THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.8925 of 1997 Dated 05-02-2008 Between: V.Anjaneyulu. ..... PETITIONERS AND The State of A.P. rep. By Commissioner of Endowments, Hyderabad & another. .....RESPONDENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.8925 of 1997 O R D E R: The relief sought for in this writ petition is to extend the benefit of encashment of earn leave and for payment of gratuity. Sri S.Surya Prakash Rao, learned counsel for the petitioners, would draw attention of this Court to the rules framed under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966, vide G.O.Ms.No.1478 dated 17-11-1986, whereunder Rule 16 relates to leave and Rule 31 relates to Group Gratuity. Learned counsel would also refer to Rule 49 to contend that, under the rules, an employee is entitled for surrender of earn leave upto a maximum of 120 days. Rules 16, 31 and 49 read thus: 16.Leave:- 1. A hereditary servant shall not be entitled to any leave other than casual leave. 2. A non-hereditary servant shall be entitled to (a) earned leave at the rate of one day for every fifteen days spent to duty and such leave may be accumulated upto a maximum of seven hundred and twenty days. 3. Leave on medical grounds with full pay for a period of one year in the total service. 31.Group Gratuity: (a) Every charitable or religious institution or endowment published under clause (a) or clause (b) of Section 6 of the Act shall introduce for the benefit of its office holders and servants, group gratuity, life Assurance Scheme as specified in Annexure I to these rules. (b) Where the existing benefits available to the Office holders and servant of any institution or endowment are more beneficial than those indicated in the Annexure-I of these rules, these benefits shall be continued in respect of the Office holders or servants holding Office at the commencement of these rules. In respect of all other employees recruited on or after the commencement of these rules the benefits shall be as in Annexure-I. (c) The benefits in Annexure-I shall be provided by the Life Insurance Corporation of India. 1. Submission of staff data. 2. Payment of premium on receipt of the quotation. 3. Completion of master proposal and any other forms. 4. Furnishing evidence of health such medical reports on the lives of any employees etc., in accordance with the procedure indicated appended to the rules. 49. Leave, L.T.C., Family planning incentives etc. The employees of the eight institutions shall be eligible for leave, leave salary, leave travel concession, surrender leave, family planning incentives and medical reimbursement benefits as admissible to the State Government employees of similar standing and status. The leave rules and other rules and orders governing the State Government employees in respect of the above mentioned matters as in force from time to time shall apply to the employees of the eight institutions. Under Section 155(2)(a) of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987), all rules, made under the repealed Act shall, insofar as they are not inconsistent with Act 30 of 1987, be deemed to have been made under the corresponding provisions of Act 30 of 1987 and shall have effect accordingly until they are modified, cancelled or superseded under the provisions of Act 30 of 1987. Section 35 relates to appointment of office holders and servants and under sub- rule(4) thereof, the qualifications, method of recruitment and temporary appointments, pay and allowances, discipline and conduct and other conditions of service of the office holders and servants of a charitable or religious institution or endowment, shall be such as may be prescribed. No other provision of Act 30 of 1987, to which the rules made in G.O.Ms.No.1478 dated 17-11-1986 are inconsistent, has been brought to the notice of this Court. The Government, in exercise of the powers conferred under Section 35(4) of Act 30 of 1987, framed rules which were notified in G.O.Ms.No.888 dated 08-12-2000 and since these rules in G.O.Ms.No.888 dated 08-12-2000 came into force after the petitioners retired from service in the years 1995 and 1996 respectively, the said rules have no application and it is only the rules, as notified in G.O.Ms.No.1478 dated 17-11-1986, which are to be applied. Insofar as payment of surrender leave is concerned, Rule 49 of the rules notified in G.O.Ms.No.1478, dated 17-11-1986, may not apply to the petitioners since the provision of encashment of surrender leave thereunder is restricted to employees of eight institutions as enumerated in Rule 39. Sri S.Surya Prakash Rao, learned counsel for the petitioners, while fairly stating that the second respondent-temple is not one among the 8 temples, would, however, draw the attention of this Court to several orders of the Commissioner, whereby the benefit of surrender leave was extended to employees working in several temples under Act 30 of 1987 other than the 8 temples specified in Rule 39. It is, however, unnecessary for this Court to delve further on this aspect since Sri N.Guru Gopal, learned counsel appearing on behalf of the second respondent-temple, would fairly state that the second respondent-temple would extend the benefit of encashment of earn leave to a limit of 120 days to the petitioners and that payment would be made within one month from the date of receipt of a copy of this order. The only question which necessitates adjudication is whether the petitioners are entitled for gratuity. While the petitioners were paid a sum of Rs.32,815/- and Rs.39,326/- respectively, their claim is for payment of Rs.55,569/- each as gratuity. It is specifically stated in the counter affidavit that the second respondent-temple had taken out a policy on the Life Insurance Corporation of India, whereunder a group gratuity scheme was made applicable to all the employees of the temple. Sri S.Surya Prakash Rao, learned counsel for the petitioners, would, however, draw the attention of this Court to a letter addressed by the Life Insurance Corporation of India to the Executive Officer of the second respondent-temple on 17-09-1996, whereunder it was informed that at the time the temple had submitted proposals on 14- 12-1980, the age of retirement of employees was taken as 60 years and assuming the age of retirement as 60 years, the LIC had computed the gratuity and since the employees retired at the age of 58 years, the gratuity of Rs.32,815/- was paid as per the rules, and that a higher amount may have to be payable at the age of 60 years. It is evident, from the letter addressed by the Life Insurance Corporation of India to the Executive Officer of the second respondent-temple, that the second respondent-temple paid yearly premium towards group gratuity scheme applicable to its employees. Learned counsel for the petitioners, would, however, place reliance on Rule 31 to contend that since the existing benefits, available to the office holders of institutions, are more beneficial than the group gratuity scheme, the employees should be extended the benefit of payment of gratuity, which is more beneficial to them. While Rule 31 does support such a contention, there is nothing on record to show whether the petitioners had opted for group gratuity scheme or such a scheme was imposed on the petitioners. Since Rule 31 of the Rules, notified in G.O.Ms.No.1478 dated 17-11- 1986, were the rules in force when the petitioners retired from service, and these rules enable the petitioners to have the benefit of payment of gratuity, which is more beneficial, they would be entitled for payment of gratuity, in accordance with Rule 31, provided, of course, that they had not opted to be covered under the group gratuity scheme. In the absence of a specific pleading in this regard, this Court is not in a position to decide whether the petitioners should be permitted to resign from the group gratuity scheme and claim the benefit of gratuity otherwise than in accordance with the group insurance scheme with the law from Life Insurance Corporation of India. Ends of justice would be met if the petitioners were directed to make a detailed representation to the first respondent within a period of one month from today, who shall after obtaining information from the second respondent-temple, pass a detailed order on the petitioners’ representation within a period of three months from the date of receipt of the representation. Petitioners shall, however, be extended the benefit of surrender leave for a maximum of 120 days and shall be paid accordingly by the second respondent-temple within a period of one month from the date of receipt of a copy of the order. The Writ Petition is, accordingly, disposed of. No order as to costs. ______________ 05-02-2008 usd