E.K. Vijayamma v. State of Kerala and Kerala Livestock Development Board and Manager, Animal Husbandry Department, Kerala Livestock Development Board Office

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938** **WP(C).No. 20840 of 2014 (D)** **-----------------------------------------** **PETITIONER(S) :** **--------------------------** **E.K.VIJAYAMMA, AGED 59 YEARS, W/O. RAJENDRAN, MANGALATH HOUSE, KALLAMPARAMBU, DHONI.P.O., PALAKKAD DISTRICT.** **BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL)** - **RESPONDENT(S) : ----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO ANIMAL HUSBANDRY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. KERALA LIVESTOCK DEVELOPMENT BOARD, REPRESENTED BY ITS MANAGING DIRECTOR, GOKULAM, PATTOM.P.O., THIRUVANANTHAPURAM-695 004.** **3. MANAGER, ANIMAL HUSBANDRY DEPARTMENT, KERALA LIVESTOCK DEVELOPMENT BOARD OFFICE, DHONI FARM, PALAKKAD- 678 001.** - **R1 BY SR. GOVERNMENT PLEADER SMT. RAJI T.BHASKAR R2 & R3 BY ADV. SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 20840 of 2014 (D)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF LETTER DATED 01-03-2010 ISSUED BY THE 3RD RESPONDENT.** - **P2 TRUE COPY OF APPLICATION DATED 05-03-2010 PREFERRED BY THE PETITIONER.** - **P3 TRUE COPY OF THE GOVERNMENT ORDER NO. GO(P) NO. 87/2011/FIN DTD. THIRUVANANTHAPURAM DATED 28-02-2011.** - **P4 TRUE COPY OF THE GOVERNMENT ORDER NO....GO(P) NO. 325/2013/AD DTD THIRUVANANTHAPURAM DATED 08-11-2013.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R2(A): TRUE COPY OF ORDER NO. PM-B/4362/2000/VOL.III DATED 17.03.2010 ISSUED BY KLD BOARD SANCTIONING RS. 3.5 LAKHS AS GRATUITY TO THE PETITIONER.** **EXHIBIT R2(B): TRUE COPY OF THE ORDER NO. PM-A/955/2010 DATED 27.09.2011 REVISING THE GRATUITY CELLING TO RS. 10 LAKHS, ISSUED BY THE KLD BOARD.** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 20840 of 2014 ----------------------------------------------Dated this the 30[th] November, 2016** ## **JUDGMENT** The prayer in the writ petition is for a direction to respondents 2 and 3 to release the DCRG and other pensionary benefits provided under the Pay Revision Order 2009, which is made applicable to the employees of the 2[nd] respondent Board as per Exhibits P3 and P4 orders, to the petitioner. It is contended by the petitioner that he had retired on superannuation from the service of the 2[nd] respondent Board on 31.3.2010. By Exhibit P3, the State Government had implemented the recommendation of the 9[th] Pay Commission and the pay revision order dated 28.2.2011 was issued to be effective from 1.7.2009. It is submitted that by clause 6 of Exhibit P3, the ceiling limit of DCRG was raised from Rs.3,30,000/- to Rs.7,00,000/- with effect from 1.7.2009. This benefit was applicable to all Government servants as well as pensioners who retired after 1.7.2009 coming under UGC/AICTE/Medical Education Scheme scales of pay. 2. It is submitted that by Exhibit P4 order dated 8.11.2013, the pay revision effected in respect of Government servants by 2 _**WP(C).20840/14**_ Exhibit P3 has been made applicable to the employees of the 2[nd] respondent Board as well. It is, therefore, contended that the petitioner, who retired from service on 31.3.2010, is entitled to be granted the enhanced DCRG as provided in Exhibit P3. 3. Heard learned counsel for the petitioner, learned Government Pleader appearing for the 1[st] respondent and the learned Senior Counsel appearing for respondents 2 and 3. 4. A counter affidavit has been filed on behalf of the 2[nd] respondent contending that going by Rule 69 of Part III of the Staff Rules and Regulations of the Board, the Payment of Gratuity Act, 1962 ('the Act', for short) is made applicable to employees of the Board. During the time of retirement of the petitioner, the maximum gratuity payable under the Payment of Gratuity Act was Rs.3,50,000/-. Accordingly, the said amount was paid to the petitioner as gratuity. It is further contended that Exhibit P3 pay revision order is applicable only to Government employees and the petitioner is governed by Exhibit P4 order issued by the Government in respect of the employees of the Board. It is stated in Exhibit P4 that the Government is pleased to revise the existing scales of pay and allowances of the officers and staff of the Kerala 3 _**WP(C).20840/14**_ ## Livestock Development Board with effect from 1.7.2009 as detailed therein subject to the following conditions: - “ _(I) Stepping up of the scales of pay of any category will not be allowed under any circumstances._ - _(ii) All the rules relating to fixation of pay as per Annexure II of G.O(P) No.85/2011/Fin dated 26/02/2011 should be strictly followed except service weightage. For service weightage, regular service in Kerala Livestock Development Board only will be reckoned._ - _(iii) The date of effect of revision of pay and allowances, Option and Time Bound Higher Grade may be sanctioned as specified in G.O(P) No.85/2011/Fin dated 26/02/2011._ - _(iv) HRA as specified at para 13 of G.O(P) No.85/2011/Fin dated 26/02/2011 may be sanctioned. CCA is admissible as specified at para 15 of G.O(P) No.85/2011/Fin dated 26/02/2011 and it will be limited to employees working in offices situated within city limits. No other allowances than those mentioned above are admissible._ - _(v) Up gradation/Creation/Re-designation of posts (whether full time, part time, temporary, and contract or daily wages) will not be allowed without prior Government sanction._ - _(vi) No person shall be appointed (whether full time, part time, temporary, contract, trainee or daily wages) without a post created validly through a Government order._ - _(vii) Payment of arrears including crediting of arrears to PF account has to be decided by the Board of Directors depending upon the financial position of the Board._ - _(viii) The additional expenditure on account of revision of pay should be met from own fund of the Board. The_ 4 _**WP(C).20840/14**_ _Government will not provide any financial assistance in this regard._ - _(ix) The Managing Director will be held personally responsible for violations in the implementation of pay revision.”_ 5. A table of existing and revised scales of pay is shown in Exhibit P4 order. Further, it is stated that the rules relating to fixation of pay as per Annexure-2 to Exhibit P3 Government order shall be strictly followed except for service weightage. It is pertinent to note that no specific clause relating to enhancement of the amount of DCRG or of any pensionary benefits is provided for in Exhibit P4 order. 6. The 1[st] respondent Government has also filed a counter affidavit wherein it is contended that the gratuity payable to the employees of the 2[nd] respondent is governed by the provisions of the Payment of Gratuity Act and the Payment of Gratuity (Central) Rules, 1972. It is stated that the ceiling limit of gratuity for employees of the Board has been revised as Rs.10,00,000/- with effect from 24.5.2010 consequent on the amendment to the Act. It is further stated that the provision regarding enhancement of gratuity as contained in Exhibit P3 has not been made applicable to the employees of the 2[nd] respondent Board and that the 5 _**WP(C).20840/14**_ petitioner was entitled only to draw the benefits as provided in Exhibit P4 order. 7. Learned counsel for the petitioner would place reliance on the decision of the Apex Court in _**Allahabad Bank v. All India Allahabad Bank Retired Employees Association**_ [2010(1) KLT SN 17 (C.No.20) SC] to contend that the pensionary benefits would include payment of pension as well as gratuity. The petitioner, therefore, contends that since Exhibit P4 order provided for revision of pay scales and consequent revision of pension, the enhancement of the maximum limit of gratuity should also be read into Exhibit P4. Therefore, the petitioner would be entitled to all benefits thereof. Relying on another decision of the Apex Court in _**Beed District Central Cooperative Bank Ltd. v. State of Maharashtra**_ [(2006)8 SCC 514], it is further contended that the Apex Court has held that more beneficial scheme vis-a-vis the limit prescribed in the Act has to be taken as a whole and the workmen should be deemed to have opted for the entire scheme and not on a piecemeal basis. Relying on paragraph 14 of the judgment of the Apex Court, the learned counsel for the petitioner contends that _**WP(C).20840/14**_ 6 all the benefits contained in Exhibit P3 should have been made applicable to the employees of the 2[nd] respondent Board also by Exhibit P4 and the piecemeal application is not warranted. 8. The learned counsel appearing for the 2[nd] respondent would argue that the employees of the Board are not governed by the limit of DCRG applicable to Government employees or the revision thereof, since the law applicable is the Payment of Gratuity Act. It is contended that the 2[nd] respondent is an organisation governed by the provisions of the Act. The amount of gratuity that could have been paid to the petitioner, who retired from service on 31.3.2010, going by the provisions of the Act, was Rs.3,50,000/-. This amount has already been paid to the petitioner. The only question which remains for consideration is whether the maximum amount of gratuity which was Rs.3,30,000/- in respect of the State Government employees and which has been enhanced to Rs.7,00,000/- as per Exhibit P3 order, can be made applicable to the employees of the 2[nd] respondent by Exhibit P4 order. 9. I have considered the contentions advanced as well as the pleadings and materials on record. I have also anxious _**WP(C).20840/14**_ 7 consideration to the contents of Exhibit P4 order to examine whether the conditions with regard to enhancement of gratuity as has been provided in Exhibit P3, is made applicable to the employees of the 2[nd] respondent. It is noticed that Exhibit P3 has not been made applicable in its entirety to the employees of the 2[nd] respondent. The Government has considered the resolution of the meeting of the Board of Directors held on 17.6.2011 to revise the scales of pay and other benefits of staff and officers of the 2[nd] respondent Board with effect from 1.7.2009. After examining the matter, the Government held that the existing scales of pay and allowances of the officers and staff of the 2[nd] respondent shall be revised with effect from 1.7.2009 as detailed in Exhibit P4 order and subject to the conditions provided therein. The details of the existing and revised scales of pay are given in the table appended to Exhibit P4. The conditions with regard to the payment and the rules relating to fixation as per Annexure-2 to Exhibit P3 have also been specifically made applicable. Further conditions are also contained in Exhibit P4. On a reading of Exhibit P4 it is clear that the enhancement of the amount of gratuity from Rs.3,30,000/- to Rs.7,00,000/- in the case of Government servants has not been _**WP(C).20840/14**_ 8 made applicable to the employees of the 2[nd] respondent by Exhibit P4 order. This is because the limit of Rs.3,30,000/- as the maximum amount of gratuity as in the case of Government servants was not applicable to the employees of the 2[nd] respondent Board, since they were governed by the provisions of the Act, where the maximum limit of gratuity was Rs.3,50,000/-. In the above view of the matter, the employees of the 2[nd] respondent Board, who are governed by the provisions of the Act would be entitled to revision of the maximum amount of gratuity only with effect from the date of amendment of the said Act, i.e., 24.5.2010. The petitioner, who had been retired on 31.3.2010, would not be entitled to the said benefit. The further contention raised by learned counsel for the petitioner that the revision of pay and allowances would take in the revision of DCRG also does not appeal to reason in view of the fact that allowances as stated in Exhibit P4 can only be additions to the pay of an employee and cannot take in his DCRG which is governed by the provisions of the Act. In the above view of the matter, I am of the opinion that the decisions cited by learned counsel for the petitioner have no 9 _**WP(C).20840/14**_ application in the facts and circumstances of the instant case. In view of the fact that there is no specific enhancement of the limit of gratuity made applicable to the employees of the 2[nd] respondent Board as per Exhibit P4, the petitioner would be entitled to only for maximum gratuity as provided under the Act. The writ petition is, therefore, fails. The same is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs31/11_