HP HC | Whether an employee who retired on 31st of a month is entitled to increment which would have fallen due on 1st of the next month; HC elucidates

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Jyotsna Rewal Dua, JJ., dismissing the present claim against the increment accrued post-retirement, reiterated the effect of relevant Pension Rules and settled precedents.

Brief Facts

Petitioner was appointed as Technical Assistant in the Department of Industries (Geological wing) on 01-03-1968 in the pay scale of Rs 250-550. He retired as Senior Hydrogeologist on 31-03-2003 in the pay scale of Rs. 10025- 15100. His grievance is that even after rendering twelve months of continuous service from 01-04-2002 to 31-03-2003, he has been retired without giving him the benefit of one increment which was due to him on 01-04-2003. A petition in this regard was moved before the Himachal Pradesh State Administrative Tribunal which was later dismissed by an order dated, 08-08-2016. Aggrieved by the same, the petitioner herein prays for the following reliefs, namely;

  1. To quash the order dated 08-08-2016, by the State Administrative Tribunal as it failed to give due consideration to the grounds raised by the petitioner.
  2. To strike down the offending part of impugned provision of R 56(a) of Fundamental Rules being unconstitutional to the extent it causes undue hardship and is discriminatory to the petitioner as it deprives him from getting the benefit of due and legitimate one increment even after rendering 12 months continuous and uninterrupted service for the reason that his date of birth falls on 1st April which also happens to be his date of next increment.
  3. Alternatively, the respondents may kindly be directed to grant necessary relaxations in favour of the petitioner by invoking the provision of FR 5-A as undue recurring financial hardship has been caused to the petitioner in his pension and pensionary benefits and thereby enabling the petitioner to get the benefits of one increment since the petitioner has already rendered 12 months continuous and uninterrupted service in the time scale of his post but on superannuation, has been illegally deprived of the benefits of one increment due to the wrong interpretation of FR 56(a) by the Respondents, with a further prayer to grant consequential necessary benefits flowing therefrom alongwith admissible interest on the arrears accruing thereto.

Contentions

Counsel for the petitioner, B. Nandan Vashishta and Rajesh Kumar, placed reliance on a ruling by the High Court of Madras, P. Ayyamperumal v. Registrar, CAT, WP No. 15732 of 2017, wherein it was observed, that on completing one year of service from 01-07-2012 to 30-06-2013, the petitioner therein became entitled to the benefit of increment which accrued to him ‘during that period’ though the increment fell due on 01-07-2013 when he was not in service. The counsel also brought into light that the Supreme Court dismissed an SLP and later a review petition against the same, insisting upon the rightful claim of the petitioner. He further pressed upon the observation of Delhi High Court in Gopal Singh v. Union of India, 1969 SCC OnLine Del 53 whereby relying upon the aforementioned judgment, the writ petition was allowed and respondents were directed to grant notional increment to the petitioner with effect from 01-07-2019 for the service rendered by him from 01-07-2018 to 30-06-2019.

Additional Advocate General, Vinod Thakur and Shiv Pal Manhans, placed reliance upon a decision rendered on 29-07-2020 by the Madhya Pradesh High Court in Madhav Singh Tomar v. M.P. Power Management Co. Ltd., WP No. 9940 of 2020, wherein relying upon an earlier order passed by a Division Bench of the High Court 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 upon a Full Bench decision of Andhra Pradesh High Court delivered on 27-01-2005 in Principal Accountant General v. C. Subba Rao, where the impugned order of the Tribunal holding the employee entitled to an annual increment that fell due on 01-01-2002 after his retirement on 31-12-2001, was quashed and set aside.

Observations

The Court made significant observations including relevant rules and cases;

FR 56 (a); a Government servant retires on the last day of the month in which he attains the 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 the date of birth as 01-04-1945 had retired from sevice on 31-03-2003 on attaining 58 years of age.

FR 17(1); provides that an officer shall begin to draw pay and allowances attached to the post with effect from the date when he assumes duties of that post and shall cease 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.

Rule 83(1) of CCS Pension Rules; pension becomes payable from the date a Government servant ceases to be borne on the establishment.

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.

Denying any claims of availing the increment by the petitioner, subsequently accrued, the Court observed, “The petitioner was not on duty on 01-04-2003. 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 01-04-2003 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 31-03-2003, that is, his date of retirement. His pension has to be determined accordingly. Petitioner had become pensioner on 01-04-2003. 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.”

With respect to the contention of the petitioner that the judgment by the Madras High Court was upheld by the Supreme Court, by rejecting SLP as well as Review petition against the same, the Court observed, “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 v. State of Kerala, relied upon in (2019) 4 SCC 376, titled Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal.”

The Court further cited State of Orissa v. Dhirendra Sunder Das, (2019) 6 SCC 270, where the 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.

Decision

Dismissing the present petition on lack of merits, the Court concurred with the findings of the tribunal and further took up the task of clarifying the effect of the dismissal of SLP, in the absence of any speaking order.[Hari Prakash v. State of Himachal Pradesh, 2020 SCC OnLine HP 2362, decided on 06-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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