Gujarat High Court

Champusinh Dipasinh Chauhan vs State Of Gujarat on 20 October, 2023

Bench: Aniruddha P. Mayee

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      C/SCA/17463/2023                           ORDER DATED: 20/10/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 17463 of 2023

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              CHAMPUSINH DIPASINH CHAUHAN
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR HB SINGH(2073) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
MR MAHESHKUMAR R YADAV(11944) for the Petitioner(s) No.
1,2,3,4,5,6,7,8
for the Respondent(s) No. 1
MR JAY MEHTA, AGP, for the Respondent(s)
RULE SERVED BY DS for the Respondent(s) No. 2,3,4,5,6,7,8
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P.
      MAYEE

                           Date : 20/10/2023

                            ORAL ORDER

1. The present Special Civil Application is filed praying for the

following reliefs:-

"a). To admit and allow this petition;

b). Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to forthwith to grant the benefits of

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one increment to the petitioners as per their entitlement and consequently, direct respondent authorities to revise the pension and other retirement benefits of the petitioners and make the payment arrears with interest which the Hon'ble Court may deem just and proper;

c) During the pendency and final disposal of the present petition, Your Lordships may be pleased to directing the respondents to forthwith to consider the one increment for rendering the one full year of service of the petitioners taking into consideration the judgment / order passed by the Hon'ble Court in similarly situated petitions;

d) Pass any such other and/or further that may be though just and proper, in the facts and circumstances of the present case.

2. The factual matrix in the present case is that the petitioners

herein retired from the service on 30.06.2022, 30.06.2022,

30.06.2020, 30.06.2020, 30.06.2015, 30.06.2021, 30.06.2016, and

30.06.2018, respectively, on attaining the age of superannuation. It is

the case of the petitioners that they have rendered one full year of

service before 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

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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. H. B. Singh 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 1st 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 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

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since the order of the Division Bench was complied with by the

State Government and the issue was kept upon 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 government

servant legitimate one annual increment though he is entitled to that

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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 Mr. Jay

Mehta 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. He 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.

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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.

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

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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 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

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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

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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 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

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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 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

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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

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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 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

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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

01.07.2022, 01.07.2022, 01.07.2020, 01.07.2020, 01.07.2015,

01.07.2021, 01.07.2016, and 01.07.2018. 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 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