Abdul Waheed Khan S/o Shri A.S. Khan And Other vs Madhya Pradesh Power Management Company Limited And Another

By this petition under Article 226 of the Constitution of India, the petitioners have challenged the inaction of the respondents by which, after

completion of a year of regular service, the annual increment has not been granted to the petitioners and the representation submitted by the petitioner

are pending for consideration.

Learned counsel for the petitioners has submitted that, the date of birth of the petitioners No.1 to 6 is 27.6.1957, 15. 6.1957, 29.6.1957, 14.6.1957,

26.6.1956 and 1.7.1957 respectively. As per provisions of the Fundamental Rules, the petitioners were retired from service on 3.6.2016/2017. Under

the Sixth Pay Commission recommendation, the date of annual increment has been fixed for every employee as 1st of July. The petitioners who have

worked for whole year from 1st of July to 30th of June, but the annual increment due on 1st of July has not been granted to them though in identical

situation, the same benefit has been extended. The petitioners therefore, submitted their representation to the respondents, but no action has been

taken in the matter and, therefore, the petitioners have filed the present petition. To bolster his submission, learned counsel for the petitioners has relied

on the order passed by the Division Bench of the Madras High Court in the case of P. Ayyamperumal vs. Registrar and others whereby the Court has

held that an employee, who has worked for whole year is entitled to receive regular increment which become due on 1st of July and the said benefit

cannot be denied on the ground that, the employee concerned was not in service on 1st day of July. The said order has been confirmed by the Hon'ble

Supreme Court by its order dated 23.7.2018.

The respondents have filed their reply and in the said reply they have raised a preliminary objection and submitted that the action of the answering

respondent is governed by the laws which prevail in the State of Madhya Pradesh and thus is justified, more particularly because State of Madhya

Pradesh, Ministry of Finance vide its Notification dated 28.2.2009 has revised salaries of the employees and as per Rule 9, the date for annual

increment is fixed to be 1st of July and M.P.S.E.B. vide its Circular dated 2.4.2009 has adopted the same, more precisely as per paragraph No.3 of

Rule 1. It is further submitted that, after grant of 7th Pay Scale, the answering respondent/Company has taken a stand and issued a order dated

6.1.2018 indicating that if as per prevailing scale and its sub-rules, the date of increment of an employee is within 2nd January to 1st July (inclusive of

both the dates) in such circumstances, the date of increment would be 1st January and if the date of increment is 2nd July to 1st January (inclusive of

both the dates) then the date of increment would be 1st July. It is being further ruled that the employees will be entitled to annual increment after one

year. Since in the present case, the employees, who have come forward before this Court have retired a day prior only and, therefore, appropriate

benefits have already been extended to them. As far as the orders of Hon'ble Madras High Court and the Hon'ble Supreme Court are concerned, it is

submitted that the stand taken by the answering respondent/company is based on the instructions of the Ministry of Finance, State of Madhya Pradesh

and the same have a binding effect on the answering respondent/company. The judgment which is being referred deals with Central Civil Services

(Revised Pay Scale, 2008) and thus, is distinguishable on the factual matrix. In such circumstances, learned counsel for the respondent prayed that the

present petition deserves to be dismissed.

The respondents have also filed additional reply. In the said additional reply they have stated that the order so being referred and relied upon by the

petitioner has been analysed by Govt. of India, Ministry of Finance and by circular dated 18. 10.2019, a circular/clarification has been issued whereby

in paragraph No.3 it is referred that the DOPT has informed the Department of Legal Affairs that the said judgment is in personem and not in rem

and, therefore, the present respondent also refers and relies upon the said circular issued by the Ministry of Finance and submit that the judgment

relied upon by the petitioner is operative in personem and not in rem and, therefore, placing of reliance on the same is incorrect on the part of the

petitioner.

Heard the learned counsel for the parties and also perused the record.

In the present case, the petitioners have challenged the inaction of the respondents in not granting them the annual increment after completion of a

year of regular services. For the said purpose, learned counsel for the petitioners has relied on the order passed by the Madras High Court in the case

of P. Ayyamperumal (supra) which was confirmed by the Hon'ble Supreme Court. Learned counsel for the respondents has tried to distinguish this

order on the ground that the said circular has been analyzed by the Ministry of Finance, Govt. of India and on the basis of the same the circular has

been issued. Based on this circular the petitioners are not entitled to get the said benefit. However, it is to be seen that the order passed by the Court

would be applicable to the petitioners and not the circulars and notifications issued by the Finance Department after passing of the order. That,

although the order passed by the Madras High Court which was subsequently confirmed by the Hon'ble Supreme Court is not an order in personem,

but so decided in the said order would be applicable to all employees, who are similarly situated to the petitioners. This Court also relying on the order

dated 16.1.2020 has passed in W.P. No.17850/2019(Ashutosh vs. Commissioner Taxes Department and another). Similar order has also passed by

this Court in the case of Gajendra vs. State of M.P. in W.P.No.17847/2019 dated 17.12.2019. In this order, this Court relying on the order passed by

the Madras High Court as well as the Apex Court has extended the said benefit to the petitioner.

In the light of the aforesaid order, this writ petition is allowed and the respondents are directed to extend the benefit of annual increment to the

petitioners, which was due on 1.7.2016. Consequently, the retiral dues of the petitioners be also revised and all arrears be paid to the petitioners. This

exercise be completed within a period of three months from the date of receipt of the certified copy of this order.