Tripura High Court
Sri Korak Baran Chowdhury vs The State Of Tripura on 13 December, 2021
IN THE HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.315 of 2021
&
WP(C)No.316 of 2021
In WP(C)No.315 of 2021
Sri Korak Baran Chowdhury,
son of late Ajit Ranjan Chowdhury,
Prantik, Old Kalibari Road, Krishnanagar,
P.O. Agartala, PIN : 799001,
District : West Tripura
......... Petitioner(s)
-Versus-
1. The State of Tripura,
represented by the Secretary,
G.A.(P & T) Department,
Government of Tripura, P.O. Secretariat,
PIN : 799010, New Secretariat Complex,
Agartala, District : West Tripura
2. The Secretary to the Government of
Tripura,
Finance Department, P.O. Secretariat,
PIN : 799010,
New Secretariat Complex, Agartala,
District : West Tripura
3. The Deputy Secretary to the
Government of Tripura,
Finance Department, Government of Tripura,
P.O. Secretariat, PIN : 799010,
New Secretariat Complex, Agartala,
District : West Tripura
........ Respondent(s)
In WP(C)No.316 of 2021
Santanu Debbarma, Retired TCS(SSG), son of late Monomohan Debbarma, resident of Sankar Chowmohani, Krishnagar, P.O. Agartala, West Tripura, PIN : 799001 ......... Petitioner(s)
-Versus-
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1. The State of Tripura, represented by the Secretary, G.A.(P & T) Department, Government of Tripura, P.O. Secretariat, PIN : 799010, New Secretariat Complex, Agartala, District : West Tripura
2. The Secretary to the Government of Tripura, Finance Department, P.O. Secretariat, PIN : 799010, New Secretariat Complex, Agartala, District : West Tripura
3. The Deputy Secretary to the Government of Tripura, Finance Department, Government of Tripura, P.O. Secretariat, PIN : 799010, New Secretariat Complex, Agartala, District : West Tripura ........ Respondent(s) For the Appellant (s) : Mr. C.S. Sinha, Adv.
For the Respondent (s) : Mr. H. Sarkar, Adv.
Date of hearing & delivery of : 13.12.2021
Judgment and Order
Whether fit for reporting : YES
HON‟BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER
Heard Mr. C.S. Sinha, learned counsel appearing for the petitioners as well as Mr. H. Sarkar, learned counsel appearing for the respondents.
2. Both the writ petitions being WP(C)No.315 of 2021 [Korak Baran Chowdhury versus The State of Tripura and 2 Others] and WP(C)No.316 of 2021 [Shri Santanu Debbarma, Retired TCS(SSG) versus The State of Tripura and 2 Others] are clubbed together for disposal by a common judgment as one identical Page 3 of 9 issue wades through those petitions viz. the question that is common to those writ petitions is whether an employee who retires on the last working day of month and his date of release of increment falls on the next working day, in the next month that is, on the following day of his retirement, is entitled to get the benefit of the said increment for purpose of determining his pension and other retiral benefits or whether he will be entitled to get the notional benefits for purpose of determining the last pay on the previous day to the due date of release of increment.
3. In WP(C)No.315 of 2021, the petitioner [Sri Korak Baran Chowdhury] had been working as the Additional Secretary, Government of Tripura being borne in TCS [Super Selection Grade]. He retired from the service on 30.06.2019 [afternoon]. He has received his last annual increment on 01.07.2018 and his next increment, if due, would have fallen on 01.07.2019 considering his service during the period from 01.07.2018 to 30.06.2019. But since he had retired on 30.06.2019, the state did not include his increment even notionally to his last pay.
4. Being aggrieved, the petitioner had made a representation on 10.01.2020 [Annexure-1 to the writ petition] and asked the competent authority to release the increment and add the same with his last pay. But the respondents by the reply dated 20.03.2021 [Annexure-2 to the writ petition] has informed the petitioner that he is not entitled to yearly increment on 01.07.2019 on the ground that the petitioner was not on duty as on 01.07.2019 to meet the requirement of Tripura State Civil Services (Revised Pay) Rules, 2019.
5. Mr. C.S. Sinha, learned counsel appearing for the petitioner has referred to a Division Bench decision of the Madras High Court in P. Page 4 of 9 Ayyamperumal versus The Registrar, Central Administrative Tribunal and Others [judgment dated 15.09.2017 delivered in W.P.No.15732 of 2017] [Annexure-3 to the writ petition] where while dealing with identical fact and challenge Madras High Court has inter alia observed as follows :
"7. The petitioner herein had completed one full year service as on 30.06.2013, but the increment fell 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."
6. Mr. Sinha, learned counsel appearing for the petitioner has also placed his further reliance on a Delhi High Court judgment which has been passed based on Madras High Court decision in P. Ayyamperumal(supra). In Gopal Singh versus Union of India and Others [judgment dated 23.01.2020 delivered in WP(C)No.10509 of 2019], the Delhi High Court has observed that the contention of the Central Government that the judgment of P. Ayyamperumal(supra) is a judgment in personen and has not expounded any law. Delhi High Court having quoted the observation in P. Ayyamperumal(supra) has further observed that no reason would pursue the Court from denying the same relief to the petitioner. Accordingly, Delhi High Court issued direction upon the respondents to grant notional increment to the petitioner w.e.f.01.07.2019. Delhi High Court has further directed to re-fix the pension within the stipulated period. Page 5 of 9
7. Mr. H. Sarkar, learned counsel appearing for the respondents has submitted that neither the Madras High Court judgment nor the Delhi High Court judgment has laid down any law. Those judgments are passed in equity. When there is a conflict between the provisions of law and the principles of equity, law must prevail. In support thereof, Mr. Sarkar, learned counsel has placed the office memorandum dated 03.02.2021 issued by the Government of India in the Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training). According to the said office memorandum, the question of law has been made open by the apex Court in a subsequent challenge on the question of implementation of the judgment of the Madras High Court in P. Ayyamperumal(supra). In the said office memorandum dated 03.02.2021, it has been clearly observed that :
"2. The issue has been examined in this Department in consultation with Department of Legal Affairs and it has been observed that the judgment dated 15.09.2017 of Hon‟ble High Court of Madras in W.P. No.15732 of 2017 in the case of P. Ayyamperumal Vs Union of India & Ors. is „in personam‟ in nature. A brief note reflecting the Government‟s stand on this issue is attached as Annexure- I."
8. In the memorandum dated 03.02.2021, the order dated 29.03.2019 passed in Union of India & Ors. Vs. Sakha Ram Tripathy & Ors. has been referred. In that order, the apex court has observed as follows :
"The Special leave petition is dismissed on delay, keeping all the questions of law open."
Thus, the Central Government by the office memorandum dated 03.02.2021 has given direction to all the departments located in various places to resist such plea and contest any suit or cases in the Court of law.
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9. Mr. Sarkar, learned counsel has also produced another office memorandum dated 24.06.2021 where it has been expounded as under :
"In the case under reference (OA No.170/677/2019), Hon‟ble CAT, Bangalore Bench, allowed grant of notional annual increment to an employee who superannuated from service on 30.06.2014. Ministry of Railways challenged this judgment in the Hon‟ble High Court of Karnataka in WP No.146967 of 2020 (S-CAT), which was rejected by the High Court on 22.10.2020. Thereafter, Ministry of Railways filed a Special Leave Petition {SLP(C)No.4722/2021} against the Order dated 22.10.2020 of the Hon‟ble High Court of Karnataka. Hon‟ble Supreme court heard the matter and issued the following directions in its Order dated 05.04.2021:
"Issue notice returnable after three weeks. In the meanwhile, there will be stay of operation of the order dated 18th December, 2019 of the Central Administrative Tribunal, Bangalore Bench in Original Application No.170/00677/2019, affirmed by the judgment and order impugned. The Petitioners shall, however, in the meanwhile without prejudice to the rights and contentions of parties pay retiral dues of the Respondent computed on the basis of the last pay drawn by him on the date of his retirement, that is, 30.06.2014."
The reference that has been made above is in respect of an interim order only directing release of the pension on calculating the same on the last pay received on the last working day i.e. 30.06.2014. This does not propound any law at all.
10. Mr. Sarkar, learned counsel has submitted that when a statute provides a specific mode of operation, there equity cannot work and probably the court cannot exercise its jurisdiction on preopening the date of release of increment in the name of notional release of the increment.
11. Mr. C.S. Sinha, learned counsel appearing for the petitioner and Mr. H. Sarkar, learned counsel appearing for the respondents have replicated their Page 7 of 9 submissions in the other case for obvious reason. In WP(C)No.316 of 2021, the petitioner [Shri Santanu Debbarma, Retired TCS(SSG)] who had been working as the Additional Secretary being borne in TCS [super selection grade] had retired from the service on 30.06.2017. In his case also the annual increment was due on 01.07.2018. On consideration of his service from 01.07.2018 to 30.06.2019 the increment was due on 01.07.2019. But the benefit of the said increment was not granted to the petitioner while determining his last pay on 30.06.2019. The petitioner in WP(C)No.316 of 2021 has also made the representation to the competent authority on 08.12.2020 [Annexure-1 to the writ petition] and in response thereof, the Finance Department by their letter under No.F.5(28)- Fin(E)/91 dated 20.03.2021 has stated that the petitioner was only entitled to the yearly increment on 01.07.2019 in terms of the TSCS(ROP)Rules, 2009.
12. The question that is pertinent in the controversy is that whether the increment which falls on the following day of retirement can be prepond and added with the last pay of the employee. According to the Madras High Court and Delhi High Court that can be done. As of now, the law relating to the release of increment or preponement thereof has not been examined by the apex court. It appears from the records as produced by Mr. H. Sarkar, learned counsel that one or two matters are pending before the apex court.
13. Having appreciated the submissions of the learned counsel for the parties and scrutinized the records as produced this Court is of the considered view that increment would be due to the petitioner for their service that they had rendered in the proceeding year. There is no blemish or adverse action against Page 8 of 9 them impounding or withholding that increment. As the petitioners have retired on the last day of June, whether their increment should have been released on 1st day of July, 2019 as per the provisions of Tripura State Civil Services (Revised Pay) Rules, 2009. Whether that can be preponed or not. Both the courts have decided that that can be notionally preponed and that can be added to the last pay for purpose of determining the pension only. But this Court is not persuaded by the said case as the release of increment in the case of the petitioners is operated by the following provisions of Tripura State Civil Services (Revised Pay) Rules, 2009 :
"11. Date of increment in the revised pay structure :
(1) In respect of all employees, there shall be a uniform date of annual increment and such date of annual increment shall be the 1st day of July every year."
14. This Court is not aware whether the similar provision was operating in the matters considered by the Madras High Court and the Delhi High Court. That apart, release of increment is for purpose of service in future as well. The Court cannot read down the provisions of the rules as framed under proviso to Article 309 of the Constitution of India inasmuch as only where provisions of a statute of vague an ambiguous and it is not possible to gather the intention of the legislature from the object of the statute, the contest in which the provisions occur and purpose for which it is made the doctrine of reading down can be applied. The State Government is the competent authority to relook into this matter and they in their wisdom can only carve out an exception for the cases similar to the petitioners and provide for preponing of the release of the increment if the incumbents complete one year of service without blemishes.
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15. Thus, the respondents are directed to take up this exercise whether the yearly increment can be released one day before the day on considering completion of one year of service as required. The State Government in the Finance Department shall take up such exercise and give their decision taking all relevant considerations including the judgments of the Madras High Court and the Delhi High Court within a period of three months from the date of receiving a copy of this order. The release of the increment and its assimilation with the last pay would depend on such decision.
In terms of the above, this writ petition stands disposed of.
JUDGE Sabyasachi B