Judgment :-

G.S. Singhvi, J.

1. Leave granted.

2. Whether final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher Courts is one of the questions which would require consideration in these appeals filed against order dated 16.10.2010 of the Division Bench of the Delhi High Court whereby the writ petitions filed by the appellants questioning the correctness of order dated September 12, 2008 passed by the Central Administrative Tribunal, Principal Bench (for short, ‘the Tribunal’) were dismissed. The other question which calls for determination is whether Non Practising Allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other Departments of the Government, who retired from service prior to 1.1.1996 is to be added to their basic pay for calculation of pension payable to them.

3. The appellants are the doctors or the legal representatives of the deceased doctors, who were employed in the Central Health Services, Government of India or the Railways and were paid NPA as part of their monthly pay in lieu of private practice, availability of less promotional avenues and late entry in the service. Initially, NPA was paid at a fixed rate commensurate with the rank of the doctors and their pay scale. The same formula was adopted by successive Pay Commission. The 5th Pay Commission revised the formula of calculating NPA and it was made 25% of the basic pay of a Government doctor. The recommendations made by the 5th Pay Commission on this issue are contained in para 52.16 of its report, which is reproduced below:

"52.16. Non-practicing allowance

Non-practicing allowance is presently granted under a slab system with amounts ranging from Rs. 600 per month at the lowest level to Rs. 1000 at the highest. It has been represented to us that prior to the Third CPC, NPA was granted as a percentage of basic pay, ranging from 25 to 40% at different levels, working out to an average of about 27%, which has, under the present arrangements dropped to as low as 12.5 to 16%. Doctors are also aggrieved that it does not count forwards Housing accommodation, though it is countable for all other purposes, including pension. There are also related demands for extension of NPA to other categories of professionals and Government servants who have opportunities to earn in the open market, as also the demand for discontinuance of NPA by permitting private practice. The Third CPC observed that NPA was granted to doctors in lieu of private practice on account of a traditionally enjoyed privilege as well as lesser effective service and promotion prospects caused by late entry into service. It did not favor private practice by doctors, and favored NPA as a separate element from pay-scales. It suggested a switchover to a slab system instead of the existing rates with monetary limits. The Fourth CPC enhanced the rates under the different slabs, besides granting it uniformly to all medical officers. The administrative Ministry has suggested that NPA should be continued and also be counted for purposes of housing accommodation eligibility. In the matter of permitting limited private practice we have been advised by expert opinion that it could be permitted in a limited form provided malpractices could be curbed. We also note that it is only doctors who are required to devote a lifetime to health care and life sustenance under oath as a part of their qualifications. We do not recommend extension of NPA to any other category. We recommended that the slab system of granting NPA to doctors may be dispensed with and NPA be granted at a uniform rate of 25% of basic pay subject to the condition that pay plus NPA does not exceed Rs.29,500, i.e. less than the maximum proposed for the Cabinet Secretary. It will continue to count forwards all service and pensionary benefits as at present.