F. No.A-26017/62/2016-Ad.IIA
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes& Customs

North Block, New Delhi,
Dated the 27th April, 2022

To,

All Cadre Controlling Authorities under CBIC

Subject: Implementation of court orders for grant of NFSG on the basis of judgment of Hon’ble High Court of Madras in WP No. 13225/2010 (Subramaniam Case)- regarding

Sir,

Please refer to Board’s letter dated 27th April,2022 on the subject mentioned above.

2. The matter has been referred to Department of Expenditure for advice. Now, Department of Expenditure has requested vide OM dated 6.5.2022 (copy enclosed) to furnish the latest status of all pending/implemented court cases in details and updated financial implication involved till date as per the prescribed proforma attached in Annexure-I.

3. All Cadre Controlling of CGST/Custom are requested to provide the details of cases in the prescribed proforma to Board on priority.

Encl- As above.

Yours faithfully,

(Avneesh Pratap Singh)
Under Secretary to the Government of India.

Source: www.cbic.gov.in

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Most Urgent / Contempt Petition Matter

No.C-18013/25/2009-Ad.IIIB
Government of India
Central Board of Indirect Taxes & Customs
***

New Delhi, Dated February 24th 2021

To
Cadre Controlling Authorities under CBIC.
(Kind Attention: In Charge PCC/CC of the CCAs)

Subject: Madras High Court’s Order dated 19.07.2011 in respect of Rita Mary and others-Reg.

Undersigned has been directed to refer to the subject mentioned above and state as follows:

1. It may be recalled that as part of the Government policy to govern and then impose a ban on the engagement of casual workers on daily wages, DoPT vide it’s OMs issued in 1993 and 2006 issued guidelines for regularisation of existing Casual Labourers. The exercise of regularisation in terms of these OMs was effected by formations CBIC from time to time, while also emphasizing strict adherence by field formations to Government’s policy in this regard. A copy of Board’s letter No.A-12034/1/2005-Ad.IIIB 02.05.2005, is herein enclosed for ready reference.

2. However, Madras High court, vide common order dated 19.07.2011, directed CBIC to frame a similar scheme like that of DoPT OM dated 10.09.93, to provide an opportunity to regularise certain Part Time Casual Labourers (PT CLs) subject to eligibility. Having implemented the orders, yet in view of the dismissal of further appeals in Supreme Court, a scheme titled “Part-Time Casual Labourers (Regularisation) Scheme of CBIC 2020” dated 01.01.2020 with partial modifications dated 06.02.2020 (copy enclosed) was framed and extended to respondents / petitioners covered under 5 WPs (WP No. 16733/2009, 16889 / 2009, 11492/2006, 18969 / 2006 and 20664/2011). This was framed as a one-time scheme limited only to the respondents / petitioners covered under above mentioned 5 WPs.

MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

3. Now in view of court directions in another set of 18 WPs filed in Madras High court and contempt petitions filed on the issue, information is urgently required (in the enclosed proforma) regarding Part Time CLs, who have claimed regularization and who fulfil conditions as prescribed. The data in the proforma enclosed should be furnished after duly verifying the eligibility of the claimants, along with certificate regarding correctness of details /documents relied upon and copies of supporting documents.

4. For any eligible Part Time CLs left out, after this exercise, the concerned CCA, will be held responsible for consequential action.

5. Information / data in enclosed proforma is required to be sent to Board within 15 days from the issuance of this letter, including a nil report in case there are no such part time CLs under the CCA.

6. This issues with the approval of Member (Admin)

Encl: As above

Yours faithfully,

(RK Jha)
Deputy Secretary to Government

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F.No.19/2/2018-Estt (Pay-I)
Government of India
Ministry of Personnel, Public Grievances & Pensions
(Department of Personnel & Training)

North Block, New Delhi
Dated: 3rd February, 2021

OFFICE MEMORANDUM

Subject: References/ Representations/ Court cases for granting notional increment for pensionary benefits in pursuance of the judgement dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No. 15732 of 2017 in the case of P. Ayyamperumal Vs Union of India & Ors-regarding.

The undersigned is directed to refer to references/ representations/ court cases/ VIP references, received in this Department in large numbers on the issue of granting notional increment for pensionary benefits to those Central government servants who have retired on 30th June/ 31st December of a year, in pursuance of the judgement dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No. 15732 of 2017 in the case of P. Ayyamperumal Vs Union of India & Ors.

2. The issue has been examined in this Department in consultation with Department of Legal Affairs and it has been observed that the judgement dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No.15732 of 2017 in the case of P. Ayyamperumal Vs Union of India & Ors. is ‘inpersonam’ in nature. A brief note reflecting the Government’s stand on this issue is attached as Annexure-1.

Madras High Court Order – Notional increment of pensionary benefits

3. Further, it is also mentioned that in a similar case, the Hon ‘ble Supreme Court, vide judgment dated 29.03.2019 (copy enclosed as Annexure-11) , while dismissing the SLP (C) Dy. No.6468/ 2019 filed by D/ o Telecommunications against the judgment dated 03.05.2017 of Hon’ble 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.”

4. Since the question of law is open and not yet decided, decision for implementation of the judgement dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No. 15732 of 2017 in Shri P. Ayyamperumal case, in rem has not been taken.

5. Accordingly, all Ministries/ Departments are, therefore, advised to dispose of all pending grievances seeking notional increment for pensionary benefits and also to defend the various pending Court Cases in this matter.

6. In their application to the persons belonging to Indian Audit and Accounts Department, these orders are issued under Article 148(5) of the Constitution and after consultation with the Comptroller and Auditor General of India.

7. Hindi Version will follow.

(Murali Bhavaraju)
Deputy Secretary to the Government of India

Annexure-1

Note on the issue of granting a notional increment for pensionary benefits in pursuance of the judgment dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No. 15732 of 2017 in the case of P. Ayyamperumal Vs Union of India & Ors.

Hon’ble High Court of Madras, vide Order dated 15.09.2017, allowed the W.P. No. 15732 of 2017 filed by Shri P. Ayyamperumal relying upon its earlier judgment dated 20.09.2012 in W.P. No. 8440 of 2011 M. Balasubramaniam Vs State of Tamil Nadu. The said case referred by Hon’ble High Court in the said judgement is related to the Fundamental Rules of Tamil Nadu Government whereas the case of petitioner Shri P. Ayyamperumal relates to Central Government Rules. As per the provisions under the Tamil Nadu Fundamental Rule 26(a), the annual increments of the Govt. Servants are regulated in four quarters viz. 1st January, 1st April, 1st July and 1st October. For the Central Government, the increment accrues annually on 1st July only (6th CPC scenario) [now 1st July and 1st January in 7th CPC scenario]. Hence, argument of petitioner is devoid of merits.

2. In light of the relevant provisions of the Fundamental Rules like 9 (21), 9(6), 17(1), 22, 26(a) and 56(a), as also the provisions of CCS (RP) Rules, 2008, a person appointed as a Government servant is entitled to pay, and is also entitled to draw the annual increment as long as such Government servant discharges duties of the post. However, such Government servant may not be entitled to draw the pay and allowances attached to the post as soon as he ceases to discharge those duties. In other words, as per F.R. 17 read with F.Rs. 24 and 26, annual increment is given to a Government servant to enable him to discharge duty and draw pay and allowances attached to the post. If such Government servant ceases to discharge duties by any reason say, by reason of attainment of age of superannuation, he will not be entitled to draw pay and allowances. Such an employee would not be entitled to any increment if it falls due after the date of retirement, be it on the next day of retirement or sometime thereafter. An employee must satisfy not only the condition of becoming entitled for increment, but also should continue to be on duty as a Government servant on the due date {1st July/ 1st January) to avail the increment.

3. Further, in a similar matter, Hon’ble High Court of Andhra Pradesh at Hyderabad, in the year 2005, in the C. 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 a universal rule. Further, as per Rule 14 of the Pension Rules, a person is entitled for pa y, increment and other allowances only when he is entitled to receive pay from out of Consolid ated 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 151 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 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 jud gment in Malakondalah case (supra).”

4. In addition, subsequent to the judgment of Hon’ble High Court of Madras in the 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 27.03.2019 in 0.A. No.310/ 00026/ 2019 has also dismissed similar requests related with notional increment for pensionary benefits.

Source: DoPT

The post Court cases for granting notional increment for pensionary benefits in pursuance of the judgement dated 15.09.2017 of Hon’ble High Court of Madras in W.P. No. 15732 of 2017 in the case of P. Ayyamperumal Vs Union of India appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

BHARAT PENSIONERS’ SAMAJ
All India Federation of Pensioners’ Associations
2/13-A- LGF Backside, Jangpura – A,
New Delhi – 110014

NoBPS/SG/ Notional increment/2020/ 10

Date: 01.12.2020

The Secretary,
GOI ; Ministry of finance – Department of Revenue

The Secretary,
GOI, M/O Personnel, PG & Pensions -DOPT

Subject: Court Cases on the issue of grant of notional increment/ re-fixation of pensionary benefits as per Hon’ble Madras High Court Order in WP No .15732/2017 in the case of Sh. P. Ayyamperumal – regarding.

Reference : F. No. A-23011/36/2013-Ad.IIA Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes and Customs North Block, New Delhi, Dated the 20th November 2020.

Sir,

With reference to Prara one of F. No. A-23011/36/2013-Ad.IIA GOL, M/O finance -Department of Revenue CB of Indirect Taxes & Customs dtd 20.11.2020 ‘I am directed to refer to CBIC’s letter of even number dated 18.10.2019 (copy enclosed) on the subject mentioned above whereby you have been informed that the competent authority in consultation with Department of personnel and training and Department of Legal Affairs has decided to implement the Order dated 15.09.2017 passed by the Hon’ble High Court of Madras in the matter of WP No. 15732/2017, P. Ayyamperumal Vs. Union of India, in personam and not in  rem and, therefore, it is not required to be quoted as precedent in future.

Bharat Pensioners Samaj, is of the opinion that while drafting the said Para concerned officers/ official inadvertently overlooked the following facts:

1. THE HIGH COURT OF DELHI Judgment in W.P.(C) 10509/2019 GOPAL SINGH ….. Petitioner versus UNION OF INDIA AND ORS OR DE R 23.01.2020 Paras 8. “” More recently, this Court in its decision dated 13th January, 2020 in W.P(C) 5539/2019 (Arun Chhibber v. Union of India) has discussed the judgment in P. Ayyamperumal at some length in the context of the prayer of an officer of the Central Reserve Police Force (CRPF) who had retired on 30th June, 2007 for notional increment. The Court rejected the contention of the Respondents therein that the judgment in P. Ayyamperuam had to be treated as one that was in persona and not in rem.” and the fact that the SLP filed in the Supreme Court against this Delhi High Court judgment regarding notional increment vide SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 13959/2020 (Arising out of impugned final judgment and order dated 23-01-2020 in WP(C) No. 10509/2019 passed by the High Court Of Delhi ) UOI&ORS VS GOPAL SINGH is dismissed by the Honourable Supreme Court.

Grant of notional increment/ re-fixation of pensionary benefits as per Hon’ble Madras High Court Order

2,In C.L.Pasupathy v. Engineer in Chief (WRO)reported in 2009 (2) MLJ 491, Hon’ble High court of Madras has considered the expressions, “judgment ‘in rem’ & a judgment ‘in personam’ In Para 29 of the said judgment honorable court observed as follows :

“29. Courts have held that, “Judgment in rem”, operates on a thing or status rather than against the person and binds all persons to the extent of their interest in the thing, whether or not they were parties to the proceedings. The judgment “in rem”, as distinguished from judgment “in Personam” is an adjudication of some particular thing or subject matter, which is the subject of controversy, by a competent Tribunal, and having the binding effect of all persons having interests, whether or not joined as parties to the proceedings, in so far as their interests in the “res” are concerned.

In determining whether a judgment is “in rem”, the effect of the judgment is to be considered and it is tested by matters of substance, rather than by measure of any particular draft or form”

In short judgment in rem & in Personam can be defined as follows:

Judgment in rem: Judgment in rem is adjudication pronounced upon the status ofa subject matter, person or a thing by a competent court to the world generally.

Judgment in Personam: Judgments in Personam are all the ordinary judgments not affecting the status of any subject matter, any person or anything.

It is humbly submitted that the judgment dated 15.09.2017 passed by the Hon’ble High Court of Madras in the matter of WP No. 15732/2017, P. Ayyamperumal Vs. Union of India squarely Fits in this definition which has been confirmed by the Honourable High Court Of Delhi through its decision dated 13th January, 2020 in W.P.(C) 5539/2019 (Arun Chhibber v. Union of India where in the Honourable court rejected the respondent’s (UOJ) contention that the judgment in P. Ayyamperuam had to be treated as one that was in persona and not in rem.”

Sir, The Democracy of our Country gives highest regards to the judicial pronouncements on their attaining legal finality and no one including DLA /DOPT has any authority to go contrary to it or misinerpret.

Madras High Court Order – Notional increment of pensionary benefits

In the end BPS beg to remind the bureaucracy of oath to Preamble to constitution of India on and request them to ensure Justice and equality in the matter of pensioners/ Sr Citizens. Not that only those who win through courts get the advantage and the other similarly placed who cannot afford to approach the court are deprived of the same benefit inspite of honorable Supreme court pronouncement not to do so.

Thanking you
Yours truly,

S C Maheswari
Secy Genl. Bharat Pensioners Samaj

The post Grant of notional increment/ re-fixation of pensionary benefits as per Hon’ble Madras High Court Order – BHARAT PENSIONERS SAMAJ appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

F. No. A-23011/36/ 2013-Ad.IIA
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs

North Block, New Delhi,
Dated the 20th November , 2020.

To

All Pr. Chief Commissioners/ Chief
Commissioners/Director General under CBIC.

Subject: Miscellaneous Representations and Court Cases on the issue of grant of notional increment /re-fixation of pensionary benefits as per Hon’ble Madras High Court Order in WP No .15732/2017 in the case of Sh. P. Ayyamperumal – regarding.

Sir/Madam,

I am directed to refer to CBIC’s letter of even number dated 18.10.2019 (copy enclosed) on the subject mentioned above whereby you have been informed that the competent authority in consultation with Department of personnel and training and Department of Legal Affairs has decided to implement the Order dated 15.09.2017 passed by the Hon’ble High Court of Madras in the matter of WP No. 15732/2017, P. Ayyamperumal Vs. Union of India, in personam and not in rem and, therefore, it is not required to be quoted as precedent in future.

Notional Increment on retirement 30th June DoPT – Madras High Court Order

2. It is noted that a number of representations from similarly placed retired officers are being received in the Board. Several court cases in this regard have also been filed at various fora by the retired officers. Therefore, all the cadre controlling authorities were requested, vide letter dated 18.10.2019 referred above, that all the pending/future court cases on the similar issue should be defended/dealt with adequately on the lines as suggested by DoP&T. However, despite this, most of the cadre controlling authorities are forwarding the court cases/representations filed by the similarly placed officers to the Board for providing para-wise comments/necessary action, contrary to the instructions issued vide letter of even numb er 18.10.2019.

3. In view of above, all the Cadre Controlling Authorities are again requested to defend all the court cases and dispose all the representations on the issue of notional increment at their end and also defend all the court cases adequately on the following grounds:

I. As per Rule 10 of the CCS (RP) Rules, 2008, the date of annual increment is fixed uniformly as 1st July of every year. Employees completing six months and above in the revised pay structure as on 1st July are eligible for the next increment. The increment could not be granted to the officer retiring on 30th June, as he was not in service on 1st July.

II. DoP&T have made the following observation vide their O.M. dated 16.08.2019 and 11.11.2019:-

i. On the issue of date of retirement of government servant, FR 56(a) which inter- alia provides as under may be referred:

Except as otherwise provided in this rule, every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:
Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.

ii. Further, so far as P. Ayyamperumal case is concerned, which has been referred in the Writ Petitions, it is stated that

a. The Hon’ble High Court judgment in P. Ayyamperumal case is in personam and is contrary to the personnel policy of Government of India.

b. Further, case of M. Balasubramaniam referred by the Hon’ble High Court in its judgment in P. Ayyamperumal case is related to the Fundamental Rules of Tamil Nadu Gernment whereas P Ayaamperumal case relates to Central Government Rules. As per provisions under Tamil Nadu Fundamental rules 26(a), the annual increments of the Govt. Servants are regulated in four quarters viz. 1st January, 1st April, 1st July and 1st October. And for the Central Govt, it is done
annually on 1st July only.

c. While adjudicating the issue whether a government servant who retires on the last day of the preceding month and whose annual increment falls due on the first of the succeeding month is entitled for sanction of annual increment for the purpose of pension and gratuity, Hon’ble High Court of Andhra Pradesh at Hyderabad in the year 2005 in C. Subba Rao case had inter alia observed the following:

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 a universal rule. 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 151 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 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).’

Hence, there is another High Court judgment which lays contrary principles on this issue.

iii. In addition, the following observation of Hon’ble High Court of Delhi while giving its judgment dated 23.10.2018 in the case of UOI and others vs. G.C. Yadav are also noteworthy :

‘So far as the rejection of the Special Leave Petition filed by the Union of India is concerned, the same was by a summary order, and while dismissing the SLP preferred by the Union of India, the Supreme Court observed that it was not inclined to interfere with the impugned Judgment and order passed by the High Court of judicature at Madras on the facts of that case. The Supreme Court did not consider, and did not put its seal of approval on the legal principle involved in P. Ayyamperumal (supra). ‘

iv. That the Hyderabad Bench of the Hon’ble Central Administrative Tribunal had dismissed the OA Nos. 331/2019 and 332/2019 praying for the same relief by the applicant., vide its order dated 04.06.2019.

v. That Hon’ble CAT Madras Bench, subsequent to the judgement of Hon’ble High court of madras in P. Ayyamperumal case, vide its Orders dated 19.03.2019 in O.A. 310/00309/2019 and O.A. No. 310/00312/2019 and Order dated 27.03.2019 in O.A. No. 310/00026/2019 has dismissed the similar requests related with notional increment for pensionary benefits.

vi. The Hon’ble Supreme Court, vide judgment dated 29.03 .2019, while dismissing the SLP (C) Dy. No . 6468/2019 filed by D/o Telecommunications against the judgment dated 03.05.2017 of Hon’ble 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. “

III. As far as the case of P. Ayyamperumal is concerned, it is informed that after rejection of SLP filed by Union of India in Hon’ble Apex Court, a review petition against the order dated 23.07 .2018 of Hon’ble Supreme Court in P. Ayyamperumal was filed in the Hon’ble Supreme Court. However, the Hon’ble Supreme Court vide order dated 08.08.2019 dismissed the instant review petition. Since the apex court dismissed the review petition of the department, the competent authority decided to implement the Order dated 15.09.2017 of the Hon’ble High Court of Madras in WP No. 15732/2017, directing to grant one notional increment to petitioner retiring on 30th June for the purpose of pensionary benefits in personam for petitioner only to avoid the contempt proceedings as indicated in the said letter as referred to in para I above.

IV. Department of Legal Affairs, which was also consulted, while tendering advice in the matter of P. Ayyamperumal, has cited the case of Kunhayammed and others vs State of Kerala (2000) 6 SCC 359, wherein the Hon’ble Supreme Court has concluded the following propositions :-

“An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refitsing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. “

V. Keeping in view the above, DOLA opined that “It is very clear that the judgment of Hon’ble High Court of Madras passed in the matter of Sh. P. Ayyamperumal is in personam and not in m, therefore, the Administrative Department may implement the order in personam.”

Madras High Court Order – Notional increment of pensionary benefits

VI. Referring to the above principles laid down in Kunhayamrned (supra), the Hon’ble Supreme Court subsequently in the case of Bhakra Beas Management Board v. Krishan Kumar Vij and Anr. (2010) 8 SCC 701, held as under:-

“Thus, according to the law laid down by the Bench of three learned Judges of this Court, it is clear that dismissal of a matter by this Court at the threshold, with non­ speaking order, would not fall in the category of binding precedent. Meaning thereby that the impugned order of the Division Bench can still be challenged on merits by the appellant Board. Thus, the earlier orders of the High Court and this Court passed in Raninder Singh Patpatias case, creates no bar from re-examining the matter on merits.”

VII. From the above, it is clear that doctrine of merger is not applicable to in limine dismissal of SLP by the Hon’ble Supreme Court and would not attract the provisions of Article 141 of the Constitution of India to the said order.

4. In view of above, it is again requested that all the pending/ future court cases/representation on the similar issue should be defended/ dealt with adequately on the above lines on behalf of all the respondents in terms of Board’s instruction issued vide letter F.No. C-18012/6/ 2013-Ad.IIB dated 09.05.2016. Reference to the Board should be made only if any additional policy issue is involved.

Encl: As above.

Yours faithfully,
(Rajendra Kumar)
Deputy Secretary to the Government of India

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.28488 of 2013 M.P.No.1 of 2013 M. Murugan … Petitioner Vs. 1. The Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District. Court under Para 14 has explained rem & persona judgements

January 25, 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013

CORAM:

THE HONOURABLE MR.JUSTICE S.MANI KUMAR Writ Petition No. 28488 of 2013

M.P.No.1 of 2013 M.MuruganVs. The Co-operative Sub Registrar / Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District.

In the present writ petition, it is the case of the petitioner that as he had not opposed or challenged the surcharge proceedings initiated by the then Co-operative Sub Registrar / Field Officer, Jolarpet, Mr.M.M.Subramanian, the judgment rendered in W.P.No.15758 of 2006, dated 22.06.2012, can be treated only as a “judgment in personam” and not as “judgment in rem”. In C.L. Pasupathy v. Engineer in Chief (WRO) reported in 2009 (2) MLJ 491, this Court has considered the expressions, “judgment in ‘in rem’ or a judgment ‘in personam’”, as follows: Read further under Para 14 in main judgement to understand Judgement in rem & Judgement in Persona .

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.11.2013

CORAM

THE HONOURABLE MR.JUSTICE S.MANIKUMAR

Writ Petition No.28488 of 2013 M.P.No.1 of 2013

M.Murugan … …………………………..Petitioner

Vs.

1. The Co-operative Sub Registrar/Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District.
2. The President, Chinnakallupalli Primary Agricultural Co-operative Bank,
   Chinnakallupalli Village, Vaniyambadi Taluk, Vellore District.
3. The Deputy Registrar of Co-operative Societies,
   Tirupattur Circle, Tirupattur, Vellore District. ……… Respondents

Writ Petition filed under Article 226 of Constitution of India, praying for a Writ of Certiorari, to call for the records, relating to the surcharge show cause notice, Tha Thi 2/2013-14 Sa.Pa. dated 25.09.2013 of the 1st respondent, issued under Section 87 of the Tamil Nadu Co- operative Societies Act, 1983.

For Petitioner : Mr.S.Venkataraman

For Respondents : Mr.L.P.Shanmughasundaram,
Spl. Govt. Pleader (Co-op.)

ORDER

Being aggrieved by the notice in the surcharge proceedings, made in Tha Thi 2/2013-14 Sa.Pa. Dated 25.09.2013, of the Co-operative Sub Registrar / Field Officer cum Surcharge Enquiry Officer, Madhanur, Gudiyatham Taluk, Vellore District, 1st respondent herein, has issued under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as “the Act”), calling upon the petitioner, the erstwhile Sub-Registrar, Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore, to submit his explanation within 15 days from the date of notice, the present writ petition has been filed.

2. According to the petitioner, he had worked as Sub-Registrar in the above said Bank, for the period between 26.07.2001 and 01.07.2003 and thereafter, between 25.11.2003 and 13.04.2004. An enquiry under Section 81 of the Act came to be ordered by the Deputy Registrar, Tirupattur Circle, on 25.01.2005 and pursuant to the report, dated 03.08.2005, a show cause notice, dated 18.04.2006, has been issued in the Surcharge Proceedings, by one Mr.M.M.Subramanian, the then Co-operative Sub Registrar / Field Officer, Jolarpet. The petitioners and others were alleged to have failed to carry out proper supervision, which enabled the Secretary of the Society to misappropriate Rs.1,02,980/-.

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3. The petitioner has further submitted that he was summoned to appear for an enquiry on 25.05.2006, by a memo, dated 18.05.2006, by the Enquiry Officer. On receipt of the same, the petitioner has sent a representation, seeking production of the supporting materials, to enable him to submit his explanation. He has appeared in the enquiry on 25.05.2006 and submitted a detailed representation, demanding documents.

4. Thereafter, the Enquiry Officer has issued a fresh summons, posting the enquiry on 31.01.2006. According to the petitioner, notice of enquiry was received by the petitioner on 31.05.2006 and hence, he could not attend the enquiry, on the fixed date. Therefore, he sent a representation on 01.06.2006 and sought for an alternative date of enquiry. Now, after nearly seven years, a fresh show cause notice, dated 25.09.2013, has been issued by the 1st respondent.

5. Assailing the correctness of the impugned notice, Mr.S.Venkataraman, learned counsel for the petitioner submitted that the alleged occurrence was between the period 2001 and 2004, when the petitioner was deputed to work as the Special Officer. According to him, a fresh surcharge proceedings has been initiated only on 25.09.2013, after a lapse of seven years and therefore, no action can be taken, as per the 1st proviso to Section 87 of the Act.

6. Learned counsel for the petitioner further submitted that citing the order of this Court made in W.P.No.15758 of 2006, dated 22.06.2012, surcharge proceedings are now reviewed. The above said writ petition, came to be allowed, setting aside the surcharge proceedings with liberty to hold a fresh enquiry, with a further condition that the petitioner therein, should not raise the plea of limitation.

According to him, the order made in the above writ petition, is not a “judgment in rem” and it should be read as “judgment in personam” and therefore, it can be applied only to the petitioner therein, and should not have been extended to the other delinquents.

7. It is the contention of the learned counsel for the petitioner that the petitioner has not challenged the earlier proceedings, on the grounds, including bias or mala fide, raised by the writ petitioner in W.P.No.15758 of 2006 and that there was no order, preventing the enquiry officer to proceed against the petitioner and other delinquents. In the above said circumstances, 1st proviso to Section 87, is attracted and therefore, the present impugned proceedings have to be set aside. Excepting the above, no other points are urged by the learned counsel for the petitioner.

Heard the learned counsel for the petitioner as well as Mr.L.P.Shanmugasundaram, learned Special Government Pleader (Co- operatives) and perused the materials available on record.

8. Before adverting the facts of the case, Section 87 of the Tamil Nadu Co-operative Societies Act, 1983, is extracted:

“87. Surcharge– (1) Where in the course of an audit under section 80 or an inquiry under section 81 or an inspection or investigation under section 82 or inspection of books under section 83 or the winding-up of a society, it appears that any person who is or was entrusted with the organisation or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has made any payment which is not in accordance with this Act, the rules or the by-laws the Registrar himself or any person specially authorised by him in this behalf, of his own motion or on the application of the board, liquidator or any creditor or contributory may frame charges against such person or officer or servant and after giving a reasonable opportunity to the person concerned and in the case of a deceased person, to his representative who inherits his estate, to answer the charges, make an order requiring him to repay or restore the money or property or any part thereof with interest at any such rate as the Registrar or the person authorised as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, misapplication of funds, fraudulent retainer, breach of trust or wilful negligence or payments which are not in accordance with this Act, the rules or the by-laws as the Registrar or the person authorised as aforesaid thinks just:

Provided that no action shall be commenced under this sub-section after the expiry of seven years from the date of any act or omission referred to in this sub-section.

Provided further that the action commenced under this sub-section shall be completed within a period of six months from the date of such commencement or such further period or periods as the next higher authority may permit but such extended period or periods shall not exceed six months in the aggregate.”

9. Materials on record shows that Mr.M.M. Subramanian, the then Co-operative Sub Registrar / Field Officer, Jolarpet, has issued show cause notices, in Surcharge 12/2005-06 Sa.Pa., dated 18.04.2006, under Section 87 of the Act, to seven persons, including the petitioner, who was the then Sub-Registrar, Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore.

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10. Materials on record further discloses that after the receipt of notice, the petitioner seemed to have made representations, dated 20.05.2006 and 25.05.2006 respectively, seeking certain documents. In the said representations, he has also sought for copies of the enquiry report, under Section 81 of the Act and the other documents.

11. Perusal of the order made in W.P.No.15758 of 2006, dated 22.06.2012, shows that one of the co-delinquents, Mr.G.Srinivasan, a former Secretary of the Chinnakallupalli Primary Agricultural Co- operative Bank, Chinnakallupalli Village, Vaniyambdi Taluk, Vellore, had challenged the above show cause notice, issued in Surcharge 12/2005-06 Sa.Pa., dated 18.04.2006, under Section 87 of the Act, on the grounds, inter alia, that surcharge proceedings have been entrusted to a person, who had earlier functioned as a Special Officer of Chinnakallupalli Primary Agricultural Co-operative Bank and requirements of fairness and justice, demand that the surcharge proceedings be conducted by a person, other than the said officer. Bias has been alleged on the then Enquiry Officer, under Section 87 of the Act. Considering the rival submissions, this Court, at Paragraphs 5 to 8, has passed the following orders,

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“5. Considering the rival submissions, this Court is of the view that though it cannot be stated as a general rule that the officer placed in-charge of the surcharge proceedings necessarily would be prejudiced against the petitioner because he happened to be the special officer during the alleged wrong doing of the petitioner, following the principle that justice should not only be done, but also should be seen to be done, this Court would allow this petition.

6. Accordingly, the writ petition stands allowed and the proceedings 12/2005-06 Sa.Pa., dated 18.04.2006 stand quashed. No costs.

7. It is now open to the second respondent to appoint a fresh officer for the purpose of conducting surcharge proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act, 1983. This Court clarifies that since the proceedings stand delayed owing to the interim order passed by this Court in W.P.No.15758 of 2006, the petitioner now cannot raise any plea under first proviso to Section 87 of the Tamil Nadu Co-operative Societies Act, 1983.

8. This Court directs the respondents to initiate surcharge proceedings afresh in keeping with this order and to complete the same as expeditiously as possible.”

12. It is the further contention of the learned counsel for the petitioner that even assuming that action has been taken well within the period of limitation, continuation of the said action, so taken, can be only with the permission of the higher authorities and in such circumstances, the extended period or periods shall not exceed six months in the aggregate. According to him, initially, action has been taken in the year 2006 by issuance of a surcharge notice and thereafter,there was no progress. As the order made in W.P.No.15758 of 2006,dated 22.06.2012, filed by Mr.G. Srinivasan, is not applicable to the writ petitioner and in the absence of any permission from the higher authorities to continue with the surcharge proceedings, after six months,from the date of commencement, the impugned show cause, has to beset aside ….

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25. In the result, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.

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F.No.A-23011/36/2013-Ad.IIA
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs

North Block, New Delhi,
Dated the 18 October, 2019

To,
All Pr. Chief Commissioners / Chief Commissioners / Director General under CBIC,

Subject: Grant of notional increment / re-fixation of pensionary benefits as per Hon’ble Madras High Court Order in WP No. 15732/2017 in the case of Sh.P.Ayyamperumal – regarding.

Sir/Madam,

1. I am directed to inform that the Order dated 15.09.2017 of the Hon’ble High passed in the matter of P.Ayyamperumal’s case (WP No.15732/ 2017) is in personam and not in in rem. Therefore, the CBIC has implemented the High Court’s order in personam after dismissal of review petition filed in the Supreme Court, for petitioner only which would not be quoted as precedent in future.

2. A number of cases on the similar grounds are pending at various fora, and similar demands from other similarly placed officers could also arise after Hon’ble Supreme Court’s Order dated 08.08.2019 in R.P.(C) No.1731/2019. Keeping this in mind, a request was made to DoPT seeking their opinion about the future course of action to be taken in case pertaining to similarly placed applicants and non ­applicants.

Also check: Grant of one notional increment/pension benefits to retirees those who retired on 30th June as per Madras High Court Order

3. DoPT has now informed that Deptt. of Legal Affairs have observed that:

“It is very clear that the judgment of Hon’ble High Court of Madras passed in the matter of Sh. P.Ayyamperumal is in personam and not in rem.”

4. Based on the above, DoPT has informed that in so far as other similar cases are concerned, the same may be defended on following grounds:-

4.1 In so far as P. Ayyamperumal case is concerned, it is stated that the judgment of Hon’ble High Court of Madras is in personam.

4.2 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 Tamil Nadu Government whereas P. Ayyamperumal case relates to Central Government Rules.

4.3. It is relevant to mention here that in a similar matter, Hon’ble High Court of Andhra Pradesh at Hyderabad in year 2005, in C.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 a universal rule.

Also read: Grant of Notional Increment on completion of 12 Months of Service

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 151 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 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 Malakondaiah case (supra).

4.4 In addition, subsequent to the judgment of Hon’ble High Court of Madras in P. Ayyamperumal’s case, Hon’ble CAT Madras Bench vide its orders dated 19.03.2019 in 0.A. No. 310/00309/ 2019 and O.A. No. 310/00312/ 2019 and Order dated 27.03.2019 in O.A. No. 310/00026/ 2019 has also dismissed the similar requests related with notional increment for pensionary benefits.

5. Accordingly, it is requested that all the pending / future court cases on the similar issue should be defended/ dealt with adequately on the above lines.

Yours faithfully,
sd/-
(A.K. Mishra)
Under Secretary to the Government of India

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F, No.A-26017/16/2019-Ad IIA
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes & Customs

North Block, New Delhi,
Dated the 18th March, 2018.

To,

All Pr. Chief Commissioners/Chief Commissioner of GST & Central
Excise/Customs/Directors General under CBIC.

Subject:- Representation for grant of one notional increment/pension benefits to retirees those who retired on 30th June as per Hon’ble Madras High Court Order in WP No.15732 of 2017 in the case of Shri P. Iyyamperumal ys UOI and the Order of Hon’ble Supreme Court in SLP No.22283/2018 dated 23.07.2018 – regarding.

Sir/Madam,

I am directed to say that the above matter has been examined in the Board and after dismissal of SLP Dy. No.22283/2018 dated 23.07.2018, the matter was referred to DoP&T for their advice. DoP&T has advised to refer the matter to Department of Legal Affairs (DoLA) to explore the possibilities of review of the Hon’ble Supreme Court Order dated 23.07.2018 in the said SLP Dy. No.22238/2018. Hence, the matter has not attained finality as yet.

It is, therefore, informed that the final decision taken in the matter would be intimated in due Course as and when the matter attains finality.

Yours faithfully,

(Nagendra Kumar)
Under Secretary to the Government of India

Copy with enclosure to:-

1. DG. of System & Data Management – for uploading on the website of CBEC.

Source: www.cbic.gov.in

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