Hon'ble Manish Kumar,J.
1. Heard learned Additional Chief Standing Counsel representing the State-petitioner.
2. These proceedings have been instituted under Article 226 of the Constitution of India challenging the judgment and order dated 07.02.2019 passed by the Uttar Pradesh State Public Services Tribunal ( hereinafter referred to as, the Tribunal) whereby the Claim Petition preferred by the respondent- Narendra Pratap Singh bearing no. 1517 of 2006 was allowed and the State was directed to grant the benefit of annual increment treating the same to have become due on First of January every year.
3. Before dealing with the submissions made by the learned State Counsel certain undisputed facts are required to be noticed.
4. The petitioner was appointed as Accounts Clerk in the erstwhile Uttar Pradesh Chalchitra Nigam (hereinafter referred to as, the Nigam) on 01.01.1983. He was, however, discharged from the services of the Nigam on 31.05.1990 as a retrenched employee. The State Government for the purpose of absorbing the retrenched employees of the Nigam had issued a Government Order dated 06.03.1990 wherein certain provisions were made for absorption of retrenched employees of the Nigam in government service. The petitioner was, accordingly, after being discharged from the services of the Nigam, was given appointment by way of absorption under the Government Order dated 06.03.1990 on the post of Junior Clerk/Typist in the Local Fund Audit Department, Uttar Pradesh. The said appointment order was issued on 10.04.1990, however, pursuant to the said appointment order, respondent no. 1 submitted his joining in the Local Fund Audit Department, Uttar Pradesh on 04.06.1990. In terms of the provisions contained in Clause 6 of the Government Order dated 06.03.1990, the pay of the petitioner was also to be protected on the basis of last pay drawn by him while working in the Nigam. The petitioner while working in the Nigam had drawn the last pay as Rs. 1030/- and accordingly his pay was fixed at Rs. 1030/- on his joining in the Local Fund Audit Department, Uttar Pradesh. The pay-scale at the relevant point of time applicable to the incumbents holding the post of Junior Clerk/Typist in the Local Fund Audit Department, Uttar Pradesh was Rs. 950-20-1500. Vide order dated 26.04.1993, the pay of the petitioner was, thus, protected at Rs. 1030/- in terms of the provisions contained in Clause 6 of the Government Order dated 06.03.1990. The petitioner while continued to serve the State Government was also given the benefit of annual increment which was made effective in this case w.e.f. first of January every year, however, as per the submission made by the learned counsel for the petitioner, the benefit of increment to the petitioner was wrongly and mistakenly given w.e.f. first of January every year whereas under law, he was entitled to be given the benefit of annual increment after completion of a period of one year from the date of his joining in the Local Fund Audit Department. In other words, according to the learned counsel for the petitioner, the respondent no. 1 was entitled to be given the benefit of annual increment on fourth of June every year in place of first of January every year.
5. It has further been stated by the learned counsel for the petitioner that on detecting the aforesaid anomaly in fixation of pay giving the benefit of annual increment w.e.f. first of January every year in place of fourth of June every year, the Director, Local Fund Audit Department, Allahabad issued an order on 23.10.2006 fixing the pay of the respondent no.1 by giving him the benefit of annual increment not w.e.f. First of January every year but w.e.f. fourth of June every year.
6. The respondent no. 1, aggrieved by the such pay fixation and such anomaly in granting annual increment w.e.f. fourth of June every year instead of first of January every year, filed a Claim Petition before the Tribunal, which has been allowed by the Tribunal vide judgment and order dated 10.06.2019, which is under challenge herein.
7. The submission of the learned counsel for the petitioner is that in terms of the Government Order dated 06.03.1990, which provided for absorption and pay protection of those employees who were appointed on the basis of absorption having been retrenched from the Nigam, every single service benefit would be available from the date when such absorbed persons submitted their joining in the State Government after their appointment.
8. Learned counsel for the petitioner has further submitted that since in this case pursuant to the appointment order issued on 10.04.1990, respondent no. 1 submitted his joining in the services of the State Government on 04.06.1990 as such, he would be entitled to get the benefit of annual increment every year in his pay scale w.e.f. fourth of June every year and not w.e.f. first of January every year.
9. He has further argued that on being discharged from service of the Nigam, he was relieved from the Nigam on 31.05.1990 as such, he is not entitled to any benefit in government service prior to his joining on 04.06.1990. In other words, he has stated that no benefit to the respondent no. 1 can be extended for the period he served in the Nigam. He has also stated that in terms of the Clause 6 of the Government Order dated 06.03.1990 his pay was to be protected on his appointment in the State Goverment, accordingly he was given the pay of Rs. 1030/- in place of placing him at the lowest of the pay scale of Rs . 950-1500/- that is Rs. 950/-. He has also drawn attention of this Court by submitting that had the benefit of pay protection in terms of the Government Order dated 06.03.1990 not been made available to the respondent no. 1, he would have been placed at the lowest of the pay scale of Rs. 950-1500/- i.e. at Rs. 950/-, however, since his pay was to be protected in terms of the provisions contained in the Government Order dated 06.03.1990, on his appointment, the respondent no. 1 was placed at the pay of Rs. 1030/-.
10. Learned Additional Chief Standing Counsel has further drawn attention of this Court to the Fundamental Rules 27 of the Financial Hand Book Volume II, Part II to IV, according to which, an authority may grant premature increment to a government servant in time scale of pay. However, attention has also been drawn to the Fundamental Rules 17 which provides that subject to any exception made in the Financial Hand Book, a government servant shall begin to draw the pay and allowances attached to his tenure or post w.e.f. the date when he assumes the duties of that post. It further provides that such an employee shall cease to draw pay and allowances as soon as he ceases to discharge his duties.
11. In sum and substance, it has been argued by the learned counsel for the petitioner that the Tribunal has completely ignored the Government Order dated 06.03.1990 under which the respondent was absorbed in Government Service and as also Fundamental Rule 27 and 17 of the Financial Hand Book Volume II, Part II to IV . His submission is, thus, that the direction given by the Tribunal for granting the benefit of annual increment to the respondent no. 1 w.e.f. first of January every year instead of fourth of June every year is unlawful being in violation of the Government Order dated 06.03.1990 as also against the Fundamental Rules 17 and 27 of the Financial Hand Book.
12. We have carefully considered the submissions made by the learned State Counsel in support of this petition.
13. So far as the facts of this case are concerned, there does not appear to be any dispute. It is also not in dispute that in terms of the Government Order dated 06.03.1990, any retrenched employee of the erstwhile Nigam was to be absorbed in the services of the State Government and on such appointment by way of absorption his pay was to be protected. In this case as well pay of the respondent no. 1 was protected and he was given the pay of Rs. 1030/- on his appointment vide order dated 10.04.1990, though he submitted his joining on 04.06.1990, thus, it is not in dispute that from the date of his joining in the services of the State Government i.e. w.e.f. 04.06.1990 his pay was protected on the basis of last pay drawn by him while working in the Nigam.
14. The question in this case is as to whether the respondent no. 1 was entitled to be given the benefit of annual increment every year w.e.f. first of January or w.e.f. fourth of June every year.
15. The learned Tribunal has given its reason for accepting the claim of the respondent no. 1 in paragraph 8 of the judgment wherein it has been observed that since there is no denial that the respondent no. 1 was entitled to be given the benefit of pay protection in terms of the Government Order dated 06.03.1990, however, this pay protection would remain farce if, the benefit of annual increment is not given to the respondent no. 1 w.e.f. first of January every year.
16. We are in complete agreement with the reasons given by the Tribunal.
17. As observed above, there is no denial to the fact that respondent no. 1 was entitled to the pay protection as per the provisions contained in the Government Order dated 06.03.1990 in terms of which, the absorption of retrenched employees of the Nigam was made in the services of the State Government.
18. The pay protection, in our considered view, would not be confined only protecting the pay of the employee at the time of his appointment. In other words, if the petitioner was placed at the pay of Rs 1030/- at the time of his appointment on 04.06.1990, the pay protection would not end there. As a matter of fact increment in any pay scale is also part of the pay, accordingly, the benefit of annual increments is also to be given as and when the same would become due to a government employee and as also in a case where a retrenched employee worked earlier in the Nigam and thereafter was absorbed in the State Government. If, the benefit of annual increment is not given to him w.e.f. the date it would have accrued to such an employee had he continued to work earlier in the Nigam, such an employee will be deprived of the actual benefit of pay protection.
19. While giving the benefit of annual increment w.e.f. first of January every year, it is not that the absorbed employee is being given any benefit of the period of services rendered by him in the Nigam. Admittedly, any service benefit to a government employee is admissible only from the date of his appointment in service and not from any prior date unless there exists any such specific provision for the same. However, in this case, in our considered opinion, no benefit of the past services rendered by the respondent no. 1 is being extended under the order of Tribunal for the purposes of giving him the benefit of annual increment. It is only for making respondent no. 1 actually realize his right of pay protection flowing from the Government Order dated 06.03.1990 that the Tribunal has ordered that he shall be entitled to be given the benefit of annual increment w.e.f. first of January every year and not w.e.f. fourth of June every year.
20. Reasoning given by the Tribunal appeals to us and as observed above in the preceding paragraphs, we are in complete agreement with the same.
21. Learned State Counsel has laid emphasis on the provisions contained in the Fundamental Rules 17 and 27. A perusal of the Fundamental Rule 27 shows that it is only an enabling provision which enables an authority to grant a premature increment to a government servant if, such an authority had the power to create the post in the same cadre on the same scale of pay while Fundamental Rule 17 only provides that every government servant shall draw pay and allowances attached to his tenure or post w.e.f. the date he assumes his duties and not from any other prior date. It further provides that such benefit of pay and allowances shall cease as soon as the Government employee ceases to discharge his duties. There cannot be any dispute so far as the provisions of Fundamental Rules 27 and 17, as relied upon by the learned State Counsel, are concerned, however, the said provisions do not provide for any mechanism to actually provide the benefit of pay protection. If the Government Order dated 06.03.1990, under which the respondent no. 1 was entitled to pay protection is appropriately interpreted, the same cannot, in our considered view, be restricted to fixing the initial pay alone on the date of his joining. He shall be entitled to annual increments as and when the same would have accrued to him had he continued to function in the Nigam, otherwise he will not be actually realizing his right of pay protection.
22. Lastly, the learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Dhyan Singh and others Vs. State of Haryana and others reported in (2002) 10 SCC 656. So far as the aforesaid judgment is concerned, it only provides that any service benefit to the any government servant is impermissible on the basis of his past services rendered in any other organization.
23. There cannot be any dispute to the law laid down by the Hon'ble Supreme Court in the case of Dhyan Singh (supra), however, what we notice in this case is that it is not a case where any benefit of past services rendered by the respondent no. 1 is being extended by the Tribunal for any service benefit. The Tribunal has passed the order under challenge herein only with a view to make the respondent no. 1 actually realize his right of pay protection which flows from the Government Order dated 06.03.1990.
24. In the facts of the case, in our considered opinion, the judgment rendered by the Hon'ble Supreme Court in the case of Dhyan Singh (supra) does not come to rescue of the learned counsel for the petitioner.
25. For the reasons disclosed above, the writ petition being devoid of merit, which is hereby dismissed.
26. We, however, make it clear that we have not provided that petitioner will be eligible or entitled to be given any other service benefit such as promotion, grant of next higher pay scale or promotional pay scale or any other such benefit on the basis of his past services rendered by him in the Nigam.
Order Date :- 2.2.2021 Ashish