WP(C).No. 28909 of 2003 (N)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** **WP(C).No. 28909 of 2003 (N) ----------------------------** ## **PETITIONER(S):** **-------------** **NATARAJAN R., S/O.A.RAMALINGAM PILLAI, N.M.S. HOUSE, NENMARA, PALGHAT DISTRICT, ENGINEER INSTRUCTOR, RETD., MNKM HIGH SCHOOL, CHITTILAMCHERRY, PALAKKAD.** **BY ADV. SRI.M.P.KRISHNAN NAIR** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **3. ACCOUNTANT GENERAL (A&E), SECRETARIAT, THIRUVANANTHAPURAM.** **4. DEPUTY DIRECTOR OF EDUCATION, GENERAL EDUCATION DEPARTMENT, PALAKKAD.** **5. PRINCIPAL SECRETARY, FINANCE DEPARTMENT, (PAY REVISION CELL), THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.THOMASKUTTY M.A.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 28909 of 2003 (N) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE REPRESENTATION DTD.26.7.2003 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **P2 TRUE COPY OF THE PENSION PAYMENT ORDER DTD.8.7.1997 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R1(a): TRUE COPY OF THE G.O.(P) 360/86/FIN. DTD.15.5.1986. EXT.R1(b): TRUE COPY OF THE GAZETTE NOTIFICATION DTD.11.8.2006.** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.28909 of 2003 ----------------------------------------Dated this the 25[th] day of November, 2016 ## JUDGMENT The prayers in this writ petition are as follows :- (i) Call for the entire records of the petitioner's case leading to issue of Ext.P1 and all action taken by the respondents; (ii) issue a writ of mandamus or any other writ order or direction declaring that petitioner is entitled to get the benefit of general Pay Revision which came into force on 01.03.1997 and consequential service and monetary benefits and all consequential pensionary benefits with interest at the market rate at quarterly rest (iii) issue a writ of mandamus or any other writ, order or direction directing the respondents to pay the benefit of general Pay Revision which came into force on 01.03.1997 and consequential service and monetary benefits to the petitioner and all consequential pensionary benefits with interest at the market rate of quarterly rest (iv) to issue any such other appropriate writ, order or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and (v) to award the cost to the petitioner. ## 2. It is submitted by the learned counsel for the W.P.(C) No.28909 of 2003 -2- petitioner that the petitioner had retired from service on 31.03.1997, having attained the age of 55 years, on 31.08.1996. The petitioner submits that he is entitled to the benefit of Revision of Pay and Pension as well as the Grade Promotion which fell due, during the extended period of his service from 01.09.1996 to 31.03.1997. The petitioner states that the claim raised was squarely covered by a decision of the Full Bench of this Court in Accountant General v. Neelakantan Nair [2003 (3) KLT 525 (F.B.). It is contended that it has been found on the basis of the provision in Rule 60(c) of Part 1 KSR and Rule 63 Chapter XIV A, KER as the Rules states that a teacher is not discarded from pooling benefits of revised scale of pay as well as benefits which accrue, during the period of his extended service, since the date of superannuation against the teachers going by the provisions were in force in the 31[st] of March of the relevant year. It is submitted that later amendments effective in the Service Rules as well as the Kerala Education Rules, can have no effect on the claims raised by the W.P.(C) No.28909 of 2003 -3- petitioner in view of the Full Bench decision which has been approved by the Apex court. The learned counsel for the petitioner also relies on the decision of the Apex Court in State of Tamil Nadu v. State of Kerala and Another [2014 (2) KHC SN 59 (SC)] to contend that once an order is passed by the Court, the legislature cannot override such judicial decisions, by altering or changing the character of legislative decisions retrospectively. It is stated that a decision which disposes of the matter by giving findings upon the facts is not open to change by Legislature. A final judgment, once rendered, operates and remains in force until altered by the Court in appropriate proceedings. 3. The learned Government Pleader would on the other hand submitted that after the decision of the Full Bench relied upon by the petitioner was rendered, there were several amendments effected to the Kerala Service Rules as well as the Kerala Education Rules with retrospective effect, by S.R.O.No.7/2007 dated 05.01.2007. Rule 60(c) of Part I KSR, W.P.(C) No.28909 of 2003 -4- Rule 62 of Chapter XIV A KER and Note 6 to 9 to Rule 62, Part III of KSR were amended with retrospective effect. It was the said retrospective amendment was challenged before this Court. The petitioners therein were also aided school teachers, who had retired from service on 31.12.1996, who sought the benefits of Pay Revision with effect from 01.03.1997. However, relying on the amending provision of Rule 60(c) and Part I KSR and Rule 62 of Chapter XIV A KER, it was held that the amendments were valid and that in view of the said amendments, the petitioners were not entitled to claim the benefits of revision of pay or pension or any other benefits arising due, during the extended period of service. It is further contended that further amendments have been effected to the KSR as well as the KER and one such amendments have retrospective effect from 1996, time bound by the decision of the Division Bench reported in State of Kerala v. Gopalakrishna Pillai [2009 (2) KLT 39]. The validity of the retrospectivity of the amendments had been pointedly W.P.(C) No.28909 of 2003 -5- considered by the Division Bench. The decision of the Full Bench and its impact on the amendment were also specifically raised and considered by the Division Bench. The Division Bench held that the Full Bench was considering the situation as existed before the amendment, with retrospective effect from 15.05.1986. It was found that while amending the rule, Government is not bound by observations in judgment, giving of the amended provisions, which had retrospective operation from 15.05.1986. It was held that the petitioners did not have any vested right to count the exiting period of service for pensionery benefits or for revision of salary in this appeal. Though it was vehemently argued by the learned counsel for the petitioner that there can be no retrospective amendment to a rule, in order to defeat the findings contained in judicial decision, this is an aspect which has been pointedly considered by the Division Bench and it has been held that there is no illegality of any nature in exercise of power by the Government in retrospectively amending the rule. The W.P.(C) No.28909 of 2003 -6- decision relied upon by the learned counsel for the petitioner to contend that the legislature cannot bring above amendments to defeat judicial decisions is rendered in completely different circumstances, where the factual matrix of the situation as existed between parties a particular list was sought to had changed to defeat orders issued on consideration of the factual aspects. In the above view of the matter, I am of the opinion that the situation in hand is covered against the petitioner by the judgment of the Division bench in Gopalakrishnan's case supra. The writ petition is therefore fails and the same is accordingly dismissed. ANU SIVARAMAN, JUDGE vs