Delhi High Court
Union Of India (Uoi) vs Birbal Arora on 21 September, 2005
Equivalent citations: 124(2005)DLT349, 2005(84)DRJ540
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Sanjiv Khanna
JUDGMENT Mukundakam Sharma, J.
Page 1412
1. The issue that falls for our consideration in this writ petition is as to whether or not the respondent is entitled to payment of increment, which accrued on 1st March, 1996 despite the fact that the respondent stood retired from service on superannuation with effect from 29th February, 1996.
2. The respondent retired from service from the Northern Railway Headquarters Office, Baroda House, New Delhi on 29th February, 1996 with basic pay of Rs. 3125/- in the pre-revised scale of Rs. 2375-3500/-. In accordance with the provisions of Rule 5(2) of the CCS (Pension) Rules, 1972 which correspond to similar provision in the Railway Pension Rules, 1993, the last working day of the respondent was 29th February, 1996 and on 1st March, 1996 the respondent stood retired from service and was not working on 1st March, 1996. The annual increment of the respondent which otherwise would have been due on 1st of March of the year would have accrued on 1st March, 1996 if it is held that he was also in service on that day. The petitioner took a conscious decision that the respondent was not in Railway service as on 1st March, 1996 and, therefore, he is not entitled to grant of increment effective on 1st March, 1996. In terms of the said decision his all dues were settled as per last basic pay of the respondent at Rs. 10,150/- and he was also granted retirement pensionary benefits.
3. The respondent as it appears was also not aggrieved by the aforesaid retirement benefits paid to him minus the benefit of increment of 1st March, 1996 which is established from the fact that he never made any representation to the Railways praying for grant of the increment accruing on 1st March, 1996 and fixing his pension on the basis thereof.
4. After expiry of about nine years, the respondent filed an Original Application before the learned Central Administrative Tribunal which was registered as OA No. 633/2004 contending, inter alia, that in the light of the decision of the Supreme Court in S. Banerjee v. Union of India and also in the light of the decision of the Andhra Pradesh High Court in Union of India and Ors. v. R. Malakondaiah and Ors. reported in 2002 (4) SCT 93 the respondent is entitled to earn increment which accrued on 1st March, 1996 and that non-payment of the same amounts to arbitrary action on the part of the petitioner.
5. The learned Tribunal heard the parties on the said plea of the respondent and relying on the decision of the Andhra Pradesh High Court and the aforesaid decision of the Supreme Court held that the respondent would be entitled not only to payment of fixation of pension and other retiral benefits also upon computation of the said last increment accruing on 1st March, 1996 but the respondent would also be entitled to consequential benefits of pay and allowances.
Page 1413
6. Being aggrieved by the aforesaid judgment and order the present writ petition was filed in this court. The plea taken up by the counsel appearing for the petitioner for assailing the impugned judgment and order was that the two decisions which form the basis of the impugned judgment and order are clearly distinguishable on facts and, therefore, the learned Tribunal acted illegally and without jurisdiction in passing the impugned order solely relying on the said two decisions. It was also contended that increment admittedly falls due on 1st March, 1996 on which date the respondent was not in service and, therefore, it cannot be held that the respondent is entitled to benefit of the said increment despite the fact that on the said day the respondent stood superannuated from service.
7. Counsel for the respondent, however, placed his reliance solely on the aforesaid two decisions and submitted before us that the entire issue that falls for consideration before this court is squarely covered and governed by the aforesaid two decisions. In order to appreciate the aforesaid contention, we have perused the aforesaid two decisions, namely, S. Banerjee (supra) and Union of India v. R. Malakondaiah and others (supra).
8. In the case of S. Banerjee (supra), the Supreme Court was dealing with the case of availability of benefit of revised pension to employees retiring from 1st January, 1986 to 30th September, 1986. The writ petitioner in the said petition went on voluntary retirement pursuant to an order which was passed permitting him to retire with effect from 1st January, 1986. Consequentially, the writ petitioner claimed the benefit of the recommendation of the Pay Commission as contained in paragraph 17.3 but the same was rejected on the ground that he did not draw salary for 1st January, 1986 in view of the proviso to Rule 5(2) of the Central Civil Services (Pension) Rules, 1972. In the light of the aforesaid facts, the Supreme Court held that the petitioner therein retired from service with effect from the forenoon of 1st January, 1986 and that as per the order the petitioner retired as soon as 1st January commenced and not on 31st December, 1985 and, therefore, it was held that the case of the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission and, therefore, he was entitled to benefit there under. Therefore, the facts in the light of which the aforesaid decision was rendered by the Supreme Court were clearly distinguishable as in that case the petitioner retired from service with effect from 1st of January, 1986 and that he did not retire from service on 31st December, 1985. Since he was in service on 1st January, 1986, therefore, the benefit which was made available to employees retiring from 1st January, 1986 to 30th September, 1986 was made available to the petitioner. The said decision, therefore, is clearly distinguishable in facts as in the present case the respondent stood retired from service at the end of the day of 29th February, 1996 and he was not in service on 1st March, 1996 when the aforesaid increment fell due.
9. Regulation No. 151 of the Civil Service Regulations provides as under:
"An increment accrues from the day following that on which it is earned."
It is therefore, clear that the increment would fall due and accrue in the case of the petitioner only on 1st March, 1996.
Page 1414
10. Retirement is always effective on the mid night of the day preceding the date of birth of person. If the date of birth is 1st March, the person stands retired on the mid night of 29th February. He cannot be said to be in service on 1st March, 1996. In our considered opinion, the Division Bench of the Andhra Pradesh High Court fell into an error in computing and coming to the conclusion as to whether or not the respondent No. 1 was in service on 1st July, 1996. The said mistake has been corrected now by a larger Bench. The Full Bench of Andhra Pradesh High Court in the case of Principal Accountant General, Andhra Pradesh v. C. Subbarao and Ors. 2005(2) Administrative Total Judgments 283, has overruled the earlier judgment of Division Bench of Andhra Pradesh High Court in the case of Union of India v. R. Malakondaiah, 2002 (4) Administrative Total Judgments 550. The Full Bench of Andhra Pradesh High Court after examining the relevant rules, has held that on retirement an employee ceases to be a government servant at mid night. An increment which would become payable only from the next day is not payable to a person who has ceased to be a government servant at mid night of the earlier day on attaining age of superannuation. Therefore, reliance on the said over-ruled decision is misplaced. Accordingly, in our considered opinion the decision of the Supreme Court which is relied upon and referred to in the impugned judgment is distinguishable on facts and the ratio of the said decision is not applicable to the facts and circumstances of the present case. The learned Tribunal erred in making reference and relying on both the decisions and also not applying the ratio of the aforesaid decisions properly to the facts of the present case. In our considered opinion as the increment fell due and accrued only on 1st March, 1996 when the respondent was not working and stood retired from service on the mid night of 29th February, 1996, the increment cannot be earned by him.
11. We hold that the petitioner computed the pay and allowances rightly and properly on the last pay drawn by the respondent for the purpose of fixation of his pension.
12. A plea with regard to the limitation was raised before us as according to the petitioner the claim was also barred by limitation. Although the respondent stood retired from the mid night of 29th February, 1996, the aforesaid plea was raised for the first time only in 2004. Therefore, there was definitely delay and laches on the part of the respondent in raising the said issue before the learned Tribunal. He had accepted till then without any protest, the pension fixed on the basis of the last pay drawn by him and never raised a dispute/ plea that he had earned another increment which had accrued on 1st March, 1996. However, it is settled law that payment of pension is a continuing cause of action and, therefore, the arrear pension, if any, would have been made available to him only for a period of three years from the date of filing of the Original Application before the learned Tribunal. However, since we are dismissing the claim of the respondent on merits, therefore, the said plea of limitation has been rendered irrelevant in the facts and circumstances of this case.
13. In terms of the aforesaid order, the writ petition is allowed holding that the respondent is not entitled to the benefit of increment as on 1.3.1996 as it did not accrue to him. No cost.