Ravindra Kumar Agrawal vs State of U.P. and Others

Virendra Kumar Dixit, J.—We have heard learned counsel for the petitioners as well as learned Standing Counsel and perused the record. With the consent of the parties'' counsel, we proceed to decide both the writ petitions finally at admission stage.

The petitioners were appointed as Medical Officer (Ayurved) under Employees State Insurance Scheme (in short hereinafter referred as the Scheme) and resumed duties in the different hospitals at Ghaziabad and Kanpur.

According to petitioner''s counsel apart from regular monthly salary they were being paid nonpracticing allowance every month in lieu of certificate provided by them to the effect that they have not been indulged into private practice.

Controversy arose on account of letter dated 30.7.1991 sent to the State Government seeking clarification with regard to payment of nonpracticing allowance to Ayurvedic/Homeopathy Medical Officers under the scheme. The government by an order dated 31.3.1992 (Annexure7 to the writ petition) opined that there is no justification to pay nonpracticing allowance to Ayurvedic/Homeopathy Medical Officers working under the Scheme in the State of U.P.

Feeling aggrieved with the decision of the State Government the petitioners have approached this Court under Article 226 of the Constitution of India whereby initially an interim order was passed for payment of nonpracticing allowance. However, writ petition decided finally by judgement and order dated 12.7.2006 permitting the petitioner to prefer representation to the State Government and State Government was directed to decide the same. The State Government by impugned order dated 12.3.2010 had rejected the representation. It may be noted that the Government order dated 24.8.2009 (Annexure18 to the writ petition) specify the rate of payment of nonpracticing allowance to the Medical Officer of Medical and Health Department.

While assailing the impugned order it has been submitted by the petitioner''s counsel that reliance placed by the State Government on Rule 15 (e) of The Employees'' State Insurance (Medical Benefit) Rules, 1953 (in short hereinafter referred as 1953 Rules) is an incident of misleading of the rule. The submission is that the State Government had failed to appreciate the rules in its real perspective. The entire case of the petitioner hinges on interpretation of Rule 15. It shall be appropriate to reproduce Rule 15 of 1953 Rules in its totality as under:

"15. Provision of alternative arrangements

Where there is not an adequate number of Insurance Medical Practitioners available within a reasonable distance the State Government shall provide general medical services to insured person either :

(a) by setting up State Insurance Dispensaries for the treatment of insured persons, staffed by fulltime or parttime Insurance Medical Officer;

(b) by making suitable arrangements for a mobile dispensary to visit a central spot near the places of residence of insured persons ;

(c) An Insurance Medical Officer shall receive such allowances and at such rates as may be sanctioned from time to time for medical officers of the State Government on similar grades in the localities in which they are stationed. An Insurance Medical Officer shall be entitled to leave and leave salary under the leave rules may, from time to time, be applicable to other similar State Government servants on similar salaries.

(d) An Insurance Medical Officer shall be entitled to travelling allowance for journeys performed on official duties on the scale laid down in the State Government rules applicable to medical officers of the State Government on similar salaries.

(e) A fulltime Insurance Medical Officer shall not undertake private practice.

(f) An Insurance Medical Officer shall be subject to such other conditions of service as ma be fixed by the State Government, in consultation with the Corporation.

(g) Notwithstanding anything contained in subrules (b) to (e), the pay, allowance and other conditions of service of an Insurance Medical Officers shall, if he is a person already in the service of the State Government be such as may be determined with the consent of the Corporation by the State Government by a general or special order."

A plain reading of the Rule 15 reveals that under subrule (e) of Rule 15 restriction has been imposed on the private practice of the Medical Officers. Subrule (c) of Rule 15 further provides that the pay allowances and other conditions of the services of Insurance Medical Officers shall be same as of the Medical Officers serving in the State Government and determined with the consent of corporation by the State Government by general or special order.

Sub Rule (c) has got positive element and unless there is specific decision with regard to nonpayment of nonpracticing allowances in terms of rule (supra) Ayurvedic Medical Officers shall be entitled for nonpracticing allowance. It appears that Insurance Medical Officer shall entitle to all allowances which is being applicable to Medical Officers serving in State Government in its different branches including Allopathic.

Sub rule (e) does not differentiate between Allopathy, Ayurvedic and Homeopathic Medical Officers. It is equally applicable to Medical Officers serving the Insurance Hospital in all three branches. Similarly subrule (g) and other provision of Rule 15 does not differentiate between Ayurvedic, Homeopathic and Allopathic medicines.

Medical Officer means the Medical Officer engaged in all three branches of the Insurance Hospitals or the State Government. Allowances means all allowances including nonpracticing allowance.

In Black''s Law Dictionary, Ninth Edition, the word allowance has been defined as under:

"Allowance A share or portion, esp. of money that is assigned or granted.

In The Law Lexicon by P Ramanatha Aiyar 2nd Edition, the word allowance has been defined as under:

"Allowance Something given as a compensation, abatement, or deduction; a portion or a gift or gratuity to a child or other dependent; the sanction or approbation of the Court to certain acts; settlement; to put upon allowance; to restrain or limit to a certain quantity of provision or drink. Used in such terms (as) allowance of a specified amount as alimony Pendente lite; special allowance for costs in taxation; allowance for the maintenance of one''s wife and children; allowance to insolventdebtors etc."

In view of dictionary meaning and definition (supra) the allowances shall include nonpracticing allowance. Admittedly, petitioners have been paid all allowances except nonpracticing allowance. There appears to be no reason to deny the payment of nonpracticing allowance to the petitioners where rule does not distinguished between Allopathy, Homeopathy and Ayurvedic Medical Officer.

Hon''ble Supreme Court by catena of judgment held that while interpreting any section of a statute, every word and provision should be looked into in context to which it is used and not in isolation vide 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh; 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi; AIR 1991 SC 2049, Union of India vs. Wood Papers Ltd; AIR 1989 SC 644, Collector of Central Excise, Bombay vs. Parle Exports (P) Ltd.; AIR 1977 Supreme Court 113 Commissioner of Wealth Tax, A.P. vs. Officer Incharge, Paigah.

Accordingly Rule 15 of Rule 1953 should be read as a whole. State Government committed substantial illegality while reading sub rule (e) of Rule 15 in isolation. Rule 15 should be read conjointly along with subrule (c) which provides that Insurance Medical Officer shall receive such allowances and at such rate as may be sanctioned from time to time for Medical Officers of the State Government on similar grades in the locality in which they are stationed. In case subrule (c) and subrule (e) of Rule 15 is read conjointly, all Medial Officers (Ayurvedic, Homeopathic or Allopathic) of the Scheme shall be entitled for nonpracticing allowances for the reason that it is provided to Medical Officer working in Provincial Medical and Health Services. It may be noted that by notification dated 20.8.1992 the Allopathic Medical Officers of the government has been provided nonpracticing allowances. U.P. Government Doctors (Allopathic) Restriction on Private Practice Rules, 1983 (in short, 1983 Rules) prohibits the Medical Officer of the State Government to indulge into private practice. Rule 4 of the 1983 Rule (supra) provides payment in lieu of private practice. For convenience Rule 4 of the 1983 Rule is reproduced as under:

Payment in lieu of private practice. (1) In lieu of private practice a Government doctor shall be paid such amount, by way of nonpractising pay or allowance or both, as the government may specify from time to time :

provided that nonpractising pay or allowance, referred to in this subrule shall not be payable to :

(a) a government doctor who

(i) does not possess M.B.B.S., degree or B.D.S. or L.S.M.F. (LMP) diploma, or

(ii) is not entitled to be registered by the Indian Medical Council/Indian Dental Council, or

(iii) is debarred by the Indian Medical Council/Indian Dental Council from doing private practice;

(b) (i) Director and Addl. Director, Medical, Health and Family Welfare ;

(ii) Director and Addl. Director, Medical Education and Training; and

(iii) Principals of the State Medical Colleges.

(c)an incumbent of a post for which M.B.B.S. degree or B.D.S. or L.S.M.F. (LMP) diploma qualifications are not essential."

Since, State Government had provided nonpractising allowance in pursuance to Rules framed for the purpose to the Medical Officers at the thrust of subrule (c) of Rule 15 of 1953 rule the Medical Officers working in the State Insurance Hospital shall be entitled for nonpracticing allowances. Right accrues to the Medical Officers of the Insurance Hospitals is statutory and by fiction of law they shall be entitled for nonpracticing allowance. Allowances given to Medical Officer working in the State Government which includes nonpracticing allowance shall be available to Medical Officers working in State Insurance Hospitals in pursuance to subrule (c) of Rule 15.

Attention of the court has not been invited towards any provision, rule or regulation under which the Medical Officers which includes Ayurvedic, Homeopathic and allopathic working in the State Insurance Hospital may be deprived from nonpracticing allowances. The language of Rule 15 (supra) of 1953 Rule is clear and unambiguous. No other meaning may be given except that the insurance Medical officers shall entitled for all such allowances and at such rate which is being paid by the State Government to the Medical Officers of similar grade working in the vicinity. It is not disputed that all Medical Officers working in the Government Hospital at Ghaziabad and Kanpur are being given nonpracticing allowances subject to furnishing of certificate that they are not indulged into private practice.

(14) While passing the impugned order Government failed to apply mind to the contents of Rule 15 in its totality. The government has taken into account Subrule (e) of Rule 15 and not sub rule (c) thereof. The State Government had failed to apply mind to Rule 15 in its totality. Hence, impugned order seems to suffer from nonapplication of mind as well as voice of arbitrariness. The writ petitions deserve to be allowed.

(15) In view of above, writ petition are allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 12.3.2010 as contained in Annexure 14 to the writ petition and the order dated 30.3.2010 as contained in Annexure15 to the writ petition with all consequential benefits. The State Government shall ensure the payment of nonpractising allowances to all the Medical Officers including the petitioners whose services are governed by 1953 Rules, including Ayurvedic, Allopathic and Homeopathic Medical Officers.

A further writ in the nature of mandamus is issued commanding the government to reconsider the petitioners'' case for payment of nonpracticing allowance keeping in view the observation made in the body of the present judgment and pass a fresh order, expeditiously, say within a period of three months from the date of receipt of a certified copy of the present order.

The writ petitions are allowed accordingly. No order as to costs.