Josph Rajan F. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 26TH DAY OF MARCH 2013/5TH CHAITHRA 1935 WA.No. 508 of 2013 IN WP(C).17949/2012 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C).17949/2012 DATED 05.03.2013 ................... APPELLANT/PETITIONER IN W.P.: -------------------------------------- JOSPH RAJAN F. AGED 56 YEARS S/O.A.FRANCIS, SECRETARY, ADVISORY BOARD (KAAPA) KERALA ANTISOCIAL ACTIVITIES PREVENTION ACT ELAMAKKARA, PADAM ROAD, KOCHI-682023 RESIDING AT KANNETTIL, T.C.3/321-1, GREEN VALLEY MUTTADA P.O., THIRUVANANTHAPURAM-695025. BY ADV. SRI.P.NANDAKUMAR RESPONDENT/RESPONDENT IN W.P.: ------------------------------------------ STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT HOME (SSA) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. BY SR.GOVERNMENT PLEADER, SRI. C.S. MANILAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, C.J. & K. Vinod Chandran, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 508 OF 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of March, 2013 ## **JUDGMENT** ## **Manjula Chellur, C.J.** Heard Sri.P.Nandakumar, learned counsel appearing for the appellant as well as Mr.Manilal, learned Government Pleader. The Writ Petition came to be filed by the petitioner/appellant challenging Note 2 to Ext.P6. The brief facts that led to the filing of the writ petition are as under. 2. The appellant/petitioner, while working as Deputy Secretary to Government, Department of Home, was placed in charge as Secretary to the Advisory Board of Kerala Anti-social Activities (Prevention) Act, 2007 (for short ‘KAAPA’). He retired from service as Deputy Secretary to Government and so far as his additional charge as Secretary to KAAPA, fresh terms of employment came to be entered into between the appellant and the Government in terms of Exts.P3 and P4. Ext.P3 is the order of the Government appointing the appellant as the Secretary of KAAPA for a period of 3 years and Ext.P4 WA No. 508 of 2013 -:2:- indicates the terms and conditions of appointment in the form of an agreement between the parties. Subsequently an amendment is brought to Ext.P1, the Rules framed by the Government in respect of appointment to various categories of posts in KAAPA. 3. By virtue of amendment to Rule 2(a), by way of a Note, at Ext.P6, the position of the appellant/writ petitioner as Secretary to KAAPA got disturbed and therefore he approached the learned Single Judge contending that the so called amendment to the rules that too by way of Note ii to Rule 2(a) is discriminatory and vindictive. 4. This came to be opposed by the State contending that apart from the Secretary there are many other posts in KAAPA and amendment brought by way of Ext.P6 applies to all categories of posts and not to the Secretary post alone. Therefore there is no question of discriminatory action against the writ petitioner. 5. The learned Single Judge, after referring to all the facts and circumstances, proceeded to analyze the facts of the present case based on the law laid down in the judgment of WA No. 508 of 2013 -:3:- **P.Venugopal v. Union of India** [(2008) 5 SCC 1] proceeded to hold that the entire amendment brought by way of Ext.P6 as reflected affects not only to the post of Secretary but also to other posts as well and therefore, there is no discrimination and the facts of **Venugopal** ’s case (supra) do not apply to the facts of the present case. With this finding, learned Single Judge dismissed the writ petition. 6. Aggrieved by the same, the appellant is before us contending that the facts in the case of **Venugopal** (supra) squarely applies to the facts of the present case and even otherwise, the amendment brought under Ext.P6 should not disturb the terms of agreement entered into between the parties much prior to the amendment in question. It is not in dispute that on the date of giving him the additional charge as Secretary, KAAPA, he was in service as Deputy Secretary to Government. When he reached the age of superannuation on 31.03.2011, by virtue of Ext.P3, he was appointed as Secretary, KAAPA, by Government as per Ext.P3. As a matter of fact, reading of Ext.P3 would indicate that the Chairman of Advisory Board requested WA No. 508 of 2013 -:4:- Government to utilize the services of Joseph Rajan F,(appellant herein) the Deputy Secretary, Home Department who was holding full additional charge of Secretary, Advisory Board, KAAPA after his retirement on a contract basis for a period of 3 years with effect from 01.04.2011 on account of his administrative experience in the Advisory Board as Secretary. 7. This order though dated 24.02.2011, his appointment as Full Time Secretary of Advisory Board of KAAPA would come into effect from 01.04.2011 after he retired as Deputy Secretary from the Home Department. Much prior to appellant reaching the age of superannuation, the Government had taken a decision and appointed him with effect from 01.04.2011 as Secretary of Advisory Board of KAAPA. This order was followed by an agreement between the parties on 01.04.2011 as indicated at Ext.P4. Clause (3) of Ext.P4 refers to various conditions or situations, how the service of the Secretary could be terminated. It says, his appointment is for 3 years and at the end of 3 years, his services would be terminated. However, within 3 years under different Clauses it is made clear WA No. 508 of 2013 -:5:- that he could be terminated as per the terms of the contract. Apparently, he is not terminated by invoking any of the Clauses under Ext.P4. His appointment as per the order of Government at Ext.P3 is for a period of 3 years and even the agreement refers to automatic termination at the end of 3 years. Other instances or contingencies for termination as stated above are all indicated which is not resorted to by the Government. 8. Now by virtue of amendment to Rule 2 service rules applicable to various categories of posts in Advisory Board of KAAPA, the position of the appellant as Secretary automatically gets terminated, once a Government employee in service is deputed to the post of Secretary. As a matter of fact, Rule 2(a) along with Note clearly indicates how the incident of termination would occur and under what conditions, not only in respect of the post of Secretary, but also various other categories. Amended Rule 2(a) of KAAPA produced as Ext.P6 reads as under: “2. Amendment of the rules - In the schedule to the Kerala Anti-social Activities (Prevention) Advisory Board (Service condition of Chairman, Members and Staff) Rules, 2010 - WA No. 508 of 2013 -:6:- (a) Against serial No.1, for entries in column(5) the following entries shall be substituted, namely:- (i) appointment on deputation basis from those who working in the posts of Joint Secretary/Joint Registrar/Deputy Secretary/Deputy Registrar in the Government Secretariat/Advocate General Office and High Court. (ii) In the circumstance of non-availability of qualified hands under item (i) for appointment on deputation basis, contract appointment for maximum three years from persons who are pensioners from the post of Joint Secretary/Joint Registrar/Deputy Secretary/Deputy Registrar in Government Secretariat/Advocate General Office and High Court. **Note** :- There shall be no eligibility for re-appointment after the period of contract and the Government have power to remove the officer appointed on contract basis within the contract period as and when officers on deputation basis are appointed or when the service of the officer appointed on contract basis is found to be not satisfactory by the Government.” 9. It is pertinent to note that though there are 5 categories of posts in the Advisory Board of KAAPA, i.e. posts of Secretary, Clerk, Stenographer, Driver and Peon, this amendment is brought to the post of Secretary alone. The amendment so far as Rule 2, refers to the post of Secretary at WA No. 508 of 2013 -:7:- Serial No.1. The Government is not able to place on record material whether other posts, i.e. other than the post of Secretary, were also filled up on similar lines by contract appointment or on deputation. 10. However, the fact remains whether the terms of employment or contract under Ext.P4 would get disturbed on account of amendment of rule introduced in 2012 under Ext.P6. It is well settled that if an amendment is made to a special statute, it is always prospective. Prospective or retrospective, it has to be indicated in the Rule itself. Retrospectivity is absent either by express words or necessary implication. In the absence of such indication forthcoming at Ext.P6, what will happen to the terms of contract entered into between the parties. As on the date of Ext.P4 agreement between the parties dated 01.04.2011, service rules pertaining to the Advisory Board of KAAPA was very much in existence as indicated at Ext.P1. So far as the post of Secretary, the source of appointment is also indicated with which we are not concerned. So far as the tenure of the office, it can be for a maximum period of 3 years. WA No. 508 of 2013 -:8:- 11. Based on this rule at Ext.P1, Ext.P3 appointment order was issued and contract was entered into as per Ext.P4. When the amendment to Rule 2 is prospective, we fail to understand how the terms of contract between the parties as per Ext.P4 dated 01.04.2011 can be tilted by applying the amended rule. As Ext.P1 indicates the maximum tenure of post of Secretary as 3 years, it is a tenure appointment and not an appointment which indicates a tenure only by virtue of contract. Even in the absence of an explicit tenure of three years in Ext.P1, Ext.P4 contract fixes it at three years; the maximum possible as per Ext.P1. The position would not change by the amendment to Rule 2 at Ext.P6 since it is prospective and not retrospective. None of this would come in the way of terminating the services of appointment as Secretary in strict compliance of terms of appointment at Ext.P4. 12. In that view of the matter, we are of the opinion, no termination can be effected by applying Note (ii) to Rule 2(a) of amended rule at Ext.P6 except in terms of agreement at Ext.P4. It is needless to say, the authority which brought the WA No. 508 of 2013 -:9:- amendment to rules as per Ext.P6 is the proper authority which is entitled to make such amendment as such power is conferred upon them. Only on account of prospective application of the amended rule we conclude that as the terms of contract was under the very same rule that was in existence as on the date of appointment of the appellant, the amended rule cannot prejudice the terms of appointment of the appellant. With these observations, we allow the Writ Appeal by setting aside the judgment of the learned Single Judge. **Manjula Chellur, Chief Justice.** **K. Vinod Chandran, Judge.** ttb/27/03 WA No. 508 of 2013 -:10:-