# Chandrapal Singh v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 780
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-09
- **Case number:** Writ - A No. 19066 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrapal-singh-v-state-of-u-p-ors-51982
- **Pages:** 6

## Headnote

Law
-
Assured
Career
Progression (ACP) - GO dated 05.11.2014
- Petitioner was retired from service on
31.10.2019, a day before, when he was
entitled to his third ACP on 01.11.2019 -
Third ACP sought for - Entitlement - Parity
with
increment
claimed
-
Held,
an
increment
is
part
of
a
government
servant's pay. It is an accretion to the pay
that is earned during the course of
employment over the period of one year,
subject
to
good
behaviour
of
the
government
servant
concerned
-
By
contrast, to what an increment is, ACP is
very different. It is not something provided
in the routine, though it does come as an
accretion to the emoluments payable at
specified intervals. ACP is a device that has
5 All. Chandrapal Singh Vs. State of U.P. & Ors.
781
been invented by the Government, as the
policy maker, to deal with the problem of
stagnation of government employees - If a
government servant, who has already
retired from service and becomes entitled
to his ACP, a day after his retirement, he
too has no right to it - The principle,
governing the grant of notional increment
in a case where increment falls due, a day
after retirement, would not apply to the
case of grant of ACP. (Para 9, 10 and 11)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

780 INDIAN LAW REPORTS ALLAHABAD SERIES
the sense that its decision on a question of
law even if erroneous may not be vulnerable
before the High Court in second appeal
because the jurisdiction of the High Court
has now ceased to be available to correct the
errors of law or the erroneous findings of the
first appellate court even on questions of law
unless such question of law be a substantial
one."

12. It
has
been
categorically
recorded by the High Court that the first
appellate court had considered the evidence
led on behalf of the parties and has given
findings to come to the conclusions arrived
at. It noted that the lower appellate court had
independently considered the evidence and
had given different findings on the issues
framed by the trial court and on the basis of
the arguments which were advanced before
it. It was further noted that there was
detailed discussion giving reasons for
affirming the order of the trial court.
Learned counsel for the appellants had
urged that the suit filed by the plaintiff was
not maintainable as the plaintiff was the
diocese represented by its procurator. It was
submitted that the plaintiff is not entitled to
any relief as was prayed for in the suit. This
point was not urged before the High Court
and, therefore, it would not consider
necessary to go into that aspect. Judged in
the background of legal principles set out
above, the judgment of the High Court does
not suffer from any infirmity."

22. In view of above and considering
the overall facts and circumstances of the
case this court is of the view that the trial
court has rightly and in accordance with law
considered and recorded findings on the
basis of pleadings and evidence adduced
before it including the evidence of D.W.2.
The impugned judgment and decrees passed
by the trial court as well as the appellate
court have rightly been passed in accordance
with law, which does not suffer from any
illegality or error. Thus the substantial
questions of law framed in this appeal are
answered accordingly. The appeal has been
filed on misconceived and baseless grounds
and it is liable to be dismissed.

23.

The
Second
Appeal
is,
accordingly, dismissed. No order as to cost.
----------
(2024) 5 ILRA 780
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 19066 of 2023

Chandrapal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Subhash
Chandra
Srivastava,
Sri
Rampyare Lal Srivastava

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Assured
Career
Progression (ACP) - GO dated 05.11.2014
- Petitioner was retired from service on
31.10.2019, a day before, when he was
entitled to his third ACP on 01.11.2019 -
Third ACP sought for - Entitlement - Parity
with
increment
claimed
-
Held,
an
increment
is
part
of
a
government
servant's pay. It is an accretion to the pay
that is earned during the course of
employment over the period of one year,
subject
to
good
behaviour
of
the
government
servant
concerned
-
By
contrast, to what an increment is, ACP is
very different. It is not something provided
in the routine, though it does come as an
accretion to the emoluments payable at
specified intervals. ACP is a device that has
5 All. Chandrapal Singh Vs. State of U.P. & Ors.
781
been invented by the Government, as the
policy maker, to deal with the problem of
stagnation of government employees - If a
government servant, who has already
retired from service and becomes entitled
to his ACP, a day after his retirement, he
too has no right to it - The principle,
governing the grant of notional increment
in a case where increment falls due, a day
after retirement, would not apply to the
case of grant of ACP. (Para 9, 10 and 11)

Writ petition dismissed. (E-1)

List of Cases cited:

1. The Director (Admn. and HR) KPTCL & ors.Vs
C.P. Mundinamani & ors.; 2023 SCC OnLine SC
401

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition prays that a
mandamus be issued to the Chief Engineer,
Minor Irrigation, Department of Irrigation,
Government of U.P., Lucknow and the
Executive Engineer, Minor Irrigation Wing,
Hapur to sanction for the petitioner his third
assured career progression.

2. The petitioner was appointed as an
Assistant Boring Technician on 16.02.1986 in
the office of the Chief Development Officer,
Meerut vide letter dated 12.02.1986. He
superannuated on 31.10.2019 from the post of
a Junior Engineer, Minor Irrigation, posted at
Hapur. The first Assured Career Progression
(for short, 'ACP') was granted to the petitioner
on completion of 14 years' satisfactory service
and the first financial up-gradation was fixed
on 01.11.2001. The second ACP was
sanctioned and granted on 01.11.2009 upon
completion of 16 years' satisfactory service.
The second financial up-gradation was
determined in the pay band of Rs.930034800/- with a grade pay of Rs.4600/-. The
Chief Engineer, Minor Irrigation, Department
of Irrigation issued an office order No. G183/Estt.-03 (appointment post) 2018-19
dated 29.06.2018, promoting the petitioner
from the post of a Boring Technician to that of
a Junior Engineer. According to the petitioner,
in terms of the rules applicable, he was entitled
to a third ACP on 05.11.2014 upon completion
of 26 years of satisfactory service, which he
did complete on 31.10.2019. The third
financial up-gradation would place him in the
pay band of Rs.9300-34800/-, with a grade
pay
of
Rs.4800/-.
The
petitioner
acknowledges that he was promoted by the
Chief Engineer on 29.06.2018 from the post of
a Boring Technician to a Junior Engineer,
carrying Pay Band-II, Level-VI, analogous to
the pay-scale of Rs.9300-34800/-, grade pay
of Rs.4200/-. The revised pay-matrix for
Level-VI carries the pay scale of Rs.35400112400/- with a probation period of two years.
The petitioner says that he has been deprived
of his third ACP, ignoring his satisfactory
service, which employees junior to the
petitioner have been extended by office order
dated
26.04.2023.
The
petitioner
has
completed 26 years' satisfactory service,
entitling him to the third ACP, that has fallen
due on 31.10.2019, as already said. There
being inaction in the matter of award of the
third ACP, the petitioner represented the
matter both to the Chief Engineer, Minor
Irrigation,
Department
of
Irrigation,
Government of U.P., Lucknow and the
Executive Engineer, Minor Irrigation Wing,
Hapur, but to no avail. The petitioner
buttresses his claim to the third ACP at the end
of the 26 years of satisfactory service, relying
upon a Government Order dated 05.11.2014.
There is a mention of this order in paragraph
No.10 of the writ petition, but no copy thereof
has been annexed.

3. This Court on 16.11.2023 issued
notice of motion to the Chief Engineer,
Minor Irrigation, Department of Irrigation,
Government of U.P., Lucknow and the
782 INDIAN LAW REPORTS ALLAHABAD SERIES
Executive Engineer, Minor Irrigation Wing,
Hapur, requiring them to show cause by
their separate affidavits within a week why
the petitioner's third ACP had not been
granted. In compliance, the Chief Engineer
and the Executive Engineer, respondent
Nos.2 and 3, respectively, filed their
affidavits, both dated 22.11.2023. These
affidavits have been treated as counter
affidavits. The petitioner has not filed a
rejoinder. On the 24th of November, 2023,
parties having exchanged pleadings, this
petition was admitted to hearing, which
proceeded
forthwith.
Judgment
was
reserved.

4.

Heard
Mr.
Rampyare
Lal
Srivastava,
learned
Counsel
for
the
petitioner
and
Mr.
Pramod
Kumar
Srivastava,
learned
Additional
Chief
Standing Counsel appearing on behalf of the
respondents.

5. In the affidavit filed on behalf of the
Chief
Engineer,
Minor
Irrigation,
Department of Irrigation, Government of
U.P., Lucknow, the relevant facts brought
out are that the petitioner was appointed an
Assistant Boring Technician on 17.02.1986
by the Chief Development Officer, Meerut
vide his order dated 12.02.1986. The
Executive
Engineer,
Minor
Irrigation
Division, Meerut, by his order dated
30.06.1995, granted a notional promotion to
the petitioner on the post of a Boring
Technician
w.e.f.
01.11.1993.
The
Executive
Engineer,
Minor
Irrigation
Division, Meerut, by an order of 8th May,
2002, granted an additional increment to the
petitioner upon completion of 8 years of
regular satisfactory service on the post of a
Boring Technician. This benefit was
extended w.e.f. 01.11.2001. According to
the Chief Engineer, in accordance with the
Government Order dated 01.10.2009, the
petitioner was extended the pay scale of
Rs.5000-150-8000/- w.e.f. 01.11.2007 vide
order dated 27.12.2007 passed by the the
Executive
Engineer,
Minor
Irrigation
Division, Meerut on completing 14 years'
regular satisfactory service. It was vide order
dated 10.09.2012, the Executive Engineer,
Minor Irrigation Division, Meerut granted
the second ACP to the petitioner, relating to
the post of a Boring Technician in the grade
pay of Rs.4600/-. This was granted to the
petitioner w.e.f. 01.11.2009 on completing
16 years of regular service.

6. It is pointed out that the
petitioner has come up with a grievance that
certain records show that five Junior
Engineers, whose details are given in the
writ petition, have been granted the benefit
of the third ACP on 01.11.2019. It is the
respondents' case that out of the five Junior
Engineers, three, that is to say, Om Prakash
Singh, Brajpal Singh and Vinod Kumar
Sharma, retired on 31.10.2020, 31.07.2021
and 31.03.2023, respectively. The two
others, to wit, Mehak Singh and Tejpal
Singh, are scheduled to retire on 30.11.2025
and 31.12.2025, respectively. They are still
in service. Thus, the benefit of the third
ACP, to each of the above mentioned five
Junior Engineers, has been granted on
account of each of them being in service on
the date when the benefit was given. It is
next averred on behalf of the respondents
that the benefit of the third ACP was due to
the petitioner on 01.11.2019, but he retired
from service on 31.10.2019. It is for the said
reason that benefit of the third ACP could
not be extended to him.

7. The learned Counsel for the
petitioner, however, argues that the principle
applicable in case of increment, that is
earned during the entire year and becomes
payable on the following day after
5 All. Chandrapal Singh Vs. State of U.P. & Ors.
783
retirement, is granted notionally to the
retiring employee for the purpose of
determining his post retiral benefits, should
also be extended to the case of award of the
ACP. He submits that it is not disputed that
the petitioner would have been entitled to his
third ACP on 01.11.2019, but he retired
from service on 31.10.2019. Learned
Counsel for the petitioner has relied upon
the authority of the Supreme Court in The
Director (Admn. and HR) KPTCL and
others v. C.P. Mundinamani and others,
2023 SCC OnLine SC 401 in support of his
contention.

8. The learned Counsel for the
respondents has, however, argued that the
grant of an ACP is entirely different from
earning of increments and the principle in
C.P. Mundinamani (supra) would not
apply to the case of award of ACP at all. The
principle in C.P. Mundinamani regarding
payment of annual increment to an
employee, who had earned it throughout the
year, but retires from service on the
succeeding day, when it becomes payable,
holding him entitled to it notionally, has
been laid down by the Supreme Court thus:

"20. Similar view has also been
expressed by different High Courts, namely,
the Gujarat High Court, the Madhya Pradesh
High Court, the Orissa High Court and the
Madras
High
Court.
As
observed
hereinabove, to interpret Regulation 40(1)
of the Regulations in the manner in which
the appellants have understood and/or
interpretated would lead to arbitrariness and
denying a government servant the benefit of
annual increment which he has already
earned while rendering specified period of
service with good conduct and efficiently in
the last preceding year. It would be
punishing a person for no fault of him. As
observed hereinabove, the increment can be
withheld only by way of punishment or he
has not performed the duty efficiently. Any
interpretation
which
would
lead
to
arbitrariness
and/or
unreasonableness
should be avoided. If the interpretation as
suggested on behalf of the appellants and the
view taken by the Full Bench of the Andhra
Pradesh High Court is accepted, in that case
it
would
tantamount
to
denying
a
government servant the annual increment
which he has earned for the services he has
rendered over a year subject to his good
behaviour. The entitlement to receive
increment therefore crystallises when the
government servant completes requisite
length of service with good conduct and
becomes payable on the succeeding day. In
the present case the word "accrue" should be
understood liberally and would mean
payable on the succeeding day. Any
contrary view would lead to arbitrariness
and unreasonableness and denying a
government servant legitimate one annual
increment though he is entitled to for
rendering the services over a year with good
behaviour and efficiently and therefore,
such a narrow interpretation should be
avoided. We are in complete agreement with
the view taken by the Madras High Court in
the case of P. Ayyamperumal (supra); the
Delhi High Court in the case of Gopal Singh
(supra); the Allahabad High Court in the
case of Nand Vijay Singh (supra); the
Madhya Pradesh High Court in the case of
Yogendra Singh Bhadauria (supra); the
Orissa High Court in the case of AFR Arun
Kumar Biswal (supra); and the Gujarat High
Court in the case of Takhatsinh Udesinh
Songara (supra). We do not approve the
contrary view taken by the Full Bench of the
Andhra Pradesh High Court in the case of
Principal
Accountant-General,
Andhra
Pradesh (supra) and the decisions of the
Kerala High Court in the case of Union of
India
v.
Pavithran
(O.P.(CAT)
No.
784 INDIAN LAW REPORTS ALLAHABAD SERIES
111/2020 decided on 22.11.2022) and the
Himachal Pradesh High Court in the case of
Hari Prakash v. State of Himachal Pradesh
(CWP
No.
2503/2016
decided
on
06.11.2020)."

9. An increment by its nature is
generically
different
from
ACP.
An
increment is part of a government servant's
pay. It is an accretion to the pay that is
earned during the course of employment
over the period of one year, subject to good
behaviour of the government servant
concerned. An increment is a routine
accretion, that accrues on regular interval, of
which a government servant may be
deprived in certain contingencies, such as
the imposition of a minor punishment.
Therefore, if a government servant works
throughout the year, completing the period
of time entitling him to increment but retires
on the day it would actually be added to his
salary, the principle of notionally granting
that increment has been evolved by Courts,
so as to eschew arbitrariness. If merely for
the reason that a government servant retires
on the day, when the increment would have
been added to his salary, if he were in
service, but is deprived of it due to
retirement though he has already earned it
over the period of time of one year, until the
day preceding his retirement, he has been
held entitled to it notionally by preponderant
authority in the High Courts, and, of course,
the final approval of this view by the
Supreme Court.

10. By contrast, to what an
increment is, ACP is very different. It is not
something provided in the routine, though it
does come as an accretion to the
emoluments payable at specified intervals.
ACP is a device that has been invented by
the Government, as the policy maker, to deal
with
the
problem
of
stagnation
of
government employees. There are many
cadres and posts in government service,
where there are no promotional avenues. It
is to remove stagnation that the benefit of
ACP is given at specified intervals in three
instances. It is a substitute for promotion, or
so to speak, a kind of promotion itself. The
essence of ACP, therefore, is stagnation of a
government employee on a particular post
with no avenues of promotion that entitles
him to it at the end of a particular period of
time. In the nature of things, therefore, a
government servant, who retires from
service, even a day before he becomes
entitled to his next ACP, would not be
entitled to it. We think that the test about
entitlement to an ACP lies in the fact if on
the date a government servant demands it,
would he be entitled to a consideration for
promotion.
Therefore,
a
government
servant, who has already become entitled to
promotion, say a few weeks or days before
his
retirement
from
service
and
is
wrongfully denied
consideration,
may
enforce his right to be notionally considered
for promotion. Such a government servant
may also enforce his right to receive his
ACP, if it is a case of stagnation and he is
entitled to it under the rules.

11. Let us take the case of a
government servant, who says that under the
rules he would be entitled to promotion on
the date following his retirement. Would he
be entitled to enforce his right in a Court
against the employers to consider his case
for promotion, albeit notionally. This Court
is of opinion that the answer is an obvious
no. If a government servant, who has already
retired from service and becomes entitled to
his ACP, a day after his retirement, he too
has no right to it. The right to be considered
for promotion under the rules has to be
judged for a government servant, who is still
in harness when the right accrues. Else, there
5 All. Kammo Since Deceased & Ors. Vs. Shahmim Ahmad & Anr.
785
is no such right. No authorities, apart from
those relating to the grant of notional
increments in the matter of annual
increments, were brought to this Court's
notice during the course of arguments and
we do not think that the principle, governing
the grant of notional increment in a case
where increment falls due, a day after
retirement, would apply to the case of grant
of ACP.

12. In this view of the matter, there
is no force in this petition. It fails and is
dismissed.

13. There shall be no order as to costs.
----------
(2024) 5 ILRA 785
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Second Appeal No. 340 of 2024

Kammo Since Deceased & Ors.
 ...Appellants
Versus
Shahmim Ahmad & Anr. ...Respondents

Counsel for the Appellants:
Ajay Kumar Sharma

Counsel for the Respondents:
Utpal Chatterji

A. Civil Law - Code of Civil Procedure, 1908
- ORDER VIII, Rule 4, 5 - Evasive denial in
Written statement - Order 8 Rule 4 of C.P.C.
mandates that defendants must make
specific denials. Order 8 Rule 5 of C.P.C.
mandates that every allegation of fact in
the plaint should be denied specifically or
by necessary implication, and if it is not
done, the said allegation shall be treated as
admitted.
In
the
instant
case,
the
Defendant
challenged
the
impugned
judgment on the ground that, as per the
waqf deed, the male descendant shall be
appointed as Mutawalli, and as Usman was
elder to plaintiff no. 2, therefore, Usman
could only be appointed as Mutawalli.
Court found that it was stated in paragraph
no. 1 of the plaint that plaintiff no. 2 was
the Mutawalli of plaintiff no. 1. In reply to
the aforesaid assertion in the plaint,
defendants in paragraph no. 1 of the
written statement have made a bald denial.
Court was of the view that such denial does
not come within the periphery of denial as
contemplated under Order 8 Rule 4 of
C.P.C. Court was of the view that the denial
about the appointment of plaintiff no. 2 as
Mutawalli was only an evasive denial,
inasmuch as if the defendants were
disputing
the
appointment
and
competence of plaintiff no. 2 to act as
Mutawalli of plaintiff no. 1, the defendants
should
have
specifically
pleaded
the
grounds on which they alleged that
plaintiff no. 2 could not be appointed as
Mutawalli. (Para 32, 33, 34)

B. Waqf Act, 1995, S. 83 - Jurisdiction -
Appellant argued that an amendment in
Section 83 of the Waqf Act, 1995 was
incorporated by Act No. 27 of 2013, and
sub-section
1
of
Section
83
was
substituted, and after the amendment, the
civil appeal preferred by the plaintiff stood
abated, and the remedy of the plaintiff was
to file a fresh suit before the Waqf Tribunal.
The question of jurisdiction was not raised
by the defendants before the court below.
However, since the question of jurisdiction
raised by the appellant was a pure question
of law, therefore, the Court proceeded to
consider the same. The amendment was
incorporated w.e.f. 01.11.2003. Civil court
decided the lis between the parties on
06.08.2011 by dismissing the suit and an
appeal
was
filed
by
the
plaintiff/
respondents. Parties participated in the
suit voluntarily, and the suit was decided
by the competent court. Appeal is a
continuation of the suit, but the appeal
should always lie to a higher forum. Since
the amending act is silent about the forum
of appeal in cases where the suit had been