Gujarat High Court
Mukeshbhai Natvarlal Thaker vs State Of Gujarat on 6 January, 2023
Bench: A.S. Supehia
C/SCA/19629/2019 ORDER DATED: 06/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19629 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 19629 of 2019
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MUKESHBHAI NATVARLAL THAKER
Versus
STATE OF GUJARAT
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Appearance:
MR VK JOSHI(2329) for the Petitioner(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MS.HETAL G PATEL, AGP for the Respondent(s) No. 1,2
LAW OFFICER BRANCH(420) for the Respondent(s) No. 3,4,5,6,7
MR HEMANG M SHAH(5399) for the Respondent(s) No. 3,4,5,6,7
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 06/01/2023
ORAL ORDER
1. At the outset, it is submitted by the learned
advocate Mr.Joshi, appearing for the petitioners
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. He has submitted that 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.
2. 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
C/SCA/19629/2019 ORDER DATED: 06/01/2023
Finance Department vide Notification dated
27.02.2009.
3. 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 timescale;-
(I) Subject to the provisions of
rules11,13,15,16,19,23,30 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
C/SCA/19629/2019 ORDER DATED: 06/01/2023
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
prospectively resulting into wiping out the entire
service of one year, which he has rendered in a
particular timescale.
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.
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
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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.
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."
C/SCA/19629/2019 ORDER DATED: 06/01/2023
4. The aforesaid judgment and order dated
11.08.2021 was further subject matter of
challenge before the Division Bench of this Court
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."
5. Thus, in view of the aforesaid settled
proposition of law, the present writ petition is
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. Direct service is
permitted.
C/SCA/19629/2019 ORDER DATED: 06/01/2023
6. As a sequel, the connected civil application
being Civil Application No.1 of 2022 for
direction also stands disposed of.
Sd/-
(A. S. SUPEHIA, J)
NVMEWADA
