Jharkhand High Court
Dr.Ravi Prakash & Ors vs State Of Jharkhand & Ors on 24 April, 2014
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1595 of 2012
with
W.P.(S ) No. 1620 of 2012
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Jayati Simlai & others --- --- ---- Petitioners in WPS 1595/12
Dr. Ravi Prakash & others --- --- --- Petitioners in WPS 1620/12
Versus
The State of Jharkhand & others --- Respondents in both cases
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioners:Mr. Sameer Saurabh, Advocate
For the State: Mr. Rajesh Kumar, GP-V
For the RINPAS: Mr. Saurav Arun, Advocate
For the AG: Mrs. Richa Sanchita, Advocate
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03/ 24.04.2014Both the writ petitions relate to the same cause of action where the same order is under challenge. For the sake of convenience, facts of WPS No. 1595/12 are being noticed herein.
2. Heard counsel for the parties.
3. Petitioners in both the writ petitions are said to be doctors working in Ranchi Institute of Neuro Psychiatry & Allied Sciences (RINPAS), Kanke, Ranchi, have approached this Court seeking quashing of letter dated 29 th December 2011 issued by the Under Secretary, Department of Health, Medical, Education and Family Welfare, Government of Jharkhand, whereunder non practicing allowance paid to the petitioners, has been stopped in view of the resolution of the Finance Department contained in letter dated 9th May 2001 whereunder, such benefit has been stopped in respect of doctors working under the Health, Medical, Education and Family Welfare Department with effect from 01st March 2001.
4. The petitioners' contention is that RINPAS is an autonomous institution governed by the Ranchi Manasik Arogyashala Rule, 1994 which was notified as per the directions passed by the Hon'ble Supreme Court in the judgment rendered in the case of Rakesh Chandra Narayan vs. State of Bihar & others [1994 Supp. (3) SCC 478. Petitioners have been appointed pursuant to the advertisement at annexure-1 issued by the RINPAS on various teaching and non-teaching posts of medical category. As per the service conditions therein including the resolution of the 38th Managing Committee Meeting of the RINPAS held on 20th July 2007 (Annexure-4), all employees of the RINPAS who have been availing the benefit of non practicing allowance since 1995, have been allowed to avail the same thereafter. It is further pointed out that such non practicing allowance will be paid at par with similar allowance granted to the doctors of the Central Institute of Psychiatry, Ranchi (CIP) which is a Central Government Institute. The benefit has however been suddenly stopped on issuance of the impugned direction by the Department of Health, Medical Education and Family Welfare, Government of Jharkhand based upon the finance department resolution. The Health Department has taken a plea that on the basis of audit objection and in view of finance department circular of 2001, the impugned letter has been issued as similar benefit has been stopped in respect of doctors working under the Health Department, Government of Jharkhand.
5. On the last occasion, in view of the stand taken by the respondent Health Department, the respondent RINPAS were also directed to file their considered response which has been filed thereafter. The RINPAS has inter-alia taken a stand that the Managing Committee of the RINPAS has got all the powers in terms of the direction of the Hon'ble Supreme Court on general financial issue. However, it has been stated that the Institute has been paying non practicing allowance @25% till December 2011 to all the doctors appointed by RINPAS and the same has been stopped in compliance of the letter issued by the Department of Health, Medical, Education and Family Welfare, Government of Jharkhand based upon finance department letter dated 9th May 2001. They have also stated that the Managing Committee in its meeting held on 20th July 2007 had agreed to continue the system of paying non-practicing allowance to the doctors of RINPAS on CIP pattern.
6. In the aforesaid background of stand taken by the respective parties, on perusal of Rules of 1994 which are also part of the judgment rendered by the Hon'ble Supreme Court in the case of Rakesh Chandra Narayan (Supra), it appears that Ranchi Manasik Arogyashala has been declared to be an autonomous institution with its Management vested in the Managing Committee which consist of members namely, Divisional Commissioner, Ranchi as its Chairman, District Magistrate, Ranchi, Superintendent of Police, Ranchi, Health Secretary, Government of Bihar, West Bengal and Orissa and two non officials nominated by the Government of Bihar, Principal of Medical College, Ranchi and Director of Ranchi Mental Asylum. After bifurcation of the parent State of Bihar, it is now representative of the Health Secretary, Government of Jharkhand who is in the Managing Committee. As per the respondents Rule-2, Managing Committee has full administrative and financial powers in respect of all the affairs of Ranchi Manasik Arogyashala and may delegate any of its powers to the Chairman, the Sub-Committees, the Director and other officers. Sub rule-5 of Ranchi Manasik Arogyashala Rule, 1994 provides that the Director shall place the annual report and audited accounts of the Ranchi Manasik Arogyashala before the Management Committee and after approval thereof, they would be forwarded to the Health Secretary of the Government and the report and audited accounts for the financial year would be placed before the Legislative Assembly of Bihar.
7. In the light of the aforesaid relevant provisions of Rules of 1994 as well as from Annexure-4 resolution contained in the Minutes of 38 th Management Committee Meeting of RINPAS dated 20th July 2007, it appears that such meeting was attended not only by Divisional Commissioner, South Chhotanagpur Division as his Chairman, but also by Chief Secretary, Government of Jharkhand as special invitee, the Secretary, Department of health as member apart from other members of the Managing Committee. In the said meeting, the Managing Committee has discussed the agenda in respect of non practicing allowance and taken decision as such, which reads as under.
Item no. 38.7 Non Practicing Allowance As per the decision of the 2nd The Management Committee is of opinion Management Committee meeting on 8th that no action is needed as N.P.A. Is given February 1995, all the posts are non by C.I.P., Ranchi at Central Govt.
practicing and non-practicing allowance Pattern."
is to be given as per rate existing in Central Institute of Psychiatry, Ranchi.
Permission may be given to substitute the word "Central Institute of Psychiatry, Ranchi" by "Central Govt. Pattern".
8. On the other hand, perusal of the resolution dated 9th May 2001 which is enclosed as Annexure-A to the counter affidavit of the respondent Health Department indicates that it applies to the doctors who are working under the Health, Medical Education and Family Welfare Department in respect of whom the benefits of non practicing allowance has been stopped with effect from 1st March 2001. No other resolution is shown which has been made applicable to the RINPAS which otherwise also is an autonomous body and governed by the Management Committee constituted under the Rules of 1994. Such a practice which has been started in 1995 has been continuing even as per resolution dated 20th July 2007, though finance department resolution is of 9th May 2001. The decision to continue to accord the facility of non practicing allowance to the doctors of RINPAS has been taken by the Managing Committee which was represented by the top most officials of the State including the Chief Secretary and Health Secretary as well. The Health Department however has overlooked the decision of the Managing Committee of the Institute and has also failed to take into account that the institution is an autonomous institution where such facility. has been continuing since 1995 as similar to CIP, Ranchi pattern. It has also not been shown that payment of such NPA and the audited accounts of the RMA/RINPAS has been disapproved by the Legislative Assembly of the State. It therefore appears that the Health Department of the respondent State, in a misconceived understanding of resolution of Finance Department dated 9th May 2001, proceeded to direct the RINPAS through letter dated 29 th December 2011 to stop the benefit of non practicing allowance to the doctors working under the said RINPAS.
9. In view of the aforesaid discussions made, such direction cannot be said to be sustainable in law as well as on facts. Therefore, the impugned direction is quashed. The petitioners and other eligible persons working in RINPAS who have been availing the benefit of non-practicing allowance, shall be entitled to avail the same, till an appropriate decision is taken by the Competent Authority in accordance with law..
The writ petition is disposed of. All the pending I.As are accordingly closed.
(Aparesh Kumar Singh, J) Ranjeet/