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IN THE HIGH COURT OF ALLAHABAD
Manish Mathur, J.
P.P.Pandey (Parmatma Prasad Pandey) - Petitioner
Vs.
State Of U.P.Thru Prin.Secy.Transport Deptt. Lko & Ors. - Respondent
SERVICE SINGLE No. - 18375 of 2020
Decided On : 25-01-2021
Fundamental Rules – Rules 17, 56, 9 – Superannuation – Petition has been filed against the order whereby increment due to petitioner has been denied on the ground that the petitioner is not entitled to the same since he was not in service, having superannuated – Counsel for petitioner has submitted that petitioner was appointed in the cadre of Assistant Regional Manager (Operation) in the U.P. State Road Transport Corporation with effect from 17.11.1978 and subsequently attained superannuation – It is submitted that earlier with regard to following relief, petitioner had filed Writ Petition in which this Court vide order had directed the concerned authority to decide petitioner's representation. – In pursuance to the same, impugned order has been passed rejecting petitioner's representation.
Finding of the court: Perusal of paragraph 8 of the Government Order does not indicate any such condition that increment is to be paid only in case the employee is in service as on First July of the year. – Once the authorities concerned have not indicated any such factor in the Government Order, it is not for this Court to construe such a meaning in the Government Order, which has deliberately been omitted. – It is quite apparent that an employee becomes entitled for an increment upon completion of six months or more of service rendered in the past year. – It is also to be noticed that the impugned order has been passed only on the basis of that judgments passed by the High Court at Madras and by Hon'ble the Supreme Court are inapplicable because, the Corporation was not a party in those proceedings. – It is settled law that it is the ratio decidendi which is applicable with regard to any lis and not as to the party in the dispute. – The authority concerned should have appreciated that the present dispute is the same as was being agitated before High Court at Madras and there is no distinction whatsoever. – However, this aspect has been lost sight of while passing the impugned order. – So far as the submission of learned counsel for opposite party is concerned that granting relief as has been sought by the petitioner would imply that pension of an employee would be more than the last pay drawn does not appear to be reasonable in view of fact that even if such an increment is allowed, the immediate effect will be on the last pay drawn only with consequential effect upon the pension of superannuated employee. – Therefore it cannot be said that in case of allowing such an increment, the pensionary benefits of an employee would be more than the last pay drawn. – Upon consideration of aforesaid factors, the writ petition is liable to succeed and therefore writ in the nature of certiorari is issued quashing the impugned order – A further writ in the nature Mandamus is issued commanding the opposite parties no.2 and 3 to grant increment due to petitioner with all consequential benefits.
Result: – Writ Petition Allowed
JUDGMENT :
Manish Mathur, J.
Heard Mr. Prashant Kumar Singh, learned counsel for petitioner, learned State Counsel appearing on behalf of opposite party no.1 and Mr. Ratnesh Chandra, learned counsel appearing for opposite parties no.2 and 3.
2. Counter affidavit filed on behalf of opposite parties no.2 and 3 is taken on record.
3. Learned counsel for petitioner submits that he does not wish to file any rejoinder affidavit and the matter may be adjudicated on the basis of judgment applicable in the case.
4. Petition has been filed against the order dated 24.09.2020 whereby increment due to petitioner on 01.07.2010 has been denied on the ground that the petitioner is not entitled to the same since he was not in service on 01.07.2010, having superannuated on 30.06.2010.
5. Learned counsel for petitioner has submitted that petitioner was appointed in the cadre of Assistant Regional Manager (Operation) in the U.P. State Road Transport Corporation with effect from 17.11.1978 and subsequently attained superannuation on 30.06.2010. It is submitted that earlier with regard to following relief, petitioner had filed Writ Petition No.12390 (S/S) of 2020 in which this Court vide order dated 31.07.2020 had directed the concerned authority to decide petitioner's representation. In pursuance to the same, impugned order has been passed rejecting petitioner's representation.
6. Learned counsel for petitioner submits that the only ground for rejecting petitioner's representation is that the judgments referred to by the petitioner in his representation are inapplicable upon the Corporation since the Corporation is not a party to the said judgment.
7. Learned counsel for petitioner submits that as per the recommendations of Sixth Pay Commission, an increment in the salary of employees is to be provided on completion of Six month or more service rendered in the past year. It is submitted that once an employee had completed six months or more of service in the past year, he became entitled for increment in his salary, the actual payment of which was to be made on 01.07.2020. As such, it is submitted that the petitioner having completed six months and more of unblemished service for the year 2009-2010 became entitled for the same prior to superannuation and the actual payment of which only was to be made on 01.07.2010.
8. Learned counsel further submitted that the fact as to whether petitioner was in service as on 01.07.2010 or not is completely immaterial since the date of 01.07.2010 has been indicated in the recommendations of Sixth Pay Commission only for the purposes of actual payment/addition of the increment in view of services already rendered. As such the petitioner had accrued a right for increment prior to 01.07.2010 and therefore his not being in service on 01.07.2010 is immaterial.
9. Learned counsel has placed reliance on judgment and order dated 03.08.2011 passed in Writ Petition No.8440 of 2011 (M Balasubramaniam vs. State of Tamil Nadu & Ors) by the High Court of Judicature at Madras. He has also relied upon a Division Bench judgment of the same Court in the case of P. Ayyamperumal vs. The Registrar, Central Administrative Tribunal, Madras Bench, High Court in Writ Petition No.15732 of 2017.
10. Mr. Ratnesh Chandra, learned counsel appearing on behalf of opposite parties no.2 and 3 has refuted the submissions advanced by learned counsel for petitioner with the submission that increment as required to be added for completing year of service necessarily indicates addition in salary of an employee and not in the pension. It is submitted that since petitioner was not in service as on 01.07.2010, he was being paid only pension and not salary and therefore the provision in the Government Order would be inapplicable upon petitioner who was not actually in service as on 01.07.2010. Learned counsel has further submitted that in case such an increment is permitted for superannuated employee such as the petitioner, the effect of the same would be that such
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