1 CIVIL WRIT JURISDICTION CASE No.11114 OF 2006 -------- In the matter of an application under Article 226 of the Constitution of India. -------- 1. The Union of India through General Manager N.E. Railway, Gorakhpur. 2. F.A. & CAO N.E., Railway, Gorakhpur ---- Respondents in O.A., No.215/2005 --- Petitioners. Versus Dr. Naw Nath Prasad, Son of late R.S. Srivastava, Retired Medical Director, L.N.M., Railway Hospital, N.E. Railway, Gorakhpur, resident of Village-Mathia, Shriram, P.O. Sheorahi District- Kushinagar, presently, resident at 25, Kidwaipuri, Patna-1. Applicants in O.A. No.215/2005 --- Respondent. ----------- For The Petitioner : Mr. Devendra Kumar Sinha, Sr.Advocate & Mr. Mahesh Prasad. For The Respondent : Mr. Gautam Bose,Sr.Advocate Mr. Ajay Kumar and Ms. Ratna Das. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE K. MANDAL S. K. Katriar, J. This writ petition is directed against the order dated 17.1.2006 (Annexure-1), passed by the learned Central Administrative Tribunal, Patna Bench, Patna, in O.A. No. 215 of 2005 (Dr. Naw Nath Prasad Vrs. The Union of India & Ors.), whereby the original application preferred by the respondent herein has been allowed, and it has been directed that non-practising allowance payable to the doctor in the railway service 2 while in harness be added for computation of post- retirement benefits. 2. We have perused the materials on record and considered the submissions of learned counsel for the parties. The respondent herein was a Doctor in the services of the Indian Railways, he had joined as such on 15.10.1962, and superannuated with effect from 31.1.1996 while functioning as Medical Director. As per rules in force, he was drawing 25% of his salary by way of non-practising allowance as a result of which he was precluded from doing private practice. After his superannuation, the authorities took the stand that non-practising allowance shall not form part of his salary last drawn for the purpose of computation of post-retirement benefits leading to the aforesaid original application. The same has been allowed by the impugned order. 3. It appears to us that the Railways had still earlier taken stand that non-practising allowance shall not form part of the salary for the purpose in question. The Medical Officers Association had challenged the same by preferring O.A. 1647 of 2000, before the Principal Bench of the Tribunal and was dismissed by order dated 15.10.2001. The petitioner challenged the same by preferring Civil Writ Petition No. 7826 of 2001 3 (Retired Railway Medical Officers Association Vrs. Union of India and others), which was allowed by judgment dated 18.5.2002, passed by a Division Bench of Delhi High Court, whereby the order of the Tribunal has been set aside, and it was held that such retired doctors shall be entitled to the benefit of addition of non- practising allowance. Paragraph nos.8.0, 8.1 and 10.3 of the judgment are reproduced hereinbelow for the facility of quick reference: “8.0. The learned counsel for the respondents, in our opinion, is not correct in his contention that despite the provisions in the Fundamental Rules, N.P.A. should not be treated as part of pay. 8.1. The learned counsel for the respondents, in our opinion, is also not correct in his contention that by reason of grant of such N.P.A. the retirees would be getting double benefit. Having regard to the fact that N.P.A. which they had been getting merged in the scale of pay and the pension in terms of the recommendations of the 5th CPC was to be paid with prospective effect, the question of their getting double benefit of N.P.A. does not arise. 10.3. It is difficult for us to accept the contention that despite the fact that N.P.A. shall form part of pay so far as post 01.01.1996 retirees are concerned, the same would not form part of pay despite provisions in the Fundamental Rules so far as pre 01.01.1986 retirees are concerned. The 5th CPC has taken into consideration, as noticed hereinbefore, the history of grant of N.P.A. and wherefrom it is evident that N.P.A. became part of pay.” 4 The Department of Pension and Pensioner welfare filed Special Leave Petition before the Supreme Court which was dismissed. 4. An identical original application at the instance of one Doctor G.D. Hoonka, retired Chief Medical Superintendent, was allowed by the Jabalpur Bench. The authorities challenged the same by preferring W.P. No. 2539 of 2003 (Union of India and others Vrs. The Central Administrative Tribunal, Jabalpur Bench, Jabalpur & Ors.), which was dismissed by a Division Bench of Madhya Pradesh High Court by order dated 7.12.2004(Annexure-R/4), and the order of the learned Tribunal was upheld. The Union of India challenged the same by preferring C.C. No. 7394 of 2005 (Union of India and others Vs. G.D.Hoonka (Annexure-R/5), whereby the same was dismissed. The Supreme Court refused to interfere with the order of the High Court of Madhya Pradesh at Jabalpur. 5. In view of these judgments, the Union of India issued the following circulars: “Thereafter the Ministry of Railways (Railway Board) vide their letter No. F(E)III/2002/PN-1/2 dated 25.8.2005 has advised the Zonal Railways as under:- “In view of above, the Zonal Railway administrations are hereby requested to take immediate action to implement the judgement in respect of petitioners as per the list enclosed. Since DOP & PW’s OM 5 dated 29.10.1999 (Board’s letter dated 12.11.1999) stands quashed. Non-practicing allowance will have to be added the notional pay of pre 1986 retired Medical Officers re- fixed as on 1.1.1986 for recomputation of notional pension/family pension in terms of Board’s letter no. F(E) III/98/PN/1/2 dated 10.3.1998 and also to the minimum of the corresponding Vth CPC revised scales of pay as on 1.1.1996 for the purpose of stepping up of pension/family pension in terms of Board’s letter No.F(E)III/98/PN 1/29 dated 15.1.1999, in respect of the petitioners.” 6. It is thus evident from a plain reading of the decisions of the Courts deciding identical issues, and duly executed by the Ministry of Railways (Railway Board) by issuing the aforesaid letter dated 25.8.2005, that non-practising allowance availed of by a serving doctor of Indian Railways Service is entitled for the same to be taken into account for the purpose of computation of post-retirement benefits. 7. The decision of the authorities declining the same to the present respondent, the contest put up before the Tribunal and the present writ petition at the instance of the authorities, is beyond our comprehension, speaks of not only unreasonable approach, seems to be arbitrary and verging on administrative tyranny, and burdening the Tribunal and this Court with utmost unwanted 6 matters, and harassing the retired employee in the evening of his life. 8. In the result this writ petition is dismissed with costs quantified at Rs.25,000/- payable to the respondent with the next instalment of his post-retirement benefits. He shall also be entitled to interest at the rate of 9 (nine) percent on the arrears of post- retirement benefits from the date(s) the amounts became due till the date of payment. ( S. K. Katriar, J.) Kishore K. Mandal,J. I agree. ( Kishore K. Mandal, J.) High Court Patna, Dated 9th February, 2010. Vinay/ NAFR.