Gujarat High Court
Umabhai Madhabhai Parmar vs State Of Gujarat on 10 November, 2023
Bench: Aniruddha P. Mayee
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18835 of 2023
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UMABHAI MADHABHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR with MR SHIVAM MAJMUDAR for the Petitioner(s) No.
1,10,11,12,13,14,15,2,3,4,5,6,7,8,9
MS HETAL PATEL AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/11/2023
ORAL ORDER
1. The present Special Civil Application is filed praying for
the following reliefs:-
"A. Your Lordship may be pleased to admit this petition;
B. Your Lordship may be pleased to issue appropriate writ, order or
direction and quash and set aside the action of the respondent
authorities of not releasing the periodical / yearly increment preceding
for discharge of duties by the petitioners for a period preceding the one
year preceding the 1st week of July of respective calendar in which the
petitioners attended the age of superannuation and therefore the said
action of the respondent authorities for not releasing the last
yearly/periodical increment to the petitioners though the petitioners
have attended the age of superannuation on 30 th June of the respective
calendar and became eligible and entitle to get yearly increment. the
aforesaid action for not releasing the yearly increment is arbitrary and
illegal;
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C. Be pleased to direct the respondent authorities to pass
appropriate order for making payment / for releasing the periodical
yearly increment / increments which has become due and payable to
the petitioners as the basis of discharge of duties from the 1 st week
July of respective calendar year in which the petitioners attended the
age of superannuation and the Hon'ble Court may issue further
direction to the respondent authorities or may kindly be directed to
recalculate "Last Pay" drawn by the petitioners after addition of
yearly/periodical increment in the "Salary & Wages" of the petitioners
and the Hon'ble Court may kindly direct the respondent authorities to
recalculate / revise the pension / gratuity / leave encashment and
other consequential benefits after addition of the aforesaid increment in
the "Last Pay Drawn" by the petitioners and the difference of salary
may kindly be ordered to be paid with 12% interest from the respective
date of superannuation of the petitioners;
D. By way of interim order be pleased to direct the respondent
authorities to take decision to release the last earned yearly increment
to the petitioners;
E. Pass such orders as thought fit in the interest of justice."
2. The factual matrix in the present case is that the
petitioners herein retired from the service on 30.6.2014,
30.6.2012, 30.6.2019, 30.6.2019, 30.6.2022, 30.6.2013,
30.6.2019, 30.6.2018, 30.6.2015, 30.6.2013, 30.6.2019,
30.6.2017, 30.6.2022, 30.6.2013, 30.6.2022, respectively, on
attaining the age of superannuation. It is the case of the
petitioners that they have rendered one full year of service before
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their retirement and therefore, they were entitled to get the
benefit of annual increment for the said period of service. That,
as per the policy of Government, the said increments fall due on
1st July of the respective years of retirement in respect of
petitioners. However, as aforesaid, as the petitioners had retired
from service on the 30th June of the respective years, they were
not granted the said benefit of annual increment for the said
period. Aggrieved, the petitioners have preferred the present
Special Civil Application.
3. Learned advocate Mr. Majmudar appearing on behalf of the
petitioners submits that the issue with respect to grant of
increment after retirement has now been settled in the decisions
by the Division Bench of this Court as well as by the Hon'ble
Supreme Court. He submits that in the case of State of Gujarat
v. Takhatsinh Udesinh Songara and Anr., being Letters
Patent Appeal No. 868 of 2021 decided on 27.04.2022, the
Division Bench of this Court has held that the government
servant is entitled to increment becoming payable on 1 st July
and the retirement of the government servant on the day prior to
the increment becoming payable is only fortuitous circumstance.
He submits that the said judgment was challenged before the
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Hon'ble Supreme Court by way of preferring Special Leave
Petition (Civil) Diary No. 26295 of 2022 and the Hon'ble Supreme
Court was pleased to dismiss the Special Leave Petition since the
order of the Division Bench was complied with by the State
Government and the issue was kept open as the issue was at
large in other matters pending before the Hon'ble Supreme
Court. He further submits that the Hon'ble Supreme Court in
the case of Director (Admn. and HR) KPTCL and Ors. v. C. P.
Mundinamani and Ors., being Civil Appeal No. 2471 of
2023 by its judgment dated 11.04.2023, has upheld the view
of the Division Bench of this Court in Takhatsinh Udesinh
Songara (supra). It has been held that 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, would be
arbitrary and unreasonable. It was held that the entitlement to
receive increment therefore crystallizes when the government
servant completes requisite length of service with good conduct
and becomes payable on the succeeding day. It was further held
that 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
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government servant legitimate one annual increment though he
is entitled to that for rendering the services over a year with good
behaviour and efficiently and therefore, such a narrow
interpretation should be avoided. He further submits that the
Division Bench of this Court in the case of State of Gujarat v.
Prahladbhai Haribhai Patel and Ors., being Letters Patent
Appeal No. 277 of 2023 and connected appeals decided on
19.04.2023, relying upon the judgment of the Hon'ble Supreme
Court in Director (Admn. and HR) KPTCL (supra) has
dismissed the said Letters Patent Appeals involving the same
issue.
4. Per contra, learned Assistant Government Pleader submits
that in view of the decision in the case of Takhatsinh Udesinh
Songara (supra), the State Government had implemented the
decision of this Court and the Special Civil Application came to
be dismissed keeping the question of law open. She does not
dispute that thereafter, the Hon'ble Supreme Court has since
settled the issue and held that the government servant is entitled
to one increment after his retirement and that the learned
Division Bench has also dismissed the Letters Patent Appeals
involving the same issue.
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5. Heard the learned advocates for the respective parties and
perused the documents on record.
5.1 The Hon'ble Supreme Court in the case of Director (Admn.
and HR) KPTCL (supra) has held as under:-
"6.3 At this stage, it is required to be noted that there are divergent
views of various High Courts on the issue involved. The Full Bench of
the Andhra Pradesh High Court, the Himachal Pradesh High Court and
the Kerala High Court have taken a contrary view and have taken the
view canvassed on behalf of the appellants. On the other hand, the
Madras High Court in the case of P. Ayyamperumal (supra); the Delhi
high Court in the case of Gopal Singh Vs. Union of India and Ors. (Writ
Petition (C) No. 10509/2019 decided on 23.01.2020); the Allahabad
High Court in the case of Nand Vijay Singh and Ors. Vs. Union of India
and Ors. (Writ A No. 13299/2020 decided on 29.06.2021); the Madhya
Pradesh High Court in the case of Yogendra Singh Bhadauria and Ors.
Vs. State of Madhya Pradesh; the Orissa High Court in the case of AFR
Arun Kumar Biswal Vs. State of Odisha and Anr. (Writ Petition No.
17715/2020 decided on 30.07.2021); and the Gujarat High Court in
the case of State of Gujarat Vs. Takhatsinh Udesinh Songara (Letters
Patent Appeal No. 868/2021) have taken a divergent view than the
view taken by the Full Bench of the Andhra Pradesh High Court and
have taken the view that once an employee has earned the increment
on completing one year service he cannot be denied the benefit of such
annual increment on his attaining the age of superannuation and/or
the day of retirement on the very next day.
6.4 Now so far as the submission on behalf of the appellants that
the annual increment is in the form of incentive and to encourage an
employee to perform well and therefore, once he is not in service, there
is no question of grant of annual increment is concerned, the aforesaid
has no substance. In a given case, it may happen that the employee
earns the increment three days before his date of superannuation and
therefore, even according to the Regulation 40(1) increment is accrued
on the next day in that case also such an employee would not have one
year service thereafter. It is to be noted that increment is earned on one
year past service rendered in a time scale. Therefore, the aforesaid
submission is not to be accepted.
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6.5 Now, so far as the submission on behalf of the appellants that
as the increment has accrued on the next day on which it is earned
and therefore, even in a case where an employee has earned the
increment one day prior to his retirement but he is not in service the
day on which the increment is accrued is concerned, while considering
the aforesaid issue, the object and purpose of grant of annual
increment is required to be considered. A government servant is
granted the annual increment on the basis of his good conduct while
rendering one year service. Increments are given annually to officers
with good conduct unless such increments are withheld as a measure
of punishment or linked with efficiency. Therefore, the increment is
earned for rendering service with good conduct in a year/specified
period. Therefore, the moment a government servant has rendered
service for a specified period with good conduct, in a time scale, he is
entitled to the annual increment and it can be said that he has earned
the annual increment for rendering the specified period of service with
good conduct. Therefore, as such, he is entitled to the benefit of the
annual increment on the eventuality of having served for a specified
period (one year) with good conduct efficiently. Merely because, the
government servant has retired on the very next day, how can he be
denied the annual increment which he has earned and/or is entitled to
for rendering the service with good conduct and efficiently in the
preceding one year. In the case of Gopal Singh (supra) in paragraphs
20, 23 and 24, the Delhi High Court has observed and held as under:-
(para 20)
"Payment of salary and increment to a central government
servant is regulated by the provisions of F.R., CSR and Central
Civil Services (Pension) Rules. Pay defined in F.R. 9(21) means
the amount drawn monthly by a central government servant
and includes the increment. A plain composite reading of
applicable provisions leaves no ambiguity that annual increment
is given to a government servant to enable him to discharge
duties of the post and that pay and allowances are also
attached to the post. Article 43 of the CSR defines progressive
appointment to mean an appointment wherein the pay is
progressive, subject to good behaviour of an officer. It connotes
that pay rises, by periodical increments from a minimum to a
maximum. The increment in case of progressive appointment is
specified in Article 151 of the CSR to mean that increment
accrues from the date following that on which it is earned. The
scheme, taken cumulatively, clearly suggests that appointment
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of a central government servant is a progressive appointment
and periodical increment in pay from a minimum to maximum is
part of the pay structure. Article 151 of CSR contemplates that
increment accrues from the day following which it is earned.
This increment is not a matter of course but is dependent upon
good conduct of the central government servant. It is, therefore,
apparent that central government employee earns increment on
the basis of his good conduct for specified period i.e. a year in
case of annual increment. Increment in pay is thus an integral
part of progressive appointment and accrues from the day
following which it is earned."
(para 23)
"Annual increment though is attached to the post & becomes
payable on a day following which it is earned but the day on
which increment accrues or becomes payable is not conclusive
or determinative. In the statutory scheme governing progressive
appointment increment becomes due for the services rendered
over a year by the government servant subject to his good
behaviour. The pay of a central government servant rises, by
periodical increments, from a minimum to the maximum in the
prescribed scale. 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."
(para 24)
"In isolation of the purpose it serves the fixation of day
succeeding the date of entitlement has no intelligible differentia
nor any object is to be achieved by it. The central government
servant retiring on 30th June has already completed a year of
service and the increment has been earned provided his conduct
was good. It would thus be wholly arbitrary if the increment
earned by the central government employee on the basis of his
good conduct for a year is denied only on the ground that he
was not in employment on the succeeding day when increment
became payable." "In the case of a government servant retiring
on 30th of June the next day on which increment falls
due/becomes payable looses significance and must give way to
the right of the government servant to receive increment due to
satisfactory services of a year so that the scheme is not
construed in a manner that if offends the spirit of
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reasonableness enshrined in Article 14 of the Constitution of
India. The scheme for payment of increment would have to be
read as whole and one part of Article 151 of CSR cannot be read
in isolation so as to frustrate the other part particularly when
the other part creates right in the central government servant to
receive increment. This would ensure that scheme of progressive
appointment remains intact and the rights earned by a
government servant remains protected and are not denied due
to a fortuitous circumstance."
6.6 The Allahabad High Court in the case of Nand Vijay Singh
(supra) while dealing with the same issue has observed and held in
paragraph 24 as under: -
"24. Law is settled that where entitlement to receive a benefit
crystallises in law its denial would be arbitrary unless it is for a
valid reason. The only reason for denying benefit of increment,
culled out from the scheme is that the central government
servant is not holding the post on the day when the increment
becomes payable. This cannot be a valid ground for denying
increment since the day following the date on which increment
is earned only serves the purpose of ensuring completion of a
year's service with good conduct and no other purpose can be
culled out for it. The concept of day following which the
increment is earned has otherwise no purpose to achieve. In
isolation of the purpose it serves the fixation of day succeeding
the date of entitlement has no intelligible differentia nor any
object is to be achieved by it. The central government servant
retiring on 30th June has already completed a year of service
and the increment has been earned provided his conduct was
good. It would thus be wholly arbitrary if the increment earned
by the central government employee on the basis of his good
conduct for a year is denied only on the ground that he was not
in employment on the succeeding day when increment became
payable. In the case of a government servant retiring on 30th of
June the next day on which increment falls due/becomes
payable looses significance and must give way to the right of
the government servant to receive increment due to satisfactory
services of a year so that the scheme is not construed in a
manner that if offends the spirit of reasonableness enshrined in
Article 14 of the Constitution of India. The scheme for payment
of increment would have to be read as whole and one part of
Article 151 of CSR cannot be read in isolation so as to frustrate
the other part particularly when the other part creates right in
the central government servant to receive increment. This would
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ensure that scheme of progressive appointment remains intact
and the rights earned by a government servant remains
protected and are not denied due to a fortuitous circumstance."
6.7 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 interpreted
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 Vs.
Pavithran (O.P.(CAT) No. 111/2020 decided on 22.11.2022) and the
Himachal Pradesh High Court in the case of Hari Prakash Vs. State of
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Himachal Pradesh & Ors. (CWP No. 2503/2016 decided on
06.11.2020)."
5.2 The Division Bench of this Court in Prahladbhai
Haribhai Patel (supra) has held as under:-
"11. We have perused the documents which are placed on record and
we have also considered the submissions canvassed by the learned
advocates for the respective parties. It is not in dispute that the learned
Single Judge has allowed all the captioned petitions after placing
reliance upon the order dated 27.04.2022 rendered by the Division
Bench of this Court in Letters Patent Appeal No.868 of 2021 in the case
of State of Takhatsinh Udesinh Songara (supra), wherein the Division
Bench of this Court has observed as under:
"5.2 The view taken by the Madras High Court in
P.Ayyamperumal (supra) and by Delhi High Court in Gopal
Singh (supra) and other High Courts as above, holding that the
government servant is entitled to increment becoming payable
on 1st July, even though he has retired on 30th June, is
required to be accepted. This court is in concurrence with the
view taken in the aforesaid decisions by the Madras High Court
and the Delhi High Court and the reasons supplied therein. This
court is unable to subscribe to the converse view taken by High
Courts of Himachal Pradesh and Rajasthan.".
6. In view of aforesaid decisions and the law laid down, the
petitioners are held to be entitled to one increment due on
1.7.2014, 1.7.2012, 1.7.2019, 1.7.2019, 1.7.2022, 1.7.2013,
1.7.2019, 1.7.2018, 1.7.2015, 1.7.2013, 1.7.2019, 1.7.2017,
1.7.2022, 1.7.2013, 1.7.2022 respectively. The respondent
authorities are directed to revise the pension and other
retirement benefits of the petitioners accordingly. The revised
pension, arrears and the retirement benefits shall be paid to the
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petitioners within a period of twelve weeks from the date of
receipt of this order, failing which, the said amount shall carry
interest at the rate of 6% per annum till the same is paid.
7. In view of the aforesaid observations, the Special Civil
Application is allowed and disposed of accordingly. No order as
to costs. Direct service is permitted.
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
