Gujarat High Court

Ratilal Laxmidas Kaneriya vs State Of Gujarat on 26 August, 2021

Bench: A.S. Supehia

     C/SCA/11257/2021                                     JUDGMENT DATED: 26/08/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 11257 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.S. SUPEHIA                                           Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                                    NO

2     To be referred to the Reporter or not ?                                 YES

3     Whether their Lordships wish to see the fair copy
      of the judgment ?                                                        NO

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution                      NO
      of India or any order made thereunder ?

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                         RATILAL LAXMIDAS KANERIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
. for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3,4,5
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 26/08/2021
                                 ORAL JUDGMENT

1) RULE. Learned AGP waives service of notice of rule for the

respondents-State.

2) In the present writ petition, the petitioner has, inter alia, prayed for

the following relief;

"(A) Quash and set aside the communications dated 14.07.2021 Annexure-A to this petition, and further be pleased to direct the respondent authorities to grant one increment to the petitioner as per

C/SCA/11257/2021 JUDGMENT DATED: 26/08/2021

his entitlement and consequentially direct the respondent authorities to revise the pension and other retirement benefits of the petitioner and make payment of arrears with interest at the rate which the Honourable Court may deem just and proper."

3) The petitioner is, thus, claiming the increment of one full year of

service from 01.07.2019 to 30.06.2020 and the same has been denied to

the petitioner on the ground that since he has retired from the service on

30.06.2020, he would not be entitled to the same as per the rules.

4) Learned advocate Mr. Vaibhav Vyas appearing for the petitioner

has submitted that the petitioner has rendered one full year of service

from 01.07.2019 to 30.06.2020 and as per Rule 39 of the Gujarat Civil

Services (Pay) Rules, 2002, he would be entitled for that increment,

however, since he has retired on 30.06.2020, such increment is denied on

the ground that since the Rule 39 (1) of the rules provides for the release

of increment of first of every month. In support of his submissions,

learned advocate for the petitioner has placed reliance on the judgment of

the Division Bench on 15.09.2017, passed by the High Court of

judicature at Madras, interpreting the same rule. It is submitted that the

aforesaid judgment is confirmed by the Apex Court vide 23.07.2018 in

SLP (C) No. 22008 of 2018. Thus, he has submitted that the respondents

may be directed to grant the benefit of one increment.

5) Per contra, learned Assistant Government Pleader, while placing

C/SCA/11257/2021 JUDGMENT DATED: 26/08/2021

reliance on the affidavit-in-reply filed by the respondent authority, has

submitted that the petitioner would not be entitled to one increment as per

the Rule 39 (1) of the Rules since the increment accrues on 1 st of every

month, however, the petitioner is retired from the service on 30.06.2020

and thus, he would not be entitled to increment after his retirement.

6) I have heard the learned advocates appearing for the respective

parties.

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 time- scale, 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 1 st 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





      C/SCA/11257/2021                                       JUDGMENT DATED: 26/08/2021

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

retirement and only because the same has accrued on 1st of every month,

such benefits could not be denied by applying the rule 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 1 st July if he continued in service on that day.

C/SCA/11257/2021 JUDGMENT DATED: 26/08/2021

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 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.

C/SCA/11257/2021 JUDGMENT DATED: 26/08/2021

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 14.07.2021 is hereby quashed and set aside.

12) The respondents are directed to grant the benefit of one increment