Gujarat High Court
Maheshkumar P Kapadia vs State Of Gujarat & on 21 October, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/9615/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9615 of 2006
TO
SPECIAL CIVIL APPLICATION NO. 9630 of 2006
With
SPECIAL CIVIL APPLICATION NO. 6561 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO any order made thereunder ?
========================================================== MAHESHKUMAR P KAPADIA....Petitioner(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 - 2 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 21/10/2016 CAV COMMON JUDGMENT Page 1 of 20 HC-NIC Page 1 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 1 Since the issues raised in all the captioned writ applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order. For the sake of convenience, the Special Civil Application No.9615 of 2006 is treated as the lead matter.
2 By this writ application under Article 226 of the Constitution of India, the writ applicant, serving as a 'Medical Officer' with the State Government, has prayed for the following reliefs:
"(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;
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 (AnnexureE 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 The case of the writ applicant may be summarised as under:
Page 2 of 20HC-NIC Page 2 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 3.1 The State Government issued a resolution dated 27th October 1965 with a view to attract the adequately qualified medical persons to the government service and with a view to the stopping private practice in respect of the new entrants, decided to upgrade the post to give advance increments to the new comers and also decided to give allowances for the loss of private practice called the "NonPrivate Practicing Allowance".
Thus, a policy decision was taken to introduce the payment of allowances for the loss of private practice.
3.2 Such policy continued with a modification in the quantum of the amount vide resolution dated 12th July 1970 issued by the State Government. The same position continued further with the modification as regards the rates with an additional development in the payment of the allowances for the loss of private practice i.e. N.P.A. 3.3 The said policy continued further with the additional change i.e. the N.P.A. was indirectly merged with the Basic Pay for the purpose of computing T.A., D.A., etc. 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 nonpracticing 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., Page 3 of 20 HC-NIC Page 3 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 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".
"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 Page 4 of 20 HC-NIC Page 4 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 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 5 of 20HC-NIC Page 5 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV 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 department's 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 Page 6 of 20 HC-NIC Page 6 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT resolution dated 1st June 2005 is relevant. It reads as under:
"5(1) The benefit of merger of Dearness Allowance/Dearness Relief 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. Page 7 of 20 HC-NIC Page 7 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 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/
'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 NonPrivate 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. Page 8 of 20 HC-NIC Page 8 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 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."
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.1560039100 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=19576 rounded off) 7 Grade pay attached to the scale Rs.6600 8 Revised basic pay - total of pay in the pay band Rs.26180 and grade pay 9 Revised NPA Rs.6545 Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT Total Rs.32725 3.21 The calculation, as provided in Annexure: 'I', would indicate that the Dearness Pay is calculated on the basis of 50% of the Dearness Allowance of the Basic Pay + 25% of the Basic Pay calculated and worked as the the NonPracticing Allowance.
3.22 It is the case of the writ applicant that the State Government has declined to consider the NonPrivate Practicing Allowance as a part of the pay and hence, the writ applications.
4 It appears that in the first round of litigation, an order was passed dated 10th January 2007 in the Special Civil Application No.9615 of 2006 and allied matters directing the State Government to reconsider the issue and pass a reasoned order. The order dated 10th January 2007 reads as under:
"1. Heard the learned advocate Mr. S.P. Majmudar appearing on behalf of the petitioners and learned A.G.P. Mr. Dabhi appearing on behalf of the respondent ? State.
2. The grievance of the present petitioners is that respondent authorities are not calculating the D.A. in correct manner and as per the relevant rules and norms in this regard. Therefore, detailed representation has been made by the petitioners to the respondents authorities. However, learned advocate Mr. Majmudar submitted that petitioner will make fresh detailed representation to the Secretary, Finance Department, State of Gujarat within a period of 15 days from the date of receiving the copy of the said order.
3. Learned A.G.P. Mr. Dabhi submitted that as and when the Secretary, Finance Department received the representation from the petitioner, the Secretary, Finance Department will reconsider the matter and will pass appropriate order in accordance with law within some reasonable time.
4. In view of aforesaid submissions made by both the learned advocates Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT appearing on behalf of the respective parties, the question of calculation of D.A. is involved in this matter and dispute is manner of calculation between the parties, therefore, according to my opinion, before deciding the representation of the petitioners, it is better that Secretary, Finance Department may be given a personal hearing to the representatives of the petitioners and then to examine the grievance of the petitioners on the basis of Government Resolution which will be supplied by the petitioners along with the representation and to pass appropriate reasoned order in accordance with law within a period of six weeks from the date of receiving the copy of the representation from the petitioners and communicate the same to the petitioners immediately.
5. In view of above observations and direction, present petition is disposed of without expressing any opinion on merits. Direct service is permitted.
6. However, in case, if, ultimate decision of the respondent authority is against the petitioner, it is open for the petitioners to revive this group of petitions by filing merely a note before the Registry of this Court."
5 The State Government considered the issue and passed an order dated 22nd January 2008 as under:
"(9) Rule 11 of the ChapterIII of GCSR (Additions to Pay) 2002 clarifies that NPPA is not a part of pay.
"11. Kinds of Compensatory Allowances: The following kinds of compensation allowances may be sanctioned by the Government: (1) Compensatory Local Allowances (CLA) (2) House Rent Allowances (HRA) (3) Dangs Allowance (4) NonPracticing Allowance (NPP)"
Thus NPPA forms a part of allowance and allowance does not become a right.
(10) As per Ministry of Finance, Government of India's OM No.F.No.105/1/2004/Industries Commissioner dated 1st March, 2004, it is stated as follows: "The Fifth CPC in para 105.11 of their Report has recommended that 'DA should be converted into Dearness"
Pay each time the CPI increases by 50% over the base index used by the last Pay Commission'.Page 11 of 20
HC-NIC Page 11 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT (2) This recommendation of Fifth ,GPC has been considered and the President is pleased to decide that,with effect from 142004, DA equal to 50% of the existing basic pay shall be 'merged 'with the basic pay and shown distinctly as Dearness Pay (DP) which would be counted for purposes like payment of allowances, transfer, ,grant, retirement benefits, contribution to GPF, Licence Fee, monthly contribution for CGHS, various advances etc. The entitlements for LTC, TA/DA while on tour and transfer and government accommodation shall, however, continue to be governed on the basis of the Basic Pay alone, without taking into account Dearness Pay."
Thus, it can be seen that the Basic Policy level, O.M., of Ministry of Finance, Government of India dated 1.3.2004 clearly states that only Basic Pay should be taken into account for calculation of 50% merger of DA and not the 50% of the Basic Pay and NPPA as is claimed by the petitioners.
(11) ChapterVI of the GCS (Additions to Pay) Rules, 2002 pertains to NPPA. Rule 27 of these Rules reads as under: "37. Nonpracticing Allowance to whom may be granted:
Compensation for loss of private practice may be sanctioned in the term of nonpractice allowance to those medical officers in government service who are not allowed private practice of all kinds (general practice, consulting practice or private laboratory work)".
Thus, NPA is an 'Allowance' and cannot be treated and termed as 'Basic Pay'.
Therefore, the NPPA cannot be merged in Basic Pay, for arriving at Dearness Pay. NPPA cannot be given on the total of the merged NPPA in the Basic Pay as has been done by the GOI. The 50% DA merger has to be the 50% of the Basic Pay only and not of the Basic Pay and full amount of NPPA.
(9) By the G.R. Finance Depart No..../1198/270/CH dated 162005, it was provided that the total of Basic Pay plus Dearness Pay will be taken into account only for the purpose of DA and not for any other allowances such as HRA, CLA & NPA. The doctors had represented that they were getting less emoluments if calculation is done in that manner.Page 12 of 20
HC-NIC Page 12 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT After careful consideration, a GR FD No..../1198/270/CH dated 31805 was issued and according to which the Doctors were also getting the benefit of 50% DA merger, by and large, as equivalent to the other Employees of the State Government.
(10) As per GOI OM dated 8/10/2004, full NPPA is added to the Basic Pay and the 50% amount of the total of it is arrived at as the amount of Dearness Pay and on the Basic Pay plus DP, the 25% NPPA is sanctioned. Thus, the benefit of 25% NPPA is given on the earlier granted NPPA also. Hence, the State Government cannot accept the formula of GOI.
(11) It can be seen from the example in para 6 above that as on 1/4/2005, in the case of a Doctor, with a Basic Pay of Rs.18,000, whose total emoluments were Rs.37,575 before 50% DA merger, got an increase of Rs.1530 (Rs.3910537575=1530) per month, as per provision contained in GR FD dated 31/8/2005. Now in view of the latest status on the subject as per GR FD dated 26/7/2005 the Doctor with a Basic Pay of Rs.18000 would get an increase of Rs.1913 per month, w.e.f. 1/4/2005, which is a higher increase in proportion in comparison with other Employees in different Cadres of the State Government, who are not in receipt of NPPA. This increase will further get augmented in case of the petitioners who are in receipt of NPPA, because they will get HRA, CLA, etc on the total of (i) Basic + (ii) DP + (iii) NPPA and thus the increase in the Total Emoluments of the petitioners would be much more than the increase in Total Emoluments of Government Employees in other Equivalent Cadres of the State Government.
(12) The petitioners have grievance against the formula of calculating their 50% DA merger benefit as per GR FD dated 31.8.2005. However, it was issued only because the State Government had taken the decision to give the benefit of 50% DA merger only on DA and not on other allowances as mentioned in para 4(b) above. Subsequently, the State Government has given the benefit of 50% DA merger on other allowances like HRA, CLA, NPPA with effect from 1.4.2006 and as per the calculations shown in the example given below. Doctors get the benefit of higher increase in comparison to the other Employees of the State Government. Now the latest status regarding 50% DA merger scheme is that the benefit of 50% DA merger with benefit on DA, HRA, CLA, etc. has been made effective from 1.4.2004 as per the provision contained in FD's GR dated 8.6.2007. In view of the above developments and the latest position, now the FD's GR dated 31.8.2005 does not remain in existence at all and as such, there will be no two types of calculations of DA on account of 50% DA merger in the case of petitioners. Thus, the grievance of the petitioners does not survive at all.
Following is an example showing the method of NPPA calculation, on the basis of GOI's OM dated 8.10.2004 and as per Finance Page 13 of 20 HC-NIC Page 13 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT Department's GR dated 26.7.2006 of Government of Gujarat in the case of Doctor drawing a Basic Pay of Rs.18,000/.
(Based on 67% DA as on 1.4.2005)
Position prior to 50% DA Merger
Basic (as on 1/4/2005) 18000
NPPA 25% 4500
DA@67% 15075
Total 37575
Position after 50% DA Merger
(Based on 67% as on 1/4/2005)
ColumnA ColumnB
Calculation as per GOI's OM dated Formula as per GOG's GR of Finance
8/10/2004 Department dated 26/7/2006
Basic 18000 Basic (as on 1/4/2004) 18000
NPPA @!25% of Basic Pay 4500 DP @ 50% of Basic Pay 9000
Total 22500 Sub Total 27000
DP @ 50% of Basic + 11250
NPPA
Basic Pay 18000 NPPA @ 25% of Basic + 6750
DP
DP @ 50% of Basic + 11250
NPPA
29250 Sub Total 33750
NPPA @ 25% of Basic Pay 7313
+ DP
Sub Total 36563
DA @ 17% 5738
DA @ 17% of Basic + DP 6216
+ NPPA
Grand Total 42779 Grand Total 39488
(13) The petitioners have also admitted that the NPPA is not part of Basic Pay but it is being taken into account for calculation of DA. Thus, NPPA is not the Basic Pay. In para 8 above the Rules position has been made clear and accordingly the NPPA cannot be considered as Basic Pay. It can be seen from the OM dated 1/3/2004 of Govt. of India that the DA equal to Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT 50% of the existing Basic Pay should be merged with the Basic Pay and shown distinctively as Dearness Pay. Since NPPA is not the Basic Pay, the 50% or 100% amount of NPPA cannot be included in the Basic Pay. Thus, it cannot be taken into account for the purpose of calculating Dearness Pay. The Govt. of India, vide their OM dated 8/10/2004, has added 100% amount of NPPA into Basic Pay and then 50% of its total is shown as a Dearness Pay. As per the GOI's own OM dated 1/3/04, 50% of the Basic Pay only has to be taken into consideration for the purpose of 50% DA merger. The State Government is of the opinion that 50% of the Basic Pay should be the Dearness Pay for the petitioners as per the formula in ColumnB as shown in the example given in para 12 above. They shall get the 25% NPPA on the total of Basic Pay plus Dearness Pay. Thus, the petitioners will get the benefit of NPPA on their Basic Pay plus Dearness Pay. Therefore, their amount of NPPA is also increasing with reference to their amount of NPPA prior to the date of DA merger. Not only this, but on this enhanced amount of NPPA, they will get DA and other allowances like HRA & CLA. As mentioned in the above example, as on 1/4/05 the total monthly emoluments of the petitioners were Rs.37,575 and now they will get Rs.39,488 and thus there is an increase in their total emoluments of Rs.1913 per month. Since NPPA is not the Basic Pay and as per the Govt. of India OM dated 1/3/2004, only 50% of the Basic Pay has to be considered as Dearness Pay, the State Government has decided the formula as mentioned in ColumnB, which is as per GR, FD dated 26/7/2006.
(14) Thus the State Government's decision, which gives equal treatment in increase of emoluments to the Doctors and other Employees of the State Government in different cadres, is just, fair and reasonable."
6 No affidavitinreply has been filed by the State Government in any of the writ applications.
7 The learned counsel appearing for the writ applicants vehemently submitted that the controversy raised is in a very narrow compass i.e. for the purpose of calculating the Dearness Pay, the Government ought to have calculated the Basic Pay + NonPrivate Practicing Allowance and 50% of that aggregated amount should be paid as the Dearness Pay. It is pointed out that the State Government has adopted mutatis mutandis the principle of merger of 50% Dearness Allowance into the Basic Pay, as provided in the office memorandum issued by the Government of India, Page 15 of 20 HC-NIC Page 15 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT Ministry of Finance, New Delhi dated 6th October 2004.
8 The illustration given in the said office memorandum, according to the learned counsel is just and correct.
9 According to the learned counsel, the following illustration is apt for amending the Government Resolution dated 1st June 2005 with effect from 1st April 2005:
Basic Pay BP 10000
NPA @ 25% of BP 2500
Sub Total (BP + NPA) 12500
Dearness Pay @ 50% of (Pay +NPA) 6250
Sub Total (BP + NPA+DP) 18750
DA @ 41% of 18750 7688
(BP + NPA + DP)
Total 26438
10 One more illustration is sought to be given for amending the
Government Resolution dated 26th June 2005 with effect from 1st April 2006:
Basic Pay BP 10000
NPA @ 25% of Basic Pay 2500
Sub Total (BP + NPA) 12500
Dearness Pay @ 50% of (Pay +NPA) 6250
BP + DP 16250
NPA @ 25% of 16250 (BP + DP) 4063
Sub Total (BP + DP + NPA) 20313
DA @ 41% of 20313 (BP+DP+NPA) 8328
Total 28641
11 The illustration, which is at Annexure: "H", according to the
learned counsel is an erroneous calculation at the end of the Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT Government authorities:
Item Non Medical Officer Medical Officer
Basic Pay - BP 10000 8000
NPA 0 2000
Dearness Pay - DP 5000 4000
Sub Total BP + DP + NPA 14000
DA @ 17% on BP + DP 2550 2040
Emoluments 17550 16040
Net effect '+850 '660
Net % effect on BP + NPA '+8.5% '6.6%
12 One another important aspect which has been highlighted by the
learned counsel appearing for the writ applicants is that after 1st April 2010, the Medical Officers, Class II are being given the benefit by calculating the Basic Pay + N.P.P.A. for calculating the Dearness Allowance and Dearness Pay under the Gujarat Civil Services (Revision of Pay) Rules 2009.
13 Thus, according to the learned counsel, the incorrect calculation is only for the period between 1st April 2004 and 31st March 2009.
14 The learned counsel would submit that the order passed by the State Government is erroneous. The fact recorded in the impugned order is also erroneous. At no point of time, as stated in the impugned order, the Medical Officers admitted that the N.P.P.A. is not a part of the Basic Pay, but is being taken into account for the purpose of calculation of the Dearness Allowance.
15 On the other hand, all the writ applications are vehemently opposed by the learned Assistant Government Pleader appearing for the State Government. The learned A.G.P. would submit that the order Page 17 of 20 HC-NIC Page 17 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT passed by the State Government is in details and has considered all the relevant aspects of the matter. The learned A.G.P. would submit that the N.P.P.A. cannot be included in the Basic Pay. However, the learned A.G.P. fairly conceded that the position after 2009 is once again quite different. He pointed out that the N.P.P.A. is included in the Basic Pay.
16 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicants are entitled to the reliefs as prayed for in the respective writ applications.
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 Non Practicing 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 Page 18 of 20 HC-NIC Page 18 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT scale of pay and would also include the revised NonPracticing Allowance, if any, admissible in 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.
19 In my view, no further adjudication is necessary for the purpose of upholding the claim of the writ applicants.
20 In the result, all the writ applications succeed and are hereby allowed. It is hereby declared that for the period between 1st April 2004 and 31st March 2009, the NonPrivate Practicing Allowance shall be treated as a Basic Pay and shall be calculated along with the Basic Pay for the purpose of determining the Dearness Pay. The authority concerned shall calculate the difference accordingly in the case of each of the Medical Officers and pay the consequential benefits within a period of three months from the date of receipt of this order. Rule is made absolute accordingly.
(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment and order is pronounced, the learned A.G.P. appearing for the State prays for stay of the operation of this judgment. Since the period of three months has been granted to comply with the directions, I see no good reason to stay the operation of this judgment.
Page 19 of 20HC-NIC Page 19 of 20 Created On Sat Oct 22 01:37:21 IST 2016 C/SCA/9615/2006 CAV JUDGMENT The request is, accordingly, declined.
(J.B.PARDIWALA, J.) chandresh Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Oct 22 01:37:21 IST 2016