Rajasthan High Court - Jaipur
Vinod Saini Andors vs State Finance Departmentors on 14 August, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Writ Petition No. 7060/2016
1. Vinod Saini S/o Shri Bhanwar Lal Saini, aged about 35 years,
R/o D-23, Govindpuri, Ramnagar, Sodala, Jaipur.
2. Deepti Shah W/o Shri Vinod Saini, aged about 34 years, R/o
D-23, Govindpuri, Ramnagar, Sodala, Jaipur.
3. Divya Prakash Swarankar S/o Shri Jagdish Chand Swarnkar,
aged about 34 years, R/o 395, Near Charbhuja Temple, Aarni,
Tehsil Rashmi, District Chittorgarh.
4. Ashok Kumar Saini S/o Shri Devinarian Mali, aged about 36
years, R/o Bairaivo Ka Mohalla, Phagi, Jaipur.
5. Jaydeep Gothwal S/o Shri Heeralal, aged about 29 years, R/o
Ward No. 19, Adarsh Colony, Chirawa (Jhunjhunu).
6. Desh Deepak Vadhwa S/o Shri Suresh Kumar Vadhawa, aged
about 38 years, R/o 203, Pratap Nagar Colony, Vaishali Nagar,
Jaipur-21.
7. Anju Vadhawa W/o Shri Desh Deepak Vadhwa, aged about 27
years, R/o 203, Pratap Nagar Colony, Vaishali Nagar, Jaipur-21.
8. Vinod Kumar Gautam S/o Shri Jagdish Prasad Gautam, aged
about 39 years, R/o 1-P-18, Mahaveer Nagar, Vista Yojna,
Dadabadi, Kota.
9. Mandvi Gautam W/o Shri Vinod Kumar Gautam, aged about
38 years, R/o 1-P-18, Mahaveer Nagar, Vista Yojna, Dadabadi,
Kota.
10. Ramlal Suthar S/o Shri Nana Lal Suthar, aged about 36
years, R/o V.P.O. Nandeshma, Tehsil Gogunda, Udaipur.
11. Shweta Somani W/o Shri Sachin Soni, R/o G-2-D, Orbit
Complex Manva Kheda, Udaipur.
12. Udai Ram Jat S/o Shri Bhuralal Jat, aged about 40 years, R/o
81, Ganmagri, Sobhagpura, Udaipur.
13. Rakesh Inani S/o Shri Goverdhan Lal, aged about 36 years,
R/o 373, Salerakala, Malali, Udaipur.
14. Birbal Dhakad S/o Shri Pyarelal Dhakad, aged about 35
years, R/o 22, Sangam Colony, Sawai Gatore, Jagatpura Road,
Jaipur.
15. Dalip Kumar S/o Shri Manohar Lal, aged about 27 years, R/o
Plot No. 15., Gali No. 9, Ramlal Colony, SSB Road,
Sriganganagar.
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16. Sushil S/o Shri Satyanarayan, aged about 30 years, R/o
Surajgarh, Jhunjhunu.
17. Vimleshi D/o Shri Brijmohan Meena, aged about 28 years,
R/o Karoli Phatak, Saloda Mod, Gangapurcity, Sawaimadhopur.
18. Sweta Chorasiya W/o Shri Shivji Chorsiya, aged about 35
years, R/o P. No. 70, B-2, Udainagar-A, Gopalpura, Jaipur.
19. Vinod Singhal S/o Shri Banwari Lal Singhal, aged about 37
yeasr, R/o Village and Post Bharamwas, Tehsil Bayana, District
Bharatpur.
20. Bhawna Choudhury D/o Shri Balwant Singh, ared about 37
years, R/o 721 Gali No. 14, Ward No. 22, HMO Hanumangarh.
21. Indubala Soni D/o Shri Ghanshyam Soni, aged about 34
years, R/o 21/502, Chopasani Housing Board, Jodhpur.
22. Mukesh Kumar Dhaked S/o Shri Balchand, aged about 32
years, R/o Dhakado Ka Mohalla, Eklingpura, Rawatbhata,
Chittorgarh.
23. Santosh Panwar W/o Shri Mahendra Saini, R/o 114, Anudeep
Colony, Bhabhanagar, Rawatbhata, Chittorgarh.
24. Devendra Mittal S/o Shri Bhagwan Das, aged about 36
years, R/o 2-D-2, Housing Board, Banswara.
25. Dinesh Chandra Sharma S/o Shri Devicharan Sharma, aged
about 40 years, R/o Maheshwari Mohalla, Dariba Mahanduriya,
Rajpura, Rajsamand.
26. Iqbal Gauri S/o Shri Gaffur Khan, aged about 35 years, R/o
C-122, Housing Board Colony, Balicha, Udaipur.
27. Shipla Gaur W/o Shri Deepak Sharma, aged about 34 years,
R/o 268, Scheme No. 4, Rajendra Nagar, Alwar.
28. Savita D/o Shri Babarav Sonare, aged about 43 years, R/o
6/197, Housing Board Colony, Shivaji Nagar, Dungarpur.
29. Kanti Lal Mali S/o Shri Bhuraram, aged about 27 years, R/o
Somnath Krishi Farm Village and Post Karori, Tehsil Revdar,
District Sirohi.
30. Chandan Singh Dhakad S/o Shri Seva Ram, aged about 35
years, R/o Chaua Kua, Areda Road, Hindone City. Karauli.
31. Aankansha Sharma W/o Shri Jasdip Singh Sethi, aged about
35 years, R/o 151/6, 203, Guran Apartment, Sector 13, Hiran
Magri, Udaipur.
32. Rekha Labana S/o Shri Dinesh Labana, aged about 31 years,
R/o Tada, Ward No. 3, Dudhadli Tada, Pratapgarh.
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33. Govind Shivhare S/o Shri Rajnath, R/o 91, Kasai Pahada,
Tehsil Bandi, District Dholpur.
34. Rajesh Gupta S/o Shri Madan Lal Gupta, aged about 36
years, R/o Village and Post Pavta, Tehsil Kotputli, Jaipur.
35. Hariom Goyal S/o Shri Kailash Chand, aged about 37 years,
R/o 232, Shrinagar Colony, Rampura Chaura, Udaipur.
36. Vijay Yadav S/o Shri Mahaveer Prasad, aged about 35 years,
R/o Rath Nagar, Vijay Mandir Road, Alwar.
37. Veer Singh Yadav S/o Shri Amar Singh, aged about 36 years,
R/o Jajora Baas, Kithur, Alwar.
38. Atul Sharma S/o Shri Ram Kishore Sharma, aged about 33
years, R/o 13, Sanjay Colony, Rata Khet, Rampura Road,
Udaipur.
39. Jagdish Vishnoi S/o Shri Hajari Ram, aged about 43 years,
R/o Flat No. 607, Orbit Kanishka, New Fatehpura, Udaipur.
40. Mahesh Sharma S/o Shri Pooran Chand, aged about 39
years, R/o Near Panchayat Bhawan, Sobhapura, Udaipur.
41. Kumkum Dabi D/o Shri Vishram Singh, aged about 28 years,
R/o Housing Board Colony, Banswara.
42. Sanjay Dhakad S/o Shri Jaylal, aged about 35 years, R/o
313, Musalman Basti, Pathik Nagar, Bijolia, Bhilwara.
43. Jayat Yadav S/o Shri Dhanpal Yadav, aged about 38 years,
R/o Yadavio Ka Mohalla, Kona Varda, Dungarpur.
44. Anju Katare W/o Shri Navneet Katare, aged about 44, R/o
Ramnagar, Ajmer.
45. Saroj Mod W/o Shri Ashish Sharma, aged about 37 years,
R/o Dhonda, Tehsil Patan, District Jhalawar.
46. Komal Sharma W/o Rajendra Chand Mishra, aged about 37
years, R/o Nitya Kutir, E-64, Jawahar Nagar, Bharatpur.
47. Yashwant Parmar S/o Shri Laxman Ram Parmar, aged about
33 years, R/o 2/57, Housing Board Colony, Savina, Sector-9,
Udaipur.
48. Sinesh S/o Shri Nathulal, aged about 34 years, R/o Near Jain
Temple, Baroda, Dungarpur.
49. Shilpi Kansal D/o Shri Naresh Kumar Gupta, aged about 28
years, R/o Plot No. 196, Gandhiji Ka Pool, Kota (Rajasthan).
50. Bholesh Jain S/o Shri Chandra Prakash Jain, aged about 37
years, R/o 306, Rajat Grah Colony, Bundi.
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51. Snehlata Doshi W/o Shri Bholesh Kumar Jain, aged about 35
years, R/o 306, Rajat Grah Colony, Bundi.
52. Rajesh Kumar Yogi S/o Shri Govind Lal, aged about 39 years,
R/o 204-A, Shivshanti Store Wali Gali, Ward No. 37, Ladpura,
Kota.
53. Hariprakash Nagar S/o Shrilal Nagar, aged about 33 years,
R/o 1-Kha-3, Teachers Colony, Keshavpura, Kota.
54. Jainarayan Swami S/o Shri Suratram Swami, aged about 35
years, R/o Mandawari, Tehsil Dagod, District Kota.
55. Mahaveer Nagar S/o Shri Mangelal Nagar, aged about 39
years, R/o Dhakad Mohalla, Vinod Khurd, Kota.
56. Shivcharan Nagar S/o Shri Heeralal, aged about 38 years,
R/o 30, Khakad Ka Mohalla, Sanmanpura, Tehsil Peepalda, Kota.
57. Vikalp Nagar, S/o Shri Prahalad Nagar, aged about 37 years,
R/o Near Middle School, Itava, Kota.
58. Tejesh Goyal S/o Shri Rajendra Prasad, aged about 38 years,
R/o 6-B-38, Mahaveer Nagar, Sector 6-B, Tehsil Ladpura, Kota.
59. Sanjay Nagar S/o Shri Mohanlal, aged about 38 years, R/o
Dhakado Ka Mohalla, Tulsi, Bundi.
60. Ganesh Nagar S/o Shri Ramlal Nagar, aged about 38 years,
R/o Court Road, Vakil Colony, Madalgarh, Bhilwara.
61. Rajendra Singh Hada S/o Shri Shambhu Singh, aged about
37 years, R/o 170, Rajput Colony, Rangbadi, Ladpura, Kota.
62. Bheemraj Choudhary S/o Shri Gangaram Choudhary, aged
about 40 years, R/o 1234A, R.K. Puram, Sector-A, Ward No.4,
Ladpura, Kota.
63. Mahima Jaiswal D/o Shri Hemraj, aged about 35 years, R/o
1050, Parihar Vidhyala Ke Pas, Chavni, Ramchandrapura,
Rooppura, Kota.
64. Parul Soni D/o Shri Radheyshyam Soni, aged about 36 years,
R/o Dhavion Ka Chowk, Bundi.
65. Nanita Jain D/o Shri S.P. Kabra, aged about 34 years, R/o
56, Shiv Colony, Tonk Phatak, Jaipur.
66. Pooja Joshi W/o Shri Bharad Ji, aged about 36 years, R/o
515A, Shrinathpuram, Sector-A, Ward No.4, Ladpura, Kota.
67. Rikesh Yadvendra S/o Shri Satyanarian, aged about 37
years. R/o Mahaveer Nagar-3. Pa-E-Pa, Kota.
68. Mukti Sharma W/o Shri Rakesh Sharma, aged about 36
years, R/o 1-Ga-32, Dadabadi, Sector-1-Ga, Kota.
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69. Sheela Cheepa D/o Shri Chandmal Cheepa, aged about 37
years, Bade Mandir Ke Pas, Asind, Bhilwara.
70. Sunil Gautam S/o Shri Banwari Lal Gautam, aged about 38
years, R/o 602, Khairli Phatak, Kota.
71. Lalit Shukla S/o Shri Omprakash, aged about 42 years, R/o
58, Aanshik Danapur, Danapur, Banswara.
72. Rajeev Manuja S/o Shri Ramesh Chand, aged about 36 years
R/o 192/361, Pratap Nagar, Sector-19, Ward No. 24, Sangane,
Jaipur.
73. Rajesh Dhakad S/o Shri Pannaraj, aged about 37 years, R/o
76, Mundera, Bharatpur.
74. Jitendra Sharma S/o Shri Rameshwar Sharma, aged about
38 years, R/o Plot No. 1044, Mahaveer Nagar-II, Kota.
75. Vikas Sharma S/o Shri Nand Lal Sharma, aged about 36
years, R/o Lal Chowk, Keshavrai Patan, Bundi.
76. Dilip Singh S/o Shri Dharm Singh, aged about 35 years, R/o
308, Gadi Timariya, Tehsil Basedi, Dholpur.
77. Rajkumar Goyal S/o Shri Ram Charan, aged about 41 years,
R/o Mandi Ke Bahar, College Road, Baran.
78. Vinod Nagar S/o Shri Hardayal Nagar, aged about 42 years,
R/o Dadu Panth Ji Ki Bageechi, Baran.
79. Nandlal Mehta S/o Shri Harvan Lal Mehta, aged about 40
years, R/o Gadreta, Post Samraniya, Baran.
80. Ganesh Malav S/o Shri Kanhaiya Lal Malav, aged about 44
years, R/o Khakhara, Post Kadaiya Nohar, Tehsil Chanvda, Baran.
81. Girdhar Malav S/o Shri Nand Kishore Malav, aged about 40
years, R/o Patel Ji Ka Mohalla, Rooppura, Baran.
82. Mukesh Nagar S/o Shri Murlidhar Nagar, aged about 36
years, R/o Brahamano Ke Bas, Bamla, Baran.
83. Hemant Panchal S/o Shri Shravan Kumar Ji, aged about 37
years, R/o 470, Luharo Ki Tapri, Kishanganj, Tehsil Kishanganj
Baran.
84. Praveen Kumar Jain S/o Shri Sumat Kumar Jain, aged about
34 years, R/o Purani Mandi Gate, College Gate, Baran.
85. Juhi Garg D/o Shri Ramkrishan Garg, aged about 34 years,
R/o 101, Agrasen Bajar, Kota.
86. Kaushal Vaishnav S/o Shri Omprakash Vaishnav, aged about
34 years, R/o 1140, Mahaveer Nagar-II, Kota.
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87. Sandeep S/o Shri Devkaran Mahla, aged about 30 years, R/o
Choudhary Colony, Chirawa, District Jhunjhunu.
88. Manoj Choudhary S/o Shri Anantaram, aged about 36 years
R/o Village Matore, Tehsil Mudawara, District Alwar.
89. Amita Choudhary W/o Shri Manoj Choudhary, aged about 36
years, R/o Village Matore, Tehsil Mudawara, District Alwar.
90. Doli Suman D/o Shri Girdhar Gopal, aged about 31 years,
R/o 1-F-22, Mahaveer Nagar-III, Kota.
91. Mithlesh Jain S/o Shri Mahaveer Prasad Jain, aged about 34
years, R/o Sadar Bazar, Taleda, Bundi.
92. Pratap Singh Mehta S/o Shri Thakur Lal Mehta, aged about
38 years, R/o 200, Mandirpura Colony, Tehsil Sahabad, District
Baran.
93. Preeti Swami W/o Shri Vishwadeep Swami, aged about 28
years, R/o V.P.O. Ojtoo, Tehsil Chirawa, District Jhunjhunu.
Petitioners
Versus
1. State of Rajasthan through Principal Secretary, Department of
Finance, Government Secretariat, Jaipur.
2. Principal Secretary, Department of Ayurveda, Government
Secretariat, Jaipur Rajasthan.
3. Principal Secretary, Department of Personnel, Government
Secretariat, Jaipur Rajasthan.
Respondents
For Petitioner(s) : Mr. Ashwini Jaiman with Mr. Ajay
Choudhary.
For Respondent(s) : Mr. Rajendra Prasad, AAG assisted by
Mr. Atul Singh Chauhan.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Order
14/08/2018
(Per Hon'ble Mr. Justice Mohammad Rafiq)
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This writ petition has been filed by 93 writ petitioners
questioning the constitutional validity of Notification dated
03.07.2014 (Annexure-7) whereby proviso existing below Rule 8
of the Rajasthan Service Rules, 1951 (for short 'the Rajasthan
Service Rules') was substituted by another proviso to the effect
that in cases of Medical Officer of the Rajasthan Medical and
Health Service, Senior Demonstrator and Assistant Professor of
the Rajasthan Medical Service (Collegiate Branch), who possess
MBBS degree and have spent one year in internship, the period of
Probation Training shall be one year instead of two years. Earlier
proviso had used the word, "Medical Officer" whereas new proviso
has qualified it by providing that "Medical Officer of the Rajasthan
Medical and Health Service, Senior Demonstrator and Assistant
Professor of the Rajasthan Medical Service (Collegiate Branch)".
The petitioners, who have approached this Court, are working on
the post of Ayurved Chikitsadhikari. However, their designation
was earlier Ayurved Chikitsak, but vide amendment brought in the
Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy
Service Rules, 1973 (for short 'the Rules of 1973') vide
Notification dated 07.05.2010, the same was changed to Ayurved
Chikitsadhikari. In the writ petition therefore the petitioners have
called themselves as Ayurved Medical Officer instead of Ayurved
Chikitsadhikari.
Mr. Ashwini Jaiman, learned counsel for the petitioners
argued that the petitioners are possessing degree of Bachelor of Ayurvedic Medicine and Surgery (for short 'BAMS'), which has been awarded to them after successful completion of internship of one year. It is submitted that they were appointed on the (8 of 20) [CW-7060/2016] aforesaid posts in pursuance of Advertisement dated 01.06.2013 vide three different orders dated 11.12.2015, 18.02.2016 and 29.03.2016 in the pay scale of Rs. 15600-39100 with grade pay of Rs. 5400/- on probation for a period of two years, during which period they were to receive fix salary of Rs. 22,180/-. It is submitted that the Finance Department while amending Rule 8 of the Rajasthan Service Rules added a proviso vide Notification dated 26.12.2011 to the effect that in case of Medical Officer, the period of probation training should be one year instead of two years as they spent one year in internship. This proviso would equally apply to the petitioners as they are also Medical Officers. Reliance is placed on the definition of "Medical Officer" given in Rule 4(3) of the Rajasthan Medical Officers and Nursing Staff Fees Rules, 2011 (for short 'the Fees Rules of 2011') promulgated vide Notification dated 30.05.2011. It is argued that the Fees Rules of 2011 would also be binding on the respondents as this set of rules has been promulgated under proviso to Article 309 of the Constitution of India. Reference is also made to order dated 24.12.2011 by which candidates were appointed on the post of Medical Officers pursuant to their selection by Rajasthan University of Health Sciences in the pay scale of Rs. 15600-39100 with fixed salary of Rs. 30,000/- on probation for a period of two years, which also included period of one year spent on internship. As such probation period was reduced to one year. It is argued that the petitioners, who possess degree of BAMS, having been appointed on the post of Ayurved Medical Officer, are identically situate with those Medical Officers, who possess degree of MBBS and fall in the same category. Therefore, the action of the (9 of 20) [CW-7060/2016] respondents in treating them differently is wholly discriminatory and arbitrary.
Learned counsel for the petitioners has relied upon judgment dated 29.04.2009 passed by Single Bench of this Court in Dr. Vinod Saini & Others Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No. 414/2009) directing payment of equivalent amount as stipend to the students of Indian System of Medicine (Ayurvedic) on the rates revised for the students of Modern System of Medicines (Allopathy) and action of the respondents to the contrary was held to be discriminatory. Learned counsel further argued that sole basis on which period of probation training has been reduced from two years to one year is the time spent by the Medical Officer in the internship. The students of BAMS during said course have to undergo internship of one year. The petitioners with their BAMS degree course have completed internship of one year. This being the only criteria for grant of benefit of reduction of one year from the period of two years of probation training, there is no reason for not extending similar treatment to the petitioners.
Contention of learned counsel for the petitioners is that classification of MBBS and BAMS students on the basis of stream of medicine in which they practise is wholly unreasonable without there being any valid criteria or reasonable nexus with the object sought to be achieved. In fact, the object behind both the internships is the same i.e. a training where a graduate conducts actual practice of medicine and health care and acquire skills so that he/she may become capable of functioning independently. Ordinance No. 272 in Chapter XXXV deals with the internship of (10 of 20) [CW-7060/2016] MBBS degree holders as the same is followed by Rajasthan University of Health and Sciences, Jaipur. The same is followed for BAMS degree holders by Rajasthan Ayurvedic University, Jodhpur, which adopted Notification dated 25.04.2012 issued by Central Council of Indian Medicine. According to the aforesaid notification, candidates appearing in final BAMS examination have to undertake 12 months of internship, out of which a candidate has to undergo six months clinical training at an Ayurvedic Hospital attached with the college and the remaining 6 months training has to be undergone at Public Health Centre, Community Health Centre or at any hospital of modern medicine.
It is argued that no quantifiable data has been made available about scarcity of doctors having MBBS degree in Allopathy branch of medicine in the State of Rajasthan in the absence of which, bald assumption of the respondents to justify issuance of Notification dated 03.07.2014 cannot be sustained. It is argued that Article 14 of the Constitution of India forbids unreasonable classification but permit reasonable classification based on intelligent differentia which should come forth. However, in the present case, no material has been placed on record to show that as to why Medical Officers from MBBS shall form a homogeneous class to be treated differently. There is no rationale or material to indicate as to how reduction in period of probation would fetch more aspirants in MBBS branch and not in Ayurved branch of medicine.
Learned counsel in support of his arguments relied upon judgments of Uttaranchal High Court in Dr. Sanjay Singh Chauhan & Others Vs. State of Uttarakhand & Others (Writ (11 of 20) [CW-7060/2016] Petition No. 484/2014[S/B] decided on 03.04.2018) and judgment of Gujarat High Court in Patel Manibhai D. & 116 Vs. State of Gujarat & 4 (Special Civil Application No. 6017/2008 and other connected applications decided on 26.07.2012).
Per contra, Mr. Rajendra Prasad, learned Additional Advocate General appearing on behalf of the respondents argued that the petitioners were never treated as Medical Officers. Their earlier designation was Ayurved Chikitsak, which by amendment in the Rules of 1973 vide Notification dated 07.05.2010 was changed to Ayurved Chikitsadhikari. This amendment has been made much prior to Notification dated 26.12.2011 whereby proviso was inserted below Rule 8 of the Rajasthan Service Rules reducing period of probation from two years to one year in the case of Medical Officers. The Government of Rajasthan issued Notification dated 20.01.2006 amending Rule 8 of the Rajasthan Service Rules whereby a provision was made that the government servants appointed in the State of Rajasthan would initially have to work on probation of two years and during this period, they shall get fixed remuneration. Vide Notification dated 01.06.2013, advertisement was issued for appointment on the post of Ayurved Chikitsadhikari, pursuant to which the petitioners were appointed and in that notification it was clearly mentioned that selected candidates would get fixed remuneration during the probation of two years. The petitioners having participated in the process of selection pursuant to said notification are now estopped from challenging the said condition. Reference is made to Rules 16, 18 and 33 of the Rules of 1973, which provides that one shall be (12 of 20) [CW-7060/2016] appointed on probation for two years and during this period he shall get fix remuneration. Decision to include the period of one year of internship has been purposely taken in the case MBBS Medical Officers as there was shortage of doctors in Allopathy Branch of Medicine, especially in the rural areas. Even the earlier Notification dated 26.12.2011 was applicable only to Medical Officers appointed under the Rajasthan Medical and Health Service Rules, 1963 (for short 'the Rules of 1963') and not to those who were appointed under the Rules of 1973. Learned Additional Advocate General referred to Schedule appended to the Rules of 1963 where post of Medical Officer has been included in Schedule- I at Serial No. 12 with its source being 100% by direct recruitment. This benefit has been confined to only such Medical Officers, who have secured appointment after obtaining degree of MBBS and the same has not been extended to those who are governed by the Rules of 1973. It is argued that the necessity to substitute the existing proviso to Rule 8 of Rajasthan Service Rules arose because Senior Demonstrator and Assistant Professor of the Rajasthan Medical Service (Collegiate Branch) were also sought to be included within that purview or else there was no need for any such amendment.
Learned Additional Advocate General referred to Para No.5 of counter to rejoinder filed on behalf of the respondents and submitted that there are sufficient number of Ayurved Chikitsadhikari, which is evident from the fact that as against advertised 785 posts vide Advertisement No. 1/2013 issued in 2013, 2701 candidates applied and as against advertised 400 posts vide Advertisement No. 4/2013, 2500 candidates applied (13 of 20) [CW-7060/2016] whereas in the case of Medical Officer governed under the Rules of 1963, they are reluctant to join services in rural hospitals/PHCs of the Government as there are much more avenues available for them in the private sector. It is in order to attract them that the Medical Council of India has also amended the rules to provide them incentive of bonus marks for admission to post graduation medical study courses, which varies from 10% for every completed year up to maximum of 30%.
Learned Additional Advocate General argued that the petitioners and the Medical Officers working in the Medical and Health Department of the State come from different cadre and they are governed by different set of rules. Qualifications on the basis of which they are appointed are also entirely different. The method of treatment in both the disciplines is also entirely different. The Government has always interpreted proviso to Rule 8 of the Rajasthan Service Rules inserted vide notification dated 26.12.2011 to mean that only such Medical Officers, who are appointed with MBBS degree in the Medical and Health Department and never treated Ayurved Chikitsadhikari or Unani Chikitsadhikari or Homoeopathy Chikitsadhikari as Medical Officers. Reliance placed on the Fees Rules of 2011 is wholly misconceived as they are framed with a limited object of regulating charging of fees by Medical Officers and Nursing Staff for private practice and it is in this context that Medical Officer has been defined which would include Rajasthan Medical Service (Collegiate Branch), Rajasthan Medical and Health Service, Rajasthan Rural Medical and Health Service, Rajasthan Ayurved Service (General and Collegiate Branch). It is argued that the (14 of 20) [CW-7060/2016] proviso subsequently introduced for substitution of earlier one was only clarificatory in nature.
Learned Additional Advocate General argued that it is for the employer to ensure availability of adequate number of doctors in the rural health sectors and with that view, the Government has provided incentive to the Medical Officer which would have reasonable nexus with the object sought to be achieved. Learned Additional Advocate General relied upon the judgment of the Supreme Court in State of Punjab & Others Vs. Jagjit Singh & Others, (2017) 1 SCC 148 and referred to Para No. 42 of the Report to argue that 17 parameters laid down by the Supreme Court therein for the purpose of parity in pay/pay scale, would also apply to the present situation with equal force.
Mr. Ashwini Jaiman, learned counsel for the petitioners rejoined and submitted that there is equal shortage of Ayurved Medical Officers having BAMS degree. There are only 590 seats per year for BAMS course in the Ayurvedic colleges of the State. Prior to Advertisement dated 01.06.2013, last recruitment for the post of Ayurved Medical Officer was held in the year 2002, which shows that large number of posts of Ayurved Medical Officers are lying vacant. So far as submission of the respondents in order to attract students for admission to MBBS Branch, the Medical Council of India has also amended the rules to provide them incentive of bonus marks for working in rural areas for admission to post graduation medical study courses is concerned, the same has been provided by Medical Council of India and the State Government has no role to play in this. Cited judgment of the Supreme Court in State of Punjab & Others Vs. Jagjit Singh & (15 of 20) [CW-7060/2016] Others (supra) is wholly distinguishable on the facts and law as the said judgment arose out of claim of parity in pay/pay scale on the principle of equal pay for equal work.
We have given our anxious consideration to rival submissions and carefully perused the material placed on record.
No doubt payment of stipend to students of BAMS during internship period equivalent to what was being paid to students of MBBS may be one of the criteria to judge equivalence of both but this cannot be the only criterion. Here in the present case, the originally inserted proviso to Rule 8 of the Rajasthan Service Rules stipulated that in case of Medical Officers, period of probation training shall be one year instead of two years as they spent one year in internship. The word, "Medical Officer" cannot be taken to include Ayurved Chikitsadhikari/Ayurved Medical Officer only by translating nomenclature of Ayurved Chikitsadhikari/ Unani Chikitsadhikari/ Homoeopathy Chikitsadhikari inserted in the Rules of 1973 vide amendment Notification dated 07.05.2010. Earlier to this, Ayurved Chikitsadhikari was known as Ayurved Chikitsak. Not only the qualification of Medical Officer and Ayurved Chikitsadhikari are different but, as rightly argued, method of practice of both the streams is also different. It is common knowledge that health sector in rural areas in the State of Rajasthan is suffering because of scarcity of Medical Officers in Allopathy branch. Keeping that in view, the rule making authority has decided to attract fresh medical graduates from discipline of MBBS by granting them incentive. The petitioners, who are working on the post of Ayurved Chikitsadhikari, cannot claim parity with them for reduction of (16 of 20) [CW-7060/2016] their period of probation. It is a policy matter for the rule making authority or the employer to decide as to what should be requisite period of probation in a given service. The petitioners were fully aware of this fact when they applied in response to Advertisement dated 01.06.2013 that they shall be initially required to work on probation for a period of two years on fixed remuneration. Having fully known about the said condition, they participated in the process of selection and thereafter were selected and appointed. They are therefore now estopped from challenging that condition of their appointment.
Although it is true that judgment of the Supreme Court in State of Punjab & Others Vs. Jagjit Singh & Others (supra) cited by learned Additional Advocate General arose out of a claim of parity in pay/pay scale on the principle of equal pay for equal work, but the criteria laid down by the Supreme Court on the basis of its previous judgments on this subject would justify the action of the respondents in differentiating BAMS Ayurved Chikitsadhikari from MBBS Medical Officer. The Supreme Court in the aforesaid case has culled out various parameters that, (1) The onus of proof of parity in the duties and responsibilities of the subject post lies on the person who claims so. (2) The mere fact that subject post occupied by the claimant is in a different department vis-à-vis the reference post does not have any bearing on the determination of the claim. (3) The employee concerned with whom equation is sought should be performing work which besides being functionally equal, should be of the same quality and sensitivity. (4) The persons holding the same rank/designation in different departments but having dissimilar powers, duties and (17 of 20) [CW-7060/2016] responsibilities, can be placed in different categories. (5) Duties of two posts should be of equal sensitivity and also qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality would fall within the realm of valid classification and pay differentiation would be legitimate and permissible. (6) An employee appointed on temporary basis cannot claim to be placed in regular pay scale. (7) Persons performing the same or similar functions, duties and responsibilities can also be placed in different pay scales. (8) If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable. (9) The reference post with which parity is claimed has to be at the same hierarchy in the service as the subject post. (10) A comparison between the subject post and reference post cannot be made where the subject post and the reference post are in different establishments having a different management. (11) If the duties and responsibilities of one of the posts are more onerous or are exposed to higher nature of operational work/risk, the principle of equal pay for equal work would not be applicable. (12) The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. (13) The parity in pay cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post were placed in the same pay scale. (14) Equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching whereas that of the other is non-teaching, the (18 of 20) [CW-7060/2016] principle of parity would not be applicable. (15) There can be a valid classification in the matter of pay scales even between employees holding posts with the same nomenclature i.e. between those discharging duties at the headquarters and others working at the institutional/sub-office level. (16) The principle of parity would not be applicable where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation with the objective of ameliorating stagnation or on account of lack of promotional avenues, and (17) There can be no comparison between one set of employees of one organization and another set of employees of a different organization, even if those two organizations have a common employer.
No doubt, aforementioned parameters were laid down by the Supreme Court in the context of claim of parity of pay/pay scale on the principle of equal pay for equal work, but the reliance on those parameters by learned Additional Advocate General would justify his stand that different treatment provided to Medical Officers with MBBS degree in the matter of period of probation cannot be said to be wholly without justification. We are therefore inclined to hold that classification made by the respondent-State by placing Medical Officers with MBBS degree in one group and Ayurved Chikitsadhikari with BAMS degree in another group in the matter of reduction of period of probation training from two years to one year or in other words reduction of period of one year of internship against the period of probation training of two years has a reasonable nexus with the object sought to be achieved. Object of the State Government in doing so is to ensure availability of sufficient number of Medical Officers (19 of 20) [CW-7060/2016] in MBBS discipline particularly in rural areas as they are facing competition from more opportunities available in the private sector.
It is settled preposition of law that Article 14 of the Constitution of India permits classification, provided such classification bears a rational relation to the object sought to be achieved. We may, in this connection, refer to earliest judgment of the Supreme Court in State of Bombay Vs. F.N. Balsara, AIR 1951 SC 318, in which case, their Lordships laid down the following seven yard sticks to test the reasonableness of the classification:
"(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discrimination are based on adequate grounds.
(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
(3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
(4) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
(6) If a law deals equally with members of a well-defined class, it is not obnoxious and it is (20 of 20) [CW-7060/2016] not open to the charge of denial of equal protection on the ground that it has no application to other persons.
(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis."
Applying the aforesaid test, we find that Medical Officers practising in Allopathy Branch of the Medicines by themselves form a homogeneous class and therefore their classification can be said to be reasonable in view of the reasons given by the respondents to do so and Ayurved Chikitsadhikari/ Unani Chikitsadhikari/ Homoeopathy Chikitsadhikari fall in distinct category, as they practise in different branch of medicines and have got different characteristics than Medical Officers in Allopathy Branch of Medicine. Therefore, having regard to the underlined purpose and the intelligent differentia which lies beneath such classification, in our view, has rational relation to the object sought to be achieved.
In view of above discussion, it is held that notification dated 03.07.2014 qualifies test of reasonable classification under Article 14 of the Constitution of India and the same is declared intra vires of the Constitution of India.
There being no merit in this writ petition, the same is accordingly dismissed.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
Manoj
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