# Uday Narayan Mishra v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 395
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** Writ-A No. 2126 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uday-narayan-mishra-v-state-of-u-p-ors-47530
- **Pages:** 16

## Headnote

A. Pay - Definition of Pay.- Fundamental Rule
9(21) of Fundamental Rules.- Means the amount
drawn by a Government servant as the pay which
has been sanctioned for a post held by him
substantively or in the officiating capacity, or to
which he is entitled because of his position in a
cadre; and includes an overseas pay, special pay
and personal pay; and any other emoluments
which may be specially classed as pay by the
President but does not include the special pay or
pay granted because of the personal qualification
of the Government servant.(Para 25)

B. As per regulation 38(a) of CSR applicable in
U.P., pay means "monthly substantive pay and
396 INDIAN LAW REPORTS ALLAHABAD SERIES
includes also overseas allowance and technical
allowance.(Para 26)

C. Increment.-Is an increase in or addition on
a fixed scale; it is a regular increase in salary on
such a scale. The Government servant is
entitled to increments as a matter of course
subject to conclusion of past one year
satisfactory service.(Para 27).

D. According to Article 151 of CSR the annual
increment will accrue to a government servant
from the day following that date on which it is
earned i.e. annual increment would accrue only
after completion of the year and become
payable on the next day.

E. Date of Retirement.-Rule 56(a) of Financial
Hand Book provides that every Government
servant shall retire from service on the
afternoon of the last day of the month in which
he attained the age of 60 years.

F. That the Government servant is considered
retired at 12:00 a.m. i.e. midnight on the last
working day and his last working day in the
establishment is considered working day as a
result the respondents denial of in increment to
the petitioner who retired on 30.06.2016 based
on proviso to Rule 56 of the Fundamental Rules
and Regulation 14 of CSR is erroneous and not
sustainable in law. Judgment of P. Ayyam
Perumal v The Registrar & ors. of Madras High
Court dated 15.09.2017 passed in Writ Petition
No. 15732 of 2017, P.P. Pandey v St.of U.P. Civil
Misc. Writ Petition (S/S) No. 18375 of 2020
passed by High Court, Allahabad, S. Banerjee v
U.O.I. 1989 Supp(2) SCC 486, Mohd. Hussain v
St.of U.P. & ors. 2010(3) AWC 2964 and Ram
Anjor Singh v UOI 2007(7) ADJ 273(DB)
followed.

G. A Government employee is entitled to one
increment as a matter of right after completing
one year of service which becomes due on the
following day of the years end.

H. Pension- Is not a bounty but a hard earned
benefit which is in the nature of property.
Hence, it cannot be taken away without
complying with the due process of law under
Article 300-A of Constitution of India. St.of
Jharkhand
v
Jitendra
Kumar
Srivastava
(2013)12 SCC 210 followed.

Petition allowed. (E-12)

## Text

_Characters 0–39,848 of 54,613. This is a partial read: ask again with offset=39848 for what follows._

2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
395
the husband, in any case, would have to
appear, to wit, where the wife has brought
proceedings. The question would then be of
a convenient disposition at one station. The
relevant factor about the wife not having
anyone to accompany her across a long
distance, is also a relevant consideration in
ordering transfer. Here, the distance is
about 700 Kms. between Gautam Budh
Nagar and Prayagraj. Two cases are already
pending at Prayagraj and the wife has no
one in her family to act as her escort on
every date that is scheduled before the
Court at Gautam Budh Nagar. The wife,
though well qualified, has not been shown
to be possessed of any gainful occupation
in her profession for the time being. The
handicap that arises from lack of resources,
cannot be always arithmetically calculated
in terms of money spent on travel, lodging
and board. Lack of financial resources
bring many other kinds of handicaps, that
cannot always be liquidated through
taxable recompense.

25. In the opinion of this Court,
therefore,
this
transfer
application
succeeds
and
is
allowed.
The
proceedings of Case No. 1326 of 2019,
Ashutosh Agrawal vs. Shakshi Agrawal,
under Section 12 (1)(b) and (c) read with
Section 5 of the Hindu Marriage Act,
1955 are withdrawn from the Principal
Judge, Family Court, Gautam Budh
Nagar and transferred to the learned
Principal
Judge,
Family
Court,
Allahabad. The Principal Judge, Family
Court, Allahabad, upon receipt of the
record, shall proceed to try and determine
the case himself or make it over for trial
and decision in accordance with law to an
Additional Judge available on the Court,
as he may consider appropriate. The
parties shall appear before the Principal
Judge, Family Court, Allahabad on
28.02.2022. During this period of time,
the
Principal
Judge,
Family
Court,
Gautam Budh Nagar shall ensure that the
records are transmitted to the Principal
Judge, Family Court, Allahabad. The
parties take notice of this order through
learned counsel.

26. Let this order be communicated
to the Principal Judge, Family Court,
Gautam Budh Nagar and the Principal
Judge, Family Court, Allahabad by the
Registrar (Compliance).
----------
(2022)02ILR A395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 2126 of 2020

Uday Narayan Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vikas Tiwari

Counsel for the Respondents:
C.S.C.

A. Pay - Definition of Pay.- Fundamental Rule
9(21) of Fundamental Rules.- Means the amount
drawn by a Government servant as the pay which
has been sanctioned for a post held by him
substantively or in the officiating capacity, or to
which he is entitled because of his position in a
cadre; and includes an overseas pay, special pay
and personal pay; and any other emoluments
which may be specially classed as pay by the
President but does not include the special pay or
pay granted because of the personal qualification
of the Government servant.(Para 25)

B. As per regulation 38(a) of CSR applicable in
U.P., pay means "monthly substantive pay and
396 INDIAN LAW REPORTS ALLAHABAD SERIES
includes also overseas allowance and technical
allowance.(Para 26)

C. Increment.-Is an increase in or addition on
a fixed scale; it is a regular increase in salary on
such a scale. The Government servant is
entitled to increments as a matter of course
subject to conclusion of past one year
satisfactory service.(Para 27).

D. According to Article 151 of CSR the annual
increment will accrue to a government servant
from the day following that date on which it is
earned i.e. annual increment would accrue only
after completion of the year and become
payable on the next day.

E. Date of Retirement.-Rule 56(a) of Financial
Hand Book provides that every Government
servant shall retire from service on the
afternoon of the last day of the month in which
he attained the age of 60 years.

F. That the Government servant is considered
retired at 12:00 a.m. i.e. midnight on the last
working day and his last working day in the
establishment is considered working day as a
result the respondents denial of in increment to
the petitioner who retired on 30.06.2016 based
on proviso to Rule 56 of the Fundamental Rules
and Regulation 14 of CSR is erroneous and not
sustainable in law. Judgment of P. Ayyam
Perumal v The Registrar & ors. of Madras High
Court dated 15.09.2017 passed in Writ Petition
No. 15732 of 2017, P.P. Pandey v St.of U.P. Civil
Misc. Writ Petition (S/S) No. 18375 of 2020
passed by High Court, Allahabad, S. Banerjee v
U.O.I. 1989 Supp(2) SCC 486, Mohd. Hussain v
St.of U.P. & ors. 2010(3) AWC 2964 and Ram
Anjor Singh v UOI 2007(7) ADJ 273(DB)
followed.

G. A Government employee is entitled to one
increment as a matter of right after completing
one year of service which becomes due on the
following day of the years end.

H. Pension- Is not a bounty but a hard earned
benefit which is in the nature of property.
Hence, it cannot be taken away without
complying with the due process of law under
Article 300-A of Constitution of India. St.of
Jharkhand
v
Jitendra
Kumar
Srivastava
(2013)12 SCC 210 followed.

Petition allowed. (E-12)
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioner and Sri Yashwant Singh, learned
Standing Counsel for the respondent nos. 1
to 6.

2. Petitioner through present writ
petition has assailed the order dated
17.01.2020, by which, his claim for the
grant of one notional increment due on
01.07.2016 has been rejected.

3. The facts of the case, in brief, are
that the petitioner was Water Supervisor
(Seench
Paryavekshak/Ameen)
in
the
office
of
respondent
no.6-Executive
Engineer,
Nalkoop
Khand-2,
District
Allahabad. The date of birth of the
petitioner is 18.06.1956. The petitioner on
attaining the age of 60 years retired on
30.06.2016 from the office of respondent
no.6. The service of the petitioner was
satisfactory.

4. The further case of the petitioner is
that the State Government by Government
Order dated 04.05.2010 provided that the
1st July would be the date for fixation of
new increment/revised salary. Accordingly,
the petitioner is entitled to one notional
increment for a period from 01.07.2015 to
30.06.2016 on 01.07.2016 after retirement
for computation of pension. The petitioner
claiming
notional
increment
due
on
01.07.2016
submitted
detailed
representation dated 11.09.2019 relying on
the judgment of P.Ayyamperumal Vs. The
Registrar and Ors. of Madras High Court
dated 15.09.2017 passed in Writ Petition
No.15732 of 2017. Accordingly, he prayed
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
397
that his pension may be revised/refixed.
When the petitioner did not receive any
reply to the said representation, he
submitted a reminder on 09.01.2020 before
the respondent.

5. Respondent no.6 by order dated
17.01.2020 rejected the claim of the
petitioner for grant of notional increment
on two grounds; the petitioner had retired
in the afternoon of the last day of service,
therefore he was not in service on the day
when the increment was due. Secondly, as
per Rule 14 of Civil Service Regulations,
the last date of service of a Government
servant is not counted as a working day,
hence the government servant is retired
without completing one year of service
before retirement. The said order is
impugned in the present writ petition.

6. In the counter affidavit filed by the
respondent-State, the ground for denying
the claim of the petitioner has been stated
in paragraphs no. 4, 5, and 6 of the counter
affidavit wherein it is averred that Rule
56(a) of Financial Hand Book, Vol.II, Part
II to IV applies to the government servant
of Uttar Pradesh which provides 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
sixty years. It is further stated that any
Government Servant, whose date of birth is
the first day of the month, upon attaining
the age of 60 years would retire from
service on the afternoon of the last day of
the preceding month.

7. The further case of the respondent
in the counter affidavit is that Rule 14 of
the Civil Service Regulations provides that
when an Officer is to retire at a specified
age, the day on which he attains that age is
reckoned non-working day. Accordingly, it
is stated that it is clear from Rule 56(a) of
Financial Hand Book, Vol.II, Chapter II to
IV
and
Rule
14
of
Civil
Service
Regulations
that
Government
servant
retires without completing one year of
service. The further case of the respondent
in the counter affidavit is that judgment of
P.Ayyamperumal Vs. The Registrar and
Ors. of Madras High Court (supra) is not
applicable as the said judgment has been
rendered in the context of rules of Central
Government and the judgment referred
therein namely State of Tamil Nadu, rep. by
its Secretary to Government, Finance
Department,
and
others
Vs.
M.
Balasubramaniam, reported in CDJ 2012
MHC 6525 has been rendered in the
context of fundamental rules of State of
Tamil Nadu. Hence, the judgment of
P.Ayyamperumal (supra) is not applicable
in the present case as the petitioner is an
employee
of
the
Uttar
Pradesh
Government.

8. In the rejoinder affidavit, it is stated
that the denial of the claim of the petitioner
is based on Rule 14 of Civil Service
Regulation and Rule 56(a) of Financial
Hand Book, Vol.II, Part II to IV is
misplaced since the day on which a
Government servant retires or is discharged
or is allowed to resign from service as the
case may be, shall be treated as a last
working day. The day of death of a
Government servant shall also be treated as
a working day. It is also stated that the
judgment of the Madras High Court in the
case
of
P.Ayyamperumal
(supra)
is
applicable in the facts of the present case.
Hence, the petitioner is entitled to the
benefit of said judgment.

9. Challenging the aforesaid order,
learned counsel for the petitioner contends
that the interpretation by respondent no.6 of
398 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 14 of Civil Service Regulations and
Rule 56(a) of Financial Hand Book, Vol.II,
Part II to IV in rejecting the claim of the
petitioner is incorrect. It is submitted that
admittedly the petitioner has rendered his
service from 01.07.2015 to 30.06.2016, and
as such he is entitled to receive all the
benefits that had accrued to him during that
period. Accordingly, it is submitted that the
right to get an increment on completion of
one year of service is an accrued right for
rendering one year of good and satisfactory
service, therefore, the respondent cannot
deny the benefit of such accrued right to
the petitioner on misconceived grounds. It
is further contended that the petitioner on
completion of one year's service becomes
entitled to an increment which is not
otherwise withheld.

10. The further contention of learned
counsel for the petitioner is that as the
petitioner's entitlement to receive increment
accrues on completion of one year of
service, and what remains thereafter is the
enforcement of such an accrued right in the
form of payment which cannot be denied to
the petitioner on misconceived grounds. It
is further submitted that there is no rule
which stipulates that a government servant
must continue in service to receive benefits
that have accrued to him during the service
period. In support of his case, learned
counsel for the petitioner has placed
reliance upon the Full Bench judgment of
Andhra
Pradesh
High
Court
in
P.Ayyamperumal (supra) (ii) P.P. Pandey
Vs. State of U.P. & Ors., Civil Misc. Writ
Petition (S/S) No. 18375 of 2020 passed by
this Court (iii) S.Banerjee Vs. Union of
India reported in 1989 Supp2 SCC 486
(iv) Mohd. Hussain Vs. State of U.P. &
Ors. reported in 2010 (3) AWC 2964 (v)
Ram Anjore Singh Vs. Union of India &
Ors. reported in 2007 (7) ADJ 273 (DB).

11. Per-contra, learned Standing
Counsel would contend that Fundamental
Rule 56 (a) of Financial Hand Book, Vol.II,
Part II to IV is explicit and states 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
sixty years and in a case where a
Government servant's date of birth is the
first day of the month, he shall retire from
service on the afternoon of the last day of
the preceding month on attaining the age of
sixty years.

12. it is further contended that as per
Rule 14 of Civil Service Regulations, since
the last day of retirement is not a working
day, therefore, the petitioner has not
completed one year of service, hence he is
not entitled to increment.

13. Learned Standing Counsel has
placed reliance upon Full Bench judgment of
Andhra Pradesh High Court in Principal
Accountant General Vs. C.Subba Rao,
reported in 2005 (4) ESC 2862, the judgment
of Madhya Pradesh High Court in Madhav
Singh Tomar & Ors. Vs. M.P. Power
Management Co. Ltd. & Ors. in Writ Petition
No. 9940 of 2020 decided on 29.07.2020, and
judgment of Himachal Pradesh High Court in
case of Hari Prakash Vs. State of Himachal
Pradesh & Ors. in CWP No. 2503 of 2016.
On the strength of the aforesaid judgments, he
submits that the date of birth of the petitioner
is 18.06.1956 and under Rule 56(a) of
Financial Hand Book, Vol.II, Part II to IV, he
shall be treated to have retired in the afternoon
of 30.06.2016, therefore he was not in service
on the date when the increment was due.
Hence, his claim has rightly been rejected by
respondent no.6.

14. I have heard learned counsel for
the petitioner and learned Standing Counsel
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
399
for the State-respondents and perused the
record.

15. The court believes that in view of
argument advanced by respective parties,
the questions which arise for consideration
of this Court is that:

(i) what the word "afternoon" used in
Rule 56(a) of Financial Hand Book, Vol.II,
Part II to IV connotes in the context of
expression 'retirement of an employee on
the last day of the month';

(ii) whether the respondent has rightly
placed reliance upon Rule 14 of Civil
Service Regulation to deny the benefit of
notional increment to the petitioner;

(iii) whether the petitioner can be
denied the benefit of notional increment on
the ground that the petitioner was not in
service on the date when the increment was
due to the petitioner.

16. Before answering the aforesaid
questions, it is apposite to refer to the
relevant provisions of the Financial Hand
Book, Vol.II, Part II to IV, Civil Service
Regulations as applicable in Uttar Pradesh,
(hereinafter referred to as ''CSR') Central
Civil Services (Pension) Rules, 1972
(hereinafter referred to as ''Pension Rules,
1972').

17. Rule 9(21), Rule 9(28) and (31) of
Financial Hand Book, Vol.II, Part II to IV
defines 'pay', 'substantive pay', and 'scale of
pay' reads as under:

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

(i) the pay, other than special pay or
pay granting 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, technical pay,
special pay and personal pay; and

(iii) any other emoluments which may
be specially classed as pay by the
Governor."

"9(28)Substantive Pay- Substantive
pay means the pay other than special pay,
personal pay or emoluments classed as pay
by the Governor under Rule 9(21) (ii), to
which a Government servant is entitled on
account of a post to which he has been
appointed substantively or by reasons of
his substantive position in a cadre.

9(31) (a) Time Scale Pay- Time-scale
pay means pay which, subject to any
conditions prescribed in these rules, rises
by periodical increments from a minimum
to a maximum. It includes the class of pay
formerly known as progressive.

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

18. Rule 3(2) and 3(9) of The Uttar
Pradesh Retirement Benefits Rules 1961
(hereinafter referred to as 'Rules 1961')
defines 'Emoluments' and 'Retirement '
reads as under:
400 INDIAN LAW REPORTS ALLAHABAD SERIES

"3(2). Emoluments' means the pay as
defined in Rule 9(21) of the U.P.
Fundamental Rules, which the Officer was
receiving
immediately
before
his
retirement:-

Provided that in the case of an Officer
who on the date of his retirement is
drawing pay in the scale of pay as in force
on 29.3.62 the term "emoluments" shall
also include the dearness allowance as
admissible therein on that date.

Note......

"3(9). "Retirement" means discharge
of an officer from government service on
superannuation,
retiring,
invalid
or
compensation pension or gratuity.

19. Regulation 14,151 to 153 of the
CSR reads as under:

" 14. Age-When an officer is required
to retire on attaining a specified age, the
day on which he attains that age is
reckoned as a non-working day, and the
officer must retire.........with effect from and
including that day..........

"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
increment 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.

20. At this juncture, it is also relevant
to refer to Rule 24 Financial Hand Book
Vol.II Part II to IV, which is extracted
herein as under:

"24. An increment shall ordinarily be
drawn as a matter of course unless it is
withheld -An increment may be withheld
from a Government servant by the
Government, or by any authority to whom
the Government may delegate this power
under Rule 6, if his conduct has not been
good or his work has not been satisfactory.
In
ordering
the
withholding
of
an
increment, the withholding authority shall
state the period for which it is withheld,
and whether the postponement shall have
the effect of postponing future increments."

21. In the facts of the present case, it
would also be relevant to notice Regulation
38 of CSR as applicable in the State of
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
401
Uttar Pradesh which defines 'Pay and
Salary'. Clause (a) and (c) defines 'pay' and
'salary' respectively and are reproduced
herein-below:

38. Pay and Salary :

"(a)
"pay"
means
"monthly
substantive
pay".
It
includes
also
"overseas
allowance"
and
"technical
allowance".

(b).........

(c) "Salary" means the sum of pay an
acting allowance, or charge allowance,
under Article 94 of Chapter VIII.

1. Personal allowance is treated, for
the
purposes
of
calculating
leave
allowance and pensions, as part of an
officer's substantive pay, but not for
purposes of travelling allowance, unless it
has been granted to protect from loss an
officer, the pay of whose appointment has
been changed.

2. The allowance of an officer
holding conjointly with another office a
Professorship of Lecturership in any
Government institution, are part of his
salary.

3. "Salary" does not include a local
allowance, deputation (local) allowance,
house
rent,
tentage,
or
travelling
allowance, whether daily, monthly or
yearly.

4. The charge allowance admissible
to Inspectors and Charge Clerks IndoEuropean Telegraph Department, are part
of their salary.

5. The good conduct allowance of
policemen is treated as salary for the
purpose of calculating leave allowances,
but not pension.

6. Deputation (duty) allowance and
duty allowances are treated as salary for
the
purpose
of
calculating
leave
allowances and are included in the term
"emoluments" for calculating pensions."

22. Section 1 of Chapter XLVIII of
CSR deals with payment of pension and the
relevant regulation in the present case is
Regulation 930 of Section 1 of Chapter
XLVIII of CSR as applicable in Uttar
Pradesh which reads as under:

"930. Apart from special orders, a
pension,
other
than
a
Wound
or
Extraordinary pension under the Uttar
Pradesh Civil Services (Extraordinary
Pension) Rules, is payable from the date on
which the pensioner ceased to be borne on
the establishment, or from the date of his
application, whichever is later. The object
of this later alternative is to prevent
unnecessary delay in the submission of
applications. The rule may be relaxed, in
this particular, by the authority sanctioning
the pension when the delay is sufficiently
explained.

1. The pension of an officer who under
Article 436, has received a gratuity in lieu
of notice is not payable for the period in
respect of which the gratuity is paid."

23. Central Civil Services (Pension)
Rules, 1972 (hereinafter referred to as
'Rules 1972') have been promulgated in
exercise of power under proviso to Article
309 of the Constitution of India. It would
also be apt to refer to Rule 5 of Pension
Rules, 1972 which is reproduced herein as
under:

"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
402 INDIAN LAW REPORTS ALLAHABAD SERIES
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 48A, as the case may be, the date of
retirement shall be treated as a nonworking day.

24. Chapter IX of Financial Hand
Book, Vol.II Part II to IV deals with
compulsory
retirement.
The
relevant
provision in the context of the present case
is Rule 56(a) of Financial Hand Book,
Vol.II, Part II to IV which is being
reproduced herein as under:

"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 day 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 the
November, 2001 and is on extension in
service, shall retire from service on expiry
of his extended period of service.

25. Now this Court proceeds to
analyse
the
aforesaid
provisions
to
appreciate the controversy in the present
case. Pay as defined in Fundamental Rule
9(21) of Fundamental Rules means the
amount drawn by a Government servant as
the pay which has been sanctioned for a
post held by him substantively or in an
officiating capacity, or to which he is
entitled because of his position in a cadre;
and includes overseas pay, special pay and
personal pay; and any other emoluments
which may be specially classed as pay by
the President but does not include the
special pay or pay granted because of the
personal qualification of a government
servant.

26. As per Regulation 38(a) of CSR
applicable in Uttar Pradesh, "Pay' means
"monthly substantive pay" and includes
also overseas allowance and technical
allowance.
As
per
Rule
9(28)
of
Fundamental Rules, Substantive pay means
the pay other than special pay or
emoluments
classed
as
pay
by
the
Governor under Rule 9(21)(ii) to which a
government servant is entitled on account
of a post to which he has been appointed
substantively or because of his substantive
appointment in the cadre. It is worth
noticing
that
Rule
9(21),
(28)
of
Fundamental Rules and Regulation 38(a) of
CSR does not exclude 'increment' paid to a
government servant from the definition of
'Pay' and 'Substantive Pay'. Further, the
perusal of point no.3 mentioned below
Regulation 38(c) of CSR also reveals that
the increment paid to a Government servant
under Regulation 151 of CSR is not
excluded from the salary.

27. In service jurisprudence, the
increment has a distinct concept. It is an
increase in or addition on a fixed scale; it is
a regular increase in salary on such a scale.
In other words, Increment is an incidence
of service and is an addition in the same
scale and not to a higher scale. The
government servant is entitled to increment
as a matter of course subject to the
conclusion of past one year satisfactory
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
403
service. As a result of the preceding
discussion, the natural corollary is that it is
part of "pay" and "Substantive Pay" as
defined in Rule 9(21) & 9(28) of
Fundamental Rules and Regulation 38(a) of
the CSR and also part of "salary" as defined
in Regulation 38(c) of the CSR, as
applicable.

28. According to Article 151 of CSR,
the annual increment will accrue to a
Government
servant
from
the
day
following that date on which it is earned.
The right to get an annual increment would
accrue to a Government servant only after
completion of the year and become payable
on the next day.

29. At this point, it is appropriate to
consider Fundamental Rule 24, which
states that an increment is normally drawn
as a matter of course unless it is withheld.
A combined reading of Fundamental Rule
24 and Regulation 151 of CSR suggests
that the government servants shall receive
increment as a matter of right from the next
date when it falls due under Regulation 151
of CSR, and the only condition under
which
the
increment
accrued
to
a
government servant can be denied is if his
conduct has not been good or his work has
not been satisfactory. In other words,
reading the Fundamental Rules 24 leads to
the inevitable conclusion that a government
servant has an accrued right to receive an
increment as per Regulation 151 and can be
denied only if his conduct was not good or
his work was not satisfactory, as stipulated
in Fundamental Rule 24.

30. At this juncture, it is appropriate
to consider Rule 56(a) of Financial Hand
Book, Vol.II, Part II to IV which states that
every Government servant shall retire from
the service on the afternoon of the last day
of the month in which he attains the age of
sixty years. To understand in what context
the word 'afternoon' has been referred to in
Rule 56(a) and proviso to Rule 56(a) of
Financial Hand Book, Vol.II, Part II to IV,
it would be beneficial to refer to a few
judgments on which learned counsel for the
petitioner has relied.

31. In the case of S.Banerjee vs.
Union of India (supra), the petitionerS.Banerjee
claimed
the
benefit
of
paragraph 17.3 of Chapter 17 of Part II on
page 93 of the Pay Commission Report,
which states that for employees retiring
between January 1, 1986, and September
30, 1986, the government may consider
treating the entire dearness allowance
drawn by them up to December 31, 1985,
as pay for pensionary benefits. The said
benefit was denied to him because he did
not draw a salary for January 1, 1986, in
view of the proviso to Rule 5(2) of the
Pension Rules, 1972. The aforementioned
contention was rejected by the Apex Court.
Paragraph 6 of the judgment is relevant
which reads as under:

(6) "Under paragraph 17.3, the
benefits recommended will be available to
employees retiring during the period,
January 1, 1986 to September 30, 1986. So
the employees retiring on January 1, 1986
will be entitled to the benefit under
paragraph 17.3. The question that arises
for our consideration is whether the
petitioner has retired on January 1, 1986.
We have already extracted the order of this
Court dated December 6, 1985 whereby the
petitioner
was
permitted
to
retire
voluntarily from the service of the Registry
of the Supreme Court with effect from the
forenoon of January 1, 1986. It is true that
in view of the proviso to rule 5(2) of the
Rules, the petitioner will not be entitled to
404 INDIAN LAW REPORTS ALLAHABAD SERIES
any salary for the day on which he actually
retired. But, in our opinion, that has no
bearing on the question as to the date of
retirement. Can it be said that the
petitioner retired on December 31, 1985?
The answer must be in the negative. Indeed,
Mr. Anil Dev Singh, learned counsel
appearing on behalf of the respondents,
frankly conceded that the petitioner could
not be said to have retired on December
31, 1985. It is also not the case of the
respondents that the petitioner had retired
from the service of this Court on December
31, 1985. Then it must be held that the
petitioner had retired with effect from
January 1, 1986 and that is also the order
of this Court dated December 6, 1985. It
may be that the petitioner had retired with
effect from the forenoon of January 1, 1986
as per the said order of this Court, that is
to say, as soon as January 1, 1986 had
commenced the petitioner retired. But,
nevertheless, it has to be said that the
petitioner had retired on January 1, 1986
and not on December 31, 1985. In the
circumstances, the petitioner comes within
the purview of paragraph 17.3 of the
recommendations of the Pay Commission."

32. In the case of Ram Anjore Singh
(supra), the petitioner's last day of service
was December 31, 1995. He claimed the
benefit of a revised pension as per the
revised pay scale, claiming that his
retirement date is January 1, 1996. His
claim was denied on the ground that he
retired on December 31, 1995, and thus
was not entitled to the benefit of the office
memorandum dated October 27, 1997,
which extended the benefit of the revised
pay scale and pension fixation to a
Government servant who retired on January
1, 1996, or later. This Court held that the
denial of the benefit of office memorandum
to the petitioner is illegal. This Court in
paragraph 15 of the judgment has noted the
decision in Special Appeal No. 1056 of
2005 (Sushila Devi Vs. District Collector
and others) in which this Court has held
that for the retirement of Government
servant, the time afternoon must be
construed as a time after the noon (12
O'Clock) until the end of the day (12:00
PM). Relevant paragraph nos. 15, 16, 17,
18 are reproduced herein as under:

"15. Which of the aforesaid O.Ms.
would be attracted to the case of the
petitioner would depend upon the fact as to
when the petitioner can be said to have
retired from service. From a perusal of
O.M.I, it is evident that the same is
applicable to such government servants
who retire on 1st January, 1996 or
thereafter. The O.M.II, however provides
that the pension/family pension shall be
determined in the manner prescribed
thereunder
to
all
pre-1996
pensioners/family pensioners in the manner
indicated in the subsequent paragraphs.
Though para 2.1 states that the order shall
be applicable to all those who were
drawing pension/family pension on 1st
January, 1996, but from the definition of
the existing pensioner or existing family
pensioner or existing pension or existing
family pension, it would be evident that the
said order is applicable to those who were
drawing/entitled
to
pension
on
31st
December, 1995 and therefore were also
drawing pension on 1st January, 1996.
Thus only such persons can be said to be
pre-1996
pensioners/family
pensioners.
The question as to whether the petitioner
can
be
said
to
be
a
pre-1996
pensioner/family pensioner, in order to
attract
the
meaning
of
the
word
"government servants who retired on 1st
January, 1996". In other words can it be
said that the petitioner retired on 31st
2 All. Uday Narayan Mishra Vs. State of U.P. & Ors.
405
December, 1995 and is also an existing
pensioner on 31st December, 1995. It is no
doubt true that 31st December 1995 was
the last day of working of the petitioner on
which date he would retire on attaining the
age of superannuation as per Fundamental
Rule 56, which requires that a government
servant shall retire from service on the
afternoon of the last day of the month in
which he attains the age of 58 years. Since
the petitioner attains the age of 58 years on
31st December, 1995 itself, therefore he
will retire in the afternoon of 31st
December, 1995. The word afternoon
would mean up to midnight of 31st
December, 1995/1st January, 1996. It is
true that normally on the last day of the
working a government servant is required
to hand over his charge and work is
complete during office hours, but legally
the status of the concerned person would
continue to be a "government servant" till
the midnight of the last working day, since
the afternoon would come to an end at
12.00 P.M. i.e. end of the day. A Division
Bench of this Court in Special Appeal No.
1056 of 2005 (Sushila Devi Vs. District
Collector and others, decided on 6th
September, 2005, held as under :-

"From the foregoing discussions, we
are of the opinion that for purposes of
retirement of a government servant, the
time afternoon has to be construed as a
time after the noon (12 O'clock) till the end
of the day (12 P.M.)."

16. The 31st December, 1995 being
the last working day, the petitioner was
also entitled for full salary of the said day,
which is also inconsonance with Rule 5(2)
of the Central Civil Services (Pension)
Rules, 1972 (hereinafter referred to as
"Pension Rule 1972"), which reads as
under :-

"5(2) The date on which a government
servant retires or is retired or has
discharged or is allowed to resign from
service, as the case may be, shall be treated
as his last working day. The day of death
shall also be treated as working day.

Provided that in the case of a
government servant, who is retire or
immediately to retire or who retires
voluntarily under clause (j) to (m) to Rule
56 of Fundamental Rule or Rule 48 (or
Rule 48-A), as the case may be, the date of
retirement shall be treated as a non
working day."

17. This results to an inference that
the last working day in the service of the
government servant is also the date of his
retirement, but it cannot be said that the
said government servant would be entitled
for pension on 31st December, 1995 and
therefore is an existing pensioner or
existing family pensioner on 31.12.1995.
For the purposes of pension, he would be
entitled to draw the same w.e.f. 1st
January, 1996 and not prior thereto. The
O.M.I is applicable to those who are not
pre-1996
pensioners/family
pensioners
since they are governed by O.M.II. Since
the petitioner cannot be said to be a pre1996 pensioner/family pensioner, therefore
in our view his case will be covered by
O.M.I. It is not the case of the respondents
that besides the aforesaid two office
memorandums, there is any other office
memorandum, which would be applicable
to the cases which are not covered by the
aforesaid two office memorandums. The
view which we have taken has not been
shown to be inconsistent to any statutory
provision and on the other hand since
O.M.II is clearly applicable to pre1996
pensioner/family
pensioner,
and
the
petitioner cannot be said to be a pensioner
on 31st December, 1995 since that being
the last working day and he being entitled
for full salary, he would not be entitled for
pension on 31st December, 1995, therefore
406 INDIAN LAW REPORTS ALLAHABAD SERIES
the O.M.II has no application to his case,
the same would have to be governed by
O.M.I.

18. In this view of the matter, in our
view, for the purposes of para 3.1 of O.M.I,
the petitioner is entitled to be governed by
the provision thereof as he retired on 1st
January, 1996. The provision of OM-I,
being beneficiary in nature, in the absence
of any contrary, express or necessary
implication, it should be given a meaning
which may cover a larger number of
persons without doing any violence to the
language of the Statute. The judgement of
Andhra Pradesh High Court in the case of
R. Malakondaiah and others (supra) relied
upon by learned counsel for the petitioner,
in our view does not apply to the facts of
the present case, since the issue involved
therein was different and the provision up
for consideration before the Andhra
Pradesh High Court was also in different
context. That was a case of increment of a
government
servant
and
interpreting
Article 151 CSR, the Andhra Pradesh High
Court held that a government servant is
entitled for the benefit of increment after
completion of the conditions attracting said
benefit, even if the same day of his last day
of the working, since actual grant thereto is
only in the nature of execution."

33. In the case of Mohd. Hussain
(supra), in almost identical circumstances,
this court has granted the benefit of
notional increment to the petitioner whose
last working day was 30.06.2009. The
relevant paragraph no.6 of the judgment is
reproduced herein below:

"(6)
following
the
aforesaid
pronouncement of law, we are of the
opinion that since the petitioner was retired
on 30.06.2009, his last working day shall
be treated as 30.06.2009 and that he would
be retired on 1.7.2009. Since he was to be
given benefit of one increment according to
his date of birth (1.7.1949), he would have
retired on 1.7.2009 taking with him the
benefit of one increment payable to him in
2006 entitled to calculation of his pension
accordingly."

34. It is not the case of the respondent
since the government servant retires in the
afternoon in terms of Rule 56 of the
Fundamental Rule so he is paid the salary
until the afternoon of the last working day,
rather he is paid the salary for the full day
of the last working day.