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2021 Supreme(HP) 486
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sureshwar Thakur, J.
Chaman Lal Gupta - Appellant
Versus
State Of H.P. & Ors. - Respondents
C.W.P.O.A. No. 1248 of 2020
Decided On : 28-06-2021
S.P. Chatterji, Advocate, Ajay Viadya, Advocate, Hemant Vaid, Advocate, Vikrant Chandel, Advocate
The classification of retirees based on the date of superannuation for NPA benefits must not violate the principle of equality under Article 14 of the Constitution.
Headnote:
NPA - Service Benefits - Fundamental Rule 9(21)(a)(i) and (ii) - CWP No. 4961 - Keshav Singh vs. State of H.P. - 1972 Pension Rules - Article 14 of the Constitution
Fact of the Case:
The writ petitioner's wife, Dr. Suman Gupta, superannuated from service and was in receipt of Non Practicing Allowance (NPA). The petitioner challenged notifications restricting NPA benefits for pre-2006 retirees.
Finding of the Court:
The court found that the restrictions on NPA benefits for pre-2006 retirees were unconstitutional and violated Article 14 of the Constitution. The impugned notifications were quashed and set aside, and the respondents were directed to make additions of NPA and recalculate the pension for Dr. Suman Gupta.
Issues: Challenge to notifications restricting NPA benefits for pre-2006 retirees
Ratio Decidendi: The court relied on the verdict in CWP No. 4961, which emphasized that the classification of retirees based on the date of superannuation for NPA benefits was arbitrary and unconstitutional. It also highlighted the State's obligation under the 1972 Pension Rules and the principle of equality under Article 14 of the Constitution.
Final Decision: The writ reliefs were allowed, and the impugned notifications were quashed and set aside. The respondents were directed to make additions of NPA and recalculate the pension for Dr. Suman Gupta, with accrued arrears to be paid within four months, failing which simple interest at 6% would be levied.
JUDGMENT
Sureshwar Thakur, J. - The writ petitioner's wife, one Dr. Suman Gupta superannuated from service on 31.10.2005. During the tenure of her service, she was in receipt of Non Practicing Allowance (NPA). The grant of NPA was in terms of Fundamental Rule ( (21) (a)(i) read with Fundamental Rule 9 (21(a)(ii), and, Rules whereof, read as under:-
"F.R.9. Unless there be something repugnant in the subject or context, the terms defined in this Chapter are used in the rules in the sense here explained:-
(21)(a) "Pay" means the amount drawn monthly by a government servant as:-
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay;
(ii) any other emoluments which may be specially classed as pay by the President."
2. The grievance(s) as ventilated by the petitioner, in the extant writ petition, is with respect of a notification, borne in Annexure A-4, made on 26th August, 2009, wherethrough, though benefits of 25% NPA of basic pay, for the purpose of calculating retiral benefits including revised pension became restricted only to the serving as well as to those doctors who retired on and after 1..1.2006, and hence it became denied to the wife of the petitioner, one Dr. Suman Gupta, who was pre 2006 retiree(s). Consequently, the writ petitioner, pray for the afore Annexure A-4, rather making the afore restrictions, being quashed and set aside. Moreover, the writ petitioner also cast a challenge upon the notifications respectively made on 14.10.2009, and, 21.05.2013, as respectively embodied in Annexure A-5, Annexure A-6, wherethrough, the benefit(s) of component of 25% NPA as a part of basic pay, for the purpose of calculating retiral benefits, has been denied to those retirees, whose superannuation occurred w.e.f. 2.12.1997 and 1.1.2006.
3. The afore grievances as ventilated in the writ petition, and, in respect whereof, a mandamus for theirs being quashed and set aside, is, asked, for being pronounced by this Court, is not longer res integra, and/or is covered by a verdict made by a co-ordinate Bench of this Court, in a case titled as Dr. D.R. Barwal ( now deceased) through his legal representatives Smt. Usha Barwal & others vs. State of H.P. & Others, bearing CWPOA No. 1184 of 2020, decided on 04.05.2021. Consequently, the stand in opposition to the writ claim as reared by the State of Himachal Pradesh does not carry any profound weight, and, nor is legally sustainable.
3. In addition, the vigour of the verdict (supra), rendered by a coordinate Bench of this Court, is reinforced, by dependence being made by it , upon, a verdict rendered by this Court in CWP No. 4961, titled as Keshav Singh vs. State of H.P. and others, decided on 13th June, 2012, the relevant paragraphs whereof read(s) as under:-
".....13. As already stated above, earlier the NPA was allowed only to the Ayurvedic Doctors, but thereafter respondent-State took a conscious decision to extend it to Veterinary Doctors on and with effect from 1.4.1997. Thereafter there was a revision of pay scales, as indicated in the letter dated 10.6.2005, supra, but this enhancement of 25% NPA was kept as a separate entity and was not counted/taken into account for any other purpose like calculation of allowances etc. as indicated therein. Vide Office Memorandum dated 7.7.2007 quoted above, it was conveyed that the reckoning of DP for the purpose of calculation of NPA in respect of Veterinary Doctors and reckoning of element of enhanced NPA at the rate of 25% of pay for calculation of all allowances/benefits in respect of Veterinary Doctors was allowed w.e.f. 1.7.2007, as mentioned therein and the upper limit for basic pay plus NPA plus DP of the Doctors was kept Rs. 38,500/- per month from that date. To my mind this Office Memorandum does not ma
