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Jharkhand High Court · body

2009 DIGILAW 972 (JHR)

Geeta Sharma v. State of Jharkhand

2009-07-14

AMARESHWAR SAHAY

body2009
JUDGMENT : Heard the parties. The writ petitioner, while posted as District T.B. Medical Officer at Hazaribagh, retired from service on 31/03/1999. Her prayer in this writ petition is to quash the letter No. 3-M-2-5 Bhatta 12/99 Khand II-2064 dated 28/03/2000, issued by the Special Secretary, Finance Department, Government of Bihar, Patna, fixing the implementation of the Scheme for payment of non-practicing allowance w.e.f. 01/04/2000 by changing the resolution of the State Government where it was to be made effective w.e.f. 26/05/1998 and further prayer is to direct the respondents to pay her the non-practicing allowance at the rate recommended by the Fitment Committee for the period from 26/05/1998 to 31/03/1999, i.e. till her superannuation. According to the petitioner, the Government of Bihar, Department of Health, Medical Education and Family Welfare issued a notification on 26/05/1998, contained in Annexure-1, putting a ban on the private practice by the Government Doctors with immediate effect making provision for non-practicing allowance in lieu thereof. The rate of non-practicing allowance was to be decided on the recommendation of the Fitment Committee, to be constituted by the State Government. Further case of the petitioner is that pursuant to the said notification (Annexure-1), she stopped her private practice and ultimately she retired from service on 31/03/1999. The claim of the petitioner is that she is entitled to be paid the non-practicing allowance from the date of issuance of the notification dated 26/05/1998 vide Annexure-1 till the date of her superannuation, i.e. in between the period from 2/05/1998 to 31/03/1999, i.e. for about 10 months. The grievance of the petitioner is that by issue of subsequent notification dated 28/03/2000, contained in Annexure-4, the date for payment of non-practicing allowance to the Government Doctors has been changed and it was made effective from 01/04/2000 in place of 26/05/1998 as notified earlier by Annexure-1, which is illegal and arbitrary. According to her, since she stopped her private practice from the date of issuance of Annexure-1 and, thereby, suffered financial loss and, therefore, as per the decision of the Government and as per the notification issued on 26/05/1998 (Annexure-1), she is entitled to get the non-practicing allowance from the date of issuance of the first notification dated 26/05/1998 till the date of her superannuation. A counter affidavit has been filed by the respondents controverting the claim of the petitioner. A counter affidavit has been filed by the respondents controverting the claim of the petitioner. The stand of the respondents is that the Government had knowledge that in spite of the notification dated 26/05/1998, the private practice was not stopped by the Government Doctors. It constituted a Fitment Committee and as per the recommendation of the Fitment Committee, a notification has been issued by the Finance Department, Government of Bihar for payment of non-practicing allowance w.e.f. 01/04/2000. It is also stated that the petitioner retired from service, i.e. on 31/03/1999, before coming into force of the notification contained in Annexure-4 and, therefore, she is not entitled to any such non-practicing allowance. It is also stated that the payment of non-practicing allowance continued only for a brief period, i.e. from 01/04/2000 to 01/03/2001 and, lateron, the said decision for payment of non-practicing allowance was stopped because the purpose for which non-practicing allowance was allowed, could not be achieved. Admittedly, the date on which the petitioner retired from service proper notification by the Government for payment of non-practicing allowance had not come into being. The same was notified only on 01/04/2000, i.e. subsequent to the retirement of the petitioner and, therefore, in my view, the claim of the petitioner on the basis of Annexure-1 only, is not entertainable. Since the claim of the petitioner is not covered by notification dated 01/04/2000, contained in Annexure-4 and, as such, no relief can be granted to the petitioner in this writ petition. Accordingly, this writ petition is dismissed.