IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :16.08.2017 Regarding notional increment to those who completed full one year at the time of retirement.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED
:16.08.2017
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.15107/2016 & WMP.No.13159/2016
S.Srinivasan .. Petitioner
Vs
1.The Principal Secretary to Government
Finance [CMPC] Department
Fort St George, Chennai 600 009.
2.The Pension Pay Officer,
College Road, Chennai 600006. .. Respondents
PRAYER : Petition filed Under Article 226 of the Constitution of India to
issue of Writ of Certiorarified mandamus, to call for the records of the 1st
respondent relating to G.O.Ms.No.11, Finance [CMPC] Department, dated
31.12.2014 and to quash the same insofar as it restricts the grant of notional
increment purely for the purpose of pensionary benefit in case of Government
servant who retires on 31st March, 30th June, 30th September and 31st December,
prospectively and consequently direct the respondents to grant the notional
increment to the petitioner, who retired on 31st March 1986, fix the purpose of
pensionary benefits and for payment of arrears together with interest.
For
Petitioner : Mr.S.Baskaran
For
Respondents :
Mr.S.Gunasekaran, AGP
O R
D E R
In
the present writ petition, the relief sought for is to quash G.O.Ms.No.311
Finance (CMPC) Department dated 31.12.2014, in respect of grant of annual
increment.
2.The
learned counsel appearing for the writ petitioner contended that the grant of
annual increment was adjudicated before
this Court as well as before the Hon'ble Supreme Court. After adjudication of this issue, the
Government accepted the legal proposition and referred the matter to the Pay
Grievance Redressal Cell constituted by the Government on 10th April 2012 in
G.O.Ms.No.123, Finance Department. The
Pay Grievance Redressal Cell has recommended that when the date of increment of
a Government Servant falls due on the day following superannuation on
completion of one full year of service, such service may be considered for the
benefit of a notional increment purely for the purpose of pensionary benefits
and not for any other purpose. Such
concession may be made applicable prospectively.
3.Accepting
the recommendations made by the Pay Grievance Redressal Cell, the Government
issued G.O.Ms.No.311 Finance (CMPC) Department dated 31.12.2014. In the said G.O., the Government in paragraph
Nos. 3 & 4, has ordered as follows:
3.After
careful consideration, the Government have decided to accept the above
recommendation of Pay Grievance Redressal Cell.
Accordingly, the Government direct that a Government Servant whose
increment falls due on the day following superannuation, on completion of one
full year of service which are countable for increment under Fundamental Rule
26, be sanctioned with one notional increment
at the rate as described under rule 6 of Tamil Nadu Revised Scales of Pay
Rules, 2009, purely for the purpose of pensionery benefits and not for any
other purpose. The above concession of
sanction of notional increment shall take prospective effect from the date of
issue of this order.
4.Necessary
amendment to the Fundamental Rules shall be issued by Personnel and
Administrative Reforms Department separately.
4.The
learned counsel appearing for the
petitioner contended that the rights of the writ petitioner for annual
increment is accepted and ensured by the Government in G.O.Ms.No.311 Finance
(CMPC) Department dated 31.12.2014.
5.When
the grant of annual increment is ensured by the Government, such a concession
cannot be denied to the pensioners who retired prior to 31.12.2014. Further, it is stated that the G.O., does not
fix any cut-off date of retirement and as per the G.O., all the State
Pensioners who fall in this category are eligible to get their respective
annual increments, in the event of fulfilling the conditions stipulated in the
said G.O.Ms.No.311.
6.In
the absence of any cut-off date in G.O.Ms.No.311, all the pensioners are to be
treated as homogeneous class and who ever falls in the category of serving one
year and retiring next date of the crucial date for grant of annual increment
are entitled for the benefits notionally with effect from the date of
retirement and the actual benefits to be paid prospectively from the date of
issue of G.O.Ms.No.311 dated 31.12.2014.
7.The
learned counsel further taken this Court to paragraph No.8 of the counter
affidavit filed by the respondents in WP.No.36386/2016 etc., batch, which reads
as follows:
8.It
is submitted that in Government Letter No.5085/CMPC/2015-1, Finance Department,
Dated 01.06.2015, it has been clarified that the benefit ordered in
G.O.Ms.No.311, Finance (CMPC) Department, Dated 03.12.2014, shall be taken into
account for calculating the terminal leave salary as the same is also a
retirement benefit. Further, it is submitted
that in continuation of the above clarification in Government Letter
No.52367/CMPC/2015-1, Finance Department dated 21.09.2015, it has been
clarified that the benefit of notional increment sanctioned in the
G.O.Ms.No.311 Finance (CMPC) Department, Dated 31.12.2014, shall take prospective
effect from the date of issue of the order i.e. 31.12.2014 only and the
employees whose increment falls due on completing one year of service on the
day following superannuation and retired prior to 31.12.2014 are not entitled
for the benefit of sanction of notional increment for the purpose of pensionary
benefits.
8.Though
the last line of the counter states that the persons retired prior to
31.12.2014, are not entitled for the benefit of sanction of notional increment
for the purpose of pensionary benefits, the same is not supported by the
Government Order issued in G.O.Ms.No.311. What is not contemplated in
G.O.Ms.No.311, cannot be substituted by the respondents through their counter
affidavit. Going by the spirit of G.O.Ms.No.311, it is clear that prospective
effect can be given only for the purpose of disbursing the monetary benefits
and in respect of the eligibility, there is no cut-off date prescribed in the
said Government Order. This Court is of the firm view that counter-affidavit
cannot improve the contents of the Government Order issued in G.O.Ms.No.311,
since no cut-off date or otherwise is contemplated in the said Government
Order. Thus, the respondents cannot substitute by prescribing that the persons
retired prior to 31.12.2014, are not entitled for the benefit of sanction of
notional increment.
9.The
very sanction of increment was granted in accordance with the Fundamental
Rules. Once the benefit is granted based on the Fundamental Rules, the
increment granted to employees retired after 31.12.2014, cannot be denied to
employees retired prior to 31.12.2014. This apart, the date of
31.12.2014, is only an acceptance of the
grant of increment to the employees in G.O.Ms.No.311. Thus, there is no
sanctity or relevance in respect of adopting the date of 31.12.2014, with
regard to the eligibility of employees to draw their increment otherwise in
accordance with the Fundamental Rules.
10.The
very concept of increment is that on completion of one year of satisfactory
service, an employee is eligible to draw the increment. Such being the concept,
the date of retirement, as stated in the counter i.e., 31.12.2014, has no nexus
or object sought to be achieved. Since such a date is not contemplated in the
Government Order, the statement made in the counter, cannot be considered by
this Court. Accordingly, all the employees, who retired prior or after
31.12.2014, are eligible to draw their notional increment for the purpose of
pensionary benefits and the disbursement of monetary benefit shall be given only
with effect from 31.12.2014.
11.Thus,
the writ petitioner's claim for grant of annual increments notionally with
effect from the date of retirement and actual monetary benefits with effect
from the date of G.O.Ms.No.311, is justifiable.
Nowhere in the counter statement, more specifically in paragraph No.8,
the Government did not deny the benefit to the State pensioners. Contrarily, it is stated that some officials
of the Department were restricting the claim by wrongly interpreting
G.O.Ms.No.311, as if it is applicable only to the employees who retired after
31.12.2014, which is incorrect.
12.The
purport of the G.O., is to grant benefits in accordance with the Fundamental
Rules and the Government in G.O.Ms.No.311, further issued directions to carry
out necessary amendment to the Fundamental Rules in this regard. Such being the factum of the case, the claim
with regard to the grant of annual increments for the retires prior to and
after G.O.Ms.No.311 dated 31.12.2014, is to be affirmed by the State.
13.The
learned Additional Government Pleader also fairly submitted that there is no
cut-off date fixed in G.O.Ms.No.311. The
Government has already extended the benefit of annual increment as interpreted
by the Pay Grievance Redressal Cell and the recommendation of the Redressal Cell was also accepted by the
Government and G.O.Ms.No.311 was issued.
Thus, the eligibility of the writ petitioner in respect of the annual
increments cannot be denied. Further,
the date of retirement is not prescribed as a cut-off date in the G.O.,
regarding eligibility.
14.The
learned Additional Government Pleader further contended that based on
G.O.Ms.No.311 dated 31.12.2014, the writ
petitioner is eligible in the event of fulfilling the conditions stipulated in
G.O.Ms.No.311. However, the eligibility
of the respective writ petitioner is to be found based on his service records
and the particulars therein.
15.In
this view of the matter, the claim set out in this writ petition deserve
consideration. Quashing of G.O.Ms.No.311 does not arise at all, in view of the
fact that there no cut-off date is fixed in the said G.O. and only monetary
benefits alone is directed to be paid prospectively, with effect from
31.12.2014, i.e. the date of the G.O.
16.Accordingly,
if the writ petitioner falls in the category as stipulated in G.O.Ms.No.311
Finance (CMPC) Department dated 31.12.2014, he is eligible to get his annual
increments, notionally with effect from the date of retirement and the monetary
benefits will be granted with effect
from 31.12.2014, the date of G.O.Ms.No.311 Finance (CMPC) Department. With this clarification, the respondents and
the competent authorities are directed
to implement G.O.Ms.No.311 Finance (CMPC) Department dated 31.12.2014, by
granting the benefit of annual increments, by verifying the respective Service
Records of the writ petitioners and pay the monetary benefits prospectively
with effect from 31.12.2014.
With
this direction, the Writ Petition stands disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
16.08.2017
sk
To
1.The Principal Secretary to Government
Finance
[CMPC] Department
Fort St
George, Chennai 600 009.
2.The Pension Pay Officer,
College Road, Chennai
600006.
S.M.SUBRAMANIAM,J.
sk
W.P.No.15107/2016
16.08.2017
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