Gujarat High Court
State Of Gujarat vs Gunvantrai Narmadashankar Vyas on 19 July, 2018
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/LPA/907/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 907 of 2016
In SPECIAL CIVIL APPLICATION NO. 10953 of 2014
With
R/LETTERS PATENT APPEAL NO. 1812 of 2017
In
SPECIAL CIVIL APPLICATION NO. 14364 of 2016
With
R/LETTERS PATENT APPEAL NO. 1816 of 2017
In
SPECIAL CIVIL APPLICATION NO. 13738 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17245 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 17275 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 18114 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
================================================================
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 ?
Page 1 of 34 C/LPA/907/2016 JUDGMENT
STATE OF GUJARAT
Versus
GUNVANTRAI NARMADASHANKAR VYAS
================================================================ Appearance:
MR UTKARSH SHARMA, ASSTT. GOVERNMENT PLEADER(1) for the Appellant - State of Gujarat in all matters Mr. Shalin Mehta, Senior Advocate, learned counsel with Ms. Vidhi Bhatt, learned advocate for the petitioners in Special Civil Application No.17275 of 2016 Mr. K.B. Pujara, learned advocate for the petitioners in Special Civil Application No.17245 of 2016 Mr. Gaurav Mehta, learned advocate for the respondents in the letters patent appeals and for the petitioners in Special Civil Application No.18114 of 2016 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE A.S. SUPEHIA Date : 19/07/2018 ORAL COMMON JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. In Letters Patent Appeal No.907 of 2016, the judgment and order dated 28.3.2016 passed by the learned Single Judge in Special Civil Applications No.10953 of 2014, No.12238 of 2014, is subject matter of challenge, whereas the subject matter of challenge in Letters Patent Appeal No.1812 of 2017 is the judgment and order dated 15.11.2016 passed by the learned Single Judge in Special Civil Application No.14364 of 2016, and the subject matter of challenge in Letters Patent Page 2 of 34 C/LPA/907/2016 JUDGMENT Appeal No.1816 of 2017 and is a separate judgment and order dated 15.11.2016 passed by the learned Single Judge in Special Civil Application No.13738 of 2016. In the judgments dated 15.11.2016, the learned Single Judge has followed the judgment and order dated 28.3.2016 passed by the learned Single Judge in Special Civil Applications No.10953 of 2014 and allied matters. In the writ petitions being Special Civil Applications No.17245 of 2016, No.17275 of 2016 and No.18114 of 2016, the petitioners claim similar reliefs based on the impugned judgment and order.
2. By an order dated 8.11.2009, all the above referred special civil applications were ordered to be listed for hearing together with Letters Patent Appeal No.907 of 2016 and allied matters as similar questions were involved in the appeals as well as the writ petitions and that is how, the letters patent appeals as well as the writ petitions came to be listed for hearing together and were, accordingly, heard together and are disposed of by this common judgment.
3. In Special Civil Application No.10953 of 2014 and other matters, which resulted in the impugned judgment and order dated 28.3.2016, the respondents - original petitioners were Livestock Inspectors (Class-III) and Extension Officers, and prayed for the following reliefs:
"7(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction for quashing and setting aside the illegal, arbitrary, discriminatory action for not deciding / fixing / and releasing the amount of pension and other retirement benefits including 15% NPPA and Page 3 of 34 C/LPA/907/2016 JUDGMENT Your Lordships may be pleased to hold the said action on the part of respondent authority is bad in law.
(C) Your Lordships further be pleased to direct the respondent authorities to decide / to fix and to release the final amount of pension and other retirement benefits as per the Sixth Pay Commission including 15% NPPA in favour of the petitioners. Further, Your Lordships may be pleased to direct the concerned authorities to publish appropriate resolutions with regard to extending benefit of 15% NPPA for which the petitioner are entitled.
(D) Such other and further relief/s which the Honourable Court may deem fit, just and proper be granted in the facts and circumstances of the present case and in the interest of justice;"
4. Similar reliefs were also prayed for by the writ petitioners in Special Civil Applications No.14364 of 2016 and No.13738 of 2016. By the impugned judgment and order dated 28.3.2016, the learned Single Judge has allowed the petitions and directed the respondents to fix the pension of the writ petitioners in accordance with the Sixth Pay Commission recommendations with 15% N.P.P.A. and ordered the same to be treated as a part of the pay scale. It was further ordered that such exercise be completed within a period of one month and the writ petitioners be paid the difference towards the arrears within a period of one month thereafter. It was also directed that the petitioners shall thereafter be paid regular monthly pension accordingly. Following the said judgment and order dated 28.3.2016, the learned Single Judge passed similar directions in Special Civil Applications No.14364 of 2016 and No.13738 of 2016. Being aggrieved, the State of Gujarat and others are in appeal.
5. Special Civil Application No.17245 of 2016 has been filed Page 4 of 34 C/LPA/907/2016 JUDGMENT by, in all, 176 petitioners, who are serving as Livestock Inspectors (earlier known as "Stockman") under the Directorate of Animal Husbandry in the Agriculture and Cooperation Department of the Government of Gujarat, challenging the communication dated 29.9.2014 (Annexure "H" to the petition) whereby the Director of Animal Husbandry has been informed that the Finance Department has not accepted the proposal for granting N.P.P.A. to the employees in the cadre of Livestock Inspectors as per the Fifth Pay Commission, and seeking a direction to the respondents therein to forthwith restore the payment of the Non-Private Practicing Allowance (NPPA) to the petitioners, which was being paid to the petitioners - Livestock Inspectors since 1.6.1971; to direct the respondents to finalise the pay fixation of the petitioners under the Sixth Pay Commission and under the Seventh Pay Commission by including the Non-Private Practicing Allowance (NPPA) therein; to hold and declare and direct that the petitioners are entitled to the Non-Private Practicing Allowance (NPPA) as they had been receiving it since the beginning of their service as a part of their pay; to direct the respondents to maintain parity between the Livestock Inspectors serving at the Panchayat Level and the Livestock Inspectors serving at the State Level, by permitting to charge the fees to the former and by paying the Non-Private Practicing Allowance (NPPA) to the latter, respectively, as has been done all throughout in the past; to direct the respondents to forthwith refund the amount of the Non-Private Practicing Allowance (NPPA) recovered by the respondents from some of the petitioners, without passing any Government resolution and without giving any opportunity of hearing to the concerned original petitioners; and to direct the respondents to pay all the Page 5 of 34 C/LPA/907/2016 JUDGMENT monetary benefits pursuant to the petition to the petitioners along with interest at the rate of 18% per annum.
6. Special Civil Application No.17275 of 2016 has been filed by, in all, 99 petitioners who are serving as a Livestock Inspectors in various offices in the Animal Husbandry Department, challenging the decision of the State Government as conveyed by letter dated 29.9.2014 from the first respondent not to grant Non-Private Practicing Allowance in the revised pay scale of the Sixth Pay Commission recommendations. The petitioners have also challenged the circular dated 20.1.2015 issued by the second respondent therein, ordering recovery of alleged excess paid to the petitioners on account of payment of NPPA.
7. Special Civil Application No.18114 of 2016 has been filed by, in all, 135 petitioners who are serving as Livestock Inspectors in the Animal Husbandry Department. The petitioners therein seek a direction to the respondents to give the effect of 15% NPPA into the Seventh Revision of Pay Scale with effect from 1.1.2016 and seek a further direction to the respondents not to effect any recovery from the petitioners to whom the benefit of 15% NPPA is given till the year 2014.
8. For the sake of convenience, reference is made to the facts as appearing in Special Civil Application No.17245 of 2016.
9. The Directorate of Animal Husbandry is manned by two types of cadres of Livestock Inspectors - (1) at the Panchayat Level/Field Level attached to the Veterinary Page 6 of 34 C/LPA/907/2016 JUDGMENT Dispensaries/Veterinary Aid Centres, who are allowed to do private practice and (2) at the State Level not attached to the Veterinary Dispensaries/Veterinary Aid Centres, who are not allowed to do private practice.
9.1 The Livestock Inspectors who are serving at the Field Level under the Panchayats and are attached to the Veterinary Dispensaries/Veterinary Aid Centres, are allowed to do private practice and therefore, they are not paid Non-Private Practicing Allowance (hereinafter referred to as "the NPPA"), but are permitted to charge fees at the rates prescribed by the State Government from time to time. In this connection, the State Government has issued various Government resolutions dated 17.1.1969, 1.7.1991, 9.7.2003, 11.2.2013, 20.2.2013, 28.11.2013, 22.6.2015, 7.7.2015, 17.7.2015, etc. The post of Livestock Inspector was earlier known as "Stockman" and it was re-designated as "Livestock Inspector" by Government resolution dated 7.5.1971.
9.2 The Livestock Inspectors, like the petitioners, who are serving at the State Level are not attached to any such Veterinary Dispensaries/Veterinary Aid Centres, and they are not allowed to do private practice and are, therefore, compensated by payment of NPPA per month at the rates prescribed by the State Government from time to time vide Government resolutions dated 23.7.1971, 20.12.1975, 16.4.1980, 26.6.1989, 8.10.1991, 22.6.1999, etc. 9.3 By a Government resolution dated 22.6.1999, it was decided that 15% of the basic pay shall be paid as NPPA in the Fifth Pay commission with effect from 1.1.1996. The NPPA has Page 7 of 34 C/LPA/907/2016 JUDGMENT been considered as "pay" for the purposes of service, that is, it is considered to be the "pay" for the purposes of Dearness Allowance and Travelling Allowance and for retirement benefits.
9.4 The last such revision of the NPPA was made by the Government resolution dated 22.6.1999 with effect from 1.1.1996, whereby it was decided that the Livestock Inspectors shall be paid the NPPA at the rate of 15% of basic pay in the revised pay scales. Accordingly, all the Livestock Inspectors, including the present petitioners, received the NPPA in the revised pay scales from 1.1.1996. Thereafter, with effect from 1.1.2006, the State Government implemented the Sixth Pay Commission for all its employees vide Government resolution dated 12.2.2009 and notification dated 27.2.2009 being the Gujarat Civil Services (Revision of Pay) Rules, 2009.
9.5 In paragraph 7(1)(B) of the notification dated 27.2.2009, the following provision has been made with regard to the Government employees who are in receipt of Non-Practicing Allowance:
"In the case of Government employees who are in receipt of non-practicing allowance, the pay in the 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 revised pay band, and in such cases, non- practicing allowance at the new rates shall be drawn Page 8 of 34 C/LPA/907/2016 JUDGMENT with effect from 1st day of January, 2006 or the date of option for revised pay structure, in addition to the pay so fixed in the revised pay structure."
9.6 Accordingly, all the Livestock Inspectors, including the petitioners, continued to receive the NPPA in the revised pay scales from 1.1.2006 onwards.
9.7 It is further the case of the petitioners that no separate Government resolution was required to be issued for paying the NPPA under the Sixth Pay Commission in view of the said clear provision made in paragraph 7(1)(B) of the said notification dated 27.2.2009 issued by the Finance Department.
9.8 A large number of Livestock Inspectors who retired after 1.1.2006 and who had continued to receive the NPPA at the rate of 15% of their basic pay as aforesaid, had the NPPA as a part of their Last Pay Certificate, and they were paid their retirement benefits also on that basis.
9.9 It is the case of the petitioners that the respondents have illegally and wrongfully withheld and stopped paying the NPPA to the petitioners, without giving them any opportunity of hearing and without passing any specific orders with regard to the petitioners. Being aggrieved, the petitioners have filed the above referred petitions seeking the reliefs noted hereinabove.
10. Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing on behalf of the appellants in all the letters patent appeals, submitted that fixation and determination of Page 9 of 34 C/LPA/907/2016 JUDGMENT allowances and the viability of paying them is exclusively within the functional domain of the State Government. The State Government while taking a decision, as a matter of policy, undertakes consideration of a variety of factors including the financial viability etc. for payment of such allowances. Thus, a decision to determine/pay allowances is an expert function of the State Government. Under the circumstances, this court while exercising its writ jurisdiction would normally refrain from interfering with the decision of experts, particularly of the nature which was subject matter of the petitions. It was submitted that the decision of the State Government to exclude the petitioners and similarly situated persons from grant of NPPA was a policy decision and that such decision could not have been challenged by the petitioners who had no valid grounds to challenge such decision of the State Government. It was submitted that non-grant of NPPA was on account of a policy decision of the State Government and that the insistence of the Local Fund Office in objecting to the grant of revision was on account of there being a policy specifying that NPPA was to be granted only to Class-I and Class-II Veterinary Officers having prescribed educational qualifications as per the Government Resolution dated 3.10.2012 and that the petitioners who do not belong to the class of employees to whom the payment of NPPA could be made, the revision of pay was rightly denied to them. It was urged that therefore, the learned Single Judge was not justified in granting the revision of pay scale on the basis of the NPPA as the same would be opposed to the policy of the State Government.
10.1 It was further submitted that upon the coming into force Page 10 of 34 C/LPA/907/2016 JUDGMENT of the Indian Veterinary Council Act, 1984, it was only the Veterinary Officers possessing graduation degree as prescribed therein could practice in veterinary science. However, by virtue of clause (b) of section 30 of the said Act, the State Governments were empowered to recognize services of non- graduates undertaking veterinary jobs as 'Minor veterinary services". Accordingly, the Gujarat Veterinary Council Act came into existence and resultantly, "minor veterinary services" came into existence, which were defined in the Government resolution dated 19.11.2012. It was submitted that a conjoint reading of the above provisions would indicate that the services rendered by the Livestock Inspectors would fall within the ambit of "minor veterinary services" and therefore, Livestock Inspectors could not be said to be in the practice of Veterinary Medicine. According to the learned Assistant Government Pleader, since the Livestock Inspectors were only permitted to render services under the supervision of a registered practitioner, they could not be said to be in the practice of Veterinary Medicine, and, therefore, there was no good reason for paying NPPA to them. It was submitted that therefore, the State Government has rightly discontinued the payment of NPPA to them.
10.2 It was further submitted that by discontinuing the payment of NPPA to the petitioners and similarly situated persons, substantial financial burden could be averted. The State Government, in its functional capacity, in the interest of the State exchequer, was empowered to take decision and that it was in the interest of public policy to lay off a substantial burden from the State exchequer.
10.3 It was also submitted that merely because identically Page 11 of 34 C/LPA/907/2016 JUDGMENT circumstanced persons were paid the benefit of NPPA is no ground for the petitioners to claim such benefits as the benefits had wrongly been granted to the other similarly circumstanced persons.
10.4 Next, it was submitted that the Government had taken a conscious decision to pay NPPA only to officers who hold a degree, therefore, all throughout they are given benefits under another scheme. It was submitted that prior to withdrawal of the benefit of the NPPA, a complete comprehensive exercise was conducted to see whether or not to grant the NPPA to the Livestock Inspectors and that it was found that in the other States in the country, there is no practice of giving the benefit of NPPA and hence, a conscious decision was taken not to grant the NPPA to the Livestock Inspectors.
10.5 It was further submitted that insofar as the applicability of rule 7(1)(B) of the ROP Rules is concerned, payment of NPPA has to be read with eligibility. It can be given only to those who are otherwise entitled. It was submitted that the NPPA is an allowance and not a basic entitlement and, therefore, it has an independent existence. It was submitted that while applying the pay scales under the new Pay Commission recommendations, the old resolutions do not continue to operate. It was urged that the impugned judgment and order is not a reasoned one and that having regard to the facts and circumstances of the case, the learned Single Judge was not justified in allowing the petitions and granting benefits of NPPA to the petitioners.
11. Mr. Shalin Mehta, Senior Advocate, learned counsel with Ms. Vidhi Bhatt, learned advocate for the petitioners in Special Page 12 of 34 C/LPA/907/2016 JUDGMENT Civil Application No.17275 of 2016 invited the attention of the court to various Government resolutions and circulars issued from time to time granting the benefit of NPPA to the Livestock Inspectors. It was submitted that it is a deeply entrenched practice of the State Government to pay Livestock Inspectors this kind of compensatory allowance because they are losing their private practice. This practice has become a rule under the Revision of Pay Rules framed under Article 309 of the Constitution of India. According to the learned counsel, a rule framed under Article 309 of the Constitution can be varied only by another Article 309 rule and that the respondents have no authority in law to withdraw the benefit granted under an Article 309 rule except by framing another such rule.
11.1 It was submitted that denying the petitioners the benefit of NPPA amounts to invidious discrimination between two sets of Livestock Inspectors - viz. those employed by the District Panchayats who are allowed private practice and those who are employed by the Animal Husbandry Department and are debarred from private practice. It was submitted that it was in view of the fact that the second set of Livestock Inspectors were barred from private practice that they were given compensatory allowance in the nature of NPPA and that denial of NPPA to the petitioners is violative of their fundamental right under Article 14 of the Constitution of India and is arbitrary and capricious and suffers from the vice of non-application of mind.
11.2 It was urged that it has all along been the policy of the Government to grant NPPA to Livestock Inspectors and Veterinary Class I and II Officers in lieu of loss of private practice right from 1971. This policy of the Government has Page 13 of 34 C/LPA/907/2016 JUDGMENT given rise to a substantial legitimate expectation that it would be continued unabated from time to time. Now, the Government, by the impugned letter dated 29.9.2014, has decided to depart from this existing policy in relation to Livestock Inspectors, viz., the petitioners herein, while otherwise preserving the policy intact in respect of Veterinary Class I and Class II Officers. It was contended that in this case, the basic precept that like cases should be treated alike, is clearly infringed in violation of Articles 14 and 16 of the Constitution of India.
11.3 Mr. Mehta further submitted that NPPA is granted in lieu of loss of practice and consequently, loss of pay. Viewed thus, it forms part of their pay, denial of which amounts to reduction in pay which is unlawful. It was, accordingly, argued that the action on the part of the respondent authorities in denying the petitioners the NPPA, which they have all along been getting as their pay, is violative of their right to life under Article 21 of the Constitution of India.
11.4 It was emphatically argued that the petitioners have a legitimate expectation which can be destroyed by a law, whereas in the present case, this benefit which has been granted for forty years is sought to be destroyed by a mere letter and that no cogent reason has been put forth as to why there was a change of policy.
11.5 Insofar as recovery of the NPPA already paid to the petitioners is concerned, reliance was placed upon the decision of the Supreme Court in the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334, wherein it was held that the employees in lower rung of service would spend their entire Page 14 of 34 C/LPA/907/2016 JUDGMENT earning in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. Therefore, employees belonging to the lower rungs (that is Class III and Class IV - sometimes denoted as Group C and Group D), should not be subjected to the ordeal of any recovery, even though they were beneficiaries of higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India.
12. Mr. K.B. Pujara, learned advocate appearing for the petitioners in Special Civil Application No.17245 of 2016 submitted that as per the policy of the State Government as reflected from the Government resolutions annexed along with the petitions, those Livestock Inspectors who are serving at the Field Level under the Panchayat and who are attached to the Veterinary Dispensaries/Veterinary Aid Centres, are permitted to do private practice and therefore, they are allowed to charge fees as prescribed by the State Government and those Livestock Inspectors, like the present petitioners, who are serving at the State Level and who are not attached to any Veterinary Dispensaries/Veterinary Aid Centres, are compensated by paying the NPPA at the rates prescribed by the State Government. Therefore, as long as the Livestock Inspectors employed at the Field Level who are attached to the Veterinary Dispensaries/Veterinary Aid Centres are permitted to do the private practice and are allowed to charge the fees as prescribed by the State Government, the respondents are duty bound to compensate the Livestock Inspectors employed at the State Level who are not attached to the Veterinary Dispensaries/Veterinary Aid Centres and who are not allowed Page 15 of 34 C/LPA/907/2016 JUDGMENT to do the private practice, by paying them the NPPA as a compensatory allowance, otherwise, it becomes a clear case of discrimination and arbitrary treatment in gross violation of Articles 14 and 16 of the Constitution of India.
12.1 The learned counsel pointed out that the respondents have continued to allow the Livestock Inspectors employed at the Field Level who are attached to the Veterinary Dispensaries/Veterinary Aid Centres to carry on private practice and to charge the fees as prescribed by the State Government, but the respondents have suddenly stopped paying NPPA to the petitioners without there being any change in the factual situation and without any rational basis, thereby, giving wholly arbitrary and discriminatory treatment to the petitioners, in violation of Articles 14 and 16 of the Constitution of India.
12.2 Referring to the Government Resolution dated 23rd July, 1971 regarding grant of compensation to Stockmen of Animal Husbandry Department, it was submitted that this Government resolution has been issued in the name of the Governor in exercise of executive powers under Article 166 of the Constitution of India. This resolution has been consistently followed thereafter with the concurrence of the Finance Department till it was made part of the rules. It was submitted that till it was made part of the ROP Rules, a separate resolution was issued; however, now the NPPA forms part of the ROP Rules made under article 309 of the Constitution of India and hence, there is no need to issue a separate resolution.
12.3 The attention of the court was invited to the Government Page 16 of 34 C/LPA/907/2016 JUDGMENT Resolution dated 22.6.1999 (page 67), to point out that in terms of the said resolution, the NPPA is considered to be pay for the purposes of all service related matters and pension. Reference was made to the Gujarat Civil Services (Revision of Pay) Rules, 2009, which came to be issued vide notification dated 27th February, 2009 with effect from 1st January, 2006 and more particularly clause (B) of sub-rule (1) of rule 7 thereof, which provides for fixation of initial pay in the revised pay structure, to submit that after the above ROP Rules came into existence, there was no question of issuing any Government resolution for granting the benefit of NPPA to the original petitioners as the same was covered under the rules.
12.4 Referring to the Government Resolution dated 3rd October, 2012 (Annexure VI, page 290), which is made the basis for denial of the NPPA to the original petitioners on the ground that no Government resolution has been issued in respect of the Livestock Inspectors, etc., it was submitted that the same provides that the Non-Private Practicing Allowance (NPPA) may continue to be paid to the Veterinary Officers of Gujarat Animal Service under Animal Husbandry Department 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/- for the period 1.1.2006 to 11.4.2012 and Rs.85,000/- with effect from 12.4.2012. According to the learned counsel, this Government resolution does not introduce NPPA, but limits the NPPA to the aforesaid extent. It was submitted that while no Government resolution was required to be issued for grant of NPPA in view of inclusion thereof in the ROP Rules, in case of Class I Officers, the Government resolution was required to be issued to limit the entitlement of the NPPA to the aforesaid extent.
Page 17 of 34C/LPA/907/2016 JUDGMENT 12.5 Mr. Pujara further submitted that the impact of the deletion of NPPA is that something which was given by way of an executive decision of the Government is taken away without any decision of the Government. It was argued that the notings on file are of no consequence and that as there is no decision to withdraw the NPPA which now forms part of the rules, the respondents have no authority to discontinue it.
12.6 Referring to paragraph 8 of the affidavit-in-reply of the second respondent, wherein it has been stated that the pension case of the petitioners in Special Civil Application No.10953 of 2014 was under consideration and pay verification audit committee raised objection regarding 15% NPPA benefit in pay fixation with reason that there was absence of separate Government resolution to grant 15% NPPA, it was submitted that merely because there is an audit objection, is no ground for discontinuance of the NPPA which was validly granted to the petitioners. It was, accordingly, urged that the impugned judgment and order dated 28.3.2016 passed by the learned Single Judge in Special Civil Application No.10953 of 2014 and allied matters, is just, legal and proper and that the petitioners are entitled to the benefits of NPPA, as has been held in that decision.
13. Mr. Gaurav Mehta, learned advocate appearing for the respondents in the letters patent appeals and for the petitioners in Special Civil Application No.18114 of 2016, adopted the submissions advanced by the Mr. Shalin Mehta and Mr. K.B. Pujara.
14. In rejoinder, Mr. Utkarsh Sharma, learned Assistant Page 18 of 34 C/LPA/907/2016 JUDGMENT Government Pleader submitted that rule 7(1)(B) of the ROP Rules does not confer the benefit of NPPA, but applies in the case of Government employees who are in receipt of non- practicing allowance, inasmuch as, in case where the employees are in receipt of NPPA, revised pay structure is to be fixed in accordance therewith. Therefore, the rule presupposes that there is an earlier entitlement to NPPA, in which case, the rule operates. It was submitted that in the present case, since no Government resolution has been issued granting benefit of NPPA under the new pay commission recommendations, rule 7(1)(B) of the rules would have no applicability.
14.1 According to the learned Assistant Government Pleader, with every pay revision, a specific Government resolution is being issued and that with every pay revision, the life of the Government resolution granting NPPA comes to an end; and that since no Government resolution having been issued in relation to the present Pay Commission recommendations, the question of applicability of rule 7(1)(B) of the ROP Rules would not arise.
15. In rejoinder, Mr. K.B. Pujara, learned counsel for the petitioners placed reliance upon the decision of the Supreme Court in the case of Shanti Sports Club and another v. Union of India and others, (2009) 15 SCC 705, to submit that once a policy is laid down, unless it is rescinded by the Government by a policy of a like nature, namely, another resolution issued in the name of the Governor, it continues to operate, therefore, the question of issuance of a fresh Government resolution in relation to the subsequent Pay Page 19 of 34 C/LPA/907/2016 JUDGMENT Commission recommendations would not arise .
16. The undisputed facts are that the petitioners in each of these matters are or were working as Livestock Inspectors in the Animal Husbandry Department of the State Government. In view of the fact that similarly situated employees in the District Panchayats were permitted private practice in terms of the fees fixed by the State Government, with a view to maintain parity, it was decided to grant non-private practice allowance to the Livestock Inspectors working with the Animal Husbandry Department of the State Government who were prohibited from carrying on any private practice. The NPPA was introduced for the first time by a resolution dated 16.4.1980 and vide resolutions passed from time to time, the amount of NPPA came to be increased. On 22.6.1999, the State Government issued a resolution, the relevant part whereof as translated into English reads thus:
"Government Resolution dated 22.6.1999 issued under orders of and in the name of the Governor and with the concurrence of the Finance Department.
For the purpose of discharging essential and basic work for animal husbandry and primary treatment to animals in the State of Gujarat, the Animal Husbandry Department appoints candidates who have undergone a two year certificate course for Livestock Inspectors, as Livestock Inspectors. These employees have overall general knowledge about animal husbandry as well as primary treatment to animals and in this manner, they are also able to discharge duties to assist in complicated Page 20 of 34 C/LPA/907/2016 JUDGMENT cases under the supervision of the veterinary authorities. Those employees who are discharging duties under the Primary Veterinary Centres under the District Panchayats are permitted to carry on private practice and necessary increase has been made in their fees. However, those employees who have been appointed for other duties of animal husbandry in the Animal Husbandry Department are barred from carrying on private practice. Hence, for those Livestock Inspectors and Development Officers (Animal Husbandry) who do not have permission to carry on private practice, a Non-Private Practice Allowance has been sanctioned vide the resolutions at reference (1) and (2) whereby Non-Private Practice Allowance of Rs.100 with effect from 1.1.86 and Rs.200 with effect from 1.1.96 had been sanctioned. With effect from 1.1.96, the new pay scales have come into force and it was under
the consideration of the Government to sanction "Non- Private Practice Allowance" to those employees of the Animal Husbandry Department who possessed the above educational qualification.
Resolved:
After due consideration, the employees working under the Animal Husbandry Department of the State Government or have gone on deputation to other institutions like District Panchayats, Commission/ Board or District Development agencies and are not permitted to carry on private practice and who possess the educational qualification of certificate course of Live Stock Inspector from the Animal Husbandry Department/ Page 21 of 34 C/LPA/907/2016 JUDGMENT Gujarat Agriculture University, the Government hereby resolves to sanction non-private practice allowance at the rate of 25% of the basic pay in the amended pay scales for such employees who have been appointed as Livestock Inspectors as well as those who have been promoted from the post of Livestock Inspectors to the post of Extension Officers.
2. Non-private practice allowance shall be considered as pay for the purpose of all service related matters and pension.
3.xxx to 5 xx
6. This resolution has been issued with the approval of the Finance Department by noting dated 06.06.1999 on the file of this department bearing the same serial number."
17. Thereafter, in exercise of powers under article 309 of the Constitution of India, the Governor of Gujarat made rules called the Gujarat Civil Services (Revision of Pay) Rules, 2009 (hereinafter referred to as "the ROP Rules"), which are deemed to have come into force with effect from 1st January, 2006. Rule 7 of the ROP Rules provides for fixation of initial pay in the revised pay structure. Clause (B) of sub-rule (1) of rule 7 of the ROP Rules reads thus":
"(B) In the case of Government employees who are in receipt of non-practicing allowance, the pay in the revised pay structure shall be fixed in accordance with Page 22 of 34 C/LPA/907/2016 JUDGMENT 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 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 the date of option for revised pay structure, in addition to the pay so fixed in the revised pay structure."
18. Thus, by virtue of clause (B) of sub-rule (1) of rule 7 of the ROP Rules, in case of those Government employees who were in receipt of non-practicing allowance, their pay in the revised pay structure was to be fixed in accordance with the provisions of clause (A), except that, in such cases, the pre- revised dearness allowance appropriate to the non-practicing allowance was admissible in the manner provided in the said rules. Therefore, in view of the ROP Rules, those who were getting NPPA were entitled to addition of the same as provided in rule 7(1)(B) of the ROP Rules. Thus, once there was a provision in the statute for addition of NPPA while fixing the pay, the necessity of issuing a Government Resolution in this regard was obviated. Nonetheless, it appears that the petitioners were under an impression that there is a need for issuance of such Government resolution upon the Sixth Pay Commission coming into force and accordingly, they made representations to the respondents, which ultimately came to be rejected as the Finance Department took a decision to discontinue with the grant of NPPA.
19. It may be pertinent to note that prior to taking away such Page 23 of 34 C/LPA/907/2016 JUDGMENT benefit, no opportunity of hearing had been granted to the petitioners nor were they put to notice, nor have any valid and substantial reasons been given for withdrawal of the benefit of NPPA. As discussed hereinabove, after the above ROP Rules came into existence, there was no question of issuing any Government resolution for granting the benefit of NPPA to the original petitioners inasmuch as, those who were getting NPPA were entitled for their revised pay structure to be fixed in terms of the sub-rule. On the contrary, in case the Government desired to withdraw the benefit of NPPA to the petitioners, a specific Government resolution was required to be issued and the rule 7(1)(B) of the ROP Rules was also required to be amended.
20. Insofar as reference to the Government Resolution dated 3rd October, 2012 to emphasize that where the Government had the intention of granting benefit of NPPA a specific Government resolution was issued is concerned, it is noticed that the heading of the Government Resolution dated 3rd October, 2012 reads thus: "Sixth Central Pay Commission - Revision of rates of Non-Private Practicing Allowance (N.P.P.A.) being paid to Veterinary Officers of Gujarat Animal Service." Thus, the Government resolution does not specifically sanction the inclusion of NPPA with pay but has been issued with the purpose of revising the rates of NPPA being paid to Veterinary Officers. Accordingly, the Government resolution while continuing the old rate of NPPA, viz. 25% of the Basic Pay, has limited the entitlement thereto so long as it does not exceed Rs.75,500/- for the period 1.1.2006 to 11.4.2002 and Rs.85,000/- with effect from 12.4.2012. Therefore, it is not as if the Veterinary Officers have been granted the benefit of NPPA Page 24 of 34 C/LPA/907/2016 JUDGMENT under the said resolution, which has been issued merely for revising the rate of NPPA and accordingly restricts the benefit of the NPPA to which they were already entitled to the extent provided therein.
21. It may also be noted that even in the year 2015, vide amended resolution dated 22.6.2015, there is a provision for recovery of fees by Veterinary Officers and Livestock Inspectors who are entitled to recover fees for private practice. Thus, the Government has continued the practice of permitting the Livestock Inspectors who are employed with the District Panchayats etc. to continue with the practice of recovering fees for private practice while seeking to discontinue the benefit of NPPA to the petitioners and similarly situated persons.
22. As rightly contended by the learned counsel for the petitioners, the NPPA has been granted to the petitioners under various resolutions issued by the Government in the name of the Governor. It is an admitted fact position that no Government resolution revising the rate of NPPA has been issued, nor has any Government resolution withdrawing the NPPA granted earlier to the petitioners been issued. Merely on the basis of the impugned letter dated 29.9.2014 issued by the Under Secretary, Agriculture and Cooperation Department informing that the Finance Department has not accepted the proposal for grant of NPPA in terms of the Fifth Pay Commission, pursuant to which a circular dated 1.10.2014 came to be issued by the Director, Animal Husbandry Department, the benefit of the NPPA is sought to be denied mainly on the ground that the audit department has not Page 25 of 34 C/LPA/907/2016 JUDGMENT approved of the grant of NPPA to the Livestock Inspectors as no separate Government resolution as has been issued in the case of Class I and Class II Veterinary Officers, been issued in the case of the Livestock Inspectors. Thus, a benefit given initially by virtue of a Government resolution and subsequently under the ROP Rules is sought to be denied by issuance of a mere circular issued by the Director of Animal Husbandry. Having regard to the fact that the Government resolution giving the benefit of NPPA to the petitioners and similarly situated persons has been issued in the name of the Governor in the exercise of powers conferred by article 166 of the Constitution, such benefit can be withdrawn only in a like manner. The circular dated 1.10.2014 issued by the Director of Animal Husbandry on the basis of the communication dated 29.09.2014 of the Agriculture and Cooperation Department stating that the Finance Department has not accepted the proposal for grant of NPPA to the Livestock Inspectors, would not override the Government resolution issued in exercise of powers under article 166 of the Constitution of India and has no efficacy in the eye of law. Under the circumstances, the petitioners cannot be denied the benefit of NPPA on the basis of the circular dated 1.10.2014 issued by the Director of Animal Husbandry.
23. Insofar as the contention that such decision has been taken with a view to decrease the financial burden on the public exchequer is concerned, the respondents are not justified in singling out one category of employees for the purpose of reduction of the financial burden. Besides, except for a bare assertion in the affidavit in reply, there is no material in support of such contention. Moreover, before taking away a Page 26 of 34 C/LPA/907/2016 JUDGMENT benefit which has been granted since long and has been inuring for the benefit of the petitioners since decades, cannot be taken away in this manner by simply saying that no new Government resolution has been issued granting them the benefit of NPPA and that a decision has been taken not to continue with the practice of granting NPPA to the petitioners, despite the fact that the Government continues to issue new Government resolutions revising the fees that may be recovered by similarly situated employees in the Panchayats who are permitted to carry on private practice. Thus, by denying the benefit of NPPA, the Government is discriminating between two classes of employees who are otherwise similarly situated. The action of the Government is bad on this count also.
24. It may also be noted that vide Government resolution dated 20th December, 1975, it is stated that the recommendations of the Second Pay Commission regarding grant of Non-Private Practicing Allowance to Veterinary Officers and Livestock Inspectors (not attached to Veterinary Dispensaries) were under consideration of the Government and that the Government has decided to accept the recommendations in this respect. Thus, once such recommendation has been accepted by the Government and even implemented, the benefit thereof could not have been withdrawn without following due procedure in accordance with law.
25. In the light of the above discussion, it clearly emerges that while the benefit of NPPA had been granted to the Livestock Inspectors by executive instructions issued in the Page 27 of 34 C/LPA/907/2016 JUDGMENT name of the Governor in exercise of powers under article 166 of the Constitution of India, which subsequently came to be made part of the Revision of Pay Rules, the benefit of NPPA is sought to be withdrawn merely on the basis of a communication of one department to another department stating that the Finance Department has not accepted the proposals for grant of NPPA to the Livestock Inspectors. In the opinion of this court, as rightly submitted by the learned counsel for the petitioners, the executive decision which has been taken in the name of the Governor cannot be taken away without another similar decision being taken for withdrawal of the benefits granted earlier. Moreover, no specific decision has been taken to withdraw the NPPA and it appears that such decision is taken only on the files of the department. In Shanti Sports Club v. Union of India (supra) the Supreme Court held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual and that by no stretch of imagination, such noting can be treated as a decision of the Government. The court held that even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Article 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting the rights of parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/overruled or overturned and the court cannot take Page 28 of 34 C/LPA/907/2016 JUDGMENT cognizance of the earlier noting or decision for exercise of powers of judicial review. Thus, in the absence of an order expressed in the name of the Governor and authenticated in the manner provided in article 166(2) of the Constitution, the petitioners cannot be denied the benefit of NPPA which was granted by virtue of an order under article 166 of the Constitution and subsequently incorporated in the ROP Rules framed in exercise of powers under article 309.
26. In the opinion of this court there was a legitimate expectation on the part of the petitioners that they are entitled to the benefit of NPPA which has been given to them since decades. It is by now well settled that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. [see Union of India v. Hindustan development Corpn., (1993) 3 SCC 499] . It was further held in the above decision that the protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest. In the facts of the present case, except for a mere assertion in the affidavit-in-reply there is nothing to show that any decision was taken for some overriding public interest to withdraw the benefit of NPPA that Page 29 of 34 C/LPA/907/2016 JUDGMENT was being given to the petitioners. In fact as noted hereinabove, there is no decision worth the name and what is sought to be relied upon to deny the benefit of NPPA to the petitioners is merely a noting on the file, that too, pursuant to an objection raised by the audit department.
27. A contention has been raised on behalf of the State authorities that upon the coming into force of the Gujarat Veterinary Council Act, 1984 'minor veterinary services' came into existence and that as the services of the Livestock Inspectors fall within the ambit of 'minor veterinary services' and they were permitted to render the services under the supervision of a registered Practitioner, they could not be said to be in the practice of Veterinary Medicine and therefore there was no good reason to pay NPPA to them. In this regard it may be noted that the Indian Veterinary Council Act, 1984 has been enforced in the State of Gujarat from 15.1.2000 by a notification of Government of India. Section 30 of the said Act, which is relevant for the present purpose reads thus:
30. Right of persons who are enrolled on the Indian veterinary practitioners register.--No person, other than a registered veterinary practitioner, shall--
(a) hold office as veterinary physician or surgeon or any other like office (by whatever name called) in Government or in any institution maintained by a local or other authority;
(b) practice veterinary medicine in any State:
Provided that the State Government may, by order, permit a person holding a diploma or certificate of veterinary supervisor, stockman or stock assistant (by whatever name called) issued by the Directorate of Animal Husbandry (by whatever name called) of any State or any veterinary institution in India, to render, under the supervision and direction of a registered veterinary practitioner, minor veterinary services.Page 30 of 34
C/LPA/907/2016 JUDGMENT Explanation.--"Minor veterinary services" means the rendering of preliminary veterinary aid, like, vaccination, castration, and dressing of wounds, and such other types of preliminary aid or the treatment of such ailments as the State Government may, by notification in the Official Gazette, specify in this behalf;
(c) be entitled to sign or authenticate a veterinary health certificate or any other certificate required by any law to be signed or authenticated by a duly qualified veterinary practitioner;
(d) be entitled to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 (1 of 1872), on any matter relating to veterinary medicine.
Thus, section 30 of the Indian Veterinary Council Act, 1984 bars persons other than registered veterinary practitioners from practising veterinary medicine. The proviso thereto, however, carves out an exception and permits persons holding a diploma or certificate of veterinary supervisor, stockman or stock assistant issued by the Directorate of Animal Husbandry of any State or any veterinary institution in India to render minor veterinary services under the supervision and direction of a registered veterinary practitioner. Vide notification dated 29th November, 2012 the State Government, in exercise of powers conferred by the explanation to Clause
(b) of section 30 of the Indian Veterinary Council Act, 1984 has specified minor veterinary services for the purposes of the Act and has permitted a person holding a diploma or certificate of Veterinary Supervisor, Stock man, Stock Assistant or Livestock Inspector (by whatever name called) issued by the Directorate of Animal Husbandry of any State, or any Veterinary Institution in India to render the Minor Veterinary Services mentioned therein under the supervision and direction of a registered Veterinary Practitioner. On behalf of the State Government Page 31 of 34 C/LPA/907/2016 JUDGMENT nothing has been shown to indicate as to what is the difference in the nature of services that the petitioners were permitted to discharge prior to the State Government specifying the nature of minor veterinary services, to demonstrate the difference in the situation prior to and after such services having been specified. Moreover, the Indian Veterinary Council Act came to be adopted by the State of Gujarat in January, 1999, despite which the benefit of non-private practicing allowance continued to be granted to the petitioners. Thus, nothing substantial has been pointed out on behalf of the State authorities as to how by virtue of specification of minor veterinary services, the Livestock Inspectors are no longer entitled to carry on private practice and therefore, the petitioners who are not permitted to carry on private practice are no longer entitled to the benefit of NPPA. Moreover, it is not even the case of the State authorities that Livestock Inspectors in the District Panchayats, etc. who were permitted to carry on private practice are no longer permitted to do so after minor veterinary services came to be specified. The contention that in view of minor veterinary services having been specified, the petitioners are not entitled to NPPA, therefore, does not merit acceptance.
28. The substratum of the controversy arising in the captioned matters is the objection raised by the audit department in fixation and grant of the NPPA. Such an abrupt action has jeopardised the pension and retirement benefits of the Live Stock Inspectors who have retired from service. During their entire service tenure, no objection was taken by the local fund audit and their pay was revised and fixed with the Page 32 of 34 C/LPA/907/2016 JUDGMENT approval of the audit department and the heads of the department. Accordingly, the pension and the retirement benefits were also fixed on that basis. Thus, such an action of the audit department needs to be strictly deprecated. The pay scale/pension of the employees cannot be refixed/reduced by the audit department arbitrarily. The learned Single Judge was, therefore, wholly justified in holding that the petitioners are entitled to the benefit of NPPA.
29. For the foregoing reasons, this court does not find any infirmity in the impugned judgment and order dated 28.3.2016 passed by the learned Single Judge in Special Civil Applications No.10953 of 2014, No.12238 of 2014, warranting interference. The letters patent appeals, therefore, fail and are, accordingly, dismissed. The judgment and order passed by the learned Single Judge shall be complied with within a period of four weeks from the date of receipt of a copy of this order.
30. In the light of the above discussion, Special Civil Applications No.17245 of 2016, 17275 of 2016 and 18114 of 2016 are hereby allowed. The impugned communication dated 29.9.2014 as well as the circular dated 20.1.2015 are hereby quashed and set aside. The respondents are hereby directed to give the benefit of 15% NPPA on revised pay under Sixth Pay Commission and Seventh Pay Commission. The payment of Non-Private Practicing Allowance (NPPA) to the petitioners shall be restored and their pay scale/pension shall be refixed and paid accordingly. The recovery of the amount towards NPPA is quashed and set aside, and any amount which is recovered from some of the petitioners shall be refunded. The entire exercise of refixing the pay/pension and payment of difference of such amount shall be carried out within a period of four Page 33 of 34 C/LPA/907/2016 JUDGMENT weeks from the date of receipt of a copy of the judgment. Rule is made absolute accordingly in each of the petitions, with no order as to costs.
(HARSHA DEVANI, J) (A. S. SUPEHIA, J) B.U. PARMAR Page 34 of 34