HC upholds distinction between AYUSH, MBBS Doctors on basis of duties assigned for grant of honorarium

The bench of Justices Ramesh Sinha and Subhash Vidyarthi was dealing with the appeal challenging the judgment and order passed by a single Judge allowing Civil Misc. Review Application reviewing the judgment and order.

In the instant case, the petitioners are BAMS/BUMS/BHMS (AYUSH) Doctors and they are engaged as Ayush Doctors across the state on a contractual basis. The petitioners are aggrieved by the difference in honorarium paid to them and that paid to allopathic Doctors and they claim that the MBBS Doctors and BDS Doctors are not superior to the Ayush Doctors.

Earlier, some of the petitioners had filed a Writ Petition which was dismissed by means of an order dated 12.04.2017. Some of the petitioners filed Special Leave Petitions before the Supreme Court and Supreme Court disposed of the petitions with liberty to the petitioners to make representation for the State government.

It was stated in the order dated 29th March 2019 passed by the Principal Secretary that the services of Ayush doctors under the mainstreaming of the Ayush program under the National Health Mission in the U.P. do not fall within the purview of emergency services. Honourarium is payable to them on the basis of their duties for six hours a day and there is a provision that no physical charge is to be given to the Ayush Doctors and no medicolegal case is to be conducted by them. By means of a Government Order dated 9th October 2015, it has been provided that Ayurved and Yunani doctors will not perform medicolegal cases, post-mortem examination, I.V. injection and surgeries other than pure Ayurvedic/Yunani surgeries like Ksharsootra.

The order further stated that the appointment of Ayush Doctors under National Health Mission is made against posts sanctioned by the Government of India in record of proceedings under any program/scheme and these appointments are not made against any regular sanctioned posts of the State. Moreover, the honourarium paid to contractual Ayush Doctors in the State of Uttar Pradesh is equal to or higher than the honourarium paid to the Ayush Doctors of 26 States of the Union Territories. As per the directions and guidelines issued by the National Health Mission, the prescribed qualification, field of work and duties of contractual Ayush Doctors are not the same as those of contractual M.B.B.S. Doctors stop therefore, it would not be proper to pay any Ayush doctors equal to that paid to the MBBS Doctors.

The Allahabad High Court (HC) noted that the Supreme Court had merely granted liberty to the petitioners to approach the State government for enhancement of honourarium and it was left open to the State were meant to consider the representation without being influenced by the judgment dated 12.04.2017. There was not even any passing reference to the claim of parity with the MBBS doctors in payment of honourarium, what to say about any finding in this regard. Therefore, the findings recorded by the HC in the judgment dated 12.04.2017 have not been disturbed by the Supreme Court and the same have attained finality.

The bench observed that the case of Dr Om Prakash Gupta versus State of UP, which does not deal with the subject of payment of honourarium to doctors engaged on contract, has no application while deciding the claim of parity in payment of honourarium between Ayush doctors and M.B.B.S. doctors. It was held that;

"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 (10) 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.

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 (11) out a class of Medical Officers i.e. PHMS being superior to other Medical Officers is misconceived and unfounded insofar it relates to conferment of SACP. The administrative policy is invariably discriminatory in keeping the Medical Officers (Ayurvedic) and other streams out of the scheme having regard to the concept of ACP as discussed earlier."

The court also referred to the case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen, where the Supreme Court clarified that “a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent.”

In view of the aforesaid discussion, the court noted;

"The reasons recorded in the order dated 29/03/2019 passed on the representation of the petitioners, that the working conditions of Ayush doctors engaged on contractual basis are not the same as those of M.B.B.S. Doctors for the reasons that their duty is for six hours today, they are not given any physical charge, they are not required to deal with medicolegal cases and to conduct post-mortem examinations, there not required to administer I.V. injections and they do not perform surgeries other than only Ayurvedic/Yunani surgeries like ksharsutra, has not been found to be perverse or unsustainable. Therefore, the law laid down in the aforesaid cases referred by the learned Counsel for the respondents would not apply to the present case."

The court was of the considered opinion that;

"The order dated 29/03/2019 passed by the government rejecting the representation of the petitioners does not suffer from any such error or illegality, as warranted and interference by this Court in exercise of its extraordinary jurisdiction under article 226 of the Constitution of India."

It held;

"The Hon'ble Single Judge has allowed the writ petition and the review petition under mistaken belief that the benefit of assured career progression was being denied to the petitioners and that they were entitled to the same whereas the petitioners having been engaged on contractual basis, are not entitled to assured career progression and they had not raised any such claim. In view of the discussion made above, we do not find ourselves in agreement with the view taken by the Hon'ble single Judge while allowing the writ petition and the review petition."

"Accordingly, the instant special appeal is allowed. The judgment and order dated 12.12.2022 passed by the Hon'ble single Judge in Civil Miscellaneous Review Application Number 187 of 2022 as well as the judgment and order dated 20/10/2022 passed in Writ A No. 23479 of 2019 are hereby set aside and Writ A No. 23479 of 2019 is dismissed," the court added.

To view the original order, click on the link below: