Central Administrative Tribunal - Mumbai
Ashok Bhaurao Deshmukh vs Department Of Posts on 23 April, 2024
1 OA No.412/2024 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAT. ORIGINAL APPLICATION No. 412/2024 Date of Decision: 23°° April, 2024 CORAM: Ms. Harvinder Kaur Oberoi, Member (J) Mr. Rajinder Kashyap, Member (A) i. Shri. Ashok Bhaurao Deshmukh S/o Bhaurao Deshmukh Age 69 years Retired Postal Assistant Amravati Camp Residing at B 1 Adarsh Apartment, Tope Nagar Amravati Camp 444602 Mobile No. 9049200256 2. Shri. Shanker Pannaji Jondhale S/o Pannaji Jondhale Age 69 years Retired Mail Overseer Paratwada Residing at Azad Nagar Court Road Paratwada-444805 Mobile No. 7447377120 3. Shri Sudhakar Marotrao Kalbande S/o Marotrao Kalbande Age 64 Years Retired Postman Chandur Rly So Residing At Post Shirajgaon Korde, Tal~Chandur Rly Dist- Amravati 444904 Mobile 9423609362 4. Shri. Dadarao Sadashiv Dandge S/o Sadashiv Dandge Age -74 Years Retired SPM Surji So Residing At Post ~-Anjangaon Surji Dist Amravati 444705 Mobile No 9423609362 5. Shri. Manohar Devidas Bharti S/o Devidas Bharti Age-69 Years Retired MTS Tiosa SO Residing At Post Talegaon Thakur Tal-Tiosa Dist Amravati 444902 2 OA No.412/2024 Mobile No 7875378462 6. Shri. Ganesh Tukaramji Madankar S/o Tukaramji Madankar Age 69 Years Retd Mail Overseer Paratwada Residing At Post Asegaon Purna Achalpur Dist Amravati Mobile No. 9673738878 7. Shri. Narhari Kisanrao Sarve S/o Kisanrao Sarve Age -70 Years Retired Postal Assistant Badnera SO Residing at Mayanagar, Gopalnagar Avia PO Sain agar Dist Amravati 444607 Mobile 9096541501 8. Shri Vasant Pamaji Dahat S/o Damaji Dahat Age -65 Years Retired Postal Assistant Shivaji Nagar SO Residing at Samrat Colony Mardy Road Amravati Mobile No. 9766963838 9. Smt. Shobha Subhashrac Ajmire W/o Subhashrao Ajmire Age-66 Years Retired MTS Amravati HPO Tirupati Nagar No 2 Akoli Road Sai Nagar Amravati 444607 Mobile No 8805970949 10. Shri Mahadeo Tukaramji Uproat S/o Tukaramji Uproat Age 77 Years Retired SPM Chandur Rly SO Residing At Post- Yerla Tal - Morshi Dist- Amravati 444905 Mobile No. 9422915845 ... Applicants (By Advocate Shri Hamid Patel) VERSUS i. The Union of India through 3 OANo.412/2024 The Secretary, Department of Posts, Dak Bhavan Sansad Marg, New Delhi - 110 001. 2. The Chief Postmaster General Maharashtra Circle, Mumbai ~- 400 OO1 3. The Postmaster General Nagpur Region, Nagpur - 411 O01. 4. The Sr. Supdt. Of Post Offices Amravati Division, Amravati 444 602. ... Respondents ORDER (ORAL) Per: Ms. Harvinder Oberoi, Member (J)
MA No. 413/2024 has been filed by the applicants seeking permission to file the OA jointly. For the reasons stated therein in the MA, the same is allowed.
2. MA _No.414/2024 has been . filed by the applicants seeking condonation of delay of about 15 years. It has been stated that representations of the applicants have been rejected on merits. immediately thereafter the OA has been preferred. However, by way of abundant precaution, the MA has been filed for condonation. We have considered. Respondents having rejected representation on merits has resulted ina 4 OA No.412/2024 fresh cause of action to the applicant. Hence the MA, is allowed.
3. The applicants, who are 10 in number, have challenged the rejection of the representation which was rejected on various dates. Ail the representations have been rejected in identical fashion. The claim of the applicants is with respect to the grant of notional increment as all of them are retirees of 30° June of different years. Counsel for the applicants Submits that the notional increment was due to them on Q15+ suly i.e. the date next to their day of retirement. The same has not been granted to them.
4. Learned counsel for the applicants submits that very recently, the Hon'ble Apex Court in the case of The Director (Admn. And HR) KPTCL & Ors. Vs. C.P. Mundinamani & Ors., Civil Appeal No.2471 of 2023 decided on 11.04.2023 has laid down the law and in such cases has held as under:-
"6. The short question which is posed for the consideration of this Court is whether an employee who has earned the annual increment is entitled to the same despite the fact that he has retired on the very next day of earning the increment?5 OA No.412/2024
6.1 In the present case, the relevant provision is Regulation 40(1) of the Regulations which reads as under: ~ "Drawals and postponements of increments 40.1) An increment accrues from the day following that on which it is earned. An increment that has accrued Shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from an employee by the competent authority, if his conduct has not been good, or his work has not been Satisfactory. In- ordering the withholding of an increment, the withholding authority Shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments." "
6.2 It is the case on behalf of the appellants that the word used in Regulation 40(1) is that an increment accrues from the day following that on which it is earned and in the present case 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 earlier. It is also the case on behalf of the appellants that as the increment is in the form of incentive and therefore, when the employees are not in service there is no question of granting them any annual increment which as such is in the form of incentive.
6.3 At this stage, it is required to be noted that there are divergent views of various High Courts on the issue involved. 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 6 OA No.412/2024 case of FP. Ayyamperumal (supra); the Delhi high Court in the case of Gopal Singh Vs. Union of India and Ors. (Writ Petition (C) No. 10509/2019 decided on 23.01.2020) ; the Allahabad High Court in the case of Nand Vijay Singh and Ors. Vs. Union of India and Ors. (Writ A No. 13299/2020 decided on 29.06.2021); the Madhya Pradesh High Court in the case of Yogendra Singh Bhadauria and Ors. Vs. State of Madhya Pradesh; the Orissa High Court in the case of AFR Arun Kumar Biswal Vs. State of Odisha and Anr. (Writ Petition No. 17715/2020 decided on 30.07.2021); and the Gujarat High Court in the case of State of Gujarat Vs. Takhatsinh Udesinh Songara (Letters Patent Appeal No. 868/2021) have taken a divergent view than the view taken by the Full Bench of the Andhra. Pradesh High Court and have taken the view that once an employee has earned the increment on completing one year service he cannot be denied the benefit eof 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 far as the submission on behalf of the appellants that the annual increment is in the form of incentive and to encourage an employee to perform well and therefore, once he is not in service, there is no question of grant of annual increment is concerned, the aforesaid has no substance. In a given case, it 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. It is to be noted that increment is earned on one year past service rendered in a time scale. Therefore, the aforesaid submission is not to be accepted.
6.5 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 7 OA No.412/2024 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 accrued is concerned, while considering the aforesaid issue, the object and purpose of grant of annual increment is required to be considered. A government servant is granted the annual increment on the basis of his good conduct while rendering one year service. Increments are given annually to officers with good 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 year/specified period. Therefore, the moment a government servant has rendered service for a specified period with good conduct, in a time scale, he is entitled to the annual increment and it can be said that he has earned the annual increment for .endering the specified period of service with good conduct. Therefore, as such, he is entitled to the benefit of the annual increment on the eventuality of having served for 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 is entitled to for rendering the service with good conduct and efficiently in the preceding one year. In the case of Gopal Singh (supra) in paragraphs 20, 23 and 24, the Delhi High Court has observed and held as under: -
(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 mR Soo Rune nSUSe TG 8 OA No.412/2024 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 increment. Increment in pay is thus an integral part of progressive appointment and accrues from the day following which it is earned."
(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 9 OA No.412/2024 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 erystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day."
(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 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 o the ground that he was not in employment on the succeeding day when increment became payable."
"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 ELE SHES 10 OA No.412/2024 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."
6.6 The Allahabad High Court in the case 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 crystallises in law its denial would be arbitrary unless it is for a valid reason. The only reason for 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 it. The concept of 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 to be 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 11 OA No.412/2024 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 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."
6.7 Similar view has also been expressed by different High Courts, namely, the Gujarat High Court, the Madhya Pradesh High Court, 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 increment which he has already earned while rendering specified period of service with good conduct and efficiently in the last preceding year. It would be punishing a person for no fault of him. As observed hereinabove, the increment can be withheld only by way of punishment or 12 OA No.412/2024 he has not performed the duty efficiently. Any interpretation which would lead to arbitrariness and/or unreasonableness should be avoided. If the interpretation as suggested on behalf of the appellants and the view taken by the Full Bench of the Andhra Pradesh High Court is accepted, in that case it would tantamount to denying a government servant the annual increment which he has earned for the services he has rendered over a year subject to his good behaviour. 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. In the present case the word "accrue" should be understood liberally and would mean payable on the succeeding day. Any contrary view would lead to arbitrariness and unreasonableness and denying a government servant legitimate one 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 should be avoided. We are in complete agreement with the view taken by the Madras High Court in the case of BD. Ayyamperumal (supra); the Delhi High Court in the case of Gopal Singh (supra); the Allahabad High Court in the case of 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 of fTakhatsinh Udesinh _ Songara (supra). We do not approve the contrary 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. 111/2020 decided on 22.11.2022) and the Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Himachal Pradesh & Ors. (CWP No. 2503/2016 13 OA No.412/2024 decided on 06.11.2020).
7. In view of the above and for the reasons Stated above, the Division Bench of the High Court has rightiy directed the appellants to Qrant one annual increment which the original writ petitioners earned on the last day of their service for rendering their services preceding one year from the date of retirement with good behaviour and efficiently. We are in complete agreement with the view taken by the Division Bench of the High Court. Under the circumstances, the present appeal deserves to:
be dismissed and is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
I.A. No. 149091/2022 stands disposed of in terms of the above".
5. Since the casas of the present applicants are also identical to those cases covered in the decision of this Tribunal and also covered by the decision of the Hon'ble Apex Court in the case of CP Mundinamani (supra), we deem it appropriate that this OA can be disposed of at admission stage itself by granting relief to the applicants.
6. Therefore, the OA is allowed. Impugned orders (Annexure A-1 to Annexure A-10) are quashed and set aside. Respondents are directed to take necessary action to grant the applicants one more ae 14 OA No.412/2024 notional increment from the date next to their retirement along with all consequential benefits including revision of pension and arrears etc. This action be completed within a period of three months from the date of receipt of certified copy of this order. Pending MAs, if any, stand closed. No order as to costs, d (Mr. Rajinder Kashyap) (Harvander Kaur Oberoi) Member (A) Member (J) ma.
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