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2023 DIGILAW 1044 (GUJ)

Bhagwanbhai Prabhubhai Patel v. State Of Gujarat

2023-09-02

NIKHIL S.KARIEL

body2023
ORDER : 1. Heard learned advocate Mr. Vaibhav A. Vyas on behalf of the petitioners and learned Assistant Government Pleader Mr.Aditya Patel on behalf of the respondent – State. 2. Rule returnable forthwith. Learned Assistant Government Pleader waives service of rule on behalf of the respondent – State. 3. These Group of petitions seek similar directions from this Court and therefore, all these matters are taken up together. 4. Considering the submissions made by learned advocate for the petitioners, it would appear that all of the petitioners have retired on 30th June of various years and whereas they have been denied benefit of increment which fell due on the 1st July. It would appear that the State respondents have relied upon Rule 39 of the Gujarat Civil Services (Pay) Rules, 2002 to deny the benefit of one increment and consequential benefits to the petitioners whereas, it would be a submission on behalf of the petitioners that the issue is no more res integra more particularly since various learned Coordinate Benches of this Court including Hon’ble Division Benches of this Court having taken a view in favour of the persons similarly situated to the present petitioners. 5. Learned advocate for the petitioners would also draw the attention of this Court to a decision of the Hon’ble Apex Court rendered in Civil Appeal No. 2471 of 2023 [SLP(C) No.9185/2020] in case of The Director (Admin. and HR) KPTCL and Ors. vs. C.P.Mundinamani and Ors. dated 11.04.2023 and would submit that a decision of the Hon’ble Division Bench of this Court as well as decisions of the other High Courts have been affirmed by the Hon’ble Apex Court in the said decision. 5.1. Learned advocate on behalf of the petitioners would submit that since the issue having been concluded by the Hon’ble Supreme Court, the same being binding on the State of Gujarat also, the request of the petitioners to pay benefit of one increment along with all consequential benefits may be directed. 6. 5.1. Learned advocate on behalf of the petitioners would submit that since the issue having been concluded by the Hon’ble Supreme Court, the same being binding on the State of Gujarat also, the request of the petitioners to pay benefit of one increment along with all consequential benefits may be directed. 6. Considering the submissions made on behalf of learned advocate for the petitioners, while it would appear that there are decisions of learned Coordinate Benches taking a view in favour of the persons similarly situated to the petitioners and whereas, it would also appear that such view has been affirmed by the Hon’ble Division Benches and whereas, it would appear that the decision of Hon’ble Division Bench of this Court in case of State of Gujarat vs. Takhatsinh Udesinh Songara [Letters Patent Appeal No. 868 of 2021; Dt.27.04.2022] has been affirmed by the Hon’ble Apex Court in case of Director (Admin. and HR) KPTCL and Others (supra). 6.1. At this stage, this Court also feels it appropriate to state that Rule 39 of the Gujarat Civil Services (Pay) Rules, 2002 more particularly Rule 39 being relied upon by the State respondents, is almost pari materia to Regulation 40(1) of the Regulations which were in question before the Hon’ble Apex Court, based upon which, the official respondent i.e. the appellant before the Hon’ble Apex Court had denied the benefit of one increment to the employee, wherein it would appear that the proviso to Rule 39 which is being relied upon by the official respondents reads as follows:-“Provided that the increment shall be admissible from the 1st of the month, in which, it accrues.” It would appear that Regulation 40(1) also speaks almost in the same language which reads as follows:-“An increment accrues from the day following that on which it is earned.” In this regard, this Court seeks to rely and refer to the observations of the Hon’ble Apex Court in case of The Director (Admin. and HR) KPTCL and Ors. (supra) at paragraph nos. 6.4, 6.5, 6.6 and 6.7. and HR) KPTCL and Ors. (supra) at paragraph nos. 6.4, 6.5, 6.6 and 6.7. The same being relevant, are reproduced herein below for benefit:- “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 unless such increments are withheld as a measure of punishment or linked with efficiency. Therefore, the increment is earned for rendering service 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. 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 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. 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 crystallises 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 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. 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 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 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. 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).” 6.2. Considering the law laid down by the Hon’ble Apex Court, more particularly also confirming the view taken by the Hon’ble Division Bench of this Court, this Court is inclined to accept the submission made on behalf of the petitioners that the issue is no more rest integra and whereas, the issue stands decided. 7. Having regard to the said aspect, more particularly considering that since this Court is taking up the group of matters with varied respondents, the following directions are passed:- (i) The petitioners shall make an application for grant of one increment which accrued in their favour on the date after their retirement with a copy of this order before the official respondent/appropriate appointing authority. Such an application shall be made by the petitioners within a period of two (02) weeks from the date of receipt of this order. Such an application shall be made by the petitioners within a period of two (02) weeks from the date of receipt of this order. (ii) Upon such application being received by the concerned official respondent/appropriate appointing authority, the official respondents/appropriate appointing authority shall verify the date of retirement of the petitioner and whereas, if the date of retirement of the petitioner would be on the 30th June of the year in question, it would be deemed that the petitioner shall be entitled to the benefit of one increment due from the next date. (iii) Upon such verification as above, the respondents/appropriate appointing authorities are directed to pay the increment due to the petitioner and whereas the respondents/appropriate appointing authorities are also directed to revise the pension and other retiral benefits including all consequential benefits and arrears thereof as available to the petitioners. (iv) The above exercise shall be completed by the official respondents/appropriate appointing authorities within a period of eight (08) weeks from the date of receipt of the application preferred by the petitioner. (v) It is clarified that in case the official respondents/ appropriate appointing authorities do not complete the exercise within a period of eight weeks as stated herein above including making payment to the present petitioners within such time, then the petitioners shall be entitled to claim interest at the rate of 6% from the date such amount fell due till the date of payment. (vi) In case, any of the petitioners are aggrieved by the verification conducted by the official respondents/appropriate appointing authority, it would be open for such petitioners to make application for revival of their petitions. 8. With these observations and directions, present petitions stand disposed of as allowed. Rule is made absolute to the aforesaid extent. Consequently, Civil Application, if any, also stands disposed of. Direct service is permitted.