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2021 Supreme(Guj) 637
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
RATILAL LAXMIDAS KANERIYA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 11257 of 2021
Decided On : 26-08-2021
For The Appellant : MR VAIBHAV A VYAS
Headnote:
Claiming increment – Retirement - Petitioner is claiming increment of one full year of service and same has been denied to petitioner on ground that since he has retired from the service he would not be entitled to same as per rules - Learned advocate appearing for petitioner has submitted that petitioner has rendered one full year of service and as per Rule 39 of Gujarat Civil Services (Pay) Rules, 2002, he would be entitled for that increment, since he has retired such increment is denied on ground that since Rule 39 (1) of rules provides for release of increment of first of every month - In support of his submissions, learned advocate for the petitioner has placed reliance on judgment of the Division Bench passed by High Court of judicature at Madras, interpreting the same rule – Held, In view of judgment of this Court, naturally he has to be treated as having completed one full year of service, though date of increment falls on next day of his retirement - Petitioner shall be given one notional increment for the period, as he has completed one full year of service, though his increment fell for purpose of pensionary benefits and not for any other purpose - Said judgment was subject matter of challenge before Supreme Court in SLP (C), which was dismissed - Thus, this Court is not impressed upon the submissions advanced by learned Assistant Government Pleader, while interpreting Rule 39 (1) of Gujarat Civil Services Pension Rules with regard to denying benefit of one increment to petitioner for previous service of one year before date of his retirement - Thus, in light of law enunciated by Division Bench of Madras High Court, which is confirmed by Apex Court, communication is hereby quashed and set aside - Applying said judgment to present case, writ petition is allowed and impugned order passed by first respondent-Tribunal is quashed.
JUDGMENT :
1. RULE. Learned AGP waives service of notice of rule for the respondents-State.
2. In the present writ petition, the petitioner has, inter alia, prayed for the following relief;
“(A) Quash and set aside the communications dated 14.07.2021 Annexure-A to this petition, and further be pleased to direct the respondent authorities to grant one increment to the petitioner as per his entitlement and consequentially direct the respondent authorities to revise the pension and other retirement benefits of the petitioner and make payment of arrears with interest at the rate which the Honourable Court may deem just and proper.”
3. The petitioner is, thus, claiming the increment of one full year of service from 01.07.2019 to 30.06.2020 and the same has been denied to the petitioner on the ground that since he has retired from the service on 30.06.2020, he would not be entitled to the same as per the rules.
4. Learned advocate Mr. Vaibhav Vyas appearing for the petitioner has submitted that the petitioner has rendered one full year of service from 01.07.2019 to 30.06.2020 and as per Rule 39 of the Gujarat Civil Services (Pay) Rules, 2002, he would be entitled for that increment, however, since he has retired on 30.06.2020, such increment is denied on the ground that since the Rule 39 (1) of the rules provides for the release of increment of first of every month. In support of his submissions, learned advocate for the petitioner has placed reliance on the judgment of the Division Bench on 15.09.2017, passed by the High Court of judicature at Madras, interpreting the same rule. It is submitted that the aforesaid judgment is confirmed by the Apex Court vide 23.07.2018 in SLP (C) No. 22008 of 2018. Thus, he has submitted that the respondents may be directed to grant the benefit of one increment.
5. Per contra, learned Assistant Government Pleader, while placing reliance on the affidavit-in-reply filed by the respondent authority, has submitted that the petitioner would not be entitled to one increment as per the Rule 39 (1) of the Rules since the increment accrues on 1st of every month, however, the petitioner is retired from the service on 30.06.2020 and thus, he would not be entitled to increment after his retirement.
6. I have heard the learned advocates appearing for the respective parties.
7. It is not disputed that the petitioner retired from service on 30.06.2020 after rendering 37 years of service. It is also not disputed that he rendered one full year service from 01.07.2019 to 30.06.2020. The case of the petitioner is denied on the interpretation of Rule 39 (i) of the Rules. The same is read 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 rules-11,13,15,16,19,23,30 and 44 all periods of duty discharged in a post on a time-scale shall count for increments in 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.
xxx xxx xxx xxx.”
8. The proviso to sub-rule (1) of Rule 39 stipulates that 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 mo
