Patna High Court
Shri Shiv Kumar vs The State Of Bihar on 10 October, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3528 of 2023
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Shri Shiv Kumar Son of Late Raghunandan Paswan/R.N. Paswan, resident of
Village - Laxmipur, P.O. - Losghani, P.S. - Piri Bazar, District - Lakhisarai.
... ... Petitioner/s
Versus
1. The State of Bihar through Department of General Administration, Bihar,
Patna.
2. The Under Secretary, Bihar, Patna Personal Claim and Redressal Cell, Bihar,
Patna.
3. The Law Secretary, Government of Bihar, Patna.
4. High Court of Judicature at Patna through its Registrar General, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Arvind Kumar Sinha, Advocate
Mr.Munish Kumar, Advocate
Mr. Minakshi Kumar, Advocate
Mr. Munna Raj, Advocate
For the Respondent/s : Mr.Md. Nadim Seraj (Gp5)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 10-10-2023
A retired District Judge claims his annual
increment, which normally would have fallen due only on
the next day of completion of one full year. He retired on
the last date, thus dis-entitling him from the increment,
which he would have otherwise been entitled to had he
continued in service, with the increment reckoned for last
pay drawn to determine his pension.
Patna High Court CWJC No.3528 of 2023 dt.10-10-2023
2. The petitioner, who was appointed as a
Munsif was promoted as Additional District and Sessions
Judge on 03.01.2019. The petitioner contends that his
annual increment falls on the 1st January of every year of
service. The petitioner retired on 31.12.2022, and, hence, he
was deprived of the annual increment on successful
completion of his one year of service between 01.01.2022
and 31.12.2022. The petitioner relies on Annexure-1,
judgment of a Division Bench of the High Court of
Judicature at Madras, the SLP against which was dismissed
by Annexure-2 and a Division Bench decision of the High
Court of Judicature at Bombay, Nagpur Bench; the later
decision having followed the decision of the Madras High
Court.
3. The State does not dispute the fact that the
petitioner retired on 31.12.2022, and his annual increment
falls due on 01.01.2023. The State, however, points out that
going by the decision of the Hon'ble Supreme Court in
Kunhayammed and Ors. Vs. The State of Kerala; 2006
(6) SCC 359 produced as Annexure-B, the dismissal of an
SLP without any observation on merits of the matter cannot
Patna High Court CWJC No.3528 of 2023 dt.10-10-2023
be taken as a binding precedent under Article 141 of the
Constitution of India. It is pointed out that a Division Bench
of this Court in C.W.J.C. No. 15307 of 2006 titled as
Union of India v. Lalit Mohan Sahay has held that a
person retiring on 31.01.1989, would not be entitled to the
annual increment falling due on 01.02.1989, reported in
2009 (2) PLJR 598.
4. We would have normally referred the matter
for consideration by a larger bench especially since, we are
bound by a coordinate bench decision of this Court and the
decisions of other High Courts have only a persuasive
effect; however strong the persuasion and our inclination to
follow the dictum of the other High Courts. That would not
be necessary, if we notice the decision of the Hon'ble
Supreme Court in All India Judges Association vs. Union
of India & Ors; 2023(4) BLJ 6 (SC) in which similar
recommendations have been upheld by the Hon'ble
Supreme Court. We extract paragraph no. 53, 54 and 55 of
the aforesaid judgment.
53. Three sets of decisions had been rendered
by different High Courts regarding this. The
Patna High Court CWJC No.3528 of 2023 dt.10-10-2023
first view, which was taken by the High Courts
of Madhya Pradesh, Gujarat and Allahabad, is
that when the increment becomes due the next
day after retirement, the employee ought not to
be denied the benefit of the increment for the
purpose of pay. The second view, which was
taken by the High Courts of Madras, Orissa and
Delhi is that the increment would accrue to
officers only for the purpose of pension alone.
The third view, taken by the Andhra Pradesh,
Himachal Pradesh and Rajasthan High Courts is
that the increment cannot be granted to the
officers.
54. The law has now been settled by this Court
in a recent judgment Director, KPTCL vs. CP
Mundinamani. This Court approved the
judgment of the High Court of Allahabad's view
in Nand Vijay Singh vs. Union of India it was
held:-
"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 service of a year
so that the scheme is not construed in a manner
that it offends the spirit of reasonableness
Patna High Court CWJC No.3528 of 2023 dt.10-10-2023
enshrined in Article 14 of the Constitution of
India."
55. In such circumstances, the
recommendations of the Commission in so far
as it notionally grants the increment for the
purposes of pension is completely justified. As
a consequence of the acceptance of the
recommendation, the calculation of pension
must notionally include the increment for the
purposes of calculation of pension. This will
also obviate any confusion. It is therefore
directed that the High Courts amend the
applicable rule to state that the increment which
becomes due to the judicial officer on the day
after his retirement may be notionally included
in the calculation of his pension as his last pay,
subject to the vertical ceiling of Rs. 2,24,100/-
5. In the above circumstances, we feel no
requirement to refer the matter to a larger Bench and
following the judgment of the Hon'ble Supreme Court, we
allow the writ petition. The petitioner shall be granted the
increment notionally to reckon his last pay drawn and the
retirement benefits shall be re-fixed in accordance with that.
The entire exercise shall be carried out within a period of
Patna High Court CWJC No.3528 of 2023 dt.10-10-2023
three months and the revised pension with arrears paid to
the writ petitioner.
6. The writ petition stands allowed without any
order on costs.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
aditya/-
AFR/NAFR
CAV DATE
Uploading Date 17.10.2023.
Transmission Date
