B.R. Sarangi, J.:— The petitioner, who was working as Additional Commissioner of Commercial Tax and Goods and Service Tax (Revenue) in the Commissionerate of the Commercial Tax and Goods and Service Tax, has filed this writ petition seeking to quash the letter dated 14.07.2020 under Annexure-3 rejecting his representations dated 08.01.2020 and 17.03.2020 to treat the next date of retirement i.e., 01.01.2020 as the date of grant of notional increment for the purpose of pensionary benefits, in compliance of direction given by this Court, vide order dated 27.05.2020 in W.P. (C) No. 11642 of 2020, and further seeks for a direction to grant notional increment for the period from 01.01.2019 to 31.12.2019 by treating the next date of increment, i.e., 01.01.2020 as the date of grant of notional increment for the purpose of pensionary.
2. The factual matrix of the case, in hand, is that by following due procedure of selection, the petitioner was appointed and joined in service under the Government of Odisha on 17.10.1988 and subsequently promoted from time to time. His date of birth being 01.01.1960, on attaining the age of superannuation, he retired on 31.12.2019. He was allowed previous increment on 01.01.2019 and, as such, the next increment was due on 01.01.2020, which was the next day of his date of superannuation, i.e., 31.12.2019. But, he was not extended with the incremental benefit, which was fallen due on 01.01.2020, for which he submitted a representation to the authority. The same having not been acceded to, he approached this Court by filing W.P. (C) No. 11642 of 2020, which was disposed of on 27.05.2020 directing the authority to take a decision on the representation filed by the petitioner and pass appropriate order keeping in view the order dated 15.09.2017 of the Madras High Court in W.P. (C) No. 15732 of 2017 (P. Ayyamperumal v. The Registrar, Central Administrative Tribunal, Madras Bench), which was confirmed by the apex Court in Special Leave Petition (Civil) Diary No(s). 22283 of 2018. In compliance of the direction given by this Court, opposite party no. 2 passed the impugned order dated 14.07.2020 in Annexure-3 stating therein that the date of birth of the petitioner being 01.01.1960, the date of his superannuation was on 31.12.2019, and that as he was allowed previous increment on 01.01.2019, his next increment was due on 01.01.2020, but on that date since the petitioner was no more in service, he was not entitled to any incremental benefit on the day following the superannuation i.e., 01.01.2020. Hence this writ petition.
3. Mr. S.K. Dash, learned counsel for the petitioner contended that admittedly, the date of birth of the petitioner is 01.01.1960 and on attaining the age of superannuation, he was retired from service on 31.12.2019. As such, his next increment was due on 01.01.2020, as he had received the previous increment on 01.01.2019. Therefore, for the period he rendered service from 01.01.2019 to 31.12.2019, he is entitled to get the increment, which should be notionally fixed, as the increment was due on 01.01.2020, so as to entitle him to get pensionary benefits. It is further contended that the rejection of the claim of the petitioner, in compliance of the order dated 27.05.2020 passed by this Court in W.P. (C) No. 11642 of 2020, on the plea that he ceases to draw the pay and allowance as soon as he ceases to discharge duties from the day following the superannuation as per Rule-56 of the Odisha Service Code and becomes eligible for pension under Rule 82 of the Odisha Civil Services (Pension) Rules, 1992. It is further contended that as per the clarification obtained from the Finance Department, the annual increment falls due irrespective of the date of anniversary of appointment and as per Rule 10 of the Odisha Revised Scales of Pay Rules, 2017, the date of next increment shall be 12 months from the date of last sanction. Therefore, while rejecting the representation of the petitioner, the authority has failed to apply the ratio decided in P. Ayyamperumal (supra), which has been confirmed by the apex Court in SLP (Civil) Diary No(s). 22283 of 2018, and assign any reason as to why the ratio decided in the said order would not be applicable to the case of the petitioner. Therefore, the order impugned rejecting the representation of the petitioner is cryptic and unreasonable one. It is further contended that the clarification of the Finance Department has been wrongly read and interpreted, inasmuch as the annual increment is always continuous and is not dependent or calculated by taking into account either the entry into or exit from the service.
4. It is further contended that while disposing of the representation, the opposite party no. 2 has candidly admitted that the increment was last sanctioned on 01.01.2019 and therefore the next date of sanction would be on 01.01.2020, and that on attaining the age of superannuation the petitioner having retired from service on 31.12.2019, thereby, Rule 56 of the Service Code laying down the entitlement of pay and allowance cannot be read as a bar to disburse the accrued dues and it is also equally erroneous to import the language of Rule 82 of the Odisha Civil Services (Pension) Rules, 1992 to justify the action taken by opposite party no. 2 in rejecting the claim for grant of annual increment to the petitioner.
5. To substantiate his contention he has relied upon the order dated 15.09.2017 of the Madras High Court in W.P. (C) No. 15732 of 2017 (P. Ayyamperumal v. The Registrar, Central Administrative Tribunal, Madras Bench), which was confirmed by the apex Court in Special Leave Petition (Civil) Diary No(s). 22283 of 2018 and the review petition bearing R.P. (C) No. 1731 of 2019 filed by the Union of India; order of the Madhya Pradesh High Court in Yogendra Singh Bhaduria v. State of Madhya Pradesh & Gwalior (W.A. No. 645 of 2020 disposed of on 22.09.2020); and the order of the Delhi High Court in Gopal Singh v. Union Of India. (C) No. 10509 of 2019 disposed of on 23.01.2020).
6. Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for the State argued with vehemence and contended that the petitioner is not entitled to get the next increment which was due on 01.01.2020 notionally, as he was no more in employment and had retired on attaining the age of superannuation on 31.12.2019. He further contended that the last annual increment was sanctioned on 01.01.2019 and, as such, the petitioner is entitled to get monthly pension and other pensionary benefits like, gratuity, unutilized leave salary, etc. on the basis of the last pay arrived at due to sanction of annual increment with effect from 01.01.2019. When the petitioner filed representation for grant of notional increment taking the last pay as 01.01.2020 and grant of consequential pensionary benefits, the Finance Department being the cadre controlling authority and administrative department, the said representation was transmitted to opposite party no. 1 by opposite party no. 2 for consideration. After receipt of the order dated 27.05.2020 of this Court, the opposite party no. 2 requested the opposite party no. 1 on 19.06.2020 for necessary clarification in the aforesaid matter. In response to the same, the impugned order has been passed stating inter alia that as per Rule 10 of the Odisha Revised Scales of Pay Rules, 2017 the date of next increment shall be from 12 months from the date of last increment sanctioned. As Government servant ceases to draw the pay and allowances as soon as he ceases to discharge the duties from the day following the superannuation as per Rule-56 of the Odisha Service Code and eligible for pension under Rule-82 of the Odisha Civil Services (Pension) Rules, 1992. As the petitioner's next increment was due on 01.01.2020 and he had already retired from service on 31.12.2019 on attaining the age of superannuation, he is not entitled to get the next increment, as his last increment was sanctioned on 01.01.2019, and on that basis he is entitled to get pension and pensionary benefits as due and admissible to him. Consequently, the rejection order passed by the authority is well justified, which does not warrant interference of this Court, and the writ petition should be dismissed.
7. This Court heard Mr. S.K. Dash, learned counsel for the petitioner and Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for the State opposite parties by virtual mode. Perused the records and with the consent of the parties, the matter is being disposed of finally at the stage of admission.
8. In view of the undisputed factual matrix, as narrated above, and rival contentions raised by learned counsel for both parties, Rule-56 of the Odisha Service Code, being relevant for just and proper adjudication of the case, is extracted hereunder:—
“RULE-56 : Date of commencement-Termination of Pay and Allowance: Subject to exceptions specifically provided in these rules, a Government servant shall begin to draw the pay and allowances attached to his post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.”
9. In exercise of power conferred by the proviso to Article 309 of the Constitution of India, the Governor of Odisha framed a set of Rules to regulate the grant of pension, gratuity and other retirement benefits to the persons on retirement from service in connection with the affairs of the State of Odisha, called “The Odisha Civil Services (Pension) Rules, 1992”. Rule-82 of the Odisha Civil Services (Pension) Rules, 1992, being relevant for the purpose of this case, is quoted hereunder:—
“82. Date from which pension becomes payable - (1) Except in the case of a Government servant to whom the provisions of Rules 43 and 44 apply and subject to the provisons of Rules 7 and 66, a pension other than family pension shall become payable from due date on which a Government servant ceases to be borne on the establishment. (2) Pension including family pension shall be payable for the day on which its recipient dies.”
10. In exercise of the powers conferred by the proviso to Article-309 of the Constitution of India, the Governor of Odisha had been pleased to make a set of Rules called “The Odisha Revised Scales of pay Rules, 2017”. Rule 10 of the Odisha Revised Scales of pay Rules, 2017, being relevant to for the purpose of proper adjudication of the case, is extracted below:
“10. Date of Next increment in the revised pay structure.-
Illustration:—
An employee in the Basic Pay of 27900 in Level-7 will move vertically down the same Level to the Cell and on grant of increment, his basic pay will be 28700 and so on. Pay Band 5200-20,00 Grade Pay 1800 1900 2000 2200 2400 Levels 3 4 5 6 7 1. 18000 19900 21700 23600 25500 2. 18500 20500 22400 24300 26300 3. 19100 21100 23100 25000 27100 4. 19700 21700 23800 25800 27900 5. 20300 22400 24500 26600 28700 6. 20900 23100 25200 27400 29600 7. 21500 23800 26000 28200 30500 8. 22100 24500 26800 29000 31400
The date of next increment in the revised pay structure, shall be twelve months from the date of last increment sanctioned. In case where the pay is fixed in the revised pay structure at the minimum pay or the first Cell in the Level, the date of next increment shall be the anniversary of date of coming over to the revised pay structure.”
11. On perusal of the aforementioned provisions, it is made clear that subject to the explanation specifically provided in the rules, the government servant shall begin to draw the pay and allowances attached to the post with effect from the date on which he assumes the duties of the post and shall not be entitled to get the same soon after he ceases to discharge those duties. Thereby, there is no dispute with regard to entitlement of the petitioner to receive the pension and other pensionary benefits on attaining the age of superannuation on 31.12.2019. As per Rule-82 of the Odisha Civil Services (Pension) Rules, 1992, the pension other than the family pension shall become payable to a government servant from due date on which he ceased to borne on the establishment. The pension including family pension shall be payable for the day on which the recipient dies. So, these rules make it clear that on attaining the age of superannuation, the petitioner is entitled to get pension and pensionary benefits. But the present case rests on the question of grant of notional increment, which had fallen due to the next date of retirement. Meaning thereby, the petitioner's date of birth being 01.01.1960 and he having retired on 31.12.2019 on attaining the age of superannuation, and his increment was due on 01.01.2020, and admittedly he had been granted the increment benefit till 01.01.2019, the claim for grant of notional increment from 01.01.2019 to 31.12.2019 is the question to be considered in the present case.
12. As per Rule-10 of the Odisha Revised Scales of pay Rules, 2017, the date of next increment in the revised pay structure, shall be twelve months from the date of last increment sanctioned. The last increment here was sanctioned on 01.01.2019. Therefore, the date of next increment, after the twelve months period, will be 01.01.2020. As the petitioner retired from service on attaining the age of superannuation on 31.12.2019, whether the benefit of notional fixation of increment for the purpose of grant of pensionary benefits is admissible to the petitioner or not, is the short question which is to be adjudicated in the present case.
13. In State of Kerala v. P.N. Neelkandan Nair, (2005) 5 SCC 561 : AIR 2005 SC 3066, the apex Court held that the increment has a definite concept in service laws. It is conceptually different from revision of pay scale. It is an increase or addition in a fixed scale. It is a regular increment in salary on such a scale.
14. The claim of the petitioner is totally based on the judgment of the Madras High Court in P. Ayyamperumal (supra), where similar question had come up for consideration, meaning thereby, in that case direction was sought to treat the retirement date of the petitioner as 01.07.2013 and grant all consequential benefits including pensionary benefits. It is made clear, in the said case the petitioner was denied the last increment, though he completed a full one year in service, i.e., from 01.07.2012 to 30.06.2013. But the Central Administrative Tribunal, Madras Bench, in O.A./310/00917/2015, vide order dated 21.03.2017, rejected the claim of the petitioner taking a view that the incumbent is only entitled to get increment on 1 July, 2013 if he continued in service. On that day, since the petitioner was no longer in service, he was denied the relief. The matter was carried to the Madras High Court in a writ petition bearing W.P. No. 15732 of 2017, which was disposed of vide order dated 15.09.2017 observing in para-6 and 7 as follows:
“6. In the case on hand, the petitioner got retired on 30.06.2013. As per the Central Civil Services (Revised Pay) Rules, 2008, the increment has to be given only on 01.07.2013, but he had been superannuated on 30.06.2013 itself. The judgment referred to by the petitioner in State of Tamil Nadu, rep. by its Secretary to Government, Finance Department v. M. Balasubramaniam, reported in CDJ 2012 MHC 6525, was passed under similar circumstances on 20.09.2012, wherein this Court confirmed the order passed in W.P. No. 8440 of 2011 allowing the writ petition filed by the employee, by observing that the employee had completed one full year of service from 01.04.2002 to 31.03.2003, which entitled him to the benefit of increment which accrued to him during that period.
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 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.”
15. In the above order of the Madras High Court, it was held that as the petitioner therein 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, though the date of increment fell due on the next date of his retirement, the petitioner would be given one notional increment for the period from 01.07.2012 to 30.06.2013, as he had completed full one year of service, for the purpose of pensionary benefits and not for any other purpose. The said order of the Madras High Court was challenged in SLP (C) Diary No(s). 22283 of 2018 and the apex Court dismissed the said SLP preferred by the Union of India and upheld the order of the Madras High Court in P. Ayyamperumal (supra). Although a review petition was filed by the Union of India bearing R.P. (C) No. 1731 of 2019, the same was dismissed vide order dated 08.08.2019. Thereby, the order of the Madras High Court has reached its finality by dismissal of the SLP as well as the review petition preferred by the Union of India.
16. Similarly, in the case of Yogendra Singh Bhadauria, mentioned supra, Madhya Pradesh High Court, by applying the ratio decided in P. Ayyamperumal (supra), directed as follows:—
“(i) The official respondents are directed to release the increment due to the appellants w.e.f. 01.07.2014, 01.07.2010, 01.07.2013, 01.07.2012, 01.07.2015 and 01.07.2015 respectively.
(ii) The pension be refixed after adding the grant of aforesaid increment and the arrears of pension be paid to the petitioners.
(iii) The petitioners are entitled to interest over the aforesaid arrears of pension @ 10% p.a. from the date the arrears became due till their payment.
(iv) Despite the rule position having been explained by the Division Bench of Madras High Court on 15.09.2017 against which Supreme Court declined to entertain the SLP of the employer on 23.07.2018, the official respondents ought to have offered the benefit of one increment to the petitioners without compelling the petitioners to approach the court in the evening of 10 WA 645-2020 their life. Not having done so, the official respondents have failed to adhere to the policy of the Government of being a welfare State and therefore, respondents are liable to pay cost of this litigation to the petitioners which are quantified at Rs. 5000/- to each of the petitioners.
(v) The aforesaid direction be complied with within a period of 60 days from the date of receipt copy of this order.”
17. In Gopal Singh (supra), the Delhi High Court in paragraph-10 of the order dated 23.01.2020 directed as follows:
“10. Accordingly, the impugned order dated 3rd May, 2019 is set aside. A direction is issued to the Respondents to grant notional increment to the petitioner with effect from 1st July, 2019. The petitioner's pension will consequentially be re-fixed. The appropriate orders will be issued and arrears of pension will be paid to the petitioner within a period of 6 weeks, failing which the respondents would be lilable to simple interest at 6 % per annum on the arrears of period of delay.”
18. The cumulative effect of the ratio decided in all the aforementioned judgments is that if a person continues in service and completes one year, he shall be entitled to get the notional increment to be fixed, as on the next date he is no more in employment, for the purpose of grant of pensionary benefits.
19. The stand taken in the present case by the opposite parties is akin to the objection raised in P. Ayyamperumal (supra) by Union of India contending that the petitioner being no more in employment on the date the increment fallen due, even though he had completed 12 months of service and on attaining the age of superannuation he was retired. Having considered such contention, the Madras High Court passed an order to fix the notional increment for pensionary benefits and extend the same to the petitioner therein. In such view of the matter, this Court is of the view that the representations filed by the petitioner have been rejected on 14.07.2020 in Annexure-3 without complying with the provisions of law, as have been settled by the different High Courts as well as the apex Court and, thereby, the same cannot sustain in the eye of law.
20. In view of the facts and law, as discussed above, this Court is of the considered view that the petitioner, having rendered service from 01.01.2019 to 31.12.2019 for a period of 12 months and his increment having due on 01.01.2020 and he having stood at par with P. Ayyamperumal (supra), is entitled to get the notional increment for the year i.e. from 01.01.2019 to 31.12.2019 for the purpose of pensionary benefits only. Accordingly, it is directed that the benefits admissible to the petitioner be re-fixed taking into account the notional increment admissible to the petitioner by 01.01.2020 and the same should be paid as early as possible by revising the pension as due, preferably within a period of 3 (three) months from the date of communication of this judgment. Consequentially, the order dated 14.07.2020 in Annexure-3, whereby the representations of the petitioner have been rejected, is liable to be quashed and is hereby quashed.
21. In the result, the writ petition is allowed. There shall be no order as to costs.
22. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the judgment available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No. 4587, dated 25 March, 2020 as modified by Court's Notice No. 4798 dated 15 April, 2021.
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