Punjab-Haryana High Court
Rajesh Kumar And Others vs State Of Haryana And Others on 6 March, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:034182
RA-CW-74-2024 in -1- 2024:PHHC:034182
CWP-19142-2020
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
107 RA-CW-74-2024 in
CWP-19142-2020
Date of Decision :06.03.2024
Rajesh Kumar and others ...Petitioners/
non-applicants
Versus
State of Haryana and others
....Respondents/applicants
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Deepak Balyan, Advocate
for the review-applicant/respondents.
***
Harsimran Singh Sethi, J. (Oral)
1. Present review application has been filed on the ground that
when the main writ petition was decided by this Court on 12.10.2023,
learned counsel appearing on behalf of the review-applicant had wrongly
conceded the fact that the issue raised in the writ petition is covered by the
judgment of the Hon'ble Supreme Court of India in Civil Appeal No.2471-
2023 titled as The Director (Admn. And HR) KPTCL and others vs. C.P.
Mundinamani and others decided on 11.04.2023.
2. Learned counsel for the review-applicant submits that an appeal
was preferred by the respondent-department against the order dated
12.10.2023, which was dismissed by the Division Bench of this Court vide
order dated 08.02.2024 and the order dated 12.10.2023 has been upheld but
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as the permission has been given to file the present review application, the
same has been filed.
3. It may be noticed that the grievance which was raised in the
writ petition was that the employee concerned had completed 12 months of
service before attaining the age of superannuation but the increment for the
said service period was not granted, which was being claimed by the
employee concerned.
4. The claim of the petitioner was objected by the respondents in
the written statement on the ground that the increment was to be granted on
the next date of the retirement of the employee concerned hence, as on the
date of the grant of the increment, the employee concerned was not in
service, no benefit of the increment could be granted.
5. It may be noticed that the said question came up for
consideration before the Hon'ble Supreme Court of India in Civil Appeal
No.2471-2023 titled as The Director (Admn. And HR) KPTCL and others
vs. C.P. Mundinamani and others wherein, the Hon'ble Supreme Court of
India has held that an annual increment which the employee therein earned
on the last day of service, for rendering service for a period of one year upto
the date of retirement is admissible. The ground raised on behalf of the
department that increment only accrues from the date following the date on
which the same is earned and the employee had already retired on the said
date was rejected by the Hon'ble Supreme Court of India. Relevant
paragraph of the judgement in C.P. Mundinamani (supra) is as under:-
3.3 On merits, Shri Ahmadi, learned Senior Advocate
appearing on behalf of the appellants has vehemently
submitted that the words used in Regulation 40(1) of the
Regulations are very clear and unambiguous. It is submitted
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that it categorically provides that "an increment accrues from the
day following that on which it is earned." It is submitted that
therefore, when the right to get the increment is accrued the
employee must be in service. It is submitted that in the present
case when the right to get the increment accrues in favour of the
respective respondents they were not in service but on their
superannuation retired from the services. It is submitted that
therefore, they shall not be entitled to the annual increment which
might have been earned one day earlier i.e., on the last day of
their service.
3.4 It is further submitted by Shri Ahmadi, learned Senior
Advocate appearing on behalf of the appellants that the annual
increment is in the form of a good service and it is an incentive so
that the concerned employee may serve effectively and may
render good services. It is submitted that therefore, when the
concerned employees are not in service due to their retirement
there is no question of grant of any annual increment which as
such is in the form of incentive to encourage the employee for
better performance.
3.5 Shri Ahmadi, learned Senior Advocate appearing on behalf of
the appellants has also taken us to the definition of the word
"accrue" in the Law Lexicon (the encyclopaedic law dictionary)
and the definition of the word "increment." It is submitted that as
per the Law Lexicon, "increment" means a unit of increase in
quantity or value. It means a promotion from a lower grade to a
higher grade. As per the definition "increment" means an upward
change in something. It is submitted that as per the Law Lexicon
the word "accrue" means to come into existence as an enforceable
claim or right. It is submitted that therefore, on true interpretation
of Regulation 40(1) of the Regulations, an increment accrues
from the day following that on which it is earned. It is submitted
that therefore, the Division Bench of the High Court has
materially erred. It is submitted that therefore, the view taken by
the Division Bench of the High Court and other High Courts that
the concerned employees shall be entitled to the benefit of one
annual increment which they earned one day prior to their
retirement is erroneous and is on mis-interpretation of the relevant
statutory provisions. Making the above submissions, it is prayed
to allow the present appeal.
4. Learned counsel appearing on behalf of the respective
employees - respondents, has heavily relied upon the decision of
the Madras High Court in the case of P. Ayyamperumal (supra)
and the decisions of the Gujarat High Court, the Delhi High
Court, the Allahabad High Court, the Madhya Pradesh High
Court and the Orissa High Court taking the view that the
concerned employees who earned the annual increment for
rendering one year service prior to their retirement they cannot be
denied the benefit of the annual increment which they actually
earned, solely on the ground that they retired on attaining the age
of superannuation on the very next day. It is submitted that
therefore, the Division Bench of the High Court has not
committed any error in allowing one annual increment in favour
of the respective employees which they actually earned.
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4.1 Making the above submissions, it is prayed to dismiss the
present appeal.
5. We have heard learned counsel appearing on behalf of the
respective parties.
6. The short question which is posed for the consideration of this
Court is whether an employee who has earned the annual
increment is entitled to the same despite the fact that he has
retired on the very next day of earning the increment?
6.1 In the present case, the relevant provision is Regulation 40(1)
of the Regulations which reads as under: -
40(1) An increment accrues from the day following that on which
it is earned. An increment that has accrued shall ordinarily be
drawn as a matter of course unless it is withheld. An increment
may be withheld from an employee by the competent authority, if
his conduct has not been good, or his work has not been
satisfactory. In ordering the withholding of an increment, the
withholding authority shall state the period for which it is
withheld, and whether the postponement shall have the effect of
postponing future increments." 6.2 It is the case on behalf of the
appellants that the word used in Regulation 40(1) is that
anincrement accrues from the day following that on which it is
earned and in the present case the increment accrued on the day
when they retired and therefore, on that day they were not in
service and therefore, not entitled to the annual increment which
they might have earned one day earlier. It is also the case on
behalf of the appellants that as the increment is in the form of
incentive and therefore, when the employees are not in service
there is no question of granting them any annual increment which
as such is in the form of incentive.
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 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.
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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
unlesssuch increments are withheld as a measure of punishment or
linked with efficiency. Therefore, the increment is earned for
renderingservice 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. 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
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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 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 crystallizes
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
d any object is to be achieved by it. The central government servant
retiring on 30th June has already completed a year of service an
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
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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 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 interpretated 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 understood liberally
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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).
7. In view of the above and for the reasons stated above, the
Division Bench of the High Court has rightly directed the
appellants to grant one annual increment which the original writ
petitioners earned on the last day of their service for rendering
their services preceding one year from the date of retirement
with good behaviour and efficiently. We are in complete
agreement with the view taken by the Division Bench of the
High Court. Under the circumstances, the present appeal
deserves to be dismissed and is accordingly dismissed. However,
in the facts and circumstances of the case, there shall be no order
as to costs.
6. On being asked to point out as to how the judgment of the
Hon'ble Supreme Court of India in C.P. Mundinamani (supra) does not
cover the claim of the present petitioners, who had also rendered 12 months
service on the date when they had attained the age of superannuation and
retired, learned counsel for the review-applicant has not been able to point
out any distinguishable fact except that Rule-10 of the Haryana Civil
Service (Pay Rules), 2016 only envisaged the grant of increment from a
particular date and the petitioner had retired one day prior to the said date
fixed.
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7. It may be noticed that in the case before the Hon'ble Supreme
Court of India, the petitioner therein had also retired one day prior to the
grant of increment but still entitlement of the petitioner therein for
increment was upheld. No differentiating fact between the petitioners herein
and the petitioner in the case before the Hon'ble Supreme Court of India has
been brought to the notice of this Court.
8. It may be seem that a new trend has been brought into
operation by the State by initially agreeing to the relief and, thereafter, filing
a review petition. The present review petition has been filed even after the
dismissal of the LPA by the Division Bench of this Court. The order sought
to be reviewed in the present review petition was dictated in the Court itself
and once, the counsel appearing for the review-applicant conceded the fact
and even during the hearing of the present review petition, nothing has been
brought to the notice of this Court as to how the judgment of Hon'ble
Supreme Court of India in C.P. Mundinamani (supra) is not applicable
upon the petitioners herein, still the review has been preferred.
9. Probably, review petitions are being preferred under the
instructions of the department, even though, counsel addressing the review
petition or main petition might not be convinced with the view of the
department.
10. Keeping in view the facts and circumstance recorded
hereinbefore, present review petition is dismissed with cost of Rs.10,000/-
to be deposited with Prabh Aasra, (Unit of) u/o Universal Disabled Care
Taker Social Welfare Society (who are maintaining Orphans) in Bank
Account No.014894600000970, Yes Bank Branch, SCO 151/152, Sector 9-
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C, Chandigarh or A/C No.100035657241 of Indusind Bank Sector 54 Phase
II Mohali Branch by the officer, who had decided to file the present review
petition, even after the dismissal of the LPA, from his own pocket, which
amount will not reimbursed by the department concerned.
March 06, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:034182
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