30 जून को सेवा निवृत्त होने वाले कर्मचारी को 1 जुलाई को मिलने वाले इन्क्रीमेंट का लाभ नहीं
HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- WRIT - A No. - 63167 of 2015
Petitioner :- Mehdi Hasan
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Syed Ahmed Faizan,Syed Farman Ahmad Naqvi
Counsel for Respondent :- C.S.C.,Manish Goyal
Hon'ble Dilip Gupta, J.
Hon'ble Ravindra Nath Kakkar, J.
The petitioner, who was a Private Secretary in the High Court and whose date of birth is 1 July 1954 and who retired on 30 June 2014, has filed this petition claiming increments that were due from 1 July 2014.
Sri S.F.A. Naqvi, learned counsel for the petitioner has submitted that though the date of retirement of the petitioner may be 30 June 2014 but the last working day of the petitioner would be 1 July 2014 and, therefore, if any increment became due on 1 July 2014, the same should be granted to the petitioner. In support of his contention, learned counsel has placed reliance upon the judgment of the Supreme Court in S. Banerjee Vs. Union of India & Ors.1 and Division Bench decisions of this Court in Mohd. Hussain Vs. State of U.P. & Ors.2 and Ram Anjore Singh Vs. Union of India & Others3.
Sri Manish Goyal, learned counsel for the respondents has, however, submitted that since the date of birth of the petitioner is 1 July 1954, he would retire on 30 June 2014 and, therefore, would not be entitled to any increment that became due on 1 July 2014. The submission is that the decision in Ram Anjore Singh would not be applicable as that was a case relating to grant of pension with effect from 1 July 1996, even though that person retired on 31 December 1995. Likewise, the decision of the Supreme Court in S. Banerjee would also not apply as it dealt with the interpretation upon Rule 5(2) of the Central Civil Service (Pension) Rules, 19724. Learned counsel has submitted that the decision of the Supreme Court in Achhaibar Maurya Vs. State of U.P. & Ors.5 would be applicable to the facts of the case as it has been categorically held that a person born on 1 July would retire on 30 June. Learned counsel has also placed reliance upon the decision of the Supreme Court in Prabhu Dayal Sesma Vs. State of Rajasthan & Anr.6.
We have considered the submissions advanced by learned counsel for the parties.
It is not in dispute that the date of birth of the petitioner is 1 July 1954 and he would attain the age of superannuation on 30 June 2014 but what is sought to be contended by learned counsel for the petitioner is that though the petitioner may have retired on 30 June 2014, his last working day would be 1 July 2014 and, therefore, if any increment became due with effect from that day, he would be entitled to the same.
The issue about 'last working day' was considered by the Supreme Court in S. Banerjee in view of the provisions of Rule 5(2) of the Rules. Rule 5(2) is reproduced below :
"5(2). The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day.
Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 (or Rule 48-A) as the case may be, the date of retirement shall be treated as a non- working day."
In that case the petitioner, who was an Additional Registrar of the Supreme Court, had sought voluntary retirement from service. The Hon'ble the Chief Justice of India accepted the notice and permitted the petitioner to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of 1 January 1986. Paragraph 17.3 of the Fourth Pay Commission Report provides that in the case of employees retiring during the period January 1, 1986 to December 30, 1986, government may consider treating the entire dearness allowance drawn by them upto December 31, 1985 as pay for pensionary benefits. The dispute that arose was whether the petitioner would be entitled to this benefit. It is in the context of Rule 5(2) that it was urged by the government that 1 January 1986 would not be the last working day and so he would not be entitled to the aforesaid benefit conferred by paragraph 17.3. The Supreme Court observed that the petitioner came within the purview of the benefit since his voluntary retirement was accepted with effect from the forenoon of 1 January 1986 and it could not be urged that he stood retired on 31 December 1985.
As noted above, the concept of last working day is because of Rule 5(2) of the Rules and not otherwise. For all practical purposes, the petitioner retired on 30 June 2014. This has also been observed by the Supreme Court in Achhaibar Maurya wherein Rule 29 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 came up for interpretation. Rule 29, which deals with age of superannuation, is reproduced below:-
"29.Age of superannuation.(1) Every teacher shall retire from service in the afternoon of the last day of the month in which he attains the age of 60 years :
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 Supreme Court examined the question as to whether the petitioner could get the benefit of the extended period of service upto 30 June of the next year. That would depend upon the retirement of the teacher on or after 1 July. It is in this context that the Supreme Court observed that the petitioner retired on 30 June and, therefore, would not be entitled to the benefit of the extended session. The observations are as follows:
"7. The question in regard to the determination of age of superannuation of an employee is governed by the Rules. Indisputably, the terms and conditions of service of an Assistant Teacher are governed by the provisions of 1972 Act and the Rules framed under sub-section (1) of Section 19 thereof. The Rules were amended on or about 12.6.1989. In terms of Rule 29, a teacher is to retire on the date on which he had completed 60 years on the last day of month when the person is born.
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 upto 30th June and the next year will depend upon the situation as to whether the teacher retires on or after 1st July or not.
9. In Khan Chandra Madhu (1992) 2 UPLBEC 1128, the learned Judge proceeded on the basis that the academic session starts on 2nd July and ends on 30th June.
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 employee's 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 (supra)."
S. Banerjee was distinguished by the Supreme Court in paragraph 11 and the same is reproduced below:
"11. In S. Banerjee Vs. Union of India & Ors.[1989 Supp.2 SCC 486], 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."
The Supreme Court in fact followed its earlier decision in Prabhu Dayal Sesma in paragraph 13 which is reproduced below :
13. ............In calculating a persons age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday."
The decision in S. Banerjee would, therefore, not help the petitioner.
In Ram Anjore Singh, on which reliance has been placed by learned counsel for the petitioner, the Division Bench held that though the petitioner may have retired on 31 December 1995 but for the purpose of pension, he would be entitled to draw it with effect from 1 January 1996 and, therefore, could not be treated to be a pre-1996 pensioner.
In our opinion, the issue in hand is governed by the decision of the Supreme Court in Achhaibar Maurya and Prabhu Dayal Sesma. Learned counsel for the petitioner has, however, placed reliance on the judgment in Mohd. Hussain. As noticed above, in Mohd. Hussain reliance was placed on Ram Anjore Singh and S. Banerjee. Both these cases, in our opinion, would not apply to the facts and circumstances of the present case. S. Banerjee, as noted above, was distinguished by the Supreme Court in Achhaibar Maurya. The Division Bench in Mohd. Hussain did not notice the decisions of the Supreme Court in Achhaibar Maurya and Prabhu Dayal Sesma. These two decisions of the Supreme Court dealt with the issue as to what would be the date of retirement of a person born on 1 July. This is precisely the issue in hand. The petitioner retired on 30 June 2014. He would, therefore, not be entitled to the benefit of increments made effective from 1 July 2014.
We, therefore, find no merit in this petition. It is, accordingly, dismissed.
(Dilip Gupta, J.)
(Ravindra Nath Kakkar, J.)