P.V. Balakrishnan, J

1. This intra-court appeal is filed by the petitioner in W.P.(C) No.11542 of 2022, challenging the judgment dated 15.11.2022, closing her writ petition, following the judgment in W.P. (C)No.3577 of 2021

2. The appellant/writ petitioner, who is now working as a Sub-Engineer in KSEB, is aggrieved by her inclusion in the National Pension Scheme and exclusion from the Statutory Pension Scheme. She originally entered the service as Training Instructor (Electrician) as per Ext.P4 order dated 17.07.2013. The post was notified in 2009 and the first advice was made in 2013. Thereafter, she was appointed as Junior Instructor (Electrician) based on the advice of the PSC as per Ext.P5 dated 28.02.2014. The said post was notified in 2008 and the rank list was published five years thereafter, on 29.05.2013. Subsequently, the appellant was appointed as Sub-Engineer (Electrical) in KSEB through the Kerala Public Service Commission, on 08.04.2016. The vacancies for the post of Sub- Engineer (Electrical) were reported to the Kerala Public Service Commission from 05.11.2009 onwards. In the meanwhile, the National Pension Scheme was introduced in Kerala, as per Ext.P9 Government Order. It is the case of the appellant that she was included in the National Pension Scheme, only because of the delay due to various administrative reasons in appointing her to the vacancies that existed as early as in 2007. It is also her case that she would have entered the service before 31.03.2013, if no administrative delay had occurred in advice and appointment. It is in such circumstances, the appellant filed the afore writ petition seeking the following reliefs:

                  ''i) Issue a writ in the nature of certiorari or any other writ, order or direction calling for the records leading to the inclusion of the petitioner in National Pension System (NPS) and exclusion from Statutory Pension Scheme.

                  ii)       To declare that the petitioner is eligible for inclusion in the Statutory Pension Scheme and exclusion from National Pension System (NPS).

                  iii)       Issue a writ in the nature of mandamus or any other writ order or direction commanding the respondents to issue orders for inclusion of the petitioner in the Statutory Pension Scheme and exclusion from National Pension System (NPS).

                  iv) Issue a writ in the nature of mandamus or any other writ order or direction commanding the respondents to issue order for inclusion of the petitioner in the Statutory Pension Scheme and exclusion from National Pension System (NPS) and to repay the contributions collected from the petitioner for National Pension System (NPS) within a time limit to be fixed by this Hon'ble Court.''

3. The learned Single Judge, after considering the fact that the issue raised in the writ petition is covered by a judgment passed by this Court in W.P.(C)No.3577 of 2021, closed the writ petition following the said judgment.

4. Heard Adv. P. Satheesh Kumar, the learned counsel for the appellant, Adv. Antony Mukkath, the learned Standing Counsel for KSEB, Adv. P.C. Sasidharan, the learned Standing Counsel for the Kerala Public Service Commission and Adv. Sunil Kumar Kuriakose, the learned Senior Government Pleader.

5. The learned counsel for the appellant submitted that as per Ext.P4, the appellant was appointed as Training Instructor (Electrician), as early as on 17.07.2013, the vacancy to the post being notified as early as in 2009 and candidates being advised from 06.03.2013 onwards. He submitted that thereafter, the appellant was appointed as Junior Instructor (Electrician) on 28.02.2014 and as Sub-Engineer (Electrical) from 08.04.2016. According to the learned counsel, even though vacancies were available for the appellant's entry into government service as early as on 25.04.2007, before the introduction of the National Pension Scheme, her appointment to the government service was delayed due to various administrative reasons, and therefore, the same cannot be a reason to deny the legitimate claim of the appellant to the benefit of the Statutory Pension Scheme. He further, by relying on Ext.P13 judgment passed by the Delhi High Court and which was confirmed by Ext.P14 order passed by the Hon'ble Apex Court, contended that all candidates who were appointed from the rank list, pursuant to a common notification in the selection process are entitled to similar benefits, and therefore, all the candidates who were appointed before 01.04.2013 and after 01.04.2013, from the very same list will be entitled for inclusion in the Statutory Pension Scheme. He submitted that in such circumstances, the entry of the appellant in service has to be considered, as if she had entered in service before the introduction of the National Pension Scheme.

6. Per contra, the learned counsel appearing for the respondents opposed the submissions made by the learned counsel for the appellant and contended that Ext.P13 judgment relied on by the appellant is not applicable in the instant case. They argued that a Division Bench of this Court vide judgment dated 05.09.2023 in OP(KAT)No.336 of 2023 (Premkumar K.V and others v. State of Kerala and others) has specifically considered this issue, in the light of Ext.P13 judgment and has held that persons like the appellant are not entitled to the benefit of the Statutory Pension Scheme. They submitted that another Division Bench of this Court, on 22.09.2025 in OP(KAT)No.437 of 2022 (M.Sugadha Kumar v. State of Kerala and others) has also considered the very same issue and has decided against the appellant, and therefore, the relief as sought for by the appellant cannot be granted.

7. On an anxious consideration of the rival submissions and materials on record, we find no merit in the submissions made by the learned counsel for the appellant. At the outset itself, it is to be seen that even the first appointment of the appellant in service as per Ext.P4 order was on 17.07.2013, much after the introduction of the National Pension Scheme on 01.04.2013. It is to be seen that the appellant is mainly relying on Ext.P13 judgment to support her contention regarding entitlement for statutory pension. But as rightly contended by the learned counsel for the respondents, a co-ordinate bench of this Court in Premkumar K.V's case (cited supra) has considered in detail the very same issue, in the light of Ext.P13 judgment and has categorically found that persons like the appellant are not entitled for the benefit of the Statutory Pension Scheme. The judgment as such is extracted below for easy reference:

                  ''These original petitions were filed by the petitioners before the Kerala Administrative Tribunal. They were appointed in the service after the introduction of the National Pension Scheme which came into force with effect from 01.04.2013. Their case is that the recruitment process was concluded much prior to 2013 and therefore, they should be covered by the statutory pension scheme prevailing for those employees who entered the service prior to 01.04.2013. They placed reliance on Ext.A6 judgment of the Delhi High Court. The said judgment has been affirmed by the Apex Court by Ext.A7. Apart from that the learned counsel for the petitioners placed reliance on the definition of 'recruited direct' as referred to in Rule 2(12) of the Kerala State & Subordinate Services Rules, 1958 (for short, the 'Rules'). The Administrative Tribunal considered the matter along with a similar claim and repelled the petitioners' claim for the reason that their advice as well as appointment to the service were only after 01.04.2013.

                  2. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Kerala Public Service Commission.

                  3. Rule 2(12) of the Rules defines the 'recruited direct' as follows:

                  A candidate is said to be “recruited direct” to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of the notification by the Commission inviting applications for the recruitment, and in any other case, at the time of appointment.

                  (i)       he is not in the service of the Government of India or the Government of a State: or

                  (ii)      being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or

                  (iii)     he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule.

                  4. The argument is based on the notification issued prior to 01.4.2013. Then it has to be assumed that the petitioners were recruited prior to 01.04.2013. This argument has been raised without reference to the definition of Rule 2(1) of the Rules. The said Rule reads as follows:

                  “2(1) A person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.

                  Explanation:- The appointment of a person holding a post borne on the cadre of one service to hold additional charge of a post borne on the cadre of another service or to discharge the current duties thereof does not amount to appointment to the latter service.”

                  5. The above definition clearly shows that a person is said to be appointed in the service is only after he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation. The petitioners cannot claim any right relatable to the period before they borne on the cadre.

                  6. In the light of the statutory provisions mentioned as above, the petitioners cannot claim that they were borne in the service prior to 01.04.2013. The judgment of the Delhi High Court has no binding force. The affirmation of the judgment by the Apex Court, in limine dismissing the special leave petition cannot be treated as binding declaration of law. The petitioners placed further reliance on Ext.P5 Office Memorandum issued by the Government of India dated 03.03.2023 produced in O.P.(KAT) No.336/2023. That office memorandum gives an option to the Central Government Civil Employees who have been appointed against a post or vacancy which was notified for appointment on or before 22.12.2003 to exercise the option to be covered under the National Pension Scheme. It is to be noted that, that is only applicable to the Central Government Employees. These original petitions (KAT) fail, and are dismissed.''

8. Similarly, another co-ordinate bench of this Court in M.Sugadha Kumar's case (cited supra) has also considered the very same issue and has found that persons who are appointed after 01.04.2013, are not entitled to the benefit of the Statutory Pension Scheme. In such circumstances, we do not find any reason to take a different view on this issue, than the one taken by the two Division Bench of this Court.

                  Ergo, we find no merit in this writ appeal and the same is accordingly dismissed.