Jharkhand High Court
Jharkhand Veterinary Service ... vs The State Of Jharkhand on 25 April, 2022
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6201 of 2012
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1. Jharkhand Veterinary Service Association, having its head office at Provincial Veterinary Hospital, Chutia, Ranchi.
2. Dr. Subodh Ranjan Verma. ..... Petitioners Versus
1. The State of Jharkhand.
2. Secretary, Animal Husbandry and Fisheries Department, Government of Jharkhand, Nepal House, P.O. & P.S.- Doranda, District-Ranchi.
3. Secretary, Animal Husbandry and Fisheries Department, Government of Bihar, New Secretariat, Vikas Bhawan, Patna.
4. Chief Secretary, Government of Jharkhand, Project Bhawan, P.O. & P.S.-Dhurwa, District-Ranchi.
5. Chief Secretary, Government of Bihar, Main Secretariat, District-Patna.
6. Secretary, Finance Department, Government of Jharkhand, Project Bhawan, P.O. & P.S. Dhurwa, District-Ranchi.
7. Secretary, Finance, Government of Bihar, Main Secretariat, District-Patna.
8. Accountant General, Government of Bihar, Patel Marg, Patna.
9. Accountant General, Government of Jharkhand, Doranda, P.O. & P.S. Doranda, District-Ranchi. ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Mr. Saurabh Shekhar, Advocate For the Respondents: Mr. Rajiv Ranjan, A.G. Mr. P.A.S. Pati, G.A.-II For the Resp. No.9 : Mr. S. Srivastava, Advocate For the State of Bihar: Mr. Ranjit Kr, J.C. to G.A.(Bihar)
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07/Dated: 25th April, 2022 Heard learned counsel for the parties.
2. The instant writ application has been preferred by the petitioner Association praying therein for quashing of the order dated 02.05.2001 (Annexure-15) whereby the benefit of Non-Practicing Allowance (in short NPA) which 2 was granted to the members of petitioner association was recalled /withdrawn.
The petitioner has further prayed for a direction upon the respondent-Authorities for payment of Non-Practicing Allowance to the member of petitioner association which has been discontinued as a result of the impugned order dated 02.05.2001.
3. The brief facts of the case is that the petitioner is a registered Association and is a legal person, which has been represented by its office bearers, who are also Officers/ Veterinary Doctors of the Department of Animal Husbandry. The certificate of registration of the Association is annexed as Annexure-1 to the writ petition. The Members of the petitioner Association, including the members who are representing the association before this Court in the present writ petition are Veterinary Graduates (B.V.Sc.& A.H.) and are registered with Indian Veterinary Counsel/Jharkhand Veterinary Counsel. They were appointed as Class-III employees in Bihar Animal Husbandry Offices in the Non-Practicing scale of Rs. 940- 1660/- by different notifications issued on 15.03.1986, which are annexed at Annexure-2. Further, it has been stated that the members of petitioner Association were initially appointed as Class-III Officers, were gazetted employees, and thereafter vide notification dated 3 16.08.1986, the cadre of the members of petitioner Association was merged into Class-II post cadres, and thus, they became the employees of Class-II Grade with the respondent, as Animal Husbandry Officers/Touring Veterinary Officer and other basic cadre posts.
The case of the petitioner is that they are Veterinary Doctors/Touring Veterinary Officers, holding the degree of B.V.Sc. & A.H. and are registered with Indian Veterinary Counsel/Jharkhand Veterinary Counsel. Initially the benefit of Non-Practicing Allowance was granted for the first time to the Doctors of Animal Husbandry Department in the Central Government, this would reflect from the Central Government Fitment Committee Report, being 5th CPC wherein it was clearly held that the benefit of 25% Non-Practicing Allowance will be granted to the Veterinary Officers, and the benefit will be considered as part of salary for the purposes of computation of other benefits including pension (Annexure nos. 4 and 5).
On the basis of the decision taken by the Central Government, the State Fitment Committee also proposed that the similar benefit of the Non-Practicing Allowance should also be admissible for the cadre of Veterinary Doctors of the State Government, in parity with the benefits being provided to the Veterinary Doctors of the 4 Central Government. Further on the basis of the proposal of the Fitment Committee, the Cabinet of the State of Bihar undertook to grant the benefit of Non-Practicing Allowance and other benefits to the Veterinary Doctors of the Animal Husbandry Department in the same manner, as was available to the Veterinary Doctors of the Central Government. It has been stated that the State of Bihar has already declared the posts of the Veterinary Doctors as non- private practicing posts, vide its departmental circular dated 19.09.1998 (Annexure-7). This fact is also clear from reading of the appointment letters issued in favour of the members of the petitioner Association, wherein the post of Veterinary Doctor has been declared as to be post carrying Non-Practicing pay scale. After the decision of the Cabinet on 23.12.1999, the Animal Husbandry Department passed an order on 19th September, 1998, and thereafter, on 15.4.2000 decision was taken to release the benefit of Non- Practicing Allowance to the Veterinary Doctors, at the rate of 25%, and the N.P.A will be considered to be as part of salary for the purposes of calculating other emoluments, including pensionary benefits. This has been clearly mentioned in the letter dated 15.04.2000, by which the benefits have been enhanced. The benefit of N.P.A thus become part of service condition, as because the same will be included in calculation of other emoluments, as part of 5 salary. It will also be included for purpose of computation of pensionary benefits. The specific case of the petitioner is that the benefit once granted becomes part of the service condition. It has been stated in the writ petition (at paragraph no. 19 and 22) that the benefit was started to be released in favour of the petitioners, after fulfilling of the essential requisite conditions, as per the letter dated 15.04.2000, whereby benefit of N.P.A was approved in favour of the petitioner in accordance with the Cabinet decision, which has remain uncontroverted statement.
It has also been stated by the petitioner that the petitioners have never done private practice, as has been disclosed at paragraph no. 25 of the writ petition, uncontroverted statement. Thereafter, in such view of matter, the members of petitioner Association started to get the benefit of N.P.A, attached with their salary, with effect from 15.04.2000. The respondent State passed an order on 02.05.2001, whereby it was decided that the benefit of N.P.A that was granted to the Veterinary Doctors shall be withdrawn, and pursuant to this original order dated 15.04.2000, Annexure No. 9 was issued, by which the benefit of N.P.A was granted, got recalled. This order was passed on the basis of the decision taken by the State of Jharkhand, and on the fact that the Veterinary Doctors are continuing to do private practice, therefore, the grant of 6 N.P.A to them under such circumstances is of no use; but however, the post was not declared as to be a private practicing post.
4. At this stage it is pertinent to mention here that in the State of Bihar the benefit of Non-Practicing Allowance that was granted by the same order dated 15.04.2000, was also recalled, but thereafter it was restored vide order dated 11.08.2011.
5. Mr. Saurabh Shekhar learned counsel for the petitioner has made following submission;
(a) Non-Practicing Allowance is part of service benefit, as such the same cannot be altered to detriment in view of Sections 72 and 73 of Bihar Reorganisation Act;
(b) In the appointment letter of all the members of the petitioner Association it reveals that the person cannot do private practice, as such Non-Practicing Allowance was to be given to them;
(c) By the impugned order the respondent-Department has allowed private practice, but there is no regulation to that effect, as such the impugned order is just to mislead the members;
(d) Non-Practicing Allowance was started pursuant to the report of Central Pay Commission which was accepted by the Government of India and subsequently the same has been accepted by the State of Bihar and, thereafter, 7 notification was issued by the State of Bihar (Annexure-7), thereafter notification was issued by the State of Bihar (Annexure-7), as such the same cannot be withdrawn by the successor State, in view of specific provision incorporated in Sections 72 and 73 of Bihar Reorganisation Act.
(e) the respondents have failed to understand that when the State of Bihar has withdrawn the N.P.A, case was filed before the Patna High Court by the claimants and the same was allowed by the Division Bench of Patna High Court in L.P.A. No. 534 of 2007 and pursuant to the said order passed by the Patna High Court a notification was issued on 11.08.2011; whereby Non-Practicing Allowance was restored.
(f) even though the Government of Jharkhand had accepted the revision of pay scale (Annexure 22 series), but still the impugned order has been passed without taking note of all previous orders.
(g) Last but not the least the impugned order has been passed by non competent person, as no cabinet decision was taken before passing the impugned order.
6. Mr. Rajiv Ranjan, learned Advocate General assisted by Mr. P.A.S.Pati, learned G.A.-II submits that it is a policy decision of the Government as to whether any allowance is to be given to its employee or not and there are catena of 8 judgments which prohibits the Courts to intervene with the policy decision of the Government under Article 226 of the Constitution of India.
7. Learned A.G. further contended that the argument of the petitioner that there is no rules made with regard to practicing of the doctors is misplaced, inasmuch as, when the members of association are allowed for private practice it is presume that they will do private practice beyond their service hour and there is no need for any rules. He reiterate that it's a policy decision of the Government of Jharkhand and it hardly matters about the State of Bihar has done for their employees and the policy decision has been taken pursuant to several criteria's and information as it came to the knowledge of the Government that in spite of getting none N.P.A by the doctors they are doing private practice, as such the Government has decided to withdrew the said allowance and there is nothing wrong in it. However, learned A.G. could not bring on record any document as to whether the impugned order has been passed after seeking cabinet approval, inasmuch as, the original order giving the N.P.A was passed by the Cabinet.
8. Having heard learned counsel for the parties and after going through the documents available on record it appears that as per the service condition of the petitioner's they were entitled for Non-Practicing Allowance pursuant to 9 the order dated 15.04.2000 and as per Section 73 of Bihar Reorganisation Act the service condition should not be changed pursuant to creation of new State.
For brevity Sections 72 and 73 of Bihar Reorganisation Act is quoted hereinbelow:
"72. Provisions relating to services in Bihar and Jharkhand--(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand:
Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day.
(2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement, as may be determined by the Central Government.
73. Other provisions relating to services.--(1) Nothing in section 72 shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under section 72 shall not be varied to his disadvantage except with the 10 previous approval of the Central Government.
(2) All services prior to the appointed day rendered by a person--
(a) if he is deemed to have been allocated to any State under section 72, shall be deemed to have been rendered in connection with the affairs of that State;
(b) if he is deemed to have been allocated to the Union in connection with the administration of the Jharkhand shall be deemed to have been rendered in connection with the affairs of the Union, for the purposes of the rules regulating his conditions of service.
(3) The provisions of section 72, shall not apply in relation to members of any All-India Service."
9. After going through the aforesaid provision incorporated in Bihar Reorganisation Act, I find that the conditions of service applicable immediately before the appointed day in the case of any person deemed to have been allocated to the State of Bihar or to the State of Jharkhand under section 72 shall not be varied to his disadvantage, meaning thereby that the service condition of any employee shall not be changed to his detriment.
In the instant case it is an admitted fact that at the time of Reorganisation of the erstwhile State, the members of the petitioner Association were getting Non-Practicing Allowance, pursuant to decision dated 15.04.2000, as such changing their service condition by the subsequent State Government shall not be in consonance with Sections 72 and 73 of Bihar Reorganisation Act, 2000.
In this context it will then have to be tested that 11 whether the benefit of NPA forms part of service condition or not. On perusal of several documents, implying applicability of N.P.A, as benefit already granted to the members of petitioner Association, most particularly vide Order dated 15.04.2000, which is a decision to enhance the benefit in pursuance to decision of Cabinet and in view of the recommendations of Fitment Committee and on applying the condition of service similar to that of the Central Government employees, it can be safely said that benefit was granted after following all possible lawful steps by the erstwhile State of Bihar. It is not in dispute that the benefits were already floated and the employees were getting the N.P.A. Once granted it definitely forms part of the Service Condition, it becomes part of salary and is granted at the rate of 25%. It is accounted as salary to compute other allowances, emoluments and also to compute pension.
Now when NPA is a service condition, then it has to be held that it's recall vide impugned order dated 02.05.2001 will be to the detriment of the members of petitioner Association, and hence is barred by the provisions of Section 72 and 73 of the Bihar Reorganisation Act, 2000, and so it is. The impugned order is fated to fail and be quashed on this ground itself.
Now coming to the latest order dated 28.12.2021, 12 passed during the pendency of the writ petition, by the Departmental Head, denying to continue the claim of N.P.A for the petitioner Association, was challenged by the Interlocutory Application No. 86/2022, by the petitioner Association. On scrutiny of the document and last affidavit filed by the State, it is to be asserted that the order is in breach of the settled proposition of law. The order has been passed by the Secretary of the Department, and therefore it is merely an executive instruction, which cannot supersede, in any way of mannerism, a Cabinet decision. The Cabinet decision is passed under Article 163 of the Constitution of India, whereas the executive instruction at best could be passed under Article 166(3). Clearly, Article 163 of the Constitution of India has weightage over Article 166(3). Not only the decision of erstwhile State of Bihar to grant N.P.A, 15.04.2000, was taken after a Cabinet decision, but also subsequent Government Jharkhand Resolution to apply Central Service Condition, vide memo dated 28.02.2009, is a Cabinet decision. They cannot be superseded by a contradictory view taken by an Executive Instruction. It is here to highlight that it would, however, never be open for even the State Cabinet to take decision in breach of the provision of Sections 72 and 73 of the Act, 2000, much less by an Executive Instruction. The Order dated 28.12.2001 is liable to be quashed and set aside.
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Dealing with this deficiency in more detail, in the impugned order dated 28.12.2021, the applicability of Central Service Conditions adopted by the Government of Jharkhand through its resolution dated 28.02.2009, which is Cabinet decision of the State of Jharkhand, has been disowned. It has been stated that the Department of Animal Husbandry is not obliged to follow the Central Service Condition, but this is against the decision of the Cabinet of the State of Jharkhand, as per resolution dated 28.02.2009. The impugned order being only an executive instruction does not stand the test to supersede the Cabinet decision taken vide resolution dated 28.02.2009. Clearly Central Service Condition has to be awarded to all the Government Employees of the State of Jharkhand, including the Veterinary Officers of the Animal Husbandry Department. During the course of hearing, as on pointed query made by the Court on one of the hearing dates, orally, that whether the impugned order dated 28.12.2021 is a Cabinet decision, or is it just a decision of the Executive Head of the Department, on this query Supplementary Counter Affidavit was filed by the respondents on 25.4.2022, wherein it was clarified that the impugned order was only an executive instruction. It has further been clarified that the original impugned order dated 02.05.2001 was also an executive instruction, taken 14 by the Departmental Head of the Department of Finance. Thus, it is clear that the decision of the Cabinet, being decision dated 23.12.1999, on the basis of which the benefit of N.P.A was granted to the petitioners through letter dated 15.04.2000, was a Cabinet decision.
Another issue joined by the parties to be noticed by the Court, in the order dated 28.12.2021 is that the order has in so many places said that the post of Veterinary Doctors has not been declared as to be Non-Practicing Post. This is not in consonance with the Cabinet decision taken by the erstwhile State of Bihar in the year 1998 (Annexure-
8). Further in appointment letters annexed at Annexure-2 and Annexure 26, it has been declared that posts of Veterinary Doctors are Non-Practicing Posts.
10. In view of the aforesaid findings and on the basis of admitted facts, and in the circumstances of the case the impugned order needs interference for following reasons: -
(i) the benefit of Non-Practicing Allowance was granted to the petitioners on the basis of the fact that similar benefits were being enjoyed by their equivalents in the Central Government, and for this the State of Bihar through Cabinet decision dated 30.12.1999 had resolved to apply Central Service Condition in the cases of Animal Husbandry Department. The similar decision of applying Central Service Condition in the State service cadre was taken by 15 the Government of Jharkhand on 28.02.2009 through Cabinet decision.
(ii) the benefit of Non-Practicing Allowance was granted as the Central Service Condition, it had to be applied pari materia in the State of Jharkhand for the Doctors of Animal Husbandry Department. This decision was already taken vide two Cabinet orders, earlier taken by the erstwhile State of Bihar on 30.12.1999 and subsequently by newly created State of Jharkhand on 28.02.2009.
(iii) that on the basis of the decision of the Cabinet, the benefit of Non-Practicing Allowance was released in favour of the petitioners, in erstwhile State of Bihar.
(iv) that once the benefit is released in favour of the petitioners, on the posts being declared as Non-Private Practicing Posts, the benefit became part of the salary, to be included for computation of all emoluments, including pensionary benefits.
(v) that under such circumstances, if the benefit was withdrawn by way of passing of the original impugned order dated 02.05.2001, the same would amount to alteration of service condition of the petitioner to their detriment, after the bifurcation of State of Bihar into newly created State of Jharkhand and newly created State of Bihar.
(vi) that this scenario will be in contravention to Sections 72 & 73 of the Bihar Reorganisation Act, 2000, therefore 16 the rights of the employees to get benefits, same as they were enjoying in the State of Bihar or better gets violated.
(vii) the Non-Practicing Allowance form part of salary, and is included in computation of pensionary benefits, and hence would become part of service condition, this would further become fortified from writ petition compendium page no. 208 - paragraph 4 & 5, page no 210 - paragraph no. 3(ii), page no. 212 - paragraph no. 5, page no. 214 - paragraph no. 10 continuous pagination.
(viii) thus, the petitioner members are entitled to continue to get the benefit of Non- Practicing Allowance in pursuance to the original order dated 15.04.2000, and subsequent withdrawal of the N.P.A vide impugned order 02.05.2001 and denial to restore it vide order dated 28.12.2021, is therefore in contravention to Sections 72 and 73 of the Bihar Reorganisation Act. Therefore, the original order dated 15.04.2000, from which the benefit of N.P.A falls in favour of the petitioner, is to be restored and the impugned orders dated 02.05.2001 and 28.12.2021 is required to be quashed and set aside.
(ix) Thus, in pursuance to the above facts and circumstances the petitioners are entitled to get the benefit of N.P.A, after restoration of the order dated 15.04.2000, until the date of their retirement, and thereafter pensionary benefit would be fixed on the basis of the Last Pay Drawn, 17 including N.P.A. To this effect the entire arrears of salary needs to be released in favour of the petitioners, along with arrears of improved pension, for retired persons.
11. In view of the aforesaid discussions the instant writ application is allowed and the impugned orders dated 02.05.2001 and 28.12.2001 are quashed and set aside. The Original order dated 15.04.2001, for grant of N.P.A, is hereby, restored. The matter is remitted back to the competent authority to verify and extend the benefit of N.P.A to all the members of the Association who at the time of Reorganisation of State were covered by the decision dated 15.04.2000 to get the Non-Practicing Allowance.
12. It goes without saying that after verification, the monetary benefits shall be extended to all those petitioners who are entitled for N.P.A, along with difference of arrears in continuation, as if the impugned orders had never existed, as in accordance with decision dated 15.04.2000 of the erstwhile state of Bihar. On retirement, further, pension shall be fixed at improved rate of salary including N.P.A. The entire exercise shall be completed within six months from today.
13. With the aforesaid observations and direction the instant writ application stands allowed.
(Deepak Roshan, J.) Amardeep/