Central Administrative Tribunal - Mumbai
Mohammad Ghous Abdul Subhan vs South East Central Railway on 21 November, 2023
H OA.824/2023, Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur O.A. 824/2023.
Dated this Tuesday, the 21" day of November, 2023.
Coram : Justice M.G. Sewlikar, Member (Judicial) Dr. Bhagwan Sahai, Member (Administrative) Mohammad Ghous Abdul Subhan, Aged about 72 years, Occu. Retired, R/o A-132 Karmachari Nagar, Near Shiv Mandir, Chikolabhata, Durg (C.G)}, Mob: 9806513786. . Applicant.
( By Advocate Shri 8.V. Banerjee).
Versus 1, The Union of India, through General Manager, $.E.C Railway, Bilaspur (CG) PIN-495001, , i Sr, Divisional Personnel Officer, $.E.C. Railway, Kingsway, Nagpur PIN-440001.
3. Sr. Divisional Finance Manager, S.E.C. Railway, Kingsway, Nagpur- PIN 440001.
» Respondents.
to OA.824/2023.
_ Order (Oral Per : Justice M.G. Sewlikar, Member iJ) O1. We have heard learned counsel for both the parties.
1. The case of the applicant is that the applicant retired on 30" June, 2011. He is claiming notional increment in view of the Judgement of the Supreme Court dated 11.04.2023 in Civil Appeal No.247 1 of 2023, titled as The Director (Admn. And HR) KPTCL & Ors. vs. C.F. Mundinamani & Ors.
Supreme Court in this Case held thus:-
#6. the short question which is posed for the consideration of this Court iy whether an employee who has earned the annual increment is entitled to the same despite the fact that he has retired on the verp next day of earning the increment?
6.1 In the present case, the relevant provision is Regulation AO(1) of the Regulations which reads as under: -
"Dyawals and postponements of increments 40{1) An inerement accrues from the day following that on which it is earned, AR increment that has accrued shall ordinarily be drawn as a matter of course unless if is withheld. An increment may be withheld from an employee by the competent authority, if his conduct has not heen good, or his work has not been satisfactory In ordering the withholding af an increment, the withholding guthority shall state the peried for which it ts withheld. and whether the postponement shall x have the effect of postponing future increments."
b2 It is the case on behalf of the appellants that the word used in Regulation 40(1) is that ant increment accrues from the day following that on which-it is earned and in the present case 3 OA.824/2023.
the increment accrued on, the day when they retired and therefore, on that day they were not in service and therefore, not entitled to the annual increment which they might have earned one day earliex It is also the case on behalf af the appellants that as the increment is in the form of incentive and therefore, when the employees are not in service there 18 no question of granting them any annual increment which as such is in the form of incentive.
63 Af this stage, if is required to be noted that there are divergent views of various High Courts on the issue invalyed. The Full Bench of the Andhra Pradesh High Court, the Himachal Pradesh High Court and the Kerala High Court have taken a contrary view and have taken the view canvassed on behalf of the appellants. On the other hand, the Madras High Court in the case of P: Ayyamperumal (supra); the Delhi high Court in the case of Gopal Singh Vs. Union of India and Ors. (it Petition (C) No. 10509/2019 decided an 33.01.2020), the Allahabad High Court in the case of Nand Vijay Singh and Ors. Vs. Union of India and Ors, (Writ A Ne. 3290/2020 decided on 29.06.2021}; the Madhya Pradesh High Court in the case of Yogendra Singh Bhadauria and Ors, Vs. State af Madhya Pradesh; the Orissa High Court in the case of AFR Arun Kumar Biswal Vs, State of Odisha and Ann. (Writ Petition No. 17715/2020 decided on 30.07.2021); and the Gujarat High Court in the case of State of Gujarat Vs. Takhatsink Udesink Songara (Letters Patent Appeal No. 868/2021) have taken a divergent view than the view taken by the Full Bench af the Andhra Pradesh High Court and have taken the view that once an entployee has earned the increment on completing one year service he cannot be denied the benefit of such annual increment on his attaining the age of superannuation and/or the day of retirement on the very next day.
6.4 Now so fur as the submission on behalf of the appellants that the annual increment is in the form of incentive and fo encourage an employee fo perform well and therefore, once he is not in service, there is no question of grant of annual increment is concerned, the aforesaid hag no substance, In @ given case, ii may happen that the employee earns the increment three days before his date of superannuation and therefore, even according to the Regulation 40(1) increment is accrued on the next day in that case also such an employee would not have one year service thereafter {f is te be noted that increment is earned on one year past service rendered in a time scale. Therefore, the aforesaid submission is not to be 4 OA .824/2023, accepted.
6S Now so far as the submission on behalf of the appellants that as the increment has accrued on the next day on which it is earned and therefore, even in a case where an employee has earned the increment one day prior to his retirement but he is not in service the day on which the increment is acerued is concerned, while considering the aforesaid issne, the object and purpose of grant of annual increment is required to be considered, A Bovernment servant is granted the annual increment on the basis of his good conduct while rendering one year service. Increments are given annually ta officers with goad conduct unless such increments are withheld as a measure of punishment or linked with efficiency. Therefore, the increment is earned for rendering service with good conduct in a yearfspecified period. Therefore, the moment a government servant has rendered service for a specified periad with good conduct, in a time scale, he is entitled to the annual increment and it ean be said that he has earned the avinual increment for rendering the specified pertod of service with good canduct, Therefore, as such, he is entitled to the benefit of the annual increment an the eventuality of having served jor a specified period (one year} with good conduct efficiently. Merely because, the government servant has retired on the very next day, how can he be denied the annual increment which he has earned and/or ts entitled to for rendering the service with goad conduct and efficiently in the preceding one year In the case of Gopal Singh (supra) in paragraphs 20, 23 and 24, the Dethi High Cowt has observed es and held as under.-
a ca "Payment of salary and increment ta a central government servant is regulated by the provisions of E.R., CSR and Central Civil Services (Pension) Rules. Pay defined tn FR.
921) means the amount drawn monthly by a_ central government servant and Includes the increment. A plain composite reading of applicable provisions leaves me ambiguity that annual increment is given to a government servant to enable him to discharge duties of the past and that pay and allowances are also attached ta the post. Article 43 of the CSR defines progressive appointment fo mean an appointment wherein the pay is progressive, subject ta good behaviour. ef an officer It connotes that pay rises, by periodical increments from a minimum to a maximum. The increment! in case of progressive appointment is specified in Article 13] of the CSR ta mean that increment accrues from the date following that on which if is earned. The scheme, taken cumulatively, clearly suggests that appointment of a central 5 OA.B824/2023, government servant Is a progressive appointinent and periodical increment in pay from a minimum fo maximum is part of the pay structure. Article 151 af CSR contemplates that increment accrues from the day following which if is earned. This increment is not a matter of course bur is dependent upon good conduct of the central government servant. ft ts, therefore, apparent that central government employee earns snerament on the basis of his good conduct for specified period Le. ayear in case of annual increment. increment in pay is thus an integral part of progressive appointment and accrues from the day _ follawing which i is earned,"
"ammual increment though is attached to the post & becomes payable on a day following which if is earned but the day on which increment accrues or becames payable is not conclusive or determinative. In the statutory scheme governing progressive appointment increment becomes due for the services rendered over a year by the government servant subject fo his goad behaviour. The pay of a central government servant rises, by periodical increments, from @ minimum to the maximum in the prescribed scale, The entitlement to receive increment therefore . orypstallises when ihe government servant completes requisite length of service with good conduct and becomes payable on the succeeding day."
"hy isolation of the purpose if serves the fixation of day succeeding the date of entilement has no intelligible differentia nor any abject is to be achieved by it, The central government servant retiring on 30th June has already completed a year of service and the increment hax been earned provided his conduct was good It would thus be wholly arbitrary if the increment earned by the central government we employee on the basis of his good conduct for a year is denied Ee only on the ground that he was net in employment on the succeeding day when increment became payable."
"ln the case af a government servant retiring on 30th of June the next day on which increment falls due/becomes payable looses significance and must give way te the right of the government servant to receive increment due to satisfactory services of a year so that the scheme is not consirued in a manner that if offends the spirit af reasonableness enshrined in Article 14 of the Constitution of India. The scheme for payment of increment would have to be read as whole and one part of Article 151 of CSR cannot be read in isolation so as fo frustrate the other part particularly when the other part creates right in the central government servant [0 receive increment. This would ensure that scheme of progressive appointment remains intact and the rights earned By a
6 ---- QA.824/2023.
government servant remains protected and are not denied due ia a jortuifous circumstance."
66 The Allahabad High Court in the ease of Nand Vijay Singh (supra) while dealing with the same issue has observed and held in paragraph 24 as under > "24 Law is settled that where entitlement to receive a benefit erystallises in law its denial would be arbitrary unless it is for a valid reason. The only reason far denying benefit of increment, culled out from the scheme is that the central government servant is not holding the post on the day when the increment becomes payable, This cannot be a valid ground for denying increment since the day following the date on which increment is earned only serves the purpose of ensuring completion of a year's service with good conduct and no other purpose can be culled out for i, The concept af day following which the increment is earned has otherwise no purpose to
- achieve. In isolation of the purpose it serves the fixation of day succeeding the date of entitlement has no intelligible differentia nor any object is ta be achieved by it, The central government servant retiring on 30th dune has already completed a year of service and the increment has been earned provided his conduct was good. Ir would thus be wholly arbitrary if the increment earned by the central government employee an the basis of his good conduct for a year is denied only on the ground that he was not In employment on the succeeding day when increment became payable, In the case of @ gavernment servant retiring on 30th of June the next day on which increment falls duebecomes payable looses significance and must give way to the right of the government Servant to receive increment due to satisfactory services af a year so that the scheme is not construed in a manner that if offends the spirit. of reasonableness enshrined in Article 14 of the ee _ Constitution of India, The scheme for payment of increment ee would have to be read as whole and one part of Article 131 of CSR cannot be read in isolation so as to frustrate the other part particularly when the other part creates right in the central gavernment servant to receive increment. This wot dd ensure that scheme of progressive appointment remains tifact and the rights earned by a government servant remains protected and are not dented due to a fortuitous circumstance." 6.7 Similar view has also been expressed by different High Courts, namely, the Gujarat High Court, the Madhya Pradesh High Cowt, the Orissa High Court and the Madras High Court. As observed hereinabove, to interpret Regulation 40/1) of the Regulations in the manner in which the appellants have understood and'or interpretated would lead to arbitrariness and denying a government servant the benefit of annual 7 OA824/2023.
increment which he has already earned while rendering specified period of service with good conduct and efficiently in the last preceding year. H would be punishing a person for ma fault of him. As observed hereinabove, the increment can he withheld only by way of punishment or he has not performed the duty efficiently Any interpretation which would lead to arbitrariness and/or unreasonableness should be avoided. If the inferpretation as suggested on behalf of the appellants and the view taken hy the Full Bench of the Andhra Pradesh High Court is accepted, in that case it would tantamount to denying a government servidet the annual increment which he has earned for the services he has rendered over a pear subject to his good behaviour The entitlement to recetve increment therefore crystallises when the government servant completes requisite length of service with good conduct and hecomes payable on the succeeding day In the present case the ward "accrue" should be understood Uberally and would mean payable on the succeeding day Any contrary view would lead to arbitrariness and wnreasonableness and denying a government servant legitimate ane annual increment though he is entitled to for rendering the services over a year with good behaviour and efficiently and therefore. such a narrow interpretation shoxld be avoided, We are in complete agreement with the view taken by the Madras High Court in the case of BR Ayvampernimal (supra); the Delhi High Court in the case af Gopal Singh (supra), the Allahabad High Court in the case af Nand Vijay Singh (supra), the Madhya Pradesh High Court in the case of Yogendra Singh Bhadauria (supra); the Orissa High Court in the case of AFR Arun Kumar Biswal (supra}; and the Gujarat High Court in the case af Takliatsink Udesini Songara (supra). We do net approve the COMtrary view taken by the Full Bench of the Andhra Pradesh High Court in the case of Principal Accountant-General, Andhra Pradesh (supra) and the decisions of the Kerala High Court in the case of Union of India Vs. Pavithran {O.P(CAT) No. 11/2020 decided on 22.11.2022) and the Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Hinachat Pradesh & Ors. (CWP No. 2503/2016 decided on 06.11.2620). a in view of the above and for the reasons stated above, the Division Bench of the High Caurt has rightly directed the appellants te grant one.annual increment which the original writ pefitioners earned on the last dey of their service for rendering their services preceding one year jrom the date of retirement with good behaviour and efficiently We are in complete agreement with the view taken hy the Division Bench of the High Court. Under the circumstances, the present appeal deserves to be dismissed and is accordingly dismissed, nik.
8 OA.824/2023.
Hawever, in the facts and circumstances ofthe case, there shall be nto order as fo casts, LA. No. 199091/2022 stands disposed of in terms af the above". (emphasis supplied)"
2. In view of the Judgement of the Supreme Court, the applicant is entitled to notional increment, Learned counsel for the respondents submits that the applicant has made representations which are not yet decided by the respondents. He, therefore, submits that the respondents be directed to decide the representations,
3. We do not find any merit in the submissions. In view of the Judgement of the Supreme Court, the applicant is entitled to notional increment as their date of retirement is 30° June, 2011. °
4. In view of the above, respondents are directed to grant annual increment to the applicant from the dates next to the dates of their retirement within a period of three months from the date of receipt of certified copy of this order. The OA stands disposed of. Pending MAs, if any, stands closed. No costs.
. Sen inne arnt an, ne. re nea een (Dr. Bhagwan Sahai) (Justice M.G, Sewlikar) Member (A) . Member (J)