Rajasthan High Court - Jodhpur

Ved Prakash Paliwal vs State Of Rajasthan on 10 January, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 13532/2019

Ghanshyam Saraswat S/o Tola Ram Saraswat, Aged About 60 Years, Jato Ka Mohalla, Sarvadaya Basti, Bikaner, Rajasthan.

----Petitioner Versus

1. The Raj. State Road Transport Cor., Through Its Managing Director, Jaipur.

2. The Executive Director (Administration), Rajasthan State Road Transport Corporation, Jaipur.

3. The Finance Advisor, Rajasthan State Road Transport Corporation, Jaipur.

4. The Chief Manager, Rajasthan State Road Transport Corporation, Bikaner Depot, Bikaner.

----Respondents Connected With S.B. Civil Writ Petition No. 1396/2015 Madhav Prasad Purohit

----Petitioner Versus State And Ors.

----Respondent S.B. Civil Writ Petition No. 4925/2019 Sohanlal Mali S/o Shri Nagar Mal, Aged About 66 Years, Near Goenka School, Ward No. 44, District Churu.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, School Education Department, Government Of Rajasthan, Secretariat, Jaipur.

2. Director, Secondary Education Department, Bikaner.

3. Deputy Director (Admn.), Secondary Education Department, Churu.

4. Chief Block Education Officer, Secondary Education, Churu.

----Respondents S.B. Civil Writ Petition No. 7552/2019 Lekh Raj Khatri S/o Shri Deomal Khatri, Aged About 63 Years, By Caste Khatri, Resident Of Khatriyon Ka Bas, Barmer.

----Petitioner Versus

1. State Of Rajasthan, Through Director, Pension And Pensioners Welfare Department, Government Of Rajasthan Secretariat, Jaipur.

2. District And Sessions Judge, District Barmer.

3. Civil Judge And Judicial Magistrate, Chohatan, District Barmer.

(2 of 16) [CW-13532/2019]

4. The Registrar General, Rajasthan High Court, Jodhpur.

5. The Treasury Officer, Barmer.

----Respondents S.B. Civil Writ Petition No. 13520/2019 Kaluram Aseri S/o Shri Bhanwar Lal Aseri, Aged About 62 Years, R/o 25-Bhardwaj Colony, Meera Chowk, Sriganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.

2. Secretary Department Of Finace Government Of Rajasthan, Jaipur.

3. Secretary, Department Of Public Works, Department, Government Of Rajasthan, Jaipur (Rajasthan).

4. Additional Chief Engineer, Public Works Department, Zone-1, Jaipur (Rajasthan)

----Respondents S.B. Civil Writ Petition No. 13575/2019 Hari Prakash Bhadoo S/o Shri Deva Ram, Aged About 64 Years, R/o Near Ramdev Mandir, Ward No. 14, Purani Abadi, Sri Ganganagar (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Personnel, Government Of Rajasthan, Jaipur.

2. Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.

3. Secretary, Department Of Public Works Department, Government Of Rajasthan, Jaipur (Rajasthan).

4. Chief Engineer, Public Works Department, Rajasthan, Jaipur (Rajasthan).

5. Superintending Engineer, Public Works Department, Circle Sri Ganganagar.

6. Executive Engineer, Public Works Division, Sri Ganganagar.

----Respondents S.B. Civil Writ Petition No. 13587/2019 Ram Kumar Bhunwal S/o Shri Rawata Ram Bhunwal, Aged About 62 Years, Resident Of Village And Post Mirjawala, District- Sri Ganganagar (Rajasthan)

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Personnel, Government Of Rajasthan, Jaipur.

2. Secretary, Department Of Finance, Government Of Rajasthan, Jaipur.

3. Secretary, Department Of Public Works Department, Government Of Rajasthan, Jaipur (Rajasthan)

(3 of 16) [CW-13532/2019]

4. Chief Engineer, Public Works Department, Rajasthan, Jaipur (Rajasthan)

5. Additional Chief Engineer, Public Works Department, Zone-I, Jaipur (Rajasthan)

----Respondents S.B. Civil Writ Petition No. 15489/2019 Rajendra Kumar Purbia S/o Shri Ambalal Purbia, Aged About 60 Years, Resident Of Sunder Villa, Near Vivekanand Circle, Bhilwara Road, Kankroli, District Rajsamand (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary To The Government, Department Of Higher Education, Government Of Rajasthan, Secretariat, Jaipur.

2. Secretary To The Government, Department Of Finance (Budget) (Rules Division), Government Of Rajasthan, Secretariat, Jaipur.

3. Commissioner, College Education And Secretary To The Government, Department Of Higher Education, Rajasthan, Jaipur.

4. Director, Directorate Of Pension And Pensioners Welfare Department, Rajasthan, Jaipur.

----Respondents S.B. Civil Writ Petition No. 16363/2019 Ved Prakash Paliwal S/o Shri Thakur Das Paliwal, Aged About 61 Years, R/o A-25, Sudarshan Nagar, Near Nagnechi Temple, Pawan Puri, District Bikaner.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Finance Department, Government Of Rajasthan, Secretariat, Jaipur.

2. Director, Secondary Education Department, Government Of Rajasthan, Bikaner.

3. District Education Officer, Secondary Education, Bikaner.

----Respondents S.B. Civil Writ Petition No. 17496/2019 Bhanwarlal Choudhary S/o Fusa Ram, Aged About 60 Years, Resident Of Village Baori, Post Baori, Tehsil Bhopalgarh, Dist. Jodhpur Rajasthan.

----Petitioner Versus

1. Secretary, Home Department, Government Of Rajasthan, Jaipur.

2. Superintendent Of Police, Jodhpur Rural Jodhpur.

3. Director General Of Police, Rajasthan Jaipur.

4. Directorate Pension And Pensioners Welfare, Govt. Of Rajasthan Through Joint Secretary, Jaipur.

----Respondents S.B. Civil Writ Petition No. 18390/2019

(4 of 16) [CW-13532/2019]

Bharmal Ram S/o Narsingh Ram, Aged About 60 Years, By Caste Bishnoi, R/o Kanasar, Tehsil Baap, District Jodhpur (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Education, Govt. Of Rajasthan, Jaipur

2. Joint Director, School Education, Jodhpur Division, Jodhpur

3. District Education Officer (Hq), Secondary Education, Jodhpur

4. Joint Director, Pension And Pensioners Welfare Department, Jodhpur

----Respondents S.B. Civil Writ Petition No. 3624/2020 Gautam Chand Jain S/o Late Shri Jalam Chand Jain, Aged About 65 Years, By Caste Jain, Resident Of Plot No. 193, Mahadev Nagar, Opposite Spicy Kitchen, Pal Road, Jodhpur (Raj.).

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary, Public Health And Engineering Department, Secretariat, Jaipur (Raj.).

2. Chief Engineer (Administration), Public Health And Engineering Department, Jaipur (Raj.).

3. Secretary, Finance Department, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

4. Additional Chief Engineer, Public Health And Engineering Department, Jodhpur (Raj.).

5. Superintending Engineer, Public Health And Engineering Department, City Circle, Jodhpur (Raj.).

6. Assistant Engineer, Public Health And Engineering Department, Revenue And Distribution, Sub Division-Ii, Lalsagar, Jodhpur (Raj.).

7. Director, Directorate Of Pension And Pensioners Welfare Department, Government Of Rajasthan, Jaipur (Raj.).

8. Additional Director, Pension And Pensioners Welfare Department, Police Line Rd, Subhash Chowk, Ratanada, Jodhpur (Raj.).

----Respondents S.B. Civil Writ Petition No. 363/2021 Smt. Sharda Devi Dadhich W/o Shri Ram Niwas Sharma, Aged About 60 Years, R/o D-27-A, Shiv Shakti Nagar, Road No. 02, Mahamandir, Jodhpur, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Secondary Education, Government Of Rajasthan, Jaipur.

2. The Director, Department Of Secondary Education, Bikaner, Rajasthan.

3. The District Education Officer, Secondary Education,

(5 of 16) [CW-13532/2019]

Jodhpur, Rajasthan.

4. The Joint Director, Pension And Pensioners Welfare Department, Jodhpur Rural, High Court Campus, Jodhpur, Rajasthan.

5. The Additional Secretary, Department Of Finance, Government Of Rajasthan, Jaipur, Rajasthan.

6. The Secretary, Department Of Finance, Government Of Rajasthan, Jaipur, Rajasthan.

                                               ----Respondents


For Petitioner(s)        :     Mr. Sushil Solanki
                               Mr. Mukesh Rajpurohit
                               Mr. SS Ladrecha
                               Mr. Anirudh S. Arha
                               Mr. Ratish Bhatnagar
                               Mr. Mukesh Vyas
                               Mr. Sachin Saraswat
                               Mr. Devilal R. Vyas
                               Mr. Himmat Jagga
                               Ms. Nidhi Sharma, on VC

For Respondent(s)        :     Mr. Sandeep Shah, AAG
                               Ms. Vandana Bhansali
                               Mr. Dinesh Kumar Joshi
                               Mr. Vishal Jangid for
                               Mr. Hemant Choudhary, GC
                               Ms. Anjana Jawa
                               Mr. Himanshu Shrimali
                               Ms. Abhilasha Kumbhat
                               Mr. MC Bishnoi
                               Mr. LK Purohit
                               Mr. Ravi Panwar
                               Mr. KK Bissa, on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

10/01/2022

1. In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, the lawyers have been advised

to refrain from coming to the Courts.

2. Counsel for the petitioners have drawn attention of this Court

to the order passed by this Court in Ramji Lal Kulhari Vs. State of

Rajasthan & Ors. (S.B. Civil Writ Petition No.85/2020), decided on

(6 of 16) [CW-13532/2019]

10.01.2022 and counsel for the petitioners seek direction/relief as

granted in the case of Ramji Lal Kulhari (supra).

3. In view of the submissions made, the writ petitions filed by

the petitioner is dismissed. The order of Ramji Lal Kulhari (supra),

reads as follows :-

"In wake of instant surge in COVID-19 cases and spread of its highly

infectious Omicron variant, the lawyers have been advised to refrain from coming

to the Courts.

Since the controversy involved in all these writ petitions is common, thus,

are decided by a common order; Ramji Lal Kulhari being the lead case.

The petitioners have preferred these writ petitions, in sum and substance, for

the following reliefs :-

SBCWP No.85/2020:

"To issue an appropriate writ and direct the respondents to grant one notional increment to the petitioner with effect from 1.7.2019, on rendering 12 months service and re-fix his pension taking into account the same and revise all his pensionary benefits and make payments of the consequential arrears thereof, along with interest as per mandatory provisions for grant of interest on delayed payment of retiral benefits, under Rule 89 of RSR. Any adverse order, if passed, on the pending notice for demand of justice may also be quashed."

The factual matrix of case in brief is that the petitioner was initially

appointed on the post of Vehicle Driver on 5.8.1996 and posted in Prathmic Health

Centre at Bhansali (Rajgarh). His date of birth being 10.06.1959. The petitioner

retired from service on 30.6.2019 vide order dated 28.6.2019.

The bone of contention is Rule 14 of the Rajasthan Civil Services (Revised

Pay) Rules, 2008 (hereinafter referred to as the "Rules of 2008") and Rule 13 of the

Rajasthan Civil Services (Revised Pay) Rules, 2017 (hereinafter referred to as the

"Rules of 2017"). The petitioner is seeking implementation of retiral benefits as on

01.07.2019.

(7 of 16) [CW-13532/2019]

Counsel for the petitioner has drawn attention of this Court to order dated on

30.07.2021 passed by Hon`ble Orissa High Court in Arun Kumar Biswal Vs. State

of Odisha and Ors., reported in MANU/OR/0388/2021; relevant paras whereof

are reads as follows :-

"13. In the above order of the Madras High Court, it was held that as the petitioner therein 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, though the date of increment fell due on the next date of his retirement, the petitioner would be given one notional increment for the period from 01.07.2012 to 30.06.2013, as he had completed full one year of service, for the purpose of pensionary benefits and not for any other purpose. The said order of the Madras High Court was challenged in SLP(C) Diary No(s). 22283 of 2018 and the apex Court dismissed the said SLP preferred by the Union of India and upheld the order of the Madras High Court in P. Ayyamperumal (supra). Although a review petition was filed by the Union of India bearing R.P.(C) No. 1731 of 2019, the same was dismissed vide order dated 08.08.2019. Thereby, the order of the Madras High Court has reached its finality by dismissal of the SLP as well as the review petition preferred by the Union of India.

14. Similarly, in the case of Yogendra Singh Bhadauria, mentioned supra, Madhya Pradesh High Court, by applying the ratio decided in P. Ayyamperumal (supra), directed as follows:-

"(i) The official respondents are directed to release the increment due to the appellants w.e.f. 01.07.2014, 01.07.2010, 01.07.2013, 01.07.2012, 01.07.2015 and 01.07.2015 respectively.

(ii) The pension be refixed after adding the grant of aforesaid increment and the arrears of pension be paid to the petitioners.

(iii) The petitioners are entitled to interest over the aforesaid arrears of pension @ 10% p.a. from the date the arrears became due till their payment.

(8 of 16) [CW-13532/2019]

(iv) Despite the rule position having been explained by the Division Bench of Madras High Court on 15.09.2017 against which Supreme Court declined to entertain the SLP of the employer on 23.07.2018, the official respondents ought to have offered the benefit of one increment to the petitioners without compelling the petitioners to approach the court in the evening of 10 WA 645-2020 their life. Not having done so, the official respondents have failed to adhere to the policy of the Government of being a welfare State and therefore, respondents are liable to pay cost of this litigation to the petitioners which are quantified at Rs. 5000/- to each of the petitioners.

(v) The aforesaid direction be complied with within a period of 60 days from the date of receipt copy of this order."

15. In Gopal Singh (supra), the Delhi High Court in paragraph-10 of the order dated 23.01.2020 directed as follows:

"10. Accordingly, the impugned order dated 3rd May, 2019 is set aside. A direction is issued to the Respondents to grant notional increment to the petitioner with effect from 1st July, 2019. The petitioner's pension will consequentially be refixed. The appropriate orders will be issued and arrears of pension will be paid to the petitioner within a period of 6 weeks, failing which the respondents would be liable to simple interest at 6% per annum on the arrears of period of delay."

16. The cumulative effect of the ratio decided in all the aforementioned judgments is that if a person continues in service and completes one year, he shall be entitled to get the notional increment to be fixed, as on the next date he is no more in employment, for the purpose of grant of pensionary benefits.

17. The stand taken in the present case by the opposite parties is akin to the objection raised in P. Ayyamperumal (supra) by Union of India contending that the petitioner being no more in employment on the date the increment fallen due, even though he had completed 12 months of service and on attaining the age of superannuation he was retired. Having considered such contention, the Madras High Court passed an order to fix the notional

(9 of 16) [CW-13532/2019]

increment for pensionary benefits and extend the same to the petitioner therein. In such view of the matter, this Court is of the view that the representations filed by the petitioner have been rejected on 14.07.2020 in Annexure-3 without complying with the provisions of law, as have been settled by the different High Courts as well as the apex Court and, thereby, the same cannot sustain in the eye of law.

18. In view of the facts and law, as discussed above, this Court is of the considered view that the petitioner, having rendered service from 01.01.2019 to 31.12.2019 for a period of 12 months and his increment having due on 01.01.2020 and he having stood at par with P. Ayyamperumal (supra), is entitled to get the notional increment for the year i.e. from 01.01.2019 to 31.12.2019 for the purpose of pensionary benefits only. Accordingly, it is directed that the benefits admissible to the petitioner be re-fixed taking into account the notional increment admissible to the petitioner by 01.01.2020 and the same should be paid as early as possible by revising the pension as due, preferably within a period of 3 (three) months from the date of communication of this judgment. Consequentially, the order dated 14.07.2020 in Annexure-3, whereby the representations of the petitioner have been rejected, is liable to be quashed and is hereby quashed.

19. In the result, the writ petition is allowed. There shall be no order as to costs.

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No. 4587, dated 25th March, 2020 as modified by Court's Notice No. 4798 dated 15th April, 2021."

Counsel for the respondents, however, submits that the controversy of benefit

being applicable to the persons who have retired on 30 th June of a particular year

and not with effect from 1st July has already been decided by Hon`ble Division

Bench of this Court in the matter of Safi Mohammad Vs. State of Rajasthan &

(10 of 16) [CW-13532/2019]

Anr. (D.B. Civil Writ Petition No.6024/2021), decided on 01.12.2021. The order

dated 01.12.2021 reads as follows :-

"This petition is filed by several retired employees of the State of Rajasthan. They all have retired in different years, however, the common factor being that their date of retirement was 30th June of the respective year. They have challenged Rule 14 of the Rajasthan Civil Services (Revised Pay) Rules, 2008 (hereinafter to be referred as the "Rules of 2008") and Rule 13 of the Rajasthan Civil Services (Revised Pay) Rules, 2017 (hereinafter to be referred to as the "Rules of 2017"). They have also prayed for direction to grant notional annual increment for having worked for one full year before the date of retirement and to draw the pension accordingly.

Briefly stated the case of the petitioners is that prior to the promulgation of the Rules of 2008 in the State service, annual increment of an employee was released on the date of completion of a year in service. With introduction of the Rules of 2008, the different dates of the increments falling due for different employees was consolidated on 1st July of the year concerned, as provided in Rule 14 which reads as under:-

"14. Date of next increment in the running pay band- There will be uniform date of annual increment, viz. 1st July of every year. Employees completing 6 months and above in the running pay band as on 1st of July will be eligible ot be granted the increment. The first increment after fixation of pay on 01.09.2006 or thereafter as per option in the running pay band will be granted to the employees, who have completed 6 months and above as on 01.07.2007.

Provided that in the case of persons who had been drawing maximum of the existing pay scale for more than a year as on the 1st day of September, 2006, the next increment in the running pay band shall be allowed on the 1st day of September, 2006. Thereafter, the provision of Rule 14 would apply.

Note- In cases where two existing scales, one being a promotional scale for the other, are merged, and the junior Government servant, now drawing his pay at

(11 of 16) [CW-13532/2019]

equal or lower stage in the lower scale of pay, happens to draw more pay in the running pay band than the pay of the Senior Government servant in the existing higher scale, the pay in the running pay band of the senior Government servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with Rule 14."

This pattern continued even under the Rules of 2017 as provided in Rule 13 which reads as under:- "13. Date of next increment in revised pay structure-

(1) There will be a uniform date of annual increment viz. 1st July of every year after fixation of pay under these rules. Employees completing 6 months and above in any Level as on 1st of July will be eligible to be granted the increment.

(2) Every new recruit on completion of probation period successfully shall be allowed first annual increment on 1st July, which immediately follows the date of completion of probation period."

Since all the petitioners retired on 30th June of the respective years, they were not granted the increment falling due on the following 1st July. Their grievance is that they having rendered Government service for one full year, the benefit of the last increment has not been given to them. They argue that the rule should be interpreted in such a way that they get this last increment. In the alternative, their contention is that the rule should be held ultra-vires and should be struck down. Learned counsel for the petitioners have referred to certain decisions of Madras High Court and Delhi High Court taking such a view. We would make a reference to these judgments at a later stage.

On the other hand, learned Additional Advocate General appearing for the Government opposed the petition contending that the rule making authority has specified 1st July of the year for release of annual increment for all Government employees. The rule is reasonable and non-discriminatory. As the rule stands, the only interpretation possible is that a person who retires w.e.f. 30th June of a year, is not entitled to claim the increment falling due on 1 st July of that year.

(12 of 16) [CW-13532/2019]

Learned counsel relied on a decision of Division Bench of Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Himanchal Pradesh and others reported in 2020 SCC OnLine HP 2362, in which this interpretation has been accepted.

We have reproduced Rules 14 and 13 of the respective rules which pertain to the date of next increment in a pay band. As noted, prior to the promulgation of the Rules of 2008, the increments were released in favour of a Government employee on different dates depending on the date of joining the service. However, the Central Government as well as the State Government rationalized this date of release of annual increment for all Government employees on 1st July of a particular year. In Rule 14 of Rules of 2008, therefore, it is provided that there will be uniform date of annual increment, namely, 1st July of every year. Such annual increment would be released to every employee completing 6 months and above in the running pay band as on 1st July. To obviate the difficulties of the existing employees, this rule provides that the first increment after fixation of pay on 01.09.2006 (i.e. the date from which the Rules of 2008 were made effective) or thereafter as per the option in the running pay band will be granted to the employees who had completed 6 months and above as on 01.07.2007. Similar provisions have been made in Rule 13 of the Rules of 2017.

We do not find any force in the submission of the learned counsel for the petitioners that every employee who retires on 30th June of a particular year, must receive the increment which as per these rules falls due on 1st July. The grant of annual increment is part of pay structure which the Government prescribes for its employees and is governed by statutory rules. Annual increment is granted by way of incentive in order to reward long service rendered by the Government employee. It is different from the dearness allowance which the Government declares from time to time and is meant to offset for the diminished value of purchasing price of the rupee with increase in inflation. Such increment can be claimed only in terms of the statutory rules.

We are conscious that the Madras High Court and Delhi High Court have taken a different view. Heavy reliance was placed by the learned counsel for the petitioner on a Division Bench judgment of Madras High Court in the case of P. Ayyamperumal Vs. The Registar and others (W.P. No. 15732 of 2017 decided on

(13 of 16) [CW-13532/2019]

15.09.2017). This judgment proceeds on the earlier judgment of the Court in the case of State of Tamil Nadu Vs. M. Balasubramaniam (CDJ 2012 MHC 6525) which was rendered by the Single Judge and approved by the Division Bench. Likewise, the Division Bench of Delhi High Court in the case of Gopal Singh Vs. Union of India and others (W.P.(C) 10509/2019 decided on 23.01.2020), has also relied upon and accepted the decision in case of M. Balasubramaniam(supra) of Madras High Court. Yet another decision in the case of Arun Chhibber Vs. Union of Indian and others (W.P.(C) 5539/2019 decided on 13.01.2020), the Division Bench of Delhi High Court reiterated this proposition on the basis of decision in the case of M. Balasubramaniam (supra).

We have perused the decision of the Madras High Court in the case of M. Balasubramaniam (supra) which is the base judgment, which the subsequent Division Benches of Madras High Court and Delhi High Court have followed. This was a case in which the petitioner, who was in State service, had retired w.e.f. 31st March, 2003. He had claimed the benefit of pension on the basis of increment which fell due on 01.04.2003, on the basis of the judgment of Supreme Court in the case of S. Banerjee Vs. Union of India and others (AIR 1990 SC 285). Upon his superannuation, he was re-employed and continued in service up to 31st March, 2003. It was on that basis that the petitioner had claimed the benefit of an additional annual increment falling due on 01.04.2003. This was opposed by the Government on the ground that on 01.04.2003, he was not in Government service. In such background, the High Court had allowed the petition and directed that the representation of the petitioner for grant of annual increment for the period from 01.04.2002 to 31.03.2003 shall be considered in light of the judgment of the Supreme Court in the case of S. Banerjee (supra).

If we peruse the judgment of the Supreme Court in the case of S. Banerjee (supra), the facts were that the petitioner was allowed to retire voluntarily from service with effect from the forenoon of 1st January, 1986. He was not given the benefit of revision of salary which was brought into effect from 01.01.1986. The Government had argued before the Supreme Court that in view of the proviso of Rule 5(2) of the Central Civil Service (Pension) Rules, 1972, the petitioner will not be entitled to any salary for the

(14 of 16) [CW-13532/2019]

day on which he actually retired and therefore, his claim for granting the benefit of revision of pay scales would not be justified. The Supreme Court repelled this contention on the ground that the employee retired with effect from the forenoon of 01.01.1986 and not with effect from 31st December, 1985 and therefore the revision of pay scales would be applicable to him.

In our view, there is a fine distinction in the judgment of the Supreme Court in the case of S. Banerjee (supra) and the facts of the present case. In the present case, all the petitioners admittedly retired on 30th June and not with effect from 1st July. The decision of the Supreme Court therefore will not aid the petitioners in the present case. We are in respectful disagreement with the view of Madras High Court in the case of N. Balasubramaniam (supra) in which in our opinion, the decision of the Supreme Court in case of S. Banarjee (supra) has been applied though the facts were different. Since all subsequent judgments noted above merely refer to and rely upon the judgment in the case of M. Balasubramaniam (supra), we cannot concur with such views.

We notice that a Division Bench of Himachal Pradesh High Court in the case of Hari Prakash (supra) has taken a similar view. The earlier decisions of Madras High Court and Delhi High Court have been noticed.

We are conscious that the SLP against the decision of the Madras High Court in the case of P. Ayyamperumal (supra) came to be dismissed by the Supreme Court observing that "on the facts" the Court is not inclined to interfere with the judgment. However, this expression cannot be seen as approval of the judgment on merits. We are therefore entitled to take an independent view, which we have taken.

In case of Prabhu Dayal Sesma vs. State of Rajasthan, it wqs held that while calculating the age of a person, the day of his birth must be counted as a whole and he attains the specified age on the day preceding the anniversary of his birthday. A Division Bench of the Delhi High Court in case of Union of India vs. A. Chaudhari reported in 2009 SCC Online Del. 4338 considered a case where an employee retired on superannuation on 31.3.1995. Fifth Pay Commission recommendations were made effective from 1.4.1995 in which death-cum-retiral gratuity benefits were increased. The employee claimed such higher benefits. The court

(15 of 16) [CW-13532/2019]

relying on a Division Bench judgement of Karnataka High Court held that the employee cannot contend that he had retired with effect from 01.04.1995 and therefore higher benefits cannot be granted. Similar view was taken by the Division Bench of the Gujarat High Court in case of C.R.Samajpati vs. Uniono fIndia reported in 2009 SCC OnLine Guj. 10857.

Before closing, we find nothing arbitrary or discriminatory about the rules in question. The annual increment is released with effect from a particular date. As a consequence, it is natural that someone would fall on the wrong side of such a date. That by itself would not render the rule arbitrary. The direction for releasing an additional increment in favour of retirees is also not free from practical complications. None of the judgments cited by the learned counsel for the petitioners refer to the date as on which such increment would be released. For proper pay fixation and calculation of the re-fixed pay after releasing the annual increment, it is absolutely essential that the date as on which such increment is released, be specified. If it is to be released as on 30th June of the year of retirement, we do not see how this can result into any benefit to the petitioners since their pension would be drawn on the basis of last 10 months of salary and releasing the notional increment on the last date of service would not augment the salary in any manner. On the other hand, if the expectation of the petitioners is that such annual increment may be released as on 1st July of the last year of their working, this would lead to two increments being released on the same date which is wholly impermissible.

In the result, the petition is dismissed."

This Court after hearing counsel for the parties at length and

examining facts of the case finds that the Hon`ble Division Bench

of this Court in a clear order has rested the controversy to an end

by holding that there is nothing arbitrary or discriminatory about

the Rules in question. The annual increment/retiral benefits are

released with effect from a particular date. As a consequence, it is

(16 of 16) [CW-13532/2019]

natural that someone would fall on the wrong side of such a date.

Such event by itself would not render the rule arbitrary.

The finding given by Division Bench comprehensively covers

the lis in all these writ petitions. This Court is bound by the