Gujarat High Court
State Of Gujarat vs Chaitanya G Joshi on 4 April, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/410/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 410 of 2018
In SPECIAL CIVIL APPLICATION NO. 3995 of 2002
With
R/LETTERS PATENT APPEAL NO. 411 of 2018
With
R/LETTERS PATENT APPEAL NO. 412 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6496 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
===============================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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STATE OF GUJARAT
Versus
CHAITANYA G JOSHI
===============================================
Appearance:
MR ROHAN YAGNIK ASST. GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2
MR BHASKAR P TANNA SR. ADVOCATE with MR BS SUPEHIA,
ADVOCATE for the RESPONDENT(s) No. 1,2
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Page 1 of 10
C/LPA/410/2018 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04/04/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. These appeals under clause 15 of the Letters Patent Appeal are preferred by the State of Gujarat challenging common oral order dated 8.9.2017 passed in three Special Civil Applications where facts and common issues were involved and decided by the common order.
2. It is pertinent to note that upon submissions made by learned AGP that decision accepting the demand of the petitioners was taken in principle and only administrative formalities were required to be completed which would be done expeditiously. Learned Single Judge in para 3 of the order impugned recorded certain facts and events preceded earlier which reads as under:
"3. In view of the submissions that in captioned 3 petitions similar facts and common issues are involved the Court passed order dated 16.3.2017 and recorded factual background which gave rise to the dispute ventilated in present petitions as well as rival contentions. The said order dated 16.3.2017 reads thus:-
Page 2 of 10C/LPA/410/2018 JUDGMENT
2. As common issue is involved in this group of petitions, for the sake of convenience, the facts stated in the Special Civil Application No. 3995 of 2002 are mentioned as follows :
The petitioners are working as Assistant Research Scientists in Gujarat College of Veterinary Science and Animal Husbandry at Anand since their appointment.
The petitioners are entitled for Non Practising Allowance as per the orders passed by this Hon'ble Court in Special Civil Application No.2526 of 1983 (Coram: S.K. Keshote, J) dated 29.10.1999. This allowance is granted to the persons who are having qualified degree as per the Indian Veterinary Council Act, 1984 vide resolution dated 18.0.2001. Even arrears was also granted in the said resolution. Though respondent No.1 had decided to give the NPA to petitioners as per the ratio laid down by this Hon'ble Court, the petitioners are not given the same till date. Even various authorities of respondent-State have recommended to respondent No.3 to give permission for payment of arrears to the petitioners. The respondent No.3 had asked for details from respondent No.2. The petitioners' salary is given from the Head of Indian Council Agricultural Research (ICAR) and proposal was also sent to ICAR to give grant for the payment of NPA to the petitioners and they have also written to Director, National Bureau Animal Genetic Research to release the grant for payment of petitioners' arrears of NPA. However respondent No.3 put a rider that the payment of NPA be made only after specific instruction from this office and because of this order, the respondent No.2 could not pay the arrears of NPA to the petitioners. The petitioners have made representations for payment of arrears of Page 3 of 10 C/LPA/410/2018 JUDGMENT NPA. Even Principal has also written to Accounts Officer of University that the grant is available to pay the arrears of NPA to petitioners. However because of the instructions from respondent No.3, the Principal is not able to pay the arrears of the NPA. The respondent No.3 is acting in arbitrary and malafide manner so as to defeat the claim of the petitioners and hence the petitioners have approached this Court for necessary action/direction against the respondent No.3 to release the payment of arrears to the petitioners.
3. Looking to the above facts and circumstances, this Court had given suggestion to the learned Government Pleader that let the issue with regard to the payment of Non Practising Allowance (NPA) to the petitioners may be considered by the State Government by appointing a Committee that may be headed by Chief Secretary.
4. Learned Government Pleader Ms. Manisha Lavkumar appearing for the respondent-
State, upon instructions, submits that in view of the suggestion given by this Court, the Government has decided to constitute a Committee headed by the Chief Secretary.
5. Learned senior advocate Mr. Bhaskar P. Tanna appearing for the petitioners, upon instructions, states that the petitioners will make detailed representation before the respondent-State Government incorporating all the issues which have been raised in the present petitions and the issues which are relevant for the purpose of redressal of their grievance.
6. Learned Government Pleader Ms. Manisha Lavkumar submits that the representation that may be filed by the petitioners will be placed before the said Committee and the Page 4 of 10 C/LPA/410/2018 JUDGMENT Committee may be given reasonable time to consider the issues which have been raised in the present petitions and the issues that may be raised by the petitioners in their representation."
3. It is not in dispute that by an order dated 2.5.2017 high level committee was constituted under Chairmanship of the Chief Secretary of the State of Gujarat to deliberate the issue with regard to the demand for payment of Non- Practicing Allowance to the petitioners who are serving as Assistant Research Assistance in Gujarat College on Veterinary Science on Animal Husbandry. Learned Assistant Government Pleader also placed on record communication dated 8.9.2017 received from Under Secretary and conveying the decision of the Committee that the said decision also formed part of the order impugned and para 4.5 reads as under:
"4.5 The said communication dated 8.9.2017 reads thus:-
To, The Government Pleader High Court of Gujarat, AHMEDABAD Sub:-Common oral order for SCA no. 3995 of 2002, 9289 of 20002 and 6496 of 2002 on 16.3.2017.
Sir, According to the common oral order of Hon'ble Justice Mr. P.P. Bhatt, Gujarat High Court, ruled for SCA no. 3995 of 2002, 9289 of 20002 and 6496 of 2002 on 16.3.2017 a committee was constituted under the chairmanship of the Chief Secretary of Government of Gujarat, wide letter No. GKV-102002-SCA-15-K2 dated 31.7.2017.Page 5 of 10
C/LPA/410/2018 JUDGMENT A meeting of the committee on NPPA was held under the chairmanship of Chief Secretary, Government of Gujarat on 28.8.2017.
The decision of the committee is as follows.
1. The committee decided to offer the following two options to the petitioners.
a. The petitioners may be granted permission to carry out private practice, b. Accept the NPPA from the date of issuance of the Government Resolution with the due concurrence of the Finance Department.
2. The petitioners agreed to accept the second option i.e. accepting NPPA from the date of issuance of GR. The Committee agreed to the proposition and decided to recommend the NPPA to the teachers of Veterinary Faculties of the SAUs and Kamdhenu University. All the terms and conditions for the purpose of NPPA applicable to the Sate Animal Husbandry Department would be applicable in this regard."
3.1. Thus, option was given to the petitioners as recommended by the committee either to go for private practice or opt for NPPA. However, later on the decision is taken by the State of Gujarat to the extent that option given by the petitioners to receive NPPA was not acceptable and instead of grant of NPPA the petitioners would be entitled to undertake private practice.
4. The above decision of the State Government clearly reveals that the decision of the committee headed by the Chief Secretary of the State of Gujarat, in which, it was recorded that the petitioners had agreed to accept one out of the two option namely NPPA from the date of issuance of G.R. and the committee agreed to the proposition and decided to recommend the NPPA to the teachers of the Page 6 of 10 C/LPA/410/2018 JUDGMENT Veterinary Faculty.
5. Learned AGP however would contend that so far as other employees like the petitioners and serving as Veterinary officers-teachers or in Animal Husbandry Department and were receiving UGC pay-scale revised from time to time, the benefits of NPPA was dis-continued since Gujarat Agricultural University followed the practice of not granting NPPA to Veterinary teachers who received UGC scale. It is also submitted that recommendations made by the committee headed by the Chief Secretary were not accepted and the notings of the concerned Ministry on the file justifying non-payment of NPPA and allowing the petitioners to do private practice beyond their official duty hours. It is therefore, submitted that the order impugned require to be quashed and set aside by allowing the appeal.
6. As against above Mr.B.P.Tanna, learned senior counsel appearing for the respondents/original writ petitioners would contend that the writ petition before learned Single Judge proceeded and concession given by learned AGP and statements of facts made with regard to grievances of the writ petitioners to be looked into for grant of NPPA and high level committee was appointed headed by the Chief Secretary of State of Gujarat who deliberated of each on other aspect and then accepted the demand of petitioners for grant of NPPA and recommendations made by such high level committee wherein consensus that law laid down by this Court and directions given even in the case of similarly situated employee in Special Civil Application No.2526 of 1983 who was denied NPPA by the State Government.
Page 7 of 10C/LPA/410/2018 JUDGMENT However, it is submitted that the case of the petitioners herein on the facts by their own service conditions and availability of NPPA to similarly situated employees in various departments of the State of Gujarat namely Medical Officers-teachers in the department of health and medical services are getting such NPPA and such NPPA also formed part of the revision of pay rules and same is included while calculating total emoluments including dearness pay when dearness allowance crosses more than 50% even recommendations made by various pay commissions and increments in the revision of pay-scale is made pro-data applicable in NPPA also. In similar such cases on the ground of complete parity a Division Bench of Delhi High Court in decision dated 14.10.2014 in writ petition being Special Civil Application No.2780 of 2011 granted benefits of DACP which was made available to Medical Officers, Dental Doctors and Veterinary Officers based on recommendations made by Central Pay Commission. Accordingly, it is submitted that the Letters Patent Appeal bereft of merit deserves to be dismissed.
7. Having regard to the facts and circumstances and submissions made by learned AGP for the State of Gujarat- the appellant herein and learned senior counsel for the respondents/original writ petitioners, we are of the opinion that non-acceptance of a carefully considered recommendation by the committee headed by the Chief Secretary accepting the demand of the respondents/writ petitioners for NPPA by the concerned Ministry in-charge and perusal of the noting on the file reveal that permitting employees like writ petitioners/Veterinary Officers-teachers Page 8 of 10 C/LPA/410/2018 JUDGMENT to do private practice instead of granting NPPA would serve cause of livestock and keepers of livestock better in rural area and will be more beneficial keeping in mind immediate relief and treatment to be given to animals and as such permitting petitioners to do private practice as such there will be no objection. We are not inclined to dwell deep into justification of such reasonings but question is entitlement of writ petitioners of receiving NPPA on par with other medical officers who are imparting/performing similar duties in the field of Health and Medical Services and under Revision of Pay Rules such NPPA is granted by the State of Gujarat. In the facts of this case a high level committee headed by the Chief Secretary of the State of Gujarat did accept demand of the writ petitioners for NPPA as a result of deliberation and consideration of all relevant aspects including consequence of grant of NPPA or permitting writ petitioners to undertake private practice. That reasons forthcoming for allowing the writ petitioners to take private practice as per notings on the file do not deal with advisability or otherwise of grant or non-grant of NPPA. That recommendations of high level committee headed by the Chief Secretary of the State of Gujarat are simply brushed aside without any justifiable reasons and in our view grant of NPPA to the respondent-writ petitioners on par with other such employees in various departments of the State of Gujarat irrespective of receiving UGC pay-scale etc. and that practice followed by one of the Agricultural University in the State of Gujarat cannot come in the way of writ petitioners for grant of NPPA. Earlier, when NPPA was dis-continued in case of 13 Veterinary Officers-teachers, this Court had to intervene by quashing and setting aside Page 9 of 10 C/LPA/410/2018 JUDGMENT such order. On any count grant of NPPA would serve the cause of rural masses and especially of livestock and keepers of livestock better by grant of NPPA otherwise chances of Veterinary Officers-teachers indulging into un- warranted and un-due activities of undertaking private practices of treating the animals which may in a given case result into charging of exorbitant fees over which there will be no control or regulatory measure by the State authorities and ultimately resulting into exploitation of such class.
8. As a conjoint reading of judgement under challenge and other circulars, relevant rules with regard to payment of NPPA to those officers either treating human beings or animals, we find directions issued by learned Single Judge in the impugned order do not require any interference in this appeal.
9. Appeal is dismissed. The directions of learned Single Judge shall be implemented within four weeks from the date of receipt of the writ/order of this Court.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) NAIR SMITA V. Page 10 of 10