IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 WA.No. 440 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.15770/2009 DATED 18.12.2009 .................... APPELLANT(S): PETITIONER ------------------------ THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM -3. BY ADV. SRI.P.GOPAL RESPONDENT(S): RESPONDENTS -------------------------- 1. SRI.V.N. RAMAKRISHNA PILLAI, RETIRED THIRUVABHARANAM SPECIAL OFFICER, TRAVANCORE DEVASWOM BOARD, RESIDING AT PUSPANJALI PALACE ROAD, POOJAPURA.P.O, THIRUVANANTHAPURAM. 2. THE KERALA LOK AYUKTA, REPRESENTED BY ITS REGISTRAR, OFFICE OF THE LOK AYUKTA, LEGISLATIVE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM. R1 BY ADV. MR. PIRAPPANCODE V.S.SUDHIR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, ALONG WITH WA NO. 459 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. Nos. 440 of 2010 and 459 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of December, 2010 JUDGMENT J. Chelameswar, C.J. Aggrieved by judgment dated 18.12.2009, the unsuccessful petitioners in Writ Petition Nos. 15770 of 2009 and 23196 of 2009, have preferred these two appeals. 2. These two writ petitions are dismissed by the said common judgment, as common questions of law arise in these cases. The first respondent in each of these appeals is a former employee of the appellant, a statutory Corporation, created under the provisions of the Travancore Cochin Hindu Religious Institutions Act, which is declared to be a body corporate under Section 4 (2) of the abovementioned Act. 3. The appellant is entitled in law to frame appropriate rules governing the conditions of service of its employees. Such an authority in law includes the authority to adopt the rules framed by any other body including the State of Kerala, if only the appellant deems it appropriate in the circumstances. W.A. Nos. 440 and 459 of 2010 : 2 : 4. Both the respondents retired sometime back and they were drawing their pension in accordance with the relevant Rules dealing with the payment of pension to them. As the matter stood as, by an order dated 18.04.2006, the State of Kerala revised the Pension Rules applicable to the employees of the State of Kerala. Under clause 3.1 of the said order, the Revised Pension Rules were declared to take effect from an anterior date i.e. 01.04.2005. The appellant by Ext. P2 proceedings dated 07.08.2006 decided “to extend the scheme of pension and other related benefits to the Travancore Devaswom Board establishment Pensioners as in the Government Order dated 18.04.2006". 5. It is obvious that when such a decision is taken to extend the Revised Pension Scheme of the Government to the employees of the appellant Board, there must be an identification of the equivalence of the various posts under the appellant Board to the posts in the service of the State of Kerala. We shall revert to these aspects little later in the judgment. A lot of unnecessary litigation ensued subsequently. For the purpose of the present order it is not necessary to go into the details of such litigations, except to state that, the appellant on consideration of various matters, including the consideration of the equivalent post in the W.A. Nos. 440 and 459 of 2010 : 3 : Government to the post which each of the respondents herein held on the date of retirement and respective scales etc. fixed the basic pension payable to them. 6. In the case of the first respondent in W.A. No. 440 of 2010 such basic pension was fixed at `10,350/-. The first respondent disputed such a fixation on various grounds, the details of which are not necessary for the present purpose, except to state that, the said respondent made a complaint to the Lok Ayukta regarding the illegality in fixation of the pension. During the pendency of such proceedings, the appellant agreed to fix the basic pension payable at ` 12,700/- and have been accordingly paying the pensionary benefits to the said respondent. This fact is not in dispute now. 7. However, the question still remains as to what is the effective date from which the respondents are entitled for the payment of pension at the revised rates. 8. We have already mentioned that, the appellant, by proceedings dated 07.08.2006, decided to adopt the Revised Pension Scheme of the State of Kerala. The relevant portion of the proceedings reads as follows : “In the Government Order read as cited I, the State Government have issued orders revising the scheme of W.A. Nos. 440 and 459 of 2010 : 4 : Pension and other related benefits in respect of State Government Pensioners. As per Board's order cited II above, the Board entrusted the Pay Revision Committee headed by the Devaswom Commissioner to submit proposals for the implementation of the Revised State Government Pension Scheme in Travancore Devaswom Board also. Devaswom Commissioner has submitted the copy of the minutes of the Pay Revision Committee, containing the proposals to extend the State Government Pensionery benefits to the Travancore Devaswom Board Establishment Pensioners (Read Paper III) After careful examination of the matter in detail, the Board has been pleased to sanction to extend the Scheme of pension and other related benefits to Travancore Devaswom Board Establishment Pensioners as in the Government Order dated 18.04.06” The proceedings does not indicate what is the date with effect from which such adoption of Revised Pension Scheme would take effect. In the absence of any specific decision by the appellant Board, the normal legal consequence would be such decision would come into effect from the date on which the decision was taken. However, the appellant took a stand before the Lok Ayukta that such a decision would come into effect only from 01.10.2008. Such an understanding of the appellant's in our opinion has no basis in law. We called upon to explain as to how W.A. Nos. 440 and 459 of 2010 : 5 : the appellant had come to such a conclusion. The learned counsel for the appellant Sri.P. Gopal points out to a proceedings dated 10.10.2008 signed by the Secretary of the appellant Board. The relevant portion reads as follows: “Sub:- Revision of Pension to the Establishment Pensioners under Travancore Devaswom Board - Reg. Read : 1. Board order of even No. dated 7.8.2006 2. Board order of even No. dated 11.1.2007 3. Report No. 49 submitted by the Hon'ble Ombudsman for Travancore and Cochin Devaswom Board before the Hon'ble High Court of Kerala. In response to the reference read as 3rd cited, the Board has been pleased to implement clause 3.2 and clause 3.3 of the G.O.(P) No. 180/06/Fin. dated 18.04.2006 to the Establishment Pensioners under Travancore Devaswom Board.” From the above extract, it can be seen that, it is a proceeding, by which an assertion is made that the appellant Board "pleased to implement clause 3.2 and clause 3.3 of G.O.(P) No.180/06/Fin. dated 18.04.2006 of the Government of Kerala”. We are at an utter loss to understand as to how the appellant Board believes that the above proceedings has the effect of fixing the date of implementation of the Revised Pension Rules to the employees of the appellant Board to be 01.10.2008. We are not appraised of any legal principle which enables the appellant to reach such a conclusion on the construction of the above document nor do we W.A. Nos. 440 and 459 of 2010 : 6 : see even any factual basis for such an understanding irrespective of its legal tenability. 9. In view of all the confusion created by the appellant, the Lok Ayukta, by its order dated 25th March, 2009, declared as follows: “There is no reason forth coming for taking a decision giving effect to the revision of pension only from 10.10.2008. The benefit which accrued to the employees of the Board cannot be taken away by an arbitrary decision of the respondent Board that too without giving an opportunity to the employees of being heard. In the above circumstances, we find that the complainant is entitled to get the pension revised from 01.04.2005. The arrears of pension from that date has to be given to the complainant. For action taken report adjourned to 15.05.2009” Aggrieved by the same, the appellant herein preferred the above mentioned writ petitions. The prayers in the Writ Petition No. 15770 of 2009, corresponding W.A. No. 448 of 2010, are as follows: “i. to issue a writ of certiorari or any other appropriate writ or order direct quashing Exhibit P11 order of the 2nd respondent dated 25.03.2009 in Complaint No. 347 of 2008 filed by the first respondent; ii. to issue a writ of mandamus or any other appropriate writ or order directing the 2nd respondent to forebear from further proceedings on Exhibit P11 order; iii. to declare that the 1st respondent is not entitled to get arrears of pension as per Exhibit P1 read in the light of Exhibits P2, P4 W.A. Nos. 440 and 459 of 2010 : 7 : and P8 orders for the period from 01.04.2005 to 30.09.2008; iv. to issue any other appropriate writ direction or order which this Hon'ble Court deems fit to grant in the circumstances of the case.” 10. By the judgment under appeal, a learned Judge of this Court dismissed the said Writ Petition. In coming to such a conclusion dismissing the Writ Petition, the learned Judge opined in paragraph 7 of the judgment as follows: “A reading of Ext. P2 and particularly its concluding portion, shows that after considering the matter in its entirety, the Board accorded sanction to extend the scheme of pension and other related benefits to its employees in the establishment wing as in the Government Order dated 18.04.2006, which is Ext. P1. Thus Ext. P2 clearly shows there has been an adoption of Ext. P2, without any reservation whatsoever. If Ext. P2 shows adoption of Ext. P1 in its entirety, the employees of the Board like the 1st respondent are entitled to the benefit of Ext. P1 w.e.f. 01.04.2005 as rightly held by the Lok Ayuktha” Hence the appeals. 11. The learned counsel for the appellant, Sri. P. Gopal argued that the appellant Board, being a statutory body, is entitled to frame its own Rules and Regulations governing the conditions of service of its employees, including the stipulations regarding the payment of retirement benefits of erstwhile employees of the Board. The learned W.A. Nos. 440 and 459 of 2010 : 8 : counsel further submitted and in our view rightly that while adopting the Scheme framed by the State of Kerala, the Board is entitled to adopt the Scheme with such alterations and modifications as it may deem fit and proper including the prescription of an effective date for the application of the Scheme to the employees of the appellant. There cannot be any dispute regarding the authority of the Board to make such adoption with or without any modification of the Scheme of the State of Kerala, of course subject to the condition that such adoption and modification are not wholly arbitrary. 12. The appellant Board took a decision on 07.08.2006 under Ext. P2 to adopt the pension scheme of the State of Kerala. It does not indicate any intention to modify the terms of the Revised Pension Scheme. The only question is whether the appellant Board took a decision to implement the Revised Pension Scheme with effect from any date other than the date of its adoption. 13. We have already extracted the material portion of Ext. P2 and there is no express statement in the said decision to adopt the Revised Pension Scheme from a date different than the one on which it was adopted. Therefore, the stand of the appellant that in view of the subsequent proceedings dated 10.10.2008, the Board intended to W.A. Nos. 440 and 459 of 2010 : 9 : adopt the Pension Scheme w.e.f. 01.10.2008 is wholly without any basis in law. 14. Coming to the question whether the Lok Ayukta's decision as confirmed in judgment under appeal that the adoption of the Revised Pension Scheme of the State of Kerala by the appellant Board must necessarily be date back to the effective date i.e. 01.04.2005 fixed by the State of Kerala for enforcement of the Revised Pension Scheme; the learned Lok Ayukta has not given any reason for such a conclusion. In this regard the order of Lok Ayuktha reads as follows: “As and when the Government order revising the pension was adopted by the respondent Board the order revising pension to the Devaswom Board employees also came into force on the date mentioned in the Government order for the reason that Government order was as such adopted by the order made by the respondent Board. The right to get pension revised from 1.4.2005 vested with the employees of the respondent Board and that cannot be taken away, by the Board by a subsequent decision” It appears from the above, the Lok Ayukta is of the opinion that, the language of Ext. P2, by which the appellant Board decided to extend the Scheme of Pension etc. “as in the Government Order dated 18.04.2006” to the employees of the appellant would create a vested right in favour of the erstwhile employees of the Board to have their W.A. Nos. 440 and 459 of 2010 : 10 : pension revised with effect from the date, i.e 01.04.2005, fixed by the Government in its order dated 18.04.2006 15. In our opinion, the last clause of the said proceedings, “as in the Government Order dated 18.04.2006”, is only descriptive of the Revised Scheme of Pension framed by the Government of Kerala, but need not necessarily convey the meaning that the appellant decided to adopt the Government Order dated 18.04.2006 with retrospective effect. 16. The appellant like any other statutory body is entitled to adopt the Scheme with effect from such date as it deems fit and proper depending upon the various relevant considerations. The well established Principle of Interpretation of the Statutes is that, a Statute or Statutory instrument would come into force w.e.f the date on which it is “made”, unless the instrument either by express provision or by way of necessary implication stipulates a different date. It is also worthwhile to remember that the subordinate legislation cannot normally operate with retrospective unless the parent enactment authorises retrospective subordinate law making activity. The limitation is more acute in the context of non-sovereign law making bodies like statutory Corporation. Therefore the intention to adopt the revised W.A. Nos. 440 and 459 of 2010 : 11 : pension Scheme with retrospective effect should not be normally read into the proceedings of the appellant dated 07.08.2006 unless there are other legally compelling reasons. No such compelling reasons are brought to our notice. 17. In the circumstances, we are of opinion that the judgment in appeal in so far as it confirms the decision of the Lok Ayukta declaring the first respondent is entitled to the benefits of Revised Pension Scheme w.e.f. 01.04.2005 cannot be sustained and the same is set aside. Consequentially, we declare that, the first respondent is entitled for the benefits of Revised Pension Scheme w.e.f 07.08.2006. It is brought to our notice by the learned counsel for the appellant by an interim order dated 16.03.2010, this Court granted interim stay of the operation of the judgment under appeal, subject to the condition that, in the event of the dismissal of the appeal, the appellant would be liable to pay interest at the rate of 9 % on the arrears of pension payable to the respondents herein. In view of the judgment, we deem it appropriate to clarify that, the appellant is liable to pay such interest only with reference to the arrears due to the respondents w.e.f. 07.08.2006. The appeal is accordingly disposed of. W.A. Nos. 440 and 459 of 2010 : 12 : W.A. No. 459 of 2010 The issue is identical in W.A. 459 of 2010, except the dates and figures vary. This Appeal is also partly allowed as indicated in W.A. No. 440 of 2010 for the same reasons stated in the said appeal. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd.