Major Dr. Bhupindra Singh And Others Vs State Of Punjab And Others

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Judgment

354 paragraphs · 3,207 words

Namit Kumar, J

This judgment shall dispose of both the above-said writ petitions, as common question of law and facts are involved for adjudication. For the sake of convenience, facts are taken from CWP-5070-2020, titled as ‘Major Dr. Bhupindra Singh and others Vs. State of Punjab and others’.

The petitioners have invoked the writ jurisdiction of this Court by filing the instant petition under Articles 226/227 of the Constitution of India, seeking a writ of mandamus, directing the respondents to grant the element of Non-Practicing Allowance in the pension of the petitioners w.e.f. 01.07.2011, as per notification dated 20.05.2011 (Annexure P-6), with all consequential benefits and arrears be released along with 18% penal interest.

Brief facts, as have been pleaded in the present petition, are that the petitioners were employed in the Animal Husbandry Department as Veterinary Doctors and have retired from service on attaining the age of superannuation between the years 1988 to 2009. The precise grievance raised in the present petition is that the respondents have included the Non-Practicing Allowance (hereinafter referred to as 'NPA') to the pension of the veterinary doctors as is being given to the medical doctors, however, the said benefit has only been confined to the retirees who have retired after 01.07.2011. Further, the respondents without any reasonable nexus have put the employees into two categories, first who are getting pension with Non-Practicing Allowance and second who are getting pension without Non-Practicing Allowance. The service particulars of the petitioners as given in Annexure P-1 are reproduced as under :-

Sr.

No.

Name

Age

Father’s name

Address

DOA

(Post)

DOR

(Post)

Major Dr. Bhupindra Singh

Wishan Singh

201 Hardev Nagar Jal

24.07.1963 (VO)

30.04.2001 (DDAH)

Dr. Manmohan Khosla

D.D. Khosla

16 Windsor Park Jal

02.08.1964 (VO)

31.07.1998 (AD)

Dr. Sawinder Singh

Kesar Singh

32/103 Shankar Garden Colony Jal

10.07.1970 (VO)

31.12.2004

(Director AH) PB

Dr. Madan Lal Kaushal

Naurata Ram

209 Phase-2 Mohali

14.05.1965 (VO)

31.12.2001

(Joint Director)

Dr. Atma Singh Patti

Krishan Singh

65-B Model Town Phagwara

03.05.1966 (VO)

30.04.1999 (AD)

Dr. Joginder Singh Ahluwalia

Pritam Chand

589/11 Onkar Nagar Gurdaspur

03.06.1971 (VO)

23.03.2003 (SVO)

Dr. Kartar Singh

Jagat Singh

32/4 Partap Nagar Kadian

23.09.1963 (VO)

31.08.1998 (SVO)

Dr. Gurdip Singh

Bhan Singh

16-Ward H No.17 Court Road Gurdaspur

03.05.1966 (VO)

30.04.1998 (AD)

Dr. Vijay Kumar Kapil

Sardari Lal

AVO 19/55 Dream City Amritsar

30.03.1971 (VO)

31.03.2004 (AD)

10.

Dr. Subhash Chander Rawla

Lal Chand

560-B Adarsh Nagar Phagwara

03.06.1970 (VO)

30.11.2005 (AD)

11.

Dr. B.R. Sareen

Shiv Nath Sareen

Lane No.6 Satnampura Phagwara

25.08.1967 (VO)

31.10.2003 (SVO)

12.

Dr. Parvesh Kumar Sahi

Hira Lal Sahi

HL-126 Roop Nagar Colony Amritsar

31.05.1971 (VO)

30.11.2004 (SVO)

13.

Dr. Daljit Singh Bedi

Narinder Singh Bedi

Gali No.4-A Satnampura Phagwara

16.08.1962 (VO)

30.09.1995 (SVO)

14.

Dr. Bachitter Singh

Ajmer Singh

22281 Dhobiana Road Bathinda

12.09.1960 (VO)

31.01.1992 (SVO)

15.

Dr. Jai Gopal

Ram Chand

300 Ward No.9 Garhshankar

25.09.1962 (VO)

28.02.1996 (SVO)

16.

Dr. Surinderjit Singh

Gurbax Singh

34-F7/167 LIC

Colony Batala Road Amritsar

21.05.1968 (VO)

31.07.2000 (SVO)

17.

Dr. H.K. Pahwa

Sat Ram Dass

1830 Rajinder Colony Rohtak

14.08.1973 (VO)

31.08.2004 (VO)

18.

Dr. D.S. Bajaj

Gobind Singh

349-R Model Town Jal

05.05.1965 (VO)

31.01.2001

(Joint Director)

19.

Dr. Surinder Pal Singh Barar

Harbhai Singh

B-XII 133/1

Danewalia Street Faridkot

05.08.1964 (VO)

30.08.2000 (DDAH)

20.

Dr. Harnek Singh

Balwant Singh

22673 Gali No.6 Bhagu Road Bathinda

10.08.1962 (VO)

31.03.1995 (SVO)

21.

Dr. Tejinder Singh Bedi

Kartar Singh Bedi

C-2177 Ranjit Avenue Amrtisar

03.05.1966 (VO)

30.09.2009 (DDAH)

22.

Dr. Kalyan Singh

Sant Singh

14 Hardayal Nagar Jal

19.04.1974 (VO)

30.11.2005 (AD)

23.

Dr. Ashok Mehngi

Madan Gopal Mehngi

Old Post Office St. Zeera

04.06.1980 (VO)

30.06.2002 (VO)

24.

Dr. Kulbhushan Lal Prashar

Gauri Shankar

699 Gopal Nagar Hoshiarpur

28.09.1963 (VO)

29.02.1996 (SVO)

25.

Dr. Mohan Singh Saini

Pheru Ram

35 GTB Nagar Jal

29.05.1967 (VO)

31.12.1989 (AD)

26.

Dr. Ram Chand

Bhag Ram

58 Apna Ghar Society Pritampura Delhi-34

19.07.1963 (VO)

31.10.1993 (SVO)

27.

Dr. Gurmeet Singh

Santokh Singh

28 Sehaj Enclave The Mall Amritsar

26.06.1961 (VO)

30.04.1998 (DDAH)

28.

Dr. Paramvir Rai

Sobeg Singh Rai

Academy Road Opp. Water Treatment Plant Anandpur Sahib

31.10.1984 (VO)

15.12.2004 (VO)

29.

Dr. C.L. Kathuria

Nota Ram Kathuria

B-6/254 Chak Guru Nagar Nawanshr

24.07.1964 (VO)

31.05.1999 (SVO)

30.

Dr. Shyam Sunder

Narayan Dass

Krishna Gali Mission Road Pathankot

15.09.1959 (VO)

31.08.1992 (SVO)

31.

Dr. Bhupinder Singh Gill

Dalip Singh

64-C SBS Nagar Pakhowal Road LDH

03.07.1963 (VO)

30.11.2000

(Joint Director)

32.

Dr. Chanan Singh

Jangi Singh

1011 Rama Mandi Jal

15.08.1947 (VO)

31.01.1977 (VO)

33.

Dr. Surjit Singh Deol

Kartar Singh

1824/6 SBS Nagar GT Road Moga

14.09.1968 (VO)

30.04.2001 (SVO)

34.

Dr. Jit Sigh Virk

Bahadar Singh Virk

2554 HIG Flat Dugri UE-11 LDH

02.12.1978 (VO)

31.03.2005 (VO)

35.

Dr. Tehal Singh

Kartar Singh

Vill Jandali P.O. Nizampur LDH

02.12.1970 (VO)

07.09.2002 (VO)

36.

Dr. Gurdip Singh Dhesi

Bhagat Singh Dhesi

Dhesi Eye Hospital Nakodar

22.08.1966 (VO)

30.06.2001 (SVO)

37.

Dr. Albert Singh

Sadhu Singh

VPO Ramidi Distt. Kapurthala

25.05.1973 (VO)

30.06.1999 (SVO)

38.

Dr. Harinder Pal Singh

Hari Singh

187 Indra Park Jal

16.11.1969 (VO)

31.05.2005

(Joint Director)

39.

Dr. Malkit Singh

Harkishan Singh

Vill Bajra P.O. Sammipur Jal

10.09.1954 (VO)

30.06.1988 (DDAH)

40.

Dr. Madan Mohan Singh

Bhagwan Singh

VPO Gohawar Distt. Jal

27.09.1963 (VO)

31.03.1998 (SVO)

41.

Dr. Simarjit Singh

Gurbax Singh

106 New Jawar Nagar Jal

17.06.1971 (VO)

31.07.2005 (DDAH)

42.

Dr. Kartar Singh

Narinder Singh

351 Urban Estate Phagwara

28.08.1958 (VO)

31.03.1997 (SVO)

43.

Dr. Raj Sharma

Mela Ram Sharma

161 Abrol Nagar Pathankot

06.06.1967 (VO)

31.01.2002 (SVO)

44.

Dr. Janak Raj

Bhim Sen

76 Budh Ram Colony Hoshiarpur

05.08.1971 (VO)

31.07.1996 (VO)

3(i) It has further been pleaded that the veterinary doctors employed in the State of Punjab, made a representation to the respondents that they should be granted the same pay scale as is being granted to the Medical Officers and Dental Surgeons as per the recommendations of the Pay Commission but the same was not granted to them. Consequently, they approached this Court by filing CWP No.6286 of 1986 titled as ‘Dr. Sukhdev Singh and others Vs. The State of Punjab and another’ and the said writ petition was partly allowed vide order dated 02.06.1989. The concluding para of the said order reads as under :-

“For the reasons recorded above, this writ petition is partly allowed with costs. Counsel’s fee Rs.1,000/-. A direction is given to the respondents to allow Selection Grade on twenty per cent posts of Veterinary Officers with effect from 1-1-1978 when the pay scales were revised by the Punjab Government. If it is considered necessary in the aforesaid process to revise the pay scales of promotional posts, it is left to the State Government to do so as well. These directions be complied with in a period of three months.”

3(ii) Thereafter, the petitioners therein, filed review application bearing No.RA-142-1989 which was allowed by this Court, vide order dated 11.09.1990 (Annexure P-2), with the following directions :-

“For the reasons stated above, this Review Application is allowed with costs which are quantified at Rs.1000/-. In addition to the relief already granted, a direction is given to the respondents to allow the revised pay scale of 940-1850 to Veterinary Assistant Surgeons w.e.f. January 1, 1978 on the basis of the order of the Government as reproduced above, equating the pay scales of Veterinary Assistant Surgeons to that of Medical Officers and Dental Surgeons. The respondents would also allow consequential reliefs to the petitioners on that account.”

3(iii) In compliance to the said judgment, the veterinary officers were granted the pay scale of Rs.940-1850 and selection grade of Rs.1000-1850 @ 24% w.e.f. 01.01.1978, vide notification dated 16.03.1998 (Annexure P-3). Further, the respondent-State issued instructions dated 14.09.2009, vide which Non-Practicing Allowance was considered to be a part of pay and was made admissible to doctors appointed in the State of Punjab in the Department of Health and Family Welfare and Department of Medical Education and Research (Annexure P-4). Thereafter, instructions dated 23.01.2010 were issued by the respondents, vide which the Punjab Civil Medical (State Service Group A) Rules, 1972 were amended and Non-Practicing Allowance was made admissible to the doctors appointed in the State of Punjab, retrospectively from 24.03.1972 (Annexure P-5). Further, the respondent issued instructions dated 20.05.2011 (Annexure P-6), vide which Non-Practicing Allowance was considered to be a part of pay and was made admissible for veterinary doctors appointed in the State of Punjab and the said orders were made effective w.e.f. 01.07.2011. However, the benefit of said notification has not been extended to the present petitioners, who have retired between the years 1988 to 2009. Hence the instant writ petition.

In short reply filed by way of affidavit of Dr. Sangeeta Toor, Director, Department of Animal Husbandry, Punjab, on behalf of respondents No.1 to 3, it has been stated as under :-

“1. xx xx xx xx

That in the instant writ petition, the petitioners have inter-alia prayed for issuing the direction to the Respondents to grant the element of Non-Practicing Allowance (NPA) in their pension w.e.f. 01.07.2011. The Government had issued an instruction dated 20.05.2011 (Annexure P-6) vide which non-practicing allowance was considered to be part of Pay and was being made admissible for Veterinary Doctors appointed in the State of Punjab. Said orders were made effective from 01.07.2011.

That the Petitioners herein are now contending that, they all have retired prior to July 2011 and they are entitled to NPA as provided to Medical Doctors. However, it is apposite to mention at this stage that, in the instructions dated 20.05.2011, it was clearly pointed out that said instructions shall come into force w.e.f. 01.07.2011. Thus, it could be inferred that there is no intent to bring upon any retrospective benefit on anyone.

That it could be easily gathered from the list appended as Annexure P-l along with the writ petition displaying the details of service of all the Petitioners and it is pertinent to point out that all the petitioners retired from the service well prior to 01.07.201l i.e., the date of enforcing the instructions for applying the NPA. Moreover, the most recent retired petitioner is in 2009 (only one Petitioner).

That the Respondents are obligated towards the service of the Petitioner rendered in the Department but, the prayer of the Petitioner cannot be allowed as it is against the instructions being issued by the Department of Finance.

xx xx xx xx xx”

Learned counsel for the petitioners submitted that the petitioners, who have retired prior to 01.07.2011, have not been granted the benefit of the instructions dated 20.05.2011 as they have not been granted the Non-Practicing Allowance. He further submitted that the respondents have divided the employees in two groups, one who retired prior to 01.07.2011 and getting pension without the benefit of Non-Practicing Allowance and second who retired after 01.07.2011 and getting pension with the benefit of Non-Practicing Allowance. The said action of the respondents dividing the employees in two categories is totally illegal and arbitrary. He further submitted that for claiming the said benefit, the petitioners have submitted a representation dated 22.07.2018 (Annexure P-7) before the respondents, but no action has been taken on the same.

Per contra, learned State counsel, while referring to the averments made in the short reply filed on behalf of respondents No.1 to 3, submitted that the instructions dated 20.05.2011, issued by the Government, have been made applicable w.e.f. 01.07.2011, whereas all the petitioners have retired from service prior to 2009 and, therefore, the claim of the petitioners cannot be accepted as it is against the instructions being issued by the Department of Finance.

I have heard learned counsel for the parties and perused the relevant documents.

The only question that arises for consideration in the present case is as to whether the petitioners, who have retired from service between the years 1988 and 2009, are entitled for the benefit of Non-Practicing Allowance in their pension or not ?

Admittedly, the petitioners have retired from service on attaining the age of superannuation between the years 1988 to 2009. The most recently retired petitioner is petitioner No.21, who retired on 30.09.2009, otherwise all the petitioners have retired much prior to issuance of notification dated 20.05.2011. Furthermore, the said notification dated 20.05.2011, vide which element of Non-Practicing Allowance has been made part of pension, has not been challenged by the petitioners in the present writ petition. Even otherwise, the petitioners, who had already retired from service between the years 1988 to 2009, cannot be allowed to raise the said claim at this belated stage.

10.

Similar issue has been considered by the Hon’ble Supreme Court in State of Punjab Vs. J.L. Gupta : 2000(2) SCT 8, wherein the retired employees, who got superannuated prior to 31.03.1985, were claiming pensionary benefits on the basis of notification/order dated 09.07.1985, issued by the Government of Punjab, Department of Finance, whereby it was decided that dearness allowance and ad hoc dearness allowance sanctioned up to the consumers price level index No.568 will be treated as dearness pay for the purpose of pensionary benefits i.e., for calculating pension, gratuity/DCRG, internal gratuity in respect of the employees retired on or after 31.03.1985. The employees, who retired prior to issuance of the said notification, challenged the same before this Court and their claim was accepted while relying upon the decision in the case of Dr. Asa Singh. However, the decision in the case of Dr. Asa Singh was considered and explained by the Hon’ble Supreme Court in the case of State of Punjab and others Vs. Boota Singh and others, Civil Appeal No.10674 of 1996, decided on 07.08.1997, and the said decision was not brought to the notice of this Court and the claim of the petitioners therein was allowed while relying upon the case of Dr. Asa Singh. Thereafter, the said judgment was challenged by the State of Punjab before the Hon’ble Supreme Court, wherein it was held as under :-

“2. The ex-employees of State of Punjab are respondents in this appeal and in the connected appeals. All of them retired from the service prior to 31st March, 1985. Their pensionary benefits were calculated as per the rules prevalent at the time of their retirement. By a notification/order dated 9th July, 1985 issued by Government of Punjab, Department of Finance, it was inter alia decided that the dearness allowance and ad hoc dearness allowance sanctioned up to the consumers price level index No. 568 will be treated as dearness pay for the purposes of pensionary benefits, i.e., for calculating pension, gratuity/DCRG, internal gratuity in respect of the employees retired on or after 31st March, 1985. Since the respondents were not given the benefit of the aforesaid notification, they filed a writ petition in the High Court claiming the benefits conferred by the notification dated 9th July, 1985. The High Court by the impugned judgment dated 18th November, 1998 allowed the writ petition directing the State of Punjab to pay all dues to the writ petitioners on the basis of the order dated 9th July, 1985 noticing that the question involved in the case is squarely covered by the decision of this Court in Dr. Asa Singh's case.

The decision in the case of Dr. Asa Singh has been considered and explained in a later decision of this Court State of Punjab & others v. Boota Singh & others, Civil Appeal No. 10674 of 1996, decided on 7th August, 1997. In this decision, it has been noticed that in Dr. Asa Singh's case, after the dismissal of the special leave petition on 13th May, 1993, the State Government sought to reopen the matter by filing an interlocutory application before the High Court for clarification. The clarification application was dismissed by the High Court and the judgment of the High Court was upheld by this Court holding that since the main judgment had become final, the question could not be re-agitated through mode of interlocutory application for clarification. It was also noticed that the decision in Dr. Asa Singh's case had no applicability and Boota Singh's case could not be decided in the same fashion as Dr. Asa Singh's case because the challenge in the appeal was to the main judgment of the High Court and not to any order passed on clarification application.

In Boota Singh's case it has also been held that the benefit conferred by the notification dated 9th July, 1985 can be claimed by those who retire after the date stipulated in the notification and those who have retired prior to the stipulated date in the notification are governed by different rules. They are governed by the old rules, i.e., the rules prevalent at the time when they retired. The two categories of persons are governed by different sets of rules. They cannot be equated. The grant of additional benefit has financial implications and the specific date for the conferment of additional benefits cannot be considered arbitrary. It was further held that :

"In the case of Indian Ex-services League & others v. Union of India, reported in 1991(1) SCR (158 : 1991(1) S.C.T. 468) this Court distinguished the decision in Nakara's case (supra) and held that the ambit of that decision cannot be enlarged to cover all claims by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement even though the emoluments for the purpose of computation of pension be different. We need not cite other subsequent decisions which have also distinguished Nakara's case (supra). The latest decision is in the case of K.L. Rathee v. Union of India, 1997(4) Scale 384: 1997(3) S.C.T. 478 where this Court, after referring to various judgments of this Court, has held that Nakara's case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. The respondents are not entitled to claim benefits which became available at a much later date to retiring employees by reason of changes in the rules relating to pensionary benefits."

The controversy involved in the present appeal and connected appeals is squarely covered by the aforesaid decision. The respondents are thus not entitled to claim benefits under the notification dated 9th July, 1985 since the said benefits became available on a much later date to the retiring employees by reason of change in rules relating to pensionary benefits. In this view, the judgment of the High Court cannot be sustained.”

11.

To the same effect is the judgment of Hon’ble Supreme Court in State of Punjab and others Vs. Amar Nath Goyal and others : 2005(3) SCT 770.

12.

In view of the above finding no merit in the instant petitions, the same are hereby dismissed, with no order as to costs.

Major Dr. Bhupindra Singh And Others vs State Of Punjab And Others

Judgment