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2025 DIGILAW 1571 (KER)

R. v. Rajesh S/o Ramachandran Nair VS State of Kerala

2025-06-03

S.A.DHARMADHIKARI, SYAM KUMAR V.M.

body2025
JUDGMENT : Syam Kumar V.M., J. 1. This Writ Appeal is filed challenging the judgment dated 15.01.2025 of the learned Single Judge in W.P. (C) No.1779 of 2024. Appellant was the petitioner in the W.P. (C). Respondents were the respondents therein. Parties are hereinafter referred to as per their status in the W.P. (C). 2. The Writ Petition was filed by the petitioner inter alia seeking to quash Ext.P10 order issued by the 2 nd respondent, declining the claim for enhanced arrears of salary and allowances, purportedly due to him in his capacity as the Chairperson of the Kerala State Youth Commission, during the period 02.07.2013 to 31.08.2016. 3. The learned Single Judge had dismissed the W.P. (C) inter alia holding that the claim put forth by the petitioner is based on Rule 5 of the Kerala State Youth Commission Rules, 2018 and insofar as the said Rules does not have a retrospective effect, the petitioner’s claim for consolidated allowances for the period 02.07.2013 to 31.08.2016 is unsustainable. Challenging the dismissal, this Writ Appeal has been filed by the petitioner. 4. Heard Sri. Gangesh K.B. Advocate for the appellant (petitioner), and Sri.Sunil Kumar Kuriakose, the learned Government Pleader for the respondents. 5. The learned counsel for the petitioner contended that the learned Single Judge erred in dismissing the W.P. (C) by overlooking the specific contentions of the petitioner. Rule 5 of the Kerala State Youth Commission Rules, 2018, has fixed the salary of the Chairperson of the Youth Commission at Rs.1 lakh per month. Since the petitioner was the Chairperson of the Kerala State Youth Commission during the period 02.07.2013 to 31.08.2016, he is entitled to arrears and salary and allowances at the said rate. Petitioner was being paid a consolidated pay of Rs.50,000/- per month with an assurance to pay the arrears as per the Rules that would later be framed. The successor of the petitioner, who was appointed after the term of the petitioner, was also being paid a consolidated pay of Rs.50,000/- per month. This Court had vide Ext.P7 judgment disposed of a Writ Petition filed by the petitioner, inter alia, directing the Government to take up the request of the petitioner and to pay amounts due as provided in the Rules. It is contended that pursuant to Ext.P7 judgment, the petitioner’s successor had been duly paid the arrears. This Court had vide Ext.P7 judgment disposed of a Writ Petition filed by the petitioner, inter alia, directing the Government to take up the request of the petitioner and to pay amounts due as provided in the Rules. It is contended that pursuant to Ext.P7 judgment, the petitioner’s successor had been duly paid the arrears. However, the prayer of the petitioner for identical benefit had been declined vide Ext.P10 order inter alia stating that the Rules have no retrospective effect. This, according to the learned counsel, is illegal, arbitrary and also discriminatory. The petitioner is entitled to receive salary at par with the Government Secretary, and this entitlement stems from Section 4 (8) of the Kerala State Youth Commission Act , 2014 and does not emanate from the Rule 5 of the 2018 Rules as has been erroneously mentioned in Ext.P10 and affirmed by the learned Single Judge. The reasoning in Ext.P10 as well as in the impugned judgment, are thus erroneous and liable to be set aside. 6. Per contra, the learned Senior Government Pleader submitted that the salary and other allowances of the Chairperson and members of the Kerala State Youth Commission are fixed under Rule 5 of the 2018 Rules and that the said Rules had not been given any retrospective operation. Hence, the claim put forth by the petitioner based on Rule 5 cannot be sustained and the petitioner is not eligible to be paid enhanced pay and allowances. The reason stated in Ext.P10 order is thus valid and legal. Ext.P7 judgment has only directed the Government to consider the request of the petitioner and to pay amounts due as provided in the Rules. Insofar as petitioner has no entitlement under the Rules, his claim was considered and correctly declined vide Ext.P10. As regards the Chairperson who succeeded the petitioner, she was granted arrears of salary and allowances as she was holding the office during the enactment of Kerala State Youth Commission Rules, 2018. Hence, the contention that there has been discrimination against the petitioner is incorrect and unsustainable. The learned Government Pleader also pointed to the order GO (Rt) No. 239/2024/S&YA dated 09.10.2024, which was issued in compliance with the interim order dated 03.09.2024 in W.P. (C) No.1779 of 2024. In the said order, too, the claim of the petitioner had been rejected. Hence, the contention that there has been discrimination against the petitioner is incorrect and unsustainable. The learned Government Pleader also pointed to the order GO (Rt) No. 239/2024/S&YA dated 09.10.2024, which was issued in compliance with the interim order dated 03.09.2024 in W.P. (C) No.1779 of 2024. In the said order, too, the claim of the petitioner had been rejected. It is contended that in view of the issuance of the said order, which is later in point of time and on the same subject, the challenge against Ext.P10 made in the W.P. (C) is effectively infructuous. 7. We have heard both sides in detail and have considered the respective contentions put forth. 8. It is trite, as laid down by the Hon'ble Supreme Court in Assistant Excise Commissioner, Kottayam v. Esthappan Cherian and another, (2021) 10 SCC 210 that a Rule or law cannot be construed as retrospective unless it expresses a clear or manifest intention to the contrary. In Esthappan Cherian (supra), the Hon’ble Supreme Court has reiterated the dictum laid down in Commissioner of Income Tax (Central), New Delhi v. Vatika Township Pvt. Ltd., (2015) 1 SCC 1 wherein the Constitution Bench, observed as follows: “31. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow’s backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips vs. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. As was observed in Phillips vs. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of 'fairness’, which must be the basis of every legal rule as was observed in the decision reported in L’Office Cherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties.” (Emphasis added) 9. In the light of the law thus unequivocally laid down by the Hon’ble Supreme Court, the learned Single Judge had correctly and validly concluded that the Rules of 2018 did not have retrospective effect and since the petitioner had occupied the position of Chairman of the Kerala State Youth Commission much before the coming into force of the Rules of 2018, that is during 20.07.2013 to 31.08.2016, he was not entitled to claim arrears of salary and allowances under the 2018 Rules. The tenure of the petitioner having ended way back on 31.08.2016, he cannot have claimed any benefit under the subsequent Rules of 2018. We find the reasoning of the learned Single Judge to be valid and sustainable, thus calling for no interference. As regards the allegation that the petitioner had been discriminated against, insofar as his successor had been granted the benefit of arrears of salary and allowances, the said contention has been defended by the respondents, stating that the successor was holding the office during the enactment of 2018 Rules and hence was entitled to benefits. This contention has not been controverted or denied by the petitioner. Hence, arbitrariness and discrimination alleged by the petitioner have not been substantiated. 10. This contention has not been controverted or denied by the petitioner. Hence, arbitrariness and discrimination alleged by the petitioner have not been substantiated. 10. In view of the above, the judgment dated 15.01.2025 of the learned Single Judge in W.P. (C) No.1779 of 2024 does not call for any interference. The Writ Appeal is dismissed. No costs.