IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17086 of 2009 1. DR.SURENDRA MOHAN KUMAR SINHA S/O LATE RAMCHANDRA PRASAD R/O 74E, KRISHNAPURI, P.S- SRIKRISHNAPURI, DISTT- PATNA 2. DR. (SMT.) DIPTI SINHA W/O DR. SURENDRA MOHAN KUMAR SINHA, R/O 74E, KRISHNAPUR, P.S- SRIKRISHNAPURI, DISTT- PATNA 3. DR. (MRS.) MAMTA SINHA W/O DR. KIRAN KUMAR SINHA D/O LATE G.N.LAHIRY, 404, KARNPURA, MAIN PALACE ROAD NO. 37, GARDANIBAGH, CHITKOHRA, PATNA 4. DR. KIRAN KUMAR SINHA S/O LATE C.K. PRASAD 404, KARNPURA, MAIN PALACE, ROAD NO. 37, GARDANIBAGH, P.S- GARDANIBAGH, CHITKOHRA, PATNA 5. DR. SUDHA SINHA D/O LATE AMAR NATH SINGH, MEDICAL OFFICER, BODH GAYA, R/O DAYAL KUTIR ANURAGH NARAYAN ROAD, MURARPUR, P.S- KOTWALI GAYA, GAYA 6. DR. ARVIND PRASAD S/O DR. J.P. KARAN R/O CHITRAGUPTA NAGAR, NEW COLONY, P.S- CHITRAGUPTA NAGAR, PATNA 7. DR. ARBIND DAYAL S/O LATE BRIJ NATH PRASAD, R/O DAYAL KUTIR, ANURAGH NARAYAN ROAD, MURARPUR, P.S- KOTWALI, GAYA, GAYA Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY, HELATH, MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, NEW SECRETARIAT, PATNA, BIHAR, 3. THE SPECIAL SECRETARY, HELATH MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, NEW SECRETARIAT, PATNA 4. THE JOINT SECRETARY, HEALTH EDUCATION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 5. THE DEPUTY SECRETARY, DEPARTMENT OF HELATH, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA 6. THE COMMISSIONER/SECRETARY, FINANCE DEPARTMENT, NEW SECRETARIAT, PATNA 7. DR. S.N.MEHTA S/O NOT KNOWN TO THE PETITIONER RETIRED ASSOCIATE PROFESSOR OF ENT, RESIDENT OF SHAHMIR TAKIYA NEAR KILA BAZAR, P.S- CIVIL LINES, DISTT- GAYA ----------- 02/ 02.04.2010 Heard counsel for the petitioners and counsel appearing for the State. Out of 7 petitioners, petitioner nos. 5 and 6 has already retired. Other petitioners are in service. Prayer of all these petitioners is for quashing of the order dated 31.8.2009 contained in Memo No. 631(17) (Annexure-10) issued by the Commissioner –cum- Secretary, Health, Medical - 2 - Education and Family Welfare Department, Govt. of Bihar, Patna, rejecting their claim for payment of non-practicing allowance. The grievance of the petitioners is that their claim have been rejected by the respondents on the basis of an order issued through the Finance Department vide letter No. 1646 dated 20.3.2001, whereby payment of non-practicing allowance was cancelled without withdrawing the notification regarding payment of non-practicing allowance, imposing ban on doctors in all disciplines, with effect from 26.5.1998. Petitioners for similar relief had earlier come before this Court and they were directed to represent their cases before the concerned authority. Their representations were considered and vide order dated 31.8.2009 contained in Memo No. 631 (17), has been rejected. On perusal of the impugned order, it transpires that the State Govt. vide Notification No. 189 dated 26.5.1998 had declared the services of doctors working in all disciplines, Allopathic, Homeopathic, Unani, Ayurvedic, as non-practicing and in view of declaring their services as non-practicing, they were allowed non-practicing allowance, - 3 - equivalent to 25% of their basic salary. The notification also indicated that they will be entitled for this benefit with effect from the date of issuance of the notification. However, subsequently it was found that despite declaring the services of doctors working in all specialties as non- practicing, they continued with their practice and also received non-practicing allowance. On the other hand, the government had to bear the burden of several crores of rupees in making payment to such doctors as non-practicing allowance, in view of declaring their services as non- practicing. The Finance Department vide letter no. 1646 dated 20.3.2001, cancelled earlier order regarding payment of non-practicing allowance to doctors vide Finance Department Order No. 2064 dated 28.3.2000. In the light of the order contained in letter no. 1646 dated 20.3.2001, all such doctors, whose services were declared non-practicing, and receiving non-practicing allowance, their payment was stopped. They received this allowance only for a short period in between 28.3.2000 to 20.3.2001. I find no error in the order passed by the Commissioner–cum-Secretary, respondent no. 2 disallowing - 4 - payment of non-practicing allowance to the petitioners. The plea taken by the petitioners, that without withdrawing the notification contained in Memo No. 189 dated 26.5.1998, declaring their services as non-practicing, subsequent order contained in letter no. 1646 dated 20.3.2001, cancelling payment of non-practicing could not have been passed, has no substance. This is a fact that despite declaration of services of doctors working in all specialties, they continued to practice and the order declaring their services as non- practicing could never be implemented. In this circumstance, there was no necessity for recalling earlier notification. Once a decision was taken not to make payment of non-practicing allowance, automatically the notification declaring services of doctors as non-practicing came to end. Accordingly, the prayer of the petitioners for quashing of the impugned order is rejected. This application is dismissed. DKS/ (Mridula Mishra, J.)