Himachal Pradesh High Court
State Of Himachal Pradesh And ... vs Dr. D.R. Bharwal (Deceased) ... on 16 September, 2023
Bench: Vivek Singh Thakur, Bipin Chander Negi
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No.178 of 2021 alongwith
CWP No.7470 & 7471 of 2021,
CWP Nos.181 & 268 of 2022
.
Date of Decision : 16.09.2023
1. LPA No.178 of 2021
State of Himachal Pradesh and others ...... Appellants
Versus
Dr. D.R. Bharwal (deceased) through LRs. and others
......Respondents
2. CWP No.7470 of 2021
Dr. Digvijai Bahl ...... Petitioner
Versus
State of Himachal Pradesh and others ......Respondents
3. CWP No.7471 of 2021
Dr. Lalita Bahl ...... Petitioner
Versus
State of Himachal Pradesh and others ......Respondents
4. CWP No.181 of 2022
Dr. Ravinder Kumar Saxena ...... Petitioner
Versus
State of Himachal Pradesh and others ......Respondents
5. CWP No.268 of 2022
Dr. Prem Saxena ...... Petitioner
Versus
State of Himachal Pradesh and others ......Respondents
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
::: Downloaded on - 23/09/2023 20:32:46 :::CIS
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Whether approved for reporting? Yes.
For the appellants : Mr. Anup Rattan, Advocate General with
Mr. Rajesh Mandhotra, Additional Advocate
General, in LPA No.178 of 2021 and for the
.
respondents-State, in all the petitions.
: Mr. Dilip Sharma, Senior Advocate with
Mr. Shyam Prashad Chatterji, Advocate, for the
petitioners, in all the petitions, except in CWP
Nos.4835, 4836, 7260, 7261 of 2021 and for
the respondents in LPA No.178 of 2021.
For the Respondents : Mr. Lalit Sehgal, Advocate, for the petitioners in
CWP Nos.4835, 4836, 7260, 7261 of 2021.
Vivek Singh Thakur, Judge (oral)
LPA No.178 of 2021
r to
The present appeal has been filed against the
impugned judgment dated 04.05.2021, passed in CWPOA
No.1184 of 2020, titled Dr. D.R. Barwal (now deceased) through
his Legal Representatives vs. State of Himachal Pradesh and
others, whereby petitioners have been held entitled for inclusion of
Non-Practicing Allowance (NPA), revised vide notification dated
28.07.1998 (Annexure A-5 to the writ petition/ CWPOA No.1184 of
2020), in their pay for calculation of retiral benefits w.e.f.
01.09.1997 onwards.
2. Admittedly, petitioners served as Medical Officers in the
Health Department of Himachal Pradesh and have retired before
1 Whether reporters of Local Papers may be allowed to see the judgment?
01.09.1997. At the time of their retirement, Non-Practicing
Allowance was fixed as per notification dated 09.06.1989
(Annexure A-4 to the writ petition/ CWPOA No.1184 of 2020),
.
wherein it was stated that Non-Practicing Allowance will be
treated as pay for grant of various allowances, as well as for
calculation of retiral benefits.
3. Non-Practicing Allowance was revised vide notification
dated 28.07.1998 w.e.f. 01.09.1997 and in this notification also
Non-Practicing Allowance was directed to be treated as pay for
the purpose of grant of allowances, as well as calculation of retiral
benefits.
4. For non inclusion of revised Non-Practicing Allowance,
notified vide notification dated 28.07.1998, for the purpose of
calculation of retiral benefits to them, some of the Medical Officers
approached the erstwhile Himachal Pradesh State Administrative
Tribunal, by filing Original Application No.5429 of 2015, which was
disposed of vide order dated 01.01.2016, directing the competent
authority to consider their case in terms of judgment dated
13.06.2012 passed in CWP No.4961 of 2010, titled Keshav
Singh vs. State of Himachal Pradesh and others and the
connected matters.
5. Vide order dated 04.08.2016 (Annexure A-3 to the writ
petition/CWPOA No.1184 of 2020), the Principal Secretary
(Health) to the Government of Himachal Pradesh rejected the
.
case of the Medical Officers on the ground that they were not
similarly situated to the petitioners in CWP No.4961 of 2010.
6. Being aggrieved by the aforesaid rejection, petitioners
approached the erstwhile Himachal Pradesh Administrative
Tribunal again by filing O.A. No.431 of 2016. On abolition of the
Tribunal, the said petition was transferred to this Court and was
registered as CWPOA No.1184 of 2020. The judgment passed
wherein has been assailed in the present appeal.
7. The issue involved in the present matter is as to whether the
petitioners are entitled for inclusion of Non-Practicing Allowance at
the enhanced rate, as revised from time to time, for calculation of
their retiral benefits including 25% of Basic Pay w.e.f. 01.09.1997
onwards, as notified vide notification dated 28.07.1998.
8. Learned Single Judge, placing reliance upon the decision of
Keshav Singh's case (supra), decided the matter in favour of the
petitioners.
9. It is apt to record that the judgment in Keshav Singh's case
(supra) was assailed by the State by filing Letters Patent Appeal
No.184 of 2011, titled State of H.P. and others vs. Dr. Jagdish
Chand Panta and others, which was dismissed on 27.08.2014.
The Special Leave to Appeal (CC No.10839-10844/2015)
preferred by the State before the Hon'ble Supreme Court was also
.
dismissed vide order dated 08.07.2015 and the verdict in Keshav
Singh's case (supra) has attained finality.
10. In Keshav Singh's case (supra), after taking into
consideration various notifications and communications of the
respondents/State, it has been observed as under:-
"16.... ... ... Since it was only a revision of existing
scheme, not a new retiral benefit. is an upward revision
of an existing benefit. If it was a wholly new concept, a
new retiral benefit, one could have appreciated an
argument that those had already retired could not
expect it. It could have been urged that it is an incentive
to attract the fresh recruits. If it was only available to
new entrants, it would be prospective at such distance.
Since its introduction, it covers all those who entered in
service as back as the petitioners herein. The burden to
justify administrative or legislative action lies on the
State. The basic principle which uniforms both Article 14
and 16 of the Constitution of India, is equality and
inhibition against discrimination. Article 14 strikes at
arbitrariness involving negation of equality and forbids
class legislation but permits reasonable classification for
the purpose of legislatiion/administration, which
classification must satisfy the twin test of classification
being followed on an intelligible differentia which
distinguishes persons or things that are grouped
together from those that are left out of the group and
that differentia must have a rational nexus to the object
sought to be achieved."
.
17. In D.S. Nakara's case (supra), the Apex Court also
held that pension is a reward for past service and is not an
incentive. The revision of an existing benefit stands on a
different footing than a new retiral benefit.
20. In V. Kasturi v. Managing Director, State Bank of
India, Bombay and another, (1998) 8 SCC 30, the Supreme
Court observed that if the person retiring is eligible for
pension at the time of his retirement and if he survives till the
time of subsequent amendment of the relevant pension
scheme, he would become eligible to get enhanced pension
or would become eligible to get more pension as per formula
of computation of pension subsequently brought into force,
he would be entitled to get the benefit of the amended
pension provision from the date of such order as he would
be a member of the very same class of pensioners when the
additional benefit is being conferred on all of them. In such a
situation, the additional benefit available to the same class of
pensioners cannot be denied to him on the ground that he
had retired prior to the date on which the aforesaid additional
benefit was conferred on all the members of the same class
of pensioners who had survived by the time the scheme
granting additional benefit to these pensioners came into
force. It was observed that the line of decisions tracing their
roots to the ratio of Nakara's case (supra), would cover this
category of cases.
21. In my opinion, the object sought to be achieved by the
Office Memorandum dated 7.7.2007 is not to create a class
within a class, but to ensure that the benefit of pension was
made available to all persons of the same class equally. The
decision of the State Government as projected or to hold
otherwise would cause violation to the provisions of Article
14 of the Constitution. It is well settled law that when there is
a clear violation of a statute or a constitutional provision or
.
there is arbitrariness in the 'Wednesbury sense', the Court
has every right to interfere even with the policy decisions."
11. As per Fundamental Rule 9(21)(a)(ii), "Pay" has been
defined as under:-
"9. Unless there be something repugnant in the subject or
context, the terms defined in this Chapter are used in the
Rules in the sense here explained-
(21)(a) "Pay" means the amount drawn monthly by a
government servant as-
(i) the pay, other than special pay or pay granted
in view of his personal qualifications, which has been
sanctioned for a post held by him substantively or in an
officiating capacity, or to which he is entitled by reason of his
position in a cadre; and
(ii) overseas pay, special pay and personal pay;
and
(iii) any other emoluments which may be specially classed
as pay by the President."
12. As per Rule 33 of the Central Civil Services (Pension)
Rules, 1972, emoluments have been as under:-
"33. Emoluments.-The expression "emoluments" means
basic pay as defined in Rule 9(21)(a)(i) of the Fundamental
Rules which a government servant is receiving immediately
before his retirement or on the date of his death and will also
include non-practising allowance granted to the medical
officer in lieu of private practice."
13. By adding clause, in Notifications dated 09.06.1989 and
28.07.1998, that Non-Practicing Allowance will be treated as Pay
.
for the purpose of calculation of retiral benefits, nothing new has
been provided as NPA is already part of Pay as per Fundamental
Rules read with CCS Pension Rules referred supra. Therefore,
NPA revised from time to time shall be part of Pay and that has
been notified to be added in the Pay for calculating the retiral
benefits to the petitioners. Inclusion of NPA in the Pay is not a
new benefit or scheme to extend something additional and
revision of NPA is also not amounting to new benefit but it is only
revision of existing benefit, therefore, petitioners are entitled for
inclusion of NPA revised from time to time in their Pay for
calculating retiral benefits.
14. The judgment in Keshav Singh's case (supra) has attained
finality, wherein petitioners were claiming benefits of inclusion of
Non-Practicing Allowance enhanced after their retirement in the
year, 2007. The said claim was allowed by the Court being a
revision and not a new retiral benefit. The same identical
question is involved in the present case also, therefore,
petitioners herein are also similarly situated. The only difference,
that in Keshav Singh's case (supra), petitioners were Veterinary
Doctors and petitioners in the present case, are Medical Officers,
cannot be a ground for differentiating them with respect to the
identical issue involved with respect to extension of benefit of
.
revised enhanced Non-Practicing Allowance including the same in
the Pay for the purpose of calculation of retiral benefits.
15. We are in agreement with the findings returned by the
learned Single Judge and we do not find any infirmity, illegality or
perversity in the same warranting interference by exercising
jurisdiction under Letters Patent Appeal. Accordingly, the appeal
is dismissed, being devoid of merits.
16. Needless to say, time granted by learned Single Judge for
complying the order passed by the Court, shall be counted from
the date of passing of this judgment, i.e., today (16.09.2023).
17. With the aforesaid observations, judgment passed in
CWPOA No.1184 of 2020, is affirmed.
18. Pending application(s), if any, shall also stand disposed of,
in aforesaid terms.
CWP Nos.7470 & 7471 of 2021 and CWP No.181 & 268 of 2022
19. It is not in dispute that the issue involved in the present
petitions is squarely covered by the issue involved in CWPOA
No.1184 of 2020 adjudicated in LPA No.178 of 2021.
Accordingly, the reasons and grounds assigned therein for
allowing the appeal shall be applicable mutatis mutandis to the
present petitions also for all intents and purposes. Therefore, all
these writ petitions are also allowed in the aforesaid terms.
.
Pending application(s), if any, shall also stand disposed of.
( Vivek Singh Thakur)
Judge
September 16, 2023 (KS)
r to ( Bipin Chander Negi)
Judge
