State Of Gujarat vs Chhaganbhai Ramabhai Patel ...
2023 Latest Caselaw 6970 Guj

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    C/LPA/1184/2023                            ORDER DATED: 21/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO.      1184 of 2023

     In R/SPECIAL CIVIL APPLICATION NO. 14849 of 2022
                           With
       CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
        In R/LETTERS PATENT APPEAL NO. 1184 of 2023
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                         STATE OF GUJARAT
                              Versus
               CHHAGANBHAI RAMABHAI PATEL (EXPIRED)
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Appearance:
MS SHRUTI DHRUVE, AGP for the Appellant(s) No.
1,2,3,4,5,6
 for the Respondent(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No.
10,100,101,102,103,104,105,106,107,108,109,11,1.1,110,111
,112,113,114,115,116,117,118,119,12,120,121,122,123,124,1
25,126,127,128,129,13,130,131,132,133,134,135,136,137,138
,139,14,140,141,142,143,144,145,146,147,148,149,15,150,15
1,152,153,154,155,156,157,16,17,18,19,2,20,21,22,23,24,25
,26,27,28,29,3,30,31,32,33,34,35,36,37,38,39,4,40,41,42,4
3,44,45,46,47,48,49,5,50,51,52,53,54,55,56,57,58,59,6,60,
61,62,63,64,65,66,67,68,69,7,70,71,72,73,74,75,76,77,78,7
9,8,80,81,82,83,84,85,86,87,88,89,9,90,91,92,93,94,95,96,
97,98,99
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  CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE DEVAN M. DESAI

                        Date : 21/09/2023

                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned Assistant Government Pleader Ms. Shruti Dhruve for the appellant State and its authorities and learned advocate Mr. N.K. Majmudar, for the respondents.

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2. By judgment and order dated 03.08.2022 delivered in Special Civil Application No. 14849 of 2022, learned single Judge held that the petitioners, 157 in numbers, shall be entitled to the benefit of one increment falling due on 1 st July and consequential revision in pay and pension as well as for payment of arrears. The aggrieved State and its authorities have sought to challenge the said judgment and order by filling the present Letters Patent Appeal.

3. The petitioners served as Teachers, Primary Teachers, Upper Primary Teachers, Up Shikshak, Mukhya Shikshak, Nagar Shikshak, Principal etc. in different schools established by the District Panchayat or District Primary Education Committee, as the case may be, run and financed by the Education Department of the government.

3.1 The details of 157 petitioners including their dates of birth, dates of appointment, dates of retirement and the place where they served, figure in the tabular format. The details are given at Annexure-A (page 37-64) which is part of the record of the petition. For instance, petitioner No.1, Chaganbhai Ramabhai Patel was born on 01.06.1960, was appointed on 28.11.1985 as Principal in V.R. Carve High School, Mehsana, retired on 31.10.2018. Similarly, petitioner No.2 Vijaykumar Prahhladbhai Patel joined services on 24.09.1988 as Assistant

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Teacher at MCP Gayatri Vidhyalay, Mehsana and retired on 30.06.2018. Similarly, details of all the other petitioners are given in the tabular form as above.

3.2 The date of birth of all the petitioners fell in the month of June and they retired on 30 th June in that particular year upon attaining the age of 58 years. While the petitioners retired on the last date of June in the year concerned, increment fell due for them on 1st July, that is the next day of retirement. During the service period they were granted periodical increments. Their fixation of salary etc.. is governed by the Gujarat Civil Services (Revision of Pay) Rule, 2017.

3.3 Since the petitioners were denied the benefit of increment which fell due on 1st July as above, they filed the writ petition praying for declaration and direction that they are entitled to receive notional increment which became due on 1st July of the particular term/year, further seeking all consequential benefits.

4. Learned single Judge relied on the decision of the Division bench of this Court in State of Gujarat vs. Takhatsinh Udesinh Songara being Letters Patent Appeal No. 868 of 2021 decided on 27.4.2022, and allowed the petition.

4.1 The Supreme Court considered the very question

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in the Director (Admn. And HR) KPTCL & Ors. vs. C.P.Mundinamani & ors., whether the employee would be earning the annual increment falling on the very next day of retirement. That question fell for consideration before the Supreme Court in the context of Rule 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997.

4.1.1 The Supreme Court noted that on this issue various High Courts have taken divergent views,

"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

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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."

4.1.2 It was observed by the Apex Court regarding the object of grant of annual increment in paragraph No. 6.5 of C. P. Mundinamani (supra),

"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."

4.1.3 It was observed by the Supreme Court that the manner in which the authorities understood the rule and applied to deny the increments, would lead

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to arbitrariness and would amount to deny the government servant the benefit of annual increment which he has earned while rendering specific period of service with good conduct and efficiently in the last preceding year.

4.1.4 It was observed by the Supreme Court,

"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."

4.1.5 The Supreme Court then stated that it was in agreement with the view taken by the Madras High

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Court in P. Ayyamperumal vs. Union of India. Extracting para 6.7 from the judgment of the supreme court,

"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 Himachal Pradesh & Ors. (CWP No. 2503/2016 decided on 06.11.2020)."

4.2 Thus, the view taken by the Division Bench of this court in Takhatsinh Udesinh Songara (supra) which is relied on by learned single Judge, came to be affirmed by the Supreme Court. In Takhatsinh Udesinh Songara (supra), the Division Bench of this court taking into consideration the decision of other High Courts also observed relying on the decision of the Delhi High Court in Gopal Singh (supra), in paragraph No. 5.1.2,

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"The retirement of the government servant on the day prior to the increment becoming payable is only fortuitous circumstance, it was rightly expressed, (Para 24)

"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. "

4.3 A vain attempt was made on the part of learned Assistant Government Pleader to submit that the petitioners have approached the Court after delay. This aspect rightly not weighed to the learned Single Judge in granting relief to the petitioners since the issue was not only squarely covered, in another decision of this Court in State of Gujarat vs. Pravinbhai Khemabhai Patel, which was Letters Patent Appeal No. 941 of 2023 decided on 07.08.2023, in the similar set of facts Letters

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Patent Appeal of the State was dismissed and the benefit of increment becoming due on 1st July was extended to the petitioners concerned.

5. Thus, the issue involved in this Letters Patent Appeal and dealt with by learned Single Judge in the impugned judgment and order, is no longer res integra. Learned Assistant Government Pleader for the appellant was not in a position to dispute the position of law emanating from the above decision of the Supreme Court.

6. The benefits of revision of pay and pension including the payment of arrears arising because of the grant of increment as above, shall be paid to the petitioner within six weeks from the date of service of this order.

7. The judgment and order of learned single Judge is eminently just, proper and legal. The meritless Letters Patent Appeal is hereby dismissed. Direct service is permitted.

Civil application for stay would not survive in view of the dismissal of the appeal itself.

(N.V.ANJARIA, J)

(D. M. DESAI,J) BIJOY B. PILLAI