Central Administrative Tribunal - Allahabad
Shambhu Narain Upadhaya vs East Central Railway on 10 April, 2023
OPEN COURT
Central Administrative Tribunal, Allahabad Bench, Allahabad
****
Original Application No. 330/00944/2022
This the 10th day of April 2023
Hon'ble Mr. Justice Om Prakash-VII, Member (J)
Shambhu Narain Upadhyaya, aged about 66 years, son of Late Shri
Kant Upadhyaya, R/o House No. 668/A, Bechupur, Kailashpuri, Pt.
Deen Dayal Upadhyaya Nagar, Chandauli, U.P 232101 retired as Mail
Express Guard from Pt. Deen Dayal Upadhyay, E.C.R.
.......Applicants
By Advocate: Shri Jaswant Singh
VERSUS
1. The Union of India through the General Manager, East Central
Railway, Hajipur.
2. The Divisional Railway Manager, East Central Railway, Pt.
Deen Dayal Upadhyay.
3. The Senior Divisional Personnel Officer, East Central Railway,
Pt. Deen Dayal Upadhyay.
4. The Secretary, Department of Personnel and Training, Ministry
of Personnel Public Grievances and Pensions, Government of
India, New Delhi.
.........Respondents
By Advocate: Ms. Rachna Dubey
ORDER
I have heard learned counsel for the parties and perused the pleadings of the parties as well as the judgments relied upon by learned counsel for the parties.
2. Learned counsel for the applicant states that the present matter is squarely covered with the judgments and orders passed by Hon'ble Supreme Court and Hon'ble High Court. To substantiate this argument, learned counsel also referred to the judgment and orders annexed with the Original Application and further argued that the applicant retired on 30.06.2016, thus notional increment will accrue on 31.07.2016,
3. The applicant has filed the present O.A. against inaction of the respondents for not allowing him to draw one notional increment for the purpose of pensionary benefits and expressing the inability to extend the 2 benefits of Hon'ble High Court of Madras in the case of Shri P. Ayyamperumal (W.P. No. 15732/2017).
4. Learned counsel for the applicant submits that generally, annual increments are given in a routine manner to all the government servants, after completion of one year of unblemished service, unless such is withheld as a measure of punishment, Until 1.1.2006, the date of implementing employees annual increment was fixed on the basis of his/her date of appointment. After 6th Pay Commission, it was decided by the Central Government that 1st July of each year would be the date of annual increment for all government employees, by amending Rule 10 of Central Civil Services (Revised Pay) Rules 2008. In view of the said amendment, the applicant, who had retired on 30th June, 2015 was denied his last annual increment. Being aggrieved, the applicant had approached this Tribunal for direction to consider the claim of the applicant for making payment of increment which was not provided by the respondents and revised the payment of retiral dues and pension of the applicant from the date of retirement.
5. Learned counsel for the applicant has vehemently contended that having fully completed last year of service commencing from 1st July to 30th June, the applicant is rightful and bonafide claimant of the annual increments, which would have been granted to him, but only due to the reason that he retired on the last date of June, on completion of the year, while the increment would have been paid on 1st of July he is deprived from getting it.
6. It is further contended that a similar matter was agitated previously before CAT, Madras Bench of this Tribunal, by means of O.A. No.917 of 2015. However, the said O.A. was dismissed by the Madras Bench of Tribunal vide order dated 21.3.2017. Aggrieved by the said order of the Tribunal, the applicant in that OA, approached before the Hon'ble Madras High Court by means of Writ Petition No.15732 of 2017 (Shri P. Ayyamperumal vs. UOI & Ors) which was allowed by the Hon‟ble Madras High Court vide judgment dated 15.09.2017. Accordingly, the Tribunal's order was set aside and the respondents were directed to grant one notional increment for the period from 01.07.2012 to 30.06.2013, as the petitioner had completed one full year of service before 01.07.2013.
37. The judgment of Hon'ble Madras High Court, was challenged by the respondents' department through SLP (C) No.22008 of 2018 by the Union of India before Hon'ble Supreme Court but the same was dismissed vide order dated 23.07.2018 by the Hon'ble Supreme Court on merits. A review petition No.1731 of 2019, filed by the Union of India against the dismissal of aforesaid SLP was also dismissed on merits by Hon'ble Apex Court.
8. Learned counsel for the applicant has further contended that the identical controversy has also been settled by the Hon'ble High Court of Madhya Pradesh in Writ Petition No.2398 of 2019 Dr. Saiyad Ghazafar Istiaque vs. The state of M.P. & Ors, vide judgment dated 11.03.2019, whereby the respondents have been directed to consider the claim of the petitioner on the anvil of the decision of the Hon'ble Madras High Court and to grant the petitioners the relief claimed by them, after properly fixing the salary by adding the increment due to them on 01.07.2016.
9. During the course of arguments, learned counsel for the applicant has placed on record a copy of the judgment of Hon'ble Allahabad High Court in Writ A No. 14527 of 2022 along with connected case (Union of India and others Vs. Shiv Balank and others) filed by the Union of India passed on 15.12.2022. In this case Hon'ble Allahabad High Court upheld the orders of the Tribunal and dismissed the writ petitions. For ready reference, aforesaid judgment is reproduced below:-
"Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri Archit Mehrotra, learned Central Government Standing Counsel for the petitioner and counsel for the respondents in respective writ petitions.
2. The short question involved in this bunch of writ petitions is as under :
"Whether employees who retired on 30th June are entitled to the last annual increment made effective from on 1st July?"
3. This bunch of writ petitions were heard on several occasions and an interim order dated 03.11.2022 was passed in ignorance of the order passed by Hon'ble Supreme Court in Civil Appeal N.7970 of 2022 (Union of India and others Vs. 671534-K Ex HFL Sarvesh Kumar) dated 31.10.2022. Therefore, this Court passed an order dated 11.11.2022 in connected Writ A No. 18143 of 2022 as under :
"1. Heard Sri S.P. Singh, learned Additional Solicitor General of India assisted by Sri Archit Mehrotra and Sri Amitabh Kumar Sinha, learned Counsel for the 4 petitioners and Sri Saiyed Jafar Ishtiaque, learned Counsel for the respondent nos. 2 to 5 in the connected Writ -A No.18191 of 2022. 2. Short question involved in both the writ petitions is as under:-
"Whether employees who retired on 30th June are entitled to the last annual increment made effective from on 1st July?"
3. A bunch of writ petitions being leading Writ A No.14527 of 2022 were heard by this Court on 12.10.2022 and were reserved for orders. The orders were delivered on 03.11.2022, granting interim relief to the petitioner-Union of India, on the strength of interim order dated 01.08.2022 granted by Hon'ble Supreme Court in the Special Leave to Appeal (C) No.12190 of 2022. The interim order passed by Hon'ble Supreme Court in the aforesaid Special Leave to Appeal is reproduced below:-
"Issue Notice.
In the meanwhile, there will be stay of operation of the order impugned judgment and order.
The petitioners shall, however, pay retiral dues of the respondent computed on the basis of the last pay drawn by him on the date of his retirement without prejudice to the rights and contentions of the parties. Tag with SLP (C) No. 4722 of 2021.
4. Thus in a batch of writ petitions being leading Writ A No.14527 of 2022, this Court passed interim orders on 03.11.2022, in terms of the aforesaid interim order passed by the Hon'ble Supreme Court.
5. However, when the present writ petitions have been taken up, as fresh case, learned Counsel for the respondent nos. 2 to 5 in the connected Writ -A No.18191 of 2022 pointed out as under:-
(i) A division Bench of Madras High Court in Writ Petition No.15732 of 2017, (P. Ayyamperumal versus The Registrar, Central Administrative Tribunal and 3 others), passed a final judgment observing / holding as under:-
"6. In the case on hand, the petitioner got retired on 30.06.2013. As per the Central Civil Services (Revised Pay) Rules, 2008, the increment has to be given only on 01.07.2013, but he had been superannuated on 30.06.2013 itself. The judgment referred to by the petitioner in State of Tamil Nadu, rep. by its Secretary to Government, Finance Department and other v. M.Balasubramaniam, reported in CDJ 2012 MHC 6525, was passed under similar circumstances on 20.09.2012, wherein this Court confirmed the order passed in W.P. No.8440 of 2011 allowing the writ petition filed by the employee, by observing that the employee had completed one full year of service from 01.04.2002 to 31.03.2003, which entitled him to the benefit of increment which accrued to him during that period.
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 5 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. No costs."
(ii) Against the aforesaid judgment of Madras High Court, the Union of India has filed Special Leave Petition (Civil) Diary No.22283 of 2018, (Union of India and others versus P. Ayyamperumal), which was dismissed by Hon'ble Supreme Court by order dated 23.07.2018, as under:-
"On the facts, we are not inclined to interfere with the impugned judgment and order passed by the High Court of Judicature at Madras. The special leave petition is dismissed."
(iii) Against the aforesaid order dismissing the Special Leave Petition, the Union of India filed a Review Petition (C) No.1731 of 2019, (Union of India and others versus P. Ayyamperumal), which was dismissed by Hon'ble Supreme Court by order dated 08.08.2019, as under:-
"Delay in filing the Review Petition is condoned.
This review petition has been filed against the order dated 23rd 7 July, 2018 whereby the Special Leave Petition was dismissed. We have considered the review petition on merits. In our opinion, no case for review of order dated 23rd July, 2018 is made out. Consequently, the review petition is dismissed on merits.
Pending application filed in the matter also stands disposed of."
(iv) Writ Petition No.6396 of 2020, (Prakash Tulshiram Chaudhari versus The State of Maharashtra and others), involving similar controversy was allowed by Bombay High Court by judgment dated 24.06.2021 in which the above noted judgment of Madras High Court in the case of P. Ayyamperumal (supra) was followed and it was held that the petitioner who was superannuated on 30.06.2019 would be entitled to the last annual increment, which he has been deprived of and the respondents shall, accordingly, calculate the said monetary benefits expeditiously and also recalculate his pension, gratuity, earned leave, commutation benefits, etc., and make the payment of arrears.
(v) Against the aforesaid judgment of Bombay High Court, the Union of India filed a Special Leave to Appeal (C) No.206 of 2022 which was dismissed by Hon'ble Supreme Court by order dated 12.01.2022, as under :-
"We are not inclined to interfere with the impugned order. The Special Leave Petition is, accordingly, dismissed.
Pending application also stands disposed of. "
(vi) Writ Petition (C) No.10509 of 2019, (Gopal Singh versus Union of India and others), involving identical question, was disposed of by Delhi High Court by judgment dated 23.01.2020, as under :-
"7. Having perused the judgment of the Madras High Court, the Court is of the view that the facts in the case at hand are identical to the facts in the petition before the Madras High Court, with the sole point of divergence 6 being the fact that the Petitioner herein was serving in the CISF and the Petitioner before the Madras High Court was with the Customs and Excise Department. Further, it is seen that the SLP against the judgment of the Madras High Court has also been dismissed on merits.
8. More recently, this Court in its decision dated 13th January, 2020 in W.P.© 5539/2019 (Arun Chhibber v. Union of India) has discussed the judgment in P. Ayyamperumal at some length in the context of the prayer of an officer of the Central Reserve Police Force ('CRPF') who had retired on 30th June, 2007 for notional increment. The Court rejected the contention of the Respondents therein that the judgment in P. Ayyamperuam had to be treated as one that was in personam and not in rem. In relation to the Respondent's attempt to distinguish the applicability of the judgment in P. Ayyamperumal to CRPF personnel, the Court observed as under:-
"5. The Court finds that the only difference, if any, between P. Ayyamperumal (supra) and this case is that the former was an employee of the Central Government, whereas here the Petitioner superannuated from the CRPF. The Court, therefore, finds no reasons to deny the Petitioner same relief granted to Mr. P. Ayyamperumal by the Madras High Court. The similarity in the two cases is that here too, the Petitioner has completed one year of service, just one day prior to 1st July, 2007."
9. The position here as regards CISF personnel can be no different and it was not, therefore, open to the Respondents to refuse to grant to the Petitioner notional increment merely because he superannuated a day earlier than the day fixed by the CPC for such benefit to accrue.
10. Accordingly, the impugned order dated 3rd May, 2019 is set aside. A direction is issued to the Respondents to grant notional increment to the Petitioner with effect from 1st July, 2019. The Petitioner's pension will consequentially be re-fixed. The appropriate orders will be issued and arrears of pension will be paid to the Petitioner within a period of 6 weeks, failing which the Respondents would be liable to simple interest at 6% per annum on the arrears of period of delay.
11. The petition is disposed of. "
(vii) Against the aforesaid judgment of Delhi High Court, the Union of India filed a Special Leave Petition (Civil) Diary No.13959 of 2020 which was dismissed by Hon'ble Supreme Court by order dated 13.10.2020, as under:-
"The Court is convened through Video Conferencing. Heard learned Counsel for the petitioners and carefully perused the record. Delay condoned.
We see no reason to interfere with the impugned order passed by the High Court.
The special leave petition is, accordingly, dismissed."
(viii) Against the aforesaid judgment of Delhi High Court, the Union of India filed a Review Petition (Civil) D. No.6844 of 2021 which was dismissed by Hon'ble Supreme Court by order dated 26.07.2022, as under :-
"Delay condoned.7
The instant petition for review has been filed by the petitioner against the dismissal of aforementioned Special Leave Petition vide this Court's order dated 13.10.2020.
Having carefully perused the petition for review and the papers connected therewith, we do not find any reason for reconsideration of the order impugned.
The Review Petition is, accordingly, dismissed."
(ix) Original Application No.366 of 2020, (671534-K Ex HFL Sarvesh Kumar versus Union of India and others), involving similar question, was allowed by Armed Forces Tribunal, Regional Bench, Lucknow by order dated 12.08.2021 holding as under:-
"8. In view of law laid down by the Hon'ble Madras High Court, upheld by the Hon'ble Apex Court we are of the view that since the applicant had completed one full year service as on 30.06.2014, but the increment fell due on 01.07.2014, on which date he was not in service. In view of the above judgment, 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.
9. In view of the above, the Original Application No.366 of 2020 deserves to be allowed, hence allowed. The impugned order dated 04.01.2019, annexed as Annexure No. A-1 with Original Application, is set aside. The applicant shall be given one notional increment for the period from 01.07.2013 to 30.06.2014, as he has completed one full years of service, thought his increment fell on 01.07.2014, for the purpose of pensionary benefits and not for any other purpose. The respondents are directed to issue fresh Corrigendum P.P.O. accordingly. The respondents are further directed to give effect to this order within a period of four months from the date of receipt of a certified copy of this order. Default will invite interest @ 8% per annum till the actual payment."
(x) Against the aforesaid order of the Armed Forces Tribunal, Regional Bench, Lucknow the Union of India has filed Civil Appeal No.7970 of 2022, (Union of India and others versus 671534-K Ex HFL Sarvesh Kumar) which has been dismissed by Hon'ble Supreme Court by judgment and order dated 31.10.2022, as under :-
"Application for leave to Appeal is allowed.
Delay condoned.
We have heard learned Additional Solicitor General for the appellant and perused the record.
We do not see any cogent reason to entertain the Appeal. The judgment impugned does not warrant any interference.
The Appeal is dismissed."
Thus the order of the Armed Forces Tribunal, Regional Bench, Lucknow has been upheld by the Hon'ble Supreme Court dismissing the civil appeal of the Union of India.
6. In view of the facts and legal position noted above, prima-facie it appears to us that the controversy involved in the present writ petitions and all other 8 similar writ petitions pending in this Court including leading Writ A No.14527 of 2022 and other writ petitions connected therewith, are covered by the judgment of Hon'ble Supreme Court. Thus, the question which is involved in the present writ petitions and all other similar writ petitions pending in this Court, prima-facie appears to be squarely covered by the judgment of Hon'ble Supreme Court which affirmed the judgment of Madras High Court, Bombay High Court, Delhi High Court and Armed Forces Tribunal, Regional Bench, Lucknow.
7. In view of the afore said, we direct the Union of India to file a supplementary affidavit taking a clear stand with respect to the merits of the writ petitions in view of the judgments afore noted.
8. The Union of India is not an ordinary litigant. There is a national litigation policy also. The Union of India cannot be selective with respect to the question involved in these writ petitions. It has to take a uniform stand with respect to all similarly situated persons. Therefore, we direct that supplementary affidavit on behalf of the Union of India shall be filed by a responsible officer positively within three weeks.
9. Hearing of all similar writ petitions pending in this Court is preponed. List/put up in the additional cause list for further hearing on 05.12.2022 at 10:00 A.M. along-with all similar writ petitions including leading Writ A No.14527 of 2022 and all writ petitions connected therewith."
4. Despite directions given in paragraph 7 and 8 of our aforequoted order dated 11.11.2022, the Union of India has not filed a supplementary affidavit.
5. On the request of learned Central Government Standing Counsel, this Court adjourned the matter by order dated 05.12.2022, passed in leading Writ A No.14527 of 2022 as under :
"Heard learned Counsel for the parties.
For reasons recorded in the order dated 11.11.2022 in Writ A No.18143 of 2022, hearing in this Bunch of writ petitions was preponed and today's date was fixed. We had granted interim order dated 03.11.2022 on impression given to us that an interim order has been passed by Hon'ble Supreme Court on 01.08.2022 in Special Leave to Appeal (C) No.12190 of 2022 whereas similar controversy as involved in the present writ petitions were finally decided by Hon'ble Supreme Court by order dated 31.10.2022 in Civil Appeal No.7970 of 2022. Today Sri Archit Mehrotra, learned Central Government Standing Counsel states that learned ASGI is not available today and therefore matter may be taken up on 15.12.2022 by which date the supplementary affidavit as directed by this Court by order dated 11.11.2022 in the connected Writ A No.18143 of 2022, shall be filed. As prayed by learned Counsel for the petitioners, list/put up on 15.12.2022 at 10:00 AM for further hearing, along-with all connected and similar writ petitions."
6. Despite the directions given in aforequoted orders dated 11.11.2022 and 05.12.2022 the Union of India has chosen not to file supplementary affidavit. Learned Central Government Standing Counsel again prays for time. The prayer is rejected.
97. We find that similar question as involved in the present writ petitions and noted in paragraph 2 above has been subject matter of consideration before certain High Courts, Tribunals and Hon'ble Supreme Court which we proceed to notice below.
8. A division Bench of Madras High Court in Writ Petition No.15732 of 2017, (P. Ayyamperumal versus The Registrar, Central Administrative Tribunal and 3 others), passed a final judgment observing / holding as under:-
"6. In the case on hand, the petitioner got retired on 30.06.2013. As per the Central Civil Services (Revised Pay) Rules, 2008, the increment has to be given only on 01.07.2013, but he had been superannuated on 30.06.2013 itself. The judgment referred to by the petitioner in State of Tamil Nadu, rep. by its Secretary to Government, Finance Department and other v. M.Balasubramaniam, reported in CDJ 2012 MHC 6525, was passed under similar circumstances on 20.09.2012, wherein this Court confirmed the order passed in W.P. No.8440 of 2011 allowing the writ petition filed by the employee, by observing that the employee had completed one full year of service from 01.04.2002 to 31.03.2003, which entitled him to the benefit of increment which accrued to him during that period.
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 12 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. No costs."
9. Against the aforesaid judgment of Madras High Court, the Union of India has filed Special Leave Petition (Civil) Diary No.22283 of 2018, (Union of India and others versus P. Ayyamperumal), which was dismissed by Hon'ble Supreme Court by order dated 23.07.2018, as under:-
"On the facts, we are not inclined to interfere with the impugned judgment and order passed by the High Court of Judicature at Madras. The special leave petition is dismissed."
10. Against the aforesaid order dismissing the Special Leave Petition, the Union of India filed a Review Petition (C) No.1731 of 2019, (Union of India and others versus P. Ayyamperumal), which was dismissed by Hon'ble Supreme Court by order dated 08.08.2019, as under:-
"Delay in filing the Review Petition is condoned.
This review petition has been filed against the order dated 23rd July, 2018 whereby the Special Leave Petition was dismissed. We have considered the review petition on merits. In our opinion, no case for review of order dated 23rd July, 2018 is made out. Consequently, the review petition is dismissed on merits.
Pending application filed in the matter also stands disposed of."10
11. Writ Petition No.6396 of 2020, (Prakash Tulshiram Chaudhari versus The State of Maharashtra and others), involving similar controversy was allowed by Bombay High Court by judgment dated 24.06.2021 in which the above noted judgment of Madras High Court in the case of P. Ayyamperumal (supra) was followed and it was held that the petitioner who was superannuated on 30.06.2019 would be entitled to the last annual increment, which he has been deprived of and the respondents shall, accordingly, calculate the said monetary benefits expeditiously and also recalculate his pension, gratuity, earned leave, commutation benefits, etc., and make the payment of arrears.
12. Against the aforesaid judgment of Bombay High Court, the Union of India filed a Special Leave to Appeal (C) No.206 of 2022 which was dismissed by Hon'ble Supreme Court by order dated 12.01.2022, as under :-
"We are not inclined to interfere with the impugned order. The Special Leave Petition is, accordingly, dismissed.
Pending application also stands disposed of.
13. Writ Petition (C) No.10509 of 2019, (Gopal Singh versus Union of India and others), involving identical question, was disposed of by Delhi High Court by judgment dated 23.01.2020, as under :
"7. Having perused the judgment of the Madras High Court, the Court is of the view that the facts in the case at hand are identical to the facts in the petition before the Madras High Court, with the sole point of divergence being the fact that the Petitioner herein was serving in the CISF and the Petitioner before the Madras High Court was with the Customs and Excise Department. Further, it is seen that the SLP against the judgment of the Madras High Court has also been dismissed on merits.
8. More recently, this Court in its decision dated 13th January, 2020 in W.P.© 5539/2019 (Arun Chhibber v. Union of India) has discussed the judgment in P. Ayyamperumal at some length in the context of the prayer of an officer of the Central Reserve Police Force ('CRPF') who had retired on 30th June, 2007 for notional increment. The Court rejected the contention of the Respondents therein that the judgment in P. Ayyamperuam had to be treated as one that was in personam and not in rem. In relation to the Respondent's attempt to distinguish the applicability of the judgment in P. Ayyamperumal to CRPF personnel, the Court observed as under:-
"5. The Court finds that the only difference, if any, between P. Ayyamperumal (supra) and this case is that the former was an employee of the Central Government, whereas here the Petitioner superannuated from the CRPF. The Court, therefore, finds no reasons to deny the Petitioner same relief granted to Mr. P. Ayyamperumal by the Madras High Court. The 14 similarity in the two cases is that here too, the Petitioner has completed one year of service, just one day prior to 1st July, 2007".
9. The position here as regards CISF personnel can be no different and it was not, therefore, open to the Respondents to refuse to grant to the Petitioner notional increment merely because he superannuated a day earlier than the day fixed by the CPC for such benefit to accrue.
1110. Accordingly, the impugned order dated 3rd May, 2019 is set aside. A direction is issued to the Respondents to grant notional increment to the Petitioner with effect from 1st July, 2019. The Petitioner's pension will consequentially be re-fixed. The appropriate orders will be issued and arrears of pension will be paid to the Petitioner within a period of 6 weeks, failing which the Respondents would be liable to simple interest at 6% per annum on the arrears of period of delay.
11. The petition is disposed of. "
14. Against the aforesaid judgment of Delhi High Court, the Union of India filed a Special Leave Petition (Civil) Diary No.13959 of 2020 which was dismissed by Hon'ble Supreme Court by order dated 13.10.2020, as under:-
"The Court is convened through Video Conferencing. Heard learned Counsel for the petitioners and carefully perused the record. Delay condoned.
We see no reason to interfere with the impugned order passed by the High Court.
The special leave petition is, accordingly, dismissed."
15. Against the aforesaid judgment of Delhi High Court, the Union of India filed a Review Petition (Civil) D. No.6844 of 2021 which was dismissed by Hon'ble Supreme Court by order dated 26.07.2022, as under :-
"Delay condoned.
The instant petition for review has been filed by the petitioner against the dismissal of aforementioned Special Leave Petition vide this Court's order dated 13.10.2020.
Having carefully perused the petition for review and the papers connected therewith, we do not find any reason for reconsideration of the order impugned. The Review Petition is, accordingly, dismissed."
16. Original Application No.366 of 2020, (671534-K Ex HFL Sarvesh Kumar versus Union of India and others), involving similar question, was allowed by Armed Forces Tribunal, Regional Bench, Lucknow by order dated 12.08.2021 holding as under:-
"8. In view of law laid down by the Hon'ble Madras High Court, upheld by the Hon'ble Apex Court we are of the view that since the applicant had completed one full year service as on 30.06.2014, but the increment fell due on 01.07.2014, on which date he was not in service. In view of the above judgment, 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.
9. In view of the above, the Original Application No.366 of 2020 deserves to be allowed, hence allowed. The impugned order dated 04.01.2019, annexed as Annexure No. A-1 with Original Application, is set aside. The applicant shall be given one notional increment for the period from 01.07.2013 to 30.06.2014, as he has completed one full years of service, thought his increment fell on 01.07.2014, for the purpose of pensionary benefits and not for any other purpose. The respondents are directed to issue fresh Corrigendum P.P.O. accordingly. The respondents are further directed to 12 give effect to this order within a period of four months from the date of receipt of a certified copy of this order. Default will invite interest @ 8% per annum till the actual payment."
17. Against the aforesaid order of the Armed Forces Tribunal, Regional Bench, Lucknow the Union of India has filed Civil Appeal No.7970 of 2022, (Union of India and others versus 671534-K Ex HFL Sarvesh Kumar) which has been dismissed by Hon'ble Supreme Court by judgment and order dated 31.10.2022, as under :-
"Application for leave to Appeal is allowed.
Delay condoned.
We have heard learned Additional Solicitor General for the appellant and perused the record.
We do not see any cogent reason to entertain the Appeal. The judgment impugned does not warrant any interference.
The Appeal is dismissed.
Thus the order of the Armed Forces Tribunal, Regional Bench, Lucknow has been upheld by the Hon'ble Supreme Court dismissing the civil appeal of the Union of India.
18. In view of the facts and legal position noted above, since the controversy/question involved in the present writ petitions is squarely covered by the judgments/orders of Hon'ble Supreme Court affirming the judgment of Madras High Court, Bombay High Court, Delhi High Court and the Armed Forces Tribunal, Regional Bench, Lucknow, therefore, all the Writ Petitions deserve to be dismissed and the impugned orders of the Tribunal deserve to be affirmed.
20. For all the reasons aforestated all the writ petitions are dismissed and it is held that the employees who retired on 30th June are entitled to the last increment made effective on 1st July.
Order Date :- 15.12.2022/vkg"
10. Learned counsel for the applicant, while citing several judgments of different High Courts and various Benches of Central Administrative Tribunal, in support of his contention has vehemently contended that despite the fact that the controversy involved in this case is no longer res integra and it has been settled by various judgments of Hon'ble High Courts and confirmed by Hon'ble Apex Court, the claim of the applicant for granting one notional increment have been denied by the respondents only on the ground that the judgment passed by the Hon'ble Madras High Court, is a judgment in personam and not a judgment in rem. Whereas, from a bare perusal of all the these judgments cited above, it is quite obvious that the judgment of Hon'ble Madras High Court is a judgment in rem and not just in personam. Moreover, the Hon'ble High Courts while dealing with the matter 13 nowhere have stated that the judgment of Hon'ble Madras High Court is a judgment in personam.
11. The further submission of learned counsel for the applicant is that it is also well settled that one should not be compelled to come to Court or Tribunal for the same controversy again and again which has already been settled earlier. All the similarly situated persons should be treated similarly and should be granted the same benefits without compelling them to approach the Court by filing independent petitions. Hence, the applicant belonging to the same class is also entitled to the same benefits. In this regard, reliance has been placed on the judgment of Hon'ble Apex Court rendered in K.I. Shephard & Ors. V. Union of India & Ors, (1987) 4 SCC 431, in which Hon'ble Apex Court has observed that merely because some of the employees did not come to the court would not provide any justification to penalize them for not having litigated and they are also entitled to the same benefits as persons who have already succeeded.
12. On other hand, learned counsel for the respondents have opposed the prayer of the learned counsel for the applicant on the ground that the applicant has retired on 30th June whereas increment is payable on 1st July of every year, as per amended rule, therefore he is not entitled for notional increment.
13. I have considered the rival submission and have gone the entire record as well as written submission filed by the learned counsel for the parties.
14. In the wake of the law laid down in above cited judgments/orders, it cannot be said that the judgment passed by Hon'ble Madras High Court in the matter of K. Ayyamperumal (supra) as well as judgment passed by Hon'ble Allahabad High Court in Shiv Balank and others (supra) are judgment in personam and not judgment in rem. Moreover, all the matters relating to pay fixation, like present one under consideration, are governed by uniform policy of the Government and therefore, any judgment in these matters are always judgment in rem and cannot be interpreted as judgment in personam.14
15. In the case of Gopal Singh Vs. Union of India and others passed on 23rd January, 2020 in Writ Petition No. © 10509 /2019, Hon'ble Delhi High Court had allowed the Writ Petition and directed the respondents to grant notional increment to the petitioner w.e.f. 1st July, 2019 and petitioner's pension will be consequently be refixed. Union of India had preferred an SLP (Civil) Dy. No. 13959/2020 (Union of India Vs. Gopal Singh) before the Hon'ble Supreme Court against the order passed by the Hon'ble Delhi High Court in the aforesaid Writ Petition No. (C ) 10509/2019 and Hon'ble Apex Court vide order dated 13.10.2020 had observed that "We see no reason to interfere with the impugned order passed by the High Court." Thereafter, Union of India has filed Review Petition (Civil) D. No. 6844 of 2021 in Special Leave Petition (c ) No. 12227/2020 (Union of India and others Vs. Gopal Singh) in which Hon'ble Apex Court vide order dated 26.7.2022 has held that "The instant petition for review has been filed by the petitioner against the dismissal of aforementioned Special Leave Petition vide this Court's order dated 13.10.2020. Having carefully perused the petition for review and the papers connected therewith, we do not find any reason for reconsideration of the order impugned."
Hence, the order passed by the Hon'ble High Court has attained finality.
16. In the wake of the above discussions, the OA is allowed. The applicant shall be entitled to one notional increment which falls due on the succeeding 1st July and accordingly shall be extended all the benefit of this increment in his retirement dues.
17. Needless to say that grant of increment shall be made after satisfying other requirements under the Rules. No order as to costs.
(JUSTICE OM PRAKASH -VII) MEMBER (J) Manish/-