Judgment:
Antony Dominic, J.
1. 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 1.11.1999 till 1.6.2005.
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:
17. 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. 8.10.1999), 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 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 rates 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 1.6.2005.
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 1.11.1999, Government of Kerala issued GO.(MS) 70/2007/Home dated 03.04.2007, a copy of which is Ext.P2, directing that allowances sanctioned by the Government on the recommendation of the Shetty Commission report will have retrospective effect from 1.11.1999. It is to be stated that this order also makes reference to Ext.Pl. 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 1.11.1999. While the matter was pending, Accountant General issued Ext.P12 stating inter alia 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 clarification from Government. Subsequently, Ext. P13 order was issued by the 1st respondent specifying the allowances which are to be authorised w.e.f. 1.11.1999. 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 1.11.1999. 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 that since allowances are given retrospectivity from 1.11.1999 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 '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. Clerk 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 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 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 1.11.1999. 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 respondents to extend the benefit of Transfer Grant/Disturbance Allowance to the petitioners w.e.f. 1.11.1999. 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.