HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 6024/2021
1. Safi Mohammad S/o Shri Bahadur Khan, Aged About 62 Years, R/o Inside Nagori Gate, Naya Talab, Visanpura, Jodhpur.
2. Mohd. Rafiq Qureshi S/o Shri Mohd. Sattar Qureshi, Aged About 62 Years, R/o K-92, Devi Road, Chandna Bhakar, Jodhpur.
3. Lutfe Kareem Khan S/o Shri Mohd. Ateek, Aged About 66 Years, R/o Mohalla Gulazar Baag, District Tonk.
4. Akhtar Naeem S/o Shri Mohd. Ateek, Aged About 68 Years, R/o Mohalla Batvalan Purani, District Tonk.
5. Suresh Chandra Sharma S/o Late Sh. Girdhar Lal Sharma, Aged About 64 Years, R/o 1/83 Housing Board, Tonk.
6. Radheyshyam Sharma S/o Shri Jagdeesh Sharma, Aged About 66 Years, R/o 224 Roop Radhey Vila, Civil Lines, Tonk.
7. Dr. Madhu Mathur W/o Shri Shankar Lal Patel, Aged About 61 Years, R/o Behind Reliance Fresh, Babu Mohalla, Kesarganj, District Ajmer.
8. Ramesh Kumar Jat S/o Shri Shivnarayan Jat, Aged About 67 Years, R/o Near Jila Karagrah, Jail Road, Tonk.
9. Dr. Marmeshwari Pamnani W/o Shri Ajit Kumar Pamnani, Aged About 61 Years, R/o Plot No. 22, Manish Mension, Sindu Wadi Group A, Ashaganj, Ajmer.
10. Smt. Saroj Mathur W/o Shri Rakesh Mathur, Aged About 64 Years, R/o Shivam, Civil Lines, Tonk.
11. Bhanwar Lal S/o Shri Mana Ram, Aged About 62 Years, By Caste Luhar, R/o 387, Janta Colony, Pali.
12. Dhalla Ram S/o Shri Bhana Ram Sargara, Aged About 62 Years, R/o 468-A, Shastri Nagar, Indira Colony Extension, Pali.
13. Nimba Ram S/o Shri Chetan Ram, Aged About 61 Years, R/o Mataji Ki Bhkhari Bhiyar, District Barmer.
14. Kailash Chandra Chhipa S/o Shri Laxmi Chand Chhipa, Aged About 63 Years, R/o D-605, Sanjay Colony, Bhilwara.
15. Ratan Lal Dangi S/o Shri Poker Ram Dangi, Aged About 61 (Downloaded on 06/12/2021 at 08:48:44 PM) (2 of 10) [CW-6024/2021] Years, R/o 583, Indra Colony Vistar, Pali.
16. Shivraj Sharma S/o Shri Badri Lal Sharma, Aged About 63 Years, R/o G.c. 15, New Bapunagar, Bhilwara.
17. Mohan Lal Suthar S/o Shri Mishri Lal Suthar, Aged About 61 Years, R/o Bade Baas, Hanuman Deora, Bagri Nagar, Tehsil Sojat, District Pali.
18. Om Prakash Sharma S/o Shri Ram Lal, Aged About 61 Years, R/o Silla Police Thana, Purani Tonk, Tonk.
19. Murlidhar Methwani S/o Shri Bheru Mal, Aged About 61 Years, R/o Ramdev Krapa Sindhi Colony, Nehru Nagar, Barmer.
20. Abdul Gaffar S/o Shri Samsher Khan, Aged About 69 Years, R/o 177, Indra Colony, Pali.
21. Geesu Lal Dahiya S/o Shri Raja Ram Dahiya, Aged About 69 Years, R/o Hansh Vahini School Ke Pass, Vidya Nagar, Pali.
----Petitioners Versus
1. State Of Rajasthan, Through The Principal Secretary, Department Personnel, Government Of Rajasthan, Jaipur.
2. The Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.
----Respondents
For Petitioner(s) : Mr. Rakesh Arora.
Mr. Hardik Gautam.
For Respondent(s) : Mr. Sunil Beniwal, AAG.
Mr. Sandeep Shah, AAG.
Mr. Piyush Bhandari.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE SUDESH BANSAL Order 01/12/2021 This petition is filed by several retired employees of the State of Rajasthan. They all have retired in different years, however, the common factor being that their date of retirement was 30 th June of (Downloaded on 06/12/2021 at 08:48:44 PM) (3 of 10) [CW-6024/2021] the respective year. They have challenged Rule 14 of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter to be referred as the "Rules of 2008") and Rule 13 of the Rajasthan Civil Services (Revised Pay) Rules, 2017 (hereinafter to be referred to as the "Rules of 2017"). They have also prayed for direction to grant notional annual increment for having worked for one full year before the date of retirement and to draw the pension accordingly.
Briefly stated the case of the petitioners is that prior to the promulgation of the Rules of 2008 in the State service, annual increment of an employee was released on the date of completion of a year in service. With introduction of the Rules of 2008, the different dates of the increments falling due for different employees was consolidated on 1st July of the year concerned, as provided in Rule 14 which reads as under:-
"14. Date of next increment in the running pay band- There will be uniform date of annual increment, viz. 1st July of every year. Employees completing 6 months and above in the running pay band as on 1 st of July will be eligible ot be granted the increment. The first increment after fixation of pay on 01.09.2006 or thereafter as per option in the running pay band will be granted to the employees, who have completed 6 months and above as on 01.07.2007.
Provided that in the case of persons who had been drawing maximum of the existing pay scale for more than a year as on the 1 st day of September, 2006, the next increment in the running pay band shall be allowed on the 1st day of September, 2006. Thereafter, the provision of Rule 14 would apply.
Note- In cases where two existing scales, one being a promotional scale for the other, are merged, and the junior Government servant, now drawing his pay at equal or lower stage in the lower scale of pay, happens to draw more pay in the running pay band than the pay of the Senior Government servant in the existing higher scale, the pay in the running pay band of the senior Government servant shall be stepped up to that (Downloaded on 06/12/2021 at 08:48:44 PM) (4 of 10) [CW-6024/2021] of his junior from the same date and he shall draw next increment in accordance with Rule 14."
This pattern continued even under the Rules of 2017 as provided in Rule 13 which reads as under:-
"13. Date of next increment in revised pay structure-
(1) There will be a uniform date of annual increment viz. 1st July of every year after fixation of pay under these rules. Employees completing 6 months and above in any Level as on 1st of July will be eligible to be granted the increment.
(2) Every new recruit on completion of probation period successfully shall be allowed first annual increment on 1st July, which immediately follows the date of completion of probation period."
Since all the petitioners retired on 30 th June of the respective years, they were not granted the increment falling due on the following 1st July. Their grievance is that they having rendered Government service for one full year, the benefit of the last increment has not been given to them. They argue that the rule should be interpreted in such a way that they get this last increment. In the alternative, their contention is that the rule should be held ultra-vires and should be struck down. Learned counsel for the petitioners have referred to certain decisions of Madras High Court and Delhi High Court taking such a view. We would make a reference to these judgments at a later stage.
On the other hand, learned Additional Advocate General appearing for the Government opposed the petition contending that the rule making authority has specified 1st July of the year for release of annual increment for all Government employees. The rule is reasonable and non-discriminatory. As the rule stands, the only interpretation possible is that a person who retires w.e.f. 30 th June of a year, is not entitled to claim the increment falling due on (Downloaded on 06/12/2021 at 08:48:44 PM) (5 of 10) [CW-6024/2021] 1st July of that year. Learned counsel relied on a decision of Division Bench of Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Himanchal Pradesh and others reported in 2020 SCC OnLine HP 2362, in which this interpretation has been accepted.
We have reproduced Rules 14 and 13 of the respective rules which pertain to the date of next increment in a pay band. As noted, prior to the promulgation of the Rules of 2008, the increments were released in favour of a Government employee on different dates depending on the date of joining the service. However, the Central Government as well as the State Government rationalized this date of release of annual increment for all Government employees on 1st July of a particular year. In Rule 14 of Rules of 2008, therefore, it is provided that there will be uniform date of annual increment, namely, 1 st July of every year. Such annual increment would be released to every employee completing 6 months and above in the running pay band as on 1 st July. To obviate the difficulties of the existing employees, this rule provides that the first increment after fixation of pay on 01.09.2006 (i.e. the date from which the Rules of 2008 were made effective) or thereafter as per the option in the running pay band will be granted to the employees who had completed 6 months and above as on 01.07.2007. Similar provisions have been made in Rule 13 of the Rules of 2017.
We do not find any force in the submission of the learned counsel for the petitioners that every employee who retires on 30 th June of a particular year, must receive the increment which as per these rules falls due on 1st July. The grant of annual increment is part of pay structure which the Government prescribes for its (Downloaded on 06/12/2021 at 08:48:44 PM) (6 of 10) [CW-6024/2021] employees and is governed by statutory rules. Annual increment is granted by way of incentive in order to reward long service rendered by the Government employee. It is different from the dearness allowance which the Government declares from time to time and is meant to offset for the diminished value of purchasing price of the rupee with increase in inflation. Such increment can be claimed only in terms of the statutory rules.
We are conscious that the Madras High Court and Delhi High Court have taken a different view. Heavy reliance was placed by the learned counsel for the petitioner on a Division Bench judgment of Madras High Court in the case of P. Ayyamperumal Vs. The Registar and others (W.P. No. 15732 of 2017 decided on 15.09.2017). This judgment proceeds on the earlier judgment of the Court in the case of State of Tamil Nadu Vs. M. Balasubramaniam (CDJ 2012 MHC 6525) which was rendered by the Single Judge and approved by the Division Bench. Likewise, the Division Bench of Delhi High Court in the case of Gopal Singh Vs. Union of India and others (W.P.(C) 10509/2019 decided on 23.01.2020), has also relied upon and accepted the decision in case of M. Balasubramaniam(supra) of Madras High Court. Yet another decision in the case of Arun Chhibber Vs. Union of Indian and others (W.P.(C) 5539/2019 decided on 13.01.2020), the Division Bench of Delhi High Court reiterated this proposition on the basis of decision in the case of M. Balasubramaniam (supra).
We have perused the decision of the Madras High Court in the case of M. Balasubramaniam (supra) which is the base judgment, which the subsequent Division Benches of Madras High Court and Delhi High Court have followed. This was a case in (Downloaded on 06/12/2021 at 08:48:44 PM) (7 of 10) [CW-6024/2021] which the petitioner, who was in State service, had retired w.e.f. 31st March, 2003. He had claimed the benefit of pension on the basis of increment which fell due on 01.04.2003, on the basis of the judgment of Supreme Court in the case of S. Banerjee Vs. Union of India and others (AIR 1990 SC 285). Upon his superannuation, he was re-employed and continued in service up to 31st March, 2003. It was on that basis that the petitioner had claimed the benefit of an additional annual increment falling due on 01.04.2003. This was opposed by the Government on the ground that on 01.04.2003, he was not in Government service. In such background, the High Court had allowed the petition and directed that the representation of the petitioner for grant of annual increment for the period from 01.04.2002 to 31.03.2003 shall be considered in light of the judgment of the Supreme Court in the case of S. Banerjee (supra).
If we peruse the judgment of the Supreme Court in the case of S. Banerjee (supra), the facts were that the petitioner was allowed to retire voluntarily from service with effect from the forenoon of 1st January, 1986. He was not given the benefit of revision of salary which was brought into effect from 01.01.1986. The Government had argued before the Supreme Court that in view of the proviso of Rule 5(2) of the Central Civil Service (Pension) Rules, 1972, the petitioner will not be entitled to any salary for the day on which he actually retired and therefore, his claim for granting the benefit of revision of pay scales would not be justified. The Supreme Court repelled this contention on the ground that the employee retired with effect from the forenoon of 01.01.1986 and not with effect from 31 st December, 1985 and therefore the revision of pay scales would be applicable to him. (Downloaded on 06/12/2021 at 08:48:44 PM)
(8 of 10) [CW-6024/2021] In our view, there is a fine distinction in the judgment of the Supreme Court in the case of S. Banerjee (supra) and the facts of the present case. In the present case, all the petitioners admittedly retired on 30th June and not with effect from 1st July. The decision of the Supreme Court therefore will not aid the petitioners in the present case. We are in respectful disagreement with the view of Madras High Court in the case of N. Balasubramaniam (supra) in which in our opinion, the decision of the Supreme Court in case of S. Banarjee (supra) has been applied though the facts were different. Since all subsequent judgments noted above merely refer to and rely upon the judgment in the case of M. Balasubramaniam (supra), we cannot concur with such views.
We notice that a Division Bench of Himachal Pradesh High Court in the case of Hari Prakash (supra) has taken a similar view. The earlier decisions of Madras High Court and Delhi High Court have been noticed.
We are conscious that the SLP against the decision of the Madras High Court in the case of P. Ayyamperumal (supra) came to be dismissed by the Supreme Court observing that "on the facts" the Court is not inclined to interfere with the judgment. However, this expression cannot be seen as approval of the judgment on merits. We are therefore entitled to take an independent view, which we have taken.
In case of Prabhu Dayal Sesma vs. State of Rajasthan, it wqs held that while calculating the age of a person, the day of his birth must be counted as a whole and he attains the specified age on the day preceding the anniversary of his birthday. A Division Bench of the Delhi High Court in case of Union of India vs. A. (Downloaded on 06/12/2021 at 08:48:44 PM)
(9 of 10) [CW-6024/2021] Chaudhari reported in 2009 SCC Online Del. 4338 considered a case where an employee retired on superannuation on 31.3.1995. Fifth Pay Commission recommendations were made effective from 1.4.1995 in which death-cum-retiral gratuity benefits were increased. The employee claimed such higher benefits. The court relying on a Division Bench judgement of Karnataka High Court held that the employee cannot contend that he had retired with effect from 01.04.1995 and therefore higher benefits cannot be granted. Similar view was taken by the Division Bench of the Gujarat High Court in case of C.R.Samajpati vs. Uniono fIndia reported in 2009 SCC OnLine Guj. 10857.
Before closing, we find nothing arbitrary or discriminatory about the rules in question. The annual increment is released with effect from a particular date. As a consequence, it is natural that someone would fall on the wrong side of such a date. That by itself would not render the rule arbitrary. The direction for releasing an additional increment in favour of retirees is also not free from practical complications. None of the judgments cited by the learned counsel for the petitioners refer to the date as on which such increment would be released. For proper pay fixation and calculation of the re-fixed pay after releasing the annual increment, it is absolutely essential that the date as on which such increment is released, be specified. If it is to be released as on 30th June of the year of retirement, we do not see how this can result into any benefit to the petitioners since their pension would be drawn on the basis of last 10 months of salary and releasing the notional increment on the last date of service would not augment the salary in any manner. On the other hand, if the expectation of the petitioners is that such annual increment may (Downloaded on 06/12/2021 at 08:48:44 PM) (10 of 10) [CW-6024/2021] be released as on 1st July of the last year of their working, this would lead to two increments being released on the same date which is wholly impermissible.
In the result, the petition is dismissed.
(SUDESH BANSAL),J (AKIL KURESHI),CJ
130-jayesh/-
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