IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 32981 of 2010(W) ---------------------------------- PETITIONER(S): ------------------- C.I.DAVID, (RETIRED HEAD MASTER), SANSKRIT U.P.SCHOOL, THOTTARA, TRIPUNITHURA, RESIDING AT CHALAKKAL HOUSE, KULEYETTIKKARA, KANJIRAMATTOM-682 315. BY ADVS. SRI.P.P.JACOB SRI.T.P.GOPAKUMAR RESPONDENT(S): --------------------- 1. STATE OF KERALA, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1, REPRESENTED BY SECRETARY. 2. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR, THIRUVANANTHAPURAM-1. 3. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM-695 039. R1, 2 & 3 GOVT.PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 32981/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PAY FIXATION ORDER DATED 20/07/1995 ISSUED BY ASSISTANT EDUCATION OFFICER, THRIPUNITHURA. P2: COPY OF THE RELEVANT PORTION OF G.O.(P)930/3(2) FIN. DATED 08/12/1993. P3: COPY OF THE JUDGMENT IN WPC. NO.15973/04 DATED 25/02/2010 P4: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 26/04/2010. P5: COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 12/05/2010. P6: COPY OF THE LETTER CALLING FOR PERUSAL HEARING DATED 02/06/2010. P7: COPY OF THE REPLY SUBMITTED ON PERUSAL HEARING DATED 15/06/2010. P8: COPY OF THE ORDER REJECTING THE CLAIM OF THE PETITIONER DATED 31/08/2010. P9: COPY OF THE G.O.(P) NO.710/2002 DATED 14/11/2002. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32981 of 2010-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2011. JUDGMENT The refixation of pay made after the retirement of the petitioner, has led to the filing of this writ petition. The petitioner retired from service while working as Headmaster on 31.5.1996. Prior to the retirement he was given Headmaster’s higher grade and the pay fixation statement has been produced as Ext.P1. This was effected in the light of G.O.(P) No.930/93(2) Fin. Dated 8.12.1993, which is produced as Ext.P2. Accordingly, the petitioner was drawing the salary and his last pay certificate was also issued. His monthly pension was fixed at Rs.1378/- instead of Rs.1415/- by the Accountant General. Thereafter, the petitioner represented the matter and approached this Court by filing W.P.(C) No.15973/2004 challenging the reduction of pension and this Court directed fresh notice to be issued showing the specific reasons for the same. 2. The petitioner received Ext.P4 notice to show cause why the pay should not be reduced from Rs.2750/- to Rs.2675/- with effect from 1.7.1994. He submitted a reply as per Ext.P5. A personal hearing was later conducted and again he filed a reply as per Ext.P7. Finally, by Ext.P8 the wpc 32981/2010 2 pay was refixed by modifying the pay fixation made by the Assistant Educational Officer. Reliance was placed on Ext.P9 Govt. Order dated 14.11.2002. 3. Learned counsel for the petitioner submitted that the Government Order Ext.P9 cannot act retrospectively against the petitioner for various reasons. When the pay fixation was made in Ext.P1, the same was done in terms of Ext.P2 Govt. Order. Therefore, the fixation was made in a proper manner. Any change of the criteria after his retirement, cannot affect his vested right. It is further pointed out that Ext.P9 is given a retrospective effect from 1.3.1992. But when a vested right of the petitioner is affected, the retrospective effect given cannot be upheld also. Apart from that, it is pointed out that the modification has been made only after his retirement on 31.5.1996. Learned Govt. Pleader supported the proceedings by submitting that Ext.P9 Govt. Order governs the field which was issued after this Court in the judgment in O.P. No.23261/1998, held that the circular issued earlier clarifying the position, cannot be sustained. 4. That the petitioner retired from service on 31.5.1996 is not disputed. It is averred in para 3 of the counter affidavit that in the year 1994 the petitioner has been given the Headmaster’s higher grade while he was drawing a basic pay of Rs.2540 + 60pp in the scale of pay of Rs.1640-60- wpc 32981/2010 3 2600-75-2900. It is also clear that pay has been fixed by the Asst. Educational Officer in that scale with effect from 1.7.1994. What is mentioned as a reason for the refixation is that the time of checking pay fixation, an error was noticed in the higher grade fixation granted by the Assistant Educational Officer, Thripunithura as per the existing orders and finally Ext.P4 notice was issued. 5. Evidently, the pay fixation was made at the time when the petitioner was in service. Based on the same he was drawing the scale of pay sanctioned and thereafter retired from service. There cannot be any dispute that Ext.P2 is the Government Order which was relied upon in the matter for fixing the pay. Therefore, the sanction as per Ext.P1 entirely depended upon Ext.P2 itself. 6. Ext.P9 is of the year 2002 which came into force long after his retirement. Of course, it is made effective from 1.3.1992. It is an executive order issued by the Government. It is well settled by various decisions of the Apex Court that a vested right cannot be taken away on a retrospective basis. While in service, the petitioner was enjoying the benefit and there was no objection during the entire period also. It became a vested right for him. The change made by Ext.P9 is only long after his retirement, after the contract of employment has ceased to be in force. Therefore, the wpc 32981/2010 4 pay fixation made cannot be affected retrospectively, that too after his retirement. The Apex Court in Chairman, Railway Board and others v. C.R. Rangadhamaiah {(1997) 6 SCC 623} has held in para 20 that “but a rule which seeks to reverse from an anterior date, a benefit which has been granted or availed of, e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution of India to the extent it operates retrospectively.” The said dictum squarely applies here. 6. Hence, as far as the petitioner is concerned, Ext.P9 cannot affect the pay fixation made as per Ext.P1. For all these reasons, the petitioner is entitled to succeed in this writ petition. Therefore, Ext.P8 order is quashed. The pensionary benefits of the petitioner will be recomputed in terms of Ext.P1 fixation and refixation will be made within a period of two months from the date of receipt of a copy of this judgment. The arrears will also be disbursed to him. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/