Gujarat High Court
Jitendra Prasad Shaw vs National Dairy Development Board on 9 July, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9497/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9497 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowedNO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy ofNO
the judgment ?
4 Whether this case involves a substantial question ofNO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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JITENDRA PRASAD SHAW....Petitioner(s)
Versus
NATIONAL DAIRY DEVELOPMENT BOARD....Respondent(s)
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Appearance:
MR MAULIK J SHELAT, ADVOCATE for the Petitioner(s) No. 1
VIRAL K SHAH, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/07/2015
CAV JUDGMENT
1. By this writapplication under Article 226 of the Constitution of India, the petitioner a retired employee of the National Dairy Development Board, has prayed for the following reliefs: Page 1 of 21 C/SCA/9497/2013 CAV JUDGMENT "[A] The Honourable Court be pleased to issue a writ of Mandamus or any other appropriate writ order or direction by declaring action of respondent for none granting regular wages as per National Dairy Development Board Officers (Appointment, Pay and Allowances) (Amendment) Regulations, 2006 and benefits under Voluntary Retirement Scheme to petitioner as illegal, arbitrary, capricious, contrary to regulation and violative of Article 14 of the Constitution of India.
[B] The Honourable Court be pleased to issue of a writ of Mandamus or any other appropriate writ order or direction by holding that the petitioner is entitled to all benefit as set out in the Voluntary retirement scheme as given to other regular employee and be further pleased to direct the respondent authorities to give difference of wages as quantified at AnnexureH in the interest of justice with reasonable rate of interest from 30072007 till payment.
[C] Pending hearing and final disposal of the present petition the Honourable Court be pleased to direct the respondent to consider the representation dated 14/02/2011 after giving opportunity of hearing to the petitioner in the interest of justice.
[D] Any other and further order that this Honourable Court may deem fit be passed, in the interest of justice."
2. The facts giving rise to this writ application may be summarized as under:
3. The petitioner was appointed as a Senior General Manager by the respondentBoard vide appointment letter dated 12th December, 2005. The appointment was on contract basis for a period of five years. The terms and conditions of the appointment as laid down in the appointment letter dated 12th December, 2005 are as under: Page 2 of 21 C/SCA/9497/2013 CAV JUDGMENT "1.1 You shall be paid Rs.35,000/ (Rupees Thirty Five Thousand Only) as consolidated contractual consideration per month with an increase of Rs.3000/per annum.
1.2 You shall also be paid Rs.15000/ per annum as Medical Reimbursement on quarterly basis, besides Rs.900/ per month as Professional Development Allowance as per NDDB Rules.
1.3 You will be reimbursed insurance premium for selfonly upto a medical insurance ceiling of Rs.1.5 lakh and Taxperquisite as per rules of NDDB.
1.4 You will be provided with accommodation on the Campus at Anand for which a sum of Rs.9057/ per month would be recoveredfrom your contractual consideration as house rent deduction.
1.5 You will be eligible to avail leave and LTC benefits as per the relevant rules of NDDB.
1.6 You shall be entitled to Provident Fund as admissible under the rules and regulations of NDDB.
1.7 You will be provided with a Car your personal use upto 500 kms per month as per the policy of NDDB. For this facility a sum of Rs.300/ per month shall be recovered from your contractual consideration. To direct this vehicle you may appoint a Driver of your choice for which a maximum of Rs.2000/ per month would be reimbursed to you.
1.8 You shall not be entitled to any other benefits admissible to the regular employees of NDDB nor will you make any claim from NDDB, than those specified herein during or at the end of the contractual assignment.
1.9 You shall have to make a declaration of .....and secrecy in the format enclosed.
2.0 You will, subject to the norms herein contained, be governed by the rules and regulations of NDDB, for the time being in force, including those falling under the National Dairy Development Board Act, 1987, relating to conditions of service as are applicable to you.
3.0 While in the services of NDDB, or at any time thereafter, you shall not divulge any information or knowledge gained by you during your services Page 3 of 21 C/SCA/9497/2013 CAV JUDGMENT with NDDB or at any time thereafter, which would be detrimental to the interests of the NDDB.
4.0 You shall not take up any employment elsewhere (as part time or otherwise during your service with NDDB.
5.0 You shall have to give three month's notice in writing or make payment of an amount equivalent to three month's contractual consideration in lieu thereof, if you desire to leave the services of the NDDB during the tenure of this assignment. NDDB may also likewise terminate your services by giving three month's notice or three month's contractual consideration in lieu thereof.
6.0 You are requested to report for duty to the Managing Director at NDDB, Anand on or before 31.01.2006."
4. It appears that vide office order dated 21st November, 2008, the respondentBoard revised the pay scale of its employees. The revised pay scale were made effective from 1st January, 2006. It is the case of the petitioner that although at the time of his appointment he was assured by the board that he would not be discriminated with the other employees of the Board, yet the benefit of the 6th Pay Commission recommendation were denied to him. The petitioner, therefore, addressed a representation dated 19th January, 2009 to the Chairman of the Board requesting to release the benefits in terms of the recommendation of the 6th Pay Commission.
5. The petitioner was informed vide communication dated 11th May, 2009 that his salary which was fixed to the tune of Rs.35,000/ at the Page 4 of 21 C/SCA/9497/2013 CAV JUDGMENT time of his appointment was enhanced to Rs.55,000/ w.e.f. 1st April, 2009.
6. It appears that by way of a Notification dated 4th May, 2006 an amendment was made. The Notification reads as under: "Notification New Delhi, the 4th May, 2006 The National Dairy Development Board Officers (Appointment, Pay and Allowances) (Amendment) Regulations, 2006 No.DEL:NDDB. - IN the exercise of the powers conferred by Section 48 of the National Dairy Development Board Act, 1987 (37 of 1987), the Chairman performing the functions of the Board of Directors in accordance with Section 11(2) of the said Act, hereby makes the following regulations, namely:
1. Short title and commencement :
(1) These regulations may be called the National Dairy Development Board Officers (Appointment, Pay and Allowances) (Amendment) Regulations, 2006. (2) Save as otherwise provided in these regulations, the provisions thereof shall come into force on the date of their publication in the Gazette of India.
2. Amendment to the National Dairy Development Board Officers (Appointment, Pay and Allowances) Regulations, 1988:
(1) In subregulation 3, the following definition may be inserted after definition of "temporary officer", thus: (ya) "Fixed Term Employment Officer" means a workman who is engaged on the basis of contract of employment for a fixed period. However, his working hours, salary, allowances and other benefits shall not be less than that of a permanent Officer. He shall also be eligible for all statutory benefits available to a permanent Officer proportionately according to the period of service rendered by him even though his period of employment does not extend Page 5 of 21 C/SCA/9497/2013 CAV JUDGMENT to the qualifying period of employment required in the statute.
The following subregulation may be inserted after subregulation 18, thus:
18A. Termination of service of Officer appointed on fixed term No Officer appointed on fixed term employment basis as a result of nonrenewal of contract of employment or on its expiry, shall be entitled to any notice or pay in lieu thereof, if his services are terminated."
7. A corrigendum was issued substituting the word "workman" in the amended regulation with the word "officer". The Corrigendum reads as under: "NATIONAL DAIRY DEVELOPMENT BOARD CORRIGENDUM New Delhi, the 1st June, 2006 Corrigendum in respect of English version of the National Dairy Development Board Officers (Appointment, Pay and Allowances) (Amendment) Regulations, 2006 notified in the Gazette of India, Part III - Section 4(Extraordinary) No.75, dated May 4, 2006/Vaisakha 14, 1928 (page No.3) Description As appeared in the May be read as Gazette Clause, No.2(1) Workman Officer (ya)in first line after the words "means a"
AMRITA PATEL, Chairman [ADVT.III/IV/132/2006Exty.]"
8. Thus it appears that the definition of the "Fixed Terms Employment Officer" was inserted after the definition of the "temporary officer".
Page 6 of 21 C/SCA/9497/2013 CAV JUDGMENTIt is the case of the petitioner that although he was appointed on contract basis, yet in view of the amendment referred to above, he would fall within the definition of a "Fixed Term Employment Officer" and therefore he was eligible for all the statutory benefits available to a permanent officer in proportion with the period of service rendered by him.
9. It is the case of the petitioner that he was not given the benefits of the amended regulation referred to above thereby causing huge monetary loss.
10. The respondentBoard vide circular dated 10th May, 2010 introduced a voluntarily retirement scheme, 2010 and invited applications from its employees interested to seek the voluntarily retirement. In pursuance to such scheme, the petitioner applied for voluntarily retirement by an application dated 22nd May, 2010, which came to be accepted by the Board on 31st May 2010, and the petitioner was ordered to be relieved from service w.e.f. 16th July, 2010.
11. It appears that over and above the grievance of the petitioner that he was not treated as a "Fixed Term Employment Officer" as defined under the amended regulations he has raised issues with Page 7 of 21 C/SCA/9497/2013 CAV JUDGMENT regard to the benefits which he was otherwise entitled to receive under the voluntarily retirement scheme. For redressing such grievance, it appears that he had approached the Supreme Court directly by filing a writpetition (Civil No.349/2011). The writpetition was not entertained by the Supreme Court and was dismissed as withdrawn with liberty to file an appropriate application before the High Court.
12. The petitioner has therefore, come up with the present application.
13. On notice being issued the respondentBoard appeared and filed its affidavitinreply opposing the writapplication. I may quote few relevant paras of the affidavitinreply as under: "3. At the outset, I say and submit that the present petition is not legally maintainable under Article 226 of the Constitution of India and the same deserved to be dismissed on this ground alone. I further say and submit that the petitioner had ealier filed Writ Petition (Civil) No.349 of 2011 before the Honourable Supreme Court of India by invoking jurisdiction of the Hon'ble Supreme Court of India and later on the same was withdrawn by the petitioner on 29th August, 2011, and therefore, the present petition is not maintainable and is required to be dismissed. I say and submit that the petition had also filed the present petition after long period on 13th April, 2013, after he withdrew the Writ Petition filed by him before the Hon'ble Supreme Court on 29th August, 2011, and therefore, on the ground of delay and latches, this petition is required to be dismissed. I say that the reasons cited for the delay Page 8 of 21 C/SCA/9497/2013 CAV JUDGMENT in filing the present petition of the illness of his wife is not proper and the petitioner has tried to take sympathy of this Hon'ble Court by citing this reason.
4.1. I say and submit that the petitioner was appointed as Senior General Manager on Contract Basis for a period of five years from the day on which he report for his duty on total consolidated contractual consideration of Rs.35,000/ per month with an increase of Rs.3,000/ per annum and Rs.1500/ per annum as Medical Reimbursement on quarterly basis and Rs.900/ per month as professional Development Allowance vide appointment letter dated 12th December, 2005. I say and submit that the petitioner has never been appoint as regular and/or permanent employee of the Board and the petitioner is not entitled to get any benefits, which the regular and / or permanent employee of the respondent board is entitled. It is respectfully submitted that the appointment of the petitioner is purely on contract basis for a period five year only. It is material and vital to note that the petitioner has with malafide and oblique motive has not utter single word in respect of the Condition No.1.8 of his appointment letter dated 12th December, 2005 at Annexure A at running Page No.14, which is reproduced herein below.
"1.8. You shall not be entitled to any other benefits admissible to the regular employees of NDDB nor will you make any claim from NDDB than those specified hereing during or at the end of the contractual assignment."
I say and submit that the plain reading of Condition No.1.8 makes it clear that the petitioner is not entitled to get any other benefits admissible to the regular employees of the Board and he shall not make any such claim from the Board than those specified in the appointment letter during or at the end of the contractual assignment. Thus, the petitioner has deliberately suppressed this material and vital condition of his appointment letter and has tried to mislead this Hon'ble Court, and therefore, the present petition is required to be dismissed with costs on this very ground alone.
4.2 I further say and submit that in view of the Condition No.1.8 of the appointment letter, the petitioner being appointed purely on contract basis, is not entitled to get any benefits as claimed by him and calculated by him at Annexure - H, running page No.31.
Page 9 of 21 C/SCA/9497/2013 CAV JUDGMENT4.3 I say and submit that the petitioner is not regular and/or permanent employee of the respondent Board and he being appointed purely on contract basis, is not entitled to get any benefits of 6th Pay Commission and the reliance place by him on the office order dated 21st November, 2008 of the respondent board at Annexure - B, Running Page No.15 is not applicable to him in any way.
4.4 I say and submit that the petitioner has made representation for getting the benefits of sixth pay commission by his letter dated 1912009 at Annexure
- C at running Page No.17. The representation of the petitioner itself makes is clear that the authorized and competent authority has clearly informed him that he is not entitled to get benefits of 6th pay commission as his appointment is only on contract basis and more particularly nothing has been mentioned about rise in salary or applicability of sixth pay commission. I say and submit that the petitioner has made complete false and frivolous representation by his letter dated 19012009 and no promises have been given to him as alleged by him in it.
4.5 I say and submit that the respondent board had enhanced the contractual consideration and the petitioner's contractual consideration is modified and enhanced to Rs.55,000/ per month with effect from 1042009 as mentioned in his appointment letter dated 12th December, 2005 and all the terms and conditions of the appointment letter dated 12th December, 2005 are agreed to be same as referred in the said letter. I say and submit that the respondent has also accepted the same by putting his signature on the second copy thereof.
Annexed hereto and marked as ANNEXURE R1, is the copy of letter dated 11th May, 2009, which was given by the petitioner for acceptance of contractual enhancement to the extent of Rs.55,000/ per month and also for acceptance of all terms and conditions mentioned in the appointment letter dated 12th December, 2005.
4.6 I say and submit that the petitioner has placed reliance on the Notification dated 4th May, 2006 and dhas contended that he falls within the definition of 'Fixed Term Employment Officer', and therefore, his working hours, salary, allowances and other benefits shall not be less than that of a permanent officer. I say and submit that the said notification is not applicable to the petitioner in view of the fact that the appointment of the petitionerwas made in December Page 10 of 21 C/SCA/9497/2013 CAV JUDGMENT 2005 and the petitioner joined the services in January 2006 much before the Notification regarding the "Fixed Term Employment Officer" was notified. Moreover, the appointment of the petitioner was purely on contractual basis and in no terms can be construed as employment in reference to the Notification cited above.
4.7 I say and submit that the respondent board had declared Voluntary Retirement Scheme - 2010 and the petitioner had made an application for voluntary retirement on 22nd May, 2010 and the same was accepted by the respondent board vide its letter dated 31st May, 2010 and accordingly, the petitioner was relieved from his services from 1672010 after office hours. I say and submit that as per the retirement scheme, respondent board has paid Rs.6,45,824/ to the petitioner more particularly mentioned at running page 29.
4.8 I say and submit that the respondent board has rightly calculated the eligible amount and has rightly paid the amount to the petitioner and the petitioner is not entitled to get benefits as claimed and calculated by him at Annexure - H running page No.31.
4.9 I say and submit so far additional monthly benefit till the notional date of superannuation of the petitioner is concerned, the petitioner being appointed on contract basis for a period of five years, the payment towards additional monthly benefit could be made only up to expiry of his contract i.e. January, 2011 and the petitioner is not entitled to the benefit till September, 2011.
4.10 I say and submit that contractual period of five years of the petitioner commenced from 25012006 (date of jointing) and it came to be expired on 24 012011 and the petitioner was relieved from his service from 16072010 on being he accepted voluntarily retirement scheme. It is, therefore, clear that the contractual period of five years of the petitioner have not been completed and he has been relieved prior to the contractual period, and therefore, the petitioner is entitled to get benefits of voluntarily retirement scheme at the most up to expiry of his contractual up to 2412011 and not beyond the said period up to September, 2011 as claimed by him. I say and submit that notional date of superannuation of the petitioner is 24012011 as the petitioner was given the appointment only for five years and it was to expire on 24012011.
Page 11 of 21 C/SCA/9497/2013 CAV JUDGMENT4.11 I say and submit that the petitioner has not completed his contractual period of five years but has obtained voluntarily retirement prior to it, and therefore, the petitioner is entitled to get additional monthly benefit and gratuity at the rate of Rs.48,000/ and the petitioner is not entitled to get additional monthly benefit and gratuity at the rate of Rs.58000/ as alleged by him. I say and submit the petitioner continued with the respondent board till the end ofhis contractual period up to 24 12011, he would have got Rs.3,48,000/ towards his salary for remaining months and gratuity Rs.1,67,808/ and total accrued amount would have been Rs.5,15,808/ but as the petitioner had taken voluntarily retirement prior to the completion of his contractual period, he is not entitled to get the benefits as claimed by him at Annexure - H and also in his representation. I say that in fact, the respondent board had paid an additional amount of Rs.1,20,192/ to the petitioner, which the petitioner is not entitled to get from the respondent.
5.2 With reference to Para 4 and 4, I respectfully say and submit that the petitioner is appointed on contract basis and his appointment is not as permanent and/or regular employee, and therefore, question does not arise to give any benefits of regular employee more particularly sixth pay commissionl. I say and submit that no assurance has been given to the petitioner as alleged by the petitioner. It is denied that the petitioner has been treated discriminately. I say and submit that the petitioner being appointed on contract basis is not entitled to get benefits of permanent officer as alleged by him under the definition of 'fixed termed employment officer'. I say that contentions raised in these paras have been answered herein above in detail, and therefore, the same are not repeated herein."
14. By way of an additional affidavit, the respondent made the following averments: "1. In reply to the query, the deponent states that the petitioner herein was appointed as Senior General Manager in the respondent organization and his appointment was floated under Chapter - II of the National Dairy Development Board Officers (Appointment, Pay and Allowances) Regulations, 1988.
Page 12 of 21 C/SCA/9497/2013 CAV JUDGMENT2. I state that except the petitioner, no other officer, who was appointed on contractual basis, opted for obtaining and taking the benefits of Voluntary Retirement Scheme, and therefore the question of extending any benefits, as prayed by the petitioner to such officers will not arise.
3. I further state that to make a long story short, the petitioner is claiming benefits because of the amendment, which was notified in the notification published on 452006. As the petitioner had entered into contract with the respondent on 1152009 by which he had accepted to adhere to those terms and conditions, which were in force while appointing him i.e. on 12122005, it is respectfully urged to dismiss the petition, with cost.
In view of the aforesaid facts, it is requested to dismiss the petition with cost."
15. Mr. Maulik Shelat, the learned advocate appearing for the petitioner vehemently submitted that his client has been wrongly denied the benefit of the amended regulation, 2006 by which the definition of a "Fixed Terms Employment Officer" came to be added. He submitted that the amended definition includes an officer engaged on the basis of contract of employment for a fixed period. He submitted that the newly inserted definition makes it clear that the working hours, salary, allowances and other benefits of the officer engaged on the basis of contract would not be less than that of a permanent officer. He submitted that in such circumstances, his client is entitled to receive the salary according to the revised pay scale which a permanent officer of the Board would be entitled to receive. Mr. Shelat, invited my attention to Annexure 'H', Page 13 of 21 C/SCA/9497/2013 CAV JUDGMENT which is a chart showing the difference in the salary.
16. Mr. Shelat submitted that apart from the issue of treating the petitioner at par with a permanent officer of the Board the petitioner has been denied the benefits which accrued from the voluntarily retirement scheme. He submitted that the clause 2(1)(E) provides for the Exgratia amount and subclauseII of the said clause 2(1) (E) provides for the additional monthly benefit, wherein it is provided that if the age on the date of relieving from service is 58 years and above, the employee would be entitled to 100% of his basic pay. He submitted that according to the original contract, the period of service was for five years which commenced from 25th January, 2006 and came to an end on 25th January, 2011 and the petitioner was relieved on 16th July, 2010. He submitted that the balance service till the notional date of superannuation was of more than six months. He submitted that considering the last contractual consideration at the rate of Rs.58,000/ per month the petitioner was entitled to get the benefit of the additional monthly benefit of Rs.58,000/ instead of Rs.48,000/ as calculated and paid by the respondent. He submitted that his client was also entitled for gratuity but the same was overlooked.
Page 14 of 21 C/SCA/9497/2013 CAV JUDGMENT17. Mr. Shelat however, clarified one thing that all the benefits referred to above were being claimed as if the petitioner was to be treated at par with the other employees who were permanent officers.
18. Mr. Viral K. Shah, the learned advocate appearing for the respondentBoard vehemently opposed this writapplication. Mr. Shah submitted that the petitioner is not entitled to any of the reliefs prayed for in this writapplication. He submitted that the entire claim of the petitioner based on the amended regulations, 2006 of the Board is misconceived and not tenable in law. Mr. Shah clarified that the appointment of the petitioner was purely on contract basis and that to on fixed terms and conditions as prescribed in the appointment letter. He submitted that the petitioner was appointed in the year 2005 under Chapter II of the National Dairy Development Board Officer (Appointment, Pay and Allowances) regulations, 1988. He submitted that the notification which is relied upon is of the year 2006 that is prior to the appointment of the petitioner.
19. Mr. Shah submitted that the complaint of the petitioner regarding depriving him of the Page 15 of 21 C/SCA/9497/2013 CAV JUDGMENT benefits of the voluntarily retirement scheme is also not well founded and absolutely baseless. He submitted that the petitioner was relieved from service w.e.f. 16th July, 2010. After a period of about one year he directly approached the Supreme Court seeking the reliefs prayed for in this writapplication. The Supreme Court declined to entertain such writpetition and permitted the petitioner to withdraw the same with a liberty to file an appropriate writapplication before the High Court. Mr. Shah submitted that after a period of two years thereafter he filed the present writapplication.
20. Mr. Shah, prays that there being no merit in this writapplication, the same be rejected.
21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to any of the reliefs prayed for in this writapplication.
22. The following facts are not in dispute.
(a) The petitioner was appointed as a Senior General Manager in the respondentBoard on contract basis for a period of five years. One of the terms and conditions of the contract provided Page 16 of 21 C/SCA/9497/2013 CAV JUDGMENT that he would be paid Rs.35,000/ as a consolidated contractual consideration per month with an increase of Rs.3000/ per annum.
(b) The appointment letter makes it clear that the petitioner would not be entitled to any other benefits admissible to the regular employees of the Board.
(c) The petitioner was appointed on 12th December, 2005 whereas the notification regarding the amendment in the Regulations, 2006 on which strong reliance is being placed is dated 4th May, 2006.
(d) Even after the Notification dated 4th May, 2006, the petitioner did not raise any issue as regards his salary allowances and other benefits to be paid at par with that of a permanent officer although a fixed term employment officer was to be treated as eligible for all statutory benefits available to a permanent officer.
(e) On 11th May, 2009, there was enhancement in the remuneration of the petitioner. The monthly remuneration was enhanced to Rs.55,000/ per month and while issuing such order, it was made clear that the other terms and conditions would remain the same as referred to in the appointment Page 17 of 21 C/SCA/9497/2013 CAV JUDGMENT letter dated 12th December, 2005. Even at that stage, the petitioner did not raise the issue regarding applicability of the Notification, 2006. He had willingly accepted the enhancement in his salary.
23. It appears that the petitioner was the only officer appointed on contractual basis to have opted for the benefits of the voluntarily retirement scheme. Even at that stage, the issue raise in this writapplication was not raised.
24. The Board accepted the request of the petitioner for voluntarily retirement and the petitioner was relieved from the services of the Board on 16th July, 2010.
25. Rs. 6,45,924/ was deposited towards the final settlement of payment under the voluntarily retirement scheme in the S.B. Account of the petitioner with Bank of Baroda.
26. On 14th February, 2011, the petitioner for the first time raised certain issues regarding the benefits of the voluntarily retirement scheme even at that point of time he had not raised the issue of Notification, 2006.
27. On 17th March, 2011, it was explained to the Page 18 of 21 C/SCA/9497/2013 CAV JUDGMENT petitioner by the Board that the request of the petitioner regarding continuation of the additional monthly benefit till the notional date of superannuation was rejected as the petitioner's appointment was contractual for a period of five years and the payment towards additional monthly benefit could be made only up to the expiry of the contract that is January, 2011.
28. On the other issue like gratuity the petitioner was informed by the Board in the following words: "Regarding point number 2 of your letter, we wish to inform you that had you continued in NDDB till the end of your contract, you would have got Rs.3,48,000/ towards your salary for remaining months and the Gratuity i.e. Rs.1,67,808. The total accrued amount accordingly would have been Rs.5,15,808/. In accepting your VRS application, NDDB has paid you exgratia i.e. Rs.3,48,000/ (equivalent to your salary for the remaining period of your contract) and additional monthly benefit @ Rs 48,000/ i.e. Rs.2,88,000/. In effect, NDDB has paid you an additional amount of Rs.1,20,192/. I hope you will appreciate the fact.
Gratuity, as you will understand is payable on completion of 5 years of service in an organization as per rules. The clause 2.1(c) of the VRS scheme is to be read along with relevant provision under the Payment of Gratuity Act."
29. It appears that thereafter for the first time in August, 2011, the petitioner approached the Supreme Court by filing the writapplication referred to above seeking appropriate relief.
Page 19 of 21 C/SCA/9497/2013 CAV JUDGMENT30. The Supreme Court declined to entertain such writpetition and dismissed it with liberty to file an appropriate petition before the High Court. For a period of two years, thereafter, the petitioner kept quite and on 17th July, 2013 filed the present application seeking relief in terms of the notification of the year 2006. The petitioner was appointed as the Senior General Manager under Chapter II of the National Dairy Development Board Officers (Appointment, Pay and Allowances) Regulations, 1988.
31. In the backdrop of the aforesaid facts it is clear that the petitioner had understood the nature of his appointment very thoroughly. He knew from day one that his appointment was contractual subject to certain terms and conditions. He also knew that he would not be entitled to avail the benefit of the Notification, 2006 and that is the reason why in the year 2009 he accepted the enhancement in his salary unconditionally with other terms and conditions being untouched. He did not raise any issue from the date of the notification till the time he approached the Supreme Court in 2011. Even after the writpetition was not entertained by the Supreme Court he took two years to approach this Court.
Page 20 of 21 C/SCA/9497/2013 CAV JUDGMENT32. It is true that the plain reading of the definition "Fixed Term Employment Officer" would give an impression that even an officer engaged on the basis of contract would fall within the same and since the petitioner was also engaged on the basis of contract he would have to be treated as a Fixed Term Employment Officer as defined under the Regulations, however, at the same time, I should not be oblivious of the fact that the terms and conditions of his appointment are also very clear.
33. In over all view of the matter, I am not convinced with the case of the petitioner. As on today, he is seeking recovery of Rs.18,0000/ and odd from the Board by relying on the Notification of the year 2006. I may only say that if the petitioner has any grievance as regards the payment of gratuity then it shall be open for him to approach the appropriate forum under the payment of gratuity Act.
34. For the forgoing reasons, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.) Manoj Page 21 of 21