# Nand Vijay Singh & Ors v. Union of India. & Ors

- **Citation:** (2021) 7 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-29
- **Case number:** Writ -A No. 13299 of 2020
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-vijay-singh-ors-v-union-of-india-ors-47149
- **Pages:** 13

## Headnote

A. Service Law - Annual increment to
retiring employees - Fundamental Rules -
Rule 9(21) - Civil Service Regulations:
Articles 43, 151 to 153; Central Civil
Services (Pension) Rules - Scheme should
not be construed in a manner that it
offends
the
spirit
of
reasonableness
enshrined in Article 14 of the Constitution
of India. (Para 24)

The statutory rules cannot be read in a
manner
such
that
substantive rights
earned by a central Government employee
under the Rules are denied to him. A
Government servant retiring on 30th June would
be entitled to benefit of increment falling due on
1st July on account of his good conduct for the
requisite length of time i.e. one year, in a
regime of progressive appointment. (Para 25)

The petitioners', therefore, would be entitled to
the grant of increment payable on 1st July
2019, notwithstanding their superannuation on
30th June, 2019.

B. Annual increment though is attached to
the post & becomes payable on the day
following that on which it is earned but
the day on which increment accrues or
becomes payable is not conclusive or
determinative.
In
the
statutory
scheme
governing progressive appointment increment
becomes due for the services rendered over a
year by the Government servant subject to his
good behavior. 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. (Para 23)

Law is settled that where entitlement to
receive a benefit crystallises in law its
denial would be arbitrary unless it is for a
valid reason. The only reason for denying
benefit of increment, culled, out from the
scheme is that the central Government servant
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
841
is not holding the post on the day when the
increment becomes payable. This cannot be a
valid ground for denying increment since the
day following the date on which increment is
earned only serves the purpose of ensuring
completion of a year's service with good
conduct and no other purpose can be culled out
for it. The concept of day following which the
increment is earned has otherwise no purpose
to achieve. (Para 24)

C. Words and Phrases - "Pay" - Pay
defined in F.R. 9(21) means the amount
drawn monthly by a central government servant
and includes the increment. (Para 20)

"Progressive appointment" - Article 43 of
CSR defines progressive appointment to mean
an appointment wherein the pay is progressive,
subject to good behaviour of an officer. It
connotes
that
pay
rises,
by
periodical
increments from a minimum to a maximum.

Writ petition allowed. (E-3)

Precedent followed:

## Text

840 INDIAN LAW REPORTS ALLAHABAD SERIES
2004, 2949 (SS) of 2010, 6549 (SS) of
2011, 4397 (SS) of 2011 and 7561 (SS) of
2014 the petitioners claim for the grant of
certain benefits.

83. On examination of the material
available on record, it is apparent that the
petitioners have been provided certain
benefits and are claiming scheme of
Annual Carrer Progression and in this
regard,
they
have
approached
the
competent authority and the claim set up by
them are lying pending consideration,
therefore, this Court is of the opinion, no
useful purpose will be served in keeping
the writ petitions pending any further.

84. Accordingly, the writ petitions i.e.
Writ Petition Nos.6550 (SS) of 2014, 670
(SS) of 2008, 1613 (SS) of 2008, 1021 (SS)
of 2007, 2771 (SS) of 2013, 6913 (SS) of
2004, 2949 (SS) of 2010, 6549 (SS) of
2011, 4397 (SS) of 2011 and 7561 (SS) of
2014 are finally disposed of with the
direction to the respondents to consider the
claim of the petitioners and to pass
appropriate, reasoned and speaking order
after affording opportunity of hearing to the
petitioners within a period of three months
from the date of production of a certified
copy of this order.
----------

(2021)07ILR A840
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.06.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ -A No. 13299 of 2020

Nand Vijay Singh & Ors. ...Petitioners
Versus
Union of India. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Jagnath Singh

Counsel for the Respondents:
Sri Vivek Kumar Rai, Sri Arun Kumar Gupta

A. Service Law - Annual increment to
retiring employees - Fundamental Rules -
Rule 9(21) - Civil Service Regulations:
Articles 43, 151 to 153; Central Civil
Services (Pension) Rules - Scheme should
not be construed in a manner that it
offends
the
spirit
of
reasonableness
enshrined in Article 14 of the Constitution
of India. (Para 24)

The statutory rules cannot be read in a
manner
such
that
substantive rights
earned by a central Government employee
under the Rules are denied to him. A
Government servant retiring on 30th June would
be entitled to benefit of increment falling due on
1st July on account of his good conduct for the
requisite length of time i.e. one year, in a
regime of progressive appointment. (Para 25)

The petitioners', therefore, would be entitled to
the grant of increment payable on 1st July
2019, notwithstanding their superannuation on
30th June, 2019.

B. Annual increment though is attached to
the post & becomes payable on the day
following that on which it is earned but
the day on which increment accrues or
becomes payable is not conclusive or
determinative.
In
the
statutory
scheme
governing progressive appointment increment
becomes due for the services rendered over a
year by the Government servant subject to his
good behavior. 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. (Para 23)

Law is settled that where entitlement to
receive a benefit crystallises in law its
denial would be arbitrary unless it is for a
valid reason. The only reason for denying
benefit of increment, culled, out from the
scheme is that the central Government servant
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
841
is not holding the post on the day when the
increment becomes payable. This cannot be a
valid ground for denying increment since the
day following the date on which increment is
earned only serves the purpose of ensuring
completion of a year's service with good
conduct and no other purpose can be culled out
for it. The concept of day following which the
increment is earned has otherwise no purpose
to achieve. (Para 24)

C. Words and Phrases - "Pay" - Pay
defined in F.R. 9(21) means the amount
drawn monthly by a central government servant
and includes the increment. (Para 20)

"Progressive appointment" - Article 43 of
CSR defines progressive appointment to mean
an appointment wherein the pay is progressive,
subject to good behaviour of an officer. It
connotes
that
pay
rises,
by
periodical
increments from a minimum to a maximum.

Writ petition allowed. (E-3)

Precedent followed:

1. P. Ayyamperumal Vs Registrar, CAT, Writ
Petition No. 15732 of 2017, decided on
15.09.2017 (Para 6)

2. Gopal Singh Vs U.O.I. & ors., Writ Petition (C)
10509 of 2019, decided on 23.01.2020 (Para 9)

3. P.P. Pandey Vs St. of U.P. & ors., 2021 (1)
ADJ 646 (Para 10)

Precedent distinguished:

1. U.O.I. Vs G.C. Yadav, Writ Petition (C) 9062
of 2018, decided on 23.10.2018 (Para 11, 17)

2. S. Banerjee Vs U.O.I., 1989 Supplementary
(2) SCC 486 (Para 17) & ors. connected petition,
decided on 06.11.2020 (Para 11)

3.
Principal
Accountant
General,
Andhra
Pradesh, Hyderabad & anr. Vs C. Subba Rao &
ors., 2005 (4) ESC 2862 (Para 11, 12)

Precedent referred:
1.
Kunhayammed
&
ors.
Vs
Sri
Mahadeshwara Sahakara Sakkare Karkhane
Limited, Kollegal, (2019) 4 SCC 376 (Para 16)

2. St. of Orissa & anr. Vs Dhirendra Sunder Das
& ors., (2019) 6 SCC 270 (Para 16)

3. U.O.I. Vs M.V. Mohanan Nair, (2020) 5 SCC
421 (Para 16)

Present petition assails orders dated
24.02.2020, 27.01.2020 and 02.03.2020,
passed
by
Senior
Divisional
Security
Commissioner, Railway Protection Force,
North Central Railway, Allahabad.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. All the four petitioners have
superannuated from Railway Protection
Force, on 30th June, 2019 from the post of
Inspector/Sub
Inspector/Assistant
Sub
Inspector
and
Head
Constable,
respectively. They claim to have worked
for the entire year i.e. 1.7.2018 to
30.6.2019, with good conduct, and have
thus raised a claim for grant of annual
increment for the year 2018-19. Annual
increment for the year 2018-19, however,
fell due under the relevant rules only on
1.7.2019, by when the petitioners had
superannuated.
Their
claim
has
consequently been rejected by the Senior
Divisional
Security
Commissioner,
Railway Protection Force, North Central
Railway, Allahabad vide orders dated
24.2.2020, 27.1.2020 and 2.3.2020. These
orders are challenged in the present writ
petition.

2. A counter affidavit and later a
supplementary-counter affidavit has been
filed in the matter on behalf of the
respondents, to which a rejoinder affidavit
has been filed by the writ petitioners. With
842 INDIAN LAW REPORTS ALLAHABAD SERIES
the consent of learned counsel for the
parties this petition is taken up for final
disposal, at the admission stage itself. I
have heard Sri J.N. Singh, learned counsel
for the petitioners and Sri Arun Kumar
Gupta, learned counsel for the respondents
and perused the materials on record.

3 . Petitioner no. 1 was initially
appointed as Constable in the respondent
Railway Protection Force on 29.7.1978 and
was promoted to the post of Assistant Sub
Inspector in the year 1989. He was further
promoted to the post of Sub Inspector in the
year 2001 and then promoted as Inspector in
the year 2010. He has superannuated on
30.6.2019. Similarly, petitioner No. 2 was
appointed as Constable on 1.8.1978 and has
been promoted to higher posts from time to
time. He has superannuated on 30.6.2019
from the post of Sub Inspector. Petitioner No.
3 was appointed as Constable in the same
Force on 15.10.1979 and has ultimately
superannuated on 30.6.2019 from the post of
Assistant Sub Inspector. Petitioner No. 4 was
appointed as Constable on 4.11.1980 and has
superannuated on 30.6.2019 from the post of
Head Constable.

4. Pension and other retiral benefits
have been sanctioned to all the petitioners
vide orders dated 26.6.2019 and 27.6.2019,
w.e.f. 1.7.2019. Annual increment payable
for the completed satisfactory work during
recruitment year 2018-19, however, has been
denied to them. According to respondents
annual increment for the satisfactory working
in the recruitment year fell due only on
1.7.2019 by when petitioners were not in
employment, as such, the annual increment
for the year 2018-19 is not due to them.

5 . Issue as to whether annual
increment payable under the Service Rules
on 1st of July, upon satisfactory working
for the previous year 1st July to 30th June
could be paid to the employees retiring on
30th June has been examined by different
High Courts and there appears to be lack of
uniformity in the views so expressed.
Learned counsel for the parties have relied
upon judgments which supports their
respective claim. It would, therefore, be
appropriate to proceed with deliberations
on the issue after noticing the judgments
available on the subject, that are cited
before me.

6. Learned counsel for the petitioners
have relied upon a Division Bench
Judgment of the Madras High Court in P.
Ayyamperumal Vs. Registrar, CAT, in
Writ Petition No. 15732 of 2017, decided
on 15.9.2017, wherein the Court has
allowed payment of annual increment to a
government
servant,
in
similar
circumstances, wherein also he retired on
30th of June and under the Rules payment
of annual increment fell due on the 1st of
July, next. The reasoning is assigned in
paragraphs 6 & 7 of the judgment, which is
reproduced hereinafter:-

"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 and
others 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
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
843
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."

7. A special leave petition (civil)
preferred against the aforesaid judgment
was dismissed in limine by the Supreme
Court on 23.7.2018 vide following order:-

"Delay condoned.

On the facts, we are not inclined
to interfere with the impugned judgment
and order passed by the High Court of
Judicature at Madras.

The special leave petition is
dismissed."

8. A review petition filed in the matter
also got dismissed on 8.8.2019.

9 . The Judgment of Madras High
Court has been followed by a Division
Bench of Delhi High Court in Gopal
Singh Vs. Union of India and others in Writ
Petition (C) 10509 of 2019, decided on
23.1.2020.

10. In P. Ayyamperumal (supra) the
Court placed reliance upon an earlier order
of the same High Court to hold that once
the employee had completed one full year
of service as on 30.6.2013, the benefit of
increment earned on the basis of such
completed service of one year cannot be
denied only because such increment fell
due on 1.7.2013, by when the government
servant had retired. Petitioners submit that
the ratio laid down in the case of P.
Ayyamperumal (supra) as followed by the
Delhi High Court in the case of Gopal
Singh (supra) is squarely applicable in the
facts of the present case and, therefore, the
petitioners are entitled to the benefit of
increment which fell due on 1.7.2019.
Reliance is also placed upon a judgment of
Lucknow Bench of this Court in P.P.
Pandey Vs. State of U.P. and others,
2021(1)ADJ 646 wherein also the Court
has taken a similar view.

11.

Learned
counsel
for
the
respondent, on the other hand, places
reliance
upon
a
Delhi
High
Court
Judgment, dated 23.10.2018, in the case of
Union of India Vs. G.C. Yadav, Writ
Petition (C) 9062 of 2018, decided on
23.10.2018. Learned counsel also places
reliance Upon a Division Bench Judgment
of Himachal Pradesh High Court in Hari
Prakash Vs. State of Himachal Pradesh and
others, CWP No. 2503 of 2016 and other
connected petition, decided on 6.11.2020.
The Himachal Pradesh High Court has, in
turn, followed a Full Bench Judgment of
Andhra Pradesh High Court in the case of
Principal Accountant General, Andhra
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradesh, Hyderabad and another Vs. C.
Subba Rao and others reported in 2005(4)
ESC 2862. The Court's have opined that as
government servant retiring on last day of
the preceding month is deemed to have
become pensioner on the next date, as such,
he ceases to be borne on the establishment
w.e.f beginning of the first day of the
succeeding month, and would not be
entitled to payment of annual increment in
pay.

12. The Full Bench of Andhra
Pradesh High Court in the case of Principal
Accountant
General
(Supra)
has
meticulously
noticed
all
applicable
provisions operating in the field. This Court
has the benefit of erudite judgment of
Hon'ble Mr. Justice V.V.S. Rao of Andhra
Pradesh High Court on the issue and the
statutory scheme noticed therein can safely
be relied upon for adjudicating the question
raised in this petition. Following two issues
fell for consideration before the Andhra
Pradesh High Court:

"I.
Whether
a
Government
servant who retires on the last working day
of the preceding month and whose annual
increment falls due on the first of the
succeeding month is entitled for sanction of
annual increment for the purpose of
pension and gratuity?

II. Whether a retired Government
servant is entitled for revised rate of D.A.
which
comes
into
force
after
such
Government servant retires from service on
attaining the age of superannuation?"

13. Paragraphs 12 to 17 of the
Judgment refers to the statutory scheme on
the first question formulated for consideration
by the full bench and are reproduced
hereinafter:-

"12. Keeping in view some of the
relevant service law principles mentioned
hereinabove, a reference has to necessarily be
made to the relevant Rules, which fall for
consideration.
First
set
of
Rules
is
Fundamental Rules applicable to all Central
Government Servants. Second set of Rules is
Central Civil Services (Pension) Rules, and
thirdly Civil Services Regulations. We
propose to examine the issue with reference
to Fundamental Rules and Pension Rules
separately and view the controversy in juxta
position of all these Rules

Fundamental Rules

13. Fundamental Rules are core
Rules governing all general conditions of
service like pay, leave, deputation, retirement
and dismissal, removal and suspension. All
Central Government employees are governed
by these Rules. If there are Special Rules
governing a particular "service" and in event
conflict with Fundamental Rules, Special
Rules would prevail, for generalia specialibus
non derogant.

14. F.R.9 contains definitions of
the terms used in Fundamental Rules (FR
9(23), (24), (25) and (28) define the terms
'Personal Pay' 'Presumptive Pay', 'Special
Pay' and 'Substantive Pay), F.R. 9(6), (21)
and (31) define the terms 'duty', 'pay' and
'time-scale of pay', which read as under:

9(6) "Duty " - (a) Duty includes-

(i) service as a probationer or
apprentice provided that such service is
followed by confirmation; and

(ii) joining time.

(b) A Government servant may
be treated as on duty-
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
845

(i) during a course of instruction or
training in India, or

(ii) in the case of a student,
stipendiary or otherwise, who is entitled to be
appointed to the service of Government on
passing through a course of training at a
University, College or School in India, during
the
interval
between
the
satisfactory
completion of the course and his assumption
of duties.

9(21) "Pay" (a) Pay means the
amount drawn monthly by a Government
servant as-

(i) the pay, other than special pay or
pay granted in view of his personal
qualifications, which has been sanctioned for a
post held by him substantively or in an
officiating capacity, or to which he is entitled
by reason of his position in a cadre; and

(ii) overseas pay, special pay and
personal pay; and

(iii) any other emoluments which
may be specially classed as pay by the
President

(b) Not printed.

(c) Not printed.

9(31) "Time-scale of pay"-

(a) Time-scale of pay means pay
which, subject to any condition prescribed in
these rules, rises by periodical increments
from a minimum to a maximum. It includes
the class of pay hitherto known as progressive.

(b) Time-scales are to be identical
if the minimum, the maximum, the period
of increment and the rate of increment
of the time-scales are identical.

(c) A post is said to be on the same
time-scale as another post on a time-scale if
the two time-scales are identical and the posts
fall within a cadre, or a class in a cadre, such
cadre or class having been created in order to
fill all posts involving duties of approximately
the same character or degree of responsibility,
in a service or establishment or group of
establishments, so that the pay of the holder of
any particular post is determined by his
position in the cadre or class and not by the
fact that he holds that post.

15. Chapter-Ill of the Fundamental
Rules
contains
"General
conditions
of
service". Chapter-IV deals with "Pay" whereas
Chapter-IX deals with "Retirement". F.R. 17.
and F.R.56 insofar as they are relevant read as
under:

F.R.17.
(1)
Subject
to
any
exceptions specifically made in these rules
and to the provision of sub-rule (2), an
officer shall begin to draw the pay and
allowances attached to his tenure of a post
with effect from the date when he assumes
the duties of that post, and shall cease to
draw them as soon as he ceases to
discharge those duties:

Provided that an officer who is
absent from duty without any authority
shall not be entitled to any pay and
allowances during the period of such
absence.

(2) The date from which a person
recruited overseas shall commence to draw
pay
on
first
appointment
shall
be
determined by the general or special orders
of the authority by whom he is appointed.
846 INDIAN LAW REPORTS ALLAHABAD SERIES

F.R. 56. (a) Except as otherwise
provided in this rule, every Government
servant shall retire from service on the
afternoon of the last day of the month in
which he attains the age of sixty years:

Provided that a Government
servant whose date of birth is the first of a
month shall retire from service on the
afternoon of the last day of the preceding
month on attaining the age of sixty years.

Provided
further
that
a
Government servant who has attained the
age of fifty-eight years on or before the
first day of May, 1998 and is on extension
in service, shall retire from the service on
expiry of his extended period of service, or
on the expiry of any further extension in
service granted by the Central Government
in public interest, provided that no such
extension in service shall be granted
beyond the age of 60 years.

(b) A workman who is governed
by these rules shall retire from service on
the afternoon of the last day of the month in
which he attains the age of sixty years.

16. As per F.R. 17, extracted
hereinabove, a Government servant shall
begin to draw the pay and allowances
attached to his post with effect from the
date when he assumes the duties of that
post until he ceases to discharge those
duties. "Pay" as defined in F.R.9(21)(a)
means, the amount drawn monthly by a
Government servant which also includes
the increment given at an anterior date.
Therefore, after retirement, a person will
not be entitled to any pay including the
increment that may be due from the
posterior date. F.R.22 regulates the initial
pay of a Government servant who is
appointed to a post in time-scale and
F.R.24 and F.R.26 regulate the sanction of
increment to a Government servant, who is
on duty. A reading of various Fundamental
Rules extracted hereinabove would show
that a person appointed as a Government
servant is entitled to pay in time- scale of
pay. He is also entitled to draw the
increment as per time-scale of pay as a
matter
of
course
as
long
as
such
Government servant discharges duties of
the post and such Government servant shall
not be entitled to draw the pay and
allowances attached to the post as soon as
he ceases to discharge those duties. In other
words, as per F.R. 17 read with F.Rs.24 and
26 annual increment is given to a
Government servant to enable him to
discharge
duty
and
draw
pay
and
allowances attached to the post. If such
Government servant ceases to discharge
duties by any reason say, by reason of
attainment of age of superannuation, such
Government servant will not be entitled to
draw pay and allowances. As a necessary
corollary, such employee would not be
entitled to any increment if it falls due after
the date of retirement, be it on the next day
of retirement or sometime thereafter.

17. F.R.56(a) creates a legal
fiction. Even if a person attains the age of
60 years on any day of the month, he shall
be retired on the afternoon of the last day of
the month. A Government servant, who
attains the age of 60 years on any day in a
month, is deemed to have not attained the
superannuation till the last day of the
month. In the case of a Government
servant, whose date of birth is first of a
month shall retire from service on the
afternoon of the last day of the preceding
month on attaining the age of 60 years. In
this
case,
actually
and
factually,
a
Government servant would have completed
the age of 60 years a day before the date on
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
847
which his date of birth falls. Therefore,
there are two situations. In the first
situation, a Government servant though he
attains the age of 60 years on any day of
the month, he is deemed to have not
attained such age till the afternoon of the
last day of that month. Assuming that such
a situation is not contemplated - as in the
case of persons holding constitutional
offices like, Judges of Supreme Court,
High
Court,
Members
of
Election
Commission, Comptroller and Auditor
General etc; if a Government servant is
retired on a day before the actual date of
birth on any day of the month and the
increment of such Government servant falls
on the first of the succeeding month, can he
claim annual grade increment? The answer
must be an emphatic "no". Because, by the
date on which the increment falls due, such
Government servant ceased to be a
Government servant. It is therefore logical
and reasonable to conclude that merely
because for the purpose of F.R.56(a), a
person is continued till the last date of the
month in which he attains the age of
superannuation, such an employee cannot
claim increment which falls due on the first
day
of
the
succeeding
month
after
retirement." (Emphasis supplied by me)

14. While referring to the second
question formulated for consideration, the
Full Bench noticed relevant provisions of
Central Civil Service (Pension) Rules and
also
the
methodology
followed
for
calculating pension and the manner of
calculating average emoluments. The Court
traced the origin of the Fundamental Rules
(hereinafter referred to as the "F.R.") and
Civil Service Rules in paragraph 23
onwards and went on to hold on the basis
of Articles 151 to 154 of Civil Service
Regulations (hereinafter referred to as the
"CSR") that increment accrues only
following the date on which it is earned and
as the employee is not in service on that
date, as such, the benefit of increment
cannot be extended. Paragraphs 23 to 26 of
the
judgment
are
also
reproduced
hereinafter:-

"23. Historically Government of
India Act 1919 by Sections 96-B(2)
empowered the Secretary of State for India
to make Rules regarding conditions of
service of Government servants. In exercise
of these powers, Fundamental Rules and
Civil Service (CCA) Rules were made
sometime in 1922. As mentioned earlier,
Fundamental Rules, especially in relation
to general conditions of service, like, pay,
leave, deputation, retirement, dismissal,
removal and suspension apply to all
Government
servants
whose
pay
is
debitable to civil estimates. Before the
promulgation
of
Fundamental
Rules,
Government of India made various Rules
and Regulations in relation to salary, leave,
pension
and
travelling
allowance
of
Government
servants.
These
Rules/
Regulations were published by authority
compendiously
as
Civil
Service
Regulations. After inauguration of the
Constitution of India, though President of
India promulgated different kinds of Rules
under the proviso to Article 309 of the
Constitution of India as well as Special
Rules governing All India Services and
Railway
Servants,
Civil
Service
Regulations continued to be applied by
various
departments
in
respect
of
conditions of service, if they are not
inconsistent with the Rules made under the
proviso to Article 309 of the Constitution
of India or relevant Statutes. It is not denied
before this Court that in all the Central
Government Departments and Wings, Civil
848 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Regulations continued to be
referred to and followed. There are as many
as 1163 Articles or Regulations dealing
with pay, allowance, leave and pension.
Chapter-II contains definitions of terms like
"Age" (Article 14), "Calendar Month"
(Article 18), "Progressive Appointment"
(Article 43) and the like.

24. As per Article 14, when an
officer is required to retire on attaining a
specified age, the day on which he attains
that age is reckoned as non-working day
and the officer must retire with effect from
and including that day. Article 18 defines
"Calendar Month" and also gives examples
for reckoning the period of six months
beginning on 28th February, 31st March,
1st April etc. The last day on which thirty
days is completed is taken as the
completion of the period of the Calendar
Month. Regulation 43 defines "Progressive
Appointment" to mean as an appointment
the pay of which is progressive, that is, pay
which, subject to the good behaviour of an
officer, rises, by periodical increments,
from a minimum to a maximum. Articles
151 to 154 deal with accrual of increment
and it would be better to read Articles 151
to 153.

151. An increment accrues from
the day following that on which it is
earned.

Exception.-An officer appointed
in England by the Secretary of State for
service in India receives the increment in
his pay in accordance with the terms of his
engagement.

152.
A
periodical
increment
should not be granted to an officer serving
on Progressive pay, as a matter of course,
or unless his conduct has been good. When
an increment is withheld, the period for
which it is withheld is at the discretion of
the authority having power to withhold,
who
will
also
decide
whether
the
postponement is or is not to have the effect
of similarly postponing future increments.
The authority having powers to withhold is,
in the case of ministerial and menial
officers, the head of the office, and in the
case
of
other
officers,
the
Local
Government, which may delegate the
powers to heads of departments or other
supervising officers.

153 (a). A proposal to grant an
increment of Progressive pay in advance of
the due date should always be scrutinized
with special jealousy: it is contrary to the
principle of Progressive pay to grant an
increments before it is due, and such a
grant should not be recommended or
allowed, excepting under circumstances
which would justify a personal allowance
to an officer whose pay is fixed, - that is to
say, seldom if ever.

(b)
The
powers
of
the
Government
of
India,
of
Local
Governments and of subordinate authorities
to grant a premature increment to an officer
are subject to the limits upto which each
such authority can raise the officer's
remuneration.

25. Thus a person who gets
progressive appointment would be entitled
to a periodical rise in the pay subject to
good behaviour and such increment accrues
from the day following that on which it is
earned. That is to say, a Government
servant would get and draw increment after
completion of one year. If the day for
payment of annual increment is first of
January, a Government servant would be
entitled for annual increment on 31st
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
849
December of that year, but the same would
accrue only from First January of next year
if such Government servant continues to be
in progressive appointment. The words
"Progressive Appointment" are crucial in
understanding the question as to whether a
person who retires would be entitled for
payment
of
annual
increment
in
Progressive Pay.

26. As held by us when conditions
of
service
are
governed
by
Rules
promulgated under proviso to Rule 309,
unless there is some unoccupied area, the
Statutory Rules alone are applicable. As per
the "Pension Rules" Government Servants
Pension is regulated by these Rules and
therefore we are not referring to Articles
348A to Articles 531 of the CS Regulations
which deal with "pension". We have referred
to relevant Articles in CS Regulations dealing
with increment only."

15. The Himachal Pradesh High Court
has substantially followed the reasoning
given by Full Bench of Andhra Pradesh High
Court to hold that as annual increment
becomes payable on the date when the
government servant was not in employment,
therefore, the benefit of annual increment
cannot be extended to him.

16. The Himachal Pradesh High Court
has not accepted the reasoning assigned by
the
Madras
High
Court
in
P.
Ayyamperumal (supra) and the summary
dismissal of SLP by the Supreme Court
against it has been held not to constitute
any binding precedent under Article 141 of
the Constitution of India. Reliance for such
purposes is placed upon the Constitution
Bench Judgment of the Supreme Court in
the case of Kunhayammed and others Vs.
State of Kerala and another, (2000) 6 SCC
359 followed in the case of Khoday
Distilleries Limited and others Vs. Sri
Mahadeshwara Sahakara Sakkare Karkhane
Limited, Kollegal, (2019) 4 SCC 376; State
of Orissa and another Vs. Dhirendra Sunder
Das and others, (2019) 6 SCC 270 and
Union of India Vs. M.V. Mohanan Nair,
(2020) 5 SCC 421.

17. The other judgment relied upon
by the respondents in support of their plea
is of the Delhi High Court in the case of
Union of India and others Vs. G.C. Yadav
(supra). The issue before the Delhi High
Court was distinct and not in respect of
payment of increment. The issue therein
was with regard to grant of revised pay
scale as per recommendations of Seventh
Central Pay Commission Report which
became applicable w.e.f. 1.1.2016. The
respondent before the Delhi High Court
had already retired on 31.12.2015 and,
therefore, the revised pay scale as per
Seventh Central Pay Commission Report
was not extended to him. The Central
Administrative Tribunal, however, allowed
original application of the employee and
granted benefit of revised pay scale against
which the Union of India had preferred writ
petition. Reliance was placed before Delhi
High Court of the Supreme Court Judgment
in S. Banerjee Vs. Union of India, 1989
Supplementary (2) SCC 486. The Division
Bench distinguished the judgment in S.
Banerjee (supra) on facts. It was noticed
that the employee in S. Banerjee (supra)
was in employment on the date when
revised pay scale became applicable unlike
the facts in the case of G.C. Yadav (supra).
Claim for payment of revised scale was
accordingly rejected. The judgment of
Madras High Court in P. Ayyamperumal
(supra) was also distinguished on facts for
similar reasons.
850 INDIAN LAW REPORTS ALLAHABAD SERIES

18. This Court in P.P. Pandey (supra)
after noticing the full bench of Andhra
Pradesh High Court has proceeded to
follow the view taken by the Madras High
Court in P. Ayyamperumal (supra).

19. It is in the above divergent views
of the High Courts that the issue needs to
be decided by this Court.

20. Payment of salary and increment
to a central government servant is regulated
by the provisions of F.R., CSR and Central
Civil Services (Pension) Rules. Pay defined
in F.R. 9(21) means the amount drawn
monthly by a central government servant
and includes the increment. A plain
composite reading of applicable provisions
leaves no ambiguity that annual increment
is given to a government servant to enable
him to discharge duties of the post and that
pay and allowances are also attached to the
post. Article 43 of the CSR defines
progressive appointment to mean an
appointment
wherein
the
pay
is
progressive, subject to good behaviour of
an officer. It connotes that pay rises, by
periodical increments from a minimum to a
maximum. The increment in case of
progressive appointment is specified in
Article 151 of the CSR to mean that
increment accrues from the date following
that on which it is earned. The scheme,
taken cumulatively, clearly suggests that
appointment of a central government
servant is a progressive appointment and
periodical increment in pay from a
minimum to maximum is part of the pay
structure. Article 151 of CSR contemplates
that increment accrues from the day
following
which
it
is
earned.
This
increment is not a matter of course but is
dependent upon good conduct of the central
government
servant.
It
is,
therefore,
apparent that central government employee
earns increment on the basis of his good
conduct for specified period i.e. a year in
case of annual increment. Increment in pay
is thus an integral part of progressive
appointment and accrues from the day
following which it is earned.

21. There is a purpose for providing
that increment earned accrues from the day
following which it is earned. The grant of
increment is not a matter of course and is
dependent upon good conduct of the
government servant for the entire year. It is,
therefore but natural that good conduct
must be observed for the entire year before
the increment accrues. This is logical and
in
normal
circumstances
creates
no
difficulty for a central government servant.

22. Difficulty arises only when the
central government servant also retires on
the last day when he completes his yearly
service required for grant of increment.
Article 151 to 153 of the CSR explicitly
provides that increment accrues from the
day following that on which it is earned.
Going by the plain reading of the
applicable provisions the benefit of annual
increment would not be available to a
government servant if he superannuates on
30th June since the increment became
payable only on the 1st of July. It is on the
basis of above reasoning that full bench of
Andhra Pradesh High Court & Himachal
Pradesh High Court rejected the claim for
payment of increment to the government
servant who retires on 30th of June. With
utmost respects to the views expressed by
the two Court's, I find myself unable to
subscribe to it, for the reasons enumerated
hereinafter.

23. Annual increment though is
attached to the post & becomes payable on
a day following which it is earned but the
7 All. Nand Vijay Singh & Ors. Vs. Union of India & Ors.
851
day on which increment accrues or
becomes payable is not conclusive or
determinative. In the statutory scheme
governing
progressive
appointment
increment becomes due for the services
rendered over a year by the government
servant subject to his good behaviour. The
pay of a central government servant rises,
by periodical increments, from a minimum
to the maximum in the prescribed scale.
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.

24. Law is settled that where
entitlement to receive a benefit crystallises
in law its denial would be arbitrary unless it
is for a valid reason. The only reason for
denying benefit of increment, culled out
from the scheme is that the central
government servant is not holding the post
on the day when the increment becomes
payable. This cannot be a valid ground for
denying increment since the day following
the date on which increment is earned only
serves the purpose of ensuring completion
of a year's service with good conduct and
no other purpose can be culled out for it.
The concept of day following which the
increment is earned has otherwise no
purpose to achieve. In isolation of the
purpose it serves the fixation of day
succeeding the date of entitlement has no
intelligible differentia nor any object is to
be achieved by it. The central government
servant retiring on 30th June has already
completed a year of service and the
increment has been earned provided his
conduct was good. It would thus be wholly
arbitrary if the increment earned by the
central government employee on the basis
of his good conduct for a year is denied
only on the ground that he was not in
employment on the succeeding day when
increment became payable. In the case of a
government servant retiring on 30th of June
the next day on which increment falls
due/becomes payable looses significance
and must give way to the right of the
government servant to receive increment
due to satisfactory services of a year so that
the scheme is not construed in a manner
that if offends the spirit of reasonableness
enshrined in Article 14 of the Constitution
of India. The scheme for payment of
increment would have to be read as whole
and one part of Article 151 of CSR cannot
be read in isolation so as to frustrate the
other part particularly when the other part
creates right in the central government
servant to receive increment. This would
ensure
that
scheme
of
progressive
appointment remains intact and the rights
earned by a government servant remains
protected and are not denied due to a
fortuitous circumstance.

25. In view of the above deliberations
and discussions, I find myself in absolute
agreement with the view expressed on the
issue by Madras High Court in P.
Ayyamperumal (supra) as also the Delhi
High Court in the case of Gopal Singh
(supra) and this Court in the case of P.P.
Pandey (supra). The statutory rules cannot
be read in a manner such that substantive
rights earned by a central government
employee under the Rules is denied to him.
I, therefore, hold that a government servant
retiring on 30th June would be entitled to
benefit of increment falling due on 1st July
on account of his good conduct for the
requisite length of time i.e. one year, in a
regime of progressive appointment. The
petitioners', therefore, would be entitled to
the grant of increment payable on 1st July
852 INDIAN LAW REPORTS ALLAHABAD SERIES
2019, notwithstanding their superannuation
on 30th June, 2019. Orders impugned in
this petition are consequently quashed. The
respondents
are
directed
to
consider
petitioners' case afresh in light of the above
observations and directions within a period
of two months from the date of services of
the order. Writ petition, consequently
succeeds and is allowed. Costs, however,
are made easy.
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