IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 WP(C).No. 27052 of 2007(U) --------------------------------------- PETITIONER(S): ------------------------ G.SATHYARAJ, VADAKKE MADOM, ASHRAMAM, KOLLAM-2. BY ADVS. MR.M.BALAGOVINDAN MR.M.R.SASITH RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF ANIMAL HUSBANDRY, OFFICE OF THE DIRECTOR OF ANIMAL HUSBANDRY, THIRUVANANTHAPURAM. 4. DISTRICT VETERINARY OFFICER, KOLLAM. 5. SECRETARY, SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS, KOLLAM. GOVERNMENT PLEADER SMT.N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27052/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT. 30.6.69. P2:- COPY OF THE ORDER ISSUED BY THE DIRECTOR OF ANIMAL HUSBANDRY DT. 7.12.76. P3:- COPY OF THE RELEVANT PORTION OF THE SERVICE BOOK. P4:- COPY OF THE ORDER GRANTING 13 YEAR GRADE TO THE PETITIONER. P5:- COPY OF THE FIXATION OF STATEMENT. P6:- COPY OF THE SELECTION NOTIFICATION. P7:- COPY OF THE RELEVANT PORTION OF THE 5TH PAY COMMISSION REPORT. P8:- COPY OF THE REPRESENTATION TO THE MINISTER FOR ANIMAL HUSBANDRY DEPARTMENT. P9:- COPY OF THE COMMUNICATION OF THE 4TH RESPONDENT. P10:- COPY OF THE ORDER OF THE 2ND RESPONDENT REJECTING THE CLAIM OF THE PETITIONER FOR PENSION. RESPONDENT'S EXHIBITS R3(a):- COPY OF THE G.O.(MS) NO.79/74 DT. 18.3.74 OF AGRICULTURE (AH) DEPARTMENT. R3(b):- COPY OF THE BYE – LAW OF SPCA, KOLLAM. R3(c) :- COPY OF THE LATEST PAY REVISION ORDERS OF SPCA STAFF. /TRUE COPY/ P.S. TO JUDGE tss P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.27052 OF 2007 ......................................................................... Dated this the 19th February, 2009 J U D G M E N T Ext.P10 order passed by the first respondent turning down the request of the petitioner to grant pension and other benefits in respect of his service under the fifth respondent-Society, seeking to draw analogy with the similar staff under the Department of Agriculture (Animal Husbandry), is sought to be set aside in this Writ Petition, simultaneously praying for a direction to grant the pensionary benefits accordingly. 2. The case of the petitioner is that he joined the service of SPCA /fifth respondent, which is a society registered under the Charitable Societies Act and started his career with effect from 01.10.1969., Ext. P1 is the appointment order. After obtaining different promotions, he retired from the service on 30.11.1999 on attaining the age of superannuation. Thereafter, the petitioner preferred Ext. P8 representation seeking for pension and other pensionary benefits, which was stated as recommended by the Chief Veterinary Officer, Kollam, vide Ext. P9. Met with the callous inaction on the part of the first W.P.(C) No.27052 OF 2007 2 respondent, interference of this court was sought for by filing O.P. No.9311 of 2003, whereby the first respondent was directed to consider and pass appropriate orders on the representation, which led to Ext. P10 order. 3. As per Ext.P10 order issued by the Government, it has been stated that SPCA who is the employer of the petitioner is a non-governmental organization which does not come under the purview of Government service and hence the benefits payable under the Government service cannot be applied and extended to the petitioner. It is further stated in the instant case that the method of appointment is also not through the Public Service Commission and that there is no control for the Government except the advisory role. It has also been pointed out that the pension and pensionary benefits payable to the staff of the SPCA/fifth respondent cannot be a liability of the Government and that it is the lookout of the SPCA, for which necessary “grant-in-aid” is being provided by the Government. 4. The main grounds of attack against Ext.P10 order are that the fifth respondent is functioning under the Government W.P.(C) No.27052 OF 2007 3 and that appointments are being made in accordance with the orders passed by the Government. It is stated that the rules for the functioning of the society are being drafted by the Government and so also is the case with regard to the conditions of service of the staff. The petitioner asserts that the promotions ordered and granted to the petitioner were also by the Government and further that he is having a service book as borne by Ext. P3, which is a record that comes under Rule 141 of Part III K.S.R.. 5. Learned Government Pleader with specific reference to the contents of the counter affidavit filed by respondent Nos. 2 and 3, highlights that Ext.P1 is not an appointment order by itself and that the same has been issued by the governmental authorities with reference to the consent letter dated 27.09.1969 of the Secretary of the Society/fifth respondent. It is brought to light from Ext.R3(a)-revised rules for payment and utilisation of grant to SPCA/fifth respondent that the requisite amounts are being disbursed to the fifth respondent only by way of “grant” from the Government and that the rules were being revised for W.P.(C) No.27052 OF 2007 4 payment and utilisation of the “grant” by the society in the appropriate manner as desired and intended. It is revealed from Ext.R3(b) that the fifth respondent/society is having a Bye-law of its own and by virtue of clause 10 under the head-'the Powers of the Society' it is stated that the Society shall have powers to grant increment, pensions, allowances, gratuity, bonus etc. to the employees of the Society or the dependants of such persons. Sub clause (vi) of Ext.R3(c) Government Order dated 23.11.2000 providing for revision of scales of pay of the employees of the fifth respondent-Society clearly stipulates that additional financial commitment on account of revision of scales of pay will be made from the funds of the SPCAs. 6. Viewed in the above background, it is very much clear that the petitioner was appointed as an employee of the fifth respondent-Society ; that he had been given promotions as an employee of the fifth respondent-Society; that pay revision benefits were being extended to him as an employee of the society and that the first respondent-Government was having only supervisory control over the Society, particularly in view of W.P.(C) No.27052 OF 2007 5 “grant-in-aid” being extended for the proper utilisation and functions of the Society. In other words, there is no employer- employee relationship between the first respondent-Government and the petitioner and as such the service rendered by the petitioner under the fifth respondent Society can never be reckoned as the qualifying service under the Government as contemplated under Rule 10 of Part III K.S.R. 7. In the above circumstances, there is no reason to intercept the reasoning given in Ext.P10 order and the challenge raised against the said order fails. However, the petitioner will be at liberty to pursue his remedies, if any available against the fifth respondent-Society. No interference is called for in this Writ Petition and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk