The Secretary, Mahishadal Raj High School & ANR v. Dr. Kanika Sahoo (Mondal) & ORS

15.09.2022 sdas RVW 130 of 2014 with CAN 2 of 2014 (Old CAN 5107 of 2014) in FMA 1445 of 2014 The Secretary, Mahishadal Raj High School & Anr. Vs.

Dr. Kanika Sahoo (Mondal) & Ors.

Mr. Kanai Lal Samanata ... for the petitioners/respondent nos. 4 & 5 Mr. Rabindranath Mahato Mr. Aritra Shankar Ray ... for the respondent no. 1/appellant Heard learned Counsels appearing for the parties. Learned Counsel appearing for the petitioner/ respondent nos. 4 & 5 submits his client did not have notice of the appeal which was disposed of ex parte without giving opportunity of hearing to his clients. In the light of the aforesaid submission, we have given an opportunity of hearing to the parties afresh. Learned Counsel for the respondent no. 1/appellant submits in terms of the clarificatory memorandum no. 2728-F dated 7th April, 2009 his client was entitled to draw the benefit of additional increment for nonfunctional movement either from the date of entitlement or on the next 1st July i.e. the date of accrual of annual increment. Inadvertently, she had prayed for release of

the increment from May, 2010. Subsequently, she realized her mistake and prayed the increment be granted to her on and from 1st July, 2010 i.e. the date of accrual of annual increment. She offered to refund the increment already granted to her for the months of May and June, 2010. Such prayer being disallowed by the learned Single Judge (as His Lordship then was), she filed the intracourt appeal. In view of her offer to refund the increments for the months of May and June, 2010 the appeal court by the order under review permitted the prayer of the appellant/writ petitioner.

Learned Counsel for the petitioners/respondent nos. 4 and 5 submits appellant/writ petitioner could not be permitted to alter her own stance. She had initially applied for the benefit to be granted on and from May, 2010. After the benefit was granted, she reversed her stance and sought the benefit from 1st July, 2010. Relevant portion of the memorandum no. 2728-F dated 7th April, 2009 reads as follows :

"1. In the case of non-functional movement (18 years benefit) or non-functional increment (10/20 years benefit) an employee may opt for the same on the date of entitlement or on the next 1st July, the date of accrual of annual increment.

2. In case the employee opts for the benefit on the date of entitlement he/she will get one increment on that date, but he/she will not be entitled to next annual increment on the next 1st July unless he/she completes 6 months of service. In other words - if the date of entitlement falls during 1st July to 1st January, the employee after having the benefit of one additional increment, on the date of

entitlement, will get annual increment on the next 1st July, but if the date of entitlement falls during 2nd January to 30th June, the employee after having the benefit of one additional increment, will not be entitled to the annual increment on 1st July of the same year; he/she will, however, get the annual increment on the 1st July of the next year."

A plain reading of the aforesaid memorandum shows an employee is entitled to opt for non-functional increment from the date of entitlement or on 1st July, i.e. the date of accrual of annual increment. In the event he/she avails of non-functional increment from the date of increment he/she will not be entitled to the next annual increment on the next 1st July, unless she completes 6 months of service.

Initially, appellant/writ petitioner had applied and obtained non-functional increment from May, 2010. Under such circumstances, she was not entitled to the annual increment accruing on 1st July, 2010. Realizing her mistake, she prayed the non-functional increment to be granted from 1st July, 2010 and offered to refund the increments released to her for the months of May and June, 2010. As the appellant/writ petitioner was entitled to seek the non-functional increment either from the date of entitlement or from next 1st July, we are of the view her prayer to forgo the increments for the months of May and June, 2010 and seek release of the non-functional increment from 1st July, 2010 cannot be said to be unlawful. Nothing is placed before us which

debars an employee from seeking reconsideration of her option for release of non-functional increment from next 1st July instead of date of entitlement. More so, when the employee is ready and willing to refund the increments released for the months of May and June, 2010. We are informed the appellant/writ petitioner has already refunded the increments for the aforesaid months. Under such circumstances, we find no reason to alter the order under review.

Review application is, accordingly, dismissed. In view of dismissal of the review application, connected application being CAN 2 of 2014 (Old CAN 5107 of 2014) is also dismissed.

(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)