Assistant Professors posted in Central University with MBBS degree as essential qualification entitled to NPA: Delhi HC

New Delhi: Granting relief to a group of doctors employed at Jawaharlal Nehru University (JNU), the Delhi High Court bench recently held that an individual holding the post of Assistant Professor in a Central University, requiring an MBBS degree as an essential qualification, would also be entitled to a Non-Practicing Allowance (NPA).

"The rationale behind grant of NPA appears to be in the form of an incentive to Medical Doctors in lieu of their private practice. This rationale apparently is predicated on the individual possessing a MBBS degree recognized by the Indian Medical Council Act, 1956 or the Dentists Act, 1948 as an essential qualification alone without anything further. Thus, an individual holding the post of Assistant Professor in Central University requiring MBBS degree as an essential qualification would also be entitled to NPA," observed the HC bench comprising Justice Tushar Rao Gedela.

The Court made such an observation while considering the plea by a group of doctors, who challenged the University's decision to stop the payment of Non-Practicing Allowance (NPA) to them from January 2017.

Challenging the University's decision, the doctors approached the HC bench and filed a plea under Article 226 of the Constitution. Their prayers included the quashing of the University letter stopping NPA, quashing the clarification issued by the University Grants Commission (UGC) in this regard, and certain other letters and directives related to Non-Practicing Allowance.

It was argued by the petitioners that based on the resolution dating back to 1977, NPA was granted to faculties employed at the posts for which a medical qualification recognized under the Indian Medical Council Act, 1956 or under the Dentists Act, 1948 was prescribed as an essential qualification.

However, it was alleged the NPA payment was stopped to the petitioners back in January 2017. When the petitioners questioned the move, the University revealed that the NPA had been stopped in light of a letter dated 28.12.2016 sent by UGC to the University in response to a clarification sought by the University from UGC. Further, holding that NPA was not admissible in the case of one of the doctors employed at the University, an Assistant Professor at the Centre, the University sent a letter dated 05.07.2017 to him and sought to recover from the petitioners from the date of initial payment till December 2016, i.e. for a period ranging from 14 years to 31 years.

Approaching the HC bench for relief, the counsel for the petitioners submitted that the petitioners are aggrieved by the arbitrary and unjust withdrawal of the NPA by the letter dated 05.07.2017 and also the notice issued asking why the University should not recover the NPA paid to them with effect from 12.12.1990 till December 2016.

On the other hand, the counsel for Jawaharlal Nehru University submitted that when clarification was sought regarding the issue of NPA, UGC had forwarded the communication to MHRD (Ministry of Human Resource Department) and consequently, the Ministry by its letter dated 28.12.2016 had directed that such NPA was not admissible in the case of one of the doctors considering the fact that the Integrated Finance Division opined that the post of Assistant Professor in the Department of Social Medicine and Community Health, School of Social Sciences, JNU cannot be treated as Medical Post and therefore, does not qualify for NPA.

UGC submitted that decisions regarding whether the petitioners were or were not entitled to NPA or even whether any recoveries of the past payments on that account had to be recovered or not were to be taken by either MHRD or the Ministry of Finance, and UGC had absolutely neither any role nor any responsibility on that count.

However, to assist the Court in the matter, the counsel for UGC referred to various correspondences exchanged between the parties with UGC as a common party and informed that NPA, to the posts of Lecturers and some other staff of the Central Universities requiring MBBS degree as essential qualification, was introduced and continued by the Government of India from the year 1971 onwards. Revisions to such NPA were being notified from time to time and made applicable to all such entitled teachers.

It was further submitted that the controversy on the matter was initiated from the request/representation of a doctor employed at the University for admissibility of NPA in his case too being similarly situated as the petitioners. The matter was referred to UGC by the University and in response to this, UGC sought a few clarifications from the University regarding the non-payment ot NPA to the concerned doctor.

UGC sought to know from MHRD as to whether NPA was payable to the concerned doctor and whether the said post of Assistant Professor at Centre for Social Medicine and Community Health was to be treated as "Clinical" or "Non-Clinical" post. consequently, MHRD clarified that the post in question was purely academic (non-clinical) and that no prior approval was sought from the Ministry for such grant and also directed that the said doctor was not entitled to NPA.

Subsequently, on further clarification sought by UGC, MHRD re-considered the issue with its Integrated Finance Division which too opined that the said post cannot be treated as a Medical Post and does not qualify for NPA in terms of O.M. dated 30.08.2008. This clarification was conveyed to the University.

While considering the matter, the Court observed that the petitioners were qualified MBBS doctors having requisite qualifications to the post of Assistant Professor at the Centre for Social Medicine and Community Health, School of Social Sciences at the University. Further, the bench observed that all three petitioners were found entitled to NPA since their induction into the service and have been paid the same continuously till 31.12.2016.

Taking note of the sequence of events in how NPA was initiated for the medical faculties at the University, the Court observed,

"...it is apparent that the Government of India had fixed NPA for posts which required MBBS degree as an essential qualification recognized under the Indian Medical Council Act, 1956 or the Dentists Act, 1948. It is also clear that the respondent no.2/ UGC by the Notification/ Order dated 24.06.1976 had extended the admissibility of NPA even to the Lecturers and Readers in the Medical Faculties of the Central Universities ... Undoubtedly, the same was put up before the EC in its 52nd meeting held on 13.04.1977 whereby under Clause 3.8, the revision of NPA rates were made applicable even to the Staff of respondent no.1/ University requiring MBBS degree as an essential qualification."

Observing that the University and other authorities relied on the Office Memo dated 30.08.2008 to deny the continuance of payment of NPA and simultaneously sought recovery of the NPA paid previously to the petitioners till 31.12.2016, the Court perused the concerned OM that stated, "The NPA should be restricted only to those Medical posts for which a Medical qualification recognized under the Indian Medical Council Act, 1956 or under the Dentists Act, 1948 has been prescribed as an essential qualification."

Taking note of the OM, the Court observed that the Central Government in the modification of the Order dated 15.04.1998 had revised the NPA in respect of medical posts attached to the other posts included in the Central Health Services (CHS). The interpretation sought to be put forward by the authorities on Clause 4 was that NPA cannot be granted to non-clinical posts which are purely academic posts.

At this outset, the Court opined,

"In the considered opinion of this Court, the aforesaid interpretation does not appear to be correct. This is for the reason that, had any such interpretation been sought to be projected by the Central Government, it would have also taken note of the previous OMs in this regard which have been referred to above, in extenso, by this Court. In that, there is no reference to the OMs of the years 1971, 1974, 1976 and other similar OMs granting NPA to posts which only required MBBS degree as an essential qualification. More particularly, the respondent no.2/ UGC neither modified nor rescinded its own Notification/ Order dated 24.06.1976, when it made the NPA applicable to Lecturers and Readers in the Central Universities. No such reference has been made even by the Central Government while issuing O.M. dated 30.08.2008. Thus, in the absence of such connecting material, it is not possible for this Court to conclude that the posts of Assistant Professor in Central Universities like the respondent no.1/ University, requiring MBBS degree as an essential qualification, has been included in the O.M. dated 30.08.2008 or that the said O.M. deprives or disentitles Teachers such as the petitioners from admissibility of NPA."

"In case the Central Government had felt the necessity to do so, there was no impediment in it issuing any fresh notification or O.M. in that regard, restricting the admissibility of NPA only to medical practitioners. In the absence of any such notification having been placed on record by the respondents, this Court is unable to agree with the argument of the respondents. Moreover, the Notification/ Order dated 24.06.1976 of the UGC appears to have been specifically issued in terms of a notification of the Central Government extending NPA to faculty in Central Universities which has also not been referred to in the O.M. dated 30.08.2008. No document or Order or Notification regarding any modification in respect of admissibility of NPA to faculty of Central Universities has been placed on record by the respondents. Thus, looked at it any which way, the arguments of the respondents are unacceptable," it further noted.

The bench observed that the rationale behind granting NPA appears to be an incentive to Medical Doctors in lieu of their private practice.

"This rationale apparently is predicated on the individual possessing a MBBS degree recognized by the Indian Medical Council Act, 1956 or the Dentists Act, 1948 as an essential qualification alone without anything further. Thus, an individual holding the post of Assistant Professor in Central University requiring MBBS degree as an essential qualification would also be entitled to NPA," opined the Court.

"This was the basis of Notification/ Order dated 24.06.1976 of the respondent no.2/ UGC. The said notification was issued by UGC in consultation with the Central Government. Thus, it is clear that the Central Government has itself deemed such faculty to be entitled to NPA. Hence, unless there is an O.M. or a notification rescinding the primary notification of the Central Government or Notification/ Order dated 24.06.1976 of the UGC, no such interpretation, as sought to be put across by the respondents upon O.M. dated 30.08.2008, can at all be sanctified," the bench mentioned.

With this opinion, the bench set aside the letter dated 05.07.2017 issued by the University, where it held that the petitioners were not entitled to NPA and simultaneously directed recovery of the NPA paid to the petitioners with effect from 12.12.1990 till 31.12.2016. The bench also quashed and set aside the UGC letter dated 28.12.2016, to the extent where the reference to the MHRD's opinion/clarification was noted.

"Consequently, the respondent no.1/ University is directed to pay to the petitioners the arrears of the admissible NPA with effect 01.01.2017 till the dates of their entitlement. The said exercise be carried out within a period of 6 weeks from today, failing which, a simple interest of 6% per annum shall be payable by the respondent no.1/ University," ordered the Court.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/delhi-hc-npa-235691.pdf

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