Representations regarding grant of annual increment to the employees retires on 30th June of the year: DoP&T O.M.
No. 1396752/2019-Rstt (Pay-I)
Government of India
Ministry of Personnel, Public Grievances & Pensions
(Department of Personnel & Training)
Government of India
Ministry of Personnel, Public Grievances & Pensions
(Department of Personnel & Training)
North Block, New Delhi
Dated the 11 November, 2019
Dated the 11 November, 2019
OFFICE MEMORANDUM
Subject: Representations regarding grant of annual increment to the employees retires on 30th June of the year -regarding
The undersigned is directed to refer to
letter No. PC VI /2018/R-] /1 of Ministry of Railways dated 14/ 10/2019
on the subject cited above wherein comments of this Department has been
sought on the directions of Hon’ble CATs issued in several Court cases
filed by Railways employees Seeking the benefits of notional increment
for the Pensionary benefits as per the judgment in P.Ayyamperumal case.
2. In this matter, With reference to Central Government employees, the following is hereby Stated:
2.1. In go far as P. Ayyamperumal case
is concerned, referred in the instant cases also, it is Stated that the
judgment Hon’ble High Court of Madras in Pp. Ayyamperumal case is in
Personam.
2.2 Further, the case of Sh. M
Balasubramaniam referred by Hon’ble High Court in it’s Judgment in P,.
Ayyamperumal case is related to Fundamental Rules of Tamilnadu
Government whereas P. Ayyamperumal case relates to Central Government
Rules.
2.3 It is relevant to mention here that
in a similar Matter, Hon’ble High Court of Andhra Pradesh at Hyderabad
in year 2005, inc. Subbarao case, has inter-alia observed as under:
“In Support of the above observations,
the Division Bench also placed reliance on Banerjee case (Supra), we are
afraid, the Division Bench was not correct in coming to the conclusion
that being a reward for unblemished Past service, Government servant
retiring on the last day of the month would also be entitled for
increment even after such increment is due after retirement, We have
already made reference to all Rules governing the situation: There is no
warrant to come to such conclusion, Increment is given (See Article 43
of CS Regulations) as a Periodical rise to a Government employee for the
good behavior in the Service. Such increment is Possible only when the
appointment is “Progressive Appointment” and it is not universal ryle.
Further, as per Rule 14 of the Pension Rules, a person is entitled for
pay, increment and other allowances only when he is entitled to receive
pay from out of Consolidated Fund of India and continues to be in
Government Service. A Person who retires on the last working day would
not be entitled for any increment falling due on the next day and
payable next day thereafter (See Article ] Sl of CS Regulations) because
he would not answer the tests in these Rules. Reliance placed on
Banerjee case (supra) is also in our considered opinion not correct
because as observed by us, Banerjee case (supra) does not woe deal with
increment, but deals with enhancement of DA by the Central Government to
pensioners. Therefore, we are not able to accept the view taken by the
Division Bench. We accordingly, overrule the judgment in Malakondalah
case (Supra).”
2.4 In addition, Sudsequent to the
judgment of Hon’ble High Court of Madras in P, Ayyamperumal case,
Hon’ble CAT Madras Bench vide its Orders dated 19.03.2019 in
O.A.No.310/00309/2019 and O.A, No.310/00312/2019 and Order dated
27.03.2010 in O.A, No.310/00026 /2019 has also dismissed the similar
requests related with notional increment for pensionary benefits.
2.5 The Hon’ble Supreme Court, vide
judgment dated 29.03.2019 while dismissing the SLPp (C) Dy. No.6468/2019
filed by D/o Telecommunications against the judgment dated 03.05.2017
of Homble High Court, Lucknow Bench in WP No.484/2010 in the matter of
UOI & Ors. Vs. Sakha Ram Tripathy & Ors., has inter-alia
observed the following:
“There is delay of
566 days in filing the special leave petition. We do not see any reason
to condone the delay. The Special leave petition is dismissed.on “.
delay, keeping all the questions of law open.”
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3. Further, it is also stated that this
Department’s OM No. 20036 /23/1988-Estt.(D) dated 06.01.1989 provides
that since each case is to be contested on the basis of the specific
facts and circumstances relevant to it, the administrative
Ministry/Department (D/o- Ministry of Railways in the instant case} will
be in a better position to defend the case if required. If, however,
any Clarification is required on the interpretation application of the
rules or instructions relevant to the case, the concerned department in
the Ministry of Personnel, Public Grievances and
Pensions may be approached for that Purpose. It further provides that the primary responsibility, however, for contesting such cases on behalf of the Government will be that of the administrative Ministry /Department concerned. Further, the Cabinet Secretariat D.O. letter No. 6 /1/1/94-Cab dated 25.02.1994 as also the Cabinet Secretary’s D.O. letter no. 1/50/3/2016-Cab dated 16.06.2016 and the Department of Expenditure’s OM No. 7(8)/2012-E-III(A) dated 16.05.2012 inter-alia provide that (i) a common counter reply should be filed before a Court of Law on behalf of the Union of India by the concerned administrative Department / Ministry where the petitioner is serving or has last served and (ii) a unified stand should be adopted instead of bringing out each Department’s /Ministry’s point of view in the said reply. It further provides that it is primarily the responsibility of the Administrative Ministry to ensure that timely action is taken at each stage a Court case goes through and that a unified stand is adopted on behalf of Government of India at every such stage. In no case should the litigation be allowed to prolong to the extent that it results in contempt proceedings.
4. Ministry of Railways is requested to take appropriate action in the light of above observations.Pensions may be approached for that Purpose. It further provides that the primary responsibility, however, for contesting such cases on behalf of the Government will be that of the administrative Ministry /Department concerned. Further, the Cabinet Secretariat D.O. letter No. 6 /1/1/94-Cab dated 25.02.1994 as also the Cabinet Secretary’s D.O. letter no. 1/50/3/2016-Cab dated 16.06.2016 and the Department of Expenditure’s OM No. 7(8)/2012-E-III(A) dated 16.05.2012 inter-alia provide that (i) a common counter reply should be filed before a Court of Law on behalf of the Union of India by the concerned administrative Department / Ministry where the petitioner is serving or has last served and (ii) a unified stand should be adopted instead of bringing out each Department’s /Ministry’s point of view in the said reply. It further provides that it is primarily the responsibility of the Administrative Ministry to ensure that timely action is taken at each stage a Court case goes through and that a unified stand is adopted on behalf of Government of India at every such stage. In no case should the litigation be allowed to prolong to the extent that it results in contempt proceedings.
(Rajeev Bahree)
Under Secretary to the Government of India
Ministry of Railways,Under Secretary to the Government of India
[Kind attention: Shri U.K. Tiwari, Joint Director, Pay Commission]
Railways Board, Rail Bhawan,
New Delhi.