NO Salary Discrimination between Allopathy and Ayurveda Doctors: Supreme Court

Acting on it, NDMC issued an order on 30.06.2016 and enhanced the retirement age of Allopathic doctors up to 65 years. Later the Union Health Ministry clarified that the extension in the age of retirement is applicable to GDMOs of CHS i.e. the allopathic doctors. Municipal corporations and others were given the liberty to take their own decision on the matter, on the applicability of the Ministry's decision on the enhancement of superannuation age.

Following this, the Ayurvedic doctors filed several applications before the Central Administrative Tribunal and sought the benefit of the Government decision. The Tribunal on an interim order dated 09.12.2016, stated that the Ayurvedic doctors may continue in service of the post beyond the date of retirement.

Later, accepting the argument on discrimination, the Tribunal held on 24.08.2017 that the applicants were entitled to same service conditions including the enhanced age of superannuation to 65 years, as made applicable to doctors (GDMOs) working under the CHS.

Thus, the employer (NDMC) was directed to allow the ayurvedic doctors to continue in service till the age of 65 years. It was clarified that in case any of the applicants had been made to superannuate at the age of 60 years, he/she shall be reinstated and be permitted to serve until the age of 65 years.

Unhappy with the judgment of the Tribunal, NDMC approached the Delhi High Court and the High Court also, via order dated 27.09.2017, enhanced the age of superannuation of the AYUSH doctors to 65 years.

It was however directed that the doctors shall hold administrative positions only until age of 62 years and thereafter, their service shall be placed in non­administrative positions.

Thus, the High Court had dismissed the petitions challenging the common order of the tribunal and gave a verdict in favor of Ayurvedic doctors. The Tribunal had noted in its order that although initially the benefit of the policy decision of the government to enhance the retirement age was confined to allopathic doctors but subsequently the policy decision was made applicable to other category doctors (including ayurvedic doctors), covered by AYUSH.

Meanwhile, NDMC agreed to the Union Health Ministry's decision but the Court noted that those Ayurvedic doctors of the NDMC falling within the window between 31.05.2016 and 26.09.2017, are deprived of getting the benefit of the enhanced retirement age.In other words, only those retiring on or after 27.09.2017, could aspire to serve until 65 years.

The counsel appearing for the NDMC contended that the benefit of enhanced retirement age should have been extended only w.e.f. 27.09.2017 as per the AYUSH Ministry's decision, as there is limited scope for interference on a cut­off date, stipulated by the government.

He argued that although the High Court had permitted the doctors to continue their service beyond 60 years, they are not entitled to claim any equitable relief by way of arrear of salary on account of the fact that they remained in service under interim orders of the court. He contended that respondent doctors are not entitled to remuneration and unpaid arrears as they were serving in the hospitals on the strength of the Court's interim order.

On the other hand, the counsel for the doctors argued that both the Tribunal and High Court had granted the relief by concluding that the action of the authorities in treatment of the allopathic doctors vis­à­vis the ayurvedic doctors was discriminatory and violative of Art. 14 of Constitution.

He further argued that there can be no separate service condition in so far as the superannuation age is concerned between allopathic and other category doctors, particularly when the AYUSH Ministry itself on 24.11.2017 has enhanced the retirement age for the non­allopathic doctors w.e.f. 27.09.2017, in tune with the Ministry's order dated 31.05.2016.

After listening to all these contentions, the Supreme Court bench noted that these doctors have been providing service to countless patients, without remuneration or benefits.

"The principle of 'No Work, No Pay'  protects employers from paying their employees if they don't receive service from them. A corollary thereto of 'No work should go unpaid' should be the appropriate doctrine to be followed in these cases where the service rendered by the respondent doctors have been productive both for the patients and also the employer," the Apex Court noted at this outset.

"Therefore, we are quite clear in our mind that the respondents (AYUSH practitioners) must be paid their lawful remuneration­ arrears and current, as the case maybe. The State cannot be allowed plead financial burden to deny salary for the legally serving doctors. Otherwise, it would violate their rights under Articles 14, 21, and 23 of the Constitution" read the judgment.

Taking note of the common contention of NDMC that classification of AYUSH and CHS doctors in different categories is reasonable and permissible in law, the Supreme Court bench mentioned, "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 Court further observed.

Mentioning that the extension of superannuation age by the AYUSH Ministry is in tune with the Union Health Ministry's notification, the bench noted,

"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. 14019/4/2016­E­I (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."

Observing that the action of NDMC in not paying the AYUSH doctors their due salary and benefits as discriminatory, the bench noted,

"Hence, we have no hesitation in holding that the respondent­ doctors (AYUSH practitioners) 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."

To read the judgment, click on the link below.