Prof. (Dr.) A.K.Prasad vs Director, Vallabhbhai Patel ...
2008 Latest Caselaw 904 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 278/1997


      PROF. (Dr.) A.K. PRASAD                 ..... Petitioner
                  Through: Mr.Gyan Prakash, Advocate

                    versus

      DIRECTOR, VALLABHBHAI PATEL CHEST
      INSTITUTE, UNIVERSITY OF DELHI & ORS. ..... Respondents

Through: Mr.M.K.Singh, Advocate for respondents No.1 to 4.

DATE OF DECISION:

%                          02.07.2008

     CORAM:

     Hon'ble Mr.Justice Pradeep Nandrajog

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.(Oral)

1. Is the petitioner entitled to non practising allowance

with effect from 1.1.1986? is the question which arises for

consideration in the instant writ petition.

2. Vide order dated 7/8.12.1994, Government of India

informed petitioner's employer that petitioner is not entitled to

non practising allowance.

3. Order dated 7/8.12.1994 reads as under:-

"To

Prof. H.S.Randhawa,

Director, VPCI, University of Delhi, Delhi.

Subject : Grant on Non-Practising Allowance to Veterinary Doctors/Officers-Recommendations of the 4th Pay Commission.

Sir, I am directed to refer to your letter No. Estab./Vety-91-92/4756 dated 31st January, 1992 on the above subject and to say that the issue regarding grant of NPA to the 2 faculty Members of the VPCI namely Dr.Z.U.Khan and Dr.A.K.Prasad has been examined in this Ministry in consultation with the M/O Finance.

M/O Finance has clarified that NPA is paid only to those posts to which the candidates with qualification of degree/post degree in Veterinary Science are eligible to be appointed and the candidates with alternative qualification are not eligible to be appointed. As in the present case, the post is open for both Veterinary Degree Holders as well as non-Veterinary Degree holders, no NPA is admissible in the instant case.

Yours faithfully,

(ALOK PERTI) Director (MB)"

4. Admitted facts are that the petitioner holds a

bachelor's degree in Veterinary Science as also a Master Degree

in Veterinary Science besides being a doctorate. In March 1972

he was appointed as a Senior Research Officer in the Department

of Respiratory Virology at the Vallabhbhai Patel Chest Institute,

University of Delhi. In the year 1977 the said post was re-

designated as Reader. Petitioner was promoted as a Professor in

the said institute in the year 1985.

5. Qualification for the post of Reader in the Department

of Respiratory Virology is as under:-

"Medical and non-medical graduate with post-graduate qualification in medical mycology/micrology/virology."

6. It is not in dispute that the letter of appointment

issued to the petitioner on 16.2.1972, vide condition No.8, clearly

stipulated that private or consulting practice is not permitted and

no compensation in lieu thereof would be paid to the petitioner.

However, on 29.9.1988 the Ministry of Finance issued an office

memorandum which inter alia stipulated that veterinary doctors

holding posts for which a bachelor's degree in veterinary science

is the minimum qualification would be paid non-practising

allowance. It was clearly stipulated in the said office

memorandum that:-

"the non-practising allowance at the above rates would be admissible only for those veterinary posts in which a degree in veterinary science is the minimum qualification."

7. This memorandum was followed by another

memorandum dated 8.11.1991 which inter alia stipulated as

under:-

"I am directed to say that the question of grant of Non- Practising Allowance (NPA) to the degree holders in Veterinary Science working in posts in ISM & H autonomous bodies under this Ministry has been under consideration of the Government and it has now been decided in consultation with the Ministry of Finance, Department of Expenditure to extend the benefit of NPA to the degree holders in veterinary science working in posts in the pay scale of Rs.2000-3500 and above at the rates from the date indicated below."

8. Petitioner took up with his employer the issue of

payment of non-practising allowance to him by drawing attention

of the employer that the petitioner holds a bachelor's degree in

veterinary science stating that as office memorandum dated

29.9.1988 followed by the office memorandum dated 8.11.1991

he would be entitled to a non-practising allowance. The employer

being an autonomous body under the aegis of the Ministry of

Health and Family Welfare, (an undisputed fact), took up the

matter with the Ministry of Finance as well as the Ministry of

Health. The request of the petitioner forwarded by the

department was negated vide office order dated 7/8.12.1994

(contents noted in para 3 above).

9. The case of the petitioner is simple. He states that

whosoever holds a bachelor's degree in veterinary science would

be entitled to a non-practising allowance. The response of the

employer is equally simple. The employer says that only said

person would be entitled to a non-practising allowance who not

only holds a bachelor's degree in veterinary science but also

(additionally) holds a post for which degree in veterinary science

alone is the eligibility criteria and since the post held by the

petitioner has alternative qualifications, the petitioner would not

be entitled to a non-practising allowance.

10. The response of the respondent may be elaborated

with clarity. According to the respondent if the eligibility criteria

for a post has more than one qualification, one out of many being

a bachelor's degree in veterinary science, the incumbent holding

the said post would not be entitled to a non-practising allowance.

11. It goes without saying, as held by the Hon'ble Supreme

Court in the decision reported as 1990 (Suppl.) SCC 688 Dr.(Ms.)

O.Z.Hussain vs. U.O.I. non-practising allowance is not a basic

allowance and cannot be equated with higher degree allowance,

risk allowance and conveyance allowance etc. Further, it would

be permissible for the Government to grant non-practising

allowance to scientists holding medical degrees and deny the

same to scientists holding non-medical degrees. Further, as held

in the decision reported as 2004 (5) SCC 232 U.O.I. vs. Manu Dev

Arya grant or denial of non-practising allowance is a question of

policy and since no claim can be founded as a matter of right on

a policy the Court cannot direct the employer to frame a policy or

take a decision to grant non-practising allowance.

12. Thus, unless entitlement of the petitioner flows from a

policy decision of the Government, no relief can be granted to the

petitioner.

13. As noted above, the letter of appointment dated

16.2.1972, vide condition No.8, clearly stipulates that the

petitioner would not be entitled to any compensation in lieu of

the ban imposed upon the petitioner not to indulge in a private

practice.

14. No doubt the office memorandum dated 29.9.1988

deals with veterinary doctors but clearly stipulates that non-

practising allowance would be admissible only for those

veterinary posts for which a degree in veterinary science is the

minimum qualification. Thus, the petitioner cannot be granted

any relief under the office memorandum dated 29.9.1988 for the

reason admittedly the post held by the petitioner in the year

1988 had alternative qualifications as eligible qualification to be

appointed to the post in question.

15. What is the impact of the office memorandum dated

1.1.1991? The same clearly states and records in express terms

that the benefit of non-practising allowance has been extended.

Thus, prima facie, the office memorandum dated 8.11.1991

expands the ambit of posts, holders whereof would be entitled to

a non-practising allowance.

16. The office memorandum clearly mandates that the

benefit of non-practising allowance has been extended to all

degree holders in veterinary science working in posts in the pay-

scale of Rs.2000-3500 and above.

17. Thus, irrespective of the nature of the post and the

eligibility conditions, all persons holding a degree in veterinary

science and working on posts in ISM & H autonomous bodies

under the Union of India and in the pay-scale of Rs.2000-3500

and above are ex-facie eligible for benefit of non-practising

allowance in terms of the office memorandum dated 8.11.1991.

18. It would not be out of place to record that admittedly,

as of 8.11.1991, petitioner was in the pay-scale above Rs.2000-

3500.

19. A perusal of the language of the order rejecting claim

of the petitioner for grant of non-practising allowance shows that

the author of the letter has been guided by the language of the

office memorandum dated 29.9.1988 for the same restricts

benefit of non-practising allowance to only such veterinary

doctors where post held stipulates a bachelor's degree in

veterinary science alone as the minimum qualification. The

rejection letter ignores the office memorandum dated 8.11.1991

which extends the benefit of non-practising allowance to all

degree holders in veterinary science working in the pay-scale of

Rs.2000-3500 without any further stipulation that the post has to

be such where bachelor's degree in veterinary science alone is

the eligibility criteria.

20. Ordinarily, doctors and veterinary doctors are entitled

to practice their avocation of treating people/animals. Where

term of the employment prohibits the incumbent holder to

practice his avocation, a non-practising allowance is usually

given. This concept has been explained by the Hon'ble Supreme

Court in the decision rendered in a Petition for Special Leave to

Appeal (C) No.1085/92 rendered on 7.12.1995 titled as 'Dr.Gopal

Saran vs. U.O.I. & Ors.'

21. I accordingly hold that the petitioner would be entitled

to non-practising allowance in terms of office memorandum

dated 8.11.1991 and accordingly I quash the office order dated

7/8.12.1994.

22. Before concluding I may note that the office order

dated 8.11.1991 stipulates grant of non-practising allowance with

effect from 1.1.1986 or from the date of option for revised scale

of pay whichever is later. Unfortunately, no facts have been

pleaded in the petition whether the petitioner opted for revised

scales of pay. Everbody knows that with effect from 1.1.1986 the

recommendations of the 4th Pay Commission were implemented

with option given to the employees to accept or decline the

revised pay-scales.

23. Thus, I refrain from issuing a direction as prayed in the

petition that the petitioner be paid non-practising allowance with

effect from 1.1.1986. However, the declaration granted by this

Court that the petitioner is entitled to non-practising allowance in

terms of the office memorandum dated 8.11.1991 means that the

respondent would look into its record whether petitioner opted for

revised scales of pay or not. If he did, non-practising allowance

would be granted from the date when petitioner opted for the

revised scales of pay. If the petitioner did not opt for the revised

scales of pay he would be entitled to non-practising allowance

with effect from 1.1.1986.

24. Arrears payable to the petitioner in terms of the

present order would be computed within 12 weeks from today

and would be paid within said 12 weeks. If not so paid, the

petitioner would be entitled to interest on the amount payable

reckoned 12 weeks after the date of the present order till date of

payment. Interest would be @12% per annum.

25. No costs.

PRADEEP NANDRAJOG, J.

JULY 02, 2008 dk