CHITRA M. PRAKASHKER vs STATE OF GUJARAT

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Guj) 3

GLR 2008 (2) 1031
HONOURABLE MR.JUSTICE JAYANT PATEL
CHITRA M. PRAKASHKER & 35 - Petitioner(s)
Versus
STATE OF GUJARAT - Respondent(s)
SPECIAL CIVIL APPLICATION No. 11170 of 2007
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Decided on : 09/01/2008

Advocates appeared:
MR SJ GAEKWAD for Petitioner(s): 1 â 36.
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SANGEETA VISHEN, AGP, for Respondent(s): 1,
NOTICE SERVED BY DS for Respondent(s): 1,

Headnote:
Gujarat Civil Services (Conduct) Rules, 1971 - Constitution of India - Article 309 - Gujarat Civil Services (Pension) Rules, 2002 - Gujarat Civil Services (General Conditions of Services) Rules, 2002 - Doctors, whose services are governed by various statutory Rules framed by the Government in exercise of the power under Article 309 of the Constitution, including that of Gujarat Civil Services have preferred all the petitions for challenging the policy of the State Government vide Resolution dated 29.3.2007 for discontinuing Non-Practicing Allowance (hereinafter referred to as 'NPA' for the sake of convenience) and for permitting them for private practice after office hours. As the policy of the Government also provides for giving option to in-service doctors, who have completed 15 years of service for continuing with the NPA and/or for permission for private practice and as such options are not given to the petitioners, the said policy of the State Government is also challenged on the ground as the same being discriminatory amongst in-service doctors, who are similarly situated- Held, impugned Resolution of the State Government providing for permitting private practice to all in-service Doctors is in contravention to Rule 34 of the General Rules, Rule 15 of the Conduct Rules, Pension Rules, and the aforesaid Recruitment Rules, and hence, ultra vires to the powers of the State Government and therefore, void. Further, the classification made within the policy based on the length of service of all in-service Doctors is discriminatory, and does not meet with the test of reasonable intelligible differentia for achieving the objects of the Policy and unreasonable and therefore, violative of Articles 14 & 16 of the Constitution of India.
- Petitions are allowed.

JUDGMENT

1. All in-service doctors, whose services are governed by various statutory Rules framed by the Government in exercise of the power under Article 309 of the Constitution, including that of Gujarat Civil Services (Conduct) Rules, 1971 (hereinafter referred to as the âSConduct Rulesâý for the sake of convenience), Gujarat Civil Services (General Conditions of Services) Rules, 2002 (hereinafter referred to as the âSGeneral Rulesâý for the sake of convenience), and Gujarat Civil Services (Pension) Rules, 2002 ((hereinafter referred to as the âSPension Rulesâý for the sake of convenience), have preferred all the petitions for challenging the policy of the State Government vide Resolution dated 29.3.2007 for discontinuing Non-Practicing Allowance (hereinafter referred to as âSNPAâý for the sake of convenience) and for permitting them for private practice after office hours. As the policy of the Government also provides for giving option to in-service doctors, who have completed 15 years of service for continuing with the NPA and/or for permission for private practice and as such options are not given to the petitioners, the said policy of the State Government is also challenged on the ground as the same being discriminatory amongst in-service doctors, who are similarly situated. The aforesaid appears to be, in substance, the challenges to be considered by this Court in the present group of petitions. As the facts are more or less inter-connected and common and in any event, the challenges are common, they are being considered by this common judgement.

1. With the consent of the learned Counsel appearing for both the sides, the contents and record of the Civil Application No.5869 of 2007 preferred by the State Government are treated as the stand and the contentions of the State Government for maintaining the policy, which is impugned in the petitions. The relevant facts of the case for appreciating the aforesaid challenge appear to be as under.

2. In the year 1965, the State Government vide Resolution dated 27.10.1965, with a view to attract adequately qualified medical persons to Government service and with a view to stop private practice in respect of new entrant, decided to upgrade the post, to give advance increments to new-comers and also decided to give allowance for the loss of private practice as per the details given in the accompanying statement. The details of such allowances for loss of private practice are not much relevant for the purpose of deciding the present petitions, but suffice it to state that a policy decision was taken to introduce the payment of allowances for loss of private practice. In the same manner, such policy continued with the modification in the quantum of the amount vide Resolution dated 12.7.1970 of the State Government. The same position continued further with the modification for the rates and there was one additional development in the payment of the allowances for loss of private practice (popularly known as âSNPAâý) and the same was that it was linked up with the pay of the doctors concerned. The said policy continued further with the additional change that NPA was indirectly merged with the basic pay in computing T.A., D.A., etc.

3. In the year 1987, in the Rules framed by the Government namely; Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as the âSPay Rules of 1987âý for the sake of convenience), the non-practising allowance was given a statutory recognition for the purpose of inclusion thereof in the revision of pay-scale and the consequential benefits thereof. The same continued further even in the year 1998 when the Government framed the Rules for revision of pay-scale namely; Gujarat Civil Services (Revision of Pay) Rules, 1998 (hereinafter referred to as the âSPay Rules of 1998). It may be recorded that such entitlement of NPA was also extended by the State Government to the other medical services namely; ESI â Ayurved - Homeopathy Doctors etc.

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