Gujarat High Court
Sunil Bhikhabhai Chenvala vs State Of Gujarat on 5 August, 2022
Bench: Biren Vaishnav
C/SCA/16033/2019 JUDGMENT DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16033 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUNIL BHIKHABHAI CHENVALA
Versus
STATE OF GUJARAT
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
MR RUSHABH H MUNSHAW(8958) for the Petitioner(s) No.
1,10,11,12,2,3,4,5,6,7,8,9
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/08/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned
Assistant Government Pleader waives service of notice of
C/SCA/16033/2019 JUDGMENT DATED: 05/08/2022
Rule for the respondents.
2. With the consent of the learned advocates for the
respective parties, the petition is taken up for final hearing
today.
3. Learned counsel for the petitioner would rely on an order
passed in similar matter by this Court namely; SCA
No.7477 of 2019 dated 19.7.2022. He further requested
this Court to pass a similar order in this matter too. The
order dated 19.7.2022 reads as under:
"1. Rule returnable forthwith. Mr. Utkarsh Sharma,
learned Assistant Government Pleader waives service
of notice of Rule for and on behalf of the respondent
- State.
2. With the consent of the learned advocates for the
respective parties, this petition is taken up for final
hearing today.
3. Learned counsel for the petitioner would rely on an
order passed in similar matter by this Court namely
Special Civil Application No.12707 of 2019 dated
07.07.2022. He further requested this Court to pass a
similar order in this matter too. The order dated
07.07.2022 reads as under:
C/SCA/16033/2019 JUDGMENT DATED: 05/08/2022
"1 The case of the petitioners is that the Non
Practice Allowance must be included in the
amount of basic pay for calculation of amount
of Dearness Pay.
2 Mr.Rushabh Munshaw, learned advocate
appearing for the petitioners, would submit that
the issue has been decided by this Court in
Special Civil Application No. 9615 of 2006 which
was confirmed by the Division Bench in Letters
Patent Appeal No. 77 of 2018 and allied
appeals. The relevant paras of the order dated
12.03.2018 rendered in LPA No. 77 of 2018
reads as under:
"10. Therefore, we conclude that anomaly
which was crept by applying incorrect
method of calculation of total emoluments
by not treating NPPA as a part of 'basic
pay' was corrected under Gujarat Civil
Services (Revision of Pay) Rules 2009
which came into force with effect from
01.01.2006 vide notification dated
27.02.2009 read with G.R. dated
25.06.2010 by the Finance Department,
Government of Gujarat upon revision of
rates for Non Private Practicing Allowance
based on 6th Central Pay Commission
Clause (4) once again treats Non Private
Practicing Allowance as pay for the
purpose of computing Dearness
Allowance, entitlement of Travelling
Allowance and other allowances as well as
for calculation of retirement benefits.
Thus G.R.dated 20.01.1998 explaining the
term 'pay' for the purpose of Dearness
Allowance to include Non Private
Practicing Allowance remained in force or
rather reiterated in G.R. dated 25.06.2010
by the Finance Department of
C/SCA/16033/2019 JUDGMENT DATED: 05/08/2022
Government of Gujarat. That such was not
the case only for the interregnum period
or year 2005 to 2009 based on powers of
the State Government to accept the
recommendations of 5th Pay Commission
in toto and to rely on Part B of Rule 7 of
the Gujarat Civil Services (Revision of Pay)
Rules 1998 in which NPA did not form or
was rather not included in the definition of
either basic pay or existing emoluments.
Further revised emoluments do accept
Non Private Practicing Allowance in 1998
and 2009 Revision of Pay Rules.
11. Therefore, we find the order and
directions of the learned Single Judge
impugned in this group of appeals are
based on proper analysis of relevant
Revision of Pay Rules, Government
Resolutions, Office Memorandums
governing the subject of NPA / NPPA to
which we are in agreement with and NPA/
NPPA is not to be divested of the term
'Pay' for the purpose of computing
dearness allowance and emoluments. We
find no merit in all these appeals and they
are hereby dismissed."
3 Accordingly, the petition is allowed. It is
hereby declared that for the period between 1st
April 2004 and 31st March 2009, the Non-
Private Practicing Allowance shall be treated as
a Basic Pay and shall be calculated along with
the Basic Pay for the purpose of determining
the Dearness Pay. The authority concerned
shall calculate the difference accordingly in the
case of each of the Medical Officers and pay the
consequential benefits within a period of three
months from the date of receipt of this order.
Rule is made absolute accordingly."
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4. Accordingly, in view of the above, the
present petition shall also be governed by the
Oral Judgment of this Court dated 7.7.2022
passed in Special Civil Application No.12707 of
2019 and is allowed and disposed of in the
same terms. Rule is made absolute to that
extent. No order as to costs. Direct Service is
permitted."
4. Accordingly, in view of the above, the present petition shall
also be governed by the Oral Order of this Court dated
19.7.2022 passed in Special Civil Application No.7477 of
2019 and is allowed and disposed of in the same terms.
5. Rule is made absolute to that extent. No order as to costs.
Direct Service is permitted.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
