IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4851 of 2009(R)
1. E.FRANCIS
... Petitioner
2. EMMANUEL P KOLADY
3. JOHN K.ILLIKKADAN
4. CHERIAN VARGHESE
5. K.SASI KUMAR
Vs
1. STATE OF KERALA
... Respondent
2. ACCOUNTANT GENERAL
3. HIGH COURT OF KERALA
For Petitioner :SRI.JACOB P.ALEX
For Respondent :SRI.ELVIN PETER P.J.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :04/12/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 4851 OF 2009 (R)
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Dated this the 4th day of December, 2009
J U D G M E N T
Petitioners are Judicial Officers serving in the District Center
at Pathanamthitta. In this writ petition, their grievance is
regarding non payment of Transfer Grant/Disturbance Allowance,
which is also described as Composite Transfer Grant, for the
period from 1/1199 till 1/6/05.
2. Briefly stated, the facts of the case are that Chapter 19
of the Shetty Commission Report dealt with the recommendation
of Allowances, Amenities and Advances. Para 17 contained
recommendations regarding Transfer Grant/Disturbance
Allowance and the paragraph reads as under;
177. Transfer Grant/Disturbance Allowance: Each
State has prescribed the rules regarding payment of
“Transfer grant’ for transferred officers. But such rates
are in variance with the provisions made by Central
Government. Recently (w.e.f. 8.10.99), Central
Government has introduced ‘composite Transfer Grant’
equivalent to one month’s basic pay. Such a ‘composite
Transfer Grant’ is appropriate and simple. Commission
suggests that all States should adopt GOI pattern. Till
then the existing rules in each State/UTs would also
govern the Judicial Officers.”
3. In its judgment in All India Judges’ Association case
{2002(4) SCC 247}, the Apex Court accepted the Shetty
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Commission report and directed its implementation. Accordingly,
Ext.P1 order dated GO(MS) No.186/2005/Home dated 29th of June
2005 was issued by the 1st respondent, para 3 of which reads as
under:
Government have considered the issue in detail and are
pleased to extend to the serving Judicial Officers the
following benefits, in addition to the benefits already
sanctioned to them vide Government Order read as first
paper above.
1) Dearness Allowance (DA) at Central rages by
merging 50% of the DA with basic pay.
2) City Compensatory Allowance (CCA) as applicable
to Central Government employees.
3) Transfer Grant as stipulated in Government of
India Rules regarding transfer.
The benefits pertaining to the above will be given
effect from 1.06.2005.
Thus, in so far as this writ petition is concerned, it can be seen
that Transfer Grant as stipulated in the Government of India
Rules regarding transfer was ordered to be given with effect from
1/6/2005.
4. Subsequently, pursuant to the order dated 21/3/2002
of the Apex Court directing that the allowances which the Shetty
Commission had recommended are to be given effect from
1/11/99, Government of Kerala issued GO(MS) 70/2007/Home
dated 03/04/2007, a copy of which is Ext.P2, directing that
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allowances sanctioned by the Government on the
recommendation of the Shetty Commission report will have
retrospective effect from 1/11/99. It is to be stated that this
order also makes reference to Ext.P1. Again, by Ext.P6,
Accountant General was informed by the Government of Kerala
that Composite Transfer Grant may be granted along with
Transfer TA subject to the conditions prescribed in Government of
India Rules. In the meanwhile, High Court of Kerala also issued
Exts.P3, P4 and P5 office memorandums clarifying that composite
Transfer Grant being a travelling allowance entitlement, it is
governed by the TA Rules and that judicial officers have to draw
the grant from the Head of Account for TA.
5. Based on the aforesaid orders, petitioners submitted
Exts.P7, P10, P11, P11(A) and P11(B) bills claiming Transfer Grant
for the period from 1/11/99. While the matter was pending,
Accountant General issued Ext.P12 stating interalia that Transfer
Grant is admissible in addition to transfer TA and that for
transfers which have taken place prior to 1/6/2005, the question
of allowing Transfer Grant will be decided on receiving
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clarification from Government. Subsequently, Ext.P13 order was
issued by the 1st respondent specifying the allowances which are
to be authorised w.e.f. 1/11/99. This order however did not
include Transfer Grant. This was followed by Exts.P14 where the
1st respondent intimated the 3rd respondent that Transfer Grant is
not an allowance and therefore cannot be given retrospective
effect from 1/11/99. This was reiterated in Ext.P15 as well. It is in
these circumstances the writ petition is filed seeking to quash
Exts.P13 to the extent Transfer Grant is not included and to
quash Exts.P14 and 15 referred to above. There is a further
prayer to direct the respondents to issue necessary
orders/directions to the authorities concerned to disburse
Transfer Grant/Disturbance Allowance claimed by the petitioners
in Exts.P7, P10, P11, P11(A) and P11(B) series of bills submitted
by the petitioners.
6. The contention raised by the counsel for the
petitioners is that Transfer Grant/Disturbance Allowance is paid to
compensate the expenses which are incurred consequent on the
transfer of an officer and therefore is an allowance. It is stated
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that since allowances are given retrospectivity from 1/11/99 as
per Ext.P2, the petitioners are entitled to be paid Transfer
Grant/Disturbance Allowance in terms of the claims lodged by
them. It is contended that the contrary view taken in Exts.P14
and P15 and the exclusion of Transfer Grant/Disturbance
Allowance in Ext.P13 are illegal.
7. Respondents have filed a counter affidavit. The
contention raised by the respondents in para 7 of the counter
affidavit is that Transfer Grant/Disturbance Allowance does not
come under the category of allowance. According to them, it is
only a ‘perquisite’ and therefore Transfer Grant/Disturbance
Allowance is not given retrospectivity as per Ext.P2.
8. In the light of the pleadings as above, the controversy
has narrowed down to the question whether Transfer
Grant/Disturbance Allowance claimed by the petitioners is an
“allowance” as asserted by the counsel for the petitioners or
whether it is a “perquisite” as contended by the respondents in
the counter affidavit.
9. The meaning of the expression ‘allowance’ and
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‘perquisite’ do not appear to have been defined in the Shetty
Commission Report or in the Government Orders referred to
above. In such a situation, the only recourse available to this
Court is to seek guidance from the meaning of the expressions as
available in the dictionaries and law lexicons. The Advanced Law
Lexicon of P.Ramanatha Aiyar’s 3rd Edition, gives the meaning of
“allowance” as follows:
Something given as a compensation, abatement, or
deduction: a portion or a gift or gratuity to a child or
other dependent: the sanction or approbation of the
Court to certain acts; settlement: to put upon allowance:
to restrain or limit to a certain quantity of provision or
drink. Used in such terms (as) allowance of a specified
amount as alimony Pendente lite: special allowance for
costs in taxation; allowance for the maintenance of one’s
wife and children: allowance to insolvent-debtors etc. In
Burgess v. Clark, 14 QBD 735, 738 Bret, M.R. Defined
“allowance” as “a payment beyond the agreed salary of
the officer, for additional services rendered by him.”
Similarly, the meaning of “perquisite” has been given as:
“emolument, fee or profit attached to the office or
position of an addition to salary or wages”.
It is also described as:
“a privilege, gain or profit incidental to an
employment in addition to regular salary or wages”.
New Webster’s Dictionary of the English Language gives the
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meaning of the expression “allowance” and “perquisite” in the
following terms:
allowance: Permission; license; sanction; a quantity
allowed or granted, esp. money; a deduction or
abatement; tolerance. Milit, a monetary amount paid
an individual in lieu of furnished quarters,
subsistence, a railroad ticket, or the like.–v.t.–
allowanced, allowancing. To put on an allowance.
perquisite: An incidental fee or profit over and
above fixed income, salary, or wages; anything
customarily supposed to be allowed or left to an
employee or servant as an incidental advantage of
the position held; something advantageous, claimed
as a right.
10. The Random House Dictionary indicates that
allowance means allotment or grant of a sum of money for a
particular purpose, as for expenses. On the other hand, in this
dictionary, perquisite is given the meaning “an emolument over
and above fixed income or salary”.
11. A close reading of the meaning of the expressions as
available in the Law Lexicon and as also in the dictionaries
referred to above would show that a payment given as
compensation or to defray an expenditure that is incurred is an
allowance. On the other hand, perquisite can be seen to be a
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payment made, in addition to the salary which is due to an
employee and is unrelated to any expenditure incurred.
12. As already seen, the Shetty Commission has included
the Transfer Grant/Disturbance Allowance in Chapter 19 of its
report, dealing with Allowances, Amenities and Advances.
Transfer Grant/Disturbance Allowance is paid to the Officers to
defray the expenditure incurred by them incidental to the
transfer, which is a condition of their service. If so, Transfer
Grant/Disturbance Allowance can be taken only as an allowance.
If so, its exclusion from the purview of Ext.P2 on the reasoning
that it is a perquisite is erroneous and such allowance should get
coverage of Ext.P2 whereunder allowances have been given
retrospectivity from 1/11/99. This view I have taken is also
consistent with Exts.P3, P4 and P5 where the High court has also
described this payment as an allowance, governed by the TA
Rules. In the aforesaid view of the matter, the contrary view
taken by the 1st respondent in Exts.P14 and P15 cannot be
sustained and these orders will stand set aside.
Therefore, the writ petition is disposed of directing the
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respondents to extend the benefit of Transfer Grant/Disturbance
Allowance to the petitioners w.e.f. 1/11/99. Necessarily,
therefore Exts.P7, P10, P11, P11(A) and P11(B) bills submitted by
the petitioners shall be scrutinized and the admissible amount
that is due to the petitioners shall be disbursed. The 2nd
respondent is directed to do the needful in the matter as
expeditiously as possible, at any rate within 8 weeks of receipt of
a copy of this judgment.
ANTONY DOMINIC, JUDGE
Rp