Himachal Pradesh High Court
Thakur vs Registrar & Ors on 27 October, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 27th DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE VIRENDER SINGH
CIVIL WRIT PETITION NO. 6762 OF 2022
Between:- r to
KARTAR SINGH THAKUR AGED
63 YEARS, S/O SH. RAM SAHAI
THAKUR R/O V.P.O. DAHAD
TEHSIL JHANDUTTA DISTT.
BILASPUR H.P.
...PETITIONER
(SH. SUBHASH PATHANIA,
ADVOCATE)
AND
1. STATE OF HP THROUGH ITS
PRINCIPAL SECRETARY JAL
SHAKTI VIBHAG TO THE
GOVERNMENT OF HIMACHAL
PRADESH SHIMLA (H.P.).
171002
2. THE ENGINEER IN CHIEF, JAL
SHAKTI VIBHAG, JAL SHAKTI
BHAWAN TUTI KANDI SHIMLA-
171005 (H.P.)
3. THE EXECUTIVE ENGINEERJAL
SHAKTI DIVISION BILASPUR
(H.P.)
...RESPONDENTS
::: Downloaded on - 29/10/2022 20:32:07 :::CIS
2
(SH. ASHOK SHARMA, A.G.
WITH SH. SHIV PAL MANHANS,
ADDL.A.G., SH. J. S. GULERIA,
.
SH. BHUPINDER THAKUR, DY.
A.GS. AND SH. RAJAT
CHAUHAN, LAW OFFICER.)
This Petition coming on for orders this day, the Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
Whether an employee, who retired on 31 st of a month
is entitled to the increment, which would have fallen due on first
of the next month, is the question involved in the instant
petition.
2. The petitioner worked as Junior Engineer with the
respondents-Department w.e.f. 18.01.1984 to 26.09.2014.
Thereafter, he was promoted as Assistant Engineer w.e.f.
27.09.2014 upto the attaining the age of superannuation on
31.12.2016, however, the annual increment fell due on
31.12.2016 has not been given to the petitioner till date.
According to the petitioner, the increment due in his favour on
01.01.2017, is liable to be reckoned for computing his basic pay
for the purpose of pension. For this purpose, the petitioner
represented several times, however, the same was rejected by
the respondents on the ground that the petitioner had served for
twelve months since the grant of earlier annual increment and
had retired on 31.12.2016, therefore, he is not entitled to the
same.
.
3. It is further contended by learned counsel for the
petitioner that the issue in question is fully covered by the
judgment of the Hon'ble Madras High Court in CWP No. 15732
of 2017, titled as P. Ayyampermal vs. Registrar & Ors.,
which in turn has been upheld by the Hon'ble Supreme Court
4.
r to
with the dismissal of the SLP No. 22008/2018, titled as Union
of India vs. P. Ayyampermal.
It is in this background, the petitioner has filed the
instant petition for grant of the following substantive reliefs:-
i) That appropriate writ order or directions may very kindly
be passed to the respondents directing them to grant and
allow the due and admissible last annual increment for
the period 01.01.2016 to 31.12.2016 alongwith interest to
the tune of 9% till realization in his favour for computing
his basic pay for the purpose of pension.
ii) That in alternative relief to the lesser extent
appropriate writ in the nature of mandamus or any other
appropriate writ order and/or directions may very kindly
be issued to the respondents to directing them to consider
the claim of petitioner.
Iii) That in alternative relief writ in the nature of certiorari
or any other appropriate writ order or directions may very
kindly be passed for quashing and setting aside Anexure
P-4 if required.
5. We have heard learned counsel for the parties and
have gone through the material placed on record.
6. Identical issue came up for consideration before a
Division Bench of this Court, in which one of us was a Member, in
.
CWP No. 2503 of 2016, titled as Hari Prakash vs. State of
Himachal Pradesh & Ors. and connected matter, wherein
the petitioner after placing reliance upon the Madras High Court
Judgment in Ayyampermal's case (supra), claimed the same
and similar relief, as claimed in the instant petition, however,
negating the said plea, the Court, held as under:-
3(i). In support of his claim of the increment immediately
falling due post retirement, learned Counsel for the
petitioner relied upon a judgment passed by the High
Court of Judicature at Madras in WP No. 15732 of 2017,
titled P. Ayyamperumal vs. Registrar, CAT decided on
15.9.2017, wherein it was observed that on completing
one year of service from 1.7.2012 to 30.6.2013, the
petitioner therein became entitled for the benefit of
increment, which accrued to him 'during that period'
though the increment fell due on 1.7.2013 when he was
not in service. The relevant extract from the judgment is
reproduced hereinafter:-
"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 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."
The SLP (Civil) preferred against this judgment was
dismissed in limine by the Hon'ble Apex Court on
23.7.2018 with following order:
"Delay condoned.
On the facts, we are not inclined to interfere
with the impugned judgment and order passed by the
High Court of Judicature at Madras.
The special leave petition is dismissed."
The review petition against the order dated
23.7.2018 was dismissed on 8.8.2019. Learned Counsel
for the petitioner also pressed in service the judgment
passed in WP(C) 10509/2019, titled Gopal Singh Vs. Union
of India and others, decided by a Division Bench of High
Court of Delhi on 23.1.2020 whereunder relying upon the
judgment in P. Ayyamperumal's case supra the writ
.
petition was allowed and respondents therein were
directed to grant notional increment to the petitioner
w.e.f. 1.7.2019 for the service rendered by him from
1.7.2018 to 30.6.2019. The respondents were further
directed to re-fix the pensionary benefits of the petitioner.
Relying upon the above judgments, learned
Counsel for the petitioner submitted that in the instant
case petitioner had rendered continuous service of twelve
months on the date of his retirement but he was not
granted the benefit of one increment which was due and
admissible to him on 1.4.2003.
3(ii) Opposing the petition, on behalf of the State,
learned Additional Advocate General placed reliance upon
a decision rendered on 29.7.2020 by the Madhya Pradesh
High Court in Madhav Singh Tomar & ors. vs. M.P. Power
Management Co. Ltd. & ors., (WP No. 9940 of 2020)
wherein relying upon an earlier order passed by a Division
Bench of the High Court on 10.7.2017 in writ appeal No.
717 of 2016, the writ petition claiming next annual
increment due immediately after retirement was
dismissed keeping in view the Fundamental Rules
governing service conditions of the petitioner. Reliance
was also placed by learned Additional Advocate General
upon a Full Bench decision of Andhra Pradesh High Court
delivered on 27.1.2005 in Principal Accountant General vs.
C. Subba Rao 2005 Lab I.C. 1224 where the impugned
order of the Tribunal holding the employee entitled to an
annual increment that fell due on 1.1.2002 after his
retirement on 31.12.2001 was quashed and set aside.
Relevant extract from the judgment is as under :-
"16. As per F.R. 17, extracted hereinabove, a
Government servant shall begin to draw the pay and
.
allowances attached to his post with effect from the
date when he assumes the duties of that post until he
ceases to discharge those duties. "Pay" as defined in
F.R.9(21)(a) means, the amount drawn monthly by a
Government servant which also includes the increment
given at an anterior date. Therefore, after retirement, a
person will not be entitled to any pay including the
increment that may be due from the posterior date.
F.R.22 regulates the initial pay of a Government servant
who is appointed to a post in time-scale and F.R.24 and
F.R.26 regulate the sanction of increment to a
Government servant, who is on duty. A reading of
various Fundamental Rules extracted hereinabove
would show that a person appointed as a Government
servant is entitled to pay in time- scale of pay. He is also
entitled to draw the increment as per time-scale of pay
as a matter of course as long as such Government
servant discharges duties of the post and such
Government servant shall not be entitled to draw the
pay and allowances attached to the post as soon as he
ceases to discharge those duties. In other words, as per
F.R. 17 read with F.Rs.24 and 26 annual increment is
given to a Government servant to enable him to
discharge duty and draw pay and allowances attached
to the post. If such Government servant ceases to
discharge duties by any reason say, by reason of
attainment of age of superannuation, such Government
servant will not be entitled to draw pay and allowances.
As a necessary corollary, such employee would not be
entitled to any increment if it falls due after the date of
retirement, be it on the next day of retirement or
sometime thereafter.
17. F.R.56(a) creates a legal fiction. Even if a person
attains the age of 60 years on any day of the month, he
.
shall be retired on the afternoon of the last day of the
month. A Government servant, who attains the age of
60 years on any day in a month, is deemed to have not
attained the superannuation till the last day of the
month. In the case of a Government servant, whose
date of birth is first of a month shall retire from service
on the afternoon of the last day of the preceding month
on attaining the age of 60 years. In this case, actually
and factually, a Government servant would have
completed the age of 60 years a day before the date on
which his date of birth falls. Therefore, there are two
situations. In the first situation, a Government servant
though he attains the age of 60 years on any day of the
month, he is deemed to have not attained such age till
the afternoon of the last day of that month. Assuming
that such a situation is not contemplated - as in the
case of persons holding constitutional offices like,
Judges of Supreme Court, High Court, Members of
Election Commission, Comptroller and Auditor General
etc; if a Government servant is retired on a day before
the actual date of birth on any day of the month and the
increment of such Government servant falls on the first
of the succeeding month, can he claim annual grade
increment? The answer must be an emphatic "no".
Because, by the date on which the increment falls due,
such Government servant ceased to be a Government
servant. It is therefore logical and reasonable to
conclude that merely because for the purpose of
F.R.56(a), a person is continued till the last date of the
month in which he attains the age of superannuation,
such an employee cannot claim increment which falls
due on the first day of the succeeding month after
retirement."
4(i). Fundamental Rules ('FR' in short) govern all
general conditions of service of employees. FR 56 relates
.
retirement of an employee. The relevant part of the Rule
56(a) reads as under:-
F.R. 56(a) Except as otherwise provided in this rule,
every Government servant shall retire from service on
the afternoon of the last day of the month in which he
attains the age of sixty years:
Provided that a Government servant whose date of
birth is the first of a month shall retire from service on
the afternoon of the last day of the preceding month on
r attaining the age of sixty years.
Provided further that a Government servant who has
attained the age of fifty eight years on or before the
first day of May, 1998 and is on extension in service,
shall retire from the service on expiry of his extended
period of service.
Or on the expiry of any further extension in service
granted by the Central Government in public interest,
provided that no such extension in service shall be
granted beyond the age of 60 years.
In terms of FR 56(a), a Government servant retires
on the last day of the month in which he attains age of
superannuation. In case his date of birth is the first of a
month, then he shall retire on the afternoon of the last
day of the preceding month on attaining age of
superannuation. Petitioner with date of birth as
01.04.1945 had retired from service on 31.03.2003 on
attaining 58 years of age of superannuation.
4(ii) The day when the government employee
retires has to be treated as his last working day. FR 17(1)
.
provides that an officer shall begin to draw pay and
allowances attached to the post w.e.f. the date when he
assumes duties of that post and shall cease to draw them
as soon as he ceases to discharge those duties. The rule
reads as under:
"F.R. 17(1) Subject to any exceptions specifically made
in these rules and to the provision of sub-rule (2), an
officer shall begin to draw the pay and allowances
attached to his tenure of a post with effect from the
date when he assumes the duties of that post, and shall
rcease to draw them as soon as he ceases to discharge
those duties."
Rule 5 of CCS Pension Rules says that date of
retirement of the person shall be treated as his last
working day and his claim to pension shall be regulated
by provisions of rules in force at the time of his
retirement. The Rule reads as under :-
"5.Regulation of claims to pension or family pension
(1) Any claim to pension or family pension shall be
regulated by the provisions of these rules in force at the
time when a Government servant retires or is retired or
is discharged or is allowed to resign from service or
dies, as the case may be.
(2) The day on which a Government servant retires or is
retired or is discharged or is allowed to resign from
service, as the case may be, shall be treated as his last
working day. The date of death shall also be treated as
a working day"
Under Rule 83(1) of CCS Pension Rules, pension
becomes payable from the date a Government servant
.
ceases to be borne on the establishment. The Rule is
extracted hereinafter :-
"83 Date from which pension becomes payable
(1) Except in the case of a Government servant to
whom the provisions of Rule 37 apply and subject to
the provisions of Rules 9 and 69, a pension other than
family pension shall become payable from the date on
which a Government servant ceases to be borne on the
establishment."
r Rule 34 of CCS Pension Rules provides for
determination of average emoluments with reference to
emoluments drawn by a Government servant during last
ten months of the service. Under Rule 33 'emoluments'
means basic pay as defined in Rule 9(21) (a) (i) of
Fundamental Rules which a Government servant was
receiving immediately before his retirement. Rule 33 is as
under :-
"33. Emoluments
"The expression `emoluments' means basic pay as
defined in Rule 9 (21) (a) (i) of the Fundamental Rules
which a Government servant was receiving
immediately before his retirement or on the date of his
death ; and will also include non-practising allowance
granted to medical officer in lieu of private practice.
EXPLANATION. - Stagnation increment shall be treated
as emoluments for calculation of retirement benefits."
The petitioner was not on duty on 1.4.2003.
Increment can be drawn only when an employee is on
duty. The increment in terms of FR 24 & 26 did not
become due during the period of service of the petitioner.
Therefore, increment on 1.4.2003 cannot be sanctioned in
favour of petitioner on the ground that he had completed
.
twelve months of continuous service. The date of
increment falls due on the first day of the succeeding
month after the retirement. Petitioner retired on the basic
pay drawn by him on 31.3.2003 i.e. his date of retirement.
His pension has to be determined accordingly. Petitioner
had become a pensioner on 1.04.2003. He cannot be held
entitled to any increment which may fall due post his
retirement. He is entitled only to those increments which
fall due to him during the period of his service.
4(iii) Learned counsel for the petitioner contended
that in P. Ayyamperumal's case (supra) a direction was
issued to the respondents to grant the employee one
notional increment for the purpose of pensionary benefits
for the period 01.07.2012 to 30.06.2013 as he had
completed one full year of service on his retirement on
30.06.2013 even though next increment fell due on
01.07.2013. He further submitted that since the SLP
against this judgment was dismissed by the apex Court on
23.07.2018 and review petition was also dismissed on
08.08.2019, therefore, the legal position has now been
settled by the apex Court that the increment which falls
due on the day immediately following the day of
retirement, has to be granted to the employee on the
ground that he had completed 12 months of service on
the date of his retirement.
The aforesaid contention of learned counsel is
untenable. It is settled law that an order refusing Special
Leave to Appeal may either be a speaking order or the
non speaking one. In either case, it will not attract
doctrine of merger. In the instant case, the order refusing
Special Leave to Appeal is non speaking, therefore, it does
not stand substituted in place of the order under
challenge. In this regard, it would be appropriate to refer
.
to paragraph 44 of the judgment passed by apex Court in
(2000) 6 SCC 359 titled Kunhayammed and others
Vs. State of Kerala and another, relied upon in (2019)
4 SCC 376, titled Khoday Distilleries Limited and
others Vs. Sri Mahadeshwara Sahakara Sakkare
Karkhane Limited, Kollegal.
"44. To sum up our conclusions are :-
rbefore to
(i) Where an appeal or revision is provided against an
order passed by a court, tribunal or any other authority
superior forum and such superior
modifies, reverses or affirms the decision put in issue
forum
before it, the decision by the subordinate forum merges
in the decision by the superior forum and it is the latter
which subsists, remains operative and is capable of
enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the
Constitution is divisible into two stages. First stage is
upto the disposal of prayer for special leave to file an
appeal. The second stage commences if and when the
leave to appeal is granted and special leave petition is
converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or
unlimite application. It will depend on the nature of
jurisdiction exercised by the superior forum and the
content or subject-matter of challenge laid or capable
of being laid shall be determinative of the applicability
of merger. The superior jurisdiction should be capable
of reversing, modifying or affirming the order put in
issue before it. Under Article 136 of the Constitution the
Supreme Court may reverse, modify or affirm the
judgment-decree or order appealed against while
exercising its appellate jurisdiction and not while
.
exercising the discretionary jurisdiction disposing of
petition for special leave to appeal. The doctrine of
merger can therefore be applied to the former and not
to the latter.
(iv) An order refusing special leave to appeal may be a
non- speaking order or a speaking one. In either case it
does not attract the doctrine of merger. An order
refusing special leave to appeal does not stand
substituted in place of the order under challenge. All
that it means is that the Court was not inclined to
exercise its discretion so as to allow the appeal being
filed.
(v) If the order refusing leave to appeal is a speaking
order, i.e. gives reasons for refusing the grant of leave,
then the order has two implications. Firstly, the
statement of law contained in the order is a declaration
of law by the Supreme Court within the meaning of
Article 141 of the Constitution. Secondly, other than the
declaration of law, whatever is stated in the order are
the findings recorded by the Supreme Court which
would bind the parties thereto and also the court,
tribunal or authority in any proceedings subsequent
thereto by way of judicial discipline, the Supreme Court
being the apex court of the country. But, this does not
amount to saying that the order of the court, tribunal or
authority below has stood merged in the order of the
Supreme Court rejecting special leave petition or that
the order of the Supreme Court is the only order
binding as res judicata in subsequent proceedings
between the parties.
(vi) Once leave to appeal has been granted and
appellate jurisdiction of Supreme Court has been
invoked the order passed in appeal would attract the
doctrine of merger; the order may be of reversal,
.
modification or merely affirmation.
(vii) On an appeal having been preferred or a petition
seeking leave to appeal having been converted into an
appeal before Supreme Court the jurisdiction of High
Court to entertain a review petition is lost thereafter as
provided by sub-rule (1) of Rule (1) of Order 47 of the
C.P.C."
In (2019) 6 SCC 270, titled State of Orissa and
another Vs. Dhirendra Sunder Das and others,
principle of law was reiterated that dismissal of an SLP in
limine without giving any detailed reason does not
constitute any declaration of law or a binding precedent
under Article 141. The relevant paragraph is reproduced
hereinbelow :-
"9.27 It is a well settled principle of law emerging from
a catena of decisions of this Court, including Supreme
Court Employees' Welfare Association v. Union of India
& Anr. (1989) 4 SCC 187 and State of Punjab v.
Davinder Pal Singh Bhullar (2011) 14 SCC 770, that the
dismissal of a S.L.P. in limine simply implies that the
case before this Court was not considered worthy of
examination for a reason, which may be other than the
merits of the case. Such in limine dismissal at the
threshold without giving any detailed reasons, does not
constitute any declaration of law or a binding precedent
under Article 141 of the Constitution"
In (2020) 5 SCC 421, titled Union of India and
others Vs. M.V. Mohanan Nair, it was held that the law
declared by the Supreme Court has to be essentially
understood as a principle laid by the Court and it is this
principle which has the effect of a precedent. A principle
can be delivered only after examination of the matter on
.
merits and not on the basis of a decision delivered on
technical grounds without entering into the merits at all. A
decision unaccompanied by reasons cannot be said to be
a law declared by the Supreme Court though it will bind
the parties inter se in the litigation. The relevant
paragraph of the judgment (supra) is reproduced
hereinbelow :-
48. Article 141 of the Constitution of India provides that
the law declared by the Supreme Court shall be binding
on all courts within the territory of India, i.e. the
rpronouncement of the law on the point shall operate as
a binding precedent on all courts within India. Law
declared by the Supreme Court has to be essentially
understood as a principle laid down by the court and it
is this principle which has the effect of a precedent. A
principle as understood from the word itself is a
proposition which can only be delivered after
examination of the matter on merits. It can never be in
a summary manner, much less be rendered in a
decision delivered on technical grounds, without
entering into the merits at all. A decision,
unaccompanied by reasons can never be said to be a
law declared by the Supreme Court though it will bind
the parties inter-se in drawing the curtain on the
litigation. In Union of India v. All India Service
Pensioners' Association and another (1988) 2 SCC 580,
the Supreme Court held that "when reasons were made
by the Supreme Court for dismissing the SLP, the
decision becomes one which attracts Article 141 of the
Constitution which provides that the law declared by
the Supreme Court shall be binding on all the courts
within the territory of India."
Therefore, it cannot be said that by dismissal of SLP
against the judgment rendered in P. Ayyamperumal's case
.
(supra), the apex Court had laid down the binding
principle of law that increment which falls due on first day
post the retirement of an employee is to be granted to
him only for the reason that he had rendered 12 months
of service on the day of his retirement.
Learned Tribunal rightly held that power to relax
requirement of a rule, provided under F.R.5-A can be
exercised only in consonance with the rule and not in a
routine manner. Petitioner had retired on 31.03.2003. It
was in 2014 that he moved representations seeking claim
on the increment which would have fallen due on
01.04.2003. We have already held that petitioner had
retired on 31.03.2003 on the basis of pay drawn by him
on that date. His status as on 01.04.2003 was that of a
pensioner. Therefore, increment which fell on 01.04.2003
cannot be granted in his favour.
No other point was urged by the learned counsel.
For the foregoing reasons, we find no merit in the
present writ petition and the same is accordingly
dismissed. Pending applications, if any, also stand
disposed of."
7. The learned counsel for the petitioner has not been
able to point out any infirmity much less illegality in the Hari
Prakash's case (supra) and the said judgment in terms of
Article 141 of the Constitution of India is binding on us, more
particularly, when we have not been able to be persuaded to
take a different view.
8. Accordingly, we find no merit in this petition and the
same is accordingly dismissed, leaving the parties to bear their
.
own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
27 th
October, 2022
(sanjeev)
r to (Virender Singh)
Judge
