S. Bindu and others v. High Court of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **MONDAY, THE 15TH DAY OF JULY 2019 / 24TH ASHADHA, 1941 WP(C).No.22823 of 2017** ## **PETITIONERS:** **1 S.BINDU PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **2 S.LALITHA PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **3 V.G.SARASAN PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **4 B.S.MAYA PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **5 P.K.BABY ANITHA PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **6 T.K.VARADADEVI PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **7 T.K.SREELATHA PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **8 T.G.SUKUMARY PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE,H IGH COURT OF KERALA-682031.** **WP(C).No.22823 of 2017 2** **9 P.P.CHATHERINE LALY PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE, NOW REVERTED AS PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA-682031.** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** ## **RESPONDENTS:** - **1 HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL, ERNAKULAM-682031.** - **2 REGISTRAR GENERAL HIGH COURT OF KERALA, ERNAKULAM-682031.** - **3 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME(C)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **5 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT FINANCE(PRC-C)DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.** - **6 ACCOUNTANT GENERAL (A&E) KERALA,THIRUVANANTHAPURAM-695003.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.RON BASTIAN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.07.2019, ALONG WITH WP(C).24900/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22823 of 2017 3** ## **JUDGMENT** This writ petition is filed by the employees working in the category of Private Secretary (Higher Grade) to Judges in the High Court of Kerala. 2. The petitioners' contend that they had been appointed as PS(HG) to Judges from the post of PS to Judges by Exts.P4 to P10 orders dated 20.10.2012, 1.12.2012, 1.11.2013, 2.12.2013, 19.8.2014, 9.12.2014 and 27.5.2015. It is contended that the ratio between the posts of PS to Judge and PS(HG) to Judge was initially fixed at 1:2. By Ext.P2 proceedings dated 16.7.2012, the ratio was revised as 1:1. The High Court of Kerala by Ext.P3 order fixed the cadre strength of the respective posts as nineteen **WP(C).No.22823 of 2017 4** posts of PS(HG) to Judge and nineteen posts of PS to Judge applying the ratio of 1:1. It is stated that, on the basis of the said ratio and fixation of cadre strength, the petitioners had been promoted by Exts.P4 to P10 orders. 3. It is stated that the pay and allowances of the staff of High Court also underwent periodical revision and Ext.P11 Pay Revision order dated 20.6.2016 had been issued. The order fixed ratio of PS to Judges and PS(HG) to Judge was 1:3. The pay scales were also fixed according to the recommendation. By Ext.P12 order, the High Court issued proceedings refixing the cadre strength as twenty eight numbers for PS(HG) to Judge and ten PS to Judge. Thereafter, Ext.P13 order was passed filling up the vacancies in the category of PS(HG) to **WP(C).No.22823 of 2017 5** Judges. By Ext.P14 proceedings dated 4.3.2017, the pay scale of PS to Judge and PS(HG) to Judge underwent further revision and was fixed at Rs.45800 – 89000 and Rs.68700–110400 respectively. It was also ordered by Ext.P14 that the ratio between PS to Judge and PS(HG) to Judge shall be 3:1. 4. Thereafter, Ext.P15 proceedings had been issued by the High Court on 18.3.2017 accepting Ext.14 Government order and making the pay scale applicable to the posts. A consequential order was also passed on 12.6.2017 revising the strength of posts as nine posts of PS(HG) to Judge and twenty nine posts of PS to Judge. It is stated that on the strength of Ext.P16 order issued, the petitioner who have already been promoted as PS(HG) to Judge by Exts.P4 to P10 orders were directed to be reverted to the post of **WP(C).No.22823 of 2017 6** PS to Judge by Ext.P1 proceedings dated 12.6.2017. 5. The challenge raised by the petitioners is essentially to the effect that the refixation of the ratio as 1:3 between PS(HG) to Judge and PS to Judge is applicable only with effect from 1.4.2016 and that the petitioners, who are persons appointed as PS(HG) to Judge before 1.4.2016 in terms of the Government orders available at the relevant time and whose right for the continuance in the said posts had accrued due to valid orders, are not liable to be reverted. 6. A statement has been filed on behalf of respondents 1 and 2. It is contended that the reversion of the petitioners was effected only for implementation of Ext.P14 Government Order. It is stated that Ext.P16 **WP(C).No.22823 of 2017 7** order modifying cadre strength of PS to Judge and PS(HG) to Judge as 1:3 was issued in compliance with the Government orders at Exts.P11 and P14 respectively. It is contended that the ratio between the posts of PS to Judge and PS(HG) to Judge is fixed as on 1.4.2016 as 1:3. It is admitted that the petitioners were persons who had been appointed as PS to Judges(Hr.Gr.) on the strength of Exts.P4 to P10 orders applying the ratio 1:1 which was available by Ext.P2 before 1.4.2016. It is stated that Ext.P1 order was issued in implementation of Ext.P14 Government Order modifying the ratio and PS(HG) to Judge and that it is for the Government to re-examine the matter. 7. A counter affidavit has been placed on record by the Government also. It is contended that the fixation of the ratio of **WP(C).No.22823 of 2017 8** 3:1 between PS(HG) to Judge and PS to Judge was a mistake which occurred by implementing the Pay Commission recommendation. It is stated that after considering the grievances raised by the employees, Ext.P14 order had been issued revising the scale of pay for the posts of PS to Judge and PS(HG) to Judge. It was also ordered that the ratio between PS to Judge and PS(HG) to Judge shall be 3:1. 8. The learned counsel for the petitioner would rely on the decisions of the Apex Court in _**Chairman, Railway Board and Others v. C.R.Rangadhamaiah and Others [(1997)6 SCC 623]**_ as also ofthis Court in _**Kerala Panchayat Executive Officers Association v. State of Kerala [2000 (3) KLT 701]**_ and _**Mohanan v. State of Kerala [2012 (3) KLT 92]**_ . It is contended that the **WP(C).No.22823 of 2017 9** accrued rights for promotions and scale of pay which have vested in the petitioners on account of rules or executive orders in force cannot be retrospectively taken away or altered by way of an amendment. 9. The Apex Court in _**Chairman Railway**_ ## _**Board's case (Supra)**_ held at paragraph 24 as follows:- ''24. In many of these decisions the expressions ''vested rights'' or ''accrued rights'' have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a **WP(C).No.22823 of 2017 10** benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in _Roshal Lal Tondon, B.S.Yadav and Raman Lal Keshav Lal Soni_ .'' 10. The Division Bench of this Court in ## _**Kerala Pachayat Executive Officers**_ _**Association's case (Supra)**_ has also held, relying on the Apex Court decision, that the right of Government to make rules either prospectively or retrospectively to regulate recruitment and conditions of service of its employees is subject to the well recognised principle that the benefit acquired under the existing rules cannot be taken away by an amendment with retrospective effect. It was held that the employer has no power to make a rule with retrospective effect which **WP(C).No.22823 of 2017 11** affects or impairs vested rights. In _**Mohan's**_ _**case(Supra)**_ this Court held that the benefit granted with regard to the promotion or pay scale cannot be reversed from an anterior date, since the same would be violative of Articles 14 and 16 of the Constitution of India. It is stated that once promotion or pay fixation had been made available and enjoyed by the petitioner it becomes a right vested upon him. 11. It is also contended that Ext.P1 order repeals only Ext.P15 High Court order dated 18.3.2017 and directs the cancellation of only the High Court order dated 20.2.2016 which is referred to as reference No.3 therein. It is stated that reference No.3 is to be order dated 22.10.2016 granting further promotions and the petitioners who are promoted as per Exts.P4 to P10 orders **WP(C).No.22823 of 2017 12** much earlier than 1.4.2016 would therefore be unaffected by the amendment in the ratio from 1.4.2016. 12. I have considered the contentions advanced. It is not in dispute before me that the petitioners are persons who had been promoted as PS(HG) to Judge on the basis of the 1:1 ratio existing as per Ext.P2. It is apparent that, though the pay revision orders had been made applicable to the High Court employees by Ext.P11 and the pay was revised with effect from 1.7.2016 the ratio between PS to Judges and PS(HG) to Judge in Ext.P11 was 1:3. It appears that High Court had effected revision accordingly by Ext.P12 order dated 22.1.2016. It was only by Ext.P14 order dated 4.3.2017 that the ratio was revised as 3:1 between PS to Judges and PS(HG) to Judge. The petitioners **WP(C).No.22823 of 2017 13** |who are persons who had been promoted|as| |---|---| |PS(HG) to Judge on the basis of earlier|| |existing 1:1 ratio can, by no stretch|of| |imagination, be held to be affected by|the| |revision of ratio which took effect, at|the| |earliest, on 1.4.2016.|| |13. In the above view of the matter,|| |Ext.P1 order to the extent it directs|the| |reversion of petitioners who had been|| |promoted as PS(HG) to Judge before 1.4.2016|| |cannot<br>be<br>sustained,<br>under|any| |circumstances. The High Court of Kerala|in| |its statement has stated that the date|of| |effect of change of modified ratio is from|| |1.4.2016. It is further stated that|by| |Ext.P16, cadre strength has been revised|as| |nine to PS(HG) to Judge and twenty nine|to| |PS to Judge.|| |14. In the above view of the ma<br>tter, it|| **WP(C).No.22823 of 2017 14** is clear that the date of effect of the change has been understood even by the High Court only as 1.4.2016. The petitioners, who had already been promoted as PS(HG) to Judge on the basis of the ratio of 1:1 to the nineteen posts that existed before 1.4.2016 have therefore accrued the right of promotion as well as to the scale of pay, and they cannot be affected by Ext.P14 order or the revision of the ratio which even as admitted by the respondents is effective only from 1.4.2016. 15. In the result, Ext.P1, to the extent it directs reversion of the petitioners as PS to Judge from the post of PS(HG) to Judge is set aside. There will be a direction to the respondents to extend the benefits of promotions already granted by Exts.P4 to P10 orders to the petitioners. They will be **WP(C).No.22823 of 2017 15** entitled to continue to draw the pay and allowances as has been granted to them and has become their accrued rights. 16. In view of the fact that the reversions are set aside and the petitioners are being held to be entitled to benefit of promotions, the legality of revision of the ratio is not being considered in this writ petition. The writ petition is ordered accordingly. **Sd/-** **ANU SIVARAMAN JUDGE** ACM / 17.7.2019 **WP(C).No.22823 of 2017 16** ## **APPENDIX OF WP(C) 22823/2017** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 12.06.2017 ISSUED BY THE HIGH COURT OF KERALA** - **EXHIBIT P2 TRUE COPY OF G.O.(MS)NO.195/2012/HOME DATED 16.07.2012** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 13.08.2012 ISSUED BY THE HIGH COURT OF KERALA RE-FIXING THE CADRE STRENGTH OF PRIVATE SECRETARY TO JUDGES.** - **EXHIBIT P4 TRUE COPY OF THE HIGH COURT ORDER DATED 20.10.2012 PROMOTING 1ST PETITIONER AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** - **EXHIBIT P5 TRUE COPY OF THE HIGH COURT ORDER DATED 01.12.2012 PROMOTING 2ND PETITIONER AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** - **EXHIBIT P6 TRUE COPY OF THE HIGH COURT ORDER DATED 01.11.2013 PROMOTING 3RD PETITIONER AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** - **EXHIBIT P7 TRUE COPY OF THE HIGH COURT ORDER DATED 19.08.2014 PROMOTING THE PETITIONERS,5,6 AND 7AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** - **EXHIBIT P8 TRUE COPY OF THE HIGH COURT ORDER DATED 19.08.2014 PROMOTING THE PETITIONERS 5,6 AND 7 AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** - **EXHIBIT P9 TRUE COPY OF THE HIGH COURT ORDER DATED 09.12.2014 PROMOTING 8TH PETITIONER AS PRIVATE SECRETARY(HIGHER GRADE)TO JUDGE.** **WP(C).No.22823 of 2017 17** ## **EXHIBIT P10** **TRUE COPY OF THE HIGH COURT ORDER DATED 27.05.2015 PROMOTING 9TH PETITIONER AS PRIVATE SECRETARY(HIGHER GRADE)TO JUGE** **EXHIBIT P11** - **TRUE COPY OF G.O(P)NO.180/2016/HOME DATED 20.06.2016.** **EXHIBIT P12** - **TRUE COPY OF THE ORDER DATED 22.10.2016 ISSUED BY THE HIGH COURT OF KERALA RE-FIXING THE CADRE STRENGTH OF PRIVATE SECRETARIES TO JUDGES.** - **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 22.10.2016 ISSUED BY THE HIGH COURT OF KERALA FILING UP THE VACANCIES OF PRIVATE SECRETARIES(HIGHER GRADE)TO JUDGES** - **EXHIBIT P14 TRUE COPY OF G.O(MS)NO.40/17/HOME DATED 04.03.2017** - **EXHIBIT P15 TRUE COPY OF THE HIGH COURT ORDER DATED 18.03.2017** - **EXHIBIT P16** **TRUE COPY OF THE ORDER DATED 12.06.2017 ISSUED BY THE HIGH COURT OF KERALA RE-FIXING THE CADRE STRENGTH OF PRIVATE SECRETARIES TO JUDGES.** **WP(C).No.22823 of 2017 18**