K.N. GOPINATHAN NAIR and others v. THE STATE OF KERALA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 18TH DAY OF JULY 2013/27TH ASHADHA, 1935** ## **WP(C).No. 27176 of 2011 (V)** **--------------------------** ## **PETITIONER(S):** **----------------------** **1. K.N.GOPINATHAN NAIR, 'VASUNDHARA', PERUVARAM (WEST), NORTH PARAVUR, ERNAKULAM, PIN- 683 513.** **2. P.S.BHARATHAN, PADMASOUDHAM, NORTH PARAVUR, ERNAKULAM, PIN- 683 513.** **3. SARASWATHI AMMA. N., W/O.P.R.GOVINDAN ELAYIDAM, SARASWATHI VILAS, MOOKAMBI LANE, NORTH PARAVUR, ERNAKULAM, PIN- 683 513.** **4. S.SASIKALA, D/O.P.R.GOVINDAN ELAYIDAM, SARASWATHI VILAS, MOOKAMBI LANE, NORTH PARAVUR, ERNAKULAM, PIN -683 513.** **5. S.HEMALATHA, D/O.P.R.GOVINDAN ELAYIDAM, SARASWATHI VILAS, MOOKAMBI LANE, NORTH PARAVUR, ERNAKULAM, PIN 683 513.** **6. S.SREEDEVI, D/O.P.R.GOVINDAN ELAYIDAM, SARASWATHI VILAS, MOOKAMBI LANE, NORTH PARAVUR, ERNAKULAM, PIN -683 513.** **7. K.T.PAUL, KACHAPPILLY HOUSE, PARUTHARA, NORTH PARAVUR, ERNAKULAM, PIN -683 513.** **8. RAPHAEL RAVI.K., KAIMATHURUTHY HOUSE, VIII/133, NORTH PARAVUR, ERNAKULAM, PIN- 683 513.** **BY ADVS.SRI.G.D.PANICKER, SMT.JEENA JOSEPH.** **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY (LAW), LAW (LEGISLATION) DEPARTMENT, MINISTRY OF LAW, THIRUVANANTHAPURAM-695 001.** **WP(C).No. 27176 of 2011 (V)** ## **2. THE CHAIRMAN, THE KERALA ADVOCATES** **WELFARE FUND TRUSTEE COMMITTEE, BAR COUNCIL BHAVAN, HIGH COURT COMPLEX, KOCHIN, PIN -682 031.** **3. THE KERALA ADVOCATES WELFARE FUND TRUSTEE COMMITTEE, REPRESENTED BY THE SECRETARY, BAR COUNCIL BHAVAN, HIGH COURT COMPLEX, KOCHIN, PIN- 682 031.** **4. THE SECRETARY, THE PARAVUR DISTRICT COURT BAR ASSOCIATION, NORTH PARUR, ERNAKULAM DISTRICT, PIN- 683 513.** **R1 BY GOVT. PLEADER SMT.LILLY K.T. R2 & R3 BY ADV. SRI.T.A.SHAJI. ADV. SRI.P.DEEPAK, AMICUS CURIAE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2013, THE COURT ON 18/07/2013 DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 27176 of 2011 (V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT-P1. A TRUE PHOTOCOPY OF THE ENROLLMENT CERTIFICATE ISSUED BY THE BAR COUNCIL OF KERALA.** - **EXHIBIT-P2. A TRUE PHOTOCOPY OF THE LETTER DATED 15.11.2010.** - **EXHIBIT-P3. A TRUE PHOTOCOPY OF THE LETTER DATED 06.12.2010 RECEIVED FROM THE 3RD RESPONDENT.** - **EXHIBIT-P4. A TRUE PHOTOCOPY OF THE LETTER DATED 14.01.2011 GIVEN BY THE PETITIONER.** - **EXHIBIT-P5. A TRUE PHOTOCOPY OF THE LETTER DATED 21.03.2011 ISSUEDBY THE 3RD RESPONDENT.** - **EXHIBIT-P6. A TRUE PHOTOCOPY OF THE EXTRAORDINARY GAZETTE DATED 24.01.2011 NOTIFYING THE ACT 2 OF 2011-KERALA ADVOCATES WELFARE FUND (AMENDMENT) ACT 2010.** - **EXHIBIT-P7. A TRUE PHOTOCOPY OF THE LETTER DATED 12.06.2008 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT-P8. A TRUE PHOTOCOPY OF THE 4 RECEIPTS RECEIVED FROM THE 3RD RESPONDENT.** - **EXHIBIT-P9. A TRUE PHOTOCOPY OF THE APPLICATION DATED 09.03.2010 GIVEN BY THE 2ND PETITIONER.** - **EXHIBIT-P10. A TRUE PHOTOCOPY OF THE LETTER DATED 27.05.2010 RECEIVED BY THE 2ND PETITIONER.** - **EXHIBIT-P11. A TRUE PHOTOCOPY OF THE APPLICATION DATED 02.11.2010 GIVEN BY THE L.RS. OF P.R.GOVINDAN ELAYIDAM.** - **EXHIBIT-P12. A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 14.01.2011 GIVEN BY THE PETITIONER 3 TO 6.** - **EXHIBIT-P13. A TRUE PHOTOCOPY OF THE LETTER DATED 11.01.2010 RECEIVED BY THE 7TH PETITIONER.** - **EXHIBIT-P14. A TRUE PHOTOCOPY OF THE REPRESENTATION GIVEN BY THE 7TH PETITIONER.** - **EXHIBIT-P15. A TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT ON 09.02.2010 TO THE 8TH PETITIONER.** - **EXHIBIT-P16. A TRUE PHOTOCOPY OF THE REPRESENTATION GIVEN BY THE 8TH PETITIONER ON 17.01.2011.** ## **WP(C).No. 27176 of 2011 (V)** ## **RESPONDENT'S EXHIBITS:-** **EXT.R2A COPY OF THE COMPUTATION SHEETS SHOWING SETTLEMENT OF WELFARE FUND CLAIMS OF SRI.K.N. GOPINATHAN NAIR. EXT.R2B COPY OF THE COMPUTATION SHEETS SHOWING SETTLEMENT OF WELFARE FUND CLAIMS OF SRI.P.S. BHARATHAN. EXT.R2C COPY OF THE COMPUTATION SHEETS SHOWING SETTLEMENT OF WELFARE FUND CLAIMS OF LATE SRI.P.R. GOVINDAN ELAYIDAM. EXT.R2D COPY OF THE COMPUTATION SHEETS SHOWING SETTLEMENT OF WELFARE FUND CLAIMS OF SRI.K.T. PAUL. EXT.R2E COPY OF THE EXTRACT OF THE COMPUTATION SHEETS SHOWING SETTLEMENT OF WELFARE FUND CLAIMS OF SRI.RAPHAEL RAVI K.** **//TRUE COPY//** ## **P.A. TO JUDGE.** **rs.** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.No.27176 of 2011 ---------------------------------------Dated this the 18[th] day of July 2013 ## **J U D G M E N T** Petitioners are members of Parur District Court Bar Association. They challenge the vires of the word 'at once' occurring in Section 1(2) of Kerala Advocates Welfare Fund (Amendment) Act 2010 (Act 2 of 2011) (hereinafter referred as 'the Amendment Act') as grossly discriminatory, arbitrary and unjust and thus opposed to Article 14 of the Constitution of India. 2. The subject matter in issue is that as per the Advocates Welfare Fund Act 1918, (hereinafter referred as 'the Act') a member of the fund, on completion of 15 years of practice as an Advocate on cessation of practice or on his name being removed from membership or in the case of permanent disablement or death is entitled for welfare fund as per the applicable provisions under the Act. The Act had undergone several changes over a period of time. The W.P.C.No.27176 of 2011 2 Amendment Act was notified in extraordinary gazette dated 24/01/2011 by virtue of which Section 16 of the principal Act was amended enhancing the amount payable to members. The amount fixed was Rs.14,285/- for every completed actual years of practice subject to a maximum amount of Rs.5,00,000/- in aggregate. However, as per Section 8(1) of the Amendment Act, Section 16 of the principal Act has been amended. It is stated that the amendment has come into force 'at once' (date of coming into force of the Amendment Act) whereas certain other provisions was deemed to have come into force on 10/06/2008. The complaint of the petitioners is that a person who was in the state roll of advocates as on 21/01/2011 alone was entitled for that enhanced amount by virtue of the amendment whereas those persons who had retired or ceased to practice and had submitted their applications for welfare fund prior to the said date of 21/01/2011 were not given the benefit of the enhanced welfare fund amount. W.P.C.No.27176 of 2011 3 3. It is the contention of the petitioners that the Act 2 of 2011 also imposed on the petitioners a liability to pay a higher amount of Rs.3,000/- per year which provision had come into force with effect from 10/06/2008 and therefore granting the benefit of a higher amount only from 02/11/2011 clearly amounts to discrimination and hence violates Article 14 of the Constitution. That apart the amendment makes a classification between two groups of Advocates, those who stops practice before and after 02/11/2011. Such a classification according to the petitioner is not based on any intelligible differentia and has no nexus with the object to be achieved. According to the petitioners the said provision ought to have been incorporated with retrospective operation. The amendment Act came into force by Ordinance No.18 of 2008 by which the annual subscription amount of the fund has been enhanced and corresponding enhancement has been made to the welfare fund as well. The said Ordinance was kept alive by Ordinance No.28 of 2008, 4 of 2009, 10 of 2009, 16 of 2009, 4 W.P.C.No.27176 of 2011 23 of 2009 and 47 of 2010. 4. The learned counsel for the petitioners also relied upon the judgment of the Supreme Court in (i) **ExCapt.A.C.Arora and Another v. State of Haryana and Others** [(1984) 3 SCC 281] (ii) **B.Prabhakar Rao and Others v. State of Andhra Pradesh and Others** [1985 (Supp) SCC 432] (iii) **Raj Pal Sharma and Others v. State of Haryana and Others** [1985 (Supp) SCC 72] and (iv) **T.S.Thiruvengadam v. Secretary to Government of India** [(1993) 2 SCC 174] 5. Counter affidavit is filed by respondents 2 and 3 indicating the manner in which the Amendment Act 2 of 2011 was promulgated. According to them, in Ordinance No.18 of 2008, the terminal benefit ordered was at the rate of Rs.9375/- for every completed year of practice to a maximum amount of Rs.3,00,000/- as shown in Schedule-I for the period upto 10/06/2008 and thereafter, at the rate of Rs.14,285/- for every completed year of practice. This provision was again amended and when the ordinance was W.P.C.No.27176 of 2011 5 replaced by the Act, the benefit of 14,285/- per year was extended for every completed years of practice for those who ceased to practice after the date of Amendment Act. It is stated that respondents 1, 2, 7 and 8 should be presumed to be aware of this position when they had applied for removal of their names from the rolls of the Bar Council and applied for terminal benefits from the Fund. When the Ordinance was replaced by Act 2 of 2011, the State has either changed its policy or framed a new policy which is well within its legislative competence. Reference was also made to judgment of the Supreme Court in **Bhim Singh v. Union of India** [(2010) 6 SCC 538] to substantiate the legislative competency of the State and the principles thereof. They have also produced Ext.R2(a) to R2(e) in order to indicate the manner in which the amounts had been disbursed in terms of the provisions of the Act. According to the respondents only at the time when the Act came into force, the Government in its wisdom had thought it fit to apply the higher amount to all persons who ceased to W.P.C.No.27176 of 2011 6 practice after the date of the Act came into force. 6. Now let me consider the judgments relied upon by learned counsel for petitioner. In **Ex-Capt.A.C.Arora** (supra) the Supreme Court relied upon the constitution bench judgment in **State of Gujarat v. Raman Lal Keshav Lal Soni** [(1983) 2 SCC 33] and held that once officers from different streams had joined a common stream it is not permissible make any classification by an Amendment Act, on the basis of their origin and such a classification would be unconstitutional as it offends Articles 311 and 14 of the Constitution. In **B.Prabhakar Rao** (supra) Supreme Court was concerned with a legislation which corrected the mistake of reducing the retirement age. But in the meantime several officers were compelled to retire by the reduction in age of retirement. It was held that classifying those persons who retired at 55 differently was arbitrary. **Raj Pal Sharma and Others** (supra) the Supreme Court held that classification should be based on an intelligible differentia and that differentia must have a W.P.C.No.27176 of 2011 7 rational relation to the object sought to be achieved. In that case it was held that all ex-servicemen were to be treated as a class and classifying those ex-servicemen who leaves service on compassionate grounds as a separate class would violate Article 14 of the Constitution. In **T.S.Thiruvengadam** (supra) the Supreme court while considering the question relating to the grant of revised benefits only to those who were absorbed in service after a particular date held that, if the past service with central government is considered for giving pro rata pension, such persons also will be entitled claim the benefits of the memorandum. It is held that imposing such restrictions in respect of persons who were employed prior to the particular date violates Article 14 and 16 of the Constitution. **Bhim Singh's** case is relied upon to substantiate the legislative competence of the State. 7. The short question to be considered in this writ petition is whether fixing the date of coming into force of amendment to section 16 of the Act by the Amendment Act, W.P.C.No.27176 of 2011 8 is in any way discriminatory or arbitrary to be in violation of Article 14 of the Constitution Of India. 8. The main point raised is that if an amendment is made it should be retrospective in operation especially when the members were called upon to pay a higher amount of membership subscription. The factual circumstances in this case reveals that when the Ordinance was promulgated imposing a higher subscription fee for future years the benefit of such payment was given to members who ceases to practice after the said date by paying a certain amount until the date of the Ordinance and thereafter a higher amount. All persons who retired or ceased to practice or died after the date of the first ordinance derived a benefit of payment of higher subscription by receiving a higher amount for the subsequent years and most of them obtained the benefit as well. 9. When the Ordinance was replaced by the Amendment Act, the limitation of payment of a lesser amount until 10/05/2008 was taken away and an additional W.P.C.No.27176 of 2011 9 benefit is given to those persons who had ceased to practice after the said date. They were entitled to get a higher amount after the notified date. The Legislature in its wisdom did not think it necessary to apply the said provision retrospectively. Such an act would have created a larger impact on the financing of the fund as if a retrospective operation is given to all persons who were members earlier and who had received the welfare fund could have made a claim. Apparently any direction to pay certain amount by way of welfare fund or any other payment can generally be only prospective in operation unless otherwise stated. 10. It is argued that when persons like the petitioners were called upon to pay a higher amount as subscription fee they should be given the benefit in terms with the amendment. This argument may not stand good as one cannot find out any discrimination of a particular individual or a class of persons. This is an instance of enhancing the welfare fund to persons who stops practice by one of the modes after 02/11/2011. The very object of the Act is to W.P.C.No.27176 of 2011 10 create a welfare fund for the Advocates. Contributions are received in different forms. The welfare fund cannot be treated as akin to or similar to service benefits an employee is entitled as per the service law applicable to them. Here no classification is made by the provisions of the Amendment Act. The benefit of higher amount will be available only to persons who are in the roles of bar council after the notified date. In other words those persons who had ceased to practice before the date of amendment had ceased to be Advocates or members of the fund. Such persons cannot contend that the Amendment Act is discriminatory or that there is an unreasonable classification. The benefit of the Amendment Act cannot be claimed by those persons who had ceased to practice prior to the said date. Hence I do not think that the judgments relied upon by the learned counsel for the petitioner would render any assistance to the facts of the present case. Legislature in its wisdom had decided to extend a better benefit to persons who remained in the roles of bar council from the date of the Amendment Act. In so far W.P.C.No.27176 of 2011 11 as there is no violation of any fundamental rights of the petitioners the Amendment Act does not suffer from any vires and cannot be challenged. Having regard to the aforesaid view, I do not think that the petitioner has a valid legal right to challenge the Amendment Act to the extent indicated above and accordingly the writ petition is dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.27176 of 2011 12 W.P.C.No.27176 of 2011 13