Central Administrative Tribunal - Mumbai
Gangadhar Shankar Aher vs Department Of Posts on 23 April, 2024
1 OA No.411/2024 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI. ORIGINAL APPLICATION No. 411/2024 Date of Decision: 23° April, 2024 CORAM: Ms. Harvinder Kaur Oberoi, Member (J) Mr. Rajinder Kashyap, Member (A) Shri Gangadhar Shankar Aher S/o Shankar Aher, Age 70 years retired, SPM Newasa Post Office residing at Ward No.1 R BN B College Road Ashirwad Nagar Shrirampur 413 709 Mobile no.7666450219 ... Applicant ( By Advocate Shri Hamid Patel ) VERSUS 1. The Union of India through The Secretary, Department of Posts, Dak Bhavan Sansad Marg, New Delhi - 110 OO1. 2. The Chief Postmaster General Maharashtra Circle, Mumbai GPO Building, Mumbai ~ 400 O01 3. The Postmaster General Pune Region, Pune -- 411 O01, 4. The Supdt. Of Post Offices Shrirampur Division, Shrirampur 413 709. -.. Respondents 2 OA No.4 11/2024 ORDER (ORAL) Per: Ms. Harvinder Oberoi, Member (J)
The present OA has been filed by the applicant seeking grant of notional increment from O1s* July, 2013. It is submitted that applicant retired on 30% June, 2013 and increment was due to him on 015* July, 2013. He was not granted the same in view of FR 9 and its sub Rules and also provisions of the CCS(RP) Rules, 2008,
2. Learned counsel for the applicant submits that the applicant, 'on coming to know of the decision of the Hon'ble Madras High Court in Writ Petition No.15732/2017(2_ Apyamperumal Vs. The Registrar. Central Administrative Tribunal, Chennai _& 3 Ors.] decided on 15.09.2017, preferred a representation to the respondents seeking grant of notional increment accruing to him on 018* July, 2013 and also resulting revision in pension and other pensionary benefits. The representation of the applicant has been rejected by the respondents vide their letter dated 27" March, 2024. The respondents, in the said order, have taken note of the case law which has been relied upon by 3 OA No.411/2024 the applicant. However, relying upon Fundamental Rules and CCS({RP) Rules, 2008, the representation has been rejected.
3. The OA has been filed with MA No.412/2024 seeking condonation of delay. At the outset, learned counsel for the applicant submitted that there is no delay as such. Since the representation has been. rejected on merits by the respondents on 27° March, 2024, immediately thereafter, the OA has been filed on 17.04.2024. Therefore, there is no delay. However, by way of abundant precaution, the applicant has - preferred this MA. As the réliet sought by him relates to O18 July, 2013 i.e. the date when the cause of action had actually arisen in his favour.
4. in the case of Swalal Yadav Vs. State of Rajasthan & Ors., AIR 1977 SC 2050 dated 15.09.1975 the Hon'ble Apex Court has held that once the administrative authorities have taken a decision on merits, then the issue of delay cannot be resurrected later on to deny relief. We find that in the present case, the respondents have rejected the representation on merits, hence in view of the law laid down, delay shall not come in 4 OA No.411/2024 the way of grant of relief to the applicant. As such, MA is not required and is rendered infructuous.
5. On merits, learned counsel for the applicant Submits that very recently, the Hon'ble Apex Court in the case of The Director (Admn. And HR) KPYCL & Ors.
Vs. C.P. Mundinamani & Ors., Civil Appeal No.2471 of 2023 decided on 11.04.2023 has Clarified 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 sane despite the fact that he has retired on the very next day of earning the increment?
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."5 OA No.411/2024
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 case of P. 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 6 OA No.411/2024 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 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 accested, 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 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 7 OA No.411/2024 the annual increment and it can be said that he has earned the annual increment for rendering 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 monthiy 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 8 OA No.411/2024 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 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."
(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 9 OA No.411/2024 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 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 10 OA No.411/2024 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. fhe 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. 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 11 OA No.411/2024 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 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 12 OA No.411/2024 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 P. 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 Unien of India Vs. Pavithran (O.P.(CAT) No. 111/2020 decided on 24.11.2022) and the Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Himachal Pradesh & Ors. (CWP No. 2503/2016 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 rightly directed the appellants to Grant 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.
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\ 13 OA No.411/2024 However, in the facts and circumstances of the case, there shall be no order as to costs.
T.A, No. 149091/2022 stands disposed of in terms of the above".
6. Learned counsel submits that the Hon'ble Apex Court in the above judgment has also taken note of the decision of the Madras High Court which had been relied upon by the applicant in his representation as well as the rule position relied upon by the respondents. The issue is, therefore, no more res-integra. It has been held by the Hon'ble Apex Court that the notional increment shall be granted to all those who have retired on 30 June or 31st December of the year w.e.f the date next to their retirement, since the increment accrues to the employee after completion of one year of service and it does not come into existence onthe day next after completion of one year.
7. In view of the | above, the Original Application is allowed. The impugned order dated 27™ March, 2024 is quashed and set aside. The respondents are directed to grant to the applicant one notional 14 OA No.411/2024 increment as due to him w.e.f. 015¢ July, 2013 with all consequential "benefits including revision of pension and arrears 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.
(Mr. Rajinder Kashyap) (Harvinder Kaur Oberoi) Member (A) Member (7) ma.