Shaymlal L Sharma (M) , vs M/O RAILWAYS (M) , THE GENERAL MANAGER , DIVISIONAL RAILWAY MANAGER ,

CENTRAL ADMINISTRATIVE TRIBUNAL AHMEDABAD BENCH, AHMEDABAD.

OA No.14/2021 with MA No.14/2021 This the 12th day of March, 2021 CORAM : Hon’ble Shri Jayesh V.

Bhairavia, Member (J) Hon’ble Dr.

A.K.Dubey, Member (A) Shyamlal Sharma S/o.

Laxminarayan Sharma Age 64 Years, Resident at : C/o.

Rajendrakumar Sharma 60/2 Shubh Laxmi Raw House Prahlad Park, Jagatpur Nr.Chandkheda Railway Crossing Ahmedabad-382470 ……………………...Applicant (By Advocate : Ms.Vilas Purani) Versus 1.

The Railway Board Notice to be served through the Chairman, Railway Board, New Delhi-110001 2.

The General Manager Western Railway Churchgate Mumbai-400020 3) Divisional Railway Manager (E) Western Railway Kalupur, Ahmedabad 380 001………Respondents (By Advocate : Shir A.L.Sharma O R D E R (ORAL) Per : Hon’ble Shri Jayesh V.Bhairavia, Member (J) 1.

Considering the reasons and grounds stated in the MA 14/2021 for condonation of delay, the same is allowed.

OA/14/2021 CAT, Ahmedabad Bench -2- 2.

In the present OA, the applicant being aggrieved for not granting the annual increment w.e.f.

01.07.2016 by the respondents has filed the present OA seeking reliefs to declare inaction on the part of the respondents in not granting annual increment, as illegal, arbitrary and in violation of Articles 14 & 16 of the Constitution, further prayed to declare that respondents have illegally withheld his annual increment accrued w.e.f.

01.07.2016 and the respondents have illegally denied to apply the decision of Madras High Court in case of P.Ayyamperumal v/s Union of India decided on 15.09.2017, as also prayed for a direction to respondents to extend the benefit of annual increment w.e.f.

01.07.2010 and accordingly revise the pension of the applicant and pay the amount of arrears of pension from the date of his retirement till date of payment with 12% interest.

3.

It is contended by the learned counsel for the applicant that applicant was appointed under the Respondent No.3 on 06.07.1979 and superannuated on 30.06.2016.

0.06.2016.

In the year 2008, after the introduction of VIth CPC, the Railway Board fixed 1st July of every year as the date of increment.

The Rule 10 of the Railway Services (Revised Pay) Rules 2008 stipulates that there will be uniform date of annual increment, viz.

1st July of every year, employees completing six months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment.

The said Rule 10 reads as under:- “10 Date of next increment in the revised pay structure – There will be a uniform date of annual increment, viz., 1st July of every year.

Employees completing 6 months and above in the revised pay structure as on 1st of July will be eligible to be granted the increment.

The first increment after fixation of pay on 1.1.2006 in the revised pay structure will be granted on 1.7.2006 for those employees for whom the date of next increment was between 1st July 2006 to 1st January 2007.

Provided that in the case of persons who had been drawing maximum of the existing scale for more than a year as on the 1st day of January, 2006, the next increment in the revised pay structure shall be allowed on the 1st day of January, 2006.

Thereafter, the provision of Rule 10 would apply.

OA/14/2021 CAT, Ahmedabad Bench -3- Provided that in cases where an employee reaches the maximum of his pay band, shall be placed in the next higher pay band after one year of reaching such a maximum.

At the time of placement in the higher pay band, benefit of one increment will be provided.

Thereafter, he will continue to move in the higher pay band till his pay in the pay band reaches the maximum of PB-4, after which no further increments will be granted.

Note:1 In cases where two existing scales, one being a promotional scale for the other, are merged, and the junior Railway servant, now drawing his pay at equal or lower stage in the lower scale of pay, happens to draw more pay in the pay band in the revised pay structure than the pay of the senior the senior Railway servant in the existing higher scale, the pay in the pay band of the senior Railway servant shall be stepped up to that of his junior from the same date and he shall draw next increment in accordance with Rule 10.

4.

According to the applicant, he has rendered service from 01st July 2015 till 30th June 2016, in view of completion of one year service, he became entitled for his increment which is otherwise not withheld.

As such, the right was accrued and the respondents illegally deprived the legitimate right of applicant to receive the benefit of increment of his pay.

It is also submitted that the Hon’ble High Court of Madras in case of P.Ayyamperumal v/s Union of India decided on 15.09.2017 decided that the Government of India is required to grant annual increment falling on 1st July of the year to the employees who superannuated on 30th June of relevant year.

However, the Hon’ble High Court directed the respondents to grant one notional increment for the period from 01.07.2009 to 30.06.2010 to the concerned petitioner, as he had completed one full year of service though their increments were on 01.07.2010, the said ratio on dismissal of SLP by the Hon’ble Apex Court attained finality.

Therefore, the same is applicable to the facts of the present case.

5.

The learned counsel submits that, when in a similar issue, the Hon’ble Court has taken a view then the similarly situated employees should be extended the said benefit without compelling them to knock the doors of court of law.

To substantiate this submission, the applicant has placed reliance on various judgments of Hon’ble Apex Court and the High Court as mentioned in the OA.

OA/14/2021 CAT, Ahmedabad Bench -4- 6.

Per contra, the learned standing counsel for the respondents mainly submitted as under:- 6.1 The applicant retired on 30.06.2016, his monthly pension was fixed and the settlement of his retiral dues and grant of pension was done on the basis of extant rules. ant rules.

The said rule does not allow notional increment for the purpose of pensionary benefits after the date of retirement.

In this regard the counsel for the respondents referred certain provisions stipulated in IREC which are as under:- (A) 1801 (FR 56)-(a) Except as otherwise provided in this rule, or any other rule or order for the time being in force, every railway servant shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 60 years.. (B) The Railway servant is entitled to draw pay only for the period he discharges his duties attached to his tenure post as laid down in para 1302 (FR 17)(1)) of the IREC Vol.

I which reads as under:- “1302 (FR 17)(1) –Pay and Allowances – Subject to any exception specifically made in these rules and to the provision of sub rule (2) a railway servant shall begin to draw the pay and allowances attached to his tenure of post w.e.f. the date he assume the duties of the post, and shall cease to draw them as soon as he ceases to discharge those duties.

Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.” (C) The pay of the railway servant has been defined in para 1303 (FR 9) (21)(a).

6.2 In pursuance of the Government decision on the recommendation of the VIth CPC, the Rules regulating pension, retirement/gratuity etc containing Railway Servants (Pension) Rules 1993 were suitably modified by the Ministry of Railways vide letter dated 15.09.2008 (RBE 112/2008).

Accordingly, the revised provisions were made applicable to Railway Servants who retired/expired in harness on or after OA/14/2021 CAT, Ahmedabad Bench -5- 01.01.2006.

As per the para 5.2 of the said RBE, the pension to the applicant has been granted w.e.f 01.07.2016.

6.

7.2016.

6.3 There is no provision in Rule 10 of the Railway Services (Revised Pay) Rules 2008 wherein a retired Railway servant has to be granted increment after his date of retirement.

As per the said rule, an uniform date of annual increment is mandated i.e.

1st July of every year for the purpose of revision of pay structure of the Railway Employee.

Since applicant retired on 30.06.2016, he is not eligible to claim any increment.

6.4 It is submitted that the judgment passed by Hon’ble High Court of Madras in case of P.

Ayyamperunal are in personam and not in rem, the SLP filed thereon was dismissed inlimine.

Therefore the said judgment does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.

In this regard, learned counsel placed reliance on the judgment passed by Hon’ble Division Bench of Himachal Pradesh High Court in the case of Hari Prakash R v/s State of Himachal Pradesh & Ors. decided on 06th November, 2020 in CWP No.2503/2016, a/w CWPOA No.663 of 2020 wherein the Hon’ble High Court held that “In (2020) 5 SCC 421, titled UOI & Ors v/s M V Mohanan Nair, it was held that the law declared by the Supreme Court essentially understood as principle laid by the court and it is this principle which has the effect of a precedent.

A principle can be delivered only after examination of the matter on merits and not on the basis of a decision delivered on technical grounds without entering into the merits at all.

A decision unaccompanied by reason cannot be said to be a law declared by the Supreme Court though it will bind the parties inter se in the litigation.” The Hon’ble High Court after referring the para 48 of the judgments in case of M V Mohanan Nair (supra), further held that, “...........Therefore, it cannot be said that dismissal of SLP OA/14/2021 CAT, Ahmedabad Bench -6- against the judgment rendered in P. ered in P.

Ayyamperunal’s case (supra), the Apex Court had laid down the binding principle of law that increment which falls due on 1st day post retirement of an employee is to be granted to him only for the reason that he has rendered twelve months of service on the day of his retirement.” Further, by upholding the impugned decision of the HP Administrative Tribunal dated 08.08.2016, the Hon’ble High Court also observed that “we have already held that petitioner had retired on 31.03.2003 on the basis of pay drawn by him on that day.

His status as on 01.04.2003 was that of a pensioner.

Therefore, increment which fell on 01.04.2003 cannot be granted in his favour.” 6.5 Learned counsel for the respondents by relying upon judgment passed by Hon’ble Andhra Pradesh High Court in the case of B.E.Swaraiah v/s.

The Presiding Officer, Labour Court – I Hyderabad and Anr. decided on 11.02.2014 in WP 1846/2006, it is submitted that the judgment passed by coordinate Bench after considering the principle laid down by Apex Court on the point of binding precedent and the relevant statutory provision, the said later judgment requires to be followed.

Therefore, the recent judgment passed by Division Bench of Himachal Pradesh wherein it has been that “in the case of P.

Ayyamperumal, the Hon’ble Apex Court dismissed the SLP inlimine and had not laid down any binding principle”, is required to be considered.

Under the circumstances, the judgments relied upon by the applicant are not of any help to him.

7.

Heard the learned counsel for the parties and perused the material placed on record.

8.

It is noticed that the respondents vide impugned decision informed the applicant that with respect to granting benefit of one increment on superannuation, no instruction has been received from Railway OA/14/2021 CAT, Ahmedabad Bench -7- Board, as and when policy/instructions received from Railway Board, action will be taken accordingly. cordingly.

It is noticed that Ministry of Railways (Railway Board) vide its notification dated 04.09.2008 i.e.

RBE 103/2008 declared that in exercise of the power conferred by the proviso to Article 309 of the Constitution, the President made the rules which is called as “the Railway Services (Revised Pay) Rules 2008.” According to the said publication, the rules shall be deemed to have come into force on the 1st day of January 2006.

The Rule 10 stipulates that “date of next increment in the revised pay structure – There will be a uniform date of annual increment, viz.

9.

In the present case, undisputedly the applicant superannuated on 30th June 2016 i.e. before the date of annual increment.

In other words as on 1st July 2016, he was not in service and became a pensioner.

9.1 It is noticed that, by following the observations and findings in the order passed by Division Bench of Hon’ble High Court of Madras in case of P Ayyamperumal v/s Union of India decided on 15.09.2017 WP No.15732 of 2017 various judgments and order passed by different High Courts and the Tribunals including the order passed by Hon’ble High Court of Gujarat in the case of Union of India v/s Laxmanbhai Kalabhai Chavda dated 27.1.2021 wherein in decision of the Tribunal that the employee superannuated on 30th June after completing entire previous year of service was entitled to next increment falling on 1st July was upheld.

9.2 At this stage, it is also important to mention that in an identical issue the Hon’ble Division Bench of Himachal Pradesh High Court in the case of Hari Prakash R v/s State of Himachal Pradesh & Ors decided on 06th November, 2020 in CWP OA/14/2021 CAT, Ahmedabad Bench -8- No.2503/2016, a/w CWPOA No.

CWPOA No.663 of 2020 wherein the Hon’ble High Court held that “In (2020) 5 SCC 421, titled UOI & Ors v/s M V Mohanan Nair, it was held that the law declared by the Supreme Court essentially understood as principle laid by the court and it is this principle which has the effect of a precedent.

A decision unaccompanied by reason cannot be said to be a law declared by the Supreme Court though it will bind the parties inter se in the litigation.” The Hon’ble High Court after referring the para 48 of the judgments in case of M V Mohanan Nair (supra), further held that, “...........Therefore, it cannot be said that dismissal of SLP against the judgment rendered in P.

Ayyamperunal’s case (supra), the Apex Court had laid down the binding principle of law that increment which falls due on 1st day post retirement of an employee is to be granted to him only for the reason that he has rendered twelve months of service on the day of his retirement.” Further, by upholding the impugned decision of the HP Administrative Tribunal dated 08.08.2016,the Hon’ble High Court also observed that “we have already held that petitioner had retired on 31.03.2003 on the basis of pay drawn by him on that day.

Therefore, increment which fell on 01.04.2003 cannot be granted in his favour.” 9.3 It is also appropriate to mention that before passing the detailed order in this OA, the counsel for the parties have brought to the notice of this Tribunal that recently the Hon’ble Apex Court in identical case vide order dated 05.04.2021 in SLP (C) No.4722 of 2021 UOI v/s.

M.

Siddaraj arising out of impugned order dated 22.10.2020 in WP No. in WP No.146967/2020 OA/14/2021 CAT, Ahmedabad Bench -9- passed by High Court of Karnataka (Circuit Bench at Dharwad) has stayed the operation of order passed by CAT, Bangalore Bench dated 18.12.2019 in OA No.677/2019 in case of M Siddaraj v/s Union of India.

It is noticed that the Bangalore Bench of this Tribunal in the case of M.

Siddaraj by relying upon the order passed in Shri P Ayyamperumal (supra), as also order passed in OA No.165/2009 directed the respondents to grant one notional increment as the employees had completed one entire year of service as on 30th June.

The Hon’ble Apex Court vide order dated 05.04.2021 the further directed the respondents that “in the meanwhile without prejudice to the rights and contentions of parties, the retiral dues of the employees be computed on the basis of last pay drawn by him on the date of his retirement, that is, 30.06.2014.” 9.4 It is noticed that based on the aforesaid order of Hon’ble Apex Court, the Railway Board vide its order dated 13.04.2021 directed the General Manager (P) of India Railways to intimate the order dated 05.04.2021 passed by Hon’ble Apex Court.

10.

In view of the above factual matrix, since the Hon’ble Apex Court has stayed the operation of direction of Bangalore Bench of this Tribunal with regard to grant of notional increment on 1st July to the employees who superannuated on 30th June, we do not find any reason to interfere at this stage with the decision of the respondents.

Accordingly OA stands disposed of.

No costs. (A.K.Dubey) (Jayesh.V.Bhairavia) Member(A) Member(J) nk