Retrospective amendments cannot adversely affect accrued rights to pension benefits without due justification.

Headnote:
Pension - Writ Petitions - Kerala Service Rules - Rule 14E - Court held that service cannot be disregarded due to retrospective amendments.
Fact of the Case:

Thirty-nine writ petitions challenged the interpretation of pension entitlement after amendments to Rule 14E of the Kerala Service Rules, particularly concerning the counting of service rendered in aided colleges against leave vacancies before permanent absorption.
Finding of the Court:

The court found merit in the petitioners' arguments that the interpretation of 'regular' service was unjust and contrary to prior judicial decisions, ultimately ruling that the retrospective effects of the notification were unconstitutional.
Issues: Whether the amendment in Rule 14E of KSR unlawfully excluded periods of service rendered prior to retirement from pensionary benefits.
Ratio Decidendi: The court determined that the exclusion of service based on amended terms introduced retrospectively undermined the rights of employees who had accrued benefits under previous rules.
Final Decision: Allow the writ petitions and strike out the term 'regular' from the relevant clause of Rule 14E.

JUDGMENT

[WP(C).1033/2020, WP(C).37075/2017, WP(C).37448/2017, WP(C).6804/2018, WP(C).10302/2018, WP(C).13210/2018, WP(C).13925/2018, WP(C).29294/2018, WP(C).30370/2018, WP(C).30805/2018, WP(C).33401/2018, WP(C).33502/2018, WP(C).34150/2018, WP(C).34244/2018, WP(C).39740/2018, WP(C).21514/2019, WP(C).24113/2019, WP(C).24121/2019, WP(C).24755/2019, WP(C).24987/2019, WP(C).26033/2019, WP(C).31509/2019, WP(C).31949/2019, WP(C).32979/2019, WP(C).960/2020, WP(C).1235/2020, WP(C).15193/2020, WP(C).15404/2020, WP(C).16485/2020, WP(C).23294/2020, WP(C).23416/2020, WP(C).23783/2020, WP(C).23808/2020, WP(C).26553/2020, WP(C).27081/2020, WP(C).27465/2020, WP(C).27519/2020, WP(C).6213/2021, WP(C).6657/2021]

Dated this the 18th day of March 2021 This order of mine shall dispose of thirty nine writ petitions, whereby common question of facts and law involved. The grievance of the petitioners are that by virtue of an amendment in Rule 14E of Part III, Kerala Service Rules (KSR), introduction of contions though are not aggrieved, “except” the expression 'Regular' in clause (b)(i) in Rule 14E.

2. All the petitioners had initially joined as Junior lecturers after undergoing the regular selection process in the aided colleges against leave vacancy and later became permanent. The interpretation of condition No.(i) by the respondent for the purpose of determination of the pension is the core issue, which has given a cause for them to approach this Court. The expression 'regular' if read with the explanatory note and previous orders of the Government passed from time to time, there would not have any impediment in claiming the benefit of the services rendered prior to their absorption on permanent basis. The cause of action accrued only when legislators in their wisdom caused an amendment in the Rule, aforementioned, vide notification dated 28.8.2009, which has been made operative with retrospective effect from 30th July, 1979. Even that amendment would not have effected the petitioners except that the respondents are interpreting by giving a different tinge and colour in rejecting the case of pensionary benefits for consideration of the past service ,being, not the regular one. The aim and object of the notification was to give the benefit but taken away the same by passing an order dated 9th of May 2016 and 5th of August 2016. The aforementioned orders have given a tool to the Government in rejecting the request of the petitioners.

3. The objection of the State viz-a-viz the interpretation of the Rule already being upheld by the Division Bench of this Court would not come as an impediment for adjudication of the present writ petition for the simple reason that it was a case of the employees of the unaided colleges and there was no challenge to the vires. Though clause (a) of Rule 14E of Part III, KSR do not make any hindrance for the purpose of giving the benefit of pensionary benefits, realizing the ambiguity the Government only on 10th August 2018 imposed similar conditions in clause (b) without “retrospective effect”. It is an attempt to overcome the findings of the Division Bench, which is totally illegal, as in the judgment of this Court reported as Shameer Ali E vs Deputy director of Collegiate Education and others (2018 (3) KLT 925), it was clarified that for the purpose of aided schools, service put in Government college, prior to enterering in Government service will be effected without any statutory reservation. It is settled law that the rules of the games cannot be changed with retrospective effect though there is no bar of its applicability, prospectively. Otherwise, it would amount to usurpation of power under Article 309 of the Constitution of India. In other words, the benefits already acquired cannot be taken with a drop of a hat. In support of the aforementioned contentions learned counsel for the petitioners has relied upon the decisions reported in [1986 (Supp) SCC 584] T.R Kapur and others v. State of Haryana and Others), Ex. M

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