Gujarat High Court
Nagar Prathmik Shikshan Samiti ... vs State Of Gujarat on 22 January, 2024
NEUTRAL CITATION
C/SCA/19969/2023 ORDER DATED: 22/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19969 of 2023
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NAGAR PRATHMIK SHIKSHAN SAMITI KARMACHARI PENSIONERS
MANDAL
Versus
STATE OF GUJARAT
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MR NILESH A PANDYA(549) for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 2,4
MS HETAL PATEL, AGP for the RESPONDENT-STATE
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 22/01/2024
ORAL ORDER
1. The present Special Civil Application is filed praying for the
following reliefs:-
"10(A) directing the respondent authorities to grant one increment to the
members of the petitioner association (Annex-A) as per their
entitlement and consequentially direct the respondent authorities to
revise their pay and pension and other consequential retirement
benefits of the members of petitioner and make payment of arrears
with interest at the rate which the Honourable Court may deem just
and proper.
(C) Grant any other relief or pass any other order which the
Honourable Court may consider as just and proper in the facts and
circumstances of the case.".
2. The factual matrix in the present case is that members of the
petitioner Mandal herein retired from the service on 30.06.2014,
30.06.2012, 30.06.2022, 30.06.2012, 30.06.2010, 30.06.2017,
30.06.2009, 30.06.2006, 30.06.2019, 30.06.2006, 30.06.2011,
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30.06.2021, 30.06.2018, 30.06.2018, 30.06.2015, 30.06.2018,
30.06.2016, 30.06.2014, 30.06.2017, 30.06.2014, 30.06.2019,
30.06.2008, 30.06.2017, 30.06.2006, 31.10.2014, 31.10.2014,
30.06.2012, 30.06.2015, 30.06.2010, 30.06.2018, 30.06.2018,
30.06.2012, 30.06.2013, 30.06.2015, 30.06.2016, 30.06.2018,
30.06.2013, 30.06.2013, 30.06.2016, 30.06.2017, 30.06.2008,
30.06.2009, 31.10.2012, 31.02.2019, 30.06.2015, 30.06.2015,
30.10.2013, 31.03.2012, 20.08.2010, 30.06.2012, 23.10.2010,
30.06.2015, 30.06.2014, 30.06.2006, 30.06.2008, 30.06.2016,
30.06.2017, 30.06.2018, 30.06.2018, 30.06.2012, 31.10.2016,
31.10.2011, 30.06.2011, 25.06.2016, 01.06.2012, 30.06.2007,
30.06.2017, 30.06.2015, 30.06.2020, 30.06.2011, 30.06.2008,
30.06.2016, 30.06.2008, 31.10.2018, 31.10.2016, 31.10.2017,
30.06.2020, 30.06.2019, 30.06.2020, 30.06.2015, 30.06.2014,
31.10.2009, 30.06.2006, 31.10.2010, 30.06.2015, 30.06.2010,
30.11.2007, 30.06.2010, 30.06.2006, 30.06.2011, 30.06.2012,
30.06.2008, 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
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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. Asthavadi 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 since the order of the Division Bench was complied with by
the State Government and the issue was kept upon as the issue was
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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 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
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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 Ms. Hetal
Patel 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.
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
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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.
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
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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 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
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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
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
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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 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
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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
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.".
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6. In view of aforesaid decisions and the law laid down, the
petitioners are held to be entitled to one increment due on
01.07.2014, 01.07.2012, 01.07.2022, 01.07.2012, 01.07.2010,
01.07.2017, 01.07.2009, 01.07.2006, 01.07.2019, 01.07.2006,
01.07.2011, 01.07.2021, 01.07.2018, 01.07.2018, 01.07.2015,
01.07.2018, 01.07.2016, 01.07.2014, 01.07.2017, 01.07.2014,
01.07.2019, 01.07.2008, 01.07.2017, 01.07.2006, 01.07.2014,
01.07.2014, 01.07.2012, 01.07.2015, 01.07.2010, 01.07.2018,
01.07.2018, 01.07.2012, 01.07.2013, 01.07.2015, 01.07.2016,
01.07.2018, 01.07.2013, 01.07.2013, 01.07.2016, 01.07.2017,
01.07.2008, 01.07.2009, 01.07.2015, 01.07.2015, 01.07.2012,
01.07.2015, 01.07.2014, 01.07.2006, 01.07.2008, 01.07.2016,
01.07.2017, 01.07.2018, 01.07.2018, 01.07.2012, 01.07.2011,
01.07.2007, 01.07.2017, 01.07.2015, 01.07.2020, 01.07.2011,
01.07.2008, 01.07.2016, 01.07.2008, 01.07.2020, 01.07.2019,
01.07.2020, 01.07.2015, 01.07.2014, 01.07.2006, 01.07.2015,
01.07.2010, 01.07.2010, 01.07.2006, 01.07.2011, 01.07.2012,
01.07.2008, 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 petitioners within a period of twelve weeks from
the date of receipt of this order, failing which, the said amount shall
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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 qua the aforesaid
petitioners only. No order as to costs. Rule is made absolute
accordingly.
8. Some of the members of the petitioner Mandal whose names
are shown in the list at Annexure-A, at serial Nos.25, 26, 43, 44, 47,
49, 51, 61, 62, 65, 74, 75, 76, 82, 84 and 87 have retired after 30 th
June or before 30th June of the concerned years and therefore, no
relief can be granted to them. Hence, present Special Civil
Application qua them stands DISMISSED. Rule is discharged qua
them.
Direct service is permitted.
Sd/-
(ANIRUDDHA P. MAYEE, J.)
OMKAR
