An employee, who has retired on the 31st of a month, cannot claim the benefit of an increment which became due on the 1st of the next month, as on that day, his status is not that of an employee but of a pensioner, held the Himachal High Court.
A Division Bench of Justices Tarlok Singh Chauhan and Jyotsna Rewal Dua held in the writ petition filed by , Senior Hydrogeologist in the Department of Industries (Geological wing) who had retired on March 31, 2003,that “the date of increment falls due on the first 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 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, the petitioner contended.
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”.
Against this judgment a preferred special leave petition was dismissed in limine by the Supreme Court in 2018.
“The law in this regard is settled by the Supreme Court and must be applied in this case”, the petitioner contended.
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, the division bench refused to apply this principle.
“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”, it held.
While relying on the orders passed by the High Courts of Madhya Pradesh and Andhra Pradesh, the State Counsel argued that 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.
Court held that,
“The petitioner was not on duty on 1.4.2003. The 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, an 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.
