# P.P. Pandey (Parmatma Prasad Pandey) v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 882
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-25
- **Case number:** Service Single No. 18375 of 2020
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-p-pandey-parmatma-prasad-pandey-v-state-of-u-p-ors-46711
- **Pages:** 11

## Headnote

A. Fundamental Rules - Rule 9(21), 9(31)
- Civil Service Regulation - Regulation 14,
18, 151 - Compulsory Retirement -
Superannuation Pension - Increment -
Determination
-
Employee
becomes
entitled for increment upon completion of
six months or more of service in the past
year
i.e.
naturally,
services
already
rendered - Cutoff date of first July of any
year indicated in the Government Order is
only for the purposes of payment of the
increment which has already fallen due -
It is only recognition of a right which has
already vested in an employee - Held, it is
merely a fortuitous circumstance that the
Government Servant has superannuated
on the date when the increment, earned
earlier, is to be actually paid - An
employee
becomes
entitled
for
an
increment upon completion of six months
or more of service rendered in the past
year. (Para 29, 35 and 41)
B. Service law - Increment - Ambit and
Object - Increment is earned by a
Government Servant for services rendered
in the past year and the Government
Servant becomes entitled to it on the
concluding day of the year but it would
actually become payable only from the
next
day
-
Actual
payment
of
an
increment earned during service is merely
consequential to the actual act of earning
the increment while in service. (Para 35)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

882 INDIAN LAW REPORTS ALLAHABAD SERIES
of termination cannot be passed without
providing opportunity of hearing and
further reasons have to be recorded by
authority in writing as to why inquiry is not
reasonably practicable while exercising the
power under Rule 8(2)(b) of Rules 1991. In
the case at hand, reasons recorded in the
impugned order are not such on the basis of
which it can be said that holding of inquiry
was not reasonably practicable. Further
Article 311(2)(b) of the Constitution of
India postulates for extending reasonable
opportunity to a civil servant before
subjecting him to dismissal or removal
from service or in the event of reduction in
rank.

16. In view of the forgoing
observations, this Court is of the view that
the order impugned is contrary to the
provisions of Rule 8(2)(b) of the Rules
1991 as well as Article 311(2)(b) of the
Constitution of India and the same is not
sustainable in the eye of law.

17.
 For
the
reasons
recorded
hereinabove the impugned order dated
07.08.2019 is hereby quashed. However, it
would be open to the respondents to initiate
disciplinary
proceedings
against
the
petitioner, if they so desire in accordance
with the rules.

18. With aforesaid observation, the
writ petition is allowed. No costs.
----------
(2021)01ILR A882
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.01.2021

BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 18375 of 2020
P.P. Pandey (Parmatma Prasad Pandey)
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Prashant Kumar Singh, Alok Mehrotra

Counsel for the Respondents:
C.S.C., Ratnesh Chandra

A. Fundamental Rules - Rule 9(21), 9(31)
- Civil Service Regulation - Regulation 14,
18, 151 - Compulsory Retirement -
Superannuation Pension - Increment -
Determination
-
Employee
becomes
entitled for increment upon completion of
six months or more of service in the past
year
i.e.
naturally,
services
already
rendered - Cutoff date of first July of any
year indicated in the Government Order is
only for the purposes of payment of the
increment which has already fallen due -
It is only recognition of a right which has
already vested in an employee - Held, it is
merely a fortuitous circumstance that the
Government Servant has superannuated
on the date when the increment, earned
earlier, is to be actually paid - An
employee
becomes
entitled
for
an
increment upon completion of six months
or more of service rendered in the past
year. (Para 29, 35 and 41)
B. Service law - Increment - Ambit and
Object - Increment is earned by a
Government Servant for services rendered
in the past year and the Government
Servant becomes entitled to it on the
concluding day of the year but it would
actually become payable only from the
next
day
-
Actual
payment
of
an
increment earned during service is merely
consequential to the actual act of earning
the increment while in service. (Para 35)
Writ Petition allowed. (E-1)
Cases relied on :-
1.
Writ
Petition
No.8440
of
2011,
M
Balasubramaniam Vs St. of Tamil Nadu & ors.)
1 All. P.P. Pandey(Parmatma Prasad Pandey) Vs. State of U.P. & Ors.
883
decided by the High Court of Judicature at
Madras on 03.08.2011
2.
Writ
Petition
No.15732
of
2017,
P.
Ayyamperumal
Vs
The
Registrar,
Central
Administrative Tribunal, Madras Bench
3. S. Banerjee. Vs U.O.I. , AIR 1990 Supreme
Court 285
4. Principal Accountant General, A.P. & anr. Vs
C. Subba Rao, 2005(2) L.L.N. 592

(Delivered by Hon'ble Manish Mathur, J.)

1. 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 20092010 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
884 INDIAN LAW REPORTS ALLAHABAD SERIES
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 superannuated employee would
be getting a pension that would be higher
than their last pay drawn as salary. It is
submitted that there is no such provision
for including increment in the pension of
superannuated employee. Learned counsel
has submitted that paragraph 8 of the
Government Order dated 08.12.2008 which
forms the basis of petitioner's claim clearly
indicates the said fact, which is applicable
upon employees of the Corporation.

11. Upon consideration of material
available on record and submissions
advanced by learned counsel for parties, it
is undisputed that petitioner was in the
service
of
the
Corporation
and
superannuated on 30.06.2010. It is also
undisputed that the Government Order
dated 08.12.2008 having the provision of
increment is applicable upon employees of
the Corporation.

12. The only question requiring
adjudication
is
whether
an
employee
superannuating prior to cut off date indicated
in the Government Order i.e. first July of year
would be entitled for increment or not ?

13. For determination of the aforesaid
question, it would be appropriate to peruse
the relevant rule regarding the same.

14. 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.

15. Fundamental Rules 9(21) and 9(31)
regarding pay and time scale of pay is as
follows:-

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
1 All. P.P. Pandey(Parmatma Prasad Pandey) Vs. State of U.P. & Ors.
885
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) Timescale 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.

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

Fundamental Rule. 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 fiftyeight 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.

17. Central Civil Services Pension
Rules were promulgated in 1972 in
exercise of power under proviso to Article
309 of the Constitution of India. These
Rules, as mentioned earlier, in the absence
of any legislation made by the Parliament
of India under Article 309 of the
Constitution of India, have force of law and
all the principles of interpretation that are
applicable to a statute would equally apply
while interpreting these Rules. Indeed, as
per Section 3 read with clauses (50) and
(51) of Section 3 of General Clauses Act,
1897, the provisions thereof apply to
Pension Rules also.

Rule 33-. Emoluments

The expression 'emoluments' means
basic pay as defined in Rule 9(21)(a)(i) of
the
Fundamental
Rules
which
a
886 INDIAN LAW REPORTS ALLAHABAD SERIES
Government
servant
was
receiving
immediately before his retirement or on the
date of his death; and will also include
non-practising
allowance
granted
to
Medical Officer in lieu of private practice.

Explanation:- Stagnation increment
shall be treated as emoluments for
calculation of retirement benefits.

Note 1 - If a Government servant
immediately before his retirement or death
while in service had been absent from duty
on leave for which leave salary is payable
or having been suspended had been
reinstated without forfeiture of service, the
emoluments which he would have drawn
had he not been absent from duty or
suspended shall be the emoluments for the
purposes of this rule:

Provided that any increase in pay
(other than the increment referred to in
Note 4) which is not actually drawn shall
not form part of his emoluments.

Note 2 - Where a Government
servant immediately before his retirement
or death while in service had proceeded
on leave for which leave salary is
payable after having held a higher
appointment, whether in an officiating or
temporary
capacity,
the
benefit
of
emoluments
drawn
in
such
higher
appointment shall be given only if it is
certified that the Government servant
would have continued to hold the higher
appointment but for his proceeding on
leave.

Note 3 - If a Government servant
immediately before his retirement or
death while in service had been absent
from duty on extraordinary leave or had
been
under
suspension,
the
period
whereof does not count as service, the
emoluments which he drew immediately
before proceeding on such leave or being
placed under suspension shall be the
emoluments for the purposes of this rule.

Note 4 - If a Government servant
immediately before his retirement or death
while in service, was on earned leave, and
earned an increment which was not
withheld, such increment, though not
actually drawn, shall form part of his
emoluments.

Provided that the increment was
earned during the currency of the earned
leave not exceeding one hundred and
twenty days, or during the first one hundred
and twenty days of earned leave where such
leave was for more than one hundred and
twenty days.

Note 5 - Deleted

Note 6 - Pay drawn by a Government
servant while on deputation to the Armed
Forces of India shall be treated as
emoluments.

Note 7 - Pay drawn by a Government
servant while on foreign service shall not
be treated as emoluments, but the pay
which he would have drawn under the
Government had he not been on foreign
service
shall
alone
be
treated
as
emoluments.

Note 8 - Where a pensioner who is reemployed in Government service elects in
terms of Clause (a) of sub-rule (1) of Rule
18 or clause (a) of sub-rule (1) of Rule 19
to retain his pension for earlier service and
whose pay on re-employment has been
reduced by an amount not exceeding his
pension, the element of pension by which
his pay is reduced shall be treated as
emoluments.

Note 9 - Deleted.

Note 10 - When a Government servant
has been transferred to an autonomous
body consequent on the conversion of a
Department of the Government into such a
body and the Government servant so
transferred opts to retain the pensionary
benefits under the rules of the Government,
the
emoluments
drawn
under
the
1 All. P.P. Pandey(Parmatma Prasad Pandey) Vs. State of U.P. & Ors.
887
autonomous body shall be treated as
emoluments for the purpose of this rule.
(emphasis supplied.)

18. Here, we may also read Rule 5 of
the Pension Rules:

5. Regulation of claims to pension or
family pension :-(1) Any claim to pension
or family pension shall be regulated by the
provisions of these rules in force at the time
when a Government servant retires or is
retired or is discharged or is allowed to
resign from service or dies, as the case may
be.

(2) The day on which a Government
servant retires or is retired or is discharged
or is allowed to resign from service, as the
case may be, shall be treated as his last
working day. The date of death shall also
be treated as a working day: Provided that
in the case of a Government servant who is
retired
prematurely
or
who
retires
voluntarily under clauses (j) to (m) of Rule
56 of the Fundamental Rules or Rule 48 or
Rule 48-A, as the case may be, the date of
retirement shall be treated as a nonworking day.

19. Regarding Fundamental Rule and
Civil Service (CCA) Rule, it is a relevant
fact that the Government of India Act, 1919
by virtue of Section 96B(2) empowered the
Secretary of State for India to make Rules
regarding
conditions
of
service
of
Government Servant. It was in exercise of
such power that the aforesaid rules were
made.
Prior
to
promulgation
of
Fundamental Rules, the Government of
India made various Rules and Regulations
in
relation
to
service
condition
of
government servant which were published
as the Civil Service Regulation and
continued to be applied after independence
so far as they were not inconsistent with
subsequent Rules made under Article 309
of the Constitution of India of the relevant
statutes.

20. 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, 31 March, 1
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.

21. 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
December of that year, but the same would
accrue only from First January of next year.

22. A Government servant, as per
Rule 35, shall be granted superannuation
pension on his attaining age of compulsory
retirement. Such Government servant shall
be paid pension based on the qualifying
888 INDIAN LAW REPORTS ALLAHABAD SERIES
service
and
based
on
the
average
emoluments drawn during the last ten
months of his service. For the purpose of
qualifying service and calculating average
emoluments, one has to look to Rule 5 and
Rule 34 of the Pension Rules. Rule 5(2)
mandates that the day on which a
Government servant retires shall be treated
as his last working day.

23. As per Article 151 of Civil
Sservice Regulations, annual increment
payable to a Government servant will
accrue from the day following that day on
which it is earned. The Government servant
would get a right for annual increment only
after conclusion of the year and therefore
on the day when the increment falls due, it
would not become payable, but it would
become payable only from the next day.

24. Upon consideration of the
aforesaid Rules, it is apparent that ''pay'
includes other emoluments which may be
specially classed as pay. Fundamental
Rules
56(a)
indicates
that
every
Government Servant shall retire from
service on the afternoon of the last day of
the month in which he attains the age of 60
years. Proviso to the said Rule stipulates
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
superannuation.

25. Rule 33 of the Central Civil
Services
(pension)
Rule
defines
the
expression ''emoluments' to mean basic pay
as defined in Rule 9(21)(a)(i) of the
Fundamental Rules, which the Government
Servant was receiving immediately before his
retirement or on the date of his death. The
Proviso Note 1 of the said Rules imposes a
bar in any increase in pay (other than the
increment) referred to in Note 4 which is not
actually drawn from forming a part of
emoluments.

26. Note 4 states that in case a
Government Servant immediately before his
retirement or death while in service, was on
earned leave, and earned an increment which
was not withheld, shall form a part of his
emoluments even if not actually drawn.

27. The aforesaid provision clearly
indicates provision for increment forming the
part of emolument even if not actually drawn
although applicable only in case the
Government Servant was on earned leave.
However, the same does indicate the fact that
such an increment can form a part of the
emolument even after retirement.

28. Relevant provision to be considered
is under Articles 151, 152 and 153 of the
Fundamental Rules which have been quoted
hereinabove and specifically stipulate that an
increment accrues from the date following
that on which it is earned. The said provision
clearly elaborates the fact that accrual of
increments pertains to actual payment and is
to be made subsequent to the date on which it
is earned. As such, the accrual of increment
pertains only to actual payment of a benefit,
which has been earned prior to its date of
accrual.

29.

Considering
the
aforesaid,
particularly in view of Article 151 of the
Fundamental Rules, it is apparent that first
of July being the appointed date for accrual
of
increment
merely
implies
actual
payment of a benefit such as increment
which has been earned prior to such
appointed date.

30. It is admitted between learned
counsel for parties that increment in terms
1 All. P.P. Pandey(Parmatma Prasad Pandey) Vs. State of U.P. & Ors.
889
of aforesaid Government Order is required
to be paid to an employee upon completion
of six months or more of services rendered
in the past year. It is thus quite apparent
that entitlement for increment to an
employee accrues upon completion of six
months or more service in the past year i.e.
services already rendered. In terms of
paragraph 8 of the aforesaid Government
Order, the said fact is apparent that
increment is to be paid for services already
rendered. Thus, it is seen that the employee
becomes entitled for increment upon
completion of six months or more of
service in the past year i.e. naturally,
services already rendered. The cut off date
of first July of any year indicated in the
Government Order is only for the purposes
of payment of the increment which has
already fallen due. It is therefore only
recognition of a right which has already
vested in an employee.

31. The High Court of Judicature at
Madras
in
the
case
of
M
Balasubramaniam vs. State of Tamil Nadu
(supra) has dealt with the same issue on the
following manner:-

"...........It is equally important to state
that there is no rule which stipulates that
an employee must continue in service for
being extended the benefits of the service
already rendered by him.

32. A Division Bench of the same
Court in the case P. Ayyamperumal vs. The
Registrar, Central Administrative Tribunal
has followed the aforesaid judgment. The
matter was thereafter agitated before
Hon'ble the Supreme Court in Special
Leave Petition (Civil) Diary No.22283 of
2018 which vide order dated 23.07.2018
was dismissed on facts.

33. Learned counsel for petitioner has
also placed reliance on decision of Hon'ble
Supreme Court in S. Banerjee. Vs. Union
of India, reported in AIR 1990 Supreme
Court 285. In the considered opinion of this
Court, the said judgment would be
inapplicable in the present case in view of
different fact situation since in the aforesaid
case, not only was the matter pertaining to
dearness allowance but also in view of the
fact that the applicant therein was in fact
granted superannuation with effect from
01.01.1986 by specific order and therefore
Hon'ble the Supreme Court held that since
there was a clear direction that he would be
deemed to have superannuated with effect
from 01.01.1986, it could not be said that
he had superannuated on 31.12.1985. In the
present circumstance, the superannuation
was actually a day before the date on which
increment accrues.

34. Learned counsel appearing on
behalf of opposite parties has in turn placed
reliance on a Full Bench judgment rendered
by the High Court of Andhra Pradesh in the
case of Principal Accountant General,
Andra Pradesh & Another Vs. C. Subba
Rao; reported in 2005(2) L.L.N. 592 with
the submission that in the aforesaid Full
Bench, it has been categorically held that
since increment is an addition to pay, the
same would be inapplicable in case of
persons who have superannuated prior to
the date of its accrual because on the date
of accrual, a superannuated employee is not
entitled to any salary or pay. The Full
Bench has held that in order to be eligible
for an increment falling due on the first of
the succeeding month, an employee must
satisfy not only the condition of becoming
entitled but that he should continue to be on
duty as a Government Servant since after
superannuation on the last working day of
890 INDIAN LAW REPORTS ALLAHABAD SERIES
the month, he ceases to be such a
Government Servant.

35. Upon consideration of the
aforesaid, Full Bench judgment, with
utmost respect, this Court is unable to
concur with the same. The learned Full
Bench in the judgment itself has quoted
Article
151
of
the
Civil
Service
Regulations with the observation that 'the
Government Servant would get a right
for
annual
increment
only
after
conclusion of the year and therefore on
the day when the increment falls due, it
would not become payable, but it would
become payable only from the next day.

36. In view of said Article 151 of
Civil Service Regulations, it is apparent
that the Full Bench also noticed the fact
that the increment is earned by a
Government
Servant
for
services
rendered in the past year and the
Government Servant becomes entitled to
it on the concluding day of the year but it
would actually become payable only from
the next day. The said observation also
makes it clear that it is only the actual
payment of the increment, which is to be
made on the first of July of the year and
has
actually
been
earned
by
the
Government Servant for the services
rendered during the past year when he
was in service. As such, the actual
payment of an increment earned during
service is merely consequential to the
actual act of earning the increment while
in service. It is merely a fortuitous
circumstance
that
the
Government
Servant has superannuated on the date
when the increment, earned earlier, is to
be actually paid. It is also a relevant fact
that the opposite parties have framed the
U.P. State Transport Corporation Officers
Service (General) Regulations 1998.

37. Regulation 3(n) has defined pay
as an amount drawn monthly as follow:-

(n) "Pay" means amount drawn
monthly by an officer as-

(i) basic any sanctioned for the post;

(ii) special pay or personal pay;

(iii) any other emoluments which may
be specially classed as pay by the Board. It
does not include dearness allowance,
travelling allowance and other allowances;

38. Annual increment has been
defined in Regulation 9 of the Regulation is
as follow:

9. Annual increment.- (1) (a) An
annual increment may be allowed to an
officer in accordance with the provisions of
sub-regulation (2) at the rate as shown in
the scales of pay admissible to the officer
concerned unless the increment has been
withheld as a disciplinary measure or at
the Efficiency Bar.

(b)All the officers will be granted
increment on the first day of the month in
which the increment falls due.

(c) If probation is extended, such
extension will not count for increment,
unless the Appointing Authority directs
otherwise.

(d) An officer who has remained off
duty on extraordinary leave, study leave or
any other such similar leave, the date of
increment shall correspondingly be shifted
and the period of such leave shall not be
counted for the purposes of increment. An
officer who officiates in a higher post or in
a higher time scale of pay shall be eligible
to count for increments the period spent by
him on such higher post or higher time
scale of pay in his lower post when reverted
to that post or time scale of pay.

(2) To reward an officer for excellent
performance and in order to motivate him
1 All. P.P. Pandey(Parmatma Prasad Pandey) Vs. State of U.P. & Ors.
891
for continuous excellent performance, the
Board may grant premature increments
subject to a maximum of three to an officer
in the time scale of pay.

39. The aforesaid provisions in the
Service Regulations are inconsonance with
the Fundamental Rules and the Civil
Service Regulation and clearly indicate the
fact that increment is earned/allowed to an
officer for services rendered by him in the
past year.

40. The condition and procedure for
applicability of increment has been made in
the Government Order dated 08.12.2008,
which
has
been
adopted
by
the
Corporation.

41. A perusal of paragraph 8 of the
Government Order dated 08.12.2008 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.

42. In view of aforesaid, 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.

43. 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.

44. 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.

45. 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 dated 24.09.2020. A
further writ in the nature Mandamus is
issued commanding the opposite parties
no.2 and 3 to grant increment due to
petitioner
on
01.7.2010
with
all
consequential benefits.

46. Orders pertaining to same and
actual payment thereof shall be made
within a period of six months from the
date a copy of this order is produced
before concerned authority.

47. Consequently, the writ petition
stands allowed.
----------
892 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A892
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2020

BEFORE

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

Writ A No. 36193 of 2015

Rajesh Kumar ...Petitioner
Versus
Chairman Nagar Panchayat, G.B. Nagar &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Saxena

Counsel for the Respondents:
C.S.C., Anupama Parashar Upadhyay, Sri
Chandra Bhan Gupta, Sri Devendra Kumar,
Sri
Satendra
Kumar
Upadhyay,
Smt.
Anupama Parashar, Sri Satyendra Kr.
Upadhyay

A. Service Law - Disciplinary Inquiry -
Major Punishment - Proof of charges -
Leading of the witnesses - Parole
Evidence - Necessity of - Obligation of
Establishment and Inquiry Committee
- Even if an employee does not appear
before
the
Inquiry
Tribunal/Committee, the charges do
not stand proved by the delinquent's
default - The establishment have to
lead, both documentary evidence and
examine witnesses in support of the
charges.
The
charges
have
to
be
established by the establishment, even
if the delinquent is ex parte - If the
employee appears, he has a right not
only to cross-examine witnesses, who
appear on behalf of the establishment,
but also to lead his own evidence, both
documentary and oral - In cases
involving major punishment, parole
evidence ought to be led to establish
the
charges
-
Held,
the
inquiry
committee has proceeded to accept the
charges by surreptitiously rejecting
the petitioner's reply to each of them,
with no evidence before them to prove
the charges - Documents that were
considered, were not proved by any
evidence, particularly, parole evidence.
(Para 23 and 32)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Chamoli District Co-operative Bank Ltd.
Through its Secretary/ Mahaprabandhak &
anr. Vs Raghunath Singh Rana & ors.,
(2016) 12 SCC 204
2. St. of U.P. & ors. Vs Saroj Kumar Sinha,
(2010) 2 SCC 772
3. St. of U.P. Vs Aditya Prasad Srivastava &
anr., 2017 (2) ADJ 554 (DB) (LB)
4. Smt. Karuna Jaiswal Vs State Of U.P.
Through Secy Mahila Evam Bal Vikas, 2018
(9) ADJ 107 (DB) (LB)
5. Roop Singh Negi Vs P.N.B. & ors., (2009)
2 SCC 570

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

1. This writ petition is directed against
an order dated May the 14th, 2015 passed by
the Executive Officer, Nagar Panchayat,
Jewar,
District
Gautam
Budh
Nagar,
terminating the petitioner's service. In
addition, the petitioner has been ordered to
deposit a sum of Rs.11,000/- with the
Employers, held to be embezzled by him.

2. Admittedly, a counter affidavit has
been filed in this case on behalf of
respondent nos.2 and 3, to which a
rejoinder has been filed on 26th February,
2017. However, the counter affidavit has
not been placed on record by the office.
Learned Counsel for the petitioner has
supplied a copy of the counter affidavit,
which is being retained on record and shall
form part of it. Thus, the parties have
exchanged affidavits.