Gujarat High Court

Kantibhai Kodarbhai Prajapati vs State Of Gujarat on 21 July, 2022

Bench: Biren Vaishnav

     C/SCA/7165/2019                                JUDGMENT DATED: 21/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7165 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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                       KANTIBHAI KODARBHAI PRAJAPATI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 21/07/2022

                              ORAL JUDGMENT

1. RULE returnable forthwith. Mr. Utkarsh Sharma,

learned AGP waives service of notice of Rule on

behalf of the respondent State.

C/SCA/7165/2019 JUDGMENT DATED: 21/07/2022

2. With the consent of learned advocates for the

respective parties, the petition is taken up for final

hearing.

3. The prayer of the petitioner is to extend the benefit

of NPPA, which reads as under:

"[A] Your Lordships may be pleased to admit the present petition.

[B] Your Lordships may be pleased to issue appropriate writ, order or direction for quashing and setting aside the illegal, arbitrary, unjust, unfair and discriminatory action of the respondent authorities for not deciding / fixing/ and releasing the amount of pension and other retirement benefits including 15% NPPA and You Lordships may be pleased to hold the said action on the part of the respondent authority as bad in law.

[C] Your Lordships further be pleased to direct the respondent authorities to decide / to fix and to release the final amount of pension and other retirement benefits as per the Sixtha and seven Pay Commission including 15% NPPA in favour of the petitioners, by considering the judgement dated 19/7/2018 passed in LPA No. 907 of 2016 confirming the judgement dated 28/03/2016 passed in SCA No. 10953 of 2014."

4. The issue involved in the present petition is covered

by the decision of the coordinate bench of this Court

vide judgment dated 28.03.2016 in Special Civil

Application No.10953 of 2014 and allied matters,

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which was confirmed by the Division Bench in

Letters Patent Appeal No.907 of 2016 vide judgment

dated 19.07.2018. Even as recently as on

05.05.2022, this court has in similar issue held in

favour of the petitioners therein in SCA No. 6566 of

2022 and allied matters.

5. The relevant paragraphs of the judgment dated

28.03.2016 rendered in Special Civil Application

No.10953 of 2014 and allied matters read as under:

"9 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners are entitled to the relief, as prayed for, in these writ applications.

10 It appears from the stance of the State respondent that in accordance with the Government Resolution dated 27th February 2009, the pay of all the petitioners was revised with the benefit of the N.P.P.A. by the department. However, the audit office raised an objection that for the purpose of grant of the benefit of the N.P.P.A., a separate Government order is necessary. In the absence of the same, the pension of the petitioners cannot be fixed giving the benefit of the N.P.P.A. at the rate of 15%. It also appears that the employees of Class I and Class II have been sanctioned the benefit of the N.P.P.A. at the rate of 25% of the rd pay vide resolution dated 3 October, 20212.

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The petitioners being Class III employees and there being no Government Resolution authorizing the N.P.P.A under the Sixth Pay Commission, the same has not been granted. It also appears as pointed in the reply that the petitioners were extended the benefit of 15% N.P.P.A. in the Fifth Pay Commission.

11 It also appears that the Government has th taken the decision dated 29 September, 2014 that the petitioners are not entitled to the N.P.P.A. as the Finance Department has not approved the proposal. Although the Directorate fixed the pay of the petitioners with the benefit of 15% N.P.P.A., but the Local Fund Office at Gandhinagar rejected the same insisting for a separate Government Resolution.

12 There is no explanation at the end of the State respondent as to how identically situated thirty two employees of Class III, who retired during 2010-11, have been paid the retiral benefits in accordance with the Sixth Pay Commission which includes 15% N.P.P.A. There is no explanation as regards such discrimination.

13 In the aforesaid background, I may, once again, at the cost of repetition, quote what has been stated in the reply in para 19, which reads as under:

19 I respectfully say and submit that it is true that some of the retired class III employees of this department whose pay was fixed with NPPA by this office were given the th pensionary benefit with NPPA under 6 pay commission in earlier days when the pay verification of retired employee was carried out by directorate of pension and provident fund. But afterwards the pay verification is done by the audit office i.e. Examiner Local

C/SCA/7165/2019 JUDGMENT DATED: 21/07/2022

Fund Audit, Gandhinagar and the same has raised objection for a separate Government order sanctioning to class III employee of this department. As at present the Government has decided not to give the benefit of NPPA to these employees this directorate has issued orders to revise their pay without benefit of NPPA and make all recoveries.

14 What is the concept of the Non-Private Practicing Allowance? It is obvious that the Non-Private Practicing Allowance is an incentive given to the employees to ensure that they work in the government institution and do not indulge in the private practice. It is not in dispute that the petitioners herein were debarred from the private practice. They received the N.P.P.A. at the rate of 15% in accordance with the Fifth Pay Commission recommendations. There was no objection at any point of time in this regard either at the end of the Local fund Office or any other authority. I see no good reason to deny the benefit of the N.P.P.A., now at this stage, on the premise that there is no separate resolution in that regard issued by the State Government.

th The resolution of 16 April, 1980 issued by the State Government reads as under:

RESOLUTION

In partial modification of the orders issued vide para 3 of Government Resolution Agricultural, Forests and Cooperation Department No.AHS-5075/8177-R dated 20-

12-75 referred to in the preamble, Government is pleased to direct that all Livestock Inspector when appointed to the posts which carry the pay scale of the Livestock Inspector and belong to the cadre of Livestock Inspectors and not attached to the Veterinary Dispensaries / Veterinary Aid Centres should be allowed non-private

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practising allowance of Rs.40/- (Rupees forty only) per month.

2. These orders should take effect from 1-1- 1980.

3. This issue with the concurrence of Finance Deptt. dated 19-1-1980 on this department file of even number.

By order and in the name of the Governor of Gujarat.

nd 15 The Government Resolution dated 22 June, 1999 provides that the N.P.P.A would form part of the pay scale.

           16     The   free      English
                                   translation of the
                                          nd
           Government Resolution dated 22    June, 1999
           reads as under:

It is resolved after due thought process to sanction/to pay the Non private practice allowance at the rate of 15% of the basic salary in the revised pay scale with effect from 1.1.1996, to the employees who are serving under the animal husbandry department of the state or to the employees who are on the deputation from the said department to the district panchayat, corporation/ board or district rural development agency, who are not permitted to do private practice and who are qualified and having certificates as live stock inspector duly recognized by the animal husbandry department and Gujarat agriculture university and also to those who are promoted as a extension officer (animal husbandry) from the live stock inspector.

2 Non private practice allowance should be considered as a salary in respect of computing all service related benefits and also for the purpose of the pension.

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3 The non private practice allowance will be given with effect from 1.1.1996; or from the date of acceptance of revised pay scale by the live stock inspector and extension officer (animal husbandry).

4 The Non Private Practice Allowance will be adjusted with the earlier paid Non Private Practice Allowance as per the instructions issued vide circular dated 5.2.1998 issued by finance department as referred at serial no.6 herein above.

Moreover, as recommended under the fifth pay scale commission, the 15% of the amount of arrears which are, liable to be received for the period of 1.1.96 to 31.12.96; will be deposited into the GPF account of respective employee and remaining 15% of the amount of arrears will be paid in cash to the respective employee of the animal husbandry department.

5 The employees who are eligible to get 15% non private practice allowance, before presenting the claim about the non private practice allowance has to submit the certificate stating that during the month he has not done any private practice or he has not received any amount of rupees by doing private practice, before the relevant concerned officer or before the senior officer. And in case of any event, and if it is came to knowledge of the concerned officer that the employee who has received non private practice allowance and also the said employee has received any amount of money by doing private practice and if it is proved then without following the process under the Gujarat civil services (discipline and appeal rules, 1971), whole amount will be recovered which is received as non private practice allowance from 1.1.96 and such type of written undertaking has to be submitted by the live stock inspector and extension officer and moreover concerned employee would be

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charged under the provision of Gujarat civil services (discipline and appeal) rules, 1971.

6 This resolution is published and declared on the basis of the permission received vide permission letter dated 6.6.99 issued from the finance department.

rd 17 The Government Resolution dated 3 October, 2012, with respect to the Sixth Central Pay Commission - Revision of rates of N.P.P.A. being paid to the veterinary officers of the Gujarat Animal Service, Class - I & II, reads as under:

"RESOLUTION

Consequent upon the introduction of revised structure under the Gujarat Civil Services (Revision of Pay) Rules, 2009 with effect from 1-1-2006, Government is pleased to decide the Non-Private Practicing Allowance (NPPA) may continue to be paid to the Veterinary Officers of Gujarat Animal Service under Animal Husbandry Department at the existing rate of 25% of the Basic Pay subject to the condition that the Basic Pay + NPPA does not exceed Rs.75500/- for the period 1-1-2006 to 11-4-2012 and Rs.85000/- with effect from 12- 4-2012.

2 The term Basic Pay in the revised pay structure means the pay drawn in the prescribed pay band plus the applicable grade pay but does not include any other of pay like special pay etc.

3 The NPPA should be restricted only to those Veterinary Officers for which minimum qualifications of a Degree of B.V.Sc. & A.H. With registration in the Veterinary Council of India is required.

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4 While submitting their claim for NPPA, each Veterinary Officers and Gujarat Animal Service Class -I and Class -II Officers who are entitled for NPPA shall have to submit to the higher authority / drawing and Disbursing Officer, the Certificate to the effect that he has not done any kind of private practice and have not collected any type of fees from anyone during the month of each claim he submits for NPPA.

If it is noticed or proved at any time that the officer has charged fees from anyone or has received money for private practice then without following disciplinary procedure under the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1971, he shall be liable for recovery of NPPA in a single installment from 01/01/2006 up to the date it is proved to have done so. He shall have to give written undertaking in this regard.

5 The Non-Private Practicing Allowance will be treated as pay for the purpose of computing Dearness Allowance, entitlement of Travelling Allowance and other allowances as well as for calculation of retirement benefits.

6 The Veterinary Officers who are in State Governments service under Animal Husbandry Department and Gujarat Animal Services Class-I & II shall be eligible for N.P.P.A.

7 Non-Private Practicing Allowance of the Veterinary Officer who are in service under Animal Husbandry Department and Gujarat Animal Service. Class I & II shall be regulated as per Finance Departments orders th st dated : 25 June, 2010, 1 September, 2010, nd th 22 November, 2001 and 12 April, 2012.

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By order and in the name of the Governor of Gujarat.

18 I am not impressed by the submission canvassed on behalf of the State Government that the petitioners are not entitled to the benefit of the N.P.P.A. since they rendered only minor veterinary service and that too under the supervision and guidelines of the registered veterinary practitioners. The Government nd Resolution dated 22 June, 1999 speaks about employees, who are serving under the Animal Husbandry Department. Such resolution does not speak about any minor veterinary service or the like. The petitioners all retired as Live Stock Inspectors. They were recognized by the Animal Husbandry Department. While giving benefit of the N.P.P.A. along with the Fifth Pay Commission, the allowance was considered as a salary. The objection raised by the Audit Department appears to be flimsy and untenable, more particularly, when it is insisting for a separate resolution in this regard for the purpose of fixing the pension in accordance with the Sixth Pay Commission.

19 It is very surprising to note that all of a sudden, the State Government thought fit to inquire with other State Governments as regards their policies of providing the allowance in question is concerned. It appears that since other State Governments have not provided such allowance to the Live Stock Inspectors, the State of Gujarat, all of a sudden, took a decision to fix the pension in accordance with the Sixth Pay Commission minus the N.P.P.A.

20 In my view, the petitioners are entitled to get their pay fixed in accordance with the Sixth Pay Commission recommendations with 15% N.P.P.A.

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21 In the result, all these writ applications succeed and are allowed. The respondents are directed to fix the pension of the writ applicants in accordance with the Sixth Pay Commission recommendations with 15% N.P.P.A. The N.P.P.A. shall be treated as a part of the pay scale. Let this exercise be completed within a period of one month and the writ applicants be paid the difference towards the arrears within a period of one month thereafter. They shall be paid thereafter regular monthly pension accordingly. Rule is made absolute. Direct service is permitted."

6. In view of the above referred two judgments; one in

Special Civil Application and another of Letters

Patent Appeal confirming the judgment of Special

Civil Application, the petition is allowed.

7. The respondents are directed to fix the pension of

the petitioner in accordance with the Sixth and

Seventh Pay Commission recommendations with

15% N.P.P.A. The N.P.P.A. shall be treated as a part

of the pay scale. Let this exercise be completed

within a period of three months and the writ

applicants be paid the difference towards the

arrears within a period of one month thereafter. He