Allahabad High Court
Mahendra Singh Yadav And 30 Others vs State Of U.P. And 2 Others on 19 September, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 9696 of 2019 Petitioner :- Mahendra Singh Yadav And 30 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shiv Bahadur Yadav,Prashant Sharma Counsel for Respondent :- C.S.C.,Gaurav Pundir,Hemendra Kumar Mishra,Neeraj Kumar,Rajesh Dutta Pandey,Ram Chandra Yadav Hon'ble Ashwani Kumar Mishra,J.
Petitioners in the present writ petition are qualified AYUSH doctors who have requisite degree in the field of Ayurved, Unani, Homoeopathic etc. They have approached this Court challenging an advertisement issued by the State of Uttar Pradesh on 7th May 2019, whereby applications have been invited from a specified category of applicants for admission to six months bridge course for the purposes of filling up six thousand posts of Community Health Officers. Petitioners are aggrieved by the advertisement in so far as it restricts the zone of consideration to Nurses and GNM (General Midwifery/Nursing) registered with the U.P. Nursing Council alone and excludes AYUSH doctors.
The primary ground of challenge on part of the petitioners is that being qualified doctors in other streams, petitioners are also eligible to be considered for appointment to the post in question and, therefore, there exclusion for the bridge course, is wholly arbitrary. In support of such contention, the petitioners rely upon the policy framed by the Central Government known as National Health Policy 2017. Clause 11.4 of this policy contemplates Mid-level Service Providers and is extracted hereinafter:
"Mid-Level Service Providers: For expansion of primary care from selective care to comprehensive care, complementary human resource strategy is the development of a cadre of mid-level care providers. This can be done through appropriate courses like a B.Sc. in community health and/or through competency-based bridge courses and short courses. These bridge courses could admit graduates from different clinical and paramedical background like AYUSH doctors, B.Sc. Nurses, Pharmacists, GNMs, etc and equip them with skills to provide services at the sub-centre and other peripheral levels. Local based selection, a special curriculum of training close to the place where they live and work, conditional licnesing, enabling legal framework and a positive practice environment will ensure that his new cadre is preferentially available where they are needed most, i.e. in the under-served areas."
Petitioners submit that while referring to holding of bridge courses the national policy clearly admits graduate from different clinical and paramedical backgrounds including AYUSH doctors also and, therefore, there exclusion for admission to bridge course is contrary to the policy of the Central Government.
A counter affidavit has been filed on behalf of the respondents stating therein that initially there was a proposal to include AYUSH doctors also to be permitted to practice western medicine to a limited extend, but after due deliberation, the Central Government has dropped this move. It is also stated that the policy of the Central Government merely specifies the zone of consideration to include AYUSH doctors but ultimately it is left for the State Government to finalize as to who are the persons required to act as Community Health Officers.
The respondents have further taken a stand that under the policy of the National Mission 2017, there is adequate provision of employment for AYUSH doctors in their respective stream and the nature of job which is to be performed by the Community Health Officers would not require the expertise of AYUSH doctors, and therefore, at this stage, they have not been included in the list of eligible persons to be admitted in the bridge course. It is, however, stated that as and when requirement arises the State Government shall include AYUSH doctors also and that their claim is not being denied at this stage.
Sri M.C. Chaturvedi, learned Additional Advocate General, appearing for the National Health Mission and the State of Uttar Pradesh, categorically states that the petitioners have not been ousted from the zone of consideration and that in case of necessity the bridge course would be extended to AYUSH doctors also.
I have heard Sri S.B. Yadav, learned counsel for the petitioners and Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri H.M. Mishra for the respondents and perused the materials available on record.
A perusal of the National Health Policy would clearly go to show that a comprehensive plan has been laid by the Central Government for extending medical facilities to citizens through out the country. Care has been taken to include far of areas also in addition to urban and rural areas, and the Health Services are to be provided at different level. Mid Level Service Providers have been conceived to ensure expansion of primary care and for such purposes development of a cadre of mid level care providers is contemplated. These mid level service providers are expected to perform various ancillary work as per the policy. The candidates possessing B.Sc. in community health would be the appropriate persons to occupy the position. In addition to it, other qualifications have also been included after extending six months training in a bridge course. The persons who could be included in the bridge course includes AYUSH doctors B.Sc. Nurses, Pharmacists, GNMs etc. Clause 11.4 of the national policy is categorical, inasmuch as it merely illustrates the persons who could be extended necessary expertise by offering them bridge courses. Clause 11.4 uses the expression could admit graduates from the specified category which clearly demonstrates that the category included are not exhaustive and it is also not necessary that each and every category has to be included. Ultimately it remains a matter of policy for the State to decide as to which category of persons are immediately required to be extended bridge course for appointment to the post of Community Health Officer. The assessment of requirement at the level of State as well as policy framed in that regard would ordinarily not be interfered with unless the same is shown to be absolutely arbitrary or contrary to any statutory provision. The assessment in that regard is shown to have been made after a comprehensive evaluation of the requirement of the department at this stage. The stand of the State otherwise is that AYUSH doctors are not being excluded and it would ultimately depend upon the requirement of the department, in which scenario, they can also be included for the purposes of extending bridge course. The stand taken by the respondents adequately protects the petitioners. It is otherwise pointed out that petitioners are trained medical personals in other streams like Ayurveda, Homoeopathic, Unani etc. and the National Health Mission conceives specific role for them and their avenue of employment etc, as per the scheme, would otherwise not be adversely affected.
So far as the contention advanced by learned counsel for the petitioner that in other States AYUSH doctors have been included for such purposes is concerned, it would be relevant to observe that specific requirement in different State will have to be assessed by the respective State Governments and merely because in some of the States AYUSH doctors have also been included for extending bridge course at this stage would not be a ground to question the policy of the State of Uttar Pradesh in that regard. Stand of the State taken in paragraph nos. 6 to 9 of the supplementary counter affidavit filed on behalf of the respondent no. 3, would be worth noticing and are extracted hereinafter:
"6. That the Ayush doctors have been given ample opportunity at PHCs, CHCs, District Hospitals, while the post in question is meant for mid level health service provider that is to say that only to ease out the rush on the PHCs that is to say that a bridge between Doctors and common man and a few common drugs of the allopathy is sought to be given by the trained workers i.e.; CHO, which in all fairness not suited to doctors therefore while issuing the advertisement a conscious decision was taken to call upon only nurses (GNM or BSc).
7. That for providing accessible, affordable and quality health care in order to in improves the existing health care delivery system, the Ayush facilities at primary Health Centres (PHCs) Community Health Centres (CHCs) and District Hospitals (DHs) are to be provided, thus enabling choice to the patients for different systems of medicines under single window. Accordingly 1945 Ayush doctors are working on contract against sanctioned 2044 post of contractual Ayush doctors as Medical Officer (M.O.) on minimum honorarium at the rate of Rs. 32,000/- per month in Mainstreaming of Ayush under National Health Mission. Whereas the Community Health Officer working at Health and Wellness Centre is entitled for honorarium at the rate of Rs. 20,500/- per month. It makes clear that the Ayush doctors have adequate opportunity under NHM as per their qualification and elegibility to serve as Medical Officer (Doctor) at higher honorarium then the Community Health Officer. Whereas appointment as Community Health Officer will be like reduction/degradation of their quality/elibility.
8. That it is also worth mentioning that under the standing policy of the state appointment of doctors/Ayush doctors is made only up to primary health center level and not at sub-centers below PHC. If the Ayush doctors are to be appointed as CHO under NHM then there will be the need to take a separate decision at state level. This would not be appropriate in the context of the present case.
9. That the implementation of Health and Wellness Centers under the Ayushman Bharat Scheme is done through NHM as per the guidelines issued by Government of India. The said guideline specifically prescribed that the Mid Level Health Provider (MLHP) who would be a community health officer (CHO)- a B.Sc. in community health or a Nurse (GNM or B.Sc.) or an Ayurveda practitioner (BAMS), trained and certified through IGNOU/other state public health/medical University for a set of competencies in delivering public health and primary health care services, not the other qualification holders as mentioned in clause 11.4 of the National Health Policy 2017."
It is expected that in terms of stand taken by the State, the authorities shall take required steps to ensure that AYUSH doctors such as petitioners are also provided relevant avenues of engagement in terms of the National Health Policy.
In view of the stand taken by the respondents, this Court finds that assessment by State to restrict a particular category of persons alone to be extended bridge course at this stage, is not shown to be perverse or irrational. The assessment of requirement by the department is otherwise not shown to be arbitrary. The interest of AYUSH doctors is otherwise protected in view of the stand taken that they would also be considered in case of need as per the National Health Policy and for them separate avenues otherwise exists. It is also pointed out that now the Parliament has enacted the National Medical Commission Bill 2019, which adequately protects the interest of AYUSH doctors.
In view of what is observed above, this Court finds no good ground to interfere with the advertisement dated 7th May 2019. While noticing the stand of the State that petitioners are not entirely eliminated from the zone of consideration and that depending upon the requirement, their claim would be considered at the appropriate point of time, this petition stands disposed off.
Order Date :- 19.9.2019 M. ARIF