SUPREME COURT OF INDIA

Before:- S. Rajendra Babu and S.N. Phukan, JJ.

Civil Appeal No. 511 of 1997. D/d. 7.4.1999

State of Himachal Pradesh - Appellant

Versus

K.P. Tewari - Respondent

Constitution of India, Article 226 - Himachal Pradesh Health Service Rules, Rule 17 - Non-practising allowance - Assistant Professor in the department of Bio-Physics - Not entitled to non-practising allowance being not Medical Graduate - Non-practising allowance permissible to only those appointed to service and are Medical Graduates - Order of Tribunal set aside - Appeal allowed.

[Paras 2 and 3]

JUDGMENT

S. Rajendra Babu, J. - Pursuant to an advertisement issued by the appellant, the respondent was selected and appointed as an Assistant Professor in the Department of Biophysics under the Himachal Pradesh Health Services Rules, 1974 (hereinafter referred to as 'the Rules'). On representation made by the appellant he was accorded higher initial pay at Rs. 1,100/- in the pay scale of Rs. 900-1300 with effect from May 7, 1977 in consultation with the Himachal Pradesh Public Service Commission and on issue of the same the order made on July 21, 1978 granting a non-practising allowance to the respondent was withdrawn.

2. The respondent not being satisfied with the action taken by the appellant filed a writ petition which stood transferred to the Himachal Pradesh Administrative Tribunal (for short 'the Tribunal') for release of the non- practising allowance at the rate of 50 per cent of his basic pay subject to a maximum of Rs. 600/- per month. Rule 17 of the Rules provides that persons appointed to service shall not be allowed any kind of private practice and they shall be entitled to non-practising allowance. Note 2 to the said Rule 17 makes it clear that non-practising allowance will be admissible to those persons who are appointed to service and are Medical Graduates. The Tribunal took the view that the emphasis of the Rules is on the person appointed to the service rather than on medical qualification and the respondent being one such person appointed to the service as an Assistant Professor, Bio-physics, is entitled to the non-practising allowance.

3. In our opinion the view taken by the Tribunal is plainly untenable. Non- practising allowance is permissible only to such persons who have been appointed to service and are Medical Graduates. The respondent though in service does not possess medical degree and as such would not be entitled to any non-practising allowance at all. This position is made very clear under Note 2 of Rule 17, which provides that non-practising allowance shall only be admissible to those persons who are appointed to the service and are Medical Graduates. Thus the application of the respondent before the Tribunal ought to have been dismissed. That order we propose to make by setting aside the order under appeal. The appeal is allowed accordingly. There will, however, be no order as to costs.

Appeal allowed.