Gujarat High Court

Bhopalsinh Tejusinh Chauhan vs State Of Gujarat on 18 August, 2022

Author:
Biren Vaishnav

Bench:
Biren Vaishnav

C/SCA/13955/2022 ORDER DATED: 18/08/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 13955 of 2022

==========================================================
BHOPALSINH TEJUSINH CHAUHAN
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2,3,4
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2
==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 18/08/2022

ORAL ORDER

1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned

Assistant Government Pleader waives service of notice of

Rule for the respondents.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final hearing

today.

3. By way of this petition, under
Article 226
of the

Constitution of India, the petitioners have sought a

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direction to the respondent authorities to declare that the

authorities give notional increment to the petitioners which

became due and payable in the month of July of the

particular term/year.

4. Mr. Majmudar, learned counsel for the petitioners submits

that the case involved in the present petition is akin to the

one decided by the Division Bench of this Court vide

order dated 27.4.2022 in LPA No.868 of 2021 confirming

the decision of the learned Single Judge in SCA No.10308

of 2021. He would also rely on order dated 20.7.2022

passed in SCA No.13489 of 2022 which reads as under:

"1. Heard Mr. N.K. Majmudar, learned advocate for the
petitioners and Mr. Kurven Desai, learned AGP for the
State.

2. This petition is filed seeking a direction to the
respondent authorities to declare that the authorities give
notional increment to the petitioners which became due and
payable in the month of July of the particular term/year.

3. Mr. N.K. Majmudar, learned advocate appearing for
the petitioners submits that the case involved in the present

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petition is akin to the one decided by the Division Bench of
this court vide order dated 27.04.2022 in Letters Patent
Appeal No. 868 of 2021 confirming the decision of the
learned Single Judge rendered in Special Civil Application
No. 10308 of 2021. The order dated 27.04.2022 passed in
the Letters Patent Appeal reads as under:

"Heard learned Assistant Government Pleader
Mr.Sahil Trivedi for the appellant- applicant,
learned advocate Mr.Vaibhav Vyas for the
respondent No.1 and learned advocate
Ms.Trusha Patel for the respondent No.2.

2. This Letters Patent Appeal under Clause 15
of the Letters Patent Act, is directed against
order dated 11.8.2021 of learned Single Judge
whereby the Special Civil Application filed by
the petitioner- respondent No.1 herein came to
be allowed. The respondents were directed to
grant benefit of one increment to the petitioner
and accordingly revise his pension.

2.1 The petitioner prayed in his petition to set
aside communication dated 6.1.2021. By the
said communication the petitioner was refused
to benefit of notional increment falling due on
1.7.2020 on the ground that the petitioner had
retired with effect from 30.6.2020. It was stated
in the said order that since the petitioner
ceased to remain in employment he could not
be considered as employee from 1st July, with
effect from having retired a day prior, he
acquires the status of pensioner and
consequentially would not be entitled to the
increment. The said communication dated
1.6.2021 was addressed to the Registrar
General of the respondent No.1 by the under
Secretary of the Legal Department of the State
Government.

3. The relevant facts to be noticed are that the

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petitioner joined his services under respondent
No.2 as Chowpdar cum Driver on 19.2.1983.
He was appointed as Driver with effect from
1.4.1987. As the date of birth of the petitioner
was 10.6.1960, he retired on 30.6.2020, upon
attaining the age of superannuation. The
petitioner had rendered one full year of service
from 1.7.2019 to 30.6.2020 in the said last
year. It is his case that he was entitled to get
benefit of annual increment for the said period
of service. The increment for the said period of
service, it was stated, falls due on 1.7.2

3.1 The petitioner made representation dated
31.7.2020 to respondent No.1 State requesting
to release the increment, alongwith
representation also produced by the petitioner
were the instances where increment was
granted to the similarly situated employees
retiring on 30th June. It is the averment of the
petitioner that pursuant to the said
representation, respondent No.2 made proposal
to respondent No.1, however at the end of
correspondence the benefit was denied as per
the decision reflected in the impugned
communication dated 6.1.2021.

3.2 Learned Single Judge referred to Rule 39 of
the Gujarat Civil Services (Pay) Rules, 2002
which provides for services which may be
counted for increment. Rule 39(1) provides for
release of increment on the first date of every
month. The relevant part of Rule 39 is as under,
"39. Service which counts for increment:
The following provisions prescribe the
conditions subject to which service
counts for increments in a time-scale;-
(I) Subject to the provisions of
rules11,13,15,16,19,23,30 and 44 all
periods of duty discharged in a post on a
time-scale shall count for increments in

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that time-scale. For the purpose of
arriving at the date of next increment in
that timescale, the total of all such
periods as to do not count for increment
in that time-scale shall be added to the
normal dates of increment. Provided that
the increment shall be admissible from
the 1st of the month in which it accrues."

3.3 Learned Single Judge held noticing the
facts of the case and the aforesaid Rule, held
that the Rule was misread and misinterpreted in
denying the increment to the petitioner, to
observe, (Para 8)

"The proviso to sub-rule (1) of Rule 39
stipulatesthat the increment shall be
admissible from the 1st of the month, in
which, it accrues. The petitioner has
been denied the benefits of the increment
for the services which he rendered prior
to his retirement i.e. from 01.07.2019 to
30.06.2020 on the ground that the same
accrued on 01.07.2020. The respondents
have indubitably misread and
misinterpreted the rule since it is not the
case of the petitioner that he is claiming
increment of one year after the date of
retirement. The petitioner has become
entitled for one increment during one
year of service in the time pay-scale
prior to his retirement and only because
the same has accrued on 1st of every
month, such benefits could not be denied
by applying the rule prospectively
resulting into wiping out the entire
service of one year, which he has
rendered in a particular time-scale. "

3.4. While holding as above, learned Single
Judge relied on the decision of the Madras

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High Court in
P.Ayyamperumal Vs. The
Registrar and Others
being Writ Petition
No.15732 of 2017 decided on 15.9.2017. The
Madras High Court dealt with and interpreted
Rule 10 of the Central Civil Services (Revised
Pay) Rules, 2008 which is similar. In that case,
the petitioner had retired as Additional
Director General, Chennai on 30.6.2013 on
attaining the age of superannuation. After the
Sixth Pay Commission the Central Government
fixed 1st July to be the date of increment for all
employees by amending Rule 10 of the Rules.

This amendment resulted into denial of the
benefit of the last increment. Though petitioner
has completed full year of service on 1.7.2012
to 30.6.2013 and had retired on 30.6.2013, in
view of the provisions and rules, that increment
would be given only on 1.7.2013, the petitioner
was treated not eligible to earn the increment.

3.4.1 The Madras High Court considered it to
be a decisive circumstance that employee had
completed full year of service for which the
increment had become due, observing as under,
(para 7)

"The petitioner herein had completed
one full year service as on 30.06.2013,
but the increment fell due on
01.07.2013, on which date he was not in
service. In view of the above judgment of
this Court, naturally he has to be treated
as having completed one full year of
service, though the date of increment
falls on the next day of his retirement.
Applying
the said judgment
to the present
case, the writ petition is allowed and the
impugned order passed by the first
respondent Tribunal dated 21.03.2017 is
quashed. The petitioner shall be given
one notional increment for the period

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from 01.07.2012 to 30.06.2013, as he has
completed one full year of service,
though his increment fell on 01.07.2013,
for the purpose of pensionary benefits
and not for any other purpose. No costs."

4. Learned Assistant Government Pleader
relied on the decision of the Himachal Pradesh
High Court in
Hari Prakash and Others Vs.
State of Himachal Pradesh and Others
being
Civil Writ Petition No.2503 of 2016 decided on
6.11.2020, further on the decision of the
Rajasthan High Court in
Safi Mohammad and
Others Vs. State of Rajasthan and Others

decided on 1.12.2021 and next also of the
Rajasthan High Court in
Ramji Lal Kulhari and
Others Vs. State of Rajasthan and Others
being
Civil Writ Petition No.85 of 2020 and group of
petitions decided on 10.1.2022 to submit that in
the said decisions, the High Courts had taken a
contrary view holding that there would occur
no entitlement to get the increment.

4.1 On the other hand, learned advocate for the
respondent relied on the decisions in
Gopal
Singh Vs. Union of India and Others
being Writ
Petition No.10509 of 2019 decided by Delhi
High Court on 23.1.2020, in
Nand Vijay Singh
and Others Vs. Union of India and Others

being Writ Petition No.13299 of 2020 of
Allahabad High Court decided on 29.6.2021, in
Yogendra Singh Bhadauria and Others Vs.
State of Madhya Pradesh of High Court of
Madhya Pradesh decided on 22.9.2020, in
AFR
Arun Kumar Biswal Vs. State of Odisha and
Another
being Writ Petition No.17715 of 2020
decided on 30.7.2021.

In all the above
decisions
P.Ayyamperumal
(supra) has been
considered and relied on to hold that the
employee would be entitled to the benefit of
increment on 1st July even though he had

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retired on 30th June. 5.

The Delhi High Court
in
Gopal Singh
(supra) taking same view as
that of Madras High Court in
P.Ayyamperumal

(supra) explained that the entitlement of
government servant to receive the increment,
though may not be a matter of course, but is
dependent upon good conduct of the central
government servant and that he earns
increment on the basis of his good conduct for
specified period. (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

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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. "

5.1 It was stated that where a government
servant observes good conduct for entire year
before increment accrues, it is logical and
normal that he earns the increment. Dealing
with the situation where the government servant
has retired on 30th June and the increment is
payable on 1st July, the High Court stated thus,
(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

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conduct and becomes payable on the
succeeding day. "

5.1.1 It was further observed by the Delhi High
Court that denial of the entitlement to receive
benefit when is crystallized in law could be
arbitrary if it is denied unless there is valid
reason. Though the increment was earned for
past period it is denied on the ground that on
the date when the increment becoming payable
the government servant was not holding the
post as he had retired, such has to be viewed to
be not the valid ground to deny the increment.
The High Court observed that 'the concept of
day following which the increment is earned
has otherwise no purpose to achieve'. It was
stated, (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. "

5.1.2 The retirement of the government servant
on the day prior to the increment becoming
payable is only fortuitous circumstance, it was
rightly expressed, (Para 24)

"In the case of a government servant
retiring on 30th of June the next day on

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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
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. "

5.2 The view taken by the Madras High Court
in
P.Ayyamperumal
(supra) and by Delhi High
Court in
Gopal Singh
(supra) and other High
Courts as above, holding that the government
servant is entitled to increment becoming
payable on 1st July, even though he has retired
on 30th June, is required to be accepted. This
court is in concurrence with the view taken in
the aforesaid decisions by the Madras High
Court and the Delhi High Court and the
reasons supplied therein. This court is unable
to subscribe to the converse view taken by High
Courts of Himachal Pradesh and Rajasthan.

5.3 Furthermore the Supreme Court has
dismissed the Special Leave Petition (Civil)
Dairy No.22283 of 2018 against the decision of
the Madras High Court in
P.Ayyamperumal

(supra) as per the order dated 23.7.2018.

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5.4 Besides above, the Division Bench of this
court in
Union of India Vs. Laxmanbhai
Kalabhai Chavda
being Special Civil
Application No.10751 of 2020 decided on
27.1.2021, dealing with the same issue
accepted the interpretation of the Rule 10 made
by the High Court of Madras High Court in

P.Ayyamperumal
(supra). The Division Bench
of this court dealt with the legality of the order
of the Central Administrative Tribunal which
had granted the benefit.

In that learned
standing counsel could not dispute the
judgment of the Madras High Court in

P.Ayyamperumal
(supra) confirmed by the
Apex Court in the Special Leave Petition as
above.

5.4.1 In
Laxmanbhai Chavda
(supra), the
Division Bench of this court observed that
reading of Rule 10 of the Rules would make it
clear that the government servant is entitled to
the increment becoming payable on 1st July.
(Para 5)

"...Rule 10 of the Rules, which speaks of
uniform date of annual increment, which
is 1st July of every year. It says that the
employees completing six months and
above in the revised pay structure as on
1st July, will be eligible to be granted the
increment. The first increment, after
fixation of pay as per the said Rules is on
1.1.2006 in the revised pay structure
which shall need to be granted on
1.7.2006 for those employees for whom
the date of next increment was between
1.7.2006 to 1.1.2007."

5.4.2 It was further stated, (Para 6)

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"...the interpretation of Rule 10 of the
Rules made by High Court of Madras in
W.P. No.15372/2017, where the Court
held from the factual details that the
employee before it since had completed
one full year service as on 30.6.2013, i.e.
the date of which he was superannuated,
but the increment fell due on 1.7.2013,
on which date he was not in services and
therefore, it interpreted that he shall
have to be treated as having completed
one full year of service, though the date
of increment fell on the next day of his
retirement. Accordingly, the court had
allowed the petition and directed that the
petitioner before the High Court of
Madras be given one notional increment
for the period from 1.7.2012 to
30.6.2013, on his having completed one
full year of service."

5.5 As a Co-ordinate Bench, we are bound by
the aforesaid view taken in
Laxmanbhai
Chavda
(supra), and stand in agreement with
the same.

6. For the aforesaid reasons and the discussion,
the present challenge to the order of the
learned Single Judge in this Letters Patent
Appeal stands meritless.

7. The present Letters Patent Appeal is
dismissed. Notice is discharged. Interim orders
stand vacated. The directions issued in
paragraph No.12 of the order of learned Single
Judge regarding grant of benefits to the
petitioner- respondent herein, the same shall be
granted within six weeks from today and the
direction shall be complied with.

In view of disposal of the main appeal,
the Civil Application will not survive.

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Accordingly, it is disposed of. "

4. In view of the above, the petitioners shall be entitled
to the benefit of one increment falling due on the 1 st of July
of their respective dates of retirement and consequential
benefits on the revision of pay that would accrue to the
petitioners and the pension and arrears thereof accordingly
be calculated and paid to the petitioners within a period of
six weeks from the date of receipt of the writ of the order of
this court. Petition is allowed accordingly. Direct service is
permitted."

5. In view of the above, the petitioners shall be entitled to the

benefit of one increment falling due on the 1st of July of

their respective dates of retirement and consequential

benefits on the revision of pay that would accrue to the

petitioners and the pension and arrears thereof accordingly

be calculated and paid to the petitioners within a period of

six weeks from the date of receipt of the writ of the order

of this court.

6. The petition is partly allowed accordingly. Rule is made

absolute. Direct Service is permitted. No order as to costs.

(BIREN VAISHNAV, J)
VATSAL S. KOTECHA

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