Central Administrative Tribunal - Ernakulam
Dr Muthukoya P P vs Union Of India Represented By Secretary ... on 11 May, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.181/00143/2021
Wednesday, this the 11th day of May 2022
CORAM:
HON'BLE Mr.P.MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Dr.Muthukoya.P.P.,
S/o.late Mohammed Haji, Aged 57 years,
Puthiyapura House, Kadamath Island,
Working as Medical Officer (Ayurveda),
Government Ayurveda Dispensary,
Minicoy, Union Territory of Lakshadweep.
Residing at Government Quarter,
Near Veterinary Office, Minicoy,
Union Territory of Lakshadweep - 682 559.
2. Dr.C.G.Kamaludheen,
S/o.Kunhikoya.C.P., Aged 60 years,
Medical Officer (Ayurveda),
Primary Health Centre, Kalpeni,
Union Territory of Lakshadweep.
Residing at Chemmangath House,
Kalpeni, Union of Lakshadweep - 682 557.
3. Dr.Abdul Rahiman.M.K.,
S/o.Aboobaker, Aged 57 years,
Medical Officer (Ayurveda),
Primary Health Centre, Agathi,
Union Territory of Lakshadweep.
Residing at Muthakkutyoda House, Agathi Island,
Union Territory of Lakshadweep - 682 553.
4. Dr.Fathahudheen.N.P.T.,
S/o.Mohammed Khaleel, Aged 47 years,
Neelathpura, Thathada, Androth.
Working as Medical Officer (Homoeopathy),
Indira Gandhi Hospital, Kavaratti,
Union Territory of Lakshadweep.
Residing near Radio Station,
Kavaratti, Lakshadweep - 682 555.
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5. Dr.Ramala Beegum.S.V.,
D/o.Muthukoya.M.P., Aged 45 years,
Shaikinteveedu House,
Androth, Union Territory of Lakshadweep.
Working as Medical Officer (Homoeopathy),
Community Health Centre, Amini.
Residing at Government Quarter, Near Sub Court,
Amini, Union Territory of Lakshadweep - 682 552.
6. Dr.Rafeeq Moosa.M.K.,
S/o.late Moosa Hassan, Aged 40 years,
Medical Officer (Homoeopathy),
Government Ayush Dispensary,
Minicoy, Union Territory of Lakshadweep.
Residing at Mudinkorige House, Aloodi Village,
Minicoy, Union Territory of Lakshadweep - 682 559.
7. Dr.Murakiba.P.P.,
D/o.Dr.Koya, Aged 36 years,
Padippura House, Androth,
Union Territory of Lakshadweep.
Working as Medical Officer (Homoeopathy),
Community Health Centre, Kadamath,
Union Territory of Lakshadweep.
Residing at Private House Near Mullathiyar,
Kadmat, Union Territory of Lakshadweep - 682 556. ...Applicants
(By Advocate Mrs.Rekha Vasudevan)
versus
1. Union of India
represented by Secretary to Government of India,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi - 110 108.
2. Union Territory of Lakshadweep
represented by the Administrator,
Kavaratti, Lakshadweep - 682 555.
3. The Secretary,
Health Services, Secretariat Building,
Kavaratti, Lakshadweep - 682 555.
4. The Director of Health Services,
Directorate of Health Service Building,
Kavaratti, Lakshadweep - 682 555.
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5. The Mission Director,
Directorate of National Health Mission,
Directorate Building, Kavaratti,
Lakshadweep - 682 555. ...Respondents
(By Advocates Mr.Sreenath.S., ACGSC [R1]
& Mrs.Sreekala.K.L [R2-5])
This application having been heard on 6th April 2022, the Tribunal on
11th May 2022 delivered the following :
ORDER
Per : Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The Original Application has been filed seeking the following reliefs :
1. Declare that the applicants herein are entitled to be granted the enhanced rate of monthly remuneration of Rs.65000/- with effect from 01.11.2017 onwards and for the monthly remuneration based on the years of service rendered by them as has been granted to their counter parts General Duty Medical Officers as per Annexure A-15, with effect from 10.07.2019 and for the arrears thereof.
2. Direct the respondents to grant the applicants the enhanced rate of monthly remuneration of Rs.65000/- with effect from 01.11.2017 and the monthly remuneration based on their years of service as has been granted to the General Duty Medical Officers as per Annexure A-15 order with effect from 10.07.2019 onwards and to disburse the arrears thereof, within a shortest time frame.
3. Declare that the applicants are fully entitled for interest for the delay in enhancing their monthly remuneration on par with their counter parts General Duty Medical Officers.
4. Direct the respondents to grant the applicants interest at the rate prevailing in the market for the delayed enhancement of their monthly remuneration and delayed disbursement of the same, within a shortest time frame.
5. Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
6. Grant the cost of this Original Application.
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2. The seven applicants are Medical Officers working under the National Health Mission (NHM) in various islands of Union Territory of Lakshadweep. The Applicant Nos.1-3 are Medical Officer (Ayurvedic) and Applicant Nos.4-7 are Medical Officer (Homoeopathy). They have all been engaged on contractual appointment on different dates from the year 2010 onwards. The monthly remuneration paid to them during this period had been revised from time to time to be on par with the monthly remuneration paid to the General Duty Medical Officers (GDMOs) and Dental Surgeons. However, in the recent past, this parity is not maintained. It is submitted that the monthly remuneration of GDMOs was raised to Rs.65000/- with effect from 01.11.2017 as per the Office Order issued by the NHM at Annexure A-8. The GDMOs are Allopathic Doctors working under the same NHM (earlier known as the National Rural Health Mission - NRHM). It is submitted that the doctors under the NRHM/Ayush (essentially Ayurvedic/Homoeopathy doctors like the applicants) were not granted any benefit of enhancement of monthly remuneration and are still continuing to draw Rs.44000/- as monthly remuneration. However, two of the doctors belonging to this Ayush stream, who are working in the State Service (under the Directorate of Health Services, Union Territory of Lakshadweep) have been granted the enhancement of monthly remuneration to Rs.65000/- with effect from 01.11.2018 as per Annexure A-11. After protracted representations, the NHM issued an order on 08.01.2019, produced at Annexure A-13, enhancing the monthly remuneration of Medical Officers (Ayush) engaged on contract in the NHM to Rs.65000/- per month with effect from 01.11.2018. However, it is contended that this has not been put -5- into practice and the enhanced remuneration has not been disbursed. Meanwhile, the GDMOs have been benefitted by another order further increasing their remuneration on a slab system, under which, those who have less than 5 years service would be given a monthly remuneration of Rs.65000/-, those with 5-10 years of service to be given Rs.70000/-, those with 10-15 years of service to be given Rs.75000/- and those with 15-20 years of service to be given Rs.80000/-, with effect from 10.07.2019 onwards. This was passed as per the order produced at Annexure A-15. The Ayush doctors have made another round of representations, but submit that they have not been able to either get their remuneration increased nor get the already enhanced remuneration from 01.11.2018 disbursed.
3. The applicants have produced file notings of the relevant file in the Secretariat, procured by them, from which it appears that the delay essentially relates to a decision by the Administrator, Union Territory of Lakshadweep to defer the implementation of the enhancement of monthly remuneration of Rs.65000/- until further orders. However, they submit that they are similarly placed to the GDMOs appointed on contractual basis under the NHM Scheme. They are also imparting similar duties as the GDMOs and there is no difference in the quantum and quality of work as compared to the GDMOs. The GDMOs have been given further enhancement of monthly remuneration of Rs.65000/- with effect from 01.11.2017 onwards and later with effect from 10.07.2019 on a slab basis. Further, there is even more discrimination now in the sense that the junior most GDMO, who have below 5 years of service, are getting Rs.65000/- as -6- monthly remuneration while senior most GDMOs, who have service above 15 years are getting Rs.80000/- as monthly remuneration, whereas, the applicants are still getting remuneration of Rs.44000/-. Even the decision to implement the enhanced monthly remuneration of Rs.65000/- from 01.11.2018 in their case, has not been operationalized. It is submitted that this is against the decision of the Hon'ble Supreme Court in State of Punjab and Ors. v. Jagjit Singh (2017) 1 SCC 148 which held that "Equal pay for Equal work" constitutes a clear and unambiguous right, vested in every employee engaged both on regular or temporary basis alike. It is submitted that in paragraph 54 of the judgment, the Hon'ble Supreme Court has declared that the temporary workers (differently described as work-charge, daily wage, casual, adhoc, contractual and the like) are fully entitled to be extended the benefit of the "Equal pay for Equal Work" principle. It is submitted that the GDMOs and the Ayush doctors like the applicants are identical and similar in every manner, including the posts and the duties imparted by them. While in all other aspects they stand on an equal footing, they are discriminated in the matter of monthly remuneration alone, which is in clear violation of the dictum in Jagjit Singh (supra).
4. The Respondent Nos.2-5 (Union Territory of Lakshadweep) have responded only through a counsel statement. At the outset they submit that they have been generally taking timely initiatives for enhancing monthly remuneration of the applicants at par with Allopathic doctors, in order to avoid any kind of disparity. They accept that the monthly remuneration of the GDMOs posted on contract basis under NHM had been enhanced from -7- Rs.44000/- to Rs.65000/- with effect from 01.11.2017. The Department concerned had initiated a file for the approval of the competent authority for awarding the enhancement to the Ayush doctors at par with GDMOs. It is also accepted that the Ministry of Ayush, as per letter dated 27.02.2018 produced in the O.A at Annexure A-9, had asked the Administrator, Union Territory of Lakshadweep to review the matter relating to the remuneration provided for contractual Ayush doctors under NHM and had asked the authorities to enhance their salary at par with their Allopathic counterparts. It is submitted that the NHM had originally engaged 12 Ayush doctors (6 Ayurveda and 6 Homoeopathy) on contract basis. The competent authority had accorded approval to enhance monthly remuneration of a total of 14 Ayush doctors, including the 12 working on contract basis under NHM and 2 other doctors working under the Union Territory of Lakshadweep's Health Department. However, only the latter 2 doctors got the benefit of the approved enhanced rate of Rs.65000/- with effect from 01.11.2018, as per order issued by the Director of Health Services.
5. It is submitted by the respondents that a budget proposal was projected in the Programme Implementation Plan of NHM for the year 2019 for enhancing of the remuneration of the 12 Ayush doctors under NHM as approved by the competent authority. This was not, however, approved by the Ministry of Health and Family Welfare. Instead, only a 5% increment over the existing remuneration ie., Rs.46200/- had been approved. Thus, though it is accepted that the NHM, had issued orders on 08.01.2019 for implementing the enhanced rate of Rs.65000/- with effect from 01.11.2018 -8- to the 12 Ayush doctors working under them based on the approval of competent authority, they could not actually disburse the approved enhanced rate of Rs.65000/-, due to scarcity of funds under Union Territory share for financial assistance to NHM Scheme. Later, the Directorate of Health Services, issued another order on 30.12.2019 raising the consolidated remuneration in respect of General Medical Officers/Dental Surgeons/Ayush doctors working on contract basis under State head, based on their quantum of experience in the Department of Health Services. The 12 Ayush doctors under NHM were however not covered under this order. It is submitted by the respondents that even later an attempt to give the enhancement of Rs.65000/- per month for 12 Ayush doctors with effect from 15.08.2020 has been deferred by the Directorate of Health Services until further orders. This is for the reason that it will not be possible to meet, from the State side, an additional financial implication of Rs.2700000/- per annum. This is especially so when different categories of contractual staff are demanding hikes in their incentives. It is submitted by the respondents that economic viability or the financial capacity of the employer is an important factor which cannot be ignored in matters like this. Even in cases of 'equal pay for equal work' involving the State Government as a party, the Hon'ble Supreme Court has taken into consideration the financial capacity of the employer as a relevant consideration.
6. Learned counsel for the 1st respondent has also filed only a counsel statement. It is submitted therein that the NHM is an initiative of Government of India to support the efforts of the States/Union Territories in -9- addressing the health care needs of, especially, the under served rural population, by providing accessible, equitable, affordable and quality health care to them. Under the NHM technical and financial support is provided to the States/Union Territories, based on requirements proposed in Programme Implementation Plans submitted by them. While providing support for engagement of human resources, post-wise salaries are not decided/approved at the central level. It is submitted that the decision regarding fixation of salaries for various cadres lies entirely with the respective State/Union Territory Governments. Under NHM there is a sharing pattern of the cost which is 60:40 for all States/Union Territories though in respect of Union Territory of Lakshadweep the sharing pattern is 100% burden on the Government of India. It is submitted that the NHM does not substitute the whatever expenditure is borne by States/Union Territories on health care. It only supplements efforts of the State/Union Territory Governments for strengthening health systems in the States/Union Territories. As such, it is for the concerned State Government/Union Territory to be responsible for recruitment/engagement of human resource personnel including their transfers/termination of services, payment of wages/remuneration/task based incentives etc. It is submitted by Respondent No.1 that the applicants in this O.A have been engaged by the Respondent Nos.4 & 5 (Directorate of Health Services, Union Territory of Lakshadweep and Mission Director of the NHM) and, as such, their monthly remuneration were also fixed/increased by these respondents. The Government of India (Respondent No.1) is not having a role in the present matter. It is submitted that as per the Record of Proceedings for -10- the Union Territory of Lakshadweep for the financial year 2021-22 during the meeting of National Programme Coordination Committee, 12 positions of Ayush Medical Officers had been approved for one year on principle. The budget has been approved as a lumpsum and actual remuneration is to be calculated by the State/Union Territories based on the principles mentioned in HR annexure. Thus, any expenditure over and above the budget approved is the liability of the State/Union Territories to meet from its own resources.
7. It is clear from the above contentions that the Government of India's position is that any further expenditure to meet the enhanced remuneration of Ayush doctors would lie within the domain of the Union Territory of Lakshadweep. Any further enhancement in their remuneration would also be within their competence. At the same time, it also does appear that there has never been any indication given by the Union Territory of Lakshadweep that they are seeking to implement or emphasize any difference in remuneration between the GDMOs (Allopathy) and the Ayush (Ayurvedic/Homoeopathy) doctors. It appears that the lack of financial resources at the Union Territory level is the only reason that they are unable to meet even the committed/approved expenditure for the remuneration. Learned counsel for the applicants, Smt.Rekha Vasudevan, has produced Supreme Court/High Court judgments to emphasise the point that even at the level of Hon'ble Apex Court, issues relating to wage and other discrimination between Allopathic and Ayush doctors have been brought to notice and it has been ruled that such discrimination cannot exist. In North -11- Delhi Municipal Corporation v. Dr.Ram Naresh Sharma & Ors. (2021) KHC 6345 decided on 03.08.2021 in C.A.No.4578/2021 the Hon'ble Apex Court declared as follows :
"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-I (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.
24. In light of the above discussion, the appellant's actions in not paying the respondent doctors their due salary and benefits, while their counterparts in CHS system received salary and benefits in full, must be seen as discriminatory. Hence, we have no hesitation in holding that the respondent - doctors are entitled to their full salary arrears and the same is ordered to be disbursed, within 8 weeks from today. Belated payment beyond the stipulated period will carry interest, at the rate of 6% from the date of this order until the date of payment. It is ordered accordingly. The appeals are disposed of in above terms without any order on cost."-12-
8. Further, it is submitted by counsel for the applicant that in Writ Petition No.484/2014, Dr.Sanjay Singh Chauhan & Ors. v. State of Uttarakhand & Ors., the High Court of Uttarakhand at Nainital had looked into the issue of parity between Allopathic Medical Officers and Dental Medical Officers with the Ayush Medical Officers. It was noted that the case of petitioner was rejected only on the ground that they (Ayush Medical Officers) were working on contractual basis and thus not entitled to the parity with Allopathic Medical Officers and Dental Medical Officers, though they were discharging the same duties as those being discharged by the latter officers. The Hon'ble High Court had in its order relied on the judgment of the Hon'ble Supreme Court in the case of Bhagwan Dass & Ors. v. State of Haryana & Ors., (1987) 4 SCC 634, which held that if duties and functions of temporary appointees and employees of regular cadre in the same Government Department are similar, there cannot be any discrimination in pay between them, merely on ground of difference in mode of their selection or that the appointment or scheme under which the appointments were made was temporary. Further, the Hon'ble High Court had also relied on Jagjit Singh (supra). It was declared by the Hon'ble High Court of Uttarakhand that the duties discharged by the petitioners are of equal sensitivity and quality, even the responsibility and reliability are the same. The classification made by the State Government was held as irrational and the Writ Petition was allowed directing the State/respondents to pay and release salary to the petitioners at par with Allopathic Medical Officers and Dental Medical Officers from the date when the same was paid to the Allopathic and Dental Medical Officers, within a period of three -13- months from the date of the orders with arrears. Later, the Hon'ble Supreme Court in Special Leave to Appeal (C) No.33645/2018 dated 24.03.2022, arising from the above judgment in State of Uttarakhand & Ors. v. Sanjay Singh Chauhan & Ors. found no ground for interference with the order of the Hon'ble High Court and dismissed the S.L.P. The Hon'ble Apex Court also clarified that the respondents, who are Ayurvedic doctors, would be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme.
9. Learned counsel for the applicants, therefore, submits that arising from the above judgment there is no ground on which the Ayush doctors (the applicants in this O.A), who are Medical Officers (Ayurveda/Homoeopathy) can be discriminated vis-a-vis the Allopathic doctors. These are made clear in light of the judgments of the Hon'ble Supreme Court as well as the Hon'ble High Court of Uttarakhand. We have noted, however, that this case is not exactly similar. Nowhere have the Union Territory of Lakshadweep ever indicated that they have made an exiplicit discrimination in remuneration or conditions at a policy level between the Ayurveda/Homoeopathy doctors and the GDMOs. Their only reason as was mentioned earlier is that they do not have the sufficient funds within the National Health Mission budget for paying the Ayush doctors the same remuneration at the level given to the GDMOs. They indicate that the NHM budget was not approved increasing it to that level which is necessary for meeting the enhanced outflow. Meanwhile, the 1st respondent, -14- Government of India has left it on the Union Territory on the plea that remuneration/budgeting have to be undertaken by the Union Territory and they do not have any further role. Thus, it appears that it is only up to the Union Territory to decide the quantum of remuneration to its medical personnel and find funds to meet the enhanced remuneration, if approved.
10. It is accepted by us that meeting cost of financing is a real issue which does affect the Union Territory of Lakshadweep in a fundamental manner. However, there is no question that the services of the 12 Ayush personnel under NHM have been found necessary by them and these services are being extended on a contract basis. In such a situation, there cannot be any ground for any difference in the remuneration paid to them vis-a-vis the remuneration paid to the Allopathic doctors/GDMOs at the actual implementation level even if there has been no explicit discrimination at the policy level. This is glaring, particularly, when evidenced by the fact that 2 Ayush doctors under the Directorate of Health Services are being paid at the enhanced rate of Rs.65000/- while these 12 doctors under NHM are not getting the benefit. We, therefore, find no reason as to why the reliefs sought for in the O.A should not be considered. We, therefore, direct the respondents to pay the enhanced dues to the Ayush Medical Officers at the rate of Rs.65000/- with effect from 01.11.2017 onwards and also the further enhanced monthly remuneration as per scale granted to the GDMOs through Annexure A-15, with effect from 10.07.2019. The arrears in this regard shall be paid to the applicants within a period of four months from the date of issue of a copy of this order. If within this period the actual payment of -15- arrears is not made, then we declare that the relief sought at No.3 of the array for payment of interest for the delay in enhancing their monthly remuneration on par with the GDMOs will be given at the rate of 7.5% from that month. However, in case the respondents make the payment within the said period of four months, no interest need to be paid on the arrears. As explained, any delay beyond the said period will attract the interest at the rate of 7.5%. The Union Territory Administration may take, therefore, all necessary steps to supplement the budget of the NHM from its own sources as required to meet this expenditure.
11. The O.A is allowed to the extent as indicated above with the above directions. There shall be no order as to costs.
(Dated this the 11th day of May 2022)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.181/00143/2021
1. Annexure A-1 - A copy of the Employment Notice F.No.1/22/2010- NRHM dated 18.09.2010 issued by the 5th respondent.
2. Annexure A-2 - A copy of the Office Order F.No.1/27/2010-NRH(1) dated 04.12.2010.
3. Annexure A-3 - A copy of the Office Order F.No.1/27/2010- NRHM(2) dated 04.12.2010 issued by the 5th respondent.
4. Annexure A-4 - A copy of the Office Order F.No.4/3/2011-AYUSH dated 08.03.2012 issued by the 5th respondent.
5. Annexure A-5 - A copy of the Order F.No.16/03/2015-DHS/280 dated 17.03.2016 issued by the 4th respondent.
6. Annexure A-6 - A copy of the Office Order F.No.16/03/2015-DHS dated 09.12.2016 issued by the 4th respondent.
7. Annexure A-7 - A copy of the representation dated 11.11.2017 submitted by the 1st applicant to the 2nd respondent.
8. Annexure A-8 - A copy of the Office Order F.No.1/13/2014- NHM/1256 dated 16.11.2017 issued by the 5th respondent.
9. Annexure A-9 - A copy of the D.O.No.Z.28015/04/2018-H&D Cell dated 27.02.2018 addressed by the 1st respondent to the 2nd respondent.
10. Annexure A-10 - A copy of the Order dated 06.04.2018 in O.A.No.181/296/2017 of this Hon'ble Tribunal.
11. Annexure A-11 - A copy of the Office Order F.No.16/03/2015- DHS/1509 dated 14.12.2018 issued by the 4th respondent.
12. Annexure A-12 - A copy of the Letter F.No.1/15/2017-NAM dated 19.12.2018 addressed by the Senior Consultant (Ayu.) to the 5 th respondent.
13. Annexure A-13 - A copy of the Office Order F.No.16/03/2015- DHS/46 dated 08.01.2019 issued by the 5th respondent.
14. Annexure A-14 - A copy of the representation dated 25.07.2019 submitted by the 6th applicant to the 2nd respondent.
15. Annexure A-15 - A copy of the Office Order F.No.16/03/2015-DHS dated 30.12.2019 issued by the 4th respondent.
16. Annexure A-16 - A copy of the representation dated 17.07.2020 submitted by the 4th applicant along with another Doctor to the 2 nd respondent.
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17. Annexure A-17 - A copy of the representation dated 09.11.2020 submitted by the 4th applicant to the 2nd respondent.
18. Annexure A-18 - A copy of the representation dated 16.11.2020 submitted by the 3rd applicant to the 2nd respondent.
19. Annexure A-19 - A copy of the Note File F.No.1/15/2017-NAM along with the covering letter F.No.1/17/2018-NAM/456 dated 24.11.2020 issued by the Director (AYUSH) and CPIO (NHM).
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