Allowed

Dr. Shyam Sundar Gupta v. State of U.P. Thru. Prin. Secy. Finance Lko. and 2 Others

Allahabad HC12 Sept 2025WRIA/6738/2024

Case brief

AI extract

What is this about?

The Court held that retired Government doctors are entitled to the revision of Non-Practicing Allowance rates even if they retired before the relevant Government Order. A retrospective bar created by a subsequent order was struck down as illegal and arbitrary.

What did the court decide?

Issued a writ of mandamus to pay 25% Non-Practicing Allowance and arrears from 24.08.2009 to 09.03.2019 with 6% interest.

Dr. Shyam Sundar Gupta vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2025)

¶1

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

¶2

WRIT - A No. - 6738 of 2024

¶3

Dr. Shyam Sundar Gupta

¶4

.....Petitioner(s)

¶5

Versus

¶6

State Of U.P. Thru. Prin. Secy. Finance Lko. And 2 Others

¶7

.....Respondent(s)

¶8

Counsel for Petitioner(s) : Hari Prasad Gupta Counsel for Respondent(s) : C.S.C.

¶9

Court No. - 7

¶10

HON'BLE MANISH MATHUR, J.

¶11

1. Heard Mr. Hari Prasad Gupta and Mr. Durgesh
Kumar Verma, learned counsel for petitioner and
learned State counsel for opposite parties.

¶12

2. Petition has been filed seeking the following
reliefs:

¶13

"(i) Issue a writ order or direction in
the nature of mandamus commanding the
opposite parties to ensure the revision
of the pension of the petitioner adding
25% N.P.A. as per government order dated
24.08.2009 issued in compliance of the
recommendation of the 6th Pay Committee
Report.

¶14

(ii)Issue a writ order or direction in
the nature of mandamus commanding the
opposite parties to ensure the payment of
the arrears of the revise pension of the
petitioner due from 24.08.2009 to
09.03.2019 with interest at market rate."

¶15

3. It has been submitted that benefit of enhanced

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WRIA No. 6738 of 2024

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rate of non-practice allowance as made admissible
vide Government Order dated 24.08.2009 has been
denied to petitioner only on account of the fact
that he had taken voluntary retirement from service
on 18.02.2009 i.e. prior to issuance of Government
Order dated 24.08.2009 and therefore said
Government Order would be applicable with
prospective effect, not retrospectively.

¶19

4. Learned counsel for petitioner submits that the
aforesaid issue has already been decided by
Coordinate Bench of this Court in the case of Dr.
Avinash Chandra Srivastava & Ors. versus State of
U.P. & Ors, Writ Petition No.13029 of 2020 and
another connected matters in which the issue was
similar and has been allowed by means of judgment
and order dated 02.09.2021. It is submitted that
the aforesaid judgment was thereafter challenged in
Special Appeal Defective No.73 of 2022 and was
partly allowed by means of judgment and order dated
16.08.2022 but the only modification indicated was
to hold that doctors who held the post of Director,
Additional Director, Director General and
superannuated prior to 21.06.2005 would not be
entitled to be paid the non-practicing allowance at
all. It is submitted that the aforesaid condition
is inapplicable in the case of petitioner.

¶20

5. Learned State counsel on the basis of counter
affidavit filed has refuted submissions advanced by
learned counsel for petitioner with the submission
that the aforesaid provision of non-practicing
allowance has been introduced by means of U. P.
Government Doctors (Allopathic) Restriction on
Private Practice Rule, 1983 and are applicable only
to Government Doctors who are working on any post
in the Health Services as defined under Rule 2(c)

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of the aforesaid Rules and would not be applicable
upon petitioners who are superannuated doctors. It
is also submitted that as has been indicated in the
impugned order, since petitioner had taken
voluntary retirement from serviceon 18.02.2009, he
would not be covered by the Government Order dated
24.08.2009 which is prospective in nature and has
been issued subsequent to petitioner's
superannuation.

¶24

6. Upon consideration of submissions advanced by
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.

¶25

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.

¶26

8. The relevant paragraphs of the judgment rendered
by Coordinate Bench of this Court are as follows:

¶27

“20. I have heard the counsel for the
petitioners as well is the learned
Additional Advocate General on behalf of the
State. The following issues fall for
consideration of this court:

¶28

A. Whether the writ petitions are
maintainable on behalf of Allopathic

¶29

the Government doctors who have
retired prior to the 24/08/2009 and

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¶31

¶32

were holding the post of Director
General/Director on the date of the
retirement?

¶33

B. Whether the benefit of
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?

¶34

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?

¶35

D. Whether the classification
created by the impugned Government
orders on the basis of date of
retirement is valid?

¶36

E. Whether the retired Government
doctors are entitled for revision
rate of Non-Practicing Allowance?

¶37

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

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¶39

¶40

framed.

¶41

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.

¶42

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.

¶43

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

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¶46

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.

¶47

39. To give effect to the decision of the
Government announcing the rate of Non-
Practicing Allowance to 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.

¶48

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.

¶49

41. In pursuance of the Government order
dated 09/03/2019 as well as 09/08/2019 all

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the petitioner started receiving the Non-
Practicing Allowance at the rate of 20% as
part of the 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.

¶53

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.

¶54

43. The impugned Government order dated

¶55

14/07/2020 in its recital states that the
Director Pension has sought certain
clarification as to the quantum of Non-
Practicing Allowance admissible to
Government doctors who have retired prior to
24/08/2009.In response to the said
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.

¶56

45. The aforesaid Government order can
therefore be summarised as under:-

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¶58

¶59

A. With regard to the petitioners
who retired prior to 24/08/2009 will
be entitled to 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.

¶60

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.

¶61

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.

¶62

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. …………….

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¶65

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
the 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
to 24/08/2009 and those retiring

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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.

¶69

Retrospective application of impugned Government Order

¶70

It has been submitted on behalf of
petitioners that in exercise of delegated
power the Government could not have fix the
rates of 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.

¶71

21.There is no dispute over the fact

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WRIA No. 6738 of 2024

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that the legislature can make a law

¶75

retrospectively or prospectively
subject to justifiability and
acceptability within the
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)

¶76

"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 and
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
only within the four corners
thereof.

¶77

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)]
.)"

¶78

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¶79

¶80

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
issue a notification

¶81

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
the enactment concerned, can
exercise only those powers which are
specifically conferred. In the
absence of such conferment of power
the Government, the delegated
authority, has no power to issue a
notification with retrospective
effect.

¶82

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 with retrospective
effect.

¶83

WRIA No. 6738 of 2024

¶84

¶85

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)

¶86

"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."

¶87

25. On a perusal of the aforesaid
authorities there can be no
scintilla of doubt that if the power
has been conferred under the main
Act by the legislature, the State
Government or the delegated
authority can issue a notification
within the said parameters. In the
case at hand, the High Court
interpreting Section 16 has opined

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¶90

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.

¶91

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 is his
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

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WRIA No. 6738 of 2024

¶93

¶94

Kunju Musaliar v. M. Venkatachalam
Potti, AIR 1956 SC 246] , D.G. Gose
and Co. (Agents) (P) Ltd. v. State

¶95

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].

¶96

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:

¶97

(Shree Sidhbali Steels Ltd. Case
[Shree Sidhbali Steels Ltd. v. State
of U.P., (2011) 3 SCC 193] , SCC p.
209, para 38)

¶98

"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

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power of a subordinate legislation
will be prospective and cannot be
retrospective unless the statute
authorises such an exercise
expressly or by necessary
implication."

¶102

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 in the
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

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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.

¶106

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 may think it
appropriate to reproduce certain
contexts which are useful in the
present case:

¶107

***

¶108

"The phrase ''from time to time'
means as occasion may arise, at
intervals, now and then
occasionally. Florey v. Meeker [240
P 2d 1177 : 194 Or 257 (1952)] , P
2d at p. 1190.

¶109

***

¶110

In constitutional amendment,
authorizing legislature to alter
salaries of named county officers

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WRIA No. 6738 of 2024

¶112

¶113

''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.

¶114

***

¶115

The phrase ''from time to time', as
used in the Constitution,
authorizing the legislature to
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.

¶116

***

¶117

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
of regular police force for
preservation of order in the parks.
Upshur v. Mayor & City Council of
Baltimore [51 A 953 : 94 Md 743
(1902)] , A at p. 955.

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¶120

***

¶121

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)] ."

¶122

50. In The Law Lexicon, The
Encyclopedic Law Dictionary (2nd
Edn., 1997, p. 764) the words have
been conferred the following
meaning:

¶123

 "From time to time.-- ... ''as
occasion may arise'.…

¶124

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.

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¶126

¶127

''The words "from time to time" are
words which 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
may act again; and either
independently of, or by adding to,
or taking from, or reversing
altogether, his previous act."

¶128

51. In Black's Law Dictionary (5th
Edn., p. 601), it has been defined
as follows:

¶129

"From time to time.--Occasionally,
at intervals, now and then."

¶130

52. In Stroud's Judicial Dictionary
(5th Edn., Vol. 2, p. 1071), it has
been stated as follows:

¶131

"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)."

¶132

53. Thus, the conspectus of
authorities and the meaning bestowed
in the common parlance admit no room

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¶134

¶135

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 an
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 to the retrospective
applicability of the notification
issued by the State Government as
regards the rate of cess on the

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WRIA No. 6738 of 2024

¶137

¶138

major mineral i.e. rock phosphate.

¶139

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 the Government to give
retrospectivity effect to such
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.

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WRIA No. 6738 of 2024

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¶142

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.

¶143

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 would be
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

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WRIA No. 6738 of 2024

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¶146

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.

¶147

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 was ever conceived or
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

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WRIA No. 6738 of 2024

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¶150

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 of the 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.

¶151

Whether Non-Practicing Allowance is payable

¶152

to retired Government doctors.

¶153

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 the
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

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WRIA No. 6738 of 2024

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¶156

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 to the 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.”

¶157

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.

¶158

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

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WRIA No. 6738 of 2024

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¶161

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).

¶162

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.

¶163

12. Resultantly, the petition succeeds and is
allowed. Parties to bear their own costs.

¶164

(Manish Mathur,J.)

¶165

November 25, 2025

¶166

Subodh/-

¶167

Digitally signed by :- SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Dr. Shyam Sundar Gupta v. State of U.P. Thru. Prin. Secy. Finance Lko. and 2 Others

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Dr. Shyam Sundar Gupta v. State of U.P. Thru. Prin. Secy. Finance Lko. and 2 Others

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