Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 1624 (AP)

Union of India, Ministry of Personnel, Pensions and Public Grievances, New Delhi v. R. Malakondaiah

2001-12-13

L.NARASIMHA REDDY, S.R.NAYAK

body2001
L. NARASIMHA REDDY, J. ( 1 ) A short but important question that arises for consideration in these two writ petitions is, whether an employee who retires on the date when the increment becomes due is entitled for payment of the same. ( 2 ) THE 1st respondent in W. P. Nos. 1219 and 1409 of 1998 were working as Audit officer and Supervisor respectively in the office of the 3rd petitioner. Their dates of births were 1-7-1938 and 23-6-1937 and as such they stood retired with effect from 1-7-1996 and 1-7-1995 respectively. They were denied the annual increment of the year preceding their date of retirement on the ground that they stood retired from service by the time it became due. Therefore, they filed O. A. Nos. 518/97 and 862/97 respectively before the Central administrative Tribunal, Hyderabad Bench (for short the Tribunal ). Following its order in O. A. No. 401/92 dated 2-12-1992, the tribunal allowed the two O. As. , viz. , O. A. No. 518/97 and 862/97 through its orders dated 1-5-1997 and 16-7-1997, which are almost verbatim. The Government challenges the said orders in these two writ petitions. ( 3 ) SRI R. S. Murthy, the learned Additional central Government Standing Counsel, submits that the view taken by the Tribunal, that the respondents who retired on 1st July, on which date the increment fell due, were entitled for the same, cannot be sustained in law. He places reliance upon Rule 33 of the central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the Rules ) and also Article 151 of the Civil Service regulations (hereinafter referred to as the regulations ). According to him, once an employee stood retired on the date on which the increment fell due, he is not entitled for the same; the reason being that, the question of payment of increment to an employee arises if only he continues to be in service. On the other hand, Sri P. V. P. Mrutyunjaya rao, the learned counsel for the 1st respondent in both the writ petitions, submits that the employees become entitled for the increment for the services rendered by them during the preceding year after completion of the year s satisfactory service, and what remains to be done is only payment of the same. Once the entitlement accrues, the result of it cannot be denied. Once the entitlement accrues, the result of it cannot be denied. He places reliance upon the judgment of the hon ble Supreme Court in S. Banerjee v. Union of India. ( 4 ) TO appreciate the contentions of the learned counsel for the petitioners and the respondents; it is necessary to extract the provisions, on which the learned counsel for the petitioners places reliance. Rule 33 of the rules reads as under:"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. "similarly, Article 151 of the Regulations reads as under:-"an increment accrues from the day following that on which it is earned. " ( 5 ) THE fact that the emoluments of a government servant have to be taken as the basic pay, which he was receiving immediately before his retirement, is not at all in controversy. Similarly, the proposition that an increment accrues from the date following that on which it is earned is also not in dispute. Increment in pay is a condition of service. In a way, it is a reward for the unblemished service rendered by an employee, which gets transformed into a right. Once an employee renders the service for the period, which takes with it an increment, the same cannot be denied to him/her. It is not in dispute that both the respondents rendered unblemished service for one year before the respective dates of their retirements. The periodicity of increment in the service is one year. On account of rendering the unblemished service, they became entitled for increment in their emoluments. ( 6 ) THE only ground on which the respondents are denied the increment is they were not in service to receive or to be paid the same. Strictly speaking, such a hyper-technical plea cannot be accepted. As observed earlier, with the completion of one year s service, an employee becomes entitled for increment, which is otherwise not withheld. After completion of the one-year service, the right accrues and what remains thereafter is only its enforcement in the form of payment. Strictly speaking, such a hyper-technical plea cannot be accepted. As observed earlier, with the completion of one year s service, an employee becomes entitled for increment, which is otherwise not withheld. After completion of the one-year service, the right accrues and what remains thereafter is only its enforcement in the form of payment. Therefore, the benefit of the year-long service cannot be denied on the plea that the employee ceased to be in service on the day on which he was to have been paid the increment. There is no rule, which stipulates that an employee must continue in service for being extended the benefit for the service already rendered by him. ( 7 ) HOWEVER, the entitlement of the respondents cannot be rested on such a ground alone. As observed earlier, the objection raised by the petitioners was that the respondents were not in service as on 1st july of the concerned year on which date they were entitled to be paid the increments. Opposing this contention, the learned counsel for the respondents submits that both the respondents were retired in the afternoon of 30th June and they shall be deemed to have been retired with effect from the afternoon (sic. forenoon) of 1st July. In that view of the matter, they cannot be denied the benefits of increment. ( 8 ) ALMOST identical situation arose in s. Banerjee s case (supra ). It was a writ petition filed under Article 32 of the constitution of India. The petitioner therein sought voluntary retirement and was so retired on 31st December 1985. He claimed the benefit of the IV Pay Commission, which came into force with effect from 1-1-1986. The question was whether the petitioner therein could be said to have been in service on 1-1-1986 or ceased to be in service for all practical purposes on 31-12-1985 itself. Referring to that contention, the Hon ble supreme Court held as under:-THE question that arises for our consideration is whether the petitioner has retired on 1-1-1986. We have already extracted the order of this court dated 6-12-1985 whereby the petitioner was permitted to retire voluntarily from the service of the registry of the Supreme Court with effect from the forenoon of 1-1-1986. We have already extracted the order of this court dated 6-12-1985 whereby the petitioner was permitted to retire voluntarily from the service of the registry of the Supreme Court with effect from the forenoon of 1-1-1986. It is true that in view of the proviso to rule 5 (2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on 31-12-1985? The answer must be in the negative. Indeed, Mr. Anil Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on 31-12-1985. It is also not the case of the respondents that the petitioner had retired from the service of this court on 31-12-1985. Then it must be held that the petitioner had retired with effect from 1-1-1986 and that is also the order of this court dated 6-12-1985. It may be that the petitioner had retired with effect from the forenoon of 1-1-1986 as per the said order of this court, that is to say, as soon as 1-1-1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on 1-1-1986 and not on 31-12-1985. In the circumstances, the petitioner comes within the purview of paragraph 17. 3 of the recommendations of the Pay commission. "this decision of the Hon ble Supreme Court clinches the issue in favour of the respondents. Following the said decision, we hold that the respondents had retired with effect from 1-7-1996 and 1-7-1995 respectively and accordingly they are entitled for the benefit of increments for the services rendered by them during the year preceding their retirement. We see no ground to interfere with the judgments of the Tribunal and accordingly the writ petitions are dismissed. But, in the circumstances of the case, there shall be no order as to costs.