P.K. MISRA, J The Union of India has filed this writ petition against the order, dated 24.9.2004, passed by the Central Administrative Tribunal, Madras Bench, (hereinafter referred to as the Tribunal) in O.A.No.87 of 2004, whereunder the Tribunal, while quashing the order dated 7.3.2003, has directed the present petitioner to revise the Death-cum-Retirement Gratuity (DCRG) and the Surrender Leave Salary (SLS) by taking into account the increment due on 1.6.1990.
2. The basic facts, which were projected before the Tribunal, are as follows :-
The present contesting Respondent No.1, who was the applicant before the Tribunal, joined service as Upper Division Clerk on 19.7.1954 and retired on superannuation as Audit Officer on 31.5.1990. The DCRG and SLS had been calculated on the basis of the last pay drawn which had been paid without taking into account the annual increment which was to fall due on 1.6.1990. The respondent / applicant filed a representation dated 22.2.2002 to the present petitioner stating that he had completed the last year of service from 1.6.1989 to 31.5.1990 and, therefore, the increment, which was due on 1.6.1990 Forenoon, was payable and on that basis the DCRG and other benefits should be recalculated. Such representation was apparently rejected by order dated 6/7-3-2003. Thereafter, O.A.No.87 of 2004 was filed with the following reliefs :-
"(i) To set aside the impugned orders dated 6th/7th March 2003 of the respondent.
(ii) To allow the increment due on 1-6-90 and revise the death-cum-retirement gratuity.
(iii) To revise the surrender leave salary by taking into account the increment due on 01-06-90.
(iv) To give consequential increase in pension due to increase in salary."
3. The present petitioner, relying upon various rules relating to superannuation, took the stand that DCRG and other retirement benefits are to be calculated on the basis of the emoluments, which the concerned person was receiving immediately before retirement, and since the person had retired on 31.5.1990, there was no question of calculating even on notional basis the increment due on 1.6.1990 as by then the person had already retired.
4. The Tribunal, by relying upon the judgment of the Central Administrative Tribunal, Hyderabad Bench in O.A.No.797 of 2002 dated 12.11.2002, which had been passed on the basis of the judgment of the Andhra Pradesh High Court in W.P.Nos.1219 & 1409 of 1998, which in its turn had relied upon a decision of the Supreme Court in AIR 1990 SC 285 : 1989 Supp (2) SCC 486 (S. BANERJEE v. UNION OF INDIA), quashed the impugned order dated 7.3.2003 and directed the present petitioner to allow the date of increment on 1.6.1990 and to revise the DCRG and the Surrender Leave Salary accordingly. The said order is in question in the present writ petition.
5. Learned counsel for the petitioner has submitted that, as a matter of fact, the Division Bench decision of the Andhra Pradesh High Court, which was relied upon by the Tribunal for granting the relief to the present Respondent No.1, has been subsequently overruled in a decision of the Full Bench of the very same Andhra Pradesh High Court in W.P.NOs.22042, 24191, 24308, 24324 and 24325 of 2003 (The Principal Accountant General, Andhra Pradesh V. C. Subba Rao).
6. A copy of the decision of the Full Bench of the Andhra Pradesh High Court has been enclosed by the petitioner as a part of the typed set filed along with the writ petition. On a perusal of the said judgment, it is apparent that the Full Bench had framed two points for consideration. In the present case, we are concerned with the first point, which is to the following effect :-
I. Whether a Government servant who retires on the last working day of the preceding month and whose annual increment falls due on the first of the succeeding month is entitled for sanction of annual increment for the purpose of pension and gratuity?"
7. In the said case, ultimately, the Full Bench, while distinguishing the decision of the Supreme Court in Banerjees case, held that the Division Bench decision of the Andhra Pradesh High Court had not been correctly decided and it was specifically observed that A person retired on the last working day would not be entitled for any increment falling due on the next day and payable next day thereafter. As a matter of fact, the order of the Tribunal of the Andhra Pradesh, which was also one of the orders, relied upon in the present impugned order, was specifically quashed in the said case. It is thus apparent that the basis on which the present impugned order had been passed by the Tribunal was found to be erroneous by the Full Bench of the very same Andhra Pradesh High Court. However, since the decision of the Andhra Pradesh High Court is only of persuasive value, we are required to consider the matter independently.
8. As per F.R. 17(1), an officer is entitled to draw the pay and allowances with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge the duties of that post.
As per F.R. 56(a), every Government servant shall retire from retire on the afternoon of the last preceding month in which he attains the age of sixty years. Where, however, the date of birth of a Government servant is the first of a month, he shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.
As per F.R. 33, the expression 'Emoluments' means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement.
'Pay' as defined in F.R.9(21)(a)(i) means the amount drawn monthly by a Government servant which also includes the increment allowed at an anterior date. (Emphasis added) F.R. 22 governs the initial pay of a Government servant who is appointed to a post in time-scale and F.Rs.24 and 26 govern the sanction of increment to a Government servant, who is on duty. It is thus obvious that as per F.R.17 read with FRs.24 and 26, no employee would be entitled to any increment if it falls due after the date of retirement.
9. Learned counsel for Respondent No.1 has submitted that the previous increment had fallen due on 1.6.1989 and since the concerned employee can be said to have completed one year on 31.5.1990, it can be taken that he had earned the increment and merely because he had retired on 31.5.1990, it cannot be said that the next increment was not due to him. It is further submitted by him that any other interpretation would cause great hardship in all cases, where the date of increment fallen due immediately after the scheduled date of retirement.
10. Even though such a submission may prima facie appear to be attractive, we do not think it can be accepted in view of the clear provisions contained in F.Rs.9(21)(a)(i), 17, 24 and 26 and F.R. 56. As a matter of fact, we may say so with respect that in the unreported decision of the Full Bench of the Andhra Pradesh High Court, the entire matter has been considered in a great detail and it may not be necessary for us to retrace the entire path, save and except by making reference to appropriate observations made in such Full Bench decision as we are in respectful agreement with the views expressed therein.
11. In course of the above judgment, after referring to the definition of 'pay' as contained in F.R.9(21)(a)(i), 'time scale of pay' as referred to in F.R. 9(31) and F.Rs.17, 24 and 26 and F.R. 56(a), it was observed inter alia :-
"... A reading of various Fundamental Rules extracted hereinabove would show that a person appointed as a Government servant is entitled to pay in time-scale of pay. He is also entitled to draw the increment as per time-scale of pay as a matter of course as long as such Government servant discharges duties of the post and such Government servant shall not be entitled to draw the pay and allowances attached to the post as soon as he ceases to discharge those duties. In other words, as per F.R. 17 read with F.Rs.24 and 26 annual increment is given to a Government servant to enable him to discharge duty and draw pay and allowances attached to the post. If such Government servant ceases to discharge duties by any reason say, by reason of attainment of age of superannuation, such Government servant will not be entitled to draw pay and allowances. As a necessary corollary, such employee would not be entitled to any increment if it falls due after the date of retirement, be it on the next day of retirement or sometime thereafter.
F.R.56(a) creates a legal fiction. Even if a person attains the age of 60 years on any day of the month, he shall be retired on the afternoon of the last day of the month. A Government servant, who attains the age of 60 years on any day in a month, is deemed to have not attained the superannuation till the last day of the month. In the case of a Government servant, whose date of birth is first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years. In this case, actually and factually, a Government servant would have completed the age of 60 years a day before the date on which his date of birth falls. Therefore, there are two situations. In the first situation, a Government servant though he attains the age of 60 years on any day of the month, he is deemed to have not attained such age till the afternoon of the last day of that month. Assuming that such a situation is not contemplated - as in the case of persons holding constitutional offices like, Judges of Supreme Court, High Court Members of Election Commission, Comptroller and Auditor General etc., of a Government servant is retired on a day before the actual date of birth on any day of the month and the increment of such Government servant falls on the first of the succeeding month can he claim annual grade increment? The answer must be an emphatic "no". Because, by the date on which the increment falls due, such Government servant ceased to be a Government servant. It is therefore logical and reasonable to conclude that merely because for the purpose of F.R.56(a), a person is continued till the last date of the month in which he attains the age of superannuation, such an employee cannot claim increment which falls due on the first day of the succeeding month after retirement.
In second situation, a Government servant, who is covered by the proviso to F.R.56, that is to say, whose date of birth is first of a month, such employee has to retire on the last day of the preceding month. In Courts' considered opinion, no distinction can be made in both the cases, as the Government servants retired on the last day of the month and with effect from first day of succeeding month ceases to discharge Government duties and no pay is payable. If an increment is denied to a Government servant falling under F.R.56(a) though he retires on the last day of the month, the same principle will have to be applied to a Government servant falling under first proviso to F.R.56. Such interpretation would sub-serve the principle of equality and has to be preferred to any other possible and plausible method of interpretation. It is well settled that a provision of law has to be interpreted in a non-discriminatory manner in tune with principle of equality before law and equal protection of laws enshrined in
Article 14 of the Constitution of India (See in K.P. Vargese v. I.T. Officer, Ernakulam). Yet another situation is where the date of birth of a Government servant falls on the last day of the month. In such a case, he has to necessarily retire on the same day on which his date of month, he would not be entitled for any annual increment."
12. In another unreported decision of the High Court of Karnataka in W.P.No.18186 of 2003 (UNION OF INDIA & 3 OTHERS v. Y.N.R. RAO), disposed of on 8.12.2003, while dealing with the question of payment of retirement gratuity and a contention regarding applicability of the Rule, which enhanced the maximum amount of gratuity payable, after analysing F.R. 56 and Rule 5 of the Pension Rules, a Division Bench speaking through Justice R.V. Raveendran, as His Lordship then was, observed as follows :-
5. But for the provisions of FR 56, which provides that a Government Servant shall retire from service on the afternoon of last date of the month in which he had attained the age of 58 years, the respondent, who was born on 9-3-1937 would have retired on 8-3-1995. The provision for retirement from service on the afternoon of the last date of the month in which the Government Servant attains the age of retirement instead of on the actual completion of the age of retirement in FR 56 was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to clause (a) of FR 56 which provides that an employee whose date of birth is first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 58 years. Therefore, if the date of birth of a government servant is 1-4-1937 he would retire from service not on 30-4-1995, but on 31-3-1995. If a person born on 1-4-1937 shall retire on 31-3-1995, it would be illogical to say a person born on 9-3-1937 would retire with effect from 1-4-1995. That would be the effect, if the decision of the Full Bench of the CAT, Mumbai, is to be accepted. Therefore, a government servant retiring on the afternoon of 31-3-1995 retires on 31-3-1995 and not from 1-4-1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant retiring on the afternoon of 31st March is to be treated as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law.
6. Rule 5(2) of Pension Rules provides that the day on which a government servant retires from service shall be treated as his last working day. Rule 3(o) defines 'pension' as including gratuity except where the term 'pension' is used in contra-distinction to gratuity. Rule 5(1) provides that any claim for pension (or gratuity) shall be regulated by the provisions of CCS Pension Rules in force at the time when a government servant retires from service. A combined reading of these clauses makes it clear that the date of retirement is the last date of the month in which the Government servant retires and the Retirement Gratuity is to be calculated as per Rules in force on that date. As the respondent retired on 31-3-1995, his entitlement to gratuity will be governed by the Pension Rules as on 31-3-1995. As per Rule 50 as it stood on 31-3-1995, the maximum amount payable as retirement gratuity of Rs.1,00,000/- and therefore the Department was justified in paying only Rs.1,00,000/- to the respondent.
13. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court and by the Division Bench of the Karnataka High Court with respect is in accord with the relevant provisions and has our unstinted concurrence.
14. The decisions on the basis of which the Tribunal had granted the relief to Respondent No.1 had inspiration from the observations made by the Supreme Court in Banerjee's case (cited supra). In the said case filed under
Article 32 of the Constitution of India before the Supreme Court, the petitioner was an Additional Registrar of the Supreme Court before his retirement. Even though his normal date of retirement was 31.3.1987, he had sought for voluntary retirement from service and by office order dated 6.12.1985 it was specifically indicated that the Hon'ble the Chief Justice of India had ". . . permitted him to retire voluntarily from the service of the Registry of the Supreme Court of India with effect from the forenoon of January 1, 1986." As per para 17.3 of Chapter 17 of Part II of the IV Central Pay Commission Report, it had been indicated :-
"17.3. In the case of employees retiring during the period January 1, 1986 to September 30, 1986, government may consider treating the entire dearness allowance drawn by them up to December 31, 1985 as pay for pensionary benefits."
On the basis of such recommendation, which had been accepted by the Government, the petitioner had claimed that the entire Dearness Allowance drawn upto 31.12.1985 should be treated as pay for calculating pensionary benefits. The contention raised on behalf of the Union of India was to the effect that by virtue of proviso to Rule 5(2) of the Central Civil Service (Pension) Rules, 1972, it should be taken that date of retirement of the petitioner should be treated as non-working day and, therefore, the petitioner was not entitled to salary for the day of his retirement and not entitled for the benefit of the recommendation of the Pay Commission as contained in para 17.3 of the Pay Commission Report. The above contention was repelled by the Supreme Court by observing inter alia:-
"6. . . . But, in our opinion, that has no bearing on the question as to the date of retirement. Can it be said that the petitioner retired on 31-12-1985 ? The answer must be in the negative. Indeed, Mr Anil Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on 31-12-1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on 31-12-1985. Then it must be held that the petitioner had retired with effect from 1-1-1986 and that is also the order of this Court dated 6-12-1985. It may be that the petitioner had retired with effect from the forenoon of 1-1-1986 as per the said order of this Court, that is to say, as soon as 1-1-1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on 1-1-1986 and not on 31-12-1985. In the circumstances, the petitioner comes within the purview of para 17.3 of the recommendations of the Pay Commission."
15. The Full Bench of the Andhra Pradesh High Court, after taking note of the observations made in S. Banerjee's case, has concluded that the ratio of the said decision was not applicable for considering the question as to whether the person who retires on the last day of a month can claim that the increment which falls due on the first day of the subsequent month is to be taken into account for the purpose of payment of retiral benefits.
16. The ratio of the said decision would have no application inasmuch as it has been emphasised in the said decision of the Supreme Court that as a matter of fact the person had retired in the forenoon of January 1, 1986 and as such he was coming within the purview of para 17.3 of the Pay Commission Report, which was made applicable to the employees during the period 1.1.1986 to 30.9.1986.
17. As a matter of fact, the aforesaid decision of the Supreme Court has been distinguished in a very recent case of the Supreme Court in (2008)2 SCC 639 (ACHHAIBAR MAURYA v. STATE OF UTTAR PRADESH AND OTHERS). In the above decision, the date of birth of the appellant before the Supreme Court, who was an Assistant Teacher in a primary school, was 1.7.1943 and, as per the relevant rule, his age of superannuation was ". . . in the afternoon of the last day of the month in which he attains the age of 60 years". The proviso to the aforesaid rule was to the following effect :-
"Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period of service will be deemed as extended period of employment."
The contention of the appellant was to the effect that he was to retire from service on 1.7.2003 and, therefore, he should have been extended the benefit contemplated in such proviso. Strong reliance was placed by the appellant on the decision of the Supreme Court in S. Banerjee's case. The Supreme Court negatived the contention by observing :-
"8. As the appellant was born on 1-7-1943, he would retire on 30-6-2003. The question as to whether he would obtain the benefit of extended period of service up to 30th June and the next year will depend upon the situation as to whether the teacher retires on or after 1st July or not.
. . .
10. A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employees last working date would depend on the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the Constitution of India. A statute cannot be declared unconstitutional for conferring benefit to a section of the people. We, therefore, do not agree with the view taken in Khan Chandra Madhu.
11. In S. Banerjee v. Union of India, whereupon reliance has been placed, the fact situation obtaining was completely different. In that case, the appellant filed an application for voluntary retirement which was accepted from the forenoon of 1-1-1986. In that view of the matter, he was found to be entitled to the benefit of Para 17.3 of the Recommendations of the Pay Commission."
18. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court and the Division Bench of the Karnataka High Court is in accord with the ratio of the above decision of the Supreme Court, which even though rendered slightly on a different context appears to be squarely applicable.
19. As already noticed at the threshold, the Tribunal had granted the relief on the basis of an earlier decision of the Andhra Pradesh High Court and of the Central Administrative Tribunal, Hyderabad Bench. The Division Bench of the Andhra Pradesh High Court has been overruled by the Full Bench decision which had in fact reversed the decision of the Tribunal. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court is squarely applicable and is consistent with the latest decision of the Supreme Court in Achhaibar Maurya's case.
20. It is also necessary to notice another feature in the present case. Respondent No.1 had retired on 31.5.1990. Respondent No.1 was essentially claiming that DCRG and SLS should be recalculated by taking into account the increment due on 1.6.1990. Even though Respondent No.1 had also claimed ". . . consequential increments in pension due to increase in salary", the Tribunal appears to have specifically granted the relief of DCRG and SLSby observing that the Department should consider the case of the applicant and allow the date of increment on 1.6.1990. Even though it may be stated that right to get pension may be a continuing cause of action and therefore the right to get appropriate pension can be said to accrue every month, the DCRG and SLS have been calculated on the basis of the last pay actually drawn by the applicant and must have been paid to the applicant soon after 31.5.1990 and in any case long before 2004. If at all the applicant (Respondent No.1) had any grievance relating to payment of DCRG and SLS, the cause of action had arisen long before. It is obvious that Respondent No.1 / applicant got the inspiration to file the Original Application by first making a representation on 22.2.2002, long after the period of limitation. Merely because such representation was rejected by the Government on a subsequent date, it cannot be said that the period of limitation for getting DCRG and SLS (as we have already expressed that we are not considering the question of grant of pension at the proper rate as in the present case there has been no such direction by the Tribunal) got extended or gave rise to a fresh cause of action. Under such circumstances, in our considered opinion, the decision of the Supreme Court in 2008 AIR SCW 7233 (C. JACOB v. DIRECTOR OF GEOLOGY & MINING & ANOTHER) is also applicable. The Original Application was also liable to be dismissed on the aforesaid ground.
21. For the aforesaid reasons, we are unable to uphold the order passed by the Tribunal, which is accordingly quashed. The writ petition is allowed accordingly. No costs. Consequently, WPMP.No.30978 of 2005 is closed.
dpk To The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104