Writ Petition No. 13029 of 2020 · Allahabad High Court

learned counsel for parties and perusal of material available on record, the issue as per the impugned order is only with regard to applicability of enhanced rates of non-practicing allowance in terms of Government Order dated 24.08.2009.

7. The said question has already been adjudicated upon by Coordinate Bench of this Court in the case of Dr. Avinash Chandra Srivastava & Ors. (supra). The said judgment has already been affirmed in Special Appeal as noticed here-in-above which was modified only to the extent which even otherwise is inapplicable upon petitioner.

8. The relevant paragraphs of the judgment rendered by Coordinate Bench of this Court are as follows: “20. I have heard the counsel for the petitioners learned Additional Advocate General on behalf of the State. The following issues fall for consideration of this court: A. Whether the writ petitions are maintainable on behalf of Allopathic the Government doctors who have retired prior to the 24/08/2009 and 4 WRIA No. 6738 of 2024 were holding the post of Director General/Director on the date of the retirement? B. Whether benefit enhancement/revision in the rates of Non-Practicing Allowance has any bearing on the date of retirement, and more particularly as to whether the same would be payable/admissible only to the serving Government Doctors and not to the retired Government Doctors? C. Whether the judgement of the Division Bench of this court dated 25/01/2018 can have any application in the case of the petitioners in challenging the impugned Government orders? D. Whether classification created by the impugned Government orders on the basis of date of retirement is valid? E. Whether the retired Government doctors are entitled for revision rate of Non-Practicing Allowance?

35. In absence of any provision either explicitly or otherwise, the Government order dated 24/08/2009 could not have been construed to restrict the application of the revision of the Non-Practicing Allowance to the petitioners. It is also noted that by the impugned Government Order only the rates were revised, and no new policy/scheme was 5 WRIA No. 6738 of 2024 framed.

36. Nonetheless, the benefit of the aforesaid Government order, as interpreted by the respondents, was never extended to the petitioners, and they continue to receive Non-Practicing Allowance at the old slab system at the fixed rates.

37. The 7th Pay commission recommended revision of Non-Practicing Allowance to 20% of the basic pay for the employees of the Central Government. The State of U.P. duly considered and accepted the recommendations of the 7th Pay Commission and extended the revision of the rates of the Non-Practicing Allowance to the Government doctors of State of Uttar Pradesh with the condition that the basic salary along with the Non-Practising Allowance should not exceed Rs.2,37,500/- .Clause 2 provided that the Non-Practicing Allowance would for all purposes would be part of the basic salary received by the retired employees. Clause 3 of the said Government order further provided that the benefit of Non-Practising Allowance would be admissible only to those doctors were getting the benefit of the same as per the earlier Government order dated 24/08/2009 or any other Government order issued earlier in this regard.

38. The Government order dated 09/03/2019 only revised the rate of Non-Practicing Allowance, and in very unequivocal terms extended the benefit of the same to the retired Government doctors. Clause 3 clearly 6 WRIA No. 6738 of 2024 extended the benefit of Non-Practicing Allowance to those employees who were receiving the same as per Government order dated 24/08/2009 or any earlier Government order in this regard.

39. To give effect to the decision of the Government announcing the rate of Non- Practicing Allowance 20%, another Government order dated 09/08/2019 was passed referring to the earlier Government order dated 09/03/2019 and stated that a decision has been taken by the Government to revise the rate of Non-Practicing Allowance with effect from 09/03/2019, and consequently there would be a need for revision of pension payment orders for the purposes of payment of pension/family pension.

40. According to Clause 4(i) of the said Government order which applied to the doctors who had retired prior to 01/01/2016 and for payment of their pensionary benefits from 01/01/2016 and 08/03/2019. It provided that the amount of Non-Practicing Allowance which was being paid as on 31/12/2015 will be added to the basic salary as computed on coming into force of the recommendations of the 7th Pay Commission as on 01/01/2016 will be paid as pension while clause (ii) provided that from 09/03/2019 20% of the basic salary will be paid as Non-Practicing Allowance which will be added to the revised basic salary as on 01/01/2016.

41. In pursuance of the Government order dated 09/03/2019 as well as 09/08/2019 all 7 WRIA No. 6738 of 2024 the petitioner started receiving the Non- Practicing Allowance at the rate of 20% as pensionary benefits. Consequently, giving effect to the aforesaid Government orders, revised pension payment orders were issued to the petitioners which have been annexed along with the writ petitions including Non-Practicing Allowance 20% of the basic pay. As the petitioners were receiving the Non-Practicing Allowance in terms of earlier Government orders, they were extended the benefit of the same and they started receiving the Non-Practicing Allowance at the revised rates.

42. The petitioners continued to receive Non-Practicing Allowance at the rate of 20% of the basic salary till passing of the impugned order dated 14/07/2020 and the recovery order dated 16/07/2020.

43. The impugned Government order dated 14/07/2020 in its recital states that the Director Pension sought certain clarification as to the quantum of Non- Practicing Allowance admissible Government doctors who have retired prior to 24/08/2009.In response clarification the G.O dated 14/07/2020 provides that the Government doctors who had retired prior to 24/08/2009 will be entitled to Non-Practicing Allowance at the same rate which was being paid to them immediately prior to their retirement.

45. The aforesaid Government order can therefore be summarised as under:- 8 WRIA No. 6738 of 2024 A. With regard to the petitioners who retired prior to 24/08/2009 will entitled receive Non- Practicing Allowance at the rate which they were receiving at the date of retirement, and the revision of the Non-Practicing Allowance from time to time is inadmissible to them subsequent to 24/08/2009. B. The clarification has been applied retrospectively in as much as relates back to payment of Non- Practicing Allowance with effect from 24/08/2009, and therefore it seeks to clarify the Government order dated 24/08/2009 and makes it inapplicable to the petitioners. C. It further creates another class of Government doctors who retired post 24/08/2009, and they will be entitled to the revised rate of Non- Practicing Allowance.

54. There is force in the contention of the petitioners that those who have retired prior to 24/08/2009 would be entitled to Non-Practicing Allowance as per Government order dated 01/02/2003 till 24/08/2009, when the rates were revised. Subsequently they would be entitled to the rate as fixed by the Government order dated 24/08/2009, meaning thereby that they cannot claim any arrears for revision of its prior to 24/08/2009. ……………. 9 WRIA No. 6738 of 2024

55. To make it abundantly clear the prospective operation of such Government orders only means that the revised rates are applicable from that particular day onwards, and no arrears can be claimed on the basis of the revised rates prior to the said date. It is also further to clarify that prospective application has no correlation to the eligibility of claiming Non- Practicing Allowance. As discussed above there is no quarrel about their right to receive Non-Practicing Allowance, as the petitioners are regularly being paid pension as revised by the State Government from time to time. The allowances are also revised by the State Government from time to time looking into various factors including the cost index of living. Similarly, the Non- Practicing Allowance has been constantly revised since 1983, and it has always been co-related with the scale of pay an even though prior to 24/08/2009 it was on a slab basis, but still it was roughly a particular percentage of the basic salary which is clearly discernible on a plain reading of aforesaid Government orders. The Government order dated 24/08/2009 also revised the rate of Non-Practicing Allowance and made it 25% of the basic salary. Apart from the revision of the rates in the said Government order we could not find any such tectonic shift in the policy with regard to payment of Non-Practicing Allowance which the State claims has led to create a watershed between the persons retiring prior 24/08/2009 retiring 10 WRIA No. 6738 of 2024 subsequently, nor any such provision could be demonstrated by the State. This court is not impressed by the argument of the State that the petitioners will only be entitled to same allowances as well being paid to them at the time of retirement, without any revision of rates. The interpretation adopted by the State is clearly erroneous and arbitrary. Retrospective application impugned Government Order It has been submitted on behalf of petitioners that in exercise of delegated power the Government could not have fix the Non-Practicing Allowance retrospectively, and therefore on this score also the impugned orders are without jurisdiction, illegal and arbitrary. As has already been discussed above the rules of 1983 were made in exercise of powers under Article 309 of the Constitution of India, and the power to fix the rates was delegated to the State Government. The impugned orders have been passed in exercise of the said delegated power under the rules of 1983. The question which arises for our consideration is as to whether in exercise of delegated power, the State Government could prescribe the rates retrospectively? The law in this regard has been considered by the Hon'ble Apex Court in the case of State of Rajasthan v.Basant Agrotech (India) Ltd., (2013) 15 SCC 1.

21.There is no dispute over the fact 11 WRIA No. 6738 of 2024 that the legislature can make a law retrospectively prospectively subject justifiability acceptability within constitutional parameters. A subordinate legislation can be given retrospective effect if a power in this behalf is contained in the principal Act. In this regard we may refer with profit to the decision in Mahabir Vegetable Oils (P) Ltd. v. State of Haryana (2006) 3 SCC 620, wherein it has been held that: (SCC p. 633, paras 41-42) "41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules within corners thereof.

42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. (See West v. Gwynne [(1911) 2 Ch 1 : 104 LT 759 (CA)] .)" 12 WRIA No. 6738 of 2024

22. In MRF Ltd. v. CST [(2006) 8 SCC 702] the question arose whether under Section 10(3) of the Kerala General Sales Tax Act, 1963 power was conferred on the Government to a notification retrospectively. This Court approved the view expressed by the Kerala High Court in M.M. Nagalingam Nadar Sons v. State of Kerala [(1993) 91 STC 61 (Ker)] , wherein it has been stated that in issuing notifications under Section 10, the Government exercises only delegated powers while the legislature has plenary powers to legislate prospectively and retrospectively, a delegated authority like the Government acting under the powers conferred on it by enactment concerned, exercise only those powers which are specifically conferred. In absence of such conferment of power Government, delegated authority, has no power to issue a notification retrospective effect.

23. In M.D. University v. Jahan Singh [(2007) 5 SCC 77 : (2007) 2 SCC (L&S) 118] it has been clearly laid down that (SCC p. 83, para 19) in the absence of any provision contained in the legislative Act, a delegatee cannot make a delegated legislation retrospective effect. 13 WRIA No. 6738 of 2024

24. In Ahmedabad Urban Development Authority v. Sharadkumar Jayanti- kumar Pasawalla [(1992) 3 SCC 285 : AIR 1992 SC 2038] a three-Judge Bench has ruled thus: (SCC p. 292, para 7) "7. ... in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power."

25. On a perusal of the aforesaid authorities scintilla of doubt that if the power has been conferred under the main Act by the legislature, the State Government delegated authority can issue a notification within the said parameters. In the case at hand, the High Court interpreting Section 16 has opined 14 WRIA No. 6738 of 2024 that such a power has not been conferred on the State Government to issue a notification retrospectively and, therefore, it can only apply with prospective effect.

26. Dr Manish Singhvi, learned counsel appearing for the State, has submitted that wherever a statutory power is conferred, there is no limitation with regard to exercise of that power and the same could be exercised from time to time and even if the words "time to time" are absent in the statute, the power conferred under the Act could be exercised all over again and there is no limitation to the number of times the power is exercised and if the power is exercised once, it cannot be stated that the power stands exhausted. It submission that the administrative power as well as quasi-legislative power could be exercised any number of times and this principle is embodied under Section 21 of the General Clauses Act. The learned counsel would further contend that even if the words "time to time" would not have been there in Section 16 of the Act, the power could be exercised any number of times. To bolster his submissions, he has commended us to the decisions in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti [A. Thangal 15 WRIA No. 6738 of 2024 Kunju Musaliar v. M. Venkatachalam Potti, AIR 1956 SC 246] , D.G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala [D.G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala, (1980) 2 SCC 410] , Bansidhar v. State of Rajasthan [Bansidhar v. State of Rajasthan, (1989) 2 SCC 557] and State of M.P. v. Tikamdas [State of M.P. v. Tikamdas, (1975) 2 SCC 100 : 1975 SCC (Tax) 310].

47. After so stating the learned Judges analysed the scope of Section 21 of the General Clauses Act and opined that Section 21 embodies a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification, etc. Thereafter, the Court enumerated the principle thus: (Shree Sidhbali Steels Ltd. Case [Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193] , SCC p. 209, para 38) "38. ... there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Section 21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of 16 WRIA No. 6738 of 2024 power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorises exercise expressly necessary implication."

48. Analysing further the learned Judges in Sidhbali Steels case [Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193] opined that by virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision Electricity (Supply) Act, 1948 is subject to the State Government's power to issue notification under Section 49 of the Act granting rebate, the State Government, in view of Section 21 of the General Clauses Act, could always withdraw, rescind, add to or modify an exemption notification. No industry could claim as of right that the 17 WRIA No. 6738 of 2024 Government should exercise its power under Section 49 and offer rebate and it is for the Government to decide whether the conditions were such that rebate should be granted or not. The aforesaid authority clearly lays down that the power conferred can be exercised in the context of the words "from time to time" as used in the Act or in aid of the General Clauses Act.

49. At this juncture, we may fruitfully refer to the meaning given to the words "from time to time" in certain dictionaries and the description made in certain other texts. In Words and Phrases, Vol. 17-A, 1974, "from time to time" has been enumerated in various contexts. We appropriate to reproduce certain contexts which are useful in the present case: *** "The phrase ''from time to time' means as occasion may arise, at intervals, occasionally. Florey v. Meeker [240 P 2d 1177 : 194 Or 257 (1952)] , P 2d at p. 1190. *** In constitutional amendment, authorizing legislature to alter salaries of named county officers 18 WRIA No. 6738 of 2024 ''from time to time', the quoted phrase does not mean from ''term to term'. Almon v. Morgan County [16 So 2d 511 : 245 Ala 241 (1944)] , So 2d at p. 514. *** The phrase ''from time to time', as Constitution, authorizing legislature increase the number of Judges of the Supreme Court from time to time, means occasionally; that is, as the occasion requires, and therefore the words cannot be held to mean that the legislature may not decrease the number of Judges after an increase thereof. State v. McBride [70 P 25 : 29 Wash 335 (1902)] , P at p. 27. *** The Century Dictionary defines the phrase ''from time to time' to mean ''occasionally'; and the Universal Dictionary defines ''from time to time' to mean, ''at intervals; now and then'. The phrase is used in such meaning in Acts 1898, c. 123, para 95, which directs the police commissioners of Baltimore, at the request of the park commissioners, to detail from time to time members regular police preservation of order in the parks. Upshur v. Mayor & City Council of Baltimore [51 A 953 : 94 Md 743 (1902)] , A p.

955. 19 WRIA No. 6738 of 2024 *** The County Board of Supervisors had no authority to alter an election precinct in September, under statute providing that Board may, from time to time, change the boundaries of precincts and providing that changes might be made at regular or special meeting in July, since the two provisions were in pari materia and should be construed together in the light of all the provisions of the statute, the words ''from time to time' meaning ''at times to recur', and not ''at any time'. Laws 1885, p. 193, para 29, Laws 1871-72, p. 380, para 30, S.H.A. ch. 46, paras 29, 30. County Board of Union County v. Short [77 Ill App 448 (1898)] ."

50. In The Law Lexicon, The Encyclopedic Law Dictionary (2nd Edn., 1997, p. 764) the words have conferred following meaning: "From time to time.-- ... ''as occasion may arise'.… The words ''from time to time' mean that an adjournment may be made as and when the occasion requires and they will not mean adjournment from one fixed day to another fixed day. … 20 WRIA No. 6738 of 2024 ''The words "from time to time" are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction.' The meaning of the words ''from time to time' is that after once acting the donee of the power again; either independently of, or by adding to, taking from, reversing altogether, his previous act."

51. In Black's Law Dictionary (5th Edn., p. 601), it has been defined as follows: "From time to time.--Occasionally, at intervals, now and then."

52. In Stroud's Judicial Dictionary (5th Edn., Vol. 2, p. 1071), it has been stated as follows: "From time to time.-- ... ''as occasion may arise' (as per William, J., Bryan v. Arthur [(1839) 11 Ad & E 108 : 113 ER 354] Ad & E at p. 117)."

53. Thus, conspectus authorities and the meaning bestowed in the common parlance admit no room 21 WRIA No. 6738 of 2024 of doubt that the words "from time to time" have a futuristic tenor and they do not have the etymological potentiality to operate from a previous date. The use of the said words in Section 16 of the Act cannot be said to have conferred the jurisdiction on the State Government or delegate to issue a notification in respect of the rate with retrospective effect. Such interpretation does not flow from the statute which is the source of power. Therefore, the notification as far as it covers the period prior to the date of publication of the notification in the Official Gazette is really a transgression of the statutory postulate. Thus analysed, we find that the view expressed by the High Court on this score is absolutely flawless and we concur with the same. We may reiterate for the sake of clarity that we have not adverted to the defensibility of the analysis from other spectrums which are founded on the principles set forth in Kesoram case [State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201] as the matter has been referred to a larger Bench and the lis in these appeals fundamentally pertains retrospective applicability of the notification issued by the State Government as regards the rate of cess on the 22 WRIA No. 6738 of 2024 major mineral i.e. rock phosphate.

57. We also take notice of clause 3 of the Government order dated 14/07/2020 which states that from 24/08/2009 to 31/12/2015 the persons having retired prior to 24/08/2009 will be entitled to the same amount of Non-Practicing Allowance which they were receiving at the time of retirement. This clause clearly indicates that there was no Government order, or any decision of the Government prior to 14/07/2020 not to revise the rate of Non- Practicing Allowance with regard to the Government doctors who retired prior to 24/08/2009. This retrospective dis- entitlement of Non-Practicing Allowance is clearly without jurisdiction, illegal, arbitrary and clearly violates all canons of reasonableness. Just because the Government is vested the power to decide upon the "rate" of Non-Practicing Allowance, and the action of the Government to fix rates, though plenary, has to be exercised within the prescribed sphere, in accordance with law, rules and regulations in this regard and not in ignorance of the same. The rules of 1983 entitle the Government to fix the rate of Non-Practicing Allowance from time to time, but there is no statutory provision enabling Government retrospectivity effect determination. The rules of 1983 do not contain any provision enabling the State Government while exercising its power under rule 4 to fix the rates, to make them applicable retrospectively. 23 WRIA No. 6738 of 2024 This fixation of rate with regard to the petitioners has retrospective application, and therefore, beyond the mandate of the State Government under Rule 4 of the Rules of 1983, and contrary to the law laid down by the Apex Court in the case of State of Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1. Therefore, without there being any enabling provision in this regard in the rules of 1983, the impugned order specially clause 3 of Government order dated 04/09/2020 is without jurisdiction, illegal and arbitrary.

81. Considering the legal principles as enshrined in the renditions of the Apex court we find that the Non-Practicing Allowance was conceived and brought into effect by the U.P Doctors (Allopathic) Restriction on Private Practice Rules, 1983, where rule 3 provided for restriction on private practice, and consequently by rule 4 which stated that in lieu of private practice, Government doctor entitled to an amount by way of non- practicing pay or allowance or both, as the Government may specify from time to time. Giving effect to the rule 4 of 1983, Government order was issued on 31/08/1989 providing in clause 2 that Non-Practicing Allowance would form part of salary for the purposes of post-retirement benefits apart from other benefits stated therein. This aspect, character and nature of the Non- Practicing Allowance was reiterated in the Government order dated 01/02/2003 where rates of the Non-Practicing Allowance were 24 WRIA No. 6738 of 2024 revised. The Non-Practicing Allowance therefore was admissible to the Government doctors who were in service as a measure of compensation for restriction placed on their private practice, and also the same was to continue after retirement and would form part of the pensionary benefits.

82. It is also clear from the rules read along with the Government order issued from time to time, that it was never envisaged that serving and retired Government doctors will be treated differently for the purpose of payment of the Non-Practicing Allowance. Equally discernible is the fact, that no discrimination conceived explicitly made in any rule or Government order with regard to disbursement of the Non-Practicing Allowance which may have correlation any with date of retirement or on any other basis whatsoever. All the pensioners(Allopathic Government doctors including petitioners herein) form one class and are entitled to the same rate of Non- Practicing Allowance as fixed by the Government from time to time. The Government order dated 24/08/2009 does not distinguish between pre and post retirees nor does it create any class in its application for revision of the Non-Practicing Allowance, and therefore the State post facto could not have discovered and created two classes where none existed. After delving into the Government order dated 24/08/2009 we could not discover any intelligible differentia or any point of distinction between the Government doctors who retired prior to 25 WRIA No. 6738 of 2024 24/08/2009 and those having retired after the said date. The classification sought to be made by the impugned Government orders is bereft of any reason or valid consideration and therefore arbitrary. Government orders which have been issued from time to time in exercise of rule 4 of the rules of 1983, have only approved the revision of the rate of Non-Practicing Allowance in sync with the recommendations Central Pay Commission where also no distinction has been made between serving doctors and retired doctors in its application to Non- Practicing Allowance, indicating that there never was any such distinction real or apparent as has been sought to be made as per the impugned orders. Whether Non-Practicing Allowance is payable to retired Government doctors.

87. It has also been submitted by the State Government that the petitioners who have retired from service are not entitled to the Non-Practicing Allowance as they are not covered by the rules of 1983 and therefore, they cannot claim any rights of the Non- Practicing Allowance. Considering pleadings as well as submissions of both the parties in this regard, undoubtedly, the petitioners in fact are receiving a fixed amount as Non-Practicing Allowance as a part of their pension. The argument of the State Government seems to be a self-defeating argument in as much as they have themselves admitted that Non-Practicing Allowance is being paid to the petitioners at a fixed 26 WRIA No. 6738 of 2024 rate which they were getting at the time of the retirement. In fact the Government orders dated 31/08/1989 and 01/02/2003 have explicitly extended the benefit of Non- Practicing Allowance retired Government doctors which would form part of the pension, and therefore the contention of the respondents that the petitioners are not entitled to Non-Practicing Allowance because they have retired, is clearly wanting in rationality and reasonableness, and even otherwise is clearly contrary to the Government orders dated 31/08/1989 and 01/02/2003, and is therefore rejected. There is no Government order in existence which has the effect of revoking the aforesaid Government orders dated 31/08/1989 and 01/02/2003 and consequently the arguments of the State opposing the payment of Non- Practicing Allowance on this score to the retired Government doctors fails.”

9. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is thus evident that non-practicing allowance forms a part and parcel of pensionary benefits of superannuated doctors. Considering the judgment in the case of Dr. Avinash Chandra Srivastava & Ors. (supra) the enhanced rates of non-practicing allowance as per Government Order dated 24.08.2009 would also cover petitioners who had superannuated prior thereto.

10. Considering aforesaid discussion, a Writ in the nature of Mandamus is issued commanding the opposite parties to issue revised pension payment orders of petitioner providing 25% non-practicing 27 WRIA No. 6738 of 2024 allowance to be included in pension of petitioner and for payment of arrears with effect from

24.08.2009 till 09.03.2019 (since subsequent to

09.03.2019, petitioner is in receipt of non- practicing allowance in terms of recommendation of the 7th Pay Commission).

11. Petitioner shall also be entitled to interest at the rate of 6% per annum on the aforesaid arrears. Directions issued by this Court are required to be complied with by the opposite parties within a period of three months from the date a certified copy of this order is served upon concerned authority.

12. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs. November 25, 2025 Subodh/- (Manish Mathur,J.)

learned counsel for parties and perusal of material available on record, the issue as per the impugned order is only with regard to applicability of enhanced rates of non-practicing allowance in terms of Government Order dated 24.08.2009.

7. The said question has already been adjudicated upon by Coordinate Bench of this Court in the case of Dr. Avinash Chandra Srivastava & Ors. (supra). The said judgment has already been affirmed in Special Appeal as noticed here-in-above which was modified only to the extent which even otherwise is inapplicable upon petitioner.

8. The relevant paragraphs of the judgment rendered by Coordinate Bench of this Court are as follows: “20. I have heard the counsel for the petitioners learned Additional Advocate General on behalf of the State. The following issues fall for consideration of this court: A. Whether the writ petitions are maintainable on behalf of Allopathic the Government doctors who have retired prior to the 24/08/2009 and 4 WRIA No. 6738 of 2024 were holding the post of Director General/Director on the date of the retirement? B. Whether benefit enhancement/revision in the rates of Non-Practicing Allowance has any bearing on the date of retirement, and more particularly as to whether the same would be payable/admissible only to the serving Government Doctors and not to the retired Government Doctors? C. Whether the judgement of the Division Bench of this court dated 25/01/2018 can have any application in the case of the petitioners in challenging the impugned Government orders? D. Whether classification created by the impugned Government orders on the basis of date of retirement is valid? E. Whether the retired Government doctors are entitled for revision rate of Non-Practicing Allowance?

35. In absence of any provision either explicitly or otherwise, the Government order dated 24/08/2009 could not have been construed to restrict the application of the revision of the Non-Practicing Allowance to the petitioners. It is also noted that by the impugned Government Order only the rates were revised, and no new policy/scheme was 5 WRIA No. 6738 of 2024 framed.

36. Nonetheless, the benefit of the aforesaid Government order, as interpreted by the respondents, was never extended to the petitioners, and they continue to receive Non-Practicing Allowance at the old slab system at the fixed rates.

37. The 7th Pay commission recommended revision of Non-Practicing Allowance to 20% of the basic pay for the employees of the Central Government. The State of U.P. duly considered and accepted the recommendations of the 7th Pay Commission and extended the revision of the rates of the Non-Practicing Allowance to the Government doctors of State of Uttar Pradesh with the condition that the basic salary along with the Non-Practising Allowance should not exceed Rs.2,37,500/- .Clause 2 provided that the Non-Practicing Allowance would for all purposes would be part of the basic salary received by the retired employees. Clause 3 of the said Government order further provided that the benefit of Non-Practising Allowance would be admissible only to those doctors were getting the benefit of the same as per the earlier Government order dated 24/08/2009 or any other Government order issued earlier in this regard.

38. The Government order dated 09/03/2019 only revised the rate of Non-Practicing Allowance, and in very unequivocal terms extended the benefit of the same to the retired Government doctors. Clause 3 clearly 6 WRIA No. 6738 of 2024 extended the benefit of Non-Practicing Allowance to those employees who were receiving the same as per Government order dated 24/08/2009 or any earlier Government order in this regard.

39. To give effect to the decision of the Government announcing the rate of Non- Practicing Allowance 20%, another Government order dated 09/08/2019 was passed referring to the earlier Government order dated 09/03/2019 and stated that a decision has been taken by the Government to revise the rate of Non-Practicing Allowance with effect from 09/03/2019, and consequently there would be a need for revision of pension payment orders for the purposes of payment of pension/family pension.

40. According to Clause 4(i) of the said Government order which applied to the doctors who had retired prior to 01/01/2016 and for payment of their pensionary benefits from 01/01/2016 and 08/03/2019. It provided that the amount of Non-Practicing Allowance which was being paid as on 31/12/2015 will be added to the basic salary as computed on coming into force of the recommendations of the 7th Pay Commission as on 01/01/2016 will be paid as pension while clause (ii) provided that from 09/03/2019 20% of the basic salary will be paid as Non-Practicing Allowance which will be added to the revised basic salary as on 01/01/2016.

41. In pursuance of the Government order dated 09/03/2019 as well as 09/08/2019 all 7 WRIA No. 6738 of 2024 the petitioner started receiving the Non- Practicing Allowance at the rate of 20% as pensionary benefits. Consequently, giving effect to the aforesaid Government orders, revised pension payment orders were issued to the petitioners which have been annexed along with the writ petitions including Non-Practicing Allowance 20% of the basic pay. As the petitioners were receiving the Non-Practicing Allowance in terms of earlier Government orders, they were extended the benefit of the same and they started receiving the Non-Practicing Allowance at the revised rates.

42. The petitioners continued to receive Non-Practicing Allowance at the rate of 20% of the basic salary till passing of the impugned order dated 14/07/2020 and the recovery order dated 16/07/2020.

43. The impugned Government order dated 14/07/2020 in its recital states that the Director Pension sought certain clarification as to the quantum of Non- Practicing Allowance admissible Government doctors who have retired prior to 24/08/2009.In response clarification the G.O dated 14/07/2020 provides that the Government doctors who had retired prior to 24/08/2009 will be entitled to Non-Practicing Allowance at the same rate which was being paid to them immediately prior to their retirement.

45. The aforesaid Government order can therefore be summarised as under:- 8 WRIA No. 6738 of 2024 A. With regard to the petitioners who retired prior to 24/08/2009 will entitled receive Non- Practicing Allowance at the rate which they were receiving at the date of retirement, and the revision of the Non-Practicing Allowance from time to time is inadmissible to them subsequent to 24/08/2009. B. The clarification has been applied retrospectively in as much as relates back to payment of Non- Practicing Allowance with effect from 24/08/2009, and therefore it seeks to clarify the Government order dated 24/08/2009 and makes it inapplicable to the petitioners. C. It further creates another class of Government doctors who retired post 24/08/2009, and they will be entitled to the revised rate of Non- Practicing Allowance.

54. There is force in the contention of the petitioners that those who have retired prior to 24/08/2009 would be entitled to Non-Practicing Allowance as per Government order dated 01/02/2003 till 24/08/2009, when the rates were revised. Subsequently they would be entitled to the rate as fixed by the Government order dated 24/08/2009, meaning thereby that they cannot claim any arrears for revision of its prior to 24/08/2009. ……………. 9 WRIA No. 6738 of 2024

55. To make it abundantly clear the prospective operation of such Government orders only means that the revised rates are applicable from that particular day onwards, and no arrears can be claimed on the basis of the revised rates prior to the said date. It is also further to clarify that prospective application has no correlation to the eligibility of claiming Non- Practicing Allowance. As discussed above there is no quarrel about their right to receive Non-Practicing Allowance, as the petitioners are regularly being paid pension as revised by the State Government from time to time. The allowances are also revised by the State Government from time to time looking into various factors including the cost index of living. Similarly, the Non- Practicing Allowance has been constantly revised since 1983, and it has always been co-related with the scale of pay an even though prior to 24/08/2009 it was on a slab basis, but still it was roughly a particular percentage of the basic salary which is clearly discernible on a plain reading of aforesaid Government orders. The Government order dated 24/08/2009 also revised the rate of Non-Practicing Allowance and made it 25% of the basic salary. Apart from the revision of the rates in the said Government order we could not find any such tectonic shift in the policy with regard to payment of Non-Practicing Allowance which the State claims has led to create a watershed between the persons retiring prior 24/08/2009 retiring 10 WRIA No. 6738 of 2024 subsequently, nor any such provision could be demonstrated by the State. This court is not impressed by the argument of the State that the petitioners will only be entitled to same allowances as well being paid to them at the time of retirement, without any revision of rates. The interpretation adopted by the State is clearly erroneous and arbitrary. Retrospective application impugned Government Order It has been submitted on behalf of petitioners that in exercise of delegated power the Government could not have fix the Non-Practicing Allowance retrospectively, and therefore on this score also the impugned orders are without jurisdiction, illegal and arbitrary. As has already been discussed above the rules of 1983 were made in exercise of powers under Article 309 of the Constitution of India, and the power to fix the rates was delegated to the State Government. The impugned orders have been passed in exercise of the said delegated power under the rules of 1983. The question which arises for our consideration is as to whether in exercise of delegated power, the State Government could prescribe the rates retrospectively? The law in this regard has been considered by the Hon'ble Apex Court in the case of State of Rajasthan v.Basant Agrotech (India) Ltd., (2013) 15 SCC 1.

21.There is no dispute over the fact 11 WRIA No. 6738 of 2024 that the legislature can make a law retrospectively prospectively subject justifiability acceptability within constitutional parameters. A subordinate legislation can be given retrospective effect if a power in this behalf is contained in the principal Act. In this regard we may refer with profit to the decision in Mahabir Vegetable Oils (P) Ltd. v. State of Haryana (2006) 3 SCC 620, wherein it has been held that: (SCC p. 633, paras 41-42) "41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules within corners thereof.

42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. (See West v. Gwynne [(1911) 2 Ch 1 : 104 LT 759 (CA)] .)" 12 WRIA No. 6738 of 2024

22. In MRF Ltd. v. CST [(2006) 8 SCC 702] the question arose whether under Section 10(3) of the Kerala General Sales Tax Act, 1963 power was conferred on the Government to a notification retrospectively. This Court approved the view expressed by the Kerala High Court in M.M. Nagalingam Nadar Sons v. State of Kerala [(1993) 91 STC 61 (Ker)] , wherein it has been stated that in issuing notifications under Section 10, the Government exercises only delegated powers while the legislature has plenary powers to legislate prospectively and retrospectively, a delegated authority like the Government acting under the powers conferred on it by enactment concerned, exercise only those powers which are specifically conferred. In absence of such conferment of power Government, delegated authority, has no power to issue a notification retrospective effect.

23. In M.D. University v. Jahan Singh [(2007) 5 SCC 77 : (2007) 2 SCC (L&S) 118] it has been clearly laid down that (SCC p. 83, para 19) in the absence of any provision contained in the legislative Act, a delegatee cannot make a delegated legislation retrospective effect. 13 WRIA No. 6738 of 2024

24. In Ahmedabad Urban Development Authority v. Sharadkumar Jayanti- kumar Pasawalla [(1992) 3 SCC 285 : AIR 1992 SC 2038] a three-Judge Bench has ruled thus: (SCC p. 292, para 7) "7. ... in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power."

25. On a perusal of the aforesaid authorities scintilla of doubt that if the power has been conferred under the main Act by the legislature, the State Government delegated authority can issue a notification within the said parameters. In the case at hand, the High Court interpreting Section 16 has opined 14 WRIA No. 6738 of 2024 that such a power has not been conferred on the State Government to issue a notification retrospectively and, therefore, it can only apply with prospective effect.

26. Dr Manish Singhvi, learned counsel appearing for the State, has submitted that wherever a statutory power is conferred, there is no limitation with regard to exercise of that power and the same could be exercised from time to time and even if the words "time to time" are absent in the statute, the power conferred under the Act could be exercised all over again and there is no limitation to the number of times the power is exercised and if the power is exercised once, it cannot be stated that the power stands exhausted. It submission that the administrative power as well as quasi-legislative power could be exercised any number of times and this principle is embodied under Section 21 of the General Clauses Act. The learned counsel would further contend that even if the words "time to time" would not have been there in Section 16 of the Act, the power could be exercised any number of times. To bolster his submissions, he has commended us to the decisions in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti [A. Thangal 15 WRIA No. 6738 of 2024 Kunju Musaliar v. M. Venkatachalam Potti, AIR 1956 SC 246] , D.G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala [D.G. Gose and Co. (Agents) (P) Ltd. v. State of Kerala, (1980) 2 SCC 410] , Bansidhar v. State of Rajasthan [Bansidhar v. State of Rajasthan, (1989) 2 SCC 557] and State of M.P. v. Tikamdas [State of M.P. v. Tikamdas, (1975) 2 SCC 100 : 1975 SCC (Tax) 310].

47. After so stating the learned Judges analysed the scope of Section 21 of the General Clauses Act and opined that Section 21 embodies a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification, etc. Thereafter, the Court enumerated the principle thus: (Shree Sidhbali Steels Ltd. Case [Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193] , SCC p. 209, para 38) "38. ... there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Section 21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of 16 WRIA No. 6738 of 2024 power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorises exercise expressly necessary implication."

48. Analysing further the learned Judges in Sidhbali Steels case [Shree Sidhbali Steels Ltd. v. State of U.P., (2011) 3 SCC 193] opined that by virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision Electricity (Supply) Act, 1948 is subject to the State Government's power to issue notification under Section 49 of the Act granting rebate, the State Government, in view of Section 21 of the General Clauses Act, could always withdraw, rescind, add to or modify an exemption notification. No industry could claim as of right that the 17 WRIA No. 6738 of 2024 Government should exercise its power under Section 49 and offer rebate and it is for the Government to decide whether the conditions were such that rebate should be granted or not. The aforesaid authority clearly lays down that the power conferred can be exercised in the context of the words "from time to time" as used in the Act or in aid of the General Clauses Act.

49. At this juncture, we may fruitfully refer to the meaning given to the words "from time to time" in certain dictionaries and the description made in certain other texts. In Words and Phrases, Vol. 17-A, 1974, "from time to time" has been enumerated in various contexts. We appropriate to reproduce certain contexts which are useful in the present case: *** "The phrase ''from time to time' means as occasion may arise, at intervals, occasionally. Florey v. Meeker [240 P 2d 1177 : 194 Or 257 (1952)] , P 2d at p. 1190. *** In constitutional amendment, authorizing legislature to alter salaries of named county officers 18 WRIA No. 6738 of 2024 ''from time to time', the quoted phrase does not mean from ''term to term'. Almon v. Morgan County [16 So 2d 511 : 245 Ala 241 (1944)] , So 2d at p. 514. *** The phrase ''from time to time', as Constitution, authorizing legislature increase the number of Judges of the Supreme Court from time to time, means occasionally; that is, as the occasion requires, and therefore the words cannot be held to mean that the legislature may not decrease the number of Judges after an increase thereof. State v. McBride [70 P 25 : 29 Wash 335 (1902)] , P at p. 27. *** The Century Dictionary defines the phrase ''from time to time' to mean ''occasionally'; and the Universal Dictionary defines ''from time to time' to mean, ''at intervals; now and then'. The phrase is used in such meaning in Acts 1898, c. 123, para 95, which directs the police commissioners of Baltimore, at the request of the park commissioners, to detail from time to time members regular police preservation of order in the parks. Upshur v. Mayor & City Council of Baltimore [51 A 953 : 94 Md 743 (1902)] , A p.

955. 19 WRIA No. 6738 of 2024 *** The County Board of Supervisors had no authority to alter an election precinct in September, under statute providing that Board may, from time to time, change the boundaries of precincts and providing that changes might be made at regular or special meeting in July, since the two provisions were in pari materia and should be construed together in the light of all the provisions of the statute, the words ''from time to time' meaning ''at times to recur', and not ''at any time'. Laws 1885, p. 193, para 29, Laws 1871-72, p. 380, para 30, S.H.A. ch. 46, paras 29, 30. County Board of Union County v. Short [77 Ill App 448 (1898)] ."

50. In The Law Lexicon, The Encyclopedic Law Dictionary (2nd Edn., 1997, p. 764) the words have conferred following meaning: "From time to time.-- ... ''as occasion may arise'.… The words ''from time to time' mean that an adjournment may be made as and when the occasion requires and they will not mean adjournment from one fixed day to another fixed day. … 20 WRIA No. 6738 of 2024 ''The words "from time to time" are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction.' The meaning of the words ''from time to time' is that after once acting the donee of the power again; either independently of, or by adding to, taking from, reversing altogether, his previous act."

51. In Black's Law Dictionary (5th Edn., p. 601), it has been defined as follows: "From time to time.--Occasionally, at intervals, now and then."

52. In Stroud's Judicial Dictionary (5th Edn., Vol. 2, p. 1071), it has been stated as follows: "From time to time.-- ... ''as occasion may arise' (as per William, J., Bryan v. Arthur [(1839) 11 Ad & E 108 : 113 ER 354] Ad & E at p. 117)."

53. Thus, conspectus authorities and the meaning bestowed in the common parlance admit no room 21 WRIA No. 6738 of 2024 of doubt that the words "from time to time" have a futuristic tenor and they do not have the etymological potentiality to operate from a previous date. The use of the said words in Section 16 of the Act cannot be said to have conferred the jurisdiction on the State Government or delegate to issue a notification in respect of the rate with retrospective effect. Such interpretation does not flow from the statute which is the source of power. Therefore, the notification as far as it covers the period prior to the date of publication of the notification in the Official Gazette is really a transgression of the statutory postulate. Thus analysed, we find that the view expressed by the High Court on this score is absolutely flawless and we concur with the same. We may reiterate for the sake of clarity that we have not adverted to the defensibility of the analysis from other spectrums which are founded on the principles set forth in Kesoram case [State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201] as the matter has been referred to a larger Bench and the lis in these appeals fundamentally pertains retrospective applicability of the notification issued by the State Government as regards the rate of cess on the 22 WRIA No. 6738 of 2024 major mineral i.e. rock phosphate.

57. We also take notice of clause 3 of the Government order dated 14/07/2020 which states that from 24/08/2009 to 31/12/2015 the persons having retired prior to 24/08/2009 will be entitled to the same amount of Non-Practicing Allowance which they were receiving at the time of retirement. This clause clearly indicates that there was no Government order, or any decision of the Government prior to 14/07/2020 not to revise the rate of Non- Practicing Allowance with regard to the Government doctors who retired prior to 24/08/2009. This retrospective dis- entitlement of Non-Practicing Allowance is clearly without jurisdiction, illegal, arbitrary and clearly violates all canons of reasonableness. Just because the Government is vested the power to decide upon the "rate" of Non-Practicing Allowance, and the action of the Government to fix rates, though plenary, has to be exercised within the prescribed sphere, in accordance with law, rules and regulations in this regard and not in ignorance of the same. The rules of 1983 entitle the Government to fix the rate of Non-Practicing Allowance from time to time, but there is no statutory provision enabling Government retrospectivity effect determination. The rules of 1983 do not contain any provision enabling the State Government while exercising its power under rule 4 to fix the rates, to make them applicable retrospectively. 23 WRIA No. 6738 of 2024 This fixation of rate with regard to the petitioners has retrospective application, and therefore, beyond the mandate of the State Government under Rule 4 of the Rules of 1983, and contrary to the law laid down by the Apex Court in the case of State of Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1. Therefore, without there being any enabling provision in this regard in the rules of 1983, the impugned order specially clause 3 of Government order dated 04/09/2020 is without jurisdiction, illegal and arbitrary.

81. Considering the legal principles as enshrined in the renditions of the Apex court we find that the Non-Practicing Allowance was conceived and brought into effect by the U.P Doctors (Allopathic) Restriction on Private Practice Rules, 1983, where rule 3 provided for restriction on private practice, and consequently by rule 4 which stated that in lieu of private practice, Government doctor entitled to an amount by way of non- practicing pay or allowance or both, as the Government may specify from time to time. Giving effect to the rule 4 of 1983, Government order was issued on 31/08/1989 providing in clause 2 that Non-Practicing Allowance would form part of salary for the purposes of post-retirement benefits apart from other benefits stated therein. This aspect, character and nature of the Non- Practicing Allowance was reiterated in the Government order dated 01/02/2003 where rates of the Non-Practicing Allowance were 24 WRIA No. 6738 of 2024 revised. The Non-Practicing Allowance therefore was admissible to the Government doctors who were in service as a measure of compensation for restriction placed on their private practice, and also the same was to continue after retirement and would form part of the pensionary benefits.

82. It is also clear from the rules read along with the Government order issued from time to time, that it was never envisaged that serving and retired Government doctors will be treated differently for the purpose of payment of the Non-Practicing Allowance. Equally discernible is the fact, that no discrimination conceived explicitly made in any rule or Government order with regard to disbursement of the Non-Practicing Allowance which may have correlation any with date of retirement or on any other basis whatsoever. All the pensioners(Allopathic Government doctors including petitioners herein) form one class and are entitled to the same rate of Non- Practicing Allowance as fixed by the Government from time to time. The Government order dated 24/08/2009 does not distinguish between pre and post retirees nor does it create any class in its application for revision of the Non-Practicing Allowance, and therefore the State post facto could not have discovered and created two classes where none existed. After delving into the Government order dated 24/08/2009 we could not discover any intelligible differentia or any point of distinction between the Government doctors who retired prior to 25 WRIA No. 6738 of 2024 24/08/2009 and those having retired after the said date. The classification sought to be made by the impugned Government orders is bereft of any reason or valid consideration and therefore arbitrary. Government orders which have been issued from time to time in exercise of rule 4 of the rules of 1983, have only approved the revision of the rate of Non-Practicing Allowance in sync with the recommendations Central Pay Commission where also no distinction has been made between serving doctors and retired doctors in its application to Non- Practicing Allowance, indicating that there never was any such distinction real or apparent as has been sought to be made as per the impugned orders. Whether Non-Practicing Allowance is payable to retired Government doctors.

87. It has also been submitted by the State Government that the petitioners who have retired from service are not entitled to the Non-Practicing Allowance as they are not covered by the rules of 1983 and therefore, they cannot claim any rights of the Non- Practicing Allowance. Considering pleadings as well as submissions of both the parties in this regard, undoubtedly, the petitioners in fact are receiving a fixed amount as Non-Practicing Allowance as a part of their pension. The argument of the State Government seems to be a self-defeating argument in as much as they have themselves admitted that Non-Practicing Allowance is being paid to the petitioners at a fixed 26 WRIA No. 6738 of 2024 rate which they were getting at the time of the retirement. In fact the Government orders dated 31/08/1989 and 01/02/2003 have explicitly extended the benefit of Non- Practicing Allowance retired Government doctors which would form part of the pension, and therefore the contention of the respondents that the petitioners are not entitled to Non-Practicing Allowance because they have retired, is clearly wanting in rationality and reasonableness, and even otherwise is clearly contrary to the Government orders dated 31/08/1989 and 01/02/2003, and is therefore rejected. There is no Government order in existence which has the effect of revoking the aforesaid Government orders dated 31/08/1989 and 01/02/2003 and consequently the arguments of the State opposing the payment of Non- Practicing Allowance on this score to the retired Government doctors fails.”

9. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is thus evident that non-practicing allowance forms a part and parcel of pensionary benefits of superannuated doctors. Considering the judgment in the case of Dr. Avinash Chandra Srivastava & Ors. (supra) the enhanced rates of non-practicing allowance as per Government Order dated 24.08.2009 would also cover petitioners who had superannuated prior thereto.

10. Considering aforesaid discussion, a Writ in the nature of Mandamus is issued commanding the opposite parties to issue revised pension payment orders of petitioner providing 25% non-practicing 27 WRIA No. 6738 of 2024 allowance to be included in pension of petitioner and for payment of arrears with effect from

24.08.2009 till 09.03.2019 (since subsequent to

09.03.2019, petitioner is in receipt of non- practicing allowance in terms of recommendation of the 7th Pay Commission).

11. Petitioner shall also be entitled to interest at the rate of 6% per annum on the aforesaid arrears. Directions issued by this Court are required to be complied with by the opposite parties within a period of three months from the date a certified copy of this order is served upon concerned authority.

12. Resultantly, the petition succeeds and is allowed. Parties to bear their own costs. November 25, 2025 Subodh/- (Manish Mathur,J.)