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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.