Allahabad High Court
Dr.Om Prakash Gupta And Anr. vs State Of U.P.Thru.Prin.Secy.Deptt.Of ... on 6 May, 2022
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 6 Case :- WRIT - A No. - 8366 of 2017 Petitioner :- Dr.Om Prakash Gupta And Anr. Respondent :- State Of U.P.Thru.Prin.Secy.Deptt.Of Finance Lko. And Anr. Counsel for Petitioner :- Avinash Tiwari Counsel for Respondent :- C.S.C. ALONGWITH Case :- WRIT - A No. - 32882 of 2019 Petitioner :- Dr. Satyapal Singh Respondent :- State Of U.P. Thru Prin.Secy. Finance Lucknow And Another Counsel for Petitioner :- Avinash Tiwari Counsel for Respondent :- C.S.C. Hon'ble Suneet Kumar,J.
Heard Sri Avinash Tiwari, learned counsel for the petitioners and Sri Kuldeep Pati Tripathi, learned Additional Advocate General, assisted by learned Standing Counsel appearing for the State-respondents and perused the record with the assistance of the learned counsels for the parties.
Both the writ petitions are being heard and decided together on the consent of the parties.
The facts and questions of law arising in the writ petitions are identical.
The facts of Writ Petition No. 8366 of 2017 is being adverted to for the sake of convenience.
The petitioners are confirmed Class-II Officers on the post of Medical Officers (Ayurvedic); the first petitioner claims to be the President of Prantiya Ayurvedic Evam Unani Chikitsa Seva Sangh (for short ''Association') duly recognized by the second respondent, Principal Secretary, Department of Medical Education and Ayush (Ayush Anubhag-1), Civil Secretariat, Lucknow. Petitioners are working in the Pay-Scale at Rs. 15600-39100 and Grade Pay at Rs. 6600/-.
The instant petition is directed against the order dated 28.02.2017, passed by the first respondent, Principal Secretary, Department of Finance, Civil Secretariat, Lucknow, whereby, the representation of the first petitioner claiming the benefit of Dynamic/Special Assured Career Progression (for short ''SACP') Scheme made admissible to the Medical Officers of the Provincial Medical Health Services (for short ''PMHS'), has been rejected. Further, a direction has been sought to grant the Medical Officers (Ayurvedic) the benefits of SACP w.e.f. the date it has been allowed to the Medical Officers of PMHS.
The facts, inter se parties, are not disputed.
The Medical Officers PMHS practice Allopathy stream of medicine. It appears that Medical Officers PMHS made a representation to the State Government for implementation of Dynamic ACP Scheme as made admissible to the Medical Officers under the Central Government. On considering their representation, the State Government vide order dated 14.11.2014, framed a scheme on the recommendation of the Committee. The SACP, primarily, provides that the Medical Officers PMHS would be entitled to upgradation of pay on completing 4, 11, 17 and 24 years of satisfactory service. The scheme was made applicable w.e.f. 01.12.2008. The relevant portion of the Government Order dated 14.11.2014, for the purposes of the instant writ petition, is extracted:
**¼1½ izknsf'kd fpfdRlk ,oa LokLF; lsok ¼ih0,e0,p0,l0½ ds fpfdRldksa ds fy, dsUnzh; fpfdRldksa ds leku Mh0,0lh0ih0 dh O;oLFkk ykxw djus dk vkSfpR; ugh gSA ¼2½ ih0,e0,p0,l0 laoxZ ds fy, ,0lh0ih0 dh fof'k"V O;oLFkk fu/kkZfjr dh tk;sA rnuqlkj ,0lh0ih0 dh fof'k"V O;oLFkk ds vUrxZr ih0,e0,p0,l0 laoxZ ds izFke Lrj ds in ¼osrueku :0 8000&13500@ led{k osrueku@ iqujhf{kr osru lajpuk esa lkn`'; osru cS.M&3 ,oa xzsM osru :0 5400@&½ ij fu;qfDr dh frfFk ls fuEu rkfydk ds LrEHk&2 esa mfYyf[kr lsokof/k ij mlds lEeq[k LrEHk&3 ds vuqlkj oS;fDrd osru cS.M ,oa xzsM osru vuqeU; djk;s tk;s%& dz0 la0 ih0,e0,p0,l0 laoxZ esa izFke Lrj ds in ij fu;qfDr dh frfFk ls lsokof/kA ,0lh0ih0 dh fof'k"V O;oLFkk ds vUrxZr oS;fDrd :i ls vuqeU; osru cS.M ,oa xzsM osruA 1 04 o"kZ dh fujUrj larks"ktud lsokA osru cS.M&3 ,oa xzsM osru :0 6600@& 2 dqy 11 o"kZ dh fujUrj larks"ktud lsokA Oksru cS.M&3 ,oa xzsM osru :0 7600@& 3 dqy 17 o"kZ dh fujUrj larks"ktud lsokA osru cS.M&4 ,oa xzsM osru :0 8700@& 4 dqy 24 o"kZ dh fujUrj larks"ktud lsokA osru cS.M&4 ,oa xzsM osru :0 8900@& The petitioners herein belong to a different stream of medicine i.e. Ayurvedic and are entitled to the General ACP Scheme applicable to all other government servants which was conferred by the Government Order dated 04.05.2010, wherein, upon stagnation on a post the government servant is entitled to upgradation of pay at 10, 18 and 26 years of service. The relevant portion of the Government Order dated 04.05.2010 reads thus:
** ¼2½ ¼i½ ,0lhih0 ds vUrxZr lh/kh HkrhZ ds fdlh in ij izFke fu;fer fuq;fDr dh frfFk ls 10 o"kZ] 18 o"kZ o 26 o"kZ dh vuojr larks"ktud lsok ds vk/kkj ij rhu foRrh; LrjksUu;u fuEu izfrcU/kkas ds v/khu vuqeU; fd;s tk;saxs%& ¼d½ izFke foRrh; LrjksUu;u lh/kh HkrhZ ds in ds osrueku@ lkn`'; xzsM osru esa 10 o"kZ dh fu;fer lsok fujUrj lUrks"ktud :i ls iw.kZ dj ysus Ikj ns; gksxkA** The General ACP Scheme came to be modified vide Government Order dated 05.11.2014 providing upgradation of pay on satisfactory completion of 8/16/24 years of service.
In this back drop, it is submitted by the learned counsel for the petitioners 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 practise conventional stream of medicine as against modern medicine. It is submitted that the nature and duties of the Medical Officers rendering medical services in different streams of medicine is not comparable but the primary duty being performed by the Medical Officers (Ayurvedic) is the same i.e. treating patients and number of hours of duty is comparable with the Medical Officer of PMHS. It is further sought to be urged that the issue being raised in the instant writ petition is not based on comparison/parity with the other stream of medical science or treatment. The benefit of SACP admissible to the Medical Officers PMHS, excluding, Medical Officers of their streams viz. Ayurvedic /Unani/Dental is discriminatory. The concept of ACP is based on the principle of tiding over stagnation on a post, ACP, per se, is not an incentive scheme so as to discriminate between Medical Officers engaged in different stream of medical treatment and practice. It is further submitted that the Dynamic ACP Scheme was made admissible to all the medical officers of the Central Health Service, irrespective, of the stream of medicine they practice, whereas, State Government while implementing the SACP has confined it to the Medical Officers PMHS (Allopathy).
Learned counsel for the petitioners, in support of his submission, has placed reliance on the decision rendered by the Supreme Court in North Delhi Municipal Corporation Versus Dr. Ram Naresh Sharma and others1.
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 (for short ''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. It was held that there was no rational justification for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Paragraph nos.22 and 23 are extracted:
"22. The common contention of the appellants before us is that classification of AYUSH doctors and doctors under CHS in different categories is reasonable and permissible in law. This however does not appeal to us and we are inclined to agree with the findings of the Tribunal and the Delhi High Court that the classification is discriminatory and unreasonable since doctors under both segments are performing the same function of treating and healing their patients. The only difference is that AYUSH doctors are using indigenous systems of medicine like Ayurveda, Unani, etc. and CHS doctors are using Allopathy for tending to their patients. In our understanding, the mode of treatment by itself under the prevalent scheme of things, does not qualify as an intelligible differentia. Therefore, such unreasonable classification and discrimination based on it would surely be inconsistent with Article 14 of the Constitution. The order of AYUSH Ministry dated 24.11.2017 extending the age of superannuation to 65 Years also endorses such a view. This extension is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016.
23. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D. 14019/4/2016-E-1 (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent-doctors, in the present appeals. All consequences must follow from this conclusion."
Further, reliance has been placed on the decision rendered by the High Court of Uttarakhand in Dr. Sanjay Singh Chauhan and others versus State of Uttarakhand and others2.
The issue before the High Court was as to whether the Medical Officers (AYUSH) appointed on contract could be discriminated with their counter parts in other streams insofar as salary given to the Medical Officers (Allopathy) and Dental Medical Officers. The High Court allowed the writ petition. Para 10 reads thus:
"10. In the instant case, the duties discharged by the petitioners viz-a-viz Allopathic Medical Officers and Dental Medical Officers are of equal sensitivity and quality, even the responsibility and reliability are the same. The classification made by the State Government is irrational."
State of Uttrakhand carried the decision in appeal3, the Supreme Court dismissed the appeal in limine vide order dated 24.03.2022 making the following observations:
"Having heard learned counsel for the parties and considering the facts and circumstances of the case, we do not find any ground for interference with the order passed by the High Court. The special leave petition is, accordingly, dismissed.
However, we may only clarify that the respondents who are Ayurvedic doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme.
After the order was passed, learned counsel for the petitioners made a statement that petitioners would like to file a review petition before the High Court. It is not for this Court to issue any such direction. It is always open to the petitioners to pursue such remedy as may be available to them in law."
In rebuttal, learned counsel appearing for the State-respondents submits that the reasons assigned conferring SACP to the Medical Officers PMHS as against Medical Officers (Allopathy) is noted in the impugned order. The qualification of the Medical Officers of different streams is not comparable; the nature of duties, responsibility and treatment is entirely different; the Medical Officers of other streams, including, Medical Officers (Ayurvedic) are not engaged in Medico Legal work; further, the Medical Officers PMHS perform complicated surgery and they are not paid Non-Practising Allowance (NPA), whereas, the petitioners, Medical Officers (Ayurvedic), are allowed private practice.
In this backdrop, it is submitted by learned counsel for the State-respondents that to encourage the Medical Officers PMHS, the SACP Scheme was formulated in respect of a class of Medical Officers, excluding, Medical Officers of other streams. It is further submitted that the petitioners have not been discriminated against as they are entitled to ACP Scheme as is applicable to all the employees of the State Government vide Government Order dated 04.05.2010. In support of his submission reliance has been placed on the following authorities: Mewa Ram Kanojia Versus All India Institute of Medical Sciences and others4, State of Madhya Pradesh Versus R.D. Sharma and others5, Dr. Puneet Kumar Gupta and another Versus Union of India through Secy. Ministry of Health and Family and others6, S.C. Chandra and others Versus State of Jharkhand and others7.
The authorities relied upon by the learned counsel appearing for the State-respondents is of no assistance as the decisions pertain to the concept and principle of equal pay for equal work. It is noted therein that the principle of equal pay for equal work cannot be invoked in every kind of service, particularly, in the area of professional services.
The issue in the given facts is not with regard to equal pay for equal work, but the Scheme formulated for Career Progression to tide over stagnation on a post.
On perusal of the ACP Scheme and the relevant stipulations and conditions, therein, it is evident that the scheme offers higher pay scale/financial upgradation only to those eligible government servants who remained deprived of regular promotions. For such deprivation, they are compensated by grant of monetary benefits on purely personal basis i.e. not dependent upon the post or seniority. The financial upgradation does not amount to functional/regular promotion and does not require creation of new posts. The financial upgradation under the scheme shall be available only if no regular promotions during the prescribed periods have been availed by the government servant. In other words, the ACP Scheme is compensatory and not an incentive scheme to a class of government servants.
On specific query, learned counsel appearing for the State-respondents submits that the Medical Officers are inducted on the same pay scale/band and pay-grade at the entry level in the services, however, in the case of Medical Officers PMHS, different pay scale/band and pay-grade is admissible depending upon their specialization or super specialty/qualifications. The petitioners, admittedly, are not claiming equal pay for equal work or the pay scale/band and or pay-grade admissible to the specialist or super specialist. The claim of the petitioners is confined to a Scheme made applicable to a class of Medical Officers (Allopathy), excluding other Medical Officers (AYUSH).
The contention of the petitioners is that a class of Medical Officers, insofar as, it relates to the benefit of SACP have been discriminated against without any justification or rational, merely for the reason that they are rendering medical service in different streams of medical science. The petitioners herein have been inducted as Medical Officers and are performing duties in various AYUSH and Unani Hospitals as has been detailed in para-10 of the writ petition, which is extracted:
"10. That opposite party no. 1 rejected the case of petitioners as in regard of their whole cadre on the fake ground as work and responsibilities are not same and Medical Officers, Ayurvedic are not doing emergency services and surgery and Medico legal work."
The averments have not been denied by the State-respondents in the counter affidavit. On a bare perusal of the Government Order dated 14.11.2014, while conferring SACP, the State Government declined the Dynamic ACP applicable to the Medical Officers of the CHS, irrespective of the stream of specialization i.e. Allopathy/Ayurvedic/Unani/Dental. Whereas, SACP has been made applicable to Medical Officers PMHS and the Medical Officers of other streams i.e. AYUSH/ Dental have been kept out of the scheme.
On specific query, learned counsel appearing for the State-respondents admits 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.
Concept of ACP is the tied 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 to 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.
In this backdrop, having regard to the scope and nature of the ACP scheme, the question that arises is as to whether the Medical Officers rendering medical services in different streams can be discriminated as against Medical Officer PMHS depriving the SACP. In alternative, whether Medical Officer (Ayurvedic) are entitled to be treated at par with Medical Officer PMHS under the SACP scheme.
It goes without saying that the Western medicine (Allopathy) is integral to our current health care 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 submission of the learned State Counsel that the classification of Medical Officer (Ayurvedic) and Medical Officers PMHS is reasonable for the purposes of SACP having regard to their qualification and the nature of duties is not convincing. The classification is discriminatory and unreasonable since Medical Officers of both the segments are primarily performing the same function i.e. treating the patients. The difference is that one stream of doctors are using indigenous system of medicine and the other stream Allopathy for treating their patients. The mode of treatment, by itself does not qualify as an intelligible differentia. At the root is treatment of patients. The Medical Officers, both Ayurvedic and Allopathy render medical service to the patients and on this aspect, there is nothing to distinguish them. Treatment of patients is the core function common to the Medical Officers of different streams, therefore, no rational justification is seen to having different ACP scheme of bestowing the benefit of career progression to Medical Officers. As discussed earlier, 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 period 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.
AYUSH is an acronym for Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy are the six Indian system of medicines prevalent and practised in India. A department called the departments of Indian system of medicine was created in 1995 and renamed AYUSH in 2003 with a focus to provide increased attention for the development of these systems. This was felt in order to give increased attention to these systems in the presence of a strong counterpart in the form of Allopathic system of medicine. This took a reverse turn after the initiation of National Rural Health Mission (NRHM) and the AYUSH systems were brought into the mainstream health care. NHRM introduced the concept of mainstreaming of AYUSH and revitalization of local health traditions. This concept helped in utilizing the untapped AYUSH workforce, therapeutics and the principle of management of community health problems at different levels. The envisaged objective, inter alia, was to provide choice of the treatment system to the patients and strengthen implementation of national health programs.
The State Government is justified in not accepting the Dynamic ACP formulated by the Central Government for its Medical Officers, instead formulated the SACP scheme falling within the realme of administrative policy. But the question is whether such a policy upon being provided can discriminate amongst different streams of medicine practised 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.
Accordingly, the writ petition is allowed.
The impugned order dated 28.02.2017, passed by the first respondent, Principal Secretary, Department of Finance, Civil Secretariat, Lucknow, is set aside and 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.
No cost.
Order Date :- 6.5.2022 K.K. Maurya