AFR ARUN KUMAR BISWAL Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, who was working as Additional Commissioner of Commercial Tax and Goods and Service Tax (Revenue) in the Commissionerate of the Commercial Tax and Goods and Service Tax, has filed this writ petition seeking to quash the letter dtd. 14/7/2020 under Annexure-3 rejecting his representations dtd. 8/1/2020 and 17/3/2020 to treat the next date of retirement i.e., 1/1/2020 as the date of grant of notional increment for the purpose of pensionary benefits, in compliance of direction given by this Court, vide order dtd. 27/5/2020 in W.P.(C) No. 11642 of 2020, and further seeks for a direction to grant notional increment for the period from 1/1/2019 to 31/12/2019 by treating the next date of increment, i.e., 1/1/2020 as the date of grant of notional increment for the purpose of pensionary benefits.

(2.) The factual matrix of the case, in hand, is that by following due procedure of selection, the petitioner was appointed and joined in service under the Government of Odisha on 17/10/1988 and subsequently promoted from time to time. His date of birth being 1/1/1960, on attaining the age of superannuation, he retired on 31/12/2019. He was allowed previous increment on 1/1/2019 and, as such, the next increment was due on 1/1/2020, which was the next day of his date of superannuation, i.e., 31/12/2019. But, he was not extended with the incremental benefit, which was fallen due on 1/1/2020, for which he submitted a representation to the authority. The same having not been acceded to, he approached this Court by filing W.P.(C) No. 11642 of 2020, which was disposed of on 27/5/2020 directing the authority to take a decision on the representation filed by the petitioner and pass appropriate order keeping in view the order dtd. 15/9/2017 of the Madras High Court in W.P.(C) No. 15732 of 2017 (P. Ayyamperumal v. The Registrar, Central Administrative Tribunal, Madras Bench), which was confirmed by the apex Court in Special Leave Petition (Civil) Diary No(s). 22283 of 2018. In compliance of the direction given by this Court, opposite party no.2 passed the impugned order dtd. 14/7/2020 in Annexure-3 stating therein that the date of birth of the petitioner being 1/1/1960, the date of his superannuation was on 31/12/2019, and that as he was allowed previous increment on 1/1/2019, his next increment was due on 1/1/2020, but on that date since the petitioner was no more in service, he was not entitled to any incremental benefit on the day following the superannuation i.e., 1/1/2020. Hence this writ petition.

(3.) Mr. S.K. Dash, learned counsel for the petitioner contended that admittedly, the date of birth of the petitioner is 1/1/1960 and on attaining the age of superannuation, he was retired from service on 31/12/2019. As such, his next increment was due on 1/1/2020, as he had received the previous increment on 1/1/2019. Therefore, for the period he rendered service from 1/1/2019 to 31/12/2019, he is entitled to get the increment, which should be notionally fixed, as the increment was due on 1/1/2020, so as to entitle him to get pensionary benefits. It is further contended that the rejection of the claim of the petitioner, in compliance of the order dtd. 27/5/2020 passed by this Court in W.P.(C) No. 11642 of 2020, on the plea that he ceases to draw the pay and allowance as soon as he ceases to discharge duties from the day following the superannuation as per Rule-56 of the Odisha Service Code and becomes eligible for pension under Rule 82 of the Odisha Civil Services (Pension) Rules, 1992. It is further contended that as per the clarification obtained from the Finance Department, the annual increment falls due irrespective of the date of anniversary of appointment and as per Rule 10 of the Odisha Revised Scales of Pay Rules, 2017, the date of next increment shall be 12 months from the date of last sanction. Therefore, while rejecting the representation of the petitioner, the authority has failed to apply the ratio decided in P. Ayyamperumal (supra), which has been confirmed by the apex Court in SLP (Civil) Diary No(s). 22283 of 2018, and assign any reason as to why the ratio decided in the said order would not be applicable to the case of the petitioner. Therefore, the order impugned rejecting the representation of the petitioner is cryptic and unreasonable one. It is further contended that the clarification of the Finance Department has been wrongly read and interpreted, inasmuch as the annual increment is always continuous and is not dependent or calculated by taking into account either the entry into or exit from the service. It is further contended that while disposing of the representation, the opposite party no.2 has candidly admitted that the increment was last sanctioned on 1/1/2019 and therefore the next date of sanction would be on 1/1/2020, and that on attaining the age of superannuation the petitioner having retired from service on 31/12/2019, thereby, Rule 56 of the Service Code laying down the entitlement of pay and allowance cannot be read as a bar to disburse the accrued dues and it is also equally erroneous to import the language of Rule 82 of the Odisha Civil Services (Pension) Rules, 1992 to justify the action taken by opposite party no.2 in rejecting the claim for grant of annual increment to the petitioner. To substantiate his contention he has relied upon the order dtd. 15/9/2017 of the Madras High Court in W.P.(C) No. 15732 of 2017 (P. Ayyamperumal v. The Registrar, Central Administrative Tribunal, Madras Bench), which was confirmed by the apex Court in Special Leave Petition (Civil) Diary No(s). 22283 of 2018 and the review petition bearing R.P.(C) No. 1731 of 2019 filed by the Union of India; order of the Madhya Pradesh High Court in Yogendra Singh Bhaduria & Ors. Vs. State of Madhya Pradesh & Gwalior (W.A. No. 645 of 2020 disposed of on 22/9/2020); and the order of the Delhi High Court in Gopal Singh v. Union of India and others (W.P.(C) No. 10509 of 2019 disposed of on 23/1/2020).