IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 6468/2008 Reserved on: 30.11.2010 Decided on:8.12. 2010 _____________________________________________ Dr. Dinesh Kumar Rana. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. B.B. Vaid, Advocate. For the Respondents: Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Asstt. Advocate. ____________________________________________________ Justice Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the petitioner was appointed as Medical Officer (Ayurveda) under respondent-State. He joined his duties on his first appointment in Ayurvedic Health Centre, Nako, District Kinnaur on 19.3.1996. Thereafter, petitioner was transferred from Ayurvedic Health Centre, Nako to Tribal Hospital, Rekong Peo on 6.9.1997. He joined his duties at Tribal Hospital, Rekong Peo on 16.9.1997. Respondent-State 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 has issued office memorandum dated 21.9.1995, which reads thus: “The matter with regard to give some financial incentive to the doctors of Health and Ayurveda Department of the State was engaging attention of the Government for some time past so that the far flung areas and remote health Institutions of the State may not remain without their services and the people of these areas are provided with better health facilities. 2. Therefore, the Governor, Himachal Pradesh, is pleased to order that the doctors of Health and Ayurveda Department of Himachal Pradesh will be entitled for accumulated “Special Non-practising Allowance” amounting to Rs. 1.00 lakh for the areas mentioned in Annexure “A-1 and A-II” and Rs. 75.000/- for the areas mentioned in Annexure “B-1 & B-II” for the effective service of the doctors in these areas subject to the following conditions:- (A) The period for minimum effective service will be three years and will commence from the date of actual joining or w.e.f. 15.9.95, whichever is later, of the doctor and it will not include leave of any kind admissible under the C.C.S. (Leave) Rules, 1972 except casual leave during this period. (B) Earned leave, if not availed of by the doctor posted in these Institutions, will not lapse even after the accumulated leave 240 days and this will be allowed to be accumulated in relaxation the rules for three years after which encashment of the earned leave will be admissible to the concerned doctors in addition to accumulate special N.P.A. In respect of such cases where the total accumulated earned leave is less than 240 days from the date of joining or w.e.f. 15.9.95 whichever is later, in very Hard/Hard Areas as per (Annexure A-1, A-II and B-1 and B-II), such 3 doctors shall be entitled to encashment or earned leave after completion of prescribed tenure of three years effective service in relaxation of Rules. (C) The inventive proposed above will be in addition to the pay and allowance admissible to employee under existing Rules/Instructions (D) The encashment of Rs. 75,000/- will be payable annually @ Rs. 25,000/- per annum and the amount of Rs. 1.00 lakh will be payable @ Rs. 30,000/-, Rs. 30,000/- and Rs. 40,000/- during 1st, 2nd and 3rd years respectively after completion of every effective years of service. Those not completing the minimum effective period of 3 years and having received any part of the incentive shall have to refund the amount received which shall be recoverable from them in one lump sum. This amount shall be secured at the time of release of 1st installment by obtaining a bond from the concerned doctor. The period of leave of any kind admissible under the C.C.S. (Leave) Rules, 1972 availed by the concerned doctors during posting in Hard/very Hard areas shall be added to the actual period spent on duty in the Institution in these areas during the currency of respective effect years of service for being eligible to receive accumulated Special N.P.A. 3. The amount of accumulated Non-Practising Allowance will be suigeneris viz. it will neither be termed as “pay” nor “Allowance” nor “Wage”. Accordingly this amount will not count for any service benefit i.e. computation of House Rent Allowance, Compensatory Allowance, Dearness Allowance, Cash Compensation, Encashment of Leave, pay fixation, pension, gratuity etc. etc. 4. The above scheme will come into force with effect from 15.9.95 and will cover those doctors who are 4 already serving these institutions under this scheme prospectively. 5. This issues with the prior approval of the Finance Department obtained vide their U.O. No. 11009- Fin-C-3(7)-3/95-dated 16.9.1995.” 2. Nako is mentioned at Sr. No. 8 of Annexure A-II and Tribal Hospital, Rekong Peo is mentioned at Sr. No.1 of Annexure B-II of office memorandum dated 21.9.1995. State Government in its own wisdom had withdrawn office memorandum dated 21.9.1995 on 17.3.1997. Thereafter by issuing addendum dated 23.12.1997, it was decided to give special non-practising allowance for those doctors who were already working in the hard/very hard areas as defined in office memorandum dated 21.9.1995 and had joined the duties before 17.3.1997 when the scheme was withdrawn. 3. Petitioner was transferred from Tribal Hospital Rekong Peo to Sub Divisional Ayurvedic Hospital, Dehra vide office order dated 4.7.1998. The copy of this order was not placed on record either by the petitioner or by the respondent-State. The direction was issued to the respondent-State to produce the copy of order dated 4.7.1998 and the same has been placed on record. Petitioner has joined his duties as Medical Officer at Sub- Divisional Ayurvedic Hospital, Dehra on 17.7.1998 vide Annexure A-3. Petitioner was released a sum of Rs. 30,000/- 5 on 18.3.1997 as per office memorandum dated 21.9.1995. Petitioner was served with a notice by respondent No.2 informing him that recovery of Rs. 5,000/- shall be made from the salary of the petitioner for the month of September, 1999, payable in the month of October, 1999. He was not heard before the issuance of notice whereby recovery of Rs. 5,000/- was to be made from the salary of the petitioner. The purported ground on which the recoveries were to be effected from the salary of the petitioner was that he was not entitled to special non-practising allowance of Rs. 30,000/- since he had not completed three years in the tribal area. 4. Mr. B.B. Vaid has strenuously argued that his client has rightly been paid a sum of Rs. 30,000/- by way of first installment of special non-practising allowance and his client was entitled to second installment since he had worked in the tribal area from 19.3.1996 till 4.7.1998, as per notification dated 21.9.1995. He further argued that no notice was issued to the petitioner to effect recovery from his salary. 5. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that since the petitioner has not completed three years minimum effective service in the area 6 mentioned in office memorandum dated 21.9.1995, he was not entitled to special non-practising allowance and the recoveries have been effected as per office memorandum dated 21.9.1995. 6. I have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Petitioner was appointed in the tribal area on 19.3.1996. He assumed his duties at Ayurvedic Health Centre, Nako. He was transferred by the respondent-State to Tribal Hospital, Rekong Peo on 6.9.1997 pursuant to which he joined his duties at Rekong Peo on 16.9.1997. He was transferred vide office order dated 4.7.1998 from Tribal Hospital, Rekong Peo to Sub Divisional Ayurvedic Hospital, Dehra where he joined his duties on 17.7.1998. He has worked in tribal area with effect from 19.3.1996 till his transfer to Sub-Divisional Ayurvedic Hospital, Dehra. Doctors, who were working in the areas mentioned in Annexure A-II were entitled to a sum of Rs. 1.00 lakh and Rs. 75,000/-, who were working in the areas mentioned in Annexure B-II, as per office memorandum dated 21.9.1995. Petitioner has worked in areas mentioned in Annexures A-II and B-II, thus, he was entitled to special non-practising allowance for serving in Ayurvedic Health Centre Nako with 7 effect from 19.3.1996 to 5.9.1997 and Tribal Hospital, Rekong Peo with effect from 6.9.1997 to 4.7.1998. Petitioner indeed has been paid a sum of Rs. 30,000/- on 18.3.1998. He was also required to be paid a sum of Rs. 25,000/- as per office memorandum dated 21.9.1995 since he has worked in Tribal Hospital, Rekong Peo till 4.7.1998. He was transferred to Sub- Divisional Ayurvedic Hospital, Dehra by the respondent-State on its own discretion. It is not a case where the petitioner was not ready and willing to complete three years in tribal area. There is nothing to suggest in letter dated 4.7.1998 that the petitioner has sought his transfer from Tribal Hospital, Rekong Peo to Sub Divisional Ayurvedic Hospital, Dehra. In fact, the petitioner has been transferred and has been held entitled to T.A./D.A. In case the petitioner had opted to be transferred from hard area to soft area, he was not entitled to special non- practising allowance. However, in this case, he was always ready and willing to complete three years in hard/far flung areas. This period has been cut short by order dated 4.7.1998. This is a case where principle of lex non cogit ad impossibilia is attracted. Respondent-State could not expect from the petitioner to complete three years in far flung area when he has been transferred by the State of its own. 8 8. Mr. P.M. Negi has strenuously argued that the recoveries have been ordered to be effected as per clause (D) of office memorandum dated 21.9.1995. This clause will only apply in those cases where the doctor himself has sought his transfer and had not completed three years of effective service in tribal/far flung areas. In case the State itself has transferred the employee, as noticed above, this condition will not be applicable. 9. The matter is required to be considered from another angle. If the contention of Mr. P.M. Negi is accepted then the doctors, who had worked in the tribal area even for more than two years will be deprived of the benefit of special non-practising allowance despite the fact that they were ready and willing to serve the tribal/ far flung areas for three years. 10. Respondent-State has introduced the scheme in its own wisdom to give incentive to doctors who joined in tribal/far flung areas vide office memorandum dated 21.9.1995. State at one given time on 17.3.1997 had withdrawn the same, however, by way of addendum, the scheme had been made applicable to the doctors who had joined the tribal area on or before 17.3.1997. Since the petitioner was ready and willing to serve in the hard/far flung 9 areas for a period of three years, the action of respondents to effect recoveries from the salary of the petitioner with effect from September, 1999 payable in the month of October, 1999 is declared illegal. 11. Accordingly, in view of the observations made hereinabove, the petition is allowed. The decision of the respondent-State to effect recoveries from the salary of the petitioner is declared illegal. Petitioner is held entitled to a sum of Rs. 30,000/-, which has been paid to him on 18.3.1997 for working in Ayurvedic Health Centre, Nako for a period with effect from 19.3.1996 to 5.9.1997 and over and above he is also entitled to a sum of Rs. 25,000/- for working at Tribal Hospital, Rekong Peo with effect from 6.9.1997 till the date of his relieving to Sub-Divisional Ayurvedic Hospital, Dehra. Needful be done within a period of eight weeks from the date of production of certified copy of this judgment by the petitioner. There shall, however, be no order as to costs. (Rajiv Sharma), Judge 8.12. 2010 *awasthi*