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 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 26613 of 2005(S) --------------------------------------- OA.1039/2003 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONERS: --------------------- 1. UNION OF INDIA, REPREENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, NEW DELHI. 2. THE SENIOR QUALITY ASSURANCE ESTABLISHMENT(GS), DGOA COMPLEX, PAZHAVANTHANGAL P.O., MADRAS-600 014. 3. THE DIRECTOR GENERAL OF QUALITY ASSURANCE, DEPARTMENT OF DEFENCE PRODUCTION (DGOA/ADM/7B) MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SENIOR PANEL COUNSEL. RESPONDENTS: ------------------------ 1. K.R.SANAL KUMAR, S/O.K.RAGHAVAN NAIR, (SSA(G) RETD), SENIOR QUALITY ASSURANCE ESTABLISHMENT (GS), DGQA COMPLEX, MADRAS, R/O. A/24(TC.2/294), PILLA VEEDU NAGAR, KESAVADASAPURAM, POTTOM P.O., THIRUVANANTHAPURAM-695 004. 2. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULM BENCH, REPRESENTED BY ITS REGISTRAR, KALOOR, KOCHI-17. BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL, ADV. SRI.S.VISHNU, ADV. SMT.VIVEEJA RAVEENDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26613/2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March, 2008. JUDGMENT T.R Ramachandran Nair, J. The challenge by the petitioners is against the order passed by the Central Administrative Tribunal in O.A. No.1039/2003. The Original Application was filed by the first respondent seeking for a direction to release the annual increment that fell due on 1.1.1996 with consequential benefits. He had retired from service on attaining the age of 58 years with effect from 31.12.1995. The Tribunal has taken the view that the applicant is entitled to be paid the increment which fell due on 1.1.1996 and granted consequential benefits. 2. Heard learned Standing Counsel for the petitioners and learned counsel for the first respondent/applicant. Relying upon Ext.P8 judgment of the Andhra Pradesh High Court, Shri T.P.M. Ibrahim Khan, learned Standing Counsel for the petitioners contended that once a person has retired from service on attaining superannuation, there is no question of granting increments which fell due on the next day, as he was not in service on that day. Reliance is also placed on FR 17(1), FR 56(a), FR 24 and FR WPC 26613/2005 -2- 26 mainly to contend that once the officer ceases to discharge the duties attached to a post, the question of drawing an increment does not arise. Reliance is also placed on the recent decision of the Apex Court in Achhaibar Maurya v. State of U.P. And others {(2008) 2 SCC 639}. 3. The relevant facts show the following: The respondent retired from service on 31.12.1995 on attaining the age of 58. The claim is for the next annual increment which fell due on 1.1.1996. The Tribunal allowed the O.A. on the ground that the right to gain the increment arose after completion of one year service and what remains thereafter is only enforcement in the form of payment. Therefore, a 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. Reliance was also placed on the decision of a Division Bench of this court in Union of India v. George (2003 (3) KLT 387) and that of the Hyderabad Bench of the Tribunal in O.A.No.797/92 and also the judgment of the Tribunal in O.A.No.36/2004. 4. In fact, the decision of the Hyderabad Bench of the Tribunal has been overruled by the Andhra Pradesh High Court in Ext.P8 judgment. 5. A reference to the relevant rules will be of advantage here. Going by FR 17(1), subject to any exceptions specifically made in these rules and to the provisions of sub-rule (2), an officer shall begin to draw pay and WPC 26613/2005 -3- allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. Under FR 56(a), except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. It is clear from the relevant rules FR 24 and FR 26 that an increment can be drawn by a Government servant who is on duty. It is also clear that he should continue to draw pay and allowances attached to that post. Judged in the light of the above provisions, once the person has attained superannuation and has retired from service, it cannot be said that he will be entitled to draw the increment which fell due on the next day. For enabling him to draw the increment, he should be a person who is in service and who is entitled to draw pay and allowances. Herein, as on 1.1.1996, the applicant will be entitled to draw pension only and not any pay and allowances. He can be treated only as a retired Government servant and not a Government servant on duty. For these reasons, according to us, the view taken by the Tribunal cannot be accepted. 6. Very same issue was considered by a Full Bench of Andhra Pradesh High Court in Ext.P8 judgment. After elaborately considering the matter, it was held by the Full Bench that a person retiring on the last day of the preceding month ceases to be born on the establishment with effect from WPC 26613/2005 -4- the beginning of the first day of the succeeding month and he would not be entitled for payment of any emoluments as on the first day of the succeeding month commences, ie. after 12 O' Clock in the night. The judgment of a Division Bench of this court in George's case (2003 (3) KLT 387) was distinguished for the reason that the issue that was considered therein was different. We fully agree with the view taken by the Full Bench of A.P. High Court in Ext.P8 judgment. 7. Learned counsel for the applicant Shri Vishnu Chempazhanthiyil supported the order of the Tribunal which was rendered after relying on a judgment of this court in George's case (2003 (3) KLT 387). There the question that was considered was in respect of an employee who retired from service on 31.12.1995 whether he becomes a pensioner with effect from 1.1.1996. It was held therein that “it is only when the clock ticks 12 midnight that the relationship of the employer and employee ceases and the status of a pensioner commences. Thus, from 1.1.1996, the two respondents had become pensioners.” In that view of the matter, it was held that the respondents therein were entitled to the benefit of revision of pay which was ordered with effect from 1.1.1996. The facts of this case are totally different from that considered by the above Division Bench and the dictum laid down by the Division Bench cannot apply to the fact situation here. Apart from that, the said judgment stands reversed by the Hon'ble Supreme WPC 26613/2005 -5- Court in C.A. Nos.2908/2005 and 789/2005. 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.” Hence, the order of the Tribunal by placing reliance on the same cannot be upheld. 8. We find that the recent judgment of the Apex Court in Achhaibar Maurya's case {(2008) 2 SCC 639} clearly applies to the facts of this case. There, the claim raised by a teacher who retired on 30.6.2003 was for getting Session benefits of the next session commencing on 1.7.2003. It was held that the appellant who was born on 1.7.1943 would retire on 30.6.2003. Their Lordships held that “a person retires automatically on the day when he completes the age of superannuation. 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.“ It was therefore held that the appellant was not entitled for the benefit of special benefit of the next session commencing on 1.7.2003. The decision of Apex Court in S. WPC 26613/2005 -6- Banerjee v. Union of India (1989 supp. (2) SCC 486) was distinguished. 9. We find that on the facts of this case, the said dictum will squarely apply here. As on 1.1.1996, the day when the annual increment fell due, the applicant was not in service. He became a pensioner already. He cannot draw any pay and allowances from 1.1.1996. In that view of the matter, he will not be entitled to claim any annual increment which fell due on 1.1.1996 as he had already retired from service. The employer-employee relationship has already ceased. The view taken by the Tribunal, therefore, cannot be accepted. Therefore, we allow the writ petition, set aside the order passed by the Tribunal and dismiss the O.A. No costs. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ WPC 26613/2005 -7- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT WPC 26613/2005 -8- 17th March, 2008.