Full Judgment Text
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CASE NO.:
Appeal (civil) 6519 of 1999
PETITIONER:
Union of India and Anr.
RESPONDENT:
Manu Dev Arya
DATE OF JUDGMENT: 27/04/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
S.B. SINHA, :
This appeal is directed against a judgment and order
dated 07.08.1998 passed by a Division Bench of the Gauhati
High Court, in Writ Appeal No.6 of 1998 whereby and
whereunder it refused to interfere with the judgment and
order passed by a learned Single Judge of the said Court
allowing a writ petition filed by the respondent herein.
The respondent was appointed as Research Assistant (H)
with the Central Council for Research in Homeopathy on or
about 28.09.1987 in the pre-revised pay scale of Rs.425-
700/- (revised 1400-2300/-). He had been getting Non-
Practicing Allowance (NPA) at the rate of Rs.75/- in the
pre-revised scale of pay. The doctors and physicians,
however, were getting Non-Practicing Allowance in the pre-
revised pay scale at the rate of Rs.150/-. Non-Practicing
Allowance of the doctors and physicians in the pay scale of
Rs.2000-3500/- was revised with effect from 1.1.1986 in
terms of an order of the Government of India dated
27.02.1991. A representation was made by the respondent
claiming the enhanced rate of Non-Practicing Allowance which
was not allowed. A writ petition thereafter was filed by
the respondent herein before the High Court praying for
issuance of a writ of or in the nature of mandamus directing
the appellant herein to pay Non-Practicing Allowance at the
enhanced rate which should be commensurate to the revision
in the Non-Practicing Allowance paid to the doctors and
physicians.
The learned Single Judge of the High Court formulated a
question for his determination as to whether the respondent
herein had been made victim of hostile discrimination by the
appellant by reason of non grant of any enhancement on the
Non-Practicing Allowance. Applying the principles laid down
in Articles 14 and 39(d) of the Constitution of India, the
learned Single Judge held that the doctors and physicians on
the one hand and the Research Officers in Homeopathic
department, on the other, cannot be treated differently and
thus, the appellants must be held to have made hostile
discrimination without there being any reasonable ground for
making a differential treatment in the matter of enhancement
of Non-Practicing Allowance payable to the respondent.
The said judgment of the learned Single Judge on appeal
preferred by the appellants herein was summarily dismissed
by a non-speaking order by a Division Bench of the High
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Court.
Mr. A.K. Panda, learned Senior Counsel appearing on
behalf of the appellants, would submit that the High Court
committed a serious error in invoking the doctrine of equal
pay for equal work and thereby interfered with the policy
decision of the Central Government in fixing the Non-
Practicing Allowance for different categories of employees.
It is not in dispute that the Government of India laid
down a policy decision as regard grant of Non-Practicing
Allowance in terms of its letter dated 27.02.1991 addressed
to the Director, Central Council for Research in Ayurveda,
Sidda, stating :
" I am directed to invite a reference
to this Ministry’s letter
No.28015/21/780 AY .Desk ISM Vol. I Part
I dated 10th Dec 1981 on the subject
mentioned above and I say that the
question regarding continuation of Non-
Practicing Allowance (NPA) or revision
of its rates in the context of the
revised scales of pay effective from
1.1.1986 has been under consideration of
the Government some time past. It has
now been decided that the ISM & H.
Physicians in the scale of Rs.2000-
3500/- and above may be allowed Non-
Practicing Allowance at the rate and
from the dates indicated below :
Pay
range in
the
revised
scale
Rate of NPA from
1.1.96 from the
date of option for
revised scale of
pay whichever is
later.
A.
i)
Basic pay from
Rs.2000 to 2999/-
Rs.600/-
ii)
Basic pay from
Rs.3000 to 3699/-
Rs.800/-
iii)
Basic pay from
Rs.3700 to above
Rs.900/-
With
effect
from
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1.10.1997
i)
Basic pay from 2000
to 2999/-
Rs.600/-
ii)
Basic pay from
Rs.3000 to 3699/-
Rs.850/-
iii)
Basic pay from
Rs.3700 to 5900/-
Rs.950/-
iv)
Basic pay from
Rs.6000 and above
Rs.1000/-
2. No Non-practicing allowance will be
admissible to the holders of posts in
scale of pay lower than Rs.2000-3500.
However, to protect the existing
incumbents who are already in receipt of
HPA, Non-Practicing Allowance may be
continued with reference to the rates
relate to notional pay in the pre-
revised scales as indicated in this
Ministry’s letter dated 19.12.1981.
3. While extending Non-Practicing
Allowance to the employees it may be
ensured that they have not been allowed
private practice. Such employees may be
allowed Non-Practicing Allowance from
the date such orders, if any, issued are
withdrawn."
The State in exercise of its power conferred upon it
under the proviso appended to Article 309 of the
Constitution of India is entitled to fix the conditions of
service of its employees. In absence of any rule framed in
this behalf, such conditions of service can be fixed by
reason of an executive instruction. From a perusal of para
2 of the said letter dated 27.2.1991, it would appear that
no Non-Practicing Allowance was to be paid to the holders of
posts in the scale of pay lower than Rs.2000-3500/-.
However, in the case of the existing incumbents who had been
receiving Non-Practicing Allowance, the same was directed to
be continued.
We fail to see as to how the doctrine of equal pay for
equal work could be invoked in a case of this nature. The
doctors and physicians, who were appointed on the Allopathic
side and were drawing a higher scale of pay, could be
treated differently. Only because at one point of time the
Research Assistant and the Doctors had been given the
benefit of Non-Practicing Allowance, the same by itself
would not mean that a discrimination has been meted out.
The respondent was employed as Research Assistant and was
getting Non-Practicing at the rate of Rs.75/- per month on
the pay scale of Rs.1400-2300/-. The doctors and the
physicians, however, were on the pay scale of Rs.2000-3500/-
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and had been getting Non-Practicing Allowance at the rate of
Rs.150/- per month. Subsequently, if without causing any
financial loss to the incumbents of the other branch of
employees and having regard to the fact that they form a
class by themselves, a higher amount of Non-Practicing
Allowance is granted to the Doctors and Physicians, the same
by itself, in our considered opinion, would not lead to an
unequal treatment.
A policy decision of the State unless affects
somebody’s legal right cannot be questioned. The question
is as to whether certain allowances would be paid to a
section of employees or not and that too at what rate is
basically a question of policy. The concerned employees
cannot claim Non-Practicing Allowance as a matter of right.
A similar question came up for consideration before
this Court in Joint Action Council of Service Doctors’
Organisations and Others vs. Union of India and Another
[(1996) 7 SCC 256], wherein it was held :
"According to us, the present is
basically a question of policy and the
claim in this regard is not founded on
any right as such. Insofar as the
policy is concerned, there may be some
justification for excluding the non-
practicing allowance for the purpose at
hand because this allowance is seemingly
not paid to all the Service Doctors.
So, if this allowance is included for
the purpose at hand, the same may be
disadvantageous even to some Service
Doctors. We do not say more than this
as this matter is presently under
examination of the Vth Pay Commission."
It is further trite that although a discrimination can
be inferred in relation to certain types of allowances but
Non-Practicing Allowance would stand on a somewhat different
footing. [See Dr. Ms. O.Z. Hussain vs. Union of India -
1990 (Supp.) SCC 688].
For the reasons aforementioned, we are of the opinion
that the impugned judgment cannot be sustained which is set
aside accordingly. The appeal is allowed. However, as
nobody has appeared on behalf of the respondent, there shall
be no order as to costs.