Gujarat High Court
Ghanshyambhai Karamshibhai ... vs State Of Gujarat on 5 May, 2022
Bench: Biren Vaishnav
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6566 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 6687 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 6944 of 2022
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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GHANSHYAMBHAI KARAMSHIBHAI SATAPARA
Versus
STATE OF GUJARAT
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1
MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 05/05/2022
COMMON ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Kurven Desai learned
AGP waives service of notice of Rule on behalf of the
respondent State.
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
2. With the consent of learned advocates for the
respective parties, the petition is taken up for final
hearing.
3. For the purposes of this judgment, we may take facts
from Special Civil Application No.6566 of 2022.
4. The prayer of the petitioner is to extend the benefit of
NPPA, which read 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 continuing the benefit of 15%
NPPA to the petitioners after 2014 as per the 6 th
and 7th Pay Commission and further be pleased to
hold the same action on the part of the respondent
authorities as bad at law.
[C] YOUR LORDSHIPS may be pleased to issue
appropriate writ, order or direction directing the
respondent authorities to extend the benefit of 15%
NPPA as per 6th and 7th Revision of Pay in view of
the law laid down by the Division Bench of the
Hon'ble High Court of Gujarat in the judgement
dated 19-7-2018 passed in Letter Patent Appeal
no.907 of 2016 and other allied matters, which has
been confirmed by the Hon'ble Supreme Court of
India by the order dated 7-9-2020 passed in Special
Civil Petition Diary No.17681 of 2020."
5. The issue is covered by the decision of the coordinate
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
bench of this Court vide judgment dated 28.03.2016 in
Special Civil Application No.10953 of 2014 and allied
matters, which was confirmed by the Division Bench in
Letters Patent Appeal No.907 of 2016 vide judgment
dated 19.07.2018.
6. 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 pay vide
rd
resolution dated 3 October, 20212. The
petitioners being Class III employees and there
being no Government Resolution authorizing the
N.P.P.A under the Sixth Pay Commission, the
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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 taken
th
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 pensionary benefit
th
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 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
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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. The
th
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 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.
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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.
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
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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 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.
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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.
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
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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
th
as per Finance Departments orders dated : 25
st
June, 2010, 1 September, 2010,
nd th
22 November, 2001 and 12 April, 2012.
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
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
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.
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.
7. In view of the above referred two judgments; one in
Special Civil Applications and another of Letters
C/SCA/6566/2022 JUDGMENT DATED: 05/05/2022
Patent Appeal confirming the judgment of Special Civil
Applications, the petitions 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 three
months 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 in cases where the petitioners have
retired. So far as petitioners of Special Civil
Application No.6944 of 2022 are concerned, NPPA is
to be given from the date of regularization i.e. after
completing 5 years of service. Rule is made absolute
accordingly. Direct service is permitted.
(BIREN VAISHNAV, J)
ANKIT SHAH
