ORDER :

1. The prayer of the petitioners is to direct the respondents to treat the petitioners retirement date as on 01st July of the relevant year and direct them to pay the last increment which falls due on 01st July of the relevant year as they have retired on 30th June of the relevant year.

2. In the submission of Ms. Kruti Shah, learned counsel for the petitioners, the issue is now covered by a Division Bench decision of this Court rendered in Letters Patent Appeal No. 868 of 2021, which read 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 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 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.”

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