UNION OF INDIA Vs. LALIT MOHAN SAHAY

JUDGEMENT

(1.) THAT the respondent no. 1 had superannuated on 31st January, 1989 is not in dispute. According to him, for calculating the retiral benefits admissible to him, the increment falling due on 1st February, 1989 ought to be considered. His claim has not been accepted by the present petitioners. He, accordingly, approached the Central Administrative Tribunal by filing Original Application (O.A. No. 557 of 2004). The Tribunal referred to the decision of Andhra Pradesh High Court given in Writ Petition nos. 1219 and 1409 of 1998 and held that since the applicant (present respondent no. 1) was entitled to increment on completion of one year, the increment that would have been available to him on 1st February, 1989, ought to be taken into consideration while computing the retiral benefits. The Tribunal in its order dated 8th April, 2005 considered the matter thus: - "3. The annual increment is an incident of service which is granted to an employee for rendering successful and unblemished service for the preceding year. As soon the preceding year ends the employee is entitled to his yearly increment. Under such circumstances, the yearly increment so accrued cannot be denied to him on the technical plea that on the due date of increment he was not in service. 4. The learned counsel for the applicant has relied upon a decision of the High Court of Judicature at Andhra Pradesh in writ petitions no. 1219 & 1409 of 1998 rendered by a Division Bench in which similar question arose as the two petitioners stood retired w.e.f. 1.7.1996 and 1.7.1995 respectively. They were denied their annual increment for preceding year on the ground that they stood retired from service by the time the increment became due. The Central Administrative Tribunal at Hyderabad allowed their prayers in the respective O.As. which order was challenged by the Government of Andhra Pradesh in the aforesaid two writ petitions wherein their Lordships, while dealing with relevant rules, observed as follows: - "The only ground on which the respondents are denied the increment is they were not in service to receive or to be paid the same. Strictly speaking, such a hyper -technical plea cannot be accepted. As observed earlier, with the completion of the year 's service, an employee becomes entitled for increment, which is otherwise not withheld. After completion of the one year service, the right accrues and what remains thereafter is only its enforcement in the form of payment. Therefore, the benefit of the year long service cannot be denied on the plea that the employee ceased to be in service on the day on which he was to have been paid the increment. There is no rule, which stipulates that an employee must continue in service for being extended the benefit for the service already rendered by him." 5. Their Lordships while deciding those two writ petitions had also elicited support from a decision of the Hon ble Supreme Court in the case of S.. Banerjee vs. Union of India: AIR 1999 SC 285. 6. Therefore, I find no force in the piea of the respondents that the increment that became payable w.e.f. 1.2.1989 to the applicant for rendering service in the preceding year, which he had rendered, and on completion of the year had become entitled to such an increment, cannot be granted to him. 7. In that view of the matter, this application is allowed and the respondents are directed to calculate the retiral benefits of the applicant also including the amount of the increment which would have been payable to him w.e.f. 1.2.1989."

(2.) THE present petitioners made an application seeking review of the order dated 8th April, 2005. The said review application was dismissed as time barred by the Tribunal, by its order dated 22nd August, 2006. Aggrieved by the orders dated 8th April, 2005 and 22nd August, 2006, the present writ petition has been filed by the Union of India and its functionaries. Counsel for the petitioners, at the outset, invited our attention to the order dated 14th February, 2008* passed by a Division Bench of this Court in the case of Union of India and Others vs. Sita Ram Prasad and Another (C.W.J.C. No. 13380 of 2006) and submitted that in view of the said decision, the order of the Tribunal cannot be justified and deserves to be set aside.

(3.) "The controversy in the present case and the case of Sita Ram Prasad (supra) decided by a Division Bench of this Court on 14th February, 2008 is identical. The Division Bench of this Court considered the matter thus: - "The petitioner, whose date of birth is 1st February, 1933 has retired from service on 31.1.1991. Under the Rules whose date of birth fails on 1st February of the calendar month, he retires on close of the previous calendar month. It is because of this rule the respondent -petitioner had retired on 31.1.1991 instead of on 1.2.1991. He has been given benefit of all retiral benefits as per last drawn emoluments on 31.1.1991. However, the respondent -petitioner has made claim of one increment in his emoluments with effect from 1.2.1991, alleging that while in service the date of his annual increment fell on 1st of February, it became due on 1.2.1991. By contending that though on the operation of the rule relating to superannuation he superannuated on 31.1.1991, but he must be deemed to have continued in service for the purpose of annual increment until 1st February, 1991, therefore, the increment due to him on 1st February, 1991 ought to have been released. By not doing so, he has suffered continuing financial loss. We are unable to sustain the order of the learned Tribunal. Once the incumbent retired on 1st January, 1991 the relationship of employer and employee came to an end on that date. The date of birth of the respondent has not been challenged and in absence of satisfactory reply we do not consider to extend the benefits/emoluments after 31st, 1991. Accordingly, the order under challenge cannot be sustained. The petition is allowed. The judgment of the learned Tribunal is set aside and the original application is dismissed."