IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 5105 of 2005(S) ------------------------------------- OA.488/2003 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONER: ------------------- ANAGUR BHASKAR, S/O. B. DASAPPA, AGED 71 YEARS, RETIRED STATION MASTER, "SARASWATY SADANA", KALYANGAD P.O., RAMADASANAGAR, KASARAGOD DISTRICT. BY ADV. SRI.K.SHRIHARI RAO. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF PERSONAL PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONAL AND TRAINING, NEW DELHI. 2. RAILWAY BOARD, REPRESENTED BY ITS SECRETARY, RAILBHAVAN, NEW DELHI. 3. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 4. THE DIVISIONAL RAILWAY MANAGER (PERSONNEL), SOUTHERN RAILWAY, PALGHAT. BY ADV. SRI.MURALEEDHARA KAIMAL, ADDL.CGSC SRI.V.E.ABDUL GAFOOR, ADDL.CGSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008,THE COURT ON 04/04/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.5105/2005-S: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE O.A. NO. 188/03 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P.2: COPY OF THE REPLY FILED IN O.A. NO. 488/03 OF THE RESPONDENTS. EXT.P.3: COPY OF THE REJOINDER FILED BY THE PETITIONER TO THE REPLY OF THE RESPONDENT. EXT.P.4: COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS TO THE ABOVE O.A. EXT.P.5: COPY OF THE ORDER IN O.A. NO. 488/03. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.5105 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of April, 2008. JUDGMENT T.R. Ramachandran Nair, J. The petitioner was the applicant in O.A. No.488 of 2003 before the Central Administrative Tribunal. As the Tribunal dismissed his application, he has filed this writ petition. 2. The petitioner retired from service on 28.2.1990 as Station Master. The date of his next increment falls on 1.3.1990 and as his representations were rejected, he filed the O.A. The Tribunal took the view that on retirement one becomes a pensioner, if the service is pensionable and what would he get after his retirement is pension and not pay. It was therefore held that increment accrues only when pay accrues and therefore there can be no increment without the right to pay pre-existing the incidence of increment. Learned counsel for the petitioner placed reliance upon the decision of a Division Bench of this court in Union of India v. George (2003 (3) KLT 387) to contend that the principles laid down therein will apply to the facts of this case. Reference was also made to the judgments relied upon by the Tribunal including the decision in S. Banerjee v. Union WPC 5105/2005 -2- of India (AIR 1990 SC 285). 3. The short question herein is whether after becoming a pensioner, the petitioner will be entitled to draw the increment which fell due on the next day. On a reading of the facts in S. Banerjee's case (AIR 1990 SC 285), it will be clear that the facts of this case are totally different. In that case, the actual date of retirement was on 31.3.1987 and he sought for voluntary retirement with effect from the forenoon of 1.1.1986. It was therefore held that the said officer had retired from service on 1.1.1986 and not on 31.12.1985 and hence he was entitled for the benefits granted by the Pay Commission which covered the case of employees who retired during the period January 1, 1986 onwards. In the facts of George's case (2003 (3) KLT 387), there the officers retired from service on 31.12.1995. They were paid pension with effect from 1.1.1996. When the recommendation of the Vth Pay Commission was accepted, orders were passed with retrospective effect to cover the case of persons who were drawing pension on 1.1.1996. Analysing the said provisions, this court held that since they had retired from service on 31.12.1995 and as they have acquired the status of pensioners on 1.1.1996, their claim to pension had to be determined at the rate prevalent on that date. Clearly, the facts of that case are different from the facts of this case. Apart from that, the said decision stands reversed by WPC 5105/2005 -3- the Apex Court in Civil Appeal Nos.2908/2005 and 789/2005 by the Hon'ble Supreme Court. The relevant portion of the judgment is extracted below: “We are unable to countenance with the decision of the Tribunal and the High Court. As already noticed that they were retired with effect from 16.12.1995 and 3.12.1995 respectively but because of the provision of FR 56, they were allowed to retire till the last date of the month, the grace period of which was granted to them for the purpose of pay and allowances only. Legally, they were retired on 16.12.1995 and 3.12.1995 respectively and, therefore, by no stretch of imagination it can be held that their pensionary benefits can be reckoned from 1.1.1996. The relationship of the employer and employee terminates in the afternoon of 16.12.1995 and 3.12.1995 respectively.” Therefore, no reliance can be placed on the said decision. 4. As far as a person who is in service is concerned, he will be entitled to draw increments which depends upon the pay and allowances payable to him. When he retires from service, his status changes and he is not entitled to get any pay and allowances from that date onwards. As held by the Tribunal, increment is an increase in pay earned on account of continuance of service in duty. On retirement one becomes pensioner and thereafter he would get only pension and not pay, is the view taken by the Tribunal. We find that the said view is perfectly justified. The petitioner is not right in placing reliance on the principles stated in the various judgments referred to by him, and the facts of those cases are totally WPC 5105/2005 -4- different. In fact, the Tribunal has elaborately considered the dictum laid down in various cases while holding against the petitioner. 5. We find that the issue is covered against the petitioner by a recent decision of the Apex Court reported in Achhaibar Maurya v. State of U.P. And others {(2008) 2 SCC 639)}. There, the appellant who retired from service on 30.6.2003 claimed session benefit of the next session commencing on 1.7.2003. It was held that a person attains a specified age on the day next before the anniversary of his birth day or in other words, on the day preceding that anniversary. In that view of the matter, it was held that the claim is not sustainable. For all these reasons, we dismiss the writ petition confirming the order passed by the Tribunal. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ WPC 5105/2005 -5- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT WPC 5105/2005 -6- 17th March, 2008.