IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11130 of 2009 DR.MANI BHUSHAN PRASAD SINHA, S/O LATE HARIHAR PRASAD SINHA, R/O FLAT NO. 202, THREE PALMS VIHAR APARTMENT, ASHIANA-DIGHA ROAD, P.O.-B.V. COLLEGE, P.S.-SHASTRINAGAR, DISTRICT-PATNA. …………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 3. THE DEPUTY SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. 4. THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, PATNA. 5. THE PRINCIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF BIHAR, PATNA. 6. THE DEPUTY SECRETARY, DEPARTMENT OF HOME (POLICE), GOVERNMENT OF BIHAR, PATNA. 7. THE JOINT SECRETARY, DEPARTMENT OF HOME (POLICE), GOVERNMENT OF BIHAR, PATNA. 8. THE DIRECTOR GENERAL OF POLICE, BIHAR, PATNA. 9. THE DEPUTY INSPECTOR GENERAL OF POLICE (ADMINISTRATION), BIHAR, PATNA. 10. THE SUPERINTENDENT OF POLICE, GAYA. 11. THE STATE OF JHARKHAND THROUGH THE CHIEF SECRETARY, RANCHI, JHARKHAND. 12. THE SECRETARY, DEPARTMENT OF HEALTH, AND FAMILY WELFARE, GOVERNMENT OF JHARKHAND, RANCHI. 13. THE CIVIL SURGEON-CUM CHIEF MEDICAL OFFICER, DEOGHAR. 14. THE INCHARGE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, SARATH, DEOGHAR. 15. THE ACCOUNTANT GENERAL, BIHAR, PATNA. ……………RESPONDENTS. ----------- For the Petitioner : Mr.Ajey Kumar, Advocate. For the Bihar State: Mr.Pankaj Kumar Sinha, AC to SC-III. For the Jharkhand State : Mr.Satyavrat Verma, Adv. For the A.G. : Mr.Ajit Kumar, Adv. ------------ 3 04.11.2010 Petitioner has filed this writ application challenging the letter of the Deputy Secretary of the Department of Home 2 (Police), Government of Bihar dated 15.6.2009, as contained in Annexure-13, by which the claim of the petitioner for payment of non-practising allowance to him for the period prior to 1.4.2000 has been denied. The impugned letter shows that the same has been denied on the basis of Finance Department letter no. 2064 dated 28.3.2000. A copy of the said letter of the Finance Department is Annexure-2 with the writ application. This letter shows that non- practising allowance has been made admissible to the doctors in Government employment from 1.4.2000. Paragraph nos. 4 and 5 of the said letter which are relevant for the purposes of this case are reproduced hereinbelow:- 4- mi;qZDr HkÙkk 1-4-2000 ls ns; gksxkA 5- mi;qZDr HkÙkk dk Hkqxrku egkys[kkdkj@oS;fDrd nkok dksÔkax] foÙk fuxZr izkf/kdkj&i= ds vk/kkj ij gksxkA izkf/kdkj&i= fpfdRldksa }kjk lh/ks egkys[kkdkj@oS;fDrd nkok fu/kkZj.k dksÔkax }kjk vxzlfjr /kksÔ.kk ds vk/kkj ij fuxZr gksxkA ?kksÔ.kk&i= esa vafdr futh o;olk; NksMz+us dh frfFk ls xSj&O;kolkf;d HkÙkk ns; gksxkA Learned counsel for the petitioner submits that by notification of the 3 Department of Health dated 26.5.1998, as contained in Annexure-1, the non-practising allowance was made admissible to the Government doctors from the date of issue of notification itself. It was mentioned in the notification that the date of non-practising allowance shall be fixed on the basis of the report of the Fitment Committee and the same shall be payable from the date of issue of notification itself. He points out that the petitioner was earlier posted in Deoghar and there he filed his declaration in the requisite form on the basis of non-practising allowance admissible to him and a pay slip was also issued by the Accountant General, as contained in Annexure-6, which was issued in terms of Annexure-1. He further points out that the exactly identical issue fell for consideration before the High Court of Jharkhand in W.P. (S) No.2894 of 2001 and by order passed on 10.02.2003, vide Annexure-3, the Jharkhand High Court held that the non- practising allowance is admissible to the doctors from the date they submitted their declaration. From the judgment of Jharkhand High 4 Court it is clear that it had noticed the anomaly in paragraph 4 and 5 of the said Finance Department letter dated 28.3.2000 which has been quoted hereinabove. The Jharkhand High Court found that though in paragraph 4 of the said Finance Department letter it was mentioned that the said allowance shall be admissible from 1.4.2000, in paragraph 5 it is stated that the allowance will be admissible to the concerned doctors from the date of submission of declaration with regard to stoppage of their practice. The Jharkhand High Court found that the stipulation made in paragraph 4 and 5 was in conflict with each other and, therefore, since the stipulation in paragraph 5 was beneficial to the concerned incumbents the same has to prevail upon the stipulation made in said paragraph 4 on the ground of fairness and equity. Learned counsel for the State of Bihar submits that the impugned letter has been issued in the light of the said letter of the Finance Department dated 28.3.2000. The anomalous position arising in the said letter of the Finance Department dated 5 28.3.2000 stands clearly discussed and explained by the Jharkhand High Court in its judgment, as contained in Annexure-3. The Jharkhand High Court has clearly held that the stipulation in paragraph 5 of the said Finance Department letter has to prevail upon the stipulation made in paragraph 4. This Court is in full agreement with the Jharkhand High Court in respect of interpretation of the letter of the Finance Department in its said order, as contained in Annexure-3. Therefore, this Court holds that the petitioner will be entitled for payment of non-practising allowance from the date he submitted his declaration as required. In this respect this Court holds that the pay slip issued by the Accountant General office in respect of the petitioner was rightly done and the petitioner is entitled to non- practising allowance as calculated by the Accountant General office in its pay slip, as contained in Annexure-6. Now the question arises which Government will pay the allowance. After final allocation of service, petitioner has been posted under the jurisdiction of the 6 Bihar State Government. Learned counsel for the petitioner draws the attention of this Court to another letter of the Finance Department, as contained in Annexure-14. This letter clearly lays down that, in respect of the employees of the Government, whose services have been finally allocated to the Bihar State Government, the dues accrued in their favour while working under the Jharkhand State, shall be payable by the Bihar State Government itself. In view of this letter of the Finance Department the dues of the petitioner as calculated by the Accountant General is clearly payable by the Bihar State. In the above facts and circumstances, the writ application is allowed. The respondent authorities of the State of Bihar are directed to release the due amount of non-practising allowance to the petitioner within a period of three months from the date of receipt/production of a copy of this order. Learned counsel for the petitioner submits that there is small dues of 7 Rs.32,000/- and odd for which petitioner has filed a representation before his controlling authority, a copy whereof is annexed as Annexure-15. The concerned authorities shall consider the said representation of the petitioner and pass appropriate orders in accordance with law within the aforesaid period. Arvind/ (J. N. Singh, J.)