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2023 Supreme(Raj) 1909
IN THE HIGH COURT OF RAJASTHAN
Dinesh Mehta, J.
K.K. Garg – Petitioner
Versus
The State of Rajasthan and Others – Respondents
S.B. Civil Writ Petition No. 7938 of 2015
Decided On : 04-07-2023
Advocate Appeared:
For the Petitioner: Hemant Jain
For the Respondents: Gaurav Ranka, Vandana Bhansali
Headnote:(A) Article 14 of the Constitution of India - Non-practicing allowance - This petition concerns the denial of non-practicing allowance to the petitioner while serving as Additional C.M.H.O., based on a selective application of an order from the Finance Department. The judgment from the case of Dr. Saroj Gupta established that such discrimination is violative of constitutional rights. (Paras 3, 5)
(B) Delay and laches - The court concludes that the significant delay of almost seven years in challenging the order does not bar the petitioner as the challenge aligns with a precedent set by the Court in 2014. (Paras 6, 7)
Facts of the case:
The petitioner, working as Additional C.M.H.O., was denied non-practicing allowance as per an order dated 12.09.2008 that did not include his post, while others in similar positions received it in other districts. The petitioner argued that this was discriminatory and violated constitutional provisions.
Findings of Court:
The denial was discriminatory and the court directed that the non-practicing allowance be granted to the petitioner alongside a stipulation for timely processing of his claim.
Issues: The primary issues included whether the delay in filing the petition was a valid reason for dismissal, and whether the petitioner was entitled to non-practicing allowance despite said delay.
Ratio Decidendi: The Court confirmed that the selective denial of benefits to Additional C.M.H.Os in any district was unconstitutional and must be rectified, asserting that delays could be excused in light of prior judicial decisions.
Result: Writ petition allowed; respondents directed to grant non-practicing allowance.
| Table of Content |
|---|
| 1. petitioner's grievance about non-practicing allowance. (Para 1) |
| 2. arguments presented by both parties regarding delay and applicability of previous judgment. (Para 2 , 3 , 4) |
| 3. discrimination in non-practicing allowance violates article 14. (Para 5) |
| 4. court's analysis of prior judgment and rationale for allowing the writ petition. (Para 6 , 7) |
| 5. final order to grant non-practicing allowance and rights for further legal recourse. (Para 8 , 9) |
ORDER :
1. The petitioner has approached this Court with a grievance that the respondents have not granted his non-practicing allowance while he was working as Additional C.M.H.O.
2. Mr. Jain, learned counsel for the petitioner submitted that the issue involved in this case is squarely covered by the judgment dated 17.01.2014 passed by this Court in the case of Dr. Saroj Gupta v. State and Ors. S.B. Civil Writ Petition No. 10410/2010.
3. Mr. Ranka, learned counsel for the respondent-State is not in a position to distinguish the facts of the present case from the facts in the case of Dr. Saroj (supra). He however argued that the petitioner has approached this Court belatedly and sought to challenge the order dated 12.09.2008 after a delay of almost seven years.
4. Mr. Jain, learned counsel for the petitioner in rejoinder submitted that the order dated 12.09.2008 is an order issued by the State Government whereby non-practicing allowance has been granted but the rights of the Additional C.M.H.O. were excluded and that such issue has been set at rest by this Court by judgment dated 17.01.2014 in case of Dr. Saroj Gupta (supra). He submitted that the petitioner and other candidates were awaiting decision of this Court and when the judgment was delivered in January, 2014, the petitioner approached this Court in July, 2015 and therefore, the petition in hand not be dismissed on the ground of delay and laches.
5. In the case of Dr. Saroj Gupta (supra), this Court has held thus:
“After hearing learned counsel for the parties, I have perused the order dated 12.09.08 in which the non-clinical and non-practicing allowance has been allowed by the Finance Department, Government of Rajasthan to various posts including the post of C.M.H.O on full time C.M.H.Os and Additional C.M.H.O, Jaipur and Udaipur and the post of Additional C.M.H.O Sriganganagar is not included.
In the opinion of this Court, in a particular district, if any doctor is posted as Additional C.M.H.O. gets the benefit of non-practicising and non-clinical allowance under the order dated 12.09.2008 issued by the Government then how Additional C.M.H.O working in all the districts of Rajasthan are not entitled for non-practicing allowance. The respondents cannot discriminate other doctors working on the post of Additional C.M.H.Os in other districts because there is no nexus and reason to deny the said benefit, therefore, the order of the Finance Department for granting non-practicing allowance only to the Additional C.M.H.Os of Jaipur and Udaipur is totally discriminatory because it is violative of Article 14 of the Constitution of India. If a Doctor is working on an equal post in Jaipur and Udaipur district, gets the benefit of nonclinical and non-practicing allowance that cannot be denied to the Additional C.M.H.O of other district because there is no rational behind it. There is no expertise provided for posting as Additional C.M.H.O at Jaipur and Udaipur, therefore, the denial of NPA to the petitioner for the period he worked on the post of Additional C.M.H.O, Family Welfare, Sriganganagar is violative of Article 14 of the Constitution of India.
Consequently, this writ petition is allowed. The respondents are directed to grant the benefit of non-practicing allowance to the petitioner for the period in which he was posted as Additional C.M.H.O, Sriganganagar within three months from the date of receiving certified copy of this order.”
6. Since this Court has already held the issue in favour of Additional C.M.H.O, this Court is n
