PMS Doctors Retired Prior To August 24, 2009 Entitled To Revised 'Non-Practicing Allowance': Allahabad HC Quashes UP Govt Order

In response to the State's argument that there are financial constraints in extending the revised NPA benefits to the petitioners, the Bench of Justice Alok Mathur emphasized that the State was duty-bound to pay the statutory dues of the employees cannot avoid its liability citing financial constraint.

What is NPA (Non-Practising Allowance)?

The UP Government, in the year 1983, promulgated the U.P. Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983 placing restrictions on the Government Doctors from obtaining any pecuniary advantage by engaging in private consultancy.

In lieu of the said restriction, a Non-Practising Allowance was made available to them, which was to be determined by the State Government.

The facts in brief

The Court was hearing a total of 14 petitions filed by a number of Allopathic doctors who have retired prior to August 24, 2009.

They all were aggrieved by the Government orders dated July 14, 2020 and September 4, 2020 denying them the revised and enhanced rate of NPA on the ground that they have retired prior to the cutoff date August 24, 2009.

Prior to the passing of these two orders, the 7th Pay Commission recommendations were approved by the State of U.P on March 9, 2019 and the benefit of the same was given to the petitioners, and they started receiving the enhanced rate of Non-Practicing Allowance, till the passing of the impugned Government orders (July 14 & September 4).

Also, a recovery order dated July 16, 2020, was also passed by the Government to recover from them, the benefit received by them from the revised and enhanced rate of NPA.

Essentially, the effect of both the orders (July 14 & September 4) was that the Doctors retiring prior to August 24, 2009 were clubbed into one class and were made entitled to NPA at the rate, they were receiving at the time of their retirement (devoid of any entitlement to any enhancements or revision).

However, the persons retiring after August 24, 2009 would form the other class, and they would be entitled to the Non-Practicing Allowance at the enhanced rate of 20%.

The petitioners argued that this amounted to unreasonable classification.

July 14 & September 4 Orders

The July 14, 2020 order mandated that the petitioners who retired prior to August 24, 2009 will be entitled to receive NPA at the rate which they were receiving at the date of retirement, and the revision of the NPA from time to time would be inadmissible to them subsequent to August 24, 2009.

The September 4, 2020 order freezed the rate of NPA payable to petitioners who retired prior to August 24, 2009, while other Government Doctors, who retired after August 24, 2009 were made entitled to receive NPA at revised rates.

Essentially, the Government order dated September 4, 2020 was nothing but a repetition of the earlier Government order dated July 14, 2020 and both the orders had the effect of depriving the petitioners of their entitlement to the revised rate of Non-Practicing Allowance.

Arguments put forth

It was argued on behalf of the petitioners that the doctors similarly placed and who have retired after August 24, 2009 have been made entitled to the revised rate of Non-Practicing Allowance, whereas who have retired prior to August 24, 2009, have been disentitled from receiving the revised NPA benefits.

Resultantly, they asserted to have been unreasonably discriminated, and therefore, prayed for setting aside of the said Government orders as well as the recovery orders passed in consequence of the impugned orders.

The consequential relief sought in the writ petitions was writ of mandamus to command the Government to pay the NPA as per the existing revised rate of 20% as fixed by the Government.

The petitioners also challenged the impugned recovery orders as being illegal and arbitrary inasmuch as the NPA was duly fixed by the Government and paid to them to which they were entitled.

Court's observations

Importantly, it was contended that in the exercise of delegated power, the Government could not have fixed the rates of Non-Practicing Allowance retrospectively, and therefore, it was argued that the impugned Government orders were without jurisdiction, illegal and arbitrary.

Accepting this contention, the Court held thus:

"The impugned Government order has the effect of refixing the rates with effect from 24/08/2009, therefore is clearly without jurisdiction and arbitrary. Consequently, the Government order dated 04/09/2020 is clearly without authority illegal and arbitrary… This retrospective dis-entitlement of NonPracticing Allowance is clearly without jurisdiction, illegal, arbitrary and clearly violates all canons of reasonableness."

Thereafter, the Court took into account both the Government orders, which essentially created two different classes of doctors, one, who retired prior to August 24, 2009 and second, who retired after August 24, 2009 and observed thus:

"The Government orders in our considered opinion having failed the test of reasonable classification and the classification sought to be made on the basis of cut-off date being 24/08/2009 is bereft of reason and also that there is no intelligible differentia between the two classes so created the impugned orders are clearly violative of Article 14 of the Constitution of India."

Further, in response to the State's argument that there are financial constraints in extending the revised NPA benefits to the petitioners, the Court emphasized that the State was duty-bound to pay the statutory dues of the employees cannot avoid its liability citing financial constraints.

The Court further held thus:

"The claim of the petitioner is based on statutory rules and Government orders where they have been entitled for the same, and in this regard wherever there is budgetary allocation of resources, then it is presumed that the provision has been made for the same, and plea of financial constraint would not be acceptable."

"Where one class of persons is already receiving the benefit, and the same is sought to be extended to the other class, then the ground of the financial constraint cannot inhibit a claim on the ground of equal treatment, as the Constitutional Courts are under a mandate to give effect to the equality clause as mandated by Article of the Constitution of India," the Court further added.

Consequently, the Court held and ordered the following:

• The petitioners are entitled to the revised amount of Non-Practicing Allowance as per Government order March 3, 2019 (revising the rate of NPA).
• The consequential recovery orders dated July 16, 2020 are held to be illegal and arbitrary.
• All the writ petitions were allowed and the impugned orders dated 14/07/2020, 16/07/2020 and 04/09/2020 are quashed.
• The petitioners are held to be entitled to NPA as revised by the Government order dated 19/08/2019.
• The amount of Non-Practicing Allowance recovered in pursuance to the impugned Government orders is directed to be refunded along with arrears within a period of three months from today, failing which interest at the rate of 8% per annum will be paid for delay in payment beyond the period of three months.

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