An Employee Who Retired On 31st Of A Month Not Entitled To Increment Which Would Have Fallen Due On 1st Of Next Month: Himachal Pradesh High Court

In a writ petition filed by a Senior Hydrogeologist in the Department of Industries (Geological wing) who had retired on March 31, 2003, a Division Bench of Justices Tarlok Singh Chauhan and Jyotsna Rewal Dua has held,

"The date of increment falls due on the first day of the succeeding month after the retirement. Petitioner retired on the basic pay drawn by him on 31.3.2003 i.e. his date of retirement. His pension has to be determined accordingly. Petitioner had become a pensioner on 1.04.2003. He cannot be held entitled to any increment which may fall due post his retirement. He is entitled only to those increments which fall due to him during the period of his service."

The Petitioner had contended that the legal position has been settled by the Apex Court that the increment which falls due on the day immediately following the day of retirement, has to be granted to the employee on the ground that he had completed 12 months of service on the date of his retirement.

Reliance was placed on the principle set by the Madras High Court in P. Ayyamperumal v. Registrar, where it was held that on completing one year of service from 1.7.2012 to 30.6.2013, the petitioner therein became entitled for the benefit of increment, which accrued to him 'during that period' though the increment fell due on 1.7.2013 when he was not in service.

A special leave petition preferred against this judgment was dismissed in limine by the Supreme Court in 2018.

Therefore, the Petitioner had contended that the law in this regard is settled by the Supreme Court and must be applied in this case.

The Division Bench however refused to apply this principle, while clarifying that an order refusing Special Leave to Appeal, whether by a speaking order or by a non-speaking one, will not attract the doctrine of merger.

It held,

"In the instant case, the order refusing Special Leave to Appeal is non speaking, therefore, it does not stand substituted in place of the order under challenge."

Reliance was placed on Khoday Distilleries Ltd & Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal, (2019) 4 SCC 376.

Reference was also made to State of Orissa & Anr. v. Dhirendra Sunder Das & Ors., (2019) 6 SCC 270, where it was reiterated that dismissal of an SLP in limine without giving any detailed reason does not constitute any declaration of law or a binding precedent under Article 141.

Coming to the facts of the case, the Court referred to the Fundamental Rules (FR) that govern all general conditions of service of employees.

It noted that in terms of FR 56(a), the day when the government employee retires has to be treated as his last working day. Further, FR 17(1) provides that an officer shall begin to draw pay and allowances attached to the post w.e.f. the date when he assumes duties of that post and shall cease to draw them as soon as he ceases to discharge those duties.

The State Counsel had also, while relying on the orders passed by the High Courts of Madya Pradesh and Andhra Pradesh, had argued that a writ petition claiming next annual increment due immediately after retirement cannot be allowed, keeping in view the Fundamental Rules governing service conditions of the petitioner.

In view thereof, the Court held,

"The petitioner was not on duty on 1.4.2003. Increment can be drawn only when an employee is on duty. The increment in terms of FR 24 & 26 did not become due during the period of service of the petitioner. Therefore, increment on 1.4.2003 cannot be sanctioned in favour of petitioner on the ground that he had completed twelve months of continuous service."

Case Title: Hari Prakash v. State of Himachal Pradesh & Ors.

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