Allahabad High Court
P.P.Pandey (Parmatma Prasad Pandey) vs State Of U.P.Thru Prin.Secy.Transport ... on 25 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 98
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- SERVICE SINGLE No. - 18375 of 2020 Petitioner :- P.P.Pandey (Parmatma Prasad Pandey) Respondent :- State Of U.P.Thru Prin.Secy.Transport Deptt. Lko & Ors. Counsel for Petitioner :- Prashant Kumar Singh,Alok Mehrotra Counsel for Respondent :- C.S.C.,Ratnesh Chandra Hon'ble Manish Mathur,J.
Heard Mr. Prashant Kumar Singh, learned counsel for petitioner, learned State Counsel appearing on behalf of opposite party no.1 and Mr. Ratnesh Chandra, learned counsel appearing for opposite parties no.2 and 3.
Counter affidavit filed on behalf of opposite parties no.2 and 3 is taken on record.
Learned counsel for petitioner submits that he does not wish to file any rejoinder affidavit and the matter may be adjudicated on the basis of judgment applicable in the case.
Petition has been filed against the order dated 24.09.2020 whereby increment due to petitioner on 01.07.2010 has been denied on the ground that the petitioner is not entitled to the same since he was not in service on 01.07.2010, having superannuated on 30.06.2010.
Learned counsel for petitioner has submitted that petitioner was appointed in the cadre of Assistant Regional Manager (Operation) in the U.P. State Road Transport Corporation with effect from 17.11.1978 and subsequently attained superannuation on 30.06.2010. It is submitted that earlier with regard to following relief, petitioner had filed Writ Petition No.12390 (S/S) of 2020 in which this Court vide order dated 31.07.2020 had directed the concerned authority to decide petitioner's representation. In pursuance to the same, impugned order has been passed rejecting petitioner's representation.
Learned counsel for petitioner submits that the only ground for rejecting petitioner's representation is that the judgments referred to by the petitioner in his representation are inapplicable upon the Corporation since the Corporation is not a party to the said judgment.
Learned counsel for petitioner submits that as per the recommendations of Sixth Pay Commission, an increment in the salary of employees is to be provided on completion of Six month or more service rendered in the past year. It is submitted that once an employee had completed six months or more of service in the past year, he became entitled for increment in his salary, the actual payment of which was to be made on 01.07.2020. As such, it is submitted that the petitioner having completed six months and more of unblemished service for the year 2009-2010 became entitled for the same prior to superannuation and the actual payment of which only was to be made on 01.07.2010.
Learned counsel further submitted that the fact as to whether petitioner was in service as on 01.07.2010 or not is completely immaterial since the date of 01.07.2010 has been indicated in the recommendations of Sixth Pay Commission only for the purposes of actual payment/addition of the increment in view of services already rendered. As such the petitioner had accrued a right for increment prior to 01.07.2010 and therefore his not being in service on 01.07.2010 is immaterial.
Learned counsel has placed reliance on judgment and order dated 03.08.2011 passed in Writ Petition No.8440 of 2011 (M Balasubramaniam vs. State of Tamil Nadu & Ors) by the High Court of Judicature at Madras. He has also relied upon a Division Bench judgment of the same Court in the case of P. Ayyamperumal vs. The Registrar, Central Administrative Tribunal, Madras Bench, High Court in Writ Petition No.15732 of 2017.
Mr. Ratnesh Chandra, learned counsel appearing on behalf of opposite parties no.2 and 3 has refuted the submissions advanced by learned counsel for petitioner with the submission that increment as required to be added for completing year of service necessarily indicates addition in salary of an employee and not in the pension. It is submitted that since petitioner was not in service as on 01.07.2010, he was being paid only pension and not salary and therefore the provision in the Government Order would be inapplicable upon petitioner who was not actually in service as on 01.07.2010. Learned counsel has further submitted that in case such an increment is permitted for superannuated employee such as the petitioner, the effect of the same would be that such superannuated employee would be getting a pension that would be higher than their last pay drawn as salary. It is submitted that there is no such provision for including increment in the pension of superannuated employee. Learned counsel has submitted that paragraph 8 of the Government Order dated 08.12.2008 which forms the basis of petitioner's claim clearly indicates the said fact, which is applicable upon employees of the Corporation.
Upon consideration of material available on record and submissions advanced by learned counsel for parties, it is undisputed that petitioner was in the service of the Corporation and superannuated on 30.06.2010. It is also undisputed that the Government Order dated 08.12.2008 having the provision of increment is applicable upon employees of the Corporation.
The only question requiring adjudication is whether an employee superannuating prior to cut off date indicated in the Government Order i.e. first July of year would be entitled for increment or not ?
For determination of the aforesaid question, it would be appropriate to peruse the relevant rule regarding the same.
Fundamental Rules are core Rules governing all general conditions of service like pay, leave, deputation, retirement and dismissal, removal and suspension. All Central Government employees are governed by these Rules. If there are Special Rules governing a particular "service" and in event conflict with Fundamental Rules, Special Rules would prevail, for generalia specialibus non derogant.
Fundamental Rules 9(21) and 9(31) regarding pay and time scale of pay is as follows:-
9(21) "Pay" (a) Pay means the amount drawn monthly by a Government servant as-
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the President.
(b) Not printed.
(c) Not printed.
9(31) "Time-scale of pay"- (a) Time-scale of pay means pay which, subject to any condition prescribed in these rules, rises by periodical increments from a minimum to a maximum. It includes the class of pay hitherto known as progressive.
(b) Time-scales are to be identical if the minimum, the maximum, the period of increment and the rate of increment of the time-scales are identical.
(c) A post is said to be on the same time-scale as another post on a time-scale if the two time-scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments, so that the pay of the holder of any particular post is determined by his position in the cadre or class and not by the fact that he holds that post.
Chapter-Ill of the Fundamental Rules contains "General conditions of service". Chapter-IV deals with "Pay" whereas Chapter-IX deals with "Retirement". Fundamental Rule 17 and Fundamental Rule 56 insofar as they are relevant read as under:
Fundamental Rule. 56. (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.
Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service, or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years.
(b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
Central Civil Services Pension Rules were promulgated in 1972 in exercise of power under proviso to Article 309 of the Constitution of India. These Rules, as mentioned earlier, in the absence of any legislation made by the Parliament of India under Article 309 of the Constitution of India, have force of law and all the principles of interpretation that are applicable to a statute would equally apply while interpreting these Rules. Indeed, as per Section 3 read with clauses (50) and (51) of Section 3 of General Clauses Act, 1897, the provisions thereof apply to Pension Rules also.
Rule 33-. Emoluments The expression 'emoluments' means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to Medical Officer in lieu of private practice.
Explanation:- Stagnation increment shall be treated as emoluments for calculation of retirement benefits.
Note 1 - If a Government servant immediately before his retirement or death while in service had been absent from duty on leave for which leave salary is payable or having been suspended had been reinstated without forfeiture of service, the emoluments which he would have drawn had he not been absent from duty or suspended shall be the emoluments for the purposes of this rule:
Provided that any increase in pay (other than the increment referred to in Note 4) which is not actually drawn shall not form part of his emoluments.
Note 2 - Where a Government servant immediately before his retirement or death while in service had proceeded on leave for which leave salary is payable after having held a higher appointment, whether in an officiating or temporary capacity, the benefit of emoluments drawn in such higher appointment shall be given only if it is certified that the Government servant would have continued to hold the higher appointment but for his proceeding on leave.
Note 3 - If a Government servant immediately before his retirement or death while in service had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service, the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purposes of this rule.
Note 4 - If a Government servant immediately before his retirement or death while in service, was on earned leave, and earned an increment which was not withheld, such increment, though not actually drawn, shall form part of his emoluments.
Provided that the increment was earned during the currency of the earned leave not exceeding one hundred and twenty days, or during the first one hundred and twenty days of earned leave where such leave was for more than one hundred and twenty days.
Note 5 - Deleted Note 6 - Pay drawn by a Government servant while on deputation to the Armed Forces of India shall be treated as emoluments.
Note 7 - Pay drawn by a Government servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments.
Note 8 - Where a pensioner who is re-employed in Government service elects in terms of Clause (a) of sub-rule (1) of Rule 18 or clause (a) of sub-rule (1) of Rule 19 to retain his pension for earlier service and whose pay on re-employment has been reduced by an amount not exceeding his pension, the element of pension by which his pay is reduced shall be treated as emoluments.
Note 9 - Deleted.
Note 10 - When a Government servant has been transferred to an autonomous body consequent on the conversion of a Department of the Government into such a body and the Government servant so transferred opts to retain the pensionary benefits under the rules of the Government, the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this rule. (emphasis supplied.) Here, we may also read Rule 5 of the Pension Rules:
5. Regulation of claims to pension or family pension :-(1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be.
(2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day: Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 or Rule 48-A, as the case may be, the date of retirement shall be treated as a non-working day.
Regarding Fundamental Rule and Civil Service (CCA) Rule, it is a relevant fact that the Government of India Act, 1919 by virtue of Section 96B(2) empowered the Secretary of State for India to make Rules regarding conditions of service of Government Servant. It was in exercise of such power that the aforesaid rules were made. Prior to promulgation of Fundamental Rules, the Government of India made various Rules and Regulations in relation to service condition of government servant which were published as the Civil Service Regulation and continued to be applied after independence so far as they were not inconsistent with subsequent Rules made under Article 309 of the Constitution of India of the relevant statutes.
As per Article 14, when an officer is required to retire on attaining a specified age, the day on which he attains that age is reckoned as non-working day and the officer must retire with effect from and including that day. Article 18 defines "Calendar Month" and also gives examples for reckoning the period of six months beginning on 28th February, 31 March, 1 April etc. The last day on which thirty days is completed is taken as the completion of the period of the Calendar Month. Regulation 43 defines "Progressive Appointment" to mean as an appointment the pay of which is progressive, that is, pay which, subject to the good behaviour of an officer, rises, by periodical increments, from a minimum to a maximum. Articles 151 to 154 deal with accrual of increment and it would be better to read Articles 151 to 153.
Thus a person who gets progressive appointment would be entitled to a periodical rise in the pay subject to good behaviour and such increment accrues from the day following that on which it is earned. That is to say, a Government servant would get and draw increment after completion of one year. If the day for payment of annual increment is first of January, a Government servant would be entitled for annual increment on 31st December of that year, but the same would accrue only from First January of next year.
A Government servant, as per Rule 35, shall be granted superannuation pension on his attaining age of compulsory retirement. Such Government servant shall be paid pension based on the qualifying service and based on the average emoluments drawn during the last ten months of his service. For the purpose of qualifying service and calculating average emoluments, one has to look to Rule 5 and Rule 34 of the Pension Rules. Rule 5(2) mandates that the day on which a Government servant retires shall be treated as his last working day.
As per Article 151 of Civil Sservice Regulations, annual increment payable to a Government servant will accrue from the day following that day on which it is earned. The Government servant would get a right for annual increment only after conclusion of the year and therefore on the day when the increment falls due, it would not become payable, but it would become payable only from the next day.
Upon consideration of the aforesaid Rules, it is apparent that ''pay' includes other emoluments which may be specially classed as pay. Fundamental Rules 56(a) indicates that every Government Servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Proviso to the said Rule stipulates that a Government Servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of superannuation.
Rule 33 of the Central Civil Services (pension) Rule defines the expression ''emoluments' to mean basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules, which the Government Servant was receiving immediately before his retirement or on the date of his death. The Proviso Note 1 of the said Rules imposes a bar in any increase in pay (other than the increment) referred to in Note 4 which is not actually drawn from forming a part of emoluments.
Note 4 states that in case a Government Servant immediately before his retirement or death while in service, was on earned leave, and earned an increment which was not withheld, shall form a part of his emoluments even if not actually drawn.
The aforesaid provision clearly indicates provision for increment forming the part of emolument even if not actually drawn although applicable only in case the Government Servant was on earned leave. However, the same does indicate the fact that such an increment can form a part of the emolument even after retirement.
Relevant provision to be considered is under Articles 151, 152 and 153 of the Fundamental Rules which have been quoted hereinabove and specifically stipulate that an increment accrues from the date following that on which it is earned. The said provision clearly elaborates the fact that accrual of increments pertains to actual payment and is to be made subsequent to the date on which it is earned. As such, the accrual of increment pertains only to actual payment of a benefit, which has been earned prior to its date of accrual.
Considering the aforesaid, particularly in view of Article 151 of the Fundamental Rules, it is apparent that first of July being the appointed date for accrual of increment merely implies actual payment of a benefit such as increment which has been earned prior to such appointed date.
It is admitted between learned counsel for parties that increment in terms of aforesaid Government Order is required to be paid to an employee upon completion of six months or more of services rendered in the past year. It is thus quite apparent that entitlement for increment to an employee accrues upon completion of six months or more service in the past year i.e. services already rendered. In terms of paragraph 8 of the aforesaid Government Order, the said fact is apparent that increment is to be paid for services already rendered. Thus, it is seen that the employee becomes entitled for increment upon completion of six months or more of service in the past year i.e. naturally, services already rendered. The cut off date of first July of any year indicated in the Government Order is only for the purposes of payment of the increment which has already fallen due. It is therefore only recognition of a right which has already vested in an employee.
The High Court of Judicature at Madras in the case of M Balasubramaniam vs. State of Tamil Nadu (supra) has dealt with the same issue on the following manner:-
"...........It is equally important to state that there is no rule which stipulates that an employee must continue in service for being extended the benefits of the service already rendered by him.
A Division Bench of the same Court in the case P. Ayyamperumal vs. The Registrar, Central Administrative Tribunal has followed the aforesaid judgment. The matter was thereafter agitated before Hon'ble the Supreme Court in Special Leave Petition (Civil) Diary No.22283 of 2018 which vide order dated 23.07.2018 was dismissed on facts.
Learned counsel for petitioner has also placed reliance on decision of Hon'ble Supreme Court in S. Banerjee. Vs. Union of India, reported in AIR 1990 Supreme Court 285. In the considered opinion of this Court, the said judgment would be inapplicable in the present case in view of different fact situation since in the aforesaid case, not only was the matter pertaining to dearness allowance but also in view of the fact that the applicant therein was in fact granted superannuation with effect from 01.01.1986 by specific order and therefore Hon'ble the Supreme Court held that since there was a clear direction that he would be deemed to have superannuated with effect from 01.01.1986, it could not be said that he had superannuated on 31.12.1985. In the present circumstance, the superannuation was actually a day before the date on which increment accrues.
Learned counsel appearing on behalf of opposite parties has in turn placed reliance on a Full Bench judgment rendered by the High Court of Andhra Pradesh in the case of Principal Accountant General, Andra Pradesh & Another Vs. C. Subba Rao; reported in 2005(2) L.L.N. 592 with the submission that in the aforesaid Full Bench, it has been categorically held that since increment is an addition to pay, the same would be inapplicable in case of persons who have superannuated prior to the date of its accrual because on the date of accrual, a superannuated employee is not entitled to any salary or pay. The Full Bench has held that in order to be eligible for an increment falling due on the first of the succeeding month, an employee must satisfy not only the condition of becoming entitled but that he should continue to be on duty as a Government Servant since after superannuation on the last working day of the month, he ceases to be such a Government Servant.
Upon consideration of the aforesaid, Full Bench judgment, with utmost respect, this Court is unable to concur with the same. The learned Full Bench in the judgment itself has quoted Article 151 of the Civil Service Regulations with the observation that 'the Government Servant would get a right for annual increment only after conclusion of the year and therefore on the day when the increment falls due, it would not become payable, but it would become payable only from the next day.
In view of said Article 151 of Civil Service Regulations, it is apparent that the Full Bench also noticed the fact that the increment is earned by a Government Servant for services rendered in the past year and the Government Servant becomes entitled to it on the concluding day of the year but it would actually become payable only from the next day. The said observation also makes it clear that it is only the actual payment of the increment, which is to be made on the first of July of the year and has actually been earned by the Government Servant for the services rendered during the past year when he was in service. As such, the actual payment of an increment earned during service is merely consequential to the actual act of earning the increment while in service. It is merely a fortuitous circumstance that the Government Servant has superannuated on the date when the increment, earned earlier, is to be actually paid. It is also a relevant fact that the opposite parties have framed the U.P. State Transport Corporation Officers Service (General) Regulations 1998.
Regulation 3(n) has defined pay as an amount drawn monthly as follow:-
(n) "Pay" means amount drawn monthly by an officer as-
(i) basic any sanctioned for the post;
(ii) special pay or personal pay;
(iii) any other emoluments which may be specially classed as pay by the Board. It does not include dearness allowance, travelling allowance and other allowances;
Annual increment has been defined in Regulation 9 of the Regulation is as follow:
9. Annual increment.- (1) (a) An annual increment may be allowed to an officer in accordance with the provisions of sub-regulation (2) at the rate as shown in the scales of pay admissible to the officer concerned unless the increment has been withheld as a disciplinary measure or at the Efficiency Bar.
(b)All the officers will be granted increment on the first day of the month in which the increment falls due.
(c) If probation is extended, such extension will not count for increment, unless the Appointing Authority directs otherwise.
(d) An officer who has remained off duty on extraordinary leave, study leave or any other such similar leave, the date of increment shall correspondingly be shifted and the period of such leave shall not be counted for the purposes of increment. An officer who officiates in a higher post or in a higher time scale of pay shall be eligible to count for increments the period spent by him on such higher post or higher time scale of pay in his lower post when reverted to that post or time scale of pay.
(2) To reward an officer for excellent performance and in order to motivate him for continuous excellent performance, the Board may grant premature increments subject to a maximum of three to an officer in the time scale of pay.
The aforesaid provisions in the Service Regulations are inconsonance with the Fundamental Rules and the Civil Service Regulation and clearly indicate the fact that increment is earned/allowed to an officer for services rendered by him in the past year.
The condition and procedure for applicability of increment has been made in the Government Order dated 08.12.2008, which has been adopted by the Corporation.
A perusal of paragraph 8 of the Government Order dated 08.12.2008 does not indicate any such condition that increment is to be paid only in case the employee is in service as on First July of the year. Once the authorities concerned have not indicated any such factor in the Government Order, it is not for this Court to construe such a meaning in the Government Order, which has deliberately been omitted.
In view of aforesaid, it is quite apparent that an employee becomes entitled for an increment upon completion of six months or more of service rendered in the past year.
It is also to be noticed that the impugned order has been passed only on the basis of that judgments passed by the High Court at Madras and by Hon'ble the Supreme Court are inapplicable because, the Corporation was not a party in those proceedings. It is settled law that it is the ratio decidendi which is applicable with regard to any lis and not as to the party in the dispute. The authority concerned should have appreciated that the present dispute is the same as was being agitated before High Court at Madras and there is no distinction whatsoever. However, this aspect has been lost sight of while passing the impugned order.
So far as the submission of learned counsel for opposite party is concerned that granting relief as has been sought by the petitioner would imply that pension of an employee would be more than the last pay drawn does not appear to be reasonable in view of fact that even if such an increment is allowed, the immediate effect will be on the last pay drawn only with consequential effect upon the pension of superannuated employee. Therefore it cannot be said that in case of allowing such an increment, the pensionary benefits of an employee would be more than the last pay drawn.
Upon consideration of aforesaid factors, the writ petition is liable to succeed and therefore writ in the nature of certiorari is issued quashing the impugned order dated 24.09.2020. A further writ in the nature Mandamus is issued commanding the opposite parties no.2 and 3 to grant increment due to petitioner on 01.7.2010 with all consequential benefits.
Orders pertaining to same and actual payment thereof shall be made within a period of six months from the date a copy of this order is produced before concerned authority.
Consequently, the writ petition stands allowed.
Order Date :-25.01.2021 [Manish Mathur,J.] Subodh/-