IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3510 of 2007 Prabhat Kumar, son of Sri Brind Kumar Singh, resident of Mohalla-C/A-5, P.C. Colony, Kankarbagh, Patna, Police Station-Kankarbagh in the district of Patna. … Petitioner. Versus 1. Bihar State Electricity Board through the Secretary Vidyut Bhawan, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. The General Manager-cum-Chief Engineer, Patna Electricity Supply Undertaking (PESU), Mangles Road, Patna. 4. The Electrical Superintendent Engineer PESU (East), Anchal, Patna. 5. The Electrical Executive Engineer/Electric Supply Division, Kankarbagh, Patna. 6. The Finance Controller, Bihar State Electricity Board, Bailey Road, Patna. 7. The Account Officer, PESU (East), Patna. 8. The Administrator, General Provident Fund Trust, Bihar State Electricity Board, Patna. … .Respondents. . ----------- 5. 27. 07. 2009. Heard learned counsel for the petitioner and Respondent-State. The grievance of the petitioner remained for directing the Respondent-Board to make payment of Gratuity for rendering his service for five years six months and nine days for having joined the service of the Board as Junior Accounts Clerk in the office of Bihar State Electricity Board on 3. 11. 2000 and resigned from service on 19. 5. 2006 which was accepted with effect from 12. 05. 2006. It is submitted on behalf of the petitioner that in view of provisions of Section 4(i) of Payment of Gratuity Act, 2 1972(hereinafter referred to as ‘Gratuity Act’), as the petitioner had served the Respondent Board for more than five years, the petitioner is entitled to receive the Gratuity and hence the Board deserve to be directed to make payment of the Gratuity amount. The learned counsel submits that the Notification issued by the Department of Labour, Employment and Training Department, Government of Bihar, vide Memo No. 2755, dated 15. 9. 2003, as contained in Annexure A to the supplementary counter affidavit exempting the Respondent Board from the applicability of the operation of the provision of the Gratuity Act can have no effect as State Government could not have issued the above notification of exemption in absence of any scheme of the Respondent Board with respect to payment of pension and Gratuity to its employees, and as such, the aforesaid Notification being an executive order can not override the statutory enactment. Learned counsel appearing on behalf of the Respondent- Board, submits that the competent authority of the State Government in exercise of power under Section 5(i) (iii) of the Gratuity Act has exempted the Respondent Board from the applicability of the provisions of Gratuity Act with effect from 6.11.1987 and the same is legal and valid. The Pension and Gratuity to the employees of the Board is being paid in terms of Rule 86 of Bihar Pension Rules read with Rule 27 of the aforesaid Rules which manifests that the 3 employee serving the Board for less than ten years is not entitled to receive Pension and Gratuity. Considering the submissions of the parties and their respective pleadings it is not disputed that by Notification dated 15th September, 2003 as contained in Annexure-A to the supplementary counter affidavit, the Respondent Board has been exempted by the State Government in exercise of its power under Section 5(1) and 5(3) of the Gratuity Act from the applicability of its provision for payment of Gratuity to the employees of the Board with retrospective effect from 6.11.1987. The petitioner joined the service of the Board on 3.11.2000 and resigned from service on 19.5.2006, and as such, the petitioner is not entitled to claim the Gratuity under the provisions of the Gratuity Act. It is relevant to take note that under Rule 86 of Bihar Pension Rule, minimum requisite period to claim for payment of Pension/ Gratuity is 10 years. Consequently, employee having served the Board for the period less than 10 years is not entitled to receive the Gratuity. In view of the above facts and circumstances of the case, I do not find any merit in this writ application and accordingly it is dismissed. m.p. (Shailesh Kumar Sinha,J.)