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Jharkhand High Court · body

2017 DIGILAW 2012 (JHR)

Kaushal Kishore Sinha v. The State Of Jharkhand

2017-11-22

S.N.PATHAK

body2017
ORDER S.N. Pathak, J. - The petitioners have approached this Hon''ble Court with a prayer for commanding upon the respondents for release of non practicing allowance and dearness allowance for the period from December, 2012 to August, 2014, which has been arbitrarily withheld without any valid reason or any prior notice. Further prayer has been made to decide pending representation of the petitioners. 2. The petitioners were appointed as Medical Officers in Bihar State Health Services and subsequently transferred to State of Jharkhand after the creation of new State of Jharkhand and some of the petitioners are also appointed by RIMS as its own separate cadre. 3. It appears that some of the petitioners have retired and some others are working in different departments of RIMS. 4. It has been stated that the Rajendra Institute of Medical Science was established by Rajendra Institute of Medical Sciences, Act, 2002. The said Act came into force on and with effect from 15th August, 2002 and the Rajendra Institute of Medical Science (in short RIMS), by virtue of the provisions of Section 7 of the said Act, was declared as an autonomous body and the power of the management of the RIMS is made to vest in the Governing Body comprising of 15 members as spelt out under Section 7 of the said Act. Section 31 of the said Act deals with the Rule making powers and Section 32 of the Act provides for framing of regulation. By virtue of the notification No.518(1) Ranchi dated 12.8.2002 Rajendra Institute of Medical Sciences Rule 2002 was formulated. Clause 15 (3) of the Rajendra Institute of Medical Sciences Rule 2002 mandates all posts of the Institute as Non-practicing. It is the case of the petitioners that by abiding with the aforesaid Rules, they are not in private practice. Clause 15(2) of Rajendra Institute of Medical Sciences Rule 2002 also mandated that the Institute shall frame its own regulations with respect to service condition, salary, allowances etc. within 2 years of notification of Rules, 2002. Clause 16 of the Rules empowers Governing Body for deciding salary and allowances of the posts under the RIMS with the approval of State Government. Clause 16 of the Rules reads as follows:- Quote " Rajya Sarkar se purv anumodan prapt kar sasi parisad dwara sansthan ke pad ke 5. within 2 years of notification of Rules, 2002. Clause 16 of the Rules empowers Governing Body for deciding salary and allowances of the posts under the RIMS with the approval of State Government. Clause 16 of the Rules reads as follows:- Quote " Rajya Sarkar se purv anumodan prapt kar sasi parisad dwara sansthan ke pad ke 5. It is stated that by virtue of power given under Rule 16 of Rajendra Institute of Medical Sciences Rule, 2002, the Governing Body of RIMS in its 2nd meeting held on 23.10.2002 decided that Non-practicing Allowances (NPA) to be paid to doctors working in RIMS @ 25% of their basic pay like CGHS and AIIMS, New Delhi with effect from 1.11.2002. The Governing Body also constituted a monitoring committee for ensuring that doctors actually do not indulge in private practice. 6. It is stated that thereafter the Governing Body vide its 7th meeting held on 28.8.2004 decided to follow the Rules and Regulations of State Government regarding payment of NPA so long as the employees posted in RIMS constituted to be Government servants. 7. It is stated that pursuant to decision taken by Governing Body of RIMS, the doctors posted at RIMS have been paid the Non3. practicing allowances with effect from 1.11.2002 @ 25% of Basic Pay and thereon the dearness allowance prevailing at the respective period in consonance to other Institute and Central Government Rules. 8. It is stated that a declaration on the pay bill was also taken from the petitioners to the effect that petitioners are not doing private practice for release/payment of NPA amount. 9. It is the case of the petitioner that respondent No.1 in most arbitrary and irrational manner vide letter No.7/Budgetawantan- 03/2012 28(7) dated 19.5.2012 has given direction that out of the total allotted budgetary amount for the year 2012-13, payment of NPA would not be made. 10. It is stated that petitioners were given assurance that very soon a supplementary allocation of fund will be made available and their legitimate allowance will be released. Further, the payment of NPA out of the allotted fund was stopped whereas there was no dispute to the fact that the petitioners are entitled for the same. 11. 10. It is stated that petitioners were given assurance that very soon a supplementary allocation of fund will be made available and their legitimate allowance will be released. Further, the payment of NPA out of the allotted fund was stopped whereas there was no dispute to the fact that the petitioners are entitled for the same. 11. It is stated that thereafter the NPA amount was released till November, 2012 from the RIMS fund by the order of Chairman-cum-Health Minister of Governing Body and further it was stopped from December, 2012 to August, 2014 without assigning any reason and hence this writ petition has been preferred for payment of NPA with effect from December, 2012 to August, 2014. 12. Mr. Shrestha Gutam, learned Counsel appearing for the petitioner argued that respondents have illegally and arbitrarily not paid the benefits of non-practicing allowance from December, 2012 to August, 2014 as well as dearness allowance thereupon, whereas earlier it was regularly paid to them. 13. Learned Counsel further argued that there is no occasion to withhold the NPA amount though the regulation itself envisages for making such payment. 14. Learned Counsel emphatically argued that once regulation has been framed under the RIMS Act in no way the same can be withheld in the garb of executive order. 15. Learned Counsel draws the attention of the Court towards the Regulation under Section 32 of the RIMS Act, 2002 notified on 8.9.2014 which asserts the right of petitioner regarding Non-Practicing allowance and as such in view of the regulation, the petitioners are entitled for NPA allowance and the same has not been paid to them illegally from December, 2012 to August, 2014. 16. Per contra counter-affidavit has been filed. 17. Mr. Rajesh Kumar, G.P. V vehemently opposes the contention of the learned Counsel for the petitioner and argued that in view of the said notification dated 08.10.2014 (Annexure-B), the petitioners are admittedly entitled for NPA. But the said entitlement is from 08.10.2014 i.e. the date of issuance of this notification and not from earlier date which the petitioners are claiming. Mr. Rajesh Kumar, G.P. V vehemently opposes the contention of the learned Counsel for the petitioner and argued that in view of the said notification dated 08.10.2014 (Annexure-B), the petitioners are admittedly entitled for NPA. But the said entitlement is from 08.10.2014 i.e. the date of issuance of this notification and not from earlier date which the petitioners are claiming. However, learned Counsel for the petitioner very fairly submits that as already a Committee has been constituted and no decision has been taken on the pending representation of the petitioner suffice it would be if a direction is given to the respondents to take a decision on pending representation of the petitioner as the petitioner has rushed to this Court without waiting for the decision of the Committee and as such the writ petition is itself premature. 18. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of the records and the averment made in the writ petition as well as counter affidavit it is clear that a regulation has been framed under Section 32 of the RIMS Act, 2002 notified on 08.09.2014. Clause 12 (V) of the Regulation reiterated the provision of Rule 15(3). More so it also asserted the right of petitioner regarding Non-practicing allowance in following words: "Sansthan ke sabhi pad gairvyawsaik honge tatha sabhi chikitsa padadhikari (nibandhit chikitsa vayosai) RIMS adhiniyam 2002 ke prarambhan ki thithi (15 August 2002) se niyamanusar gai vyawsaik bhatte prapt karenge. Yadi kisi karmi ke virudh niji vyawsai karne ka dosh sidh hota hai us sthiti me unke virudh rajya asainik sewaayen (vargikaran, Niyantran tatha appeal) Niyamawali, 1930 ke tahat Aeyem Akhil Bhartiya Ayurvigyan Sansthan, New Delhi ke niyam ke tahat karwai ki jayegi." The notification of the State Government has also been brought on record at Annexure-B to the counter-affidavit which is dated 08.10.2014. It is settled principle of law that once a regulation has been framed under the Statutory Act the same cannot be turned down by way of any executive order. In view of the settled principle of law it is admitted that rules and regulations will prevail over the executive order. It is settled principle of law that once a regulation has been framed under the Statutory Act the same cannot be turned down by way of any executive order. In view of the settled principle of law it is admitted that rules and regulations will prevail over the executive order. Since the representation of the petitioner is already pending before the Committee, I direct the respondent No.2 to take a decision on the pending representation of the petitioner regarding benefits of non practicing allowance and dearness allowance in view of RIMS Act, 2002 and as per regulation 2014. 19. Let a decision be taken within a period of six weeks from the date of receipt of a copy of this order. 20. Needless to say that if the petitioners are found entitled for the benefits of NPA and D.A. thereupon, as prayed above, the same shall be extended to them within a further period of four weeks. 21. The writ petition stands disposed of.