The Lucknow Bench of the Allahabad High Court quashed the order passed by the Principal Secretary, Medical and Health Department, Government of U.P, Lucknow in which the honorarium of Ayush Doctors was not revised and renewal of Ayush Doctors was denied.
A Single Bench of Justice Alok Mathur passed this order while hearing a petition filed by Dr Ram Suresh Rai and 28 Others.
It is submitted by the counsel for the petitioners that they are Ayush doctors who are working in the NRHM Scheme and are aggrieved by the impugned order dated 29.03.2019, passed by the Principal Secretary, Medical and Health Department, Government of U.P, Lucknow thereby rejecting their representation for being granted equivalent honorarium as is being given to the Allopathic doctors.
The facts of the case are that the petitioners are qualified AYUSH Doctors and were engaged as such and were posted in different districts in the State of Uttar Pradesh and their services were renewed from time to time and are currently serving as contractual employees. The Union of India recognizing the importance of health in the process of economic and social development and improving the quality of life of its citizens resolved to launch the National Health Mission Scheme to carry out necessary aid in the basic health care delivery system.
An advertisement was issued for appointment on various posts in all the districts including the post of Medical Officer Allopathic, BDS Doctors as well as AYUSH Doctors. Till the year 2009-10, honorarium for all the above-mentioned doctors was proposed to be Rs 24,000/- per month but later on in 2010-11, the honorarium of Medical Officers Allopathic was increased to Rs 30,000/- per month.
Similarly, for the year 2011-12, the honorarium of the Medical Officers Allopathic was increased to Rs 36,000/- per month for rural posting and Rs 33,000/- per month for urban posting and honorarium of Medical Officers BDS was increased to Rs 35,000/- per month for rural posting and Rs 30,000/- per month for urban posting.
The honorarium of Ayush Doctors was not revised and renewal of Ayush Doctors was denied and aggrieved by the order, not renewing the period of Ayush Doctors, they challenged the action before the Court and Court while disposing the writ petition, directed the respondents to continue their services till the scheme continues and be paid accordingly.
The State Government assailed the order passed by the Writ Court by filing Special Leave Petition, which was dismissed on 18.10.2011 and in compliance with the order of the Court the services of Ayush doctors were continued and renewed but the honorarium remained Rs 24,000 / – per month.
The claim of the AYUSH Doctors for equal honorarium was further raised in Writ Petition Anil Kumar and Others Vs Union of India and Others, which was disposed of by the Court by means of order dated 01.03.2013, with direction to the Principal Secretary, Health and Family Welfare, U.P to take decision in this regard and the Principal Secretary took the decision in the matter vide order dated 04.09.2013, whereby the representation was rejected on the ground that honorarium was to be fixed in terms of the operational guidelines/ record of proceedings and in the said terms the Government of India had approved honorarium only Rs 24,000/- per month.
The claim of the petitioners to be treated at par with the Allopathic Doctors has been rejected by the State Government on the following ground :
“(i) AYUSH doctors do not have to render emergency services,
(ii) their services are limited for their work up to six hours and
(iii) they are not given any medico legal work.”
It is submitted by the counsel for the petitioners that it is wrong to say that the duties and responsibilities of the AYUSH doctors are in any way inferior to the Allopathic doctors, and the reasoning given for such discrimination is illegal and arbitrary. The reasoning that Allopathic doctors are entitled for non-practicing allowance, is baseless, as no such allowance is admissible to any contractual employee either Allopathic or AYUSH.
It is submitted that the State Government is giving equal honorarium to the Allopathic and AYUSH medical officers in case of contractual appointments. It is also relevant to mention here that in case of emergency, every moment and every second is important and vital and every medical practitioner is under pious and legal obligation to attend the medical emergencies.
Moreover, in many PHCs/CHCs only AYUSH doctors are appointed and in medical emergencies, such doctors have been appointed to take care of the medical emergencies, and such patients are treated by the AYUSH doctors and even the guidelines of the AYUSH doctors also permit them to do the same.
It is submitted by the counsel for the petitioners that on one hand the order says that the honorarium of the AYUSH doctors are to be decided by the Department of AYUSH of Central Government and on the other hand National AYUSH Policy, 2002 formulated by the Department of AYUSH of the Central Government are not being followed while fixing the honorarium.
Counsel for the petitioners said that the petitioners who are Medical Officers (Ayurvedic) and were inducted by the State Government on the same pay scale/band as admissible to the Medical Officers PMHS have been discriminated, merely, because they belong to and practice conventional stream of medicine as against modern medicine.
The issue before the Court was with regard to the discrimination in the age of superannuation of the medical officers vis-a-vis dentist and doctors covered under the AYUSH, including, Ayurvedic doctors. The Court was of the opinion that the classification of AYUSH doctors and other doctors of Central Health Scheme (CHS) in different categories is not reasonable and permissible under law. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them.
On specific query, counsel appearing for the State respondents admitted that the Dynamic ACP has been made applicable to all the Medical Officers irrespective of their streams, but submits that the State Government is not bound to implement the Central Government Scheme in totality.
The Court said that,
Concept of the Assured Career Progression (ACP) is the tie over stagnation on a post and to grant financial upgradation to the government servants, it is not based on the concept of equal pay for equal work or the nature of duties being performed by the government servant. It is applicable across the board from Class-D employee to the highest rank officer, wherever such government servant suffers stagnation. However, an exception has been carved out for the Medical Officers, PMHS while implementing SACP, which in the opinion of the Court is discriminatory, insofar as it excludes the other Medical Officers practising medicine in different streams.
The ACP Scheme in general is not an incentive scheme resting upon the nature of duty, responsibility or qualification of the government servant. The ACP Scheme, primarily, is to tide over the stagnation which a government servant, irrespective of his duty, post, pay, qualification or seniority, suffers due to stagnation on a post without earning promotion. The ACP Scheme, in the circumstances, provides for pay up-gradation to the government servant which is purely personal.
It goes without saying that the Western medicine (Allopathy) is integral to our current healthcare system, but so are other alternative and complementary health care modalities that are available for the people to choose. Western medicine is sometimes at a loss when it comes to treating the patients holistically.
The Court observed that the ACP scheme is personal to the government servant suffering stagnation and the pay upgradation does not rest upon any other consideration viz status of post, qualification, nature of duty or seniority. The scheme is purely compensatory. In the circumstances the Medical Officers of the State cannot be discriminated against by providing different periods of service to earn the benefit of career progression. Therefore, the classification on face value is discriminatory and violative of Article 14 of the Constitution of India.
“The State Government is justified in not accepting the Dynamic ACP formulated by the Central Government for its Medical Officers, instead formulating the SACP scheme falling within the realm of administrative policy. But the question is whether such a policy upon being provided can discriminate amongst different streams of medicine practiced by Medical Officers.
Admittedly, the Medical Officers, irrespective of the stream of medicine (Allopathy or conventional) treat the patients which is the core underlying similarity. The comparison with regard to qualification, course of study/syllabus, nature of duty, responsibility etc. as is being pressed by the State Government to carve out a class of Medical Officers i.e PHMS being superior to other Medical Officers is misconceived and unfounded insofar it relates to conferment of SACP.
The administrative policy is invariably discriminatory in keeping the Medical Officers (Ayurvedic) and other streams out of the scheme having regard to the concept of ACP as discussed earlier”, the Court further said while allowing the petititon.
“The impugned order dated 29.03.2019, passed by the Principal Secretary, Medical and Health Department, Government of U.P, Lucknow, is hereby quashed. It is provided that the Special ACP Scheme (SACP) implemented vide Government Order dated 14 November 2014, shall be applicable to the Medical Officers of other streams also”, the Court ordered.