WA Nos. 988 of 2012 and 904 of 2018 - Dr. G. Sadasivan Nair v. Cochin University of Science and Technology & Others; Dr. Shirly Baby v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** **WA.NO.988 OF 2012** **AGAINST THE JUDGMENT IN WPC NO.28410/2006 DATED 25-01-2012 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER :** **DR.G.SADASIVAN NAIR, RTD. PROFESSOR AND DIRECTOR OF SCHOOL OF LEGAL STUDIES, COCHIN UNIVERSITY OF SCIENCE & AND TECHNOLOGY, KOCHI-22.** **BY ADVS. SRI.MAHESH MENON R. SMT.SREEDEVI KYLASANATH SRI.PRAVEEN.S. SRI.ACHUTH KYLAS SRI.PRATHAP. S.R.K.** ## **RESPONDENTS/RESPONDENTS :** - **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KOCHI-22.** **2 VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KOCHI-22.** **3 THE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, (HIS EXCELLENCY OF THE GOVERNOR OF KERALA), KERALA RAJ BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM.** **4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 2** **5 PROFESSOR P.K. ABDUL AZEEZ (DELETED) VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22.** **(R5 IS REMOVED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER THE ORDER DATED 17/06/2019 IN IA.NO.01/2019)** **R1 TO R3 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R4 BY SENIOR GOVERNMENT PLEADER A.J VARGHESE** ## **OTHER PRESENT:** **MAHESH MENON.R FOR APPELLANT, SR.GP SRI.A.J.VARGHESE, SRI. M.R.HARIRAJ, A.L.NAVANEETH KRISHNAN(AMICUS CURIAE)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2019, ALONG WITH WA.904/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** ## **WA.NO.904 OF 2018** **AGAINST THE JUDGMENT IN WPC NO.33971/2017 DATED 25-10-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER :** **DR.SHIRLY BABY, AGED 52, W/O. GEORGE VARGHESE, ASSISTANT PROFESSOR, CATHOLICATE COLLEGE, PATHANAMTHITTA. (RESIDING AT THENGUMTHARAYIL HOUSE, MAKKAMKUNNU P.O, PATHANAMTHITTA).** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS/RESPONDENTS :** - **1 STATE OF KERALA DEPARTMENT OF FINANCE(PENSION B) KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2 THE SECRETARY TO GOVERNMENT DEPARTMENT OF EDUCATION, KERALA GOVERNMENT SECRETARIAT, THRIUVANANTHAPURAM 695 001.** - **3 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM 695 001.** - **4 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695 001.** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 4** - **5 THE DIRECTOR OF HIGHER SECONDARY EDUCATION KSHB BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001.** - **6 THE MANAGER OFFICE OF THE CORPORATE MANAGEMENT OF M.O.C COLLEGES, DEVALOKAM, KOTTAYAM 686 038.** - **7 THE MANAGER OFFICE OF THE CATHOLICATE & M.D SCHOOLS, DEVALOKAM, KOTTAYAM 686 038.** - **8 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, KOTTAYAM 686 560, REPRESENTED BY ITS REGISTRAR.** - **R1-5 BY GOVERNMENT PLEADER SRI.A.J VARGHESE R8 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2019, ALONG WITH WA.988/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018** **5** **==> picture [34 x 10] intentionally omitted <==** ## **J U D G M E N T --------------** ## **K. VINOD CHANDRAN, J.** **We placed these matters together for reason of a common question arising in both the appeals; though the facts differ. The common questions for consideration are, (i) Whether the right to reckon prior service or experience, as qualifying service for pension, accrues at the time of appointment or superannuation? (ii) Whether; when there is a rule permitting reckoning of such service or experience at the time of appointment; it can be altered before retirement?** **2. In Writ Appeal No.988 of 2012, the appellant, who was a member of the Bar, was appointed to the School of Legal Studies, Cochin University. At the time of his appointment, as per Rule 25(a) Part III, KSR, experience at the Bar could be reckoned as qualifying service for the purpose of determining** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 6** **pension. This was only subject to the condition that this benefit was available only to a person who is recruited after the age of 25 years, who could add as many years by which he exceeds 25 years of age, but not exceeding the actual years of practice at the Bar and subject to a maximum of ten years. While the appellant was in service, a proviso was added in the following manner.** _**Provided that the benefit under this sub-rule shall be available only to employees who are recruited when practising at the Bar to posts requiring law qualification and experience at the Bar.**_ **3. The petitioner, who had eight years practice at the Bar, was recruited to the School of Legal Studies, Cochin University. The specific contention taken up by the learned Standing Counsel for the University is that, the appointment to the post of a Teacher in the Cochin University did not require Bar experience and hence, the proviso directly hits the appellant and dis-entitles his pension to be** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 7** **determined, reckoning his experience at the Bar as qualifying service. The learned Single Judge found, on established principles, that it is perfectly open to the Government to unilaterally alter the service conditions of employees during their service and therefore, what is applicable is the rule prevailing as on the date of retirement and not as on the date of entering service.** **4. The appellant in Writ Appeal No.904 of 2018, who is working as an Assistant Professor in an aided college, sought for a direction to the respondents to reckon the service rendered by her in an aided school relying on Rule 14 E of Chapter III of KER. The learned Single Judge rejected the writ petition, finding that, the appellant is still in service and the writ petition was premature. The appellant could claim pension only as per the existing rule at the time of retirement was the finding.** **5. Considering the importance of the question** **involved, we appointed Adv. Navaneeth Krishnan as** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 8** _**Amicus Curiae**_ **.** **6. The learned counsel, Sri.Mahesh Menon R., appearing for the appellant in Writ Appeal No.988 of 2012 would contend that, all the Universities require Bar experience for a teaching post in the law faculty of the University. Cochin University alone does not require such experience. It is also contended that, at the time of his appointment to the law faculty of the University, the Rule provided for reckoning the Bar experience as qualifying service for the purpose of pension. The amendment, being made retrospectively from 1985 does not affect the vested rights of the appellant who was appointed on 07.09.1984.** **7. Learned counsel would rely on the decision in** _**Salabuddin Mohammed Yunus v. State of Andhra Pradesh**_ _**[AIR 1984 Supreme Court 1905(2)]**_ **, to contend that an amendment cannot be retrospective, when it interferes with the vested rights of an individual. Pension has been held to be a vested right of an** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 9** **employee, and not a largesse, which he is entitled to as on the date of his appointment. The qualifying service ought to be reckoned, as the rule exists on the date of appointment, since this is a significant factor regulating the decision of a successful candidate in joining a service. Learned counsel also relied on the decision in** _**Bhagat Ram Sharma v. Union of India and Others [ 1988 Supp. SCC 30],**_ **to contend** **that an amendment cannot be retrospective, unless it is expressly stated by the language of the provisions. Though retrospectivity has been conferred on the proviso to the rule, it does not extend to the time of the appellant's appointment, is the contention. It is also argued that, another employee, similarly appointed, has been granted pension despite he having retired after the amendment was introduced in the Rule. Reliance is also placed on the decision in** _**State of Kerala and Others v. Minimole C. and Another [2012 (2) KHC 750]**_ **to argue that when a specific rule is violated by** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 10** **the executive Government, which was created by itself, a similarly placed person cannot be singled out and declined relief on the ground of the rule being against him.** **8. The learned counsel appearing for the appellant in Writ Appeal No.904 of 2018 pointed out the Government Order produced by the** _**Amicus**_ **and argued that as of now the position is clarified by the Government and she is entitled to reckon the aided school service as qualifying service for the purpose of pension. A subsequent Government Order, G.O.(P) No.50/2019/Fin. Dated 03.05.2019, is also produced, which reiterates that, regular full time Government Service of aided private college staff and aided private school staff prior to their entry in aided private college service and aided private school service shall be counted for pension of such service. Reliance is also placed on the decision of this Court in** _**State of Kerala and Others v. Sabu Mathew and Others [ 2019 (3) KHC 972(DB)**_ **].** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 11** **9. The** _**Amicus**_ **, Sri. Navaneeth Krishnan, quite conscious of the duty cast on him, has placed before us a number of decisions of the Honourable Supreme Court. The decision in** _**Government of A.P. and Others v. Syed Yousuddin Ahmed [1997 (7) SCC 24]**_ **,** **categorically held that, the power to frame a Rule under Article 309 of the Constitution cannot be fettered merely because of the rule position at the time of appointment of an employee. It was categorically held that the legislature under Article 309 of the Constitution and the Governor under the proviso to Article 309 can make laws determining the service conditions of the Government employees and such law can also be retrospectively made.** _**Sangam Spinners v. Regional Provident Fund Commissioner I [(2008) 1 Supreme Court Cases 391]**_ **was placed reliance on to contend that there could be no retrospective amendment interfering with the vested rights of an employee.** _**Grid Corporation of Orissa and Others v. Rasananda Das [2003 (10) SCC**_ **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 12** _**297]**_ **was relied on to contend that, alteration of conditions of service cannot be to the disadvantage of the employees by reducing their pay scales or withdrawing any specific benefits.** **10. Having gone through the plethora of decisions placed by the learned counsel, we are of the opinion that** _**Sabu Mathew (supra)**_ **, does not have any relevance to the issue agitated here. It only declares the right as the rule existed and was rendered in a batch of cases where the writ petitioners were retired employees claiming the benefit of reckoning prior service for pension, as the rule permitted at the time of their superannuation. The specific contention herein of the appellant, in Writ Appeal No.904 of 2018, is that even while she continues in service, pension becomes her vested right. However, the dictum in the two decisions of the Supreme Court, placed before us, stand against the said proposition.** **11. In** _**Syed Yousuddin Ahmed (supra),**_ **the** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 13** **question was whether an incentive award granted to the employee could be reckoned for calculating his emoluments for the purpose of determining pension at the time of retirement. The Hon'ble Supreme Court, looking at the pension rules, found that the expression 'emoluments' for the purpose of determining pension meant pay as defined in the fundamental rules. Under the fundamental rules, pay was defined as** _**'pay other than special pay or granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reasons of his position in a cadre'(sic)**_ **. Incentive award was found to be one not coming within the definition of pay. Therein also, employee had taken up a contention that, there was an amendment brought into Rule 31 which could not have a retrospective effect. The Court found that, the question whether Rule 31 was retrospective or not does not arise, since the meaning of the** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 14** **expression emoluments, on the basis of which, the pension of the employee has to be calculated on superannuation has to be determined on the basis of the amended rules, from the date on which it came into force. The incentive award, hence was found to be not one liable to be reckoned for determining pension.** **12. More apposite would be the decision in** _**Salabuddin Mohammed Yunus (supra)**_ **which was placed before us by the learned counsel for the appellant in one of the cases. The learned Judges there, noticed the following declaration of law from a five Judge Bench of Supreme Court in** _**Deoki Nandan Prasad v. State of Bihar [AIR 1971 SC 1409]: “the fundamental right to receive pension according to the rules in force on the date of his retirement accrued to the appellant when he retired from service”(sic)**_ **. Therein, the question was whether the appellant is entitled to pension in Indian rupees or under the erstwhile Hyderabad State rupees. As on** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 15** **the date of retirement of the appellant, the rule provided for the pension to be reckoned in Indian rupees. Later to his retirement and while the proceedings were pending before Court, there was an amendment made, which found the reference to Indian Ruppee to be a mistake and brought in an amendment. The Court, however, found that, the rule applicable in the matter of determination of pension is that existing at the time of retirement.** **13. We are of the opinion that, the argument, in so far as the amendment of the rule cannot be applied retrospectively is not a question arising in these cases.** _**Bhagat Ram Sharma**_ **and** _**Sangam Spinners (both supra)**_ **are not applicable at all. As we found the Supreme Court has categorically held that the right to pension arises and it crystallizes into a vested right only on the date of superannuation and the right is to obtain pension as the rule exists on that date. In the case of the appellant in Writ Appeal No.904 of 2018 that date has not yet reached.** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 16** **In the said circumstance, we do not think that there is any reason for interference to the decision of the learned Single Judge.** **14. As far as Writ Petition No.988 of 2012 is concerned, the Rule applies as on the date of the appellant's retirement and the judgment of the learned Single Judge has to be sustained. The ground that the other Universities provide for Bar experience to be appointed as teaching faculty is irrelevant and inconsequential. As to the reliance placed on** _**Minimole.C(supra)**_ **, the observations where in the context of the KER, which was styled by the Court itself as a loose bundle of Rules, not complete and comprehensive and the Government issues general orders to make up deficiencies and prevent distortions. There can be no parallel drawn here.** _**Grid Corporation of Orissa(supra)**_ **was a case in which the employees in a Project were absorbed by the State Government with protection of their service conditions; which were sought to be varied** **WA.NO.988 OF 2012 & WA.NO.904 OF 2018 17** **by the State, later. There is no such impediment on the State in the present case where the amendment brought to the service rules, is in exercise of and invoking the power under Article 309 of the Constitution of India.** **15. We place on record our appreciation for the efforts taken by the** _**Amicus**_ **to put the matter in the correct perspective. We reject both the appeals leaving the parties to suffer their respective costs.** **Sd/K. VINOD CHANDRAN, JUDGE** **Sd/V.G. ARUN, JUDGE** _**NS**_