SCA/11170/2007 1/49 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11170 of 2007 With SPECIAL CIVIL APPLICATION No. 9441 of 2007 With SPECIAL CIVIL APPLICATION No. 9624 of 2007 With SPECIAL CIVIL APPLICATION No. 14496 of 2007 To SPECIAL CIVIL APPLICATION No. 14539 of 2007 With SPECIAL CIVIL APPLICATION No. 9625 of 2007 With SPECIAL CIVIL APPLICATION No. 14464 of 2007 To SPECIAL CIVIL APPLICATION No. 14495 of 2007 With SPECIAL CIVIL APPLICATION No. 10845 of 2007 To SPECIAL CIVIL APPLICATION No. 10880 of 2007 With SPECIAL CIVIL APPLICATION No. 10881 of 2007 With SPECIAL CIVIL APPLICATION No. 14203 of 2007 With SPECIAL CIVIL APPLICATION No. 14342 of 2007 With SPECIAL CIVIL APPLICATION No. 14381 of 2007 With SPECIAL CIVIL APPLICATION No. 15950 of 2007 To SPECIAL CIVIL APPLICATION No. 15952 of 2007 With SPECIAL CIVIL APPLICATION No. 14383 of 2007 With SPECIAL CIVIL APPLICATION No. 15953 of 2007 To SPECIAL CIVIL APPLICATION No. 15991 of 2007 With SPECIAL CIVIL APPLICATION No. 10915 of 2007 With SPECIAL CIVIL APPLICATION No. 15872 of 2007 To SPECIAL CIVIL APPLICATION No. 15884 of 2007 With SPECIAL CIVIL APPLICATION No. 15895 of 2007 To SPECIAL CIVIL APPLICATION No. 15897 of 2007 With SPECIAL CIVIL APPLICATION No. 15995 of 2007 To SPECIAL CIVIL APPLICATION No. 16006 of 2007 With SPECIAL CIVIL APPLICATION No. 16122 of 2007 SCA/11170/2007 2/49 JUDGMENT With SPECIAL CIVIL APPLICATION No. 16123 of 2007 To SPECIAL CIVIL APPLICATION No. 16129 of 2007 With SPECIAL CIVIL APPLICATION No. 16791 of 2007 To SPECIAL CIVIL APPLICATION No. 16793 of 2007 With SPECIAL CIVIL APPLICATION No. 16828 of 2007 To SPECIAL CIVIL APPLICATION No. 16831 of 2007 With SPECIAL CIVIL APPLICATION No. 17133 of 2007 With SPECIAL CIVIL APPLICATION No. 17135 of 2007 To SPECIAL CIVIL APPLICATION No. 17141 of 2007 With SPECIAL CIVIL APPLICATION No. 17242 of 2007 To SPECIAL CIVIL APPLICATION No. 17305 of 2007 With SPECIAL CIVIL APPLICATION No. 17882 of 2007 To SPECIAL CIVIL APPLICATION No. 17884 of 2007 With SPECIAL CIVIL APPLICATION No. 17946 of 2007 To SPECIAL CIVIL APPLICATION No. 17962 of 2007 With SPECIAL CIVIL APPLICATION No. 18136 of 2007 To SPECIAL CIVIL APPLICATION No. 18153 of 2007 With SPECIAL CIVIL APPLICATION No. 24339 of 2007 With SPECIAL CIVIL APPLICATION No. 24304 of 2007 With SPECIAL CIVIL APPLICATION No. 24272 of 2007 With SPECIAL CIVIL APPLICATION No. 23831 of 2007 With SPECIAL CIVIL APPLICATION No. 23700 of 2007 With SPECIAL CIVIL APPLICATION No. 23091 of 2007 With SPECIAL CIVIL APPLICATION No. 23045 of 2007 To SPECIAL CIVIL APPLICATION No. 23049 of 2007 With SPECIAL CIVIL APPLICATION No. 22857 of 2007 With SPECIAL CIVIL APPLICATION No. 22476 of 2007 With SCA/11170/2007 3/49 JUDGMENT SPECIAL CIVIL APPLICATION No. 21826 of 2007 With SPECIAL CIVIL APPLICATION No. 21739 of 2007 With SPECIAL CIVIL APPLICATION No. 19973 of 2007 With SPECIAL CIVIL APPLICATION No. 19932 of 2007 With SPECIAL CIVIL APPLICATION No. 19669 of 2007 With SPECIAL CIVIL APPLICATION No. 19651 of 2007 With SPECIAL CIVIL APPLICATION No. 19534 of 2007 With SPECIAL CIVIL APPLICATION No. 22441 of 2007 With SPECIAL CIVIL APPLICATION No. 24860 of 2007 With SPECIAL CIVIL APPLICATION No. 25824 of 2007 With SPECIAL CIVIL APPLICATION No. 27337 of 2007 With SPECIAL CIVIL APPLICATION No. 27338 of 2007 To SPECIAL CIVIL APPLICATION No. 27346 of 2007 With SPECIAL CIVIL APPLICATION No. 25825 of 2007 To SPECIAL CIVIL APPLICATION No. 25829 of 2007 With SPECIAL CIVIL APPLICATION No. 28662 of 2007 With SPECIAL CIVIL APPLICATION No. 28664 of 2007 To SPECIAL CIVIL APPLICATION No. 28669 of 2007 With SPECIAL CIVIL APPLICATION No. 10882 of 2007 To SPECIAL CIVIL APPLICATION No. 10914 of 2007 With SPECIAL CIVIL APPLICATION No. 14204 of 2007 To SPECIAL CIVIL APPLICATION No. 14225 of 2007 With SPECIAL CIVIL APPLICATION No. 14343 of 2007 To SPECIAL CIVIL APPLICATION No. 14372 of 2007 With SPECIAL CIVIL APPLICATION No. 10916 of 2007 To SPECIAL CIVIL APPLICATION No. 10925 of 2007 With SPECIAL CIVIL APPLICATION No. 24340 of 2007 To SPECIAL CIVIL APPLICATION No. 24345 of 2007 With SCA/11170/2007 4/49 JUDGMENT SPECIAL CIVIL APPLICATION No. 24305 of 2007 To SPECIAL CIVIL APPLICATION No. 24337 of 2007 With SPECIAL CIVIL APPLICATION No. 23092 of 2007 To SPECIAL CIVIL APPLICATION No. 23101 of 2007 With SPECIAL CIVIL APPLICATION No. 22858 of 2007 To SPECIAL CIVIL APPLICATION No. 22892 of 2007 With SPECIAL CIVIL APPLICATION No. 22477 of 2007 To SPECIAL CIVIL APPLICATION No. 22481 of 2007 With SPECIAL CIVIL APPLICATION No. 21827 of 2007 With SPECIAL CIVIL APPLICATION No. 21740 of 2007 To SPECIAL CIVIL APPLICATION No. 21745 of 2007 With SPECIAL CIVIL APPLICATION No. 19974 of 2007 With SPECIAL CIVIL APPLICATION No. 19933 of 2007 To SPECIAL CIVIL APPLICATION No. 19969 of 2007 With SPECIAL CIVIL APPLICATION No. 19670 of 2007 To SPECIAL CIVIL APPLICATION No. 19673 of 2007 With SPECIAL CIVIL APPLICATION No. 19652 of 2007 To SPECIAL CIVIL APPLICATION No. 19658 of 2007 With SPECIAL CIVIL APPLICATION No. 19535 of 2007 To SPECIAL CIVIL APPLICATION No. 19541 of 2007 With SPECIAL CIVIL APPLICATION No. 19535 of 2007 To SPECIAL CIVIL APPLICATION No. 19541 of 2007 To SPECIAL CIVIL APPLICATION No. 19541 of 2007 With SPECIAL CIVIL APPLICATION No. 23813 of 2007 To SPECIAL CIVIL APPLICATION No. 23823 of 2007 With SPECIAL CIVIL APPLICATION No. 11171 of 2007 To SPECIAL CIVIL APPLICATION No. 11205 of 2007 With SCA/11170/2007 5/49 JUDGMENT SPECIAL CIVIL APPLICATION No. 11461 of 2007 To SPECIAL CIVIL APPLICATION No. 11466 of 2007 With SPECIAL CIVIL APPLICATION No. 12094 of 2007 To SPECIAL CIVIL APPLICATION No. 12111 of 2007 With SPECIAL CIVIL APPLICATION No. 12117 of 2007 To SPECIAL CIVIL APPLICATION No. 12119 of 2007 With SPECIAL CIVIL APPLICATION No. 13272 of 2007 With SPECIAL CIVIL APPLICATION No. 15597 of 2007 To SPECIAL CIVIL APPLICATION No. 15631 of 2007 With SPECIAL CIVIL APPLICATION No. 14079 of 2007 With SPECIAL CIVIL APPLICATION No. 14384 of 2007 To SPECIAL CIVIL APPLICATION No. 14463 of 2007 With SPECIAL CIVIL APPLICATION No. 24790 of 2007 To SPECIAL CIVIL APPLICATION No. 24792 of 2007 With SPECIAL CIVIL APPLICATION No. 26154 of 2007 To SPECIAL CIVIL APPLICATION No. 26210 of 2007 With SPECIAL CIVIL APPLICATION No. 26327 of 2007 To SPECIAL CIVIL APPLICATION No. 26337 of 2007 With SPECIAL CIVIL APPLICATION No. 21608 of 2007 To SPECIAL CIVIL APPLICATION No. 21619 of 2007 With SPECIAL CIVIL APPLICATION No. 25825 of 2007 To SPECIAL CIVIL APPLICATION No. 25829 of 2007 To SPECIAL CIVIL APPLICATION No. 25829 of 2007 With SPECIAL CIVIL APPLICATION No. 28449 of 2007 To SPECIAL CIVIL APPLICATION No. 28454 of 2007 With SPECIAL CIVIL APPLICATION No. 24821 of 2007 To SPECIAL CIVIL APPLICATION No. 24842 of 2007 With SCA/11170/2007 6/49 JUDGMENT SPECIAL CIVIL APPLICATION No. 24860 of 2007 With SPECIAL CIVIL APPLICATION No. 24896 of 2007 To SPECIAL CIVIL APPLICATION No. 24899 of 2007 With SPECIAL CIVIL APPLICATION No. 24949 of 2007 With SPECIAL CIVIL APPLICATION No. 25474 of 2007 To SPECIAL CIVIL APPLICATION No. 25486 of 2007 With SPECIAL CIVIL APPLICATION No. 25824 of 2007 With SPECIAL CIVIL APPLICATION No. 26153 of 2007 With SPECIAL CIVIL APPLICATION No. 30733 of 2007 To SPECIAL CIVIL APPLICATION No. 30750 of 2007 With SPECIAL CIVIL APPLICATION No. 9059 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHITRA M. PRAKASHKER & 35 - Petitioner(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR SJ GAEKWAD for Petitioner(s) : 1 – 36. SCA/11170/2007 7/49 JUDGMENT MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SANGEETA VISHEN, AGP, for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 09/01/2008 COMMON ORAL JUDGMENT 1. All in-service doctors, whose services are governed by various statutory Rules framed by the Government in exercise of the power under Article 309 of the Constitution, including that of Gujarat Civil Services (Conduct) Rules, 1971 (hereinafter referred to as the “Conduct Rules” for the sake of convenience), Gujarat Civil Services (General Conditions of Services) Rules, 2002 (hereinafter referred to as the “General Rules” for the sake of convenience), and Gujarat Civil Services (Pension) Rules, 2002 ((hereinafter referred to as the “Pension Rules” for the sake of convenience), have preferred all the petitions for challenging the policy of the State Government vide Resolution dated 29.3.2007 for discontinuing Non-Practicing Allowance (hereinafter referred to as “NPA” for the sake of SCA/11170/2007 8/49 JUDGMENT convenience) and for permitting them for private practice after office hours. As the policy of the Government also provides for giving option to in- service doctors, who have completed 15 years of service for continuing with the NPA and/or for permission for private practice and as such options are not given to the petitioners, the said policy of the State Government is also challenged on the ground as the same being discriminatory amongst in-service doctors, who are similarly situated. The aforesaid appears to be, in substance, the challenges to be considered by this Court in the present group of petitions. As the facts are more or less inter-connected and common and in any event, the challenges are common, they are being considered by this common judgement. 2. With the consent of the learned Counsel appearing for both the sides, the contents and record of the Civil Application No.5869 of 2007 preferred by the State Government are treated as the stand and the contentions of the State Government for maintaining the policy, which is impugned in the SCA/11170/2007 9/49 JUDGMENT petitions. The relevant facts of the case for appreciating the aforesaid challenge appear to be as under. 3. In the year 1965, the State Government vide Resolution dated 27.10.1965, with a view to attract adequately qualified medical persons to Government service and with a view to stop private practice in respect of new entrant, decided to upgrade the post, to give advance increments to new-comers and also decided to give allowance for the loss of private practice as per the details given in the accompanying statement. The details of such allowances for loss of private practice are not much relevant for the purpose of deciding the present petitions, but suffice it to state that a policy decision was taken to introduce the payment of allowances for loss of private practice. In the same manner, such policy continued with the modification in the quantum of the amount vide Resolution dated 12.7.1970 of the State Government. The same position continued further with the modification for the rates and there was one additional SCA/11170/2007 10/49 JUDGMENT development in the payment of the allowances for loss of private practice (popularly known as “NPA”) and the same was that it was linked up with the pay of the doctors concerned. The said policy continued further with the additional change that NPA was indirectly merged with the basic pay in computing T.A., D.A., etc. 4. In the year 1987, in the Rules framed by the Government namely; Gujarat Civil Services (Revision of Pay) Rules, 1987 (hereinafter referred to as the “Pay Rules of 1987” for the sake of convenience), the non-practising allowance was given a statutory recognition for the purpose of inclusion thereof in the revision of pay-scale and the consequential benefits thereof. The same continued further even in the year 1998 when the Government framed the Rules for revision of pay-scale namely; Gujarat Civil Services (Revision of Pay) Rules, 1998 (hereinafter referred to as the “Pay Rules of 1998). It may be recorded that such entitlement of NPA was also extended by the State Government to the other medical services namely; ESI – SCA/11170/2007 11/49 JUDGMENT Ayurved - Homeopathy Doctors etc., who were working in respective posts in the State Government. The aforesaid position for payment of NPA continued from 1965 to 2005, roughly for about 40 years. 5. In the year 2006, the State Government vide Resolution dated 20.11.2006 decided to discontinue payment of NPA to all in-service doctors (irrespective of their length of service) from 1.12.2006 and it was also resolved to permit such doctors for private practice after duty hours with the restrictions of not to utilize the medicines, place of dispensary, etc., for their private practice, etc. It appears that various writ petitions were filed challenging the aforesaid decision of the State Government for discontinuation of NPA and for permitting private practice by in-service doctors, including Special Civil Application No.24845 of 2006 and allied matters. In the said petition, this Court had initially issued notice and the interim stay order was also granted. Therefore, the said petitions were disposed of by this Court, since SCA/11170/2007 12/49 JUDGMENT the State Government, through the learned Advocate General, had declared before the Court to resolve the issue with deliberations and to give opportunity of hearing to the Associations of doctors concerned and it was also agreed that if required, the State Government shall reconsider the matter and until the same, the operation of the Government Resolution dated 20.1.2006 for giving effect from 1.12.2006 shall remain suspended. Based on the aforesaid declaration made before this Court, the State Government vide Resolution dated 14.12.2006 suspended the implementation of the Resolution. It appears that thereafter the State Government, after considering the representation made on behalf of the Association of various Medical Officers, passed another Resolution dated 29.3.2007 (impugned herein), whereby it has continued with the policy of Non-payment of NPA to all in-service doctors, but with the modification that if the doctor has completed 15 years or more years of service in the Government Service, then he will have an option to opt for SCA/11170/2007 13/49 JUDGMENT NPA, or not to opt for NPA and for permission for private practice. It is under these circumstances, all the petitioners have approached this Court by preferring the present petitions. 6. I have heard the learned Counsels appearing for the respective petitioners, and the concerned respondents including Mr.Shelat, learned Sr. Counsel appearing with the Advocates on record for the petitioners and Mr.Kamal Trivedi, learned Advocate General with Ms.Sangeeta Vishen, learned AGP for the State Authorities in all the petitions for final disposal. 7. It was submitted on behalf of the petitioners that the policy of the State Government to discontinue with NPA is in contravention to the statutory Rules inasmuch as NPA is treated as part of the pay and discontinuation thereof is not permitted by the Government Resolution, which is an executive instruction. It was also submitted that such position has continued for about 40 years coupled with the circumstances that it has also been given statutory recognition SCA/11170/2007 14/49 JUDGMENT in the Rules framed by the State Government for Pay Rules of 1987 and 1998. Therefore, even if the first contention of the petitioners cannot be accepted that the executive instruction or the policy of the Government would not prevail over the statutory rules, it was alternatively submitted that for discontinuing the policy, which is in operation for about 40 years, there should be proper inspection and material before the State Government to change such policy and not only that, but all such details, even if they are there, should be with overwhelming public interest for nullifying the principles of legitimate expectation. It is, therefore, submitted that the policy of the State Government of discontinuing NPA is in contravention to the statutory rules, arbitrary, and violative of Article 14 of the Constitution of India. It was also alternatively submitted that even if such policy is to stand the test of Article 14 of the Constitution, if this Court is not inclined to accept the contention of the petitioners that the policy is bad in law, then also there is SCA/11170/2007 15/49 JUDGMENT absolutely no justification on the part of the State Government to create a class amongst a homogeneous class of in-service doctors on the ground of length of service of 15 years and thereby not to give option to the petitioners, who have not completed 15 years of service. It was submitted that the ground stated for classification has no object to be achieved by the change of the policy and, therefore, the same is arbitrary, discriminatory and violative of the Constitution of India. Therefore, in any case, if the policy is not found as illegal by this Court, the part of the policy for creating two classes may be declared as illegal and the petitioners be given the same treatment for option of NPA and/or private practice at par with the other doctors, who have completed 15 years of service. The learned Counsel appearing for the petitioners have relied upon various decisions of the Apex Court for the scope of judicial review for examining the legality and validity of the policy of the State Government or for examining the classification made by the Government, which SCA/11170/2007 16/49 JUDGMENT may meet with the test of Articles 14 and 16 of the Constitution of India. 8. Whereas, on behalf of the State Government, the learned Advocate General contended that NPA is based on condition of not permitting private practice. It is one type of allowance and cannot be termed at par with the basic pay. He submitted that if the State is permitting private practice by the present policy, the in-service doctors, cannot assert as of right that the NPA must be paid to them. He submitted that it was experienced that in the rural area, services of doctors are not available and the Government was finding difficulty in getting services of doctors with super-speciality and, therefore, based on the recommendation of the Central Government the State Government has come out with the change of policy. It was submitted that the Government has right to change the policy by changing the service condition and the policy if made to meet with the change of circumstances, the same cannot be termed as arbitrary. It was also submitted that this Court, in exercise of judicial review, SCA/11170/2007 17/49 JUDGMENT would not sit in appeal over the wisdom of the State Government to change any policy, unless the policy is in contravention to law or Constitution. It was submitted that there is a rational behind the change in the policy. Further, there is also a rational in making the classification of the in-service doctors on the basis of completion of 15 years of service and the said rational is that the pension would be affected if the NPA is discontinued for all of them. Further, they are generally in the administrative field and they have lost contact for private practice. It was submitted that the Government has the power to classify the group in the present circumstances, based on the length of service and such classification is with an object to achieve service. Therefore, it was submitted that the policy cannot be said as illegal or arbitrary or unconstitutional. The learned Advocate General has also relied upon various decisions of the Apex Court for showing the scope of judicial review in the matter where the Court has to examine the policy framed by the SCA/11170/2007 18/49 JUDGMENT Government. 9. In order to consider the scope of judicial review, it would be worthwhile to refer the decision of the Apex Court in case of Balco Employees' Union (Regd.) vs. Union of India & Ors, reported in 2002(2) SCC, 333. In the said decision, the Apex Court, after taking into consideration its various earlier decisions, while examining the validity of the decision of the Government of India had decided to make disinvestment by way of a policy in its one of the undertakings namely; Balco, inter alia, observed at para 46 as under:- “46. ... it is neither within the domain of the courts nor the scope of the judicial review to embark upon an inquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 10.In the very decision, the Apex Court, after taking into consideration its earlier decisions, has concluded at paragraphs 92 and 93 as under:- SCA/11170/2007 19/49 JUDGMENT “92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. 93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution.” 11.It is by now well settled for the scope of judicial review by this Court for examining the policy of the State Government and it can broadly be classified as under:- (a)The policy will be struck down by the Court, if the same is in contravention to any Article of the Constitution. (b)The policy would be struck down by the Court, if the same is in contravention to any statutory provisions. SCA/11170/2007 20/49 JUDGMENT (c)Change in policy by executive instruction is not permitted, if the basic policy is statutorily recognized. (d)The Court would not sit in appeal over the wisdom of the Government in formulating or changing the policy from time to time. 12.The examination of the policy shows that for all doctors, who are government servants, their NPA is to be discontinued and private medical practice is permitted other than the specified duty hours of 9 O'clock morning to 5.30 p.m. in the evening, inclusive of recess or other shift, which may be assigned to such doctors. The necessary consequences of the aforesaid policy would be that such doctors shall be accountable during the period of private practice for their work only during the period for which the duty is assigned to them and for the remaining period they would be entitled for their private medical practice and consequently would not be accountable. Further, as private medical practice is permitted they would be entitled to profess in SCA/11170/2007 21/49 JUDGMENT the field of medicine and to earn remuneration during the said period. 13.It is an admitted position that all the in- service doctors, including the petitioners herein are governed by General Rules of 2002. Rule 34 of such Rules reads as under:- “34. Whole time of a Government employee to be at the disposal of Government: Unless in any case it be otherwise distinctly provided, the whole time of a Government employee is at the disposal of Government and he may be employed in any manner required by the proper authority, without a claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from the Consolidated Fund of India or of a State or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government.” 14.Therefore, as per the aforesaid Rules, unless, in any case, it be otherwise distinctly provided, the Government employees for whole time, shall be at the disposal of the Government. Whole time would mean 24 hours and would not mean for only duty hours, for which the work is assigned to such Government servants. Further, as per the language of Rule 34, if any relaxation is to be permitted, it has to be as