Calcutta High Court (Appellete Side)

Damodar Valley Corporation And Ors vs Shri Jyotirmoy Sarkar on 10 September, 2024

Author: Debangsu Basak

Bench: Debangsu Basak

                               1

                 IN THE HIGH COURT AT CALCUTTA
                  Constitutional Writ Jurisdiction
                            Appellate Side


Present:
The Hon'ble Justice Debangsu Basak
                      and
The Hon'ble Justice Md. Shabbar Rashidi

                        MAT No. 2526 of 2023

                Damodar Valley Corporation and Ors.

                                   Vs

                        Shri Jyotirmoy Sarkar


For the appellants   : Mr. Achintya Kumar Banerjee, Adv.
                      : Mr. Dipankar Ghosh, Adv.


For the writ petitioner/
           Respondent : Mr. Puspal Chakraborty, Adv.
                      : Ms. Prisanka Ganguly, Adv.


Heard on              : August 30, 2024
Judgment on           : September 10, 2024
                                       2



 Md. Shabbar Rashidi, J.

1. Appeal at the behest of Damodar Valley Corporation is in

assailment of judgment and order dated September 29, 2023 passed

in WPA No. 18560 of 2021.

2. By the impugned order, the learned Single Judge allowed the

Writ Petition and set aside the order of the Executive Director

(Finance) DVCL September 27, 2021. The impugned order also

directed the authorities to give one notional increment to the writ

petitioner for the services rendered by him during the period of

July 1, 2018 to June 30, 2019. The respondent authorities were

further directed, in terms of the aforesaid order, to recalculate the

pensionary benefits of the writ petitioner and to pay current

pension and the differential amount on account of arrear pension,

if any. The entire exercise of recalculation and payment in terms of

the directions passed in the writ petition was to be completed as

expeditiously as possible and positively within a period of four

weeks.

3. It was the contention of the writ petitioner that he was posted

as Deputy General Manager (Finance), Finance Department, DVC

and superannuated from the aforesaid post on June 30, 2019. It

was further contended that in terms of the recommendations of 6 th

pay commission of the central government in the year 2006, the

central government amended Rule 10 of the Central Civil Services

(Revised Pay) Rules, 2008 and declared the date of awarding

annual increment to overall central and state government

employees to be on July 1 of each year. The recommendations also

provided that an employee will be eligible to receive the annual

increment on 1st July of every year on completion of six months

and above in the revised pay structure and on 1st July.

4. The appellants, being an autonomous body under Union of

India, duly adopted the recommendations and shifted the date of

grant of annual yearly increment to July 1 of every year which

resulted in deprivation to all the employees who, on account of

having put in satisfying services on completion of service of six

months and above between July 1 of a particular year and June 30

of the following year, became eligible to receive the annual yearly

increment.

5. In view of his superannuation on June 30, 2019, the petitioner

by a representation dated June 3, 2019, requested the authorities

to grant him the annual increment due on July 1, 2019 but such

representation was never considered by the appellant authorities

and the petitioner was allowed to superannuate on June 30, 2019.

The petitioner also lodged a representation with the Ministry and

the appellant authorities on June 4, 2020, June 25, 2020 and

January 27, 2021.

6. Having failed to get any consideration on his representations,

the petitioner approached this Court by way of Writ Application

being WPA 11445 of 2021. The said writ petition was disposed of in

terms of an order dated August 3, 2021 directing the Executive

Director, Accounts and Finance Department, Damodar Valley

Corporation, to consider and decide the petitioner's representations

within a period of eight weeks and pass a reasoned order upon

affording the petitioner an opportunity of hearing.

7. In pursuance of the directions in WPA 11445 of 2021, the

Executive Director, Accounts and Finance Department, Damodar

Valley Corporation, considered the representation of the writ

petitioner and passed a reasoned order on September 9, 2021

rejecting his claim. Challenging such reasoned order, the writ

petitioner came up before this Court in WPA No. 18560 of 2021

which resulted in the impugned judgment and order.

8. Learned advocate for the appellant submitted that the

judgment passed by the Hon'ble Supreme Court in the case of

Ayyamperumal, on the basis of which the respondent had staked

his claim was rendered in altogether different factual perspective. It

was contended that, the Hon'ble Supreme Court while dealing with

the aforesaid case considered Regulation 40 (1) of the Karnataka

Electricity Board Regulations, 1997. The Supreme Court also

considered Article 43 and Article 151 of the Civil Service of

Regulation. However, the learned Single Judge, in the impugned

order, considered Rule 10 of Civil Services Rule, 2008 whereas as

on the date superannuation, Rule of 2016 was governing the field.

On such proposition, Learned advocate for the appellant relied

upon (2004) 8 Supreme Court Cases 579 (Bharat Petroleum

Corpn. LTD. And Anr. vs. N.R. Vairamani)

9. Relying upon (2009) 7 Supreme Court Cases 165

(Government of Andhra Pradesh vs. N. Ramanaiah) Learned

advocate for the appellant also contended that the employees of

DVC were not civil servants within the meaning of Article 309 and

311 of the Constitution. It was submitted that a separate Service

Regulations, being in place, Civil Services Rule had no manner of

application in the case of the petitioner. In support of such

contention, learned advocate for the appellant relied upon (2009) 7

Supreme Court Cases 165. It was also contended that although,

DVC adopts the regulation of the central government but it doesn't

mean to attract Article 311 of the Constitution of India. Learned

advocate for the appellant also submitted that Regulations 43 and

151 of the Civil Service Regulations were not attracted in the facts

and circumstances of the present case.

10. Learned advocate for the appellant referred to Regulation 10 of

the Central Civil Services (Revised Pay) Rules, 2008 and Regulation

10 of the Central Civil Services (Revised Pay) Rules, 2016 vis-à-vis

Regulation 40 (1) of the Karnataka Electricity Board Employees

Service Regulations, 1997.

11. Learned advocate for the appellant submitted that neither the

Hon'ble Supreme Court, while rendering judgement in 2023 SCC

OnLine SC 401, nor the learned Single Judge considered the

provisions of pension rules which provided for the termination of

average emoluments. It was submitted that since the employer

employee relationship came to an end with effect from June 30,

2019 (AN), the petitioner was not entitled to draw the pay and

allowances. Learned advocate for the appellant also referred to

several provisions of the General Clauses Act, 1897.

12. Learned advocate for the appellant further submitted that the

annual increment in the pay is granted to an employee in a routine

manner subject to his good conduct unless it is withheld for some

reason. An employee, having been superannuated cannot claim

pay and allowances after the date of superannuation.

13. Learned advocate for the appellant also submitted that

learned Single Judge did not consider the pronouncements of the

Supreme Court which ordains that the courts should go slow in

interfering in the policy matters. Learned advocate for the appellant

relied upon (1990) 3 Supreme Court Cases 368 (State of Bihar

vs. Ramjee Prasad & Ors), (1996) 10 Supreme Court Cases 536

(University Grants Commission vs. Sadhana Chaudhary and

Ors.), (2008) 14 Supreme Court Cases 702 (Government of

Andhra Pradesh vs. N. Subbaryudu and Ors), (2004) 2 Supreme

Court Cases 76 (Ramrao and Ors. Vs. All India Backward Class

Bank Employees Welfare Association and Ors), (2005) 6

Supreme Court Cases 754 (State of Punjab and Ors. Vs. Amar

Nath Goyal and Ors) and (2022) SCC online 809 (State of

Madhya Pradesh and Ors. Vs. Seema Sharma).

14. Per contra, learned advocate for the respondent has also

drawn our attention to Regulation 10 of the Civil Services Rules,

2008. It was the contention of the respondent/writ petitioner that

the respondent rendered satisfactory service of one year till June

30, 2019 i.e. in excess of six months as required in the Regulations

and as such, he earned the annual increment, he ought to have

been granted notionally, since he superannuated on June 30,

2019. The increment he earned on completion of one year of

satisfactory service was liable to be credited on July 1, 2019 in

usual course, as per the mandate of the Regulations. In support of

his contention, learned advocate for the respondent relied upon

2023 SCC OnLine SC 401 (Director (Admn. And H.R) KPTCL

and Ors. Vs. C.P. Mundinamani and Ors).

15. Learned advocate for the respondent submitted that the

impugned judgment and order is well reasoned based on sound

principles of law. It does not deserve interference in the appeal.

16. Admittedly, the writ petitioner was an employee of the

Damodar Valley Corporation and after a considerable length of

service, superannuated from the post of Deputy General Manager

(Finance), Finance Department, DVC on June 30, 2019. It is also

not in dispute that in terms of the recommendations of the 6th Pay

Commission, the date of annual increment of pay was fixed on 1 st

of July every year. Owing to his superannuation on June 30, 2019,

the writ petitioner/respondent was not granted the annual

increment.

17. According to the respondent, he had earned the annual

increment upon rendering one year of satisfactory service between

July 1, 2018 and June 30, 2019. It was the submission of the writ

petitioner/respondent that he earned the annual increment

rendering one year of satisfactory service, though, by reason of its

accrual on the 1st day of July, 2019, as per the recommendations,

he was disentitled from the fruits of his earned increment, at least

notionally, which would result in some benefits in his post retiral

emoluments.

18. To the contrary, the appellants came up with a case that as on

the date of accrual of the annual increment i.e. 1st day of July,

2019, the writ petitioner was no longer an employee of the

corporation and as such he could not claim the increment.

19. At one point, the appellant claimed that DVC often resorted to

the Central Civil Services Rules, 2008 or Central Civil Services

Rules, 2016, as the case may be, where DVC Regulations were

silent but in course of hearing it was also submitted that the

employees of DVC are not the employees as contemplated under

Article 309-311 of the Constitution. There are separate Service

Regulations in place; Central Civil Services Rule had no manner of

application in the case of the petitioner. It was also contended that

although, DVC adopts the regulation of the central government but

it doesn't mean to attract Article 311 of the Constitution of India.

Learned advocate for the appellant also submitted that Regulations

43 and 151 of the Civil Service Regulations were not attracted in

the facts and circumstances of the present case. It was also

admitted by the parties that the Rules and Regulations governing

the service conditions of the employees of DVC, was absolutely

silent on the eventuality that had arisen in the case of the writ

petitioner/respondent.

20. Both the parties have referred to the provisions of the Rule 10

of the Central Civil Service (Revised Pay) Rules, 2008 and that of

the Central Civil Service (Revised Pay) Rules, 2016. The Rules of

2008 is as follows:

10. Date of next increment in the revised pay structure - There will be a uniform date of annual increment, viz. 1st July of every year. Employees completing 6 months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment. The first increment after fixation of pay on 1.1.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date f next increment was between 1st July, 2006 to 1st January, 2007..

21. The provisions of Central Civil Service (Revised Pay) Rules,

2008 were, partially modified in 2016 providing for two dates

instead of one date of increment. Regulation 10 of the Central Civil

Service (Revised Pay) Rules, 2016 reads as follows:

10. Date of next increment in revised pay structure.-

(l) There shall be two dates for grant of increment namely, 1st January and 1st July of every year, instead of existing date of 1st July:

Provided that an employee shall be entitled to only one annual increment either on 1st January or 1st July depending on the date of his appointment, promotion or grant of financial upgradation.

(2) The increment in respect of an employee appointed or promoted or granted financial upgradation including upgradation under Modified Assured Career Progression Scheme (MACPS) during the period between the 2nd day IOfJanuary and 1st day of July (both inclusive) shall be granted on 1st day of January and the increment in respect of an employee appointed or promoted or granted financial up gradation includirig up gradation under MACPS during the period between the 2nd day of July and 1st day of January (both inclusive) shall be granted on 1st day of July.

illustration

(a) In case of an employee appointed or promoted in the normal hierarchy or under MACPS during the period between the 2nd day of July, 2016 and the 1st d day of anuary, 2017, the first increment shall accrue on the 1st day of July, 2017 and thereafter it shall accrue after one year on annual basis.

(b) In case of an employee appointed or promoted in the normal hierarchy or under MACPS during the period between 2nd day of January, 2016 and 1st day of July, 2016, who did not draw any increment on 1st day of July, 2016, the next increment shall accrue on 1st day of January, 2017 and thereafter it shall accrue after one year on annual basis:

Provided that in the case of employees whose pay in the revised pay structure has been fixed as on 1st day of January, the next increment in the Level in which the pay was so fixed as on 1st day of January, 2016 shall accrue on 1st day of July, 2016:

Provided further that the next increment after drawal of increment on 1st day of July, 2016 shall accrue on 1st day of July, 2017.

(3) Where two existing Grades in hierarchy are merged and the junior Government servant in the lower Grade happens to draw more pay in the corresponding Level in the revised pay structure than the pay of the senior Government servant, the pay of the senior government servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with this rule.

22. The aforesaid provisions of the Central Service Rules deals

with the eventualities of annual increment in case of fixation of pay

on revision. It does not deal with a situation where an employee is

entitled for an increment if he superannuates one day prior to the

accrual of the incremental benefits. In facts, the parties have

referred to several provisions of different Rules and Regulations but

none of such provisions specifically dealt with the situation which

has arisen in the present case.

23. Such situation was considered by the Hon'ble Supreme Court

in C.P. Mundinamani (Supra). The facts of the said case are very

much identical to that of the present case. In the facts of the said

case one day earlier than the retirement and on completion of one

year service preceding the date of retirement all the employees

earned one annual increment. However, taking into consideration

Regulation 40(1) of the Karnataka Electricity Board Employees

Service Regulations, 1997, which provided that an increment

accrues from the day following that on which it is earned, the

appellants were denied the annual increment on the ground that

the day on which the increment accrued the respective employees -

original writ petitioners were not in service.

24. Supreme Court in C.P. Mundinamani (Supra) taking note of

the various pronouncements of different High Courts held that,

"20. 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 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 v. Pavithran (O.P.(CAT) No. 111/2020 decided on 22.11.2022) and the Himachal Pradesh High Court in the case of Hari Prakash v. State of Himachal Pradesh (CWP No. 2503/2016 decided on 06.11.2020).

21. 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."

25. In the instant case also, the respondent/writ petitioner

superannuated from service one day prior to accrual of his annual

increment. The Rules provide for annual increment to be credited

on 1st day of July, every year. Accordingly, the respondent was to

get the benefits of annual increment on July 1, 2019 but he

superannuated on June 30, 2019. Applying the principles laid

down in C.P. Mundinamani (Supra), the respondent earned the

increment on June 30, 2019 which was to be credited to him with

effect from July 1, 2019 but for his superannuation. Since the writ

petitioner had already earned the increment on June 30, 2019,

upon completion of one year of satisfactory service, he could not be

denied the benefits thereof.

26. Moreover, Rule 10 of the CCS Rules provides that 'in the case

of employees whose pay in the revised pay structure has been fixed

as on 1st day of January, the next increment in the Level in which

the pay was so fixed as on 1st day of January, 2016 shall accrue

on 1st day of July, 2016'. Applying the same principle, if an

employee whose pay on revision, is fixed on1st day of January,

2016 his next increment shall accrue on 1st day of July, 2016 i.e.

on completion of six months, then there appears no reason why the

writ petitioner, who rendered satisfactory services for a period of

one complete year, shall not be granted, in view of his

superannuation, an increment which he actually earned.

27. In N.R. Vairamani (Supra), the Hon'ble Supreme Court held

that each case depends on its own facts and a close similarity

between one case and another is not enough because even a single

significant detail may alter the entire aspect, in deciding such

cases, one should avoid the temptation to decide cases by

matching the colour of one case against the colour of another. To

decide therefore, on which side of the line a case falls, the broad

resemblance to another case is not at all decisive.

28. In the facts of the present case, the issue which has fallen for

our consideration is whether an employee can claim increment,

which he earned on the date of his superannuation, a day

thereafter. The facts of this case, so far as such issue is concerned,

are altogether identical to that of C.P. Mundinamani (Supra). As

such, we find no reason not to rely upon such precedent.

29. N. Ramanaiah (Supra) deals with the issue of infliction of

punishment against a public servant in the context of Article 309-

311 of the Constitution of India. The ratio laid down in such case,

by any stretch, is not at all attracted in the facts of the present

case.

30. In Ramjee Prasad (Supra), there was a challenge of the

fixation of the last date as arbitrary and violative of Article 14 of the

Constitution. It was held by the Hon'ble Supreme Court that choice

of date was within exclusive discretion of the government and the

High Court was in error in striking down the same to be arbitrary.

Similar view was expressed by the Supreme Court in Sadhana

Chaudhary (Supra). The Supreme Court laid down that it is settled

law that the choice of a date as a basis for classification cannot

always be dubbed as arbitrary even if no particular reason is

forthcoming for the choice unless it is shown to be capricious or

whimsical in the circumstances. In N. Subbarayudu (Supra) also

the Supreme Court held that there may be various considerations

in the mind of the executive authorities due to which a particular

cut-off date has been fixed. These considerations can be financial,

administrative or other considerations. The court must exercise

judicial restraint and must ordinarily leave it to the executive

authorities to fix the cut-off date. The Government must be left

with some leeway and free play at the joints in this connection.

Ramrao (Supra) was also rendered in the context of exclusive

discretion of the authorities with regard to fixation of cutoff date.

31. Amar Nath Goyal (Supra) was rendered in a case where the

cut-off date was fixed as 1-4-1995 on the ground of financial

constraints. The challenge to such action by the State was rejected

negating the contention that fixing of the cut-off date was arbitrary,

irrational or had no rational basis or that it offended Article 14.

32. In the case of Seema Sharma (Supra) the Supreme Court held that,

"26. This Court cannot interfere with the policy decision taken by the Government merely because it feels that another decision would have been fairer; or wiser as held by this Court in State of Madhya Pradesh v. Narmada Bachao Anadolan reported in (2011) 7 SCC 639 and relied upon and re-affirmed in Sudhir Budakoti (supra)."

33. The ratio laid down in the aforementioned cases, have no

manner of application in the facts of the present case. As noted

hereinbefore, the date of annual increment was fixed under the

recommendations of the Pay Commission in consideration of the

date of implementation of recommendations. The Rules provisioned

for satisfactory service for six months as qualifying service for

accrual of the increment. The impugned judgment never sought to

interfere with the administrative competence of the authorities to

attract the ratio laid down in the aforementioned cases.

34. In the light of the discussions made hereinbefore, we find no

reason to interfere with the impugned judgment and order. The

same is hereby affirmed. Time to comply with the directions