State ... vs Dr. Jagdish Prasad Singh And ...
2022 Latest Caselaw 10237 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 73 of 2022
 

 
Appellant :- State U.P.Thru.Prin.Secy.Finance U.P. Govt. Civil Secrt. Lko. And Ors (In Wria 19879 Of 2020)
 
Respondent :- Dr. Jagdish Prasad Singh And Others
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Hari Prasad Gupta
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajnish Kumar,J.

(Order on C.M. Application No.1 of 2022)

Having regard to the averments made in the application seeking condonation of delay in filing the special appeal and having heard the learned counsel for the parties we are satisfied that the delay has sufficiently been explained.

Accordingly, the application is allowed and delay in preferring the special appeal is hereby condoned.

Order on Appeal

Heard learned State Counsel representing the appellant-State authorities and Shri Hari Prasad Gupta, learned counsel representing the respondents.

By instituting the proceedings of the instant special appeal filed under Chapter-VIII, Rule-5 of the Rules of the Court, partial challenge has been made to the judgment and order dated 02.09.2021 passed by learned Single Judge in a bunch of writ petitions, leading writ petition being Writ Petition No.13029 (S/S) of 2020.

It is to be noted at this juncture that alongwith others the respondents no.1 to 3 and the predecessor-in-interest of respondents no.4/1 to 4/3 had filed Writ Petition No.19879 (S/S) of 2020 which was also decided by the aforesaid common judgment and order dated 02.09.2021 in respect of which the instant special appeal has been filed.

The challenge in writ petition before learned Single Judge was made to two Government Orders dated 14.07.2020 and 04.09.2020 whereby the petitioners in the writ petition were denied the benefit of revised rate of Non-Practicing Allowance (N.P.A.) on the ground that they had retired prior to cut off date namely 24.08.2009. It appears that by the aforesaid two Government Orders the Members of Provincial Medical and Health Services who retired after 24.08.2009 were given the benefit of revised rate of N.P.A. for the purposes of re-calculation of their pension whereas the said benefit was denied to the members of the said service who retired prior to 24.08.2009. Learned Single Judge by a detailed and elaborated judgment dated 02.09.2021 clearly held that all the petitioners in the writ petitions were entitled to the revised amount of Non-Practicing Allowance in terms of the Government Order dated 09.03.2019. Learned Single Judge also held that consequential recovery order dated 16.07.2020 was illegal and arbitrary. Learned Single Judge, thus, allowed the writ petition and quashed the orders impugned therein namely the Government Order dated 14.07.2020, 16.07.2020 and 04.09.2020. Learned Single Judge has clearly held that the petitioners are entitled to Non-Practicing Allowance as per the enhanced rates in terms of the Government Order dated 19.08.2020. The respondents-State authorities in the writ petition were directed to refund the amount recovered pursuant to the orders which were challenged before the learned Single Judge.

As regards the judgment of learned Single Judge whereby the impugned Government Orders which was under challenge before him, has been quashed, we do not have any ambiguity or confusion in our mind that the said judgment does not suffer from any flaw or error, however, one issue which though was raised but has not been considered by the learned Single Judge as arisen before us which needs consideration by this Court.

In this regard learned State Counsel has submitted that payment of Non-Practicing Allowance is regulated by statutory rules framed under Article 309 of the Constitution of India which are known as the Uttar Pradesh Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983. Rule-3 of the 1983 Rules clearly provides that a government doctor shall not be entitled to private practice, however, such embargo or prohibition is only subject to provision of Rule-4. Rule-4 of 1983 Rule provides that in lieu of private practice government doctor shall be paid such amount by way of non-practicing pay or allowance or both, as the Government may specify from time to time. The proviso appended to Rule-4, however, provides that non-practicing pay or allowance shall not be payable to different categories of doctors including the doctors holding the posts of Director or Additional Director, Medical, Health and Family Welfare, Director or Additional Director, Medical Education and Training and Principals of State Medical Colleges. Rules-3 and 4 of 1983 Rules are extracted here-in-below:-

"3. Restriction on private practice. - Notwithstanding anything to the contrary contained in any rules or orders, contract or any other instrument and subject to the provisions of Rule 4, a Government doctor shall not be entitled to private practice.

4. Payment in lieu of private practice. - (1) In lieu of private practice a Government doctor shall be paid such amount, by way of non-practising pay or allowance or both, as the Government may specify from time to time:Provided that non-practising pay or allowance, referred to in this sub-rule shall not be payable to:

(a) a Government doctor who-

(i) does not possess M.B.B.S., degree or B.D.S. or L.S.M.F. (LMP) diploma, or

(ii) is not entitled to be registered by the Indian Medical Council/Indian Dental Council, or

(iii) is debarred by the Indian Medical Council/Indian Dental Council from doing private practice;

(b) (i) Director and Additional Director, Medical, Health and Family Welfare;

(ii) Director and Additional Director, Medical Education and Training; and

(iii) Principals of the State Medical Colleges;

(c) an incumbent of a post for which M.B.B.S., degree or B.D.S. or L.S.M.F. (LMP) diploma qualifications are not essential."

Thus, payment of Non-Practicing Allowance in lieu of private practice by a Government doctor is subject to certain exception as carved out in Rule-4 according to which one of the categories of the Government doctors who were not entitled to N.P.A. comprised of the doctors holding certain administrative posts namely posts of Director and Additional Director. Accordingly, there is no ambiguity that any Government doctor who is excluded by operation of Rule-4 of 1983 Rules will not be entitled to be paid Non-Practicing Allowance.

The 1983 Rules were however amended by means of promulgating the Uttar Pradesh Government Doctors (Allopathic) Restriction on Private Practice (IInd Amendment) Rules, 2005 which was notified on 21.06.2005. The entire Rule-4 which existed in the Principal Rules of 1983 was substituted and the Government doctors holding the administrative posts of Director or Additional Director were excluded from the category of doctors who are not entitled to N.P.A. In other words by amending 1983 Rules by means of the IInd Amendment Rules notified on 21.06.2005, the Government doctors holding the posts of Director / Additional Director were also included for being entitled to be paid Non-Practicing Allowance in lieu of private practice.

So far as the Government doctors holding the administrative posts of Directors, Additional Directors and even Director General are concerned, we are not in doubt that those who retired after 21.06.2005 will be entitled to the benefit of the judgment and order dated 02.09.2021 passed by learned Single Judge for the reason that the Government Order which created two classes of doctors, namely those who retired prior to 24.08.2009 and those who retired after 24.08.2009 has been quashed. Having said that what we notice is that so far as the entitlement of payment of enhanced rate of N.P.A. and corresponding computation of pension is concerned, the entire subject matter will be governed now by the Judgment and order dated 02.09.2021 but as to whether the said judgment will encompass in its fold those doctors holding the administrative posts of Director / Additional Director / Director General who retired prior to 21.06.2005 i.e. the date on which the 1983 Rules were amended, is a question which needs consideration by us.

So far as the payment of N.P.A. at enhanced rate is concerned, the same has to be considered only in case to a particular group or class of doctors the N.P.A. is admissible or in other words such doctors are / were entitled for payment of N.P.A. Before 21.06.2005 i.e. before 1983 Rules were amended, the Government doctors holding administrative posts of Director / Additional Director and Director General were not entitled to be paid N.P.A. These categories of Government doctors were made entitled to be paid N.P.A. only on introduction of the amended Rule-4 by means of notification dated 21.06.2005.

As to whether a doctor is entitled to be paid enhanced rate of N.P.A. is dependent on the fact that such doctor is entitled for N.P.A. The question of payment of enhanced rate of N.P.A. arise only once it is found that particular category of Government doctors are / were entitled to be paid N.P.A.

As observed above, as per the Principal Rules of 1983, prior to 21.06.2005, the Government doctors holding the posts of Director / Additional Director / Director General were not entitled for payment of Non-Practicing Allowance in lieu of private practice as such the question of payment of N.P.A. at the enhanced rate to such category of Government doctor does not arise at all.

To that extent it appears that learned Single Judge while passing the judgment and order dated 02.09.2021 in the bunch of aforementioned writ petition has not taken into account the fact that the Government doctors holding the posts of Director / Additional Director / Director General became entitled to be paid Non-Practicing Allowance only on 21.06.2005 and not before that.

Accordingly, we have no hesitation to hold that the doctors who held the posts of Director / Additional Director / Director General and retired prior to 21.06.2005 will not be entitled to be paid Non-Practicing Allowance at all, and in this view they will not be entitled to be paid the N.P.A. at the enhanced rates as well.

Accordingly, the special appeal is partially allowed and the judgment and order dated 02.09.2021 passed by learned Single Judge which is under appeal herein is modified only to the aforesaid extent. It is, thus, ordered that the Government doctors who held the posts of Director / Additional Director / Director General and retired prior to 21.06.2005 will not be entitled to N.P.A. / enhanced rate of N.P.A.

At this juncture, learned counsel for the respondents prays that respondents may be given liberty to challenge the validity of 1983 Rules. In respect of the said prayer we may only observe that it is needless to say that for challenging the validity of the said rules the respondents do not require any leave of this Court.

There will be no order as to cost.

Order Date :- 16.8.2022

Haseen U.