# Dr. Avinash Chandra Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 1426
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-02
- **Case number:** Service Single No. 13029 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-avinash-chandra-srivastava-ors-v-state-of-u-p-ors-47544
- **Pages:** 43

## Headnote

A. Service Law - Non-practicing allowance
- U.P. Government Doctors (Allopathic)
Restriction on Private Practice Rules, 1983
- Rule 3, 4(b) - U.P. Government Doctors
(Allopathic) Restriction on Private Practice
(Second Amendment) Rules, 2005.

The 7th Pay Commission recommendations
were approved by State of U.P on 09/03/2019
and given effect to vide GO dated 09/08/2019.
The benefit of the same was given to the
petitioners, and they started receiving the
enhanced rate of NPA, till passing of the
impugned GOs. (Para 5)

The bulwark of the challenge in this bunch of
writ petitions is discrimination meted out to the
petitioners by the unreasonable classification
introduced by the State Government, by the
impugned
GOs
dated
14/07/2020
and
04/09/2020,
both
having
the
effect
of
disentitling the petitioners who retired prior to
24/08/2009 of the revised rate of Non-Practicing
Allowance (NPA). (Para 6)

In one set of writ petitions the GOs dated
14/07/2020
and
recovery
order
dated
16/07/2020 have been challenged, while second
set of petitions, the challenge is to the GO dated
04/09/2020 which had amended the earlier GO
dated 09/03/2019. The consequential relief
sought in both the writ petitions is writ of
mandamus to command the opposite parties to
pay the NPA as per the existing revised rate of
20% as fixed by the GO dated 09/08/2019.
(Para 6)

Maintainability - The present petition at the
behest
of
persons
holding
Office
of
Director/Additional Director at the time of the
retirement even though initially excluded from
the benefit of Non-Practicing Allowance due to
operation of the exclusionary clause in the rules
of 1983, but subsequently, after amendment of
2005, were granted benefit of Non-Practicing
Allowance, would be maintainable. The embargo
imposed by the rules of 1983 was lifted when
the said rules were amended in 2005 and they
became entitled to receive the Non-Practicing
Allowance. From 2005 till passing of the
impugned order dated 14/07/2020, there is
nothing on record to show that petitioners were
disentitled from receiving the benefit of NonPracticing Allowance.

The
petitioners
being
aggrieved
by
the
impugned orders which have disentitled them
from the benefit of the Non-Practicing Allowance
due to the fortuitous circumstance, that their
date of the retirement is prior to 24/08/2009,
and not because they were holding the post of
Director/Additional Director at the time of the
retirement, which grievance can legally and
validly be raised by them in the present set of
petitions. (Para 23)

An individual cannot be non-suited, just
because an Association of which he is a
member has also preferred a similar writ
petition on the same subject matter. A writ
petition is maintainable before the High Court by
any person who is aggrieved by the action of
the State as being violative of part III of the
Constitution. An individual has a right to enforce
his fundamental rights enshrined in part III of
the Constitution, and the rights to sue, to

## Text

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1426 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)09ILR A1426
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Service Single No. 13029 of 2020
& other connected cases

Dr. Avinash Chandra Srivastava & Ors.
 ....Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Hari Prasad Gupta, Hari Ram Gupta

Counsel for the Respondents:
C.S.C.

A. Service Law - Non-practicing allowance
- U.P. Government Doctors (Allopathic)
Restriction on Private Practice Rules, 1983
- Rule 3, 4(b) - U.P. Government Doctors
(Allopathic) Restriction on Private Practice
(Second Amendment) Rules, 2005.

The 7th Pay Commission recommendations
were approved by State of U.P on 09/03/2019
and given effect to vide GO dated 09/08/2019.
The benefit of the same was given to the
petitioners, and they started receiving the
enhanced rate of NPA, till passing of the
impugned GOs. (Para 5)

The bulwark of the challenge in this bunch of
writ petitions is discrimination meted out to the
petitioners by the unreasonable classification
introduced by the State Government, by the
impugned
GOs
dated
14/07/2020
and
04/09/2020,
both
having
the
effect
of
disentitling the petitioners who retired prior to
24/08/2009 of the revised rate of Non-Practicing
Allowance (NPA). (Para 6)

In one set of writ petitions the GOs dated
14/07/2020
and
recovery
order
dated
16/07/2020 have been challenged, while second
set of petitions, the challenge is to the GO dated
04/09/2020 which had amended the earlier GO
dated 09/03/2019. The consequential relief
sought in both the writ petitions is writ of
mandamus to command the opposite parties to
pay the NPA as per the existing revised rate of
20% as fixed by the GO dated 09/08/2019.
(Para 6)

Maintainability - The present petition at the
behest
of
persons
holding
Office
of
Director/Additional Director at the time of the
retirement even though initially excluded from
the benefit of Non-Practicing Allowance due to
operation of the exclusionary clause in the rules
of 1983, but subsequently, after amendment of
2005, were granted benefit of Non-Practicing
Allowance, would be maintainable. The embargo
imposed by the rules of 1983 was lifted when
the said rules were amended in 2005 and they
became entitled to receive the Non-Practicing
Allowance. From 2005 till passing of the
impugned order dated 14/07/2020, there is
nothing on record to show that petitioners were
disentitled from receiving the benefit of NonPracticing Allowance.

The
petitioners
being
aggrieved
by
the
impugned orders which have disentitled them
from the benefit of the Non-Practicing Allowance
due to the fortuitous circumstance, that their
date of the retirement is prior to 24/08/2009,
and not because they were holding the post of
Director/Additional Director at the time of the
retirement, which grievance can legally and
validly be raised by them in the present set of
petitions. (Para 23)

An individual cannot be non-suited, just
because an Association of which he is a
member has also preferred a similar writ
petition on the same subject matter. A writ
petition is maintainable before the High Court by
any person who is aggrieved by the action of
the State as being violative of part III of the
Constitution. An individual has a right to enforce
his fundamental rights enshrined in part III of
the Constitution, and the rights to sue, to
enforce
the
fundamental
rights
is
not
subservient or subject to a class action by the
Association of which he is a member.
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P. & Ors.
1427
In the present case, the Association and the
individual members have raised a common
challenge to the impugned Government Orders.
The petitioners are discontent by the impugned
Government
orders
as
they
have
been
personally deprived of the benefit of the NonPracticing Allowance and therefore they are the
"aggrieved" and can validly ventilate their
grievance by means of a writ petition u/Article
226 of the Constitution and also that the benefit
or otherwise arising from the outcome of the
present writ petitions, shall necessarily be of the
individual members. (Para 24)

B. Prospective application of Government
Orders
-
The
State
Government
while
interpreting the words "prospective/immediate
effect", in the GO dated 24/08/2009 have
understood it to mean that the benefit of the
said order would be given to persons retiring
after coming into effect of the said GO, i.e.
24/08/2009.

Prospective application has no correlation
to
the
eligibility
of
claiming
NonPracticing Allowance (NPA). To make it
abundantly clear the prospective operation of
such Government orders only means that the
revised rates are applicable from that particular
day onwards, and no arrears can be claimed on
the basis of the revised rates prior to the said
date. There is no quarrel about their right to
receive NPA, as the petitioners are regularly
being paid pension as revised by the State
Government from time to time. The allowances
are also revised by the State Government from
time to time looking into various factors
including the cost index of living. Similarly, the
NPA has been constantly revised since 1983,
and it has always been co-related with the scale
of pay an even though prior to 24/08/2009 it
was on a slab basis, but still it was roughly a
particular percentage of the basic salary which
is clearly discernible on a plain reading of the
aforesaid GOs. The GO dated 24/08/2009 also
revised the rate of NPA and made it 25% of the
basic salary. Apart from the revision of the rates
in the said GO, there is no such tectonic shift in
the policy w.r.t. payment of NPA which the
State claims has led to create a watershed
between
the
persons
retiring
prior
to
24/08/2009 and those retiring subsequently, nor
any such provision could be demonstrated by
the State. Any such allowance like NPA is
not liable to remain stagnant over a period
of time in its application to petitioners
while it is revised from time to time with
regard to others similarly situated. (Para
55, 92, 93)

C. Retrospective application of impugned
Government Order - In the absence of any
provision contained in the legislative Act,
a delegatee cannot make a delegated
legislation with retrospective effect. There
is no dispute over the fact that the legislature
can make a law retrospectively or prospectively
subject to justifiability and acceptability within
the constitutional parameters. A subordinate
legislation can be given retrospective effect if a
power in this behalf is contained in the principal
Act. (Para 55)

The Government was exercising its delegated
power u/Rule 4 of the rules of 1983, which
provided that the State Government could fix
the rates of NPA from time to time. The
impugned GO dated 04/09/2020 having fixed
the
rates
of
NPA
w.r.t.
the
petitioners
retrospectively, with effect from 24/08/2009,
which is impermissible as per the law laid down
by
the
Apex
court.
The
impugned
GO
purportedly clarifying the earlier G.O. dated
09/08/2019 provided that the petitioners would
only be entitled to NPA which they were
receiving at the time of their retirement. In the
meanwhile,
the
petitioners
have
received
enhanced amount of NPA, which is also sought
to be recovered by the impugned order. The
impugned GO has the effect of refixing the rates
with effect from 24/08/2009, therefore is clearly
without jurisdiction and arbitrary. Consequently,
the GO dated 04/09/2020 is clearly without
authority illegal and arbitrary. (Para 56)

Retrospective
dis-entitlement
of
NonPracticing Allowance is clearly without
jurisdiction, illegal, arbitrary and clearly
violates all canons of reasonableness.
Clause 3 of the GO dated 14/07/2020 states
that from 24/08/2009 to 31/12/2015 the
persons having retired prior to 24/08/2009 will
be entitled to the same amount of NonPracticing Allowance which they were receiving
at the time of retirement. This clause clearly
indicates that there was no GO, or any decision
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Government prior to 14/07/2020 not to
revise the rate of NPA w.r.t. the Government
doctors who retired prior to 24/08/2009.

The rules of 1983 entitle the Government to fix
the rate of NPA from time to time, but there is
no statutory provision enabling the Government
to
give
retrospectivity
effect
to
such
determination. The rules of 1983 do not contain
any provision enabling the State Government
while exercising its power u/rule 4 to fix the
rates, to make them applicable retrospectively.
This fixation of rate with regard to the
petitioners has retrospective application, and
therefore, beyond the mandate of the State
Government u/Rule 4 of the Rules of 1983, and
contrary to the law. Therefore, without there
being any enabling provision in this regard in
the rules of 1983, the impugned order specially
clause 3 of GO dated 04/09/2020 is without
jurisdiction, illegal and arbitrary. (Para 57)

D. Colourable exercise of Power - The
judicial
pronouncements
by
court
of
competent jurisdiction cannot be set to
naught by the action of the legislature or
executive as it would amount to an
encroachment on the judicial power. (Para
64)

Comparing both the impugned GOs it is noticed
that they provide for the same entitlement
regarding the petitioners who retired prior to
24/08/2009 and both the impugned GOs are to
the effect that the petitioners would be
receiving the same amount of NPA which they
were receiving at the time of the retirement,
without any benefit of revision. (Para 68)

It is well settled that rights and benefits
which have already been earned or
acquired under the existing rules cannot
be taken away by amending the rules with
retrospective effect. There cannot be any
doubt
whatsoever
that
the
GO
dated
04/09/2020 is nothing but a repetition of the
earlier GO dated 14/08/2020. The respondents
could not point out any difference in both the
GOs, w.r.t. its application to the petitioners and
also w.r.t. their entitlement of NPA. Such an
exercise of power as has been done by the
State in the present case, cannot be said to be a
legitimate in exercise of powers vested in clause
4 of the rules of 1983, and is arbitrary and
consequently violative of Article 14 of the
Constitution. (Para 69, 70)

Once there is a judicial opinion, even if it
is in form of an interim order, the
Executive
cannot
be
allowed
to
be
override the said order, and in case the
same
is
done
it
would
amount
to
transgression of their power, and such an
action is liable to be set aside as being
without jurisdiction and authority. The
G.O. dated 04/09/2020 has the effect of
depriving the petitioners of their entitlement to
the revised rate of NPA. The GO dated
04/09/2020 is clearly a device or a mechanism
used by the respondents to circumvent the
interim order of this Court dated 24/08/2020 by
which
the
GOs
dated
14/07/2020
and
16/07/2020 were stayed. In case the State was
aggrieved
by
the
interim
order
dated
24/08/2020, it was always open for them to
move an application for vacation of the stay, or
to move a special appeal, or approach the
Supreme Court. The Government does not have
any power to override a judicial order by
executive fiat. The demarcation of power has
clearly been delineated in the Constitution
where the power to declare a legislative or
executive act to be unconstitutional is vested
only with the judiciary. The impugned order
dated 04/09/2020 is clearly illegal and arbitrary
as it has been passed in the teeth of the interim
orders of this Court dated 24/08/2020. (Para
72)

E.
Reasonable
Classification
-
The
Government has a right to treat different
classes differently, and to that extent
classification
is
permissible,
but
the
classes so made should be characterised
by certain distinction, and the distinction
in the two classes should be based on
differential attributes which would have
just and rational having nexus to the
objects sought to be achieved. (Para 80)

The GO dated 24/08/2009 does not distinguish
between pre and post retirees nor does it create
any class in its application for revision of the
NPA, and therefore the State post facto could
not have discovered and created two classes
where none existed.
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P. & Ors.
1429
GOs which have been issued from time to time
in exercise of rule 4 of the rules of 1983, have
only approved the revision of the rate of NPA in
sync with the recommendations of the Central
Pay Commission where also no distinction has
been made between serving doctors and retired
doctors in its application to NPA, indicating that
there never was any such distinction real or
apparent as has been sought to be made as per
the impugned orders. (Para 82)

The
GOs
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.
(Para 83)

F. Government Order to correct the error
in earlier Government Order - Firstly there
was no error, apparent or otherwise in the GO
dated 09/03/2019 and secondly, there was no
occasion to correct the said GO, which did not
contain any deficiency or error and therefore on
this score also the order dated 04/09/2020 itself
is illegal and arbitrary. (Para 86)

G. Non-Practicing Allowance is payable to
retired
Government
doctors
-
The
petitioners are receiving a fixed amount as NPA
as a part of their pension. The GOs dated
31/08/1989 and 01/02/2003 have explicitly
extended the benefit of NPA to the retired
Government doctors which would form part of
the pension, and therefore the contention of the
respondents that the petitioners are not entitled
to NPA because they have retired, is clearly
wanting in rationality and reasonableness, and
even otherwise is clearly contrary to the said
GOs, and is therefore rejected. (Para 87)

H. Withdrawal of NPA without opportunity
of hearing - The GO dated 24/08/2009 while
enhancing the rate of NPA to 25% was ipso
facto applicable to serving Government doctors,
as well as to the retired Government doctors in
as much as the earlier GOs dated 31/08/1989
and 01/02/2003 had explicitly extended the
benefit of NPA to the retired Government
doctors. (Para 88)

Constitution of India - Article 14, 300A -
Principles of natural justice - When a
vested right sought to be taken away,
then it is mandatory to provide an
opportunity of hearing to the person
concerned, in absence of which the action
of the State is liable to be set aside as
being violative of principles of natural
justice. The revision on the rate of NPA 25% of
the basic salary became a vested right of the
pensioners and thus was duly protected as
property under Article 300A of the Constitution,
and they could not be deprived of same without
following the procedure established by law. As
noticed above, there was no error in the
impugned GOs. The petitioners were never
afforded any opportunity of hearing before
passing of the impugned GOs, and hence on
this ground also the impugned GO dated
04/09/2020 are arbitrary and violative of Article
14 of the Constitution. (Para 89)

I.
Financial
Constraint
-
The
State
government being and are duty bound to
pay the statutory dues of the employees
cannot avoid its liability citing financial
constraint. In the instant case there is no
denial of the fact that the NPA is admissible to
the petitioners and is being paid, it is only the
applicability of revised rates which is under
question. The claim of the petitioner is based on
statutory rules and GOs 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.
(Para 96)

It is also noticed that whenever a fresh liability
is sought to be created on the State then the
contours and parameters of examination are
different, and usually, the stand of the State
may be accepted as such except when a claim is
made on ground of discrimination. 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 financial constraint cannot
inhibit a claim on ground of equal
treatment, as the Constitutional Courts are
under a mandate to give effect to the equality
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
clause as mandated by Constitution of India.
(Para 97)

The
impugned
recovery
orders
are
illegal and arbitrary inasmuch as the
NPA was duly fixed by the Government
and paid to them to which they were
entitled. This entire exercise was done by
the
State
Government
without
any
involvement of the petitioners, and they
were duly entitled for the same. Even
otherwise the said recovery will cause
immense hardship. (Para 106)

Writ petitions allowed. (E-4)

Precedent followed:

1. D.S. Nakara Vs U.O.I., (1983) 1 SCC 305
(Para 12, 50, 78)

2. V. Kasturi Vs Managing Director, S.B.I.,
Bombay, (1998) 8 SCC 30 (Para 14)

3. All Manipur Pensioners Assc. Vs St. of Mani.,
(2020) 14 SCC 625 (Para 14)

4. St. of Raj. Vs Basant Agrotech (India) Ltd.,
(2013) 15 SCC 1 (Para 55)

5. Madan Mohan Pathak Vs U.O.I., (1978) 2 SCC
50 (Para 62)

6. Goa Foundation Vs St. of Goa, (2016) 6 SCC
602 (Para 63)

7. St. of M.P. & ors Vs Yogendra Shrivastava,
(2010) 12 SCC 538 (Para 70)

8. Manish Kumar Vs U.O.I., (2021) 5 SCC 1
(Para 80)

9. Paschim Banga Khet Mazdoor Samity Vs St.
of W.B., 1996 (4) SCC 36 (Para 95)

10. St. of Pun. Vs. Rafiq Masih, (2015) 4 SCC
334 (Para 106)

Precedent distinguished:

1. Haryana Financial Cor. & anr. Vs Jagdamba
Oil Mills & anr., (2002) 3 SCC 496 (Para 71)

2. St. of Pun. Vs Amar Nath Goel, (2005) 6 SCC
754 (Para 98)

3. Sabhajeet Singh & ors. Vs St. of U.P. & ors.,
Judgment dated 25.01.2018, ALLHC Service
Bench Nos. 1482 of 2015 & 1239 of 2012

Present appeal assails Government orders
dated 14.07.2020 and 04.09.2020.

(Delivered by Hon'ble Alok Mathur, J.)

1. The petitioners in this batch of writ
petitions have raised common grievance,
and hence they have been heard together
and are being decided by a common
judgment. The petitioners are Allopathic
doctors who have served under the State
Government and have since retired. They
are aggrieved by the Government orders
dated 14/7/2020 and 04/09/2020 whereby
they have been denied the revised rate of
Non-Practicing Allowance on the ground
that they have retired prior to the cutoff
date 24/08/2009, while doctors similarly
placed
and
who
have
retired
after
24/08/2009 has been entitled to the revised
rate of Non-Practicing Allowance, and
hence,
they
assert
to
have
been
unreasonably
discriminated,
and
have
prayed for setting aside of the said
Government orders as well as the recovery
orders passed in consequence of the
impugned orders.

2. The facts in brief are that the
petitioners are retired Allopathic Doctors of
the Provincial Medical and Health Services
of
Government
of
U.P
who
have
superannuated prior to 24/08/2009. The
Government of Uttar Pradesh promulgated
the U.P. Government Doctors (Allopathic)
Restriction on Private Practice Rules, 1983
(hereinafter referred to as, Rules of 1983).
By means of the aforesaid Rules of 1983
restriction was placed on Government
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P. & Ors.
1431
Doctors and they were banned from
obtaining any pecuniary advantage by
engaging in private consultancy, and in lieu
of the said restriction a Non-Practising
Allowance was made available to them,
which was to be determined by the State
Government.

3. In exercise of its delegated power,
the State Government vide order dated
31/08/1989 has not only revised the rate of
Non-Practicing
Allowance
but
also
provided that it will be treated as part of
pay for all service benefits including DA,
TA and other allowances and also for
pensionary benefits. Subsequently, the rates
were revised in 2003 and they were made
applicable uniformly on all including the
petitioners.

4. The 6th Central Pay Commission
recommendations were approved, with
regard to Non-Practicing Allowance, by the
State of U.P. by Government order dated
24/08/2009,
whichrevised
the
NonPracticing Allowance to 25% of the basic
pay plus grade pay. The benefit of G.O
dated 24/08/2009 did not in any manner
disentitle the petitioners, but they were not
given the benefit of the revised rates.

5.

The
7th
Pay
Commission
recommendations were approved by State
of U.P on 09/03/2019 and given effect to
vide Government order dated 09/08/2019.
The benefit of the same was given to the
petitioners, and they started receiving the
enhanced
rate
of
Non-Practicing
Allowance, till passing of the impugned
Government orders.

6. The bulwark of the challenge in
this
bunch
of
writ
petitions
is
discrimination meted out to the petitioners
by
the
unreasonable
classification
introduced by the State Government, by the
impugned
Government
orders
dated
14/07/2020 and 04/09/2020, both having
the effect of disentitling the petitioners who
retired prior to 24/08/2009 of the revised
rate of Non-Practicing Allowance. In one
set of writ petitions the Government orders
dated 14/07/2020 and recovery order dated
16/07/2020 have been challenged, while
second set of petitions, the challenge is to
the Government order dated 04/09/2020
which had amended the earlier Government
order dated 09/03/2019. The consequential
relief sought in both the writ petitions is
writ of mandamus to command the
opposite parties to pay the Non-Practicing
Allowance as per the existing revised rate
of 20% as fixed by the Government order
dated 09/08/2019.

7. Sri Hari Prasad Gupta, Sri Hari Ram
Gupta and Sri Manish Mishra Advocates
have appeared on behalf of the petitioners,
and Sri Ramesh Kumar Singh, Senior
Advocate Learned Additional Advocate
General assisted by Sri Ashutosh Singh has
addressed this court on behalf of the State.

8. It has been submitted by the
Counsels appearing on behalf of the
petitioners that the U.P Government Doctors
Allopathic Restriction on Private Practice
Rules, 1983 provides for grant of NonPracticing Allowance in lieu of their
entitlement for private practice at the rates
which will be specified by the Government
from time to time. It has been submitted that
a vested right has been created in favour of
the Government doctors for payment of the
Non-Practicing Allowance in lieu of the ban
on private practice as per the rules of 1983.

9. Subsequent to their retirement, the
petitioners have been receiving NonPracticing Allowance and there is no
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute with regard to their entitlement to
receive the same. They claim that the State
is acting illegal and arbitrary by not
revising
the
rate
of
Non-Practicing
Allowance with regard to the petitioners by
wrongly interpreting the clause "the revised
rates would be applicable with immediate
effect" in the Government order dated
09/08/2019 to mean that the same would be
applicable only to the persons retiring after
the said date, and not the person retiring
prior to the said date, like the petitioners.

10. The petitioners would submit that
the correct interpretation of the said
Government order would be that the
revised rates of Non-Practicing Allowance
would be effective prospectively across the
board, and no person either in service
retired can claim arrears of Non-Practicing
Allowance, on the basis of revised rates
from 01/01/2006 to 24/08/2009.

11. The petitioners claim that they are
entitled to the revised amount of the NonPracticing Allowance as prescribed by the
Government from time to time and seek to
challenge the decision of the
State
Government in restricting it only to the
fixed amount payable at the time of
retirement, as being illegal and arbitrary
and violative of Article 14 and 16 of the
Constitution of India.

12. Sri Manish Mishra Advocate
submitted that the impugned Government
orders
has
created
two
classes
of
pensioners with the cut of date being
24/08/2009, dividing both these classes of
pensioners, and they have both been held to
be entitled to receive Non-Practicing
Allowance, but at differential rates, solely
on the basis of the date of retirement. It has
been submitted that there is no valid
justification for creating the two classes,
and the date of retirement does not have
any rational nexus for determination of the
quantum of Non-Practicing Allowance, nor
is there any rational basis for such
classification
and
consequently
the
impugned Government orders are hit by
vice of Article 14 of the Constitution of
India. It is urged that all the pensioners who
form one class, are entitled to the same
amount of Non-Practicing Allowance as
revised by the Government from time to
time, irrespective of date of retirement. To
further canvas their submissions, it has
been
submitted
that
for
a
valid
classification,
there
must
be
some
distinguishing feature which separates or
distinguishes one class from the other, in
which case, the State may validly provide
for different amount of Non-Practicing
Allowance to such classes. Any such
classification, for it to be valid, must
necessarily satisfy the twin test, one that it
should be based on some intelligible
differentia, and secondly, that it should
have a reasonable nexus with the object
sought to be achieved. It is stated that both
these material aspects are lacking in the
classes so created, and hence the said
impugned Government orders deserve to be
set aside being violative of Article 14 of the
Constitution. Reliance was placed upon the
judgement of the Apex court in the case of
D.S. Nakara (1983)1SCC305 to buttress
their contention and submitted that their
case is squarely covered by the ratio laid by
the Apex court therein and as well as
subsequent pronouncements of the Apex
Court in this regard.

13. It was further submitted that the
Non-Practicing
Allowance
being
an
integral part of the basic pay of the
petitioners was liable to be periodically
enhanced and revised as is done with
regard to the basic pay and other
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P. & Ors.
1433
allowances
of
all
the
pensioners
irrespective of the date of retirement
following the basic principle that, being a
welfare State it is the obligation of the State
to provide security in old age, and escape
from undeserved want which has been duly
recognized, and hence, pension is treated
not only as a reward for the past services
but with a view to help the employee to
avoid destitution in old age. The quid pro
quo is that when the employee was
physically and mentally alert, he rendered
unto master the best, expecting him to look
after him in all the fall of life. A retirement
system therefore exists only for the purpose
of providing benefits.

14. Reliance was also placed on the
Judgement of the Supreme Court in the
case of V. Kasturi vs Managing
Director,
State
Bank
of
India,
Bombay(1998) 8 SCC 30 where it was
held that the person retiring is eligible for
pension at the time of his retirement and
if he survives till such time subsequent
amendment of relevant pension scheme
he would become eligible to enhanced
pension and would become eligible to get
more pension as per the new formula of
computation of pension subsequently
brought into force, he would be entitled
to the benefit of the amended pension
provision from the date of the order.
Reliance
was
also
placed
on
the
judgement of the Apex court in the case
of All Manipur Pensioners Association
vs State of Manipur (2020) 14 SCC 625
and others where on similar facts
Supreme
Court
held
that
all
the
pensioners irrespective of the date of
retirement either the 1996 retirees shall
be entitled to revision in pension at par
with those pensioners who retired post
1999, as they form a single homogeneous
class, and the differentiation sought to be
made by the State Government was held
to be violative of Article 14 of the
Constitution.

15. The State of U.P. having
introduced Liberalised Pension Scheme
in 1961 by making rules which were
considered necessary for augmenting
Social Security in old age to Government
servants other than those who retired
earlier cannot be worse off than those
who retired later. This division which
classified pensioners into two classes is
not based on rational principle and if the
rational principle is the one of dividing
pensioners
with
a
view
to
giving
something more to persons otherwise
equally
placed,
it
would
be
discriminatory.

16. It has been urged that by means of
Government Order dated 09/08/2019, the
recommendations
of
the
7th
Pay
Commission were duly approved, but under
the garb of clarifying the said Government
Order at the behest of the Director
Treasuries, the benefit which had accrued
to the petitioners with regard to the rate of
Non-Practicing Allowance at the rate of
20% of the basic salary, was withdrawn. It
was provided therein that the petitioners
would only be entitled to the NonPracticing Allowance which was being paid
to them at the time of the retirement. This
clarification has been issued nearly after
one
year
of
the
approval
of
the
recommendations
of
the
7th
Pay
Commission, during which period the NonPracticing Allowance was being paid to the
petitioners at the rate of 20% of the basic
salary plus grade pay. It is submitted that
once the enhanced rate of the NonPracticing Allowance was approved and the
same was being paid to the petitioners, then
a vested right accrued in favour of the
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners, and the withdrawal of the
enhanced rate of Non-Practicing Allowance
without any reason or affording any
opportunity of hearing is illegal and
arbitrary and violative of the principles of
natural justice. It was stated that it was a
colourable exercise of power by the State
Government in issuing the impugned
Government order thereby under the garb
of clarification the effect of the earlier
Government Order dated 09/08/2019 has
been reversed, without there being any
reasonable basis in the most illegal and
arbitrary manner, and in effect a new policy
has
been
introduced
under
garb
of
rectification of error, and on this score also
it is ultra vires the rules of 1983.

17. Sri Manish Misra, learned counsel
for the petitioners further submitted that
once the recommendations of an expert
committee
like
the
Commission
are
accepted, which has submitted a exhaustive
report
after
detailed
discussions
and
consultations with various representatives
of pensioners and other Government
bodies, and the recommendations are duly
accepted and implemented, then the same
cannot be reversed in such a casual manner
without giving any reasons for the same. It
was stated that there are certain matters
which require a wider consultation and
deep insight to bring forth the relevant
issues necessary for taking an informed
decision, which can be gathered only after
appointing a body like a commission or a
committee and handing them over the
specialized task like fixation of the pay and
allowances, and their recommendations are
liable to be accepted or rejected or accepted
in modified form by the Government, but
once
their
reasoned
and
informative
recommendations, are accepted by the
Government, then they cannot be lightly
overturned and reversed without there
being adequate and sufficient reasons
which is totally lacking in the present case.

18. Sri Hari Ram Gupta, Advocate
while assailing the Government order dated
14/09/2020 submitted that the same has
been passed only to circumvent the interim
orders passed by this Court staying the
operation of the earlier Government order
dated 14/07/2020 and the consequential
order dated 16/07/2020, and therefore it
was a colourable exercise of power and is
hence ex facie illegal and arbitrary and
beyond the competence of the State
Government. It was further submitted that
the malice of law is clearly evident in the
said Government order, which is a vain
attempt to reimpose the restriction on
payment of the Non-Practicing Allowance
to
the
petitioners
as
per
the
recommendations
of
the
7th
Pay
Commission, contrary to the interim order
of this Court. The said Government order
dated 04/09/2020 has only recast the
previous
Government
order
dated
14/07/2020 without making any change to
the outcome or effect of the previous
Government order. It is submitted that the
brazenness of the State Government is writ
large in issuing the impugned Government
order dated 04/09/2020, where they have
deliberately ignored the interim orders of
this court staying the earlier Government
order, and hence it is clearly an overreach
of the power and authority and jurisdiction
of the State Government in this regard.

19. Sri Ramesh Kumar Singh,
Learned Additional Advocate General
representing the State in the aforesaid writ
petitions while opposing the claim of the
petitioners submitted as follows:-

a.
With
regard
to
the
maintainability of the writ petition it is
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P. & Ors.
1435
submitted that some of the petitioners were
holding the administrative posts of Director
General/Director and therefore they are not
entitled
to
receive
Non-Practicing
Allowance,
as
such
Non-Practicing
Allowance cannot be included for the
purpose of calculation of the respective
pension amounts, and they would not have
any locus to raise the issues as raised by
them.

b.
The
revisions
of
NonPracticing Allowance on percentage basis
as provided in Government order dated
24/08/2009 has prospective effect and is
not applicable on the persons who retired
before 24/08/2009 and were getting NonPracticing Allowance in accordance with
the earlier arrangement on slab basis and no
changes have been made in their respective
amount
of
Non-Practicing
Allowance
amount till date.

c. It is the stand of the State
Government that is on account of wrong
interpretation of the Government order
dated 09/08/2019 the persons who retired
before 24/08/2009 were paid the respective
pension along with the Non-Practicing
Allowance on the percentage basis and
after issuance of Government order dated
14/07/2020, the error was rectified, and
consequential recovery orders were passed.

d. It has also been submitted that
the impugned Government orders were
passed to correct administrative errors
which had crept in, in interpreting the
Government order dated 24/08/2009, and a
"Conscious policy" decision has been taken
by the State Government.

e. The State has also pleaded
financial constraint, as a reason for
making the "correction" by means of the
impugned Government orders.

f. It has been vehemently
submitted that the State Government had
rectified its error and by means of the
impugned
order
dated
04/09/2020
paragraph 4(ii)(a) of Government order
dated
09/08/2019
has
been
amended/substituted
and now
it
is
provided that Government doctors who
were
receiving
Non-Practicing
Allowance @ 25% on the date of their
retirement would be entitled to Non -
practicing allowance @ 20% of the basic
pay as on 01/01/2016 while according to
amended
paragraph
4(ii)(b)
such
Government doctors who at the time of
retirement were getting Non-Practicing
Allowance of a fixed amount on slab
basis will be entitled to the same amount
of Non-Practicing Allowance they were
receiving without any change. In this
regard it was categorically stated that the
Non-Practicing Allowance amount of
pensioners
who
retired
before
24/08/2009 has never been revised till
date.

g. It is stated that the State
Government is fully empowered to issue
orders
regarding
payment
of
NonPracticing Allowance to the Government
doctors in service and also for those who
have retired, in exercise of power under
rule 4 of the rules of 1983.

h. The State has relied upon the
Division Bench judgement of this court
dated 25/01/2018 in writ petition no. 1482
as the of 2015 in support of the
submissions that the petitioners are not
entitled for revision/enhancement of the
amount of Non-Practicing Allowance.
1436 INDIAN LAW REPORTS ALLAHABAD SERIES

i. Defending the challenge made
to the impugned Government orders being
violative of Article 14 in as much as they
are based on unreasonable classification, it
has been argued by the learned Additional
Advocate General that there is a creation of
two
classes
of
pensioners,
but
the
classification is in fact reasonable based on
distinction between persons who have
received Non-Practicing Allowance on slab
basis and the persons who have received
Non-Practicing Allowance on percentage
basis. It was further submitted that the said
classification is justified as it is protected
under the parameters of the Financial
constraints, in the interest of general public
at large.

20. I have heard the counsel for the
petitioners as well is the learned Additional
Advocate General on behalf of the State.
The following issues fall for consideration
of this court:

A. Whether the writ petitions are
maintainable on behalf of Allopathic the
Government doctors who have retired prior
to the 24/08/2009 and were holding the
post of Director General/Director on the
date of the retirement?

B.
Whether
the
benefit
of
enhancement/revision in the rates of NonPracticing Allowance has any bearing on
the
date
of
retirement,
and
more
particularly as to whether the same would
be payable/admissible only to the serving
Government Doctors and not to the retired
Government Doctors?

C. Whether the judgement of the
Division Bench of this court dated
25/01/2018 can have any application in the
case of the petitioners in challenging the
impugned Government orders?

D. Whether the classification
created by the impugned Government
orders on the basis of date of retirement is
valid?

E.
Whether
the
retired
Government
doctors
are
entitled
for
revision rate of Non-Practicing Allowance?

Maintainability of writ petition

21. With regard to the maintainability
of the writ it has been submitted that
according to Rule 4 (b) of the Rules of
1983 provides the list of persons who were
excluded from the benefit of NonPracticing
Allowance
which
includes
persons
holding
the
post
of
Director/Additional
Director,
Medical
Education and Training and Principle of
State Medical Colleges. It is vehemently
urged that such petitioners, who are holding
the said posts are not entitled to NonPracticing Allowance, and hence any
petition on their behalf, in this regard,
would not maintainable.

22. The counsel of the petitioner on
the other hand urged that the rules of 1983
were
amended,
notified/published
on
21/06/2005 by The U.P. Government
Doctors (Allopathic) Restriction on Private
Practice (Second Amendment) Rules 2005
which extended the benefit of NonPracticing Allowance even to the persons
holding
administrative
post
of
Director/Additional
Director.
It
is
submitted that after the amendment of 2005
the embargo for entitlement of NonPracticing Allowance imposed by Rule 4(b)
of the Rules of 1983 was lifted, and hence
even the person holding the said posts
became entitled for the benefit of NonPracticing Allowance, with effect from
coming into force of the said amendment.
9 All Dr. Avinash Chandra Srivastava & Ors. Vs. State of U.P.