Central Administrative Tribunal - Cuttack
Ranjan Kumar Panda vs East Coast Railway on 2 July, 2024
1 O.A.No. 260/00248 of 2024
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00248 of 2024
Reserved on: 27.06.2024 Pronounced on 02.07.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
1. Ranjan Kumar Panda, aged about 64 years, Son of Late Hari
Krishna Panda, Retired Tech(Mech) Gr.I, under
SSE(Paint)/ECOR/CRW/MCS, resident of House No.M-09,
Post-KIIT, Patia, Bhubaneswar-751024, Dist.-Khurda.
2. Niranjan Dalei, aged about 64 years, Son of Late Sahadev
Dalei, Retired Tech Gr.I, under SSE(Carpenter)/
ECOR/CRW/MCS, resident of Plot No.6202/11604,
Loknath Vihar, Bhotapada, Bhubaneswar-751017, Dist.-
Khurda.
..... Applicants
For the Applicant : Mr. N.R.Routray, Counsel
-Versus-
1. Union of India, represented through the General Manager,
East Coast Railway, Rail Sadan, Chandrasekharpur,
Bhubaneswar-751017.
2. Chief Workshop Manager, Carriage Repair Workshop, East
Coast Railway, Mancheswar, Bhubaneswar- 751017, Dist.-
Khurda.
3. Work Shop Personnel Officer, Carriage Repair Workshop,
East Coast Railway, Mancheswar, Bhubaneswar-751017,
Dist.- Khurda.
.....Respondents
For the Respondents: Mr. D.P.Mohapatra, Counsel
2 O.A.No. 260/00248 of 2024
O R D E R
SUDHI RANJAN MISHRA, MEMBER (JUDL.):
The case of the applicants is that while working on different posts under the respondents department they retired from service on 30.06.2020 on attaining the age of superannuation vide Annexure-A/1 series. It is submitted by Ld. Counsel for the applicants that although the applicants had completed one year of service from 30.06.2019 to 30.06.2020, they were not granted one notional increment on the ground that they were out of service on 01.07.2020. It is submitted by him that issue of grant of one notional increment to those government employees, who retired on 30th June after completing one year service is no more res integra as per order dated 23.07.2018 of Hon'ble Apex Court in SLP(C) Diary No. (S) 22283 of 2018 and order dated 23.07.2018 in SLP (C) No. 22008 of 2018. He has further relied on the various decisions of different courts/tribunals, viz. order of CAT, Ernakulam Bench in OA No. 180/1055/2018, order of the Hon'ble High Court of Delhi in W.P.(C) No. 10509 of 2019 (Gopalsingh Vs. UOI & Ors.). It is submitted by Ld. Counsel for the applicant that after the order of the Hon'ble Apex Court in the case of UOI Vs. M.Siddaraj, SLP 3 O.A.No. 260/00248 of 2024 (C) No. 4722/2021, dated 19.05.2023, the railway board vide letter dated 02.08.2023 has clarified for grant of notional increment in favour of the employees those who have got orders from court of law. Further, as per the order dated 19.04.2022 of this Bench of the Tribunal in OA 164/2021 (Nirmal Kumar Nayak & Ors. Vs. UOI & Ors.), Railways have already granted one notional increments to the applicants therein.
Applicants being on the similar footing, Ld. Counsel for the applicants prays for similar relief to them. Accordingly, they have filed this OA with the following prayers:
"i. To direct the respondents to grant notional increment w.e.f. 01.07.2020;
ii. And to direct the respondents to release the differential pensionary benefits i.e. DCRG, Commuted Value of Pension, Leave Salary & Arrear Pension with 12 % interest for the delayed period.
And pass any other order............"
2. Respondents have filed their counter. The sum and substance of their argument is that as per Para 1801 of IREC Vol. II, the applicants, on attaining the age of sixty years, retired on the afternoon of 30 th June, 2020 and they were not in service as on 1st day of July, 2020 and, hence, they are not eligible for one notional increment. As per Rule 10 of RS 4 O.A.No. 260/00248 of 2024 (RP) Rules, 2008 (R/2), the date of annual increment is fixed uniformly on 1st July of every year. It is submitted by the Ld. Counsel for the respondents that decision of the Hon'ble High Court of Madras in the case of P.Ayyamperumal is rendered per incuriam as it did not consider the judgments of the same Hig Court passed in W.P.No. 28433 of 2005 (UOI & Ors. Vs. R.Sundar Rajan) dated 28.01.2009 etc. Further, there being financial implications and huge ramification, Ministry of Railways issued clarification vide letter dated 09.02.2024 and advised the zonal railways for granting benefit of notional increment on personam basis subject to any administrative directions received from DoP&T and fulfillment of other conditions. They have also denied the applicability of M.Sidharaj case in the instant matter, the judgment to be per incuriam. It has been averred in the counter affidavit that in adherence to Railway Board's guidelines vide letter dated 04.01.2024, the benefit of notional increment was extended in favour of Sri Nirmal Kumar Nayak, applicant in OA No. 164/2021 and others on fulfillment of terms and condition as contained in the said letter as they have completed 12 months of service on the date of their retirement on superannuation since the date of drawal of last annual increment subject to cross 5 O.A.No. 260/00248 of 2024 verification of their eligibility of notional increment and any further administrative directions received from DOP&T. Further the matter of granting of notional increment is in active consideration of the Department of Personnel & Training (DOP&T) and Railway Board. Ld. Counsel for the respondents has relied on the decision of the Hon'ble High Court of Himachal Pradesh in W.P.(C) No.2503/2016 (Hari Prakash Vs. State of HP & Ors.) where the Hon'ble Court has held that "Therefore, it cannot be said that by dismissal of SLP against the judgment rendered in P.Ayyammperumal's case (supra) and Apex Court had laid down the binding principle of law that increment which falls due on first day post the retirement of an employee is to be granted to him only for the reasons that he had rendered 12 months of service on the day of his retirement. Ld. Counsel for the respondents has raised objection with regard to delay in filing this OA. Accordingly, respondents have prayed for dismissal of this OA.
3. We have heard Ld. Counsel for both the parties and have perused the documents on record vis a vis the decisions relied on by the respective parties. So far as the contentions raised by the respondents with regard to delay in filing this OA, it is seen that the applicants have 6 O.A.No. 260/00248 of 2024 filed MA 286/2024 seeking condonation of delay on the ground that the issue relating to grant of notional increment was set at rest after dismissal of M. Siddaraj case on 19.05.2023. Taking up the point of condonation of delay, Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Yogendra Shrivastava : 2010 (12) SCC 538 had held that where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. It is seen that the applicants retired on 30.06.2020 and have filed this OA on 19.04.2024. Since the pension and pensionary benefits relates to the monetary benefits and are recurring cause of action, we are not impressed with the arguments of the respondents especially in view of the decision of the Hon'ble Apex Court in the case of Yogendra Shrivastava (supra). Hence, the delay is condoned. MA 286/2024 is accordingly disposed of.
4. So far as merit of the matter is concerned, it is noticed that there has been number of decisions rendered by the various Benches of the Tribunal, Hon'ble High Court and Hon'ble Apex Court in support of the 7 O.A.No. 260/00248 of 2024 claim of the applicant for granting notional increment. The matter has been finally set at rest by the order of the Hon'ble Apex Court in the case of The Director (Admn and HR) KPTCL & Ors. Vs. C.P.Mundinamani & Ors (supra), relevant portion of which is quoted herein below:
"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 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 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, 8 O.A.No. 260/00248 of 2024 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 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 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 9 O.A.No. 260/00248 of 2024 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 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."
6.6 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 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 10 O.A.No. 260/00248 of 2024 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 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 P. Ayyamperumal (supra); the Delhi High Court in the case of Gopal Singh (supra); the Allahabad High Court in the case of Nand Vijay 11 O.A.No. 260/00248 of 2024 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 Takhatsinh 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 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. However, in the facts and circumstances of the case, there shall be no order as to costs."
5. Ld. Counsel for the respondents contended that the decisions of Hon'ble Apex Court and other courts are judgment in personam and not in rem. Hon'ble High Court of Orissa in WP (C) No. 17715 of 2020 (Arun Kumar Biswal Vrs State of Orissa) has held as under:
"18. In view of the facts and law, as discussed above, this Court is of the considered view that the petitioner, having rendered service from 01.01.2019 to 31.12.2019 for a period of 12 months and his increment having due on 01.01.2020 and he having stood at par with P. Ayyamperumal (supra), is entitled to get the notional increment for the year i.e. from 01.01.2019 to 31.12.2019 for the purpose of pensionary benefits only. Accordingly, it is directed that the benefits admissible to the petitioner be re-fixed taking into account the notional increment admissible to the petitioner by 01.01.2020 and the same should be paid as early as possible by revising the pension as due, preferably within a period of 3 (three) months from the date of 12 O.A.No. 260/00248 of 2024 communication of this judgment. Consequentially, the order dated 14.07.2020 in Annexure-3, whereby the representations of the petitioner have been rejected, is liable to be quashed and is hereby quashed."
6. It is well settled principle as per decision of Hon'ble Apex Court in the case of State of Uttar Pradesh & Ors vrs Arvind Srivastava & Ors., (2015) 1 SCC 347, that "The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule 16 (2015) 1 SCC 347 Civil Appeal a/o. of SLP (C) No. 2946 of 2020 & Ors. Page 13 of 15 would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently."
7. Having gone through the entire case of the applicants vis a vis the law laid down by the Hon'ble Apex Court and Hon'ble High Court of Orissa, as quoted above, the stand taken by the respondents has lost its 13 O.A.No. 260/00248 of 2024 significance leading to the irresistible conclusion that the applicants are entitled to the reliefs sought for in this OA. Accordingly, the Respondents are directed to grant them one notional increment w.e.f. 01.07.2020 and refix their pay and to pay the arrears of pension and pensionary benefits within a period of 90 (ninety) days from the date of receipt of a copy of this order.
8. In the result, this OA stands allowed. Parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS