Gujarat High Court
State Of Gujarat vs Takhatsinh Udesinh Songara on 27 April, 2022
Author: N.V.Anjaria
Bench: N.V.Anjaria, Samir J. Dave
C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 868 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 10308 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 868 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
STATE OF GUJARAT
Versus
TAKHATSINH UDESINH SONGARA
==========================================================
Appearance:
MR SAHIL TRIVEDI, AGP for the Appellant(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date :27/04/2022
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned Assistant Government Pleader Mr.Sahil Page 1 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 Trivedi for the appellant- applicant, learned advocate Mr.Vaibhav Vyas for the respondent No.1 and learned advocate Ms.Trusha Patel for the respondent No.2.
2. This Letters Patent Appeal under Clause 15 of the Letters Patent Act, is directed against order dated 11.8.2021 of learned Single Judge whereby the Special Civil Application filed by the petitioner- respondent No.1 herein came to be allowed. The respondents were directed to grant benefit of one increment to the petitioner and accordingly revise his pension.
2.1 The petitioner prayed in his petition to set aside communication dated 6.1.2021. By the said communication the petitioner was refused to benefit of notional increment falling due on 1.7.2020 on the ground that the petitioner had retired with effect from 30.6.2020. It was stated in the said order that since the petitioner ceased to remain in employment he could not be st considered as employee from 1 July, with effect from having retired a day prior, he acquires the status of pensioner and consequentially would not be entitled to the increment. The said communication dated 1.6.2021 was addressed to the Registrar General of the respondent No.1 by the under Secretary of the Legal Department of the State Government.
3. The relevant facts to be noticed are that the petitioner joined his services under respondent No.2 as Chowpdar cum Driver on 19.2.1983. He was appointed as Driver with effect from 1.4.1987. As the date of birth of the petitioner was 10.6.1960, he retired on 30.6.2020, upon attaining the age of superannuation. The petitioner had rendered one full year of service from 1.7.2019 to 30.6.2020 in the said last year. It is his case that he was entitled to get benefit of annual increment for the said period of service. The increment for the said period of service, it was stated, falls due on 1.7.2 Page 2 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 3.1 The petitioner made representation dated 31.7.2020 to respondent No.1 State requesting to release the increment, alongwith representation also produced by the petitioner were the instances where increment was granted to the similarly situated th employees retiring on 30 June. It is the averment of the petitioner that pursuant to the said representation, respondent No.2 made proposal to respondent No.1, however at the end of correspondence the benefit was denied as per the decision reflected in the impugned communication dated 6.1.2021.
3.2 Learned Single Judge referred to Rule 39 of the Gujarat Civil Services (Pay) Rules, 2002 which provides for services which may be counted for increment. Rule 39(1) provides for release of increment on the first date of every month. The relevant part of Rule 39 is as under, "39. Service which counts for increment: The following provisions prescribe the conditions subject to which service counts for increments in a time-scale;-
(I) Subject to the provisions of rules-
11,13,15,16,19,23,30 and 44 all periods of duty discharged in a post on a time-scale shall count for increments in that time-scale.
For the purpose of arriving at the date of next increment in that timescale, the total of all such periods as to do not count for increment in that time-scale shall be added to the normal dates of increment.
Provided that the increment shall be admissible from the 1st of the month in which it accrues."
3.3 Learned Single Judge held noticing the facts of the case and the aforesaid Rule, held that the Rule was misread and misinterpreted in denying the increment to the petitioner, to observe, (Para 8) "The proviso to sub-rule (1) of Rule 39 stipulates Page 3 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 that the increment shall be admissible from the 1st of the month, in which, it accrues. The petitioner has been denied the benefits of the increment for the services which he rendered prior to his retirement i.e. from 01.07.2019 to 30.06.2020 on the ground that the same accrued on 01.07.2020. The respondents have indubitably misread and misinterpreted the rule since it is not the case of the petitioner that he is claiming increment of one year after the date of retirement. The petitioner has become entitled for one increment during one year of service in the time pay-scale prior to his retirement and only because the same has accrued on 1st of every month, such benefits could not be denied by applying the rule prospectively resulting into wiping out the entire service of one year, which he has rendered in a particular time-scale. "
3.4. While holding as above, learned Single Judge relied on the decision of the Madras High Court in P.Ayyamperumal Vs. The Registrar and Others being Writ Petition No.15732 of 2017 decided on 15.9.2017. The Madras High Court dealt with and interpreted Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008 which is similar. In that case, the petitioner had retired as Additional Director General, Chennai on 30.6.2013 on attaining the age of superannuation. After the Sixth Pay Commission the st Central Government fixed 1 July to be the date of increment for all employees by amending Rule 10 of the Rules. This amendment resulted into denial of the benefit of the last increment. Though petitioner has completed full year of service on 1.7.2012 to 30.6.2013 and had retired on 30.6.2013, in view of the provisions and rules, that increment would be given only on 1.7.2013, the petitioner was treated not eligible to earn the increment.
3.4.1 The Madras High Court considered it to be a decisive circumstance that employee had completed full year of service for which the increment had become due, observing as under, (para 7) "The petitioner herein had completed one full year service as on 30.06.2013, but the increment fell Page 4 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 due on 01.07.2013, on which date he was not in service. In view of the above judgment of this Court, naturally he has to be treated as having completed one full year of service, though the date of increment falls on the next day of his retirement. Applying the said judgment to the present case, the writ petition is allowed and the impugned order passed by the first respondent- Tribunal dated 21.03.2017 is quashed. The petitioner shall be given one notional increment for the period from 01.07.2012 to 30.06.2013, as he has completed one full year of service, though his increment fell on 01.07.2013, for the purpose of pensionary benefits and not for any other purpose. No costs."
4. Learned Assistant Government Pleader relied on the decision of the Himachal Pradesh High Court in Hari Prakash and Others Vs. State of Himachal Pradesh and Others being Civil Writ Petition No.2503 of 2016 decided on 6.11.2020, further on the decision of the Rajasthan High Court in Safi Mohammad and Others Vs. State of Rajasthan and Others decided on 1.12.2021 and next also of the Rajasthan High Court in Ramji Lal Kulhari and Others Vs. State of Rajasthan and Others being Civil Writ Petition No.85 of 2020 and group of petitions decided on 10.1.2022 to submit that in the said decisions, the High Courts had taken a contrary view holding that there would occur no entitlement to get the increment.
4.1 On the other hand, learned advocate for the respondent relied on the decisions in Gopal Singh Vs. Union of India and Others being Writ Petition No.10509 of 2019 decided by Delhi High Court on 23.1.2020, in Nand Vijay Singh and Others Vs. Union of India and Others being Writ Petition No.13299 of 2020 of Allahabad High Court decided on 29.6.2021, in Yogendra Singh Bhadauria and Others Vs. State of Madhya Pradesh of High Court of Madhya Pradesh decided on 22.9.2020, in AFR Arun Kumar Biswal Vs. State of Odisha and Another being Writ Page 5 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 Petition No.17715 of 2020 decided on 30.7.2021. In all the above decisions P.Ayyamperumal (supra) has been considered and relied on to hold that the employee would be entitled to the benefit st th of increment on 1 July even though he had retired on 30 June.
5. The Delhi High Court in Gopal Singh (supra) taking same view as that of Madras High Court in P.Ayyamperumal (supra) explained that the entitlement of government servant to receive the increment, though may not be a matter of course, but is dependent upon good conduct of the central government servant and that he earns increment on the basis of his good conduct for specified period. (Para 20) "Payment of salary and increment to a central government servant is regulated by the provisions of F.R., CSR and Central Civil Services (Pension) Rules. Pay defined in F.R. 9(21) means the amount drawn monthly by a central government servant and includes the increment. A plain composite reading of applicable provisions leaves no ambiguity that annual increment is given to a government servant to enable him to discharge duties of the post and that pay and allowances are also attached to the post. Article 43 of the CSR defines progressive appointment to mean an appointment wherein the pay is progressive, subject to good behaviour of 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 151 of the CSR to mean that increment accrues from the date following that on which it is earned. The scheme, taken cumulatively, clearly suggests that appointment of a central government servant is a progressive appointment and periodical increment in pay from a minimum to maximum is part of the pay structure. Article 151 of CSR contemplates that increment accrues from the day following which it is earned. This increment is not a matter of course but is dependent upon good conduct of the central government servant. It is, therefore, apparent that central government employee earns increment on the basis of his good conduct for specified period i.e. a year in case of annual Page 6 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 increment. Increment in pay is thus an integral part of progressive appointment and accrues from the day following which it is earned. "
5.1 It was stated that where a government servant observes good conduct for entire year before increment accrues, it is logical and normal that he earns the increment. Dealing with the th situation where the government servant has retired on 30 June st and the increment is payable on 1 July, the High Court stated thus, (Para 23) "Annual increment though is attached to the post & becomes payable on a day following which it is earned but the day on which increment accrues or becomes 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 to his good behaviour. The pay of a central government servant rises, by periodical increments, from a minimum to the maximum in the prescribed scale. The entitlement to receive increment therefore crystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day. "
5.1.1 It was further observed by the Delhi High Court that denial of the entitlement to receive benefit when is crystallized in law could be arbitrary if it is denied unless there is valid reason. Though the increment was earned for past period it is denied on the ground that on the date when the increment becoming payable the government servant was not holding the post as he had retired, such has to be viewed to be not the valid ground to deny the increment. The High Court observed that 'the concept of day following which the increment is earned has otherwise no purpose to achieve'. It was stated, (Para 24) "In isolation of the purpose it serves the fixation of day succeeding the date of entitlement has no intelligible differentia nor any object is to be Page 7 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 achieved by it. The central government servant retiring on 30th June has already completed a year of service and the increment has been earned provided his conduct was good. It would thus be wholly arbitrary if the increment earned by the central government employee on 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. "
5.1.2 The retirement of the government servant on the day prior to the increment becoming payable is only fortuitous circumstance, it was rightly expressed, (Para 24) "In the case of a government servant retiring on 30th of June the next day on which increment falls due/becomes payable looses significance and must give way to the right of the government servant to receive increment due to satisfactory services of 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 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 to frustrate the other part particularly when the other part creates right in the central government servant to receive increment. This would ensure that scheme of progressive appointment remains intact and the rights earned by a government servant remains protected and are not denied due to a fortuitous circumstance. "
5.2 The view taken by the Madras High Court in P.Ayyamperumal (supra) and by Delhi High Court in Gopal Singh (supra) and other High Courts as above, holding that the government servant is entitled to increment becoming payable on st th 1 July, even though he has retired on 30 June, is required to be accepted. This court is in concurrence with the view taken in the aforesaid decisions by the Madras High Court and the Delhi High Court and the reasons supplied therein. This court is unable to subscribe to the converse view taken by High Courts of Himachal Page 8 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 Pradesh and Rajasthan.
5.3 Furthermore the Supreme Court has dismissed the Special Leave Petition (Civil) Dairy No.22283 of 2018 against the decision of the Madras High Court in P.Ayyamperumal (supra) as per the order dated 23.7.2018.
5.4 Besides above, the Division Bench of this court in Union of India Vs. Laxmanbhai Kalabhai Chavda being Special Civil Application No.10751 of 2020 decided on 27.1.2021, dealing with the same issue accepted the interpretation of the Rule 10 made by the High Court of Madras High Court in P.Ayyamperumal (supra). The Division Bench of this court dealt with the legality of the order of the Central Administrative Tribunal which had granted the benefit. In that learned standing counsel could not dispute the judgment of the Madras High Court in P.Ayyamperumal (supra) confirmed by the Apex Court in the Special Leave Petition as above.
5.4.1 In Laxmanbhai Chavda (supra), the Division Bench of this court observed that reading of Rule 10 of the Rules would make it clear that the government servant is entitled to the st increment becoming payable on 1 July. (Para 5) "...Rule 10 of the Rules, which speaks of uniform date of annual increment, which is 1st July of every year. It says that the employees completing six months and above in the revised pay structure as on 1st July, will be eligible to be granted the increment. The first increment, after fixation of pay as per the said Rules is on 1.1.2006 in the revised pay structure which shall need to be granted on 1.7.2006 for those employees for whom the date of next increment was between 1.7.2006 to 1.1.2007."
5.4.2 It was further stated, (Para 6) Page 9 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022 C/LPA/868/2021 CAV JUDGMENT DATED: 27/04/2022 "...the interpretation of Rule 10 of the Rules made by High Court of Madras in W.P. No.15372/2017, where the Court held from the factual details that the employee before it since had completed one full year service as on 30.6.2013, i.e. the date of which he was superannuated, but the increment fell due on 1.7.2013, on which date he was not in services and therefore, it interpreted that he shall have to be treated as having completed one full year of service, though the date of increment fell on the next day of his retirement. Accordingly, the court had allowed the petition and directed that the petitioner before the High Court of Madras be given one notional increment for the period from 1.7.2012 to 30.6.2013, on his having completed one full year of service."
5.5 As a Co-ordinate Bench, we are bound by the aforesaid view taken in Laxmanbhai Chavda (supra), and stand in agreement with the same.
6. For the aforesaid reasons and the discussion, the present challenge to the order of the learned Single Judge in this Letters Patent Appeal stands meritless.
7. The present Letters Patent Appeal is dismissed. Notice is discharged. Interim orders stand vacated. The directions issued in paragraph No.12 of the order of learned Single Judge regarding grant of benefits to the petitioner- respondent herein, the same shall be granted within six weeks from today and the direction shall be complied with.
In view of disposal of the main appeal, the Civil Application will not survive. Accordingly, it is disposed of.
(N.V.ANJARIA, J) (SAMIR J. DAVE,J) Manshi Page 10 of 10 Downloaded on : Wed Apr 27 21:36:11 IST 2022