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Gujarat High Court

Kalpanaben Subodbhai Bakshi vs State Of Gujarat on 5 January, 2023

Author: A. S. Supehia

Bench: A.S. Supehia

     C/SCA/9310/2022                           ORDER DATED: 05/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 9310 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 12103 of 2022
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 15214 of 2022
==========================================================
                       KALPANABEN SUBODBHAI BAKSHI
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1
MS HETAL G. PATEL, AGP for the Respondent(s) No. 1
MS TRUSHA PATEL, ADVOCATE for the Respondent No.2
==========================================================
 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 05/01/2023
               COMMON ORAL ORDER

1. Rule. Learned AGP Ms.Hetal Patel, waives service of notice of Rule on behalf of the respondent authorities.

2. At the outset, it is submitted by the learned advocate Mr.V. K. Joshi, appearing for the petitioners and party-in-person that the issue is no more res integra in view of the decision of the Apex Court dated 30.09.2022 passed in Special Leave Petition (Civil) Diary No.26295 of 2022. Since on an identical issue, the order dated 11.08.2021 passed by this Court in Special Civil Application No.10308 of 2021 has been confirmed, even by the Division Bench as well as by the Apex Court.

3. In the present writ petition, the petitioners, who are the employees of the State Judiciary, are seeking the benefits of one notional increment as per the Clause 10 of the Gujarat Civil Services (Revision of Pay) Rules, 2009 issued by the Finance Department vide Notification dated 27.02.2009.

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C/SCA/9310/2022 ORDER DATED: 05/01/2023

4. The similar issue was under consideration before this Court and by the order dated 11.08.2021 passed in Special Civil Application No.10308 of 2021, this Court, after examining the relevant provisions of Rule 39(i) of the Gujarat Civil Services (Pay) Rules, 2002, has held thus : -

"7) It is not disputed that the petitioner retired from service on 30.06.2020 after rendering 37 years of service. It is also not disputed that he rendered one full year service from 01.07.2019 to 30.06.2020. The case of the petitioner is denied on the interpretation of Rule 39 (i) of the Rules. The same is read as under:
" 39. Service which counts for increment: The following provisions prescribe the conditions subject to which service counts for increments in a time- scale;-
(I) Subject to the provisions of rules- 11,13,15,16,19,23,30 and 44 all periods of duty discharged in a post on a time-scale shall count for increments in that time-scale. For the purpose of arriving at the date of next increment in that timescale, the total of all such periods as to do not count for increment in that time-scale shall be added to the normal dates of increment.
Provided that the increment shall be admissible from the 1st of the month in which it accrues. xxx xxx xxx xxx."

8) The proviso to sub-rule (1) of Rule 39 stipulates that the increment shall be admissible from the 1st of the month, in which, it accrues. The petitioner has been denied the benefits of the increment for the services which he rendered prior to his retirement i.e. from 01.07.2019 to 30.06.2020 on the ground that the same accrued on 01.07.2020. The respondents have indubitably misread and misinterpreted the rule since it is not the case of the petitioner that he is claiming increment of one year after the date of retirement. The petitioner has become entitled for one increment during one year of service in the time pay-scale prior to his retirment and only because the same has accrued on 1 st of every month, such benefits could not be denied by applying the rule Page 2 of 5 Downloaded on : Sat Jan 07 20:49:24 IST 2023 C/SCA/9310/2022 ORDER DATED: 05/01/2023 prospectively resulting into wiping out the entire service of one year, which he has rendered in a particular time- scale.

9) The Division Bench of Madras High Court, while interpreting the similar issue and similar rules of Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008 has held thus, "5. The petitioner retired as Additional Director General, Chennai on 30.06.2013 on attaining the age of superannuation. After the Sixth Pay Commission, the Central Government fixed 1 st July as the date of increment for all employees by amending Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008. In view of the said amendment, the petitioner was denied the last increment, though he completed a full one year in service, ie., from 01.07.2012 to 30.06.2013. Hence, the petitioner filed the original application in O.A.No.310/00917/2015 before the Central Administrative Tribunal, Madras Bench, and the same was rejected on the ground that an incumbent is only entitled to increment on 1st July if he continued in service on that day.

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 others 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 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 Page 3 of 5 Downloaded on : Sat Jan 07 20:49:24 IST 2023 C/SCA/9310/2022 ORDER DATED: 05/01/2023 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."

10) The said judgment was subject matter of challenge before the Supreme Court in SLP (C) No. 22008 of 2018, which was dismissed on 23.07.2018. Thus, this Court is not impressed upon the submissions advanced by the learned Assistant Government Pleader, while interpreting Rule 39 (1) of the Gujarat Civil Services Pension Rules with regard to denying the benefit of one increment to the petitioner for previous service of one year before the date of his retirement.

11) Thus, in light of the law enunciated by the Division Bench of Madras High Court, which is confirmed by the Apex Court, the communication dated 06.01.2021 is hereby quashed and set aside.

12) The respondents are directed to grant the benefit of one increment to the petitioner and accordingly revise his pension. Appropriate order shall be passed within a period of one month from the date of receipt of the order of this Court. Rule is made absolute."

5. The aforesaid judgment and order dated 11.08.2021 was further subject matter of challenge before the Division Bench in Letters Patent Appeal No.868 of 2021, which was dismissed on 27.04.2022. The said order was further assailed before the Apex Court by filing the aforementioned SLP and by the order dated 30.09.2022, the said SLP has been dismissed by observing thus :-

"Delay condoned.
Though the issue involved in the present Special Leave Petition is at large in other matters, as the impugned judgment and order passed by the High Court is complied with and the respondent No.1 has been paid the revised pension and the difference is only Rs.700/p.m., in the peculiar facts and circumstances of the case and keeping the question of law open, we refuse to entertain the present Special Leave Petition.
The Special Leave Petition stands dismissed/disposed of. Pending application stands disposed of."
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C/SCA/9310/2022 ORDER DATED: 05/01/2023

6. Thus, in view of the aforesaid settled proposition of law, the present writ petitions are allowed. The respondents are directed accordingly to confer the benefits in terms of the order dated 11.08.2021 passed in Special Civil Application No.10308 of 2021. It goes without saying that as per the observations made by the Apex Court, the question of law is kept open. Rule is made absolute.

7. Registry to place a copy of this order in each of the connected matters.

Direct service is permitted.

(A. S. SUPEHIA, J) MB/ 105 Page 5 of 5 Downloaded on : Sat Jan 07 20:49:24 IST 2023