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1995 Supreme(J&K) 12
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.A. Khan, J.
Kamal Kishore - Appellant
Versus
State & Ors. - Respondent
SWP No. 1253/1993
Decided On : 20 February, 1995
Advocate For Appellant: M.P. Sharma
Advocate For Respondent: H. Rehman
Advocate For Respondent: P.S. Chandel
Accrued rights and benefits vested cannot be taken away by an amendment to rules retrospectively.
Headnote:
Accrued Rights - Pay-scale Reduction - The court held that the accrued rights and benefits vested cannot be taken away by an amendment to rules retrospectively. The petitioner's right to draw salary in a higher pay-scale could not be tampered with or taken away by the retrospective operation of the rule.
Fact of the Case:
The petitioner was appointed as a Draftsman in the pay-scale of Rs. 1600-2660 but was later told to draw the salary in the scale of Rs. 1200-2040 due to an amendment in the pay revision rules ordered retrospectively by SRO-174 of 1992.
Finding of the Court:
The court found that the petitioner's accrued rights to the higher pay-scale could not be taken away by the retrospective operation of the rule, and directed the respondents to allow the petitioner to draw his salary in the original pay-scale of Rs. 1600-2660.
Issues: The main issue was whether the benefit that had accrued to the petitioner by being appointed to a higher pay-scale could be taken away by a subsequent amendment in the pay revision rules ordered retrospectively by SRO-174 of 1992.
Ratio Decidendi: The court relied on established legal principles that accrued rights and benefits vested cannot be taken away by an amendment to rules retrospectively, and that the scale in which the petitioner was appointed becomes his condition of service which cannot be taken away at his back by the retrospective operation of any rule.
Final Decision: The court held that the SRO-174 of 1992 cannot be applied to the petitioner for reducing his pay-scale and directed the respondents to allow the petitioner to draw his salary in the pay-scale of Rs. 1600-2660 in which he was originally appointed.
2. Petitioner feels aggrieved of the impugned action and has filed this petition challenging it on the only ground that since he had been placed in the pay-scale of Rs. 1600-2660 prior to the promulgation of SRO-174 of 1992, his salary could not have been reduced by the said SRO and upon a retrospective operation.
3. In their objections, respondents have taken a routine stand trying to interpret the terms of SRO-174 and have explained that various administrative departments had contravened its terms by inviting applications for various posts necessitating a circular dated 24.12.1993 issued by the Finance Department, clarifying the position.
4. The short point that comes up for consideration is: Whether the benefit that had accrued to the petitioner by having been appointed to a higher pay-scale could be taken away by a subsequent amendment in the pay revision rules ordered retrospectively by SRO-174 of 1992?
5. There is no dispute that the petitioner was appointed as Draftsman in the pay-scale of Rs. 1600-2660 pursuant to the selection by SSRB. It also goes undisputed that Recruitment Board had invited applications for the post in the same scale. It is also a common ground that the petitioner had been drawing salary in this scale till July 1993. Therefore, it does not appeal to any reason or logic that his pay-scale could have been reduced by an amendment carried in the revised pay rules of 1992 by virtue of SRO-174 (Supra which was retrospectively put in operation from 30.3.1992).
6. It is well settled that the accrued rights and the benefits vested cannot be taken away be amendment to rules retrospectively. It is true that rules can be made and given retrospective operation but so long as the same do not militate against the vested rights of those affected. I derive support for this from a number of judgments of the Supreme Court but to avoid burdening this judgment, ratio of only one or two needs to be reiterated.
7. In 1984 (2) S.L.J. 55, the Apex Court observed as under:-
"The accrued rights cannot be taken away by making amendment of the rules by retrospective effect".
The - Supreme Court laid down similar proposition in L.C. Singhal Vs. D. General (AIR 1972 S.C. 628) holding:
"Government has no power to alter or modify the conditions of service of a Government servant with retrospective effect to the prejudice of such Government Servant."
A Constitution Bench of the Apex Court went a step further in State of Gujrat Vs. Ram Lal (1983 (2) SCC 33) by observing: ¢
"We are concerned with todays rights and not yesterdays. A legislature cannot legislate today with reference to the situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of 20 years. That would be most arbitrary, unreasonable and a negation of history..........The law which, if made today, would be plainly invalid as offending constitutional provisions in the context of existing situation and it could not become valid by being made retrospective".
Regard being had to the fact that the petitioner was offered appointment in pa
