Kerala High Court
Union Of India vs T.M.Sainudeen on 12 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:15237
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
WEDNESDAY, THE 12TH DAY OF FEBRUARY 2025 / 23RD MAGHA, 1946
OP (CAT) NO. 74 OF 2021
AGAINST THE ORDER DATED 03.12.2019 IN OA NO.51 OF 2019 OF
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN THE ORIGINAL APPLICATION:
1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE
GOVERNMENT OF INIDA, MINISTRY OF DEFENCE,
NEW DELHI-110 001.
2 THE ENGINEER-IN-CHIEF
MINISTRY ENGINEER SERVICES, INTEGRATED DEFENSE
HEADQUARTERS, KASHMEER HOUSE, NEW DELHI-110 001.
3 THE CHIEF ENGINEER
HEADQUARTERS SOUTHERN COMMAND,
MILITARY ENGINEER SERVICES, PUNE-400 001.
4 THE CHIEF ENGINEER (NW)
MILITARY ENGINEER SERVICES, KOCHI-682 004
BY ADV KRISHNA T C, DSGI IN CHARGE
RESPONDENTS/APPLICANT IN THE OA:
1 T.M.SAINUDEEN, AGED 60 YEARS
S/O. LATE T.S.MUHAMMED, RETIRED SAA (UDC),
O/O. AGE(1) R&D, KOCHI, RESIDING AT THAIKUDIYIL HOUSE,
PERUMATTOM, PUTHUPADY PO, MUVATTUPUZHA-686 673.
2 K.MOHANAN, AGED 61 YEARS
S/O. LATE MADHAVAN, RETIRED UPHOLSTER,
O/O. AGE (1) KANNUR, KODAMBATTIL HOUSE,
KOTHARA POST, KOZHIKODE-673 655.
OP(CAT) No.74/2021
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3 K.C.JOSEPH, AGED 6 YEARS
S/O. LATE CHACKO, RETIRED OFFICE SUPERINTENDENT, O/O. CE
(NW), KOCHI, RESIDING AT KONDADIYEL HOUSE, MARADU PO,
ERNAKULAM-682 304.
4 JOHN MATHEW, AGED 66 YEARS
RETIRED OFFICE SUPERINTENDENT, O/O. CE (NW), KOCHI,
RESIDING AT PARIYAPPANAL HOUSE, KIZHAKOMBU PO,
KOOTHATTUKULAM, ERNAKULAM-686 662.
5 G.SREENIVASAN, AGED 62 YEARS
RETIRED OFFICE SUPERINTENDENT, O/O THE RESIDING AT SWATHY,
PUTHIYAVILA SOUTH, PATTOLI MARKET POST, KANDALLOR,
KAYAMKULAM, ALAPPUZHA-690 531.
ADV.R.SREERAJ
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.02.2025, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) No.74/2021
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JUDGMENT
K. V. JAYAKUMAR, J
Feeling aggrieved by the order of the Central Administrative
Tribunal in O.A.No.51/2019, Union of India and its officers preferred this
OP(CAT).
2. The applicant, T. M. Sainudeen and several others
approached the Honourable Tribunal claiming that they are entitled to
one notional increment on 01.07.2006 for their service from 01.01.2006
to 30.06.2006 for the purpose of retirement benefits. The Tribunal, as
per the common order dated 03.12.2019 disposed of several OAs
preferred by the employees having similar grievance.
3. The claim of the respondents/applicants was that, on
implementation of the recommendation of 6 th CPC, a uniform date of
annual increment was formulated viz 1 st July of every year. The
applicants retired from service on the last date of June in different years.
After 2006, the claim of the applicants was that, had the applicants been
in service on 01.07.2019, they would have got an increment, as they have
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already completed six months on 30th June. The contention of the
petitioners/Union of India was that, as per Central Civil Service (Revised
Pay Rules) 2008, annual increment accrues on 1 st July every year. As per
that Rule, employees completing six months and above service in the
revised pay structure as on 1st July will become eligible for one increment.
The applicants can only be treated as retired Government servant and not
a Government servant on 1st July.
4. The Tribunal, placing reliance on the decision in
P.Ayyamperumal v. The Registrar and Ors. [CDJ 2017 MHC
6274], which was later confirmed by the Honourable Apex Court,
allowed the claim of the applicants and granted one notional increment
for calculating pensionary benefits and not for any other purpose. The
relevant paragraphs of the Tribunal's order are extracted hereunder:
"7. Heard the learned counsel appearing for the
parties at length and perused the record and judgments
relied upon on either side.
8. In P. Ayyamperumal's case (supra) the
Hon'ble Madras High Court held as under:
"4 Heard the learned Senior Panel Counsel appearing for
the respondents 2 to 4 on the submissions made by the
petitioner and perused the materials available on record.
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5. The petitioner retired as Additional Director General,
Chennai on 30.06.2013 on attaining the age of
superannuation. After the Sixth Pay Commission, the
Central Government fixed 1st July as the date of
increment for all employees by amending Rule 10 of the
Central Civil Services (Revised Pay) Rules, 2008. In view
of the said amendment, the petitioner was denied the last
increment, though he completed a full one year in service,
ie., from 01.07.2012 to 30.06.2013. Hence, the petitioner
filed the original application in O.A.No.310/00917/2015
before the Central Administrative Tribunal, Madras
Bench, and the same was rejected on the ground that an
incumbent is only entitled to increment on 1st July if he
continued in service on that day.
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
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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 Hon'ble apex court vide order dated 23.7.2018 in SLP
(Civil) Diary No. (s) 22283/2018 confirmed the judgment
passed by the Hon'ble Madras High Court and dismissed
the SLP.
9. We find that the Hon'ble Madras High Court
had already considered the issue raised by the applicants
in the present OAs are we are in full agreement with the
judgment passed by the Hon'ble Madras High Court in P.
Ayyamperumal's case (supra) upheld by the Hon'ble
apex court."
5. The issue involved in this matter has already been
pondered by the Division Bench of this Court in OP(CAT) No.65/2023
dated 10.08.2023. In that case, this Court considered the matter in
extenso and granted one notional increment to the applicants who are
similarly placed. The relevant paragraphs are extracted hereunder:
"12. The argument raised based on the proviso to
Note I of Rule 33 of the Central Civil Service (Pension) Rules is
that any increment other than the one referred to in Note 4,
which is not actually drawn, shall not form part of the
emoluments for the purpose of pension. We notice that the said
argument is attractive in the first blush. Rule 33 of the CCS
(Pension) Rules is extracted below:-
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"Rule 33
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.
Note 1 - If a Government servant immediately before his
retirement or death while in service had been absent
from duty on leave for which leave salary is payable or
having been suspended had been reinstated without
forfeiture of service, the emoluments which he would
have drawn had he not been absent from duty or
suspended shall be the emoluments for the purposes of
this rule:
Provided that any increase in pay (other than the
increment referred to in Note 4) which is not actually
drawn shall not form part of his emoluments.
Note 2 - Where a Government servant immediately
before his retirement or death while in service had
proceeded on leave for which leave salary is payable after
having held a higher appointment, whether in an
officiating or temporary capacity, the benefit of
emoluments drawn in such higher appointment shall be
given only if it is certified that the Government servant
would have continued to hold the higher appointment
but for his proceeding on leave.
Note 3 - If a Government servant immediately before his
retirement or death while in service had been absent
from duty on extraordinary leave or had been under
suspension, the period whereof does not count as service,
the emoluments which he drew immediately before
proceeding on such leave or being placed under
suspension shall be the emoluments for the purposes of
this rule.
Note 4 - If a Government servant immediately before his
retirement or death while in service, was on earned leave,
and earned an increment which was not withheld, such
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increment, though not actually drawn, shall form part of
his emoluments:
Provided that the increment was earned during the
currency of the earned leave not exceeding one hundred
and twenty days, or during the first one hundred and
twenty days of earned leave where such leave was for
more than one hundred and twenty days."
13. Here again, we cannot appreciate and recognise
the argument of the learned counsel for the respondents,
inasmuch as the Hon'ble Supreme Court has recognised the
right of the employees based on a purposive interpretation
based on the object and concept based upon which an annual
increment is granted. This is all the more so, in view of the
findings of the Hon'ble Supreme Court that, depriving the
benefit, which emanates from a service which has been
admittedly rendered, would lead to arbitrariness and
unreasonableness, in the light of which, we can only find that
the argument based on the proviso to Note I of Rule 33 is also
squarely in the teeth of the arbitrariness and unreasonableness,
as found by the Hon'ble Supreme Court.
14. In the result, these original petitions succeed
and the impugned Common Order of the Tribunal is hereby set
aside. We direct the respondents to grant one notional
increment to the petitioners, as also, to revise their retiral
benefits after including such annual increment. We direct that
the above direction shall be complied within a period of two
months from the date of receipt of a copy of this judgment."
6. The Honourable Apex Court in Civil Appeal
No.2471/2023 pondered the same issue and upheld the dictum laid down
in P.Ayyamperumal's case (supra) of the Madras High Court.
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7. Therefore, the issue involved in this OP(CAT) is no
longer res intergra.
8. In the light of the above discussion, OP(CAT)
No.74/2021 fails and it is liable to be dismissed in our view.
Therefore, OP(CAT) is dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
Sbna/
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APPENDIX OF OP (CAT) 74/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE OA NO.180/00021/2019 DATED
20.1.2019 FILED BEFORE THE CAT, ERNAKULAM
BENCH.
Annexure A1 TRUE COPY OF THE JUDGMENT DATED 15.9.2017 IN WP
15732/2017 ON THE FILE OF THE HON'BLE HIGH
COURT OF MADRAS.
Annexure A2 TRUE COPY OF THE ORDER DATED 23.7.2018 IN SLP
(C) DIARY NO(S) 22283/2018 ON THE FILE OF THE
HON'BLE SUPREME COURT OF INDIA.
Annexure A3 TRUE COPY OF THE REPRESENTATION DATED 4.12.2017
BY SHRI. T.M.SAINUDHEEN TO THE CHIEF ENGINEER.
Annexure A4 TRUE COPY OF THE REPRESENTATION DATED 2.9.2018
SUBMITTED TO THE COMMANDER WORKS ENGINEER (NW)
Annexure A5 TRUE COPY OF THE REPRESENTATION DATED 27.9.2018
SUBMITTED TO THE SECRETARY, MINISTRY OF DEFENCE
AND THE DIRECTOR GENERAL, MES AND THE PRINCIPAL
CDA (PENSIONS) AND THE CHIEF ENGINEER HQ
SOUTHERN COMMAND AND THE CHIEF ENGINEER (NW),
KOCHI.
Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 29.9.2018
SUBMITTED TO THE SECRETARY, MINISTRY OF
DEFENCE.
Annexure A7 TRUE COPY OF THE REPRESENTATION DATED 2.7.2018
SUBMITTED TO THE DEFENCE SECRETARY, MINISTRY OF
DEFENCE.
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT IN
OA180/00051/2019 DATED NIL. 1.1.2019 FILED
BEFORE THE CAT, ERNAKULAM BENCH.
Exhibit P3 TRUE COPY OF THE ORDER IN OA 180/00051/2019
DATED 3.12.2019 ISSUED BY THE CAT, ERNAKULAM
BENCH.
