

4. The petitioners state that the NPS introduced by the Government of Kerala is a replica of the NPS introduced by the Government of India as per Ext.P4 notification dated 22.12.2013. The 2^nd respondent has admitted the fact that the Rules and Regulations for the management of NPS implemented in the State will be governed by the directions/rules/circulars/orders etc. issued by the Government of India from time to time. This is evident from Ext.P5.

5. The petitioners submit that according to the Government of India, the new NPS system is mandatory for all “new recruits” to the Central Government service after the implementation date. But, the Government of Kerala, instead of following the same criteria applicable to “all new recruits”, made NPS applicable to “all appointments” made after the implementation date. The Government of Kerala departed from the NPS designed by the Government of India under PFRDA Act. The petitioners argue that the action of the 2^nd respondent in changing the target subscribers of NPS is a violation of the admission made by respondents in Ext.P5 and is against the legislative intention behind the PFRDA Act.

6. The petitioners urge that the State Government can extend NPS to its employees through a notification as stipulated in Section 12 (4) of the PFRDA Act, but they are not empowered to make any variation to the substantive provisions.

7. It is further submitted that Ext.P3 is not a notification contemplated under Section 12 (4) of the Act and therefore the mandatory implementation of the NPS and deductions from the salary and Dearness Allowance of the petitioners who were newly recruited before 04.06.2020, before the date of Ext.P6 notification, is illegal and liable to be quashed.

8. It is pointed out that based on the spirit of the judgment of the Hon'ble High Court of Delhi in Inspector Rajendra Singh and others v. Union of India and others [2017 SCC OnLine Del 7879], the Government of India issued Ext.P7 Office Memorandum dated 03.03.2023 granting a one time option to the employees who were appointed in vacancies against notifications issued prior to the implementation da