Point of Law: Non-Practicing Allowance – Benefit of - Government order while enhancing the rate of Non-Practicing Allowance to 25% was ipso facto applicable to serving Government doctors, as well as to the retired Government doctors in as much as the earlier Government orders had explicitly extended the benefit of Non-Practicing Allowance to the retired Government doctors.

JUDGMENT :

1. The petitioners in this batch of writ petitions have raised common grievance, and hence they have been heard together and are being decided by a common judgment. The petitioners are Allopathic doctors who have served under the State Government and have since retired. They are aggrieved by the Government orders dated 14/7/2020 and 04/09/2020 whereby they have been denied the revised rate of Non-Practicing Allowance on the ground that they have retired prior to the cutoff date 24/08/2009, while doctors similarly placed and who have retired after 24/08/2009 has been entitled to the revised rate of Non-Practicing Allowance, and hence, they assert to have been unreasonably discriminated, and have prayed for setting aside of the said Government orders as well as the recovery orders passed in consequence of the impugned orders.

2. The facts in brief are that the petitioners are retired Allopathic Doctors of the Provincial Medical and Health Services of Government of U.P who have superannuated prior to 24/08/2009. The Government of Uttar Pradesh promulgated the U.P. Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983 (hereinafter referred to as, Rules of 1983). By means of the aforesaid Rules of 1983 restriction was placed on Government Doctors and they were banned from obtaining any pecuniary advantage by engaging in private consultancy, and in lieu of the said restriction a Non-Practising Allowance was made available to them, which was to be determined by the State Government.

3. In exercise of its delegated power, the State Government vide order dated 31/08/1989 has not only revised the rate of Non-Practicing Allowance but also provided that it will be treated as part of pay for all service benefits including DA, TA and other allowances and also for pensionary benefits. Subsequently, the rates were revised in 2003 and they were made applicable uniformly on all including the petitioners.

4. The 6th Central Pay Commission recommendations were approved, with regard to Non-Practicing Allowance, by the State of U.P. by Government order dated 24/08/2009, which revised the Non-Practicing Allowance to 25% of the basic pay plus grade pay. The benefit of G.O dated 24/08/2009 did not in any manner disentitle the petitioners, but they were not given the benefit of the revised rates.

5. The 7th Pay Commission recommendations were approved by State of U.P on 09/03/2019 and given effect to vide Government order dated 09/08/2019. The benefit of the same was given to the petitioners, and they started receiving the enhanced rate of Non-Practicing Allowance, till passing of the impugned Government orders.

6. The bulwark of the challenge in this bunch of writ petitions is discrimination meted out to the petitioners by the unreasonable classification introduced by the State Government, by the impugned Government orders dated 14/07/2020 and 04/09/2020, both having the effect of disentitling the petitioners who retired prior to 24/08/2009 of the revised rate of Non-Practicing Allowance. In one set of writ petitions the Government orders dated 14/07/2020 and recovery order dated 16/07/2020 have been challenged, while second set of petitions, the challenge is to the Government order dated 04/09/2020 which had amended the earlier Government order dated 09/03/2019. The consequential relief sought in both the writ petitions is writ of mandamus to command the opposite parties to pay the Non-Practicing Allowance as per the existing revised rate of 20% as fixed by the Government order dated 09/08/2019.

7. Sri Hari Prasad Gupta, Sri Hari Ram Gupta and Sri Manish Mishra Advocates have appeared on behalf of the petitioners, and Sri Ramesh Kumar Singh, Senior Advocate Learned Additional Advocate General assisted by Sri Ashutosh Singh has addressed this court on behalf of the State.

8. It has been submitted by the Counsels appearing on behalf of the petitioners that the U.P Government Doctors Allopathic Restriction on Private Practice Ru