Gujarat High Court
State Of Gujarat vs (G.M.S. Class-Ii)Medical Officers ... on 12 March, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/77/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 77 of 2018
In
SPECIAL CIVIL APPLICATION NO. 6561 of 2008
With
R/LETTERS PATENT APPEAL NO. 78 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9615 of 2006
With
R/LETTERS PATENT APPEAL NO. 79 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9630 of 2006
With
R/LETTERS PATENT APPEAL NO. 80 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9621 of 2006
With
R/LETTERS PATENT APPEAL NO. 81 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9619 of 2006
With
R/LETTERS PATENT APPEAL NO. 82 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9622 of 2006
With
R/LETTERS PATENT APPEAL NO. 83 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9625 of 2006
With
R/LETTERS PATENT APPEAL NO. 84 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9618 of 2006
With
R/LETTERS PATENT APPEAL NO. 85 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9627 of 2006
With
R/LETTERS PATENT APPEAL NO. 86 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9624 of 2006
With
R/LETTERS PATENT APPEAL NO. 87 of 2018
In
Page 1 of 30
C/LPA/77/2018 JUDGMENT
SPECIAL CIVIL APPLICATION NO. 9623 of 2006
With
R/LETTERS PATENT APPEAL NO. 88 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9616 of 2006
With
R/LETTERS PATENT APPEAL NO. 89 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9628 of 2006
With
R/LETTERS PATENT APPEAL NO. 90 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9626 of 2006
With
R/LETTERS PATENT APPEAL NO. 91 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9617 of 2006
With
R/LETTERS PATENT APPEAL NO. 92 of 2018
In
SPECIAL CIVIL APPLICATION NO. 9620 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE Sd/-
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
STATE OF GUJARAT
Versus
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C/LPA/77/2018 JUDGMENT
(G.M.S. CLASS-II)MEDICAL OFFICERS ASSOCIATION
================================================================
Appearance:
MR DHAWAN JAYSWAL, AGP (1) for the PETITIONER(s) No. 1,2,3
MR NK MAJMUDAR(430) for the RESPONDENT(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 12/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. All these Letters Patent Appeals are directed against CAV common judgment dated 21.10.2016 rendered in Special Civil Application Nos.9615 to 9630 of 2006 with Special Civil Application No.6561 of 2008. Since the issues raised in all the above writ petitions were based on similar prayers by all writ petitioners, they were heard and decided together.
2. Following were the prayers before learned Single Judge in all the writ petitions filed under Article 226 of the Constitution of India and for the sake of convenience, prayers in Special Civil Application No.9615 of 2006 were reproduced by learned Single Judge treating the said writ petition as lead matter. Said prayers are reproduced in this judgment also, which reads as under:-
"(25)(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.2 herein to include the amount of Non Practicing Allowance into the amount of basic salary received by the petitioner for calculating the amount of dearness pay which has been introduced w.e.f.
01.04.2005 by way of Government Resolution dated 01.06.2005;
Page 3 of 30C/LPA/77/2018 JUDGMENT 25(1) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dtd. 22.1.2008 passed by respondent No.2 (at Annexure : P hereto).
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the order/resolution dated 31.08.2005 passed by the respondent no.2 (Annexure-E hereto) as the same is unjustified and unfair and adopts two stages of calculation of dearness allowance for one employee which is not permissible in law;
(C) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent authorities to consider and decide the representations made by Inservice Doctors Federation, Gujarat State, (of which the petitioner is a member) and to take appropriate measures for correcting the method adopted by them for calculating the dearness pay pursuant to the said representations;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3. A policy decision taken by respective authorities of the State of Gujarat to introduce the payment of allowances for the loss of private practice by adequately qualified medical practitioners into government service and also with a view to stop private practice in respect of fresh recruits, it was decided to upgrade the post by giving advance increment to such recruits and for loss of private practice, an amount of compensation was given, which was named as, "Non-Private Practicing Allowance" (in short, "NPPA"). That such policy continued from time to time with some modification and thereafter NPPA was indirectly merged with the basic pay for the purpose of computing TA, DA etc. Page 4 of 30 C/LPA/77/2018 JUDGMENT
4. Paragraph 3.4 to 3.20 which records applicability of various pay revision rules, government resolutions and circulars issued from time to time including method of calculation of total emoluments are reproduced hereunder:-
"3.4 In the Rules framed by the Government namely; Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as the Pay Rules of 1987 for the sake of convenience), the non practicing allowance was given a statutory recognition for the purpose of inclusion thereof in the revision of payscale and the consequential benefits thereof. The same continued further even in the year 1998 when the Government framed the Rules for revision of payscale namely; the Gujarat Civil Services (Revision of Pay) Rules, 1998 (hereinafter referred to as the Pay Rules of 1998). It may be recorded that such entitlement of N.P.A. was also extended by the State Government to the other medical services namely; ESI Ayurved Homeopathy Doctors etc., who were working in the respective posts in the State Government. The aforesaid position for the payment of the N.P.A. Has continued from 1965 till this date.
3.5 Although the word allowance has been used, yet the same has been made the part of the Pay / Basic Pay with effect from 1st January 1986 i.e. on publication of the statutory rules of Pay Rules namely, the Gujarat Civil Services (Revision of Pay) Rules, 1987.
3.6 Rule 3(2) of the Rules 1987 provides for the definition of the term existing emoluments.
"Existing emoluments includes: i. the basic pay in the existing scale;
ii. dearness pay, additional dearness allowance and adhoc dearness allowance appropriate to the basic pay admissible at index average 608 (1960=100);
iii.the amounts of first and second installments of interim relief admissible on the basic pay in the existing scale. iv. Nonpracticing allowance, if any, drawn in addition to basic pay in the existing scale of pay;
3.7 Rule 3(6) of the Gujarat Civil Services (Revision of Pay) Rules, 1987 provides for the definition of the term Revised Emoluments.Page 5 of 30
C/LPA/77/2018 JUDGMENT "Revised emoluments means the basic pay of a Government servant in the revised scale of pay and includes the revised nonpracticing allowance, if any, admissible to him, in addition to the pay in the revised scale of pay."
3.8 By Notification dated 20th January 1998, the Gujarat Civil Services (Revision of Pay) Rules 1988 came to be published in exercise of the statutory powers conferred upon the Government of Gujarat under Article 309 of the Constitution of India. Rule 3(5) provides for the definition of the term Revised Emoluments. The definition reads as under:
"Revised emoluments means basic pay of a Government servant in the revised scale of pay and also includes the revised nonpracticing allowance, if any, admissible in addition to pay."
3.9 According to the writ applicant, the NonPrivate Practicing Allowance was given a statutory recognition as a pay through the aforesaid statutory Rules 1987 and 1998.
3.10 The Clause 2 of the Government Resolution dated 5th May 1998 reads as under:
"The Compensatory Allowance for the loss of Private Practice (CA for LPP) will be treated as Pay for all service matters. In other words, the C.A. For L.P.P. i.e. nonpracticing allowance will be taken into account for computing D.A., entitlement of T.A. / D.A. and other allowances as well as for calculation of retirement benefits."
3.11 Reliance is placed on a circular dated 17th October 1995, which reads as under:
"It is hereby clarified that Non Private Practicing Allowance though the same was not considered as part of Basic Pay, however, the Non Private Practicing Allowance would be considered for calculation of all the service benefits."
3.12 On 20th January 1998, the Government of Gujarat, Finance Department passed a resolution which provides for the revision of rates of Dearness Allowance time to time under the Revision of Pay Rules 1998. The relevant part reads as under:
Page 6 of 30C/LPA/77/2018 JUDGMENT "Consequent upon the introduction of revised scales of pay under the Gujarat Civil Services (Revision of Pay) Rules, 1998 with effect from 1st January 1996, Government is pleased to direct that the State Government employees shall be paid Dearness Allowance with effect from 1st July, 1996, 1st January, 1997 & 1st July, 1997, at the following rates: Date from which payable Rates of Dearness Allowance P.M. From 111996 No Dearness Allowance From 171996 04% of pay From 111997 08% of pay From 171996 13% of pay 2 The Payment of Dearness Allowance under these orders from the dates indicates above shall be made adjusting the installments of Dearness Allowance already sanctioned and paid to state Government employees with effect from 111996, 1796 & 1197 vide this departments Resolution No.VLB1196322J dated 2341996, GR No.VLB1196998J dated 21091996 and Government Resolution No.VLB1197336J dated 23041997 respectively.
1. The term Pay for the purpose of calculation of Dearness Allowance shall be the pay drawn in the prescribed revised scale of pay, including stagnation increments(s) and nonpractising allowances, but shall not include any other type(s) of pay like special pay or personal pay etc. In the case of those employees who opt to retain the existing scales of pay, it will include, in addition to pay in the prerevised scales, dearness allowance and interim relief appropriate to that pay admissible under orders of in existence on 111996."
3.13 By publication of the resolution dated 19th April 2005, the Government was pleased to revise the Dearness Allowance at the rate of 67%. According to the said resolution which provides for the calculation at the rate of 67% of the Basic Pay and Clause 2 provides for the calculation of the Dearness Allowance, the same would be calculated on the basis of the Bay Pay + NonPracticing Allowance. 3.14 On 1st June 2005, the State Government published a resolution providing for merger of 50% of the then existing Dearness Allowance in the Basic Pay and Pension. The Clause 5(1) of the resolution dated 1st June 2005 is relevant. It reads as under:
"5(1) The benefit of merger of Dearness Allowance/Dearness Relief Page 7 of 30 C/LPA/77/2018 JUDGMENT in the existing basic pay/basic pension shall be taken into consideration for calculating Dearness Allowance but shall not be taken into consideration for other allowances like House Rent Allowance, Compensatory Local Allowance and NonPracticing Allowances, etc. For eligibility for Charge Allowance, GPF deduction and for all types of advances, only the basic pay shall be taken into account, i.e. the Dearness Pay shall not be taken into account for the said purpose."
3.15 The object of the Government Resolution dated 1st June 2005 was to merge the 50% Dearness Allowance in the Basic Pay and the same was termed as that of the Dearness Pay. The object of the merger was to make the payment of Dearness Allowance, after merging 50% Dearness Allowance in the Basic Pay so that the merger of 50% of the Dearness Allowance into the Basic Pay with a new nomenclature of Dearness Pay would be beneficial to the employees of the Government.
3.16 According to Clause 5(1) of the Resolution dated 1st June 2005 the merger of the Dearness Allowance in the existing Basic Pay / Basic Pension, the other allowances like the House Rent Allowance, Compensatory Local Allowance and NonPrivate Practicing Allowance, etc. would not be calculated on the Dearness Pay i.e. the Dearness Pay would not be taken into account for the said purpose.
3.17 The State Government, thereafter, published the resolution dated 31st August 2005 considering the Clause 5(1) of the Government Resolution dated 1st June 2005. The Government took notice of the fact that Clause 5(1) of the Government Resolution dated 1st June 2005 was causing loss to the doctors and pursuant to the representation received, clarified by giving an illustration. By the said Government Resolution dated 31st August 2005, the State Government clarified that the N.P.P.A. would be calculated for the purpose of calculating the Dearness Allowance.
3.18 The State of Gujarat, thereafter, published the resolution dated 26th July 2006. The illustration given therein is relevant. It reads as under:
Basic Pay 10,000/
Dearness Pay (D.P.) (50% of the Basic Pay) 5,000/
15,000/
N.P.P.A. 15,000/ @ 25% 3,750/
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C/LPA/77/2018 JUDGMENT
18,750/
Dearness Allowance 18,750/ @24% 4,500/
Total 23,250/
3.19 Thereafter, one another resolution dated 8th June 2006 came to be published. The said resolution provides for the calculation of the various allowances on the basis of the Basic Pay + Dearness Pay + N.P.P.A. while calculating the Dearness Pay and the Dearness Allowance with effect from 1st April 2004.
3.20 During the pendency of the writ application, the State issued one another Resolution dated 25th June 2001, which reads as under:
"Consequent upon the introduction of revised pay structure under Gujarat Civil Services (Revision of Pay) Rules, 2009 with effect from 112006, Government is pleased to decide that the Non Private Practising Allowance (NPPA) may continue to be paid to the Medical Officers at the existing rate of 25% of the Basic Pay subject to the condition that the Basic Pay + NPPA does not exceed Rs.75,500/.
2 The terms Basic Pay in the revised pay structure means the pay drawn in the prescribed pay and plus the applicable grade pay but does not include any other type of pay like special pay, etc. 3 The NPPA should be restricted to those Medical Posts which a Medical qualification recognized under the Indian Medical Council Act, 1956 or under the Dentists Act, 1948 has been prescribed as an essential qualification.
4 The NonPrivate Practicing Allowance will be treated as pay for the purpose of computing Dearness Allowance, entitlement of Travelling Allowance and other allowances as well as for calculation of retirement benefits.
5 The Medical Officers who are in State Govt.s service Public Health, Medical Services & Education, Govt. Hospitals and Dispensaries, the Hospitals & Dispensaries under the Employees State Insurance Scheme and also working under Directorate of Indian Medical (Allopathy), Homoeopathy & Ayurved System shall be eligible for NPPA.
8 These orders shall be effective from 1st April, 2009. The illustration is annexed as per AnnexureI. Page 9 of 30 C/LPA/77/2018 JUDGMENT ANNEXUREI Fixation of initial pay in the revised pay structure of Medical Officers: 1 Existing scale of pay Rs.1000015200 2 Pay Band applicable PB3 Rs.15600 39100 3 Existing basic pay on 112006 Rs.10000 Dearness Pay (DP) on Pay + NPA Rs.6250 25% NPA on basic pay + DP Rs.4063 Dearness Allowance (DA) @24% Rs.4875 (24% of basic Pay + DP + NPA) Existing emoluments Rs.25188 (rounded off to Rs.25190) 4 Revised pay in the pay band after Rs.18600 multiplication by a factor of 1.86 on basic pay 5 DA on NPA Rs.976 (24% of Rs.4063) 6 Pay in the pay band attached to the scale Rs.19580 (18600+976=19 576 rounded off) 7 Grade pay attached to the scale Rs.6600 8 Revised basic pay total of pay in the pay Rs.26180 band and grade pay 9 Revised NPA Rs.6545 Total Rs.32725
5. It appears that earlier also one writ petition being Special Civil Application No.9615 of 2006 was preferred and the State Government was directed to consider the case of the petitioners by passing reasoned order to which learned Single Judge has made detailed reference in paragraph 4 of the judgment but according to the State Government the Page 10 of 30 C/LPA/77/2018 JUDGMENT petitioners were not entitled to NPPA as a part of 'basic pay' since it forms part of allowance and allowance does not become a right. Thus, since NPPA was not the 'basic pay', 50% or 100% amount of NPPA cannot be included in the 'basic pay' and thus, it cannot be taken into account for the purpose of dearness pay.
6. However, according to learned Single Judge such decision of the State Government was not in accordance with Gujarat Civil Services (Revision of Pay) Rules, 1987 since NPPA was given a statutory recognition for the purpose of inclusion in the revision of pay scale and for consequential benefits. In paragraphs 17 and 18 of the impugned judgment, it is held as under:-
"17. The State Government, in my view, is incorrect in taking the view that the N.P.A is not a part of the Basic Pay, but is being taken into account only for the purpose of calculating the Dearness Allowance. In the Gujarat Civil Services (Revision of Pay) Rules 1987, the NonPracticing Allowance was given a statutory recognition for the purpose of inclusion in the revision of payscale, and for the consequential benefits. The Gujarat Civil Services (Revision of Pay) Rules, 1987 provides that the NonPracticing Allowance shall be included in the existing emoluments. Even the Gujarat Civil Services (Revision of Pay) Rules, more particularly, Rules 3(6) provides that the Basic Pay would include the revised Nonpracticing Allowance.
18. Even in the Gujarat Civil Services (Revision of Pay) Rules 1998, which came to be notified vide the Notification dated 28th January 1998, it was provided that the practicing allowance should be calculated on the basis of Pay + NonPracticing Allowance for calculating / arriving at the figure of the emoluments of the Medical Officers. The Gujarat Civil Services (Revision of Pay) Rules 1998 provides that the revised emoluments means the Basic Pay of a government servant in the revised scale of pay and would also include the revised NonPracticing Allowance, if any, admissible in Page 11 of 30 C/LPA/77/2018 JUDGMENT addition to pay. Thus, in my view, the reasoning assigned by the State Government proceeds absolutely on a wrong footing. I fail to understand why this objection is raised by the State Government only for the period between 2004 and 2009. After 1st April 2009, again the position has been restored as sought by the writ applicants herein for the period between 1st April 2004 and 31st March 2009."
7. Learned AGP, Shri Dhawan Jayswal, appearing for the appellant-State of Gujarat would contend that learned Single Judge has committed an error by allowing the prayers of writ petitioners and considering various revision of pay rules, which were notified and were framed in exercise of powers conferred under Article 309 of the Constitution of India and, accordingly, definitions of the 'Basic Pay' and 'existing emoluments' are distinguished. 'Basic Pay' is the only pay while emoluments comprise basic pay, dearness allowance and other allowances so mentioned in the Rules. Further existing emoluments include basic pay plus dearness allowance on basic pay and dearness allowance on NPPA, but, NPPA is not included in existing emoluments.
7.1 Learned AGP has exhaustively relied on Revision of Pay Rules, 1988 and particularly, Rule 7 (B) which excluded 'non- practicing allowance'. Learned AGP has submitted that the definition of existing emoluments and revised emoluments are in context with the principle that employee's existing emoluments shall not be higher than revised emoluments, if the existing emoluments exceed the revised emoluments, the difference shall be allowed as personal pay to be absorbed in future increases in pay. Thus, the existing emoluments and revised emoluments are mentioned are comparison only.
7.2 He further submitted that under Rule -7 (B) of ROP-1998
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it is clearly mentioned that, "(B) In the case of a government servant who is in receipt of non-practicing allowance, the pay in the revised pay scale shall be fixed in accordance with the provisions of Paragraph (A) above except that in such cases the term existing emoluments shall not include Non-practicing Allowance and will comprise only following:-
(a) the Basic Pay in the existing scale
(b) Dearness allowance appropriate to the basic pay and non-
practicing allowance admissible at index average 1510(1960=10) under the relevant orders: and, (here Dearness allowance on Basic Pay and dearness allowance on NPA is to be taken into consideration)
(c) the amounts of first and second installments of interim relief admissible on the basic pay in the existing scale and non- practicing allowance under the relevant orders, and in such cases, non-practicing allowance at the new rates shall be drawn in addition to the pay so fixed in the revised scale.
7.3 Therefore, non-practicing allowance is not to be considered but only Dearness Allowance on NPA is to considered for pay fixation.
7.4 He also submitted that in the same manner under Rule
-7. (B) of the ROP-2009, it is mentioned that, "In the case of Government employees who are in receipt of non-practicing allowance, the pay in revised pay structure shall be fixed in accordance with the provisions of clause(A) above except that, in such cases, the pre-revised dearness allowance appropriate to the non-practicing allowance admissible at index average 536(1982=100) shall be added while fixing the pay in the Page 13 of 30 C/LPA/77/2018 JUDGMENT revised pay band, and in such cases, non-practicing allowance at the new rates shall be drawn with effect from 1st day of January, 2006, or date of option for revised pay structure, in addition to the pay so fixed in the revised pay structure."
7.5 He also submitted that if we see the illustration of Pay fixation following are considered for existing emoluments.
Basic Pay Dearness Allowance on Basic pay + Dearness Pay Dearness Allowance admissible on NPA But for revising pay only Basic Pay is multiplied by the multiplication factor of 1.86. which means Basic Pay = 1.0, Dearness pay= 0.5 and Dearness Allowance at the rate of 36% i.e 0.36. so 1.0+.0.50+0.36 comes to 1.86. In illustration Annexed with Government Resolution it is mentioned as following.
Basic Pay Rs.10000 X 1.86 = Rs.18600 (Rs.10000 Basic
Pay+Rs.5000
Dearness pay+3600
Dearness Allowance)
+ Dearness Allowance on NPA= Rs. 976
Total Rs. 19580 ((rounded off to next
ten)
+ Grade Pay Rs. 6600
Basic Pay= Rs. 26180
NPA @ 25 % of Basic pay Rs. 6545
Total Revised Pay with NPA Rs. 32725
If NPA had been considered as basic Pay then revised NPA would have to be considered by multiplication of 1.86. But it is not done in this case.
7.6 In ROP-2016 also, Under Rule- 7.(1)(B)(i) there is
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provision that 'the existing Basic Pay shall be multiplied by a factor of 2.57 and the figure so arrived at shall be added to by an amount equivalent to Dearness allowance on the pre- revised Non-Practicing Allowance admissible as on 1st Day of January, 2016. The figure so arrived at will be located in that Level in the Pay Matrix and if such an identical figure corresponds to any cell in the applicable level of the pay matrix, same shall be the pay, and if no such cell is available in the applicable level, the pay shall be fixed at the immediate next higher Cell in that applicable level of the Pay matrix.
(ii) The pay so fixed under sub clause (i) shall be added by the pre-revised Non Practicing Allowance admissible on the existing basic pay until further decision on the revised rates of Non Practicing Allowance.
Here also NPA is not multiplied by 2.57 but only an amount equivalent to DA on NPA is added for calculating revised pay and then revised pay is arrived at.
Basic pay = (Pay in Pay Band + Grade Pay ) (Rs.15600+ Rs.5400)
= 21000
21000 X 2.57 53970
+ D.A. on NPA 6563
60533
i.e. 61300 in Level-10 is revised pay.
7.7 Even during the implementation periods of pay
commission when employee is given yearly increments only Basic Pay is considered not an NPA.
e.g. in 6Th pay Commission period increment of 3% of Basic Pay = (Pay in the Pay Band + Grade Pay ) is given, NPA is not included so NPA is not a part of Basic Pay.
7.8 In 7Th pay commission Period also increment as per the
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Pay matrix is given without adding NPA to Basic Pay So NPA is not a part of basic Pay.
7.9 The maximum Pay+NPA limit of Rs.85000 is revised- decided vide Finance Department GR dated 12-4-2012. in any employee's cross this limit, his NPA is reduced by the amount higher than maximum limit of Rs.85000/-
7.10 He also submitted that the 5th Pay Commission's recommendations are recommendatory not binding on the Government.
7.11 The Central Government is giving benefits to their employees are not binding to the State Government. Many allowances as well as other benefits like
(i) Education Allowance
(ii) Children Leave and even in some case pay scale is revised by the Central Government are not accepted by the State Government.
7.12 The illustration of pay calculation given by Advocate of the respondents are slightly incorrect. The equal basic pay of both the employees should be considered.
7.13 Non-medical and medical doctors should be considered and so the illustration given in the reasoned order of Secretary (FD) correct and increase of same amount is given to both type of employees.
So the NPA being allowance
(1) Merger of Dearness Allowance on NPA is correctly
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not sanctioned.
(2) Revised NPA from 01-01-2006 to 31-3-2009 is given
notional
(3) In 7th Pay Commission also Pay is revised but NPA is
not revised and shall be revised after the government
decision. Generally, allowances are revised from a prospective effect that is from the date of order or the date decided by the government.
7.14 Even Government of India has given Revised NPA from 01-07-2017 instead of 01-01-2016 as an allowance.
7.15 Learned AGP would further contend that at the relevant point of time, it was open for the State Government to accept recommendations of 5th Pay Commission in toto or in part. Accordingly, it is submitted that the directions issued by learned Single Judge impugned in these appeals deserve to be quashed and set aside by allowing all appeals.
8. As against above, Mr.N.K.Majmudar, learned advocate appearing for the respondent-original petitioners would contend that learned Single Judge has threadbare considered all provisions of Gujarat Civil Services (Revision of Pay) Rules, 1987, subsequent Government Resolutions governing the subject matter. He also submitted that learned Single Judge has also considered The Gujarat Civil Services (Revision of Pay) Rules, 1998, The Gujarat Civil Services (Revision of Pay) Rules, 2009 and relevant Government Resolutions and Office Memorandum dated 7.6.2004 and 6.10.2004 issued by the Ministry of Finance, Government of India about merger of 50% of dearness allowance/ dearness relief with basic/pension of Page 17 of 30 C/LPA/77/2018 JUDGMENT Central Government employees and clarification made in this regard and even last office memorandum dated 7.7.2017 at the time of revising rates of NPPA in respect of medical posts after recommendations of 7th Central Pay Commission and most importantly, Government Resolution dated 25.6.2010 issued by Finance Department, Government of Gujarat, for revision of rates of NPPA upon acceptance of 6th Central Pay Commission to be paid to medical officers in the State, where NPPA will be treated as Pay for the purpose of computing dearness allowance, entitlement of travelling allowance and other allowances as well as for calculation of retirement benefits.
8.1 It is, therefore, submitted that in absence of any error on the part of learned Single Judge either in law or on facts, all these appeals deserve to be dismissed.
9. Having regard to the facts and circumstances of the case, submissions made by learned counsel appearing for the parties and on perusal of entire record of writ petitions in the context of judgment under challenge, we would again like to re-visit only relevant provisions governing the subject appeals and they are considered accordingly.
9.1 Notification of Finance Department department dated 1.6.1987 by which in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Gujarat Civil Services (Revision of Pay) Rules, 1989 are framed and deemed to have come into force on 1.1.1986. Sub-rule (2) contained the categories of government servants to whom these rules apply. Rule 3 contains definitions. Rule 3 (1) "basic Page 18 of 30 C/LPA/77/2018 JUDGMENT pay", Rule 3 (2) "Existing Emoluments" includes (a),(b), (c), (d) page 60.
"Existing emoluments includes: v. the basic pay in the existing scale;
vi. dearness pay, additional dearness allowance and adhoc dearness allowance appropriate to the basic pay admissible at index average 608 (1960=100);
vii.the amounts of first and second installments of interim relief admissible on the basic pay in the existing scale. Nonpracticing allowance, if any, drawn in addition to basic pay in the existing scale of pay;"
9.2 Sub-rule (3) of Rule 3 "Existing scale of pay". Rule 3 (5), "Present Scale of Pay", 3 (6) "Revised Emoluments", 3 (7) Revised Scale of Pay, Rule 7 is about fixation of initial pay in the revised scale of pay. Rule 8 is about date of next increment in the revised scale of pay. Rule-9 is about fixation of pay in the revised scale of pay subsequent to the First day of January 1986.
9.3 Government Resolution dated 22.2.1988 issued by the Health and Family Welfare Department, Government of Gujarat, is pertaining to grant of compensatory allowance for loss of private practice at revised rates in case of those medical posts for which a medical qualification recognized under the Indian Medical Council Act, 1956 or under Dentists Act, 1948 prescribing an essential qualification and this compensatory allowance for loss of private practice will be treated as 'pay' for all service matters. In other words, the CA for LPP i.e. non practicing allowance will be taken into account for computing DA, entitlement of TA/DA and other allowances as well as for calculation of retiral benefits as per Clause 3 of Page 19 of 30 C/LPA/77/2018 JUDGMENT the above Government Resolution. Government Resolution dated 17.10.1995 by the Department of Finance, Government of Gujarat, provides that NPA, though not treated as part of Basic Pay but it is considered for all service related matters and it should be considered and counted for the purpose of interim relief also. By Notification dated 20.1.1998, Finance Department, Government of Gujarat, framed under Article 309 of Constitution of India and came into force with effect from 1.1.1996, defined Basic Pay, Existing Scale, Present Scale of Pay, Revised Emoluments and Revised Scale of Pay etc. under Rule 3 (1), (2), (4), (5) and (6).
9.4 In continuity with the definition of "Basic Pay" so contained in the Notification dated 1.6.1987, Rule 3 (1) while defining Basic Pay, take into consideration definition in paragraph (i) of Sub-clause (1) of Clause (39) of the Rule 9 of Bombay Civil Services Rules, 1959 and continuing the very definition with inclusion of stagnation increments. Revision of Pay Rules 1998, revised the definition of "Basic Pay". 9.5 The definition of Rule 3 (5) of Rules 1998 pertaining to "revised emoluments" means the Basic Pay of a Government servant in the Revised Scale of Pay and includes the revised non-practicing allowance, if any, admissible, in addition to pay in the revised scale. So far as Rule 7 pertaining to fixation of initial pay in the revised scale is concerned, the manner is prescribed for fixation of such initial pay for two categories of employees. Rule 7 (A) will be applicable in case of employees other than those who receive non-practicing allowance and Rule 7 (B) will apply in case of Government servant, who is in receipt of non-practicing allowance.
9.6 Rule 7 (A) III (b) contained explanation for the purpose of Page 20 of 30 C/LPA/77/2018 JUDGMENT considering "Existing Emoluments", which includes (a) Basic Pay in the existing Scale, (b) dearness allowance, appropriate to the basic Pay admissible at the index average and (c) the amount of first and second installments of interim relief admissible on the Basic Pay in the Existing Scale.
9.7 Thus, "Existing Emoluments" so defined in Rule 3 (2) of Rules 1987 is concerned, Non-Practicing Allowance was taken out in the explanation (B), of Rule 7 (A) and proviso (a) of the Rules, 1998.
9.8 Rule 7 (B) which is applicable in case of a government servant, who is in receipt of Non Practicing Allowance, fixation of the pay in the revised scale shall be in accordance with the provisions of paragraph (A) of Rule 7 carving out an exception that in such cases, the term "Existing Emoluments" shall not include NPA and will comprise only the following [(a), (b), (c) ] which are the same as per explanation of Rule 7 (1).
9.9 Therefore, it appears that the NPA is removed from the definition of Existing Emoluments and only for the purpose of calculation i.e. fixation of Pay in revised Pay Scale to comprise
(a) the Basic Pay in the Existing Scale, (b) dearness allowance appropriate to the Basic Pay and NPA admissible at particular index average, (c) the amount of first and second installment, interim relief admissible on the Basic Pay in the Existing Scale and NPA at the new rates to be drawn in addition to pay so fixed in the revised scale.
9.10 By Government Resolution dated 20.1.1998 of the Page 21 of 30 C/LPA/77/2018 JUDGMENT Finance Department, Government of Gujarat, direction was given to the effect that State Government employees shall be paid dearness allowance with effect from 1.7.1996, 1.1.1997 and 1.7.1997 at particular rates and paragraph of the above Government Resolution explains the term "Pay" for the purpose of calculation of dearness shall be the pay drawn in the prescribed revised scale of pay, including stagnation increments and non-practicing allowance (NPA) but shall not include any other type of pay like special pay or personal pay etc. 9.11 Gujarat Civil Services (Addition to Pay) Rules, Chapter VI is pertaining to NPA which provide in paragraph 38 that "Rate of Non-Practicing Allowance to be sanctioned by the Government from time to time and existing rate which came into effect from 1.1.1996 is 25% of the Basic Pay provided the total of Basic Pay plus non-practicing allowance does not exceed Rs.26,000/-.
9.12 Further by Government Resolution dated 19.4.2005, dearness allowance to the Government of Gujarat employees was increased to 67% with effect from 1.1.2005 and Clause (2) of the above Government Resolution also include NPA for the purpose of calculation of dearness allowance as a part of Pay. By Government Resolution dated 1.6.2005, 50% of dearness allowance was merged into Basic Pay and also in the case of pensioners with effect from 1.4.2005. That such merged 50% DA was to be shown separately as Dearness Pay - DP. That Government Resolution dated 31.8.2005 of Finance Department clarifies method/formula for calculation of total emoluments. In the line of above Government Resolution, Page 22 of 30 C/LPA/77/2018 JUDGMENT another Government Resolution was issued on 26.7.2006 by Finance Department, Government of Gujarat, which clarifies receivable NPA in case of pensioners. In this category, 50% DA is merged in Basic Pay. Notification dated 27.2.2009, Finance Department, by which Gujarat Civil Services (Revision of Pay) Rules, 2009 came into force in exercise of powers under Article 309 of the Constitution of India defined in Rule 3 (1) Existing Basic Pay, Rule 3 (2) - Existing Scale, Rule 3 (4) Existing Emoluments, Rule 3 (5) Present Scale, Rule 3 (7) Grade Pay, Rule 3 (8) revised pay structure, Rule 3 (9) basic pay and Rule 3 (10) Revised Emoluments.
9.13 For our purpose Rule 3 (10) viz. Revised Emoluments includes revised NPA. Rule 7 is about fixation of initial pay in the revised pay structure and para (A) is applicable in case of all employees, while para (B) of the above Rule will apply to any other employees, who are in receipt of NPA.
9.14 In view of 6th Central Pay Commission, revision of NPPA paid to the medical officer by Resolution dated 25.6.2010, of Finance Department, Gujarat, it was clarified that eligible medical officer to continue to receive NPPA at the existing rate of 25% of the Basic subject to certain conditions, which also defines Basic Pay, NPPA and particularly Clause (4) provides the NPPA will be treated as pay for the purpose of computing Dearness Allowance, entitlement of Travelling Allowance and other allowances as well as calculation of retiral benefits. Annexure-1 contains the manner in which the initial pay is to be fixed in the revised pay structure of Medical Officer.
Page 23 of 30C/LPA/77/2018 JUDGMENT 9.15 Again by Notification dated 19.8.2016, Finance
Department, Government of Gujarat, in exercise of powers under Article 309 of Constitution of India, Gujarat Civil Services (Revision of Pay) Rules, 2016 with effect from 1.1.2016 provided various definitions in Rule 3 (i),(ii), (iii), (iv) upto (xii).
9.16 That Rule 3 (vii) is introduced as "pay matrix" as specified in part (A) of the Schedule with the levels of pay arranged in vertical cells as assigned to corresponding existing Pay Band and Grade Pay or Scale and also introduced Rule 3
(viii) defining "Level" and Rule (ix) "pay in the level". Accordingly, illustration is given in Rule 7 pertaining to pay in the revised pay structure whereby again two categories of employees viz. in para (A) all the employees and para (B) Medical Officers eligible to receive NPA and the pay in the revised pay structure to be fixed in a manner prescribed in the said paragraph and illustration given therein.
9.17 The reference is also made to Office Memorandum dated 1.3.2004 and 6.10.2004 by which Department of Expenditure, Ministry of Finance, Government of India, considered the subject with regard to merger of 50% of Dearness Allowance with basic pay/pension to Central Government employees/ pensioners with effect from 1.4.2004 and Office Memorandum dated 7.6.2004 and 6.10.2004 issuing clarification whereby manner illustrated for computation of merger of 50% of dearness allowance vide Office Memorandum dated 7.6.2004 was again clarified in Office Memorandum dated 6.10.2004 prescribing computation of emoluments subsequent to merger of DA equivalent to 50% of Basic Pay as Dearness Pay with effect from 1.4.2004 in which NPA at the rate of 25% was Page 24 of 30 C/LPA/77/2018 JUDGMENT forming part of Basic Pay for calculating dearness pay at the rate of 50% and then total of Basic Pay plus NPA at the rate of 25% plus DP at the rate of 50%. Basic Pay and DP both were included so as to apply and include NPA at the rate of 25%.
9.18 From a conjoint and collective reading of the above provisions of Revision of Pay Rules, Government Resolutions of State of Gujarat and Office Memorandums issued by the Government of India, it emerges on record that a policy of granting compensatory allowance to medical practitioners due to loss of private practice introduced by the State of Gujarat by passing a Government Resolution dated 27.10.1965 continued from time to time except for the period between 1.4.2004 and 31.3.2009. We have exhaustively referred to facts recorded by learned Single Judge and findings arrived about statutory recognition given to non-practicing allowance for the purpose of inclusion in the revision of pay scale and for consequential benefits since Revision of Pay Rules, 1987 came into force. That anomaly crept in by adopting incorrect method of calculation which forms part of order dated 22.1.2008 passed by the State Government interpreting Rule 11 of Chapter III of GSCR (Additions to Pay) 2002 making some clarification that NPPA cannot be treated and termed as 'basic pay' and, therefore, NPPA cannot be merged in basic pay for arriving at the dearness pay. The above reasoning falls flat on the ground that Government of India in its memorandum dated 8.10.2004 added full NPPA to the 'basic pay' and 50% amount of total of it is arrived at as the amount of dearness pay and on the 'basic pay' plus 'dearness pay', 25% NPPA is sanctioned.
Page 25 of 30C/LPA/77/2018 JUDGMENT 9.19 We have noticed other relevant provisions including that of Gujarat Civil Services (Pension Rules) 2002 in which NPPA is treated and termed as part of 'basic pay' for fixation of pension in case of service doctors under the definition of 'pensionable pay' under Rule 43 of the said Rules. Likewise Government Resolution dated 20.1.1998 of Finance Department of Government of Gujarat define 'pay' for the calculation of DA shall be the pay drawn in the prescribed revised scale of pay including stagnation increments and non-practicing allowance but shall not include any other type of pay like special pay or personal pay. That in all other subsequent GRFD dated 5.5.1998, 24.9.1998, 21.6.1999, 6.10.1999, 17.5.2000, 16.10.2000, 18.6.2001, 6.11.2001, 9.5.2002, 18.2.2003, 27.5.2003, 15.10.2003, 28.4.2004, 8.11.2004 and 19.4.2005 also NPA does not fall under Special Pay as defined under Gujarat Civil Services (General Conditions of Service) Rules, Sub-Rule 9 (74) or under Personal Pay as defined under Sub Rule 9 (63) as clarified in all the above cited Government Resolutions.
9.20 Further, Dearness allowance on Non-practicing allowance was also used in the fixation of pay under GCS ROP 1998 under a statutory Notification being No.GJ-2-PG4-1098-2-M dated 20.1.1998 under Sub-rule B of the Rule 7 (1) which provides that NPA is part of pay for medical officers:-
9.21 Rule 7 (1) (B) in the case of a Government servant who is in receipt of non-practicing allowance, the pay in the revised scale shall be fixed in accordance with the provision of paragraph (A) above except that in such cases the term "existing emoluments" shall not include Non-practicing allowance and will comprise only the following:-Page 26 of 30
C/LPA/77/2018 JUDGMENT
(b) the basic pay in the existing scale;
(c) dearness allowance appropriate to the basic pay
and non-practicing allowance admissible are index
average 1510 (1960=100) under relevant orders; and
(d) the amount of first and second installment of interim relief admissible on the basic pay in the existing scale and non-practicing allowance at the new rates shall be drawn in addition to pay so fixed in the revised scale.
9.22 All Finance Department Government Resolutions sanctioning DA under the Revision of Pay Rules 1998, also defined the pay for the purpose of calculation of Dearness Allowance, the condition of which is as follows:-
9.23 The term "Pay" for the purpose of calculation of Dearness Allowance shall be the pay drawn in the prescribed revised scale of pay, including stagnation increment(s) and non-practising allowance but shall not include any other type(s) of pay like special pay or personal pay etc. In the case of those employees who opt to retain the existing scales of pay, it will include, in addition to pay in the pre-revised scales, dearness allowance and interim relief appropriate to that pay admissible under orders in existence on 1.1.1996."
9.24 Payment of DA is regulated Gujarat Civil Services (Additions to Pay) Rules 2002, vide statutory Notification under Article 309 of the Constitution of India being No.GN-34-102001-
998-CH dated 15th November 2002.
Page 27 of 30C/LPA/77/2018 JUDGMENT 9.25 By the FD Resolution No.VLB-102005-400-CD dated 19.4.2005 67% of DA was sanctioned for all the employees of the State.
9.26 Before the implementation of DA merger (as part of 5th CPC report accepted by GOI and GOG both), Government has sanctioned 67% of DA with effect from 1.1.2005 by FD Government Resolution No.VLB-102005-400-CH dated 19.4.2005, and the said GR provides for calculation of DA on Basic Pay plus NPA for doctors.
9.27 Government of India, vide Finance Ministry, Department of Expenditure order dated 1.3.2004 had merged 50% DA in the basic pay (for entitlement of DA, HRA, NPA and other allowances) and termed it as Dearness Pay, which is the basis of DA merger for the State Government. Here it is merger of 50% DA as DP and not the merger of 50% of basic pay as is being interpreted by the respondent authorities. 9.28 By FD Government Resolution dated 1.6.2005, the Government merged 50% (out of the then prevailing 67%) of the existing DA as Dearness Pay, and directed to calculate the remaining DA of 17 (67-50=17)% on the Basic Pay plus Dearness Pay for all. For doctors as NPA is treated as pay for all purpose, 17% DA is to be paid on basic pay plus dearness pay plus NPA. The object of the said orders is to merge 50% DA and not the merger of 50% of Basic Pay as is being shown. The dispute in this case is totally wrong calculation of dearness pay by conversion of 50% of basic pay to DP instead of 50% of existing DA out of 67%. In the said GR itself, it is clearly shown that the orders are issued consequent to the orders dated 1.3.2004 issued by Ministry of Finance, Government of India.
Page 28 of 30C/LPA/77/2018 JUDGMENT 9.29 Emoluments were being reduced by this wrong
calculation of Dearness Pay by the authorities, defeating the very purpose of granting it. Reduction can never be the objective of granting DP. Intention is to give benefit of 17% DA on the Dearness Pay (50% of prevailing DA) and to increase the emoluments by 8.5% (17% of 50%). This reduction has been admitted on record in the revision orders of 31.8.2005, there is a net loss of 1.7% for the doctors compared to other employees of the State Government at that point of time.
9.30 There cannot be two rates of Dearness Allowance-DA for any employees as the DA is based on single entity-All India Consumer Price Index-AICPI. The formula is that % of increase in AICPI over the baseline 1510 point (1960=100) prevailing on 1.1.1996, the same % of DA is granted to compensate.
9.31 In all subsequent GRs also, the authorities have clarified that by the GR dated 1.6.2005, 50% of DA is merged and not 50% of basic pay.
10. Therefore, we conclude that anomaly which was crept by applying incorrect method of calculation of total emoluments by not treating NPPA as a part of 'basic pay' was corrected under Gujarat Civil Services (Revision of Pay) Rules 2009 which came into force with effect from 01.01.2006 vide notification dated 27.02.2009 read with G.R. dated 25.06.2010 by the Finance Department Government of Gujarat upon revision of rates for Non Private Practicing Allowance based on 6th Central Pay Commission Clause (4) once again treats Non Private Practicing Allowance as pay for the purpose of computing Page 29 of 30 C/LPA/77/2018 JUDGMENT Dearness Allowance, entitlement of Travelling Allowance and other allowances as well as for calculation of retirement benefits. Thus G.R. dated 20.01.1998 explaining the term 'pay' for the purpose of Dearness Allowance to include Non Private Practicing Allowance remained in force or rather reiterated in G.R. dated 25.06.2010 by the Finance Department of Government of Gujarat. That such was not the case only for the interregnum period or year 2005 to 2009 based on powers of the State Government to accept the recommendations of 5th Pay Commission in toto and to rely on Part B of Rule 7 of the Gujarat Civil Services (Revision of Pay) Rules 1998 in which NPA did not form or was rather not included in the definition of either basic pay or existing emoluments. Further revised emoluments do accept Non Private Practicing Allowance in 1998 and 2009 Revision of Pay Rules.
11. Therefore, we find the order and directions of the learned Single Judge impugned in this group of appeals are based on proper analysis of relevant Revision of Pay Rules, Government Resolutions, Office Memorandums governing the subject of NPA/NPPA to which we are in agreement with and NPA/NPPA is not to be divested of the term 'Pay' for the purpose of computing dearness allowance and emoluments. We find no merit in all these appeals and they are hereby dismissed.
Sd/-
(ANANT S. DAVE, J) Sd/-
(BIREN VAISHNAV, J) R.S. MALEK Page 30 of 30