Can allopathy, AYUSH doctors have equal service conditions? Supreme Court to decide
Supreme Court of India
New Delhi: The question of whether doctors practising under indigenous medical systems (AYUSH, Ayurveda, Homoepathy, Unani, etc.) can be equated with allopathic doctors regarding service conditions, such as retirement age and pay scales, is being considered by the Supreme Court, which has now referred the matter to a larger Bench.
Reference with this regard was made in a batch of pleas that challenged the differential treatment by States in prescribing retirement age and benefits for doctors of different systems of medicine.
Taking note of the divergence of opinion and conflicting judgments on this issue, the Apex Court bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran referred the question to a larger bench.
"There is divergence of opinion insofar as whether the MBBS doctors and doctors practicing indigenous systems of medicine can be treated equally, for the purpose of service conditions, which on principle, it is trite cannot result in treatment of unequals as equals. We are of the opinion that there should be an authoritative pronouncement on the issue and we hence refer the matter to a larger Bench. The Registry is directed to place the matter before the Hon’ble the Chief Justice of India on the administrative side," the top court bench mentioned in the order.
While considering the special leave petitions, the Apex Court bench noted that reliance was placed on a series of judgments which took different stands on the question of retirement age and pay scales.
For instance, in the 2021 judgment in New Delhi Municipal Corporation v. Dr. Ram Naresh Sharma & Ors., a two-judge bench of the Court observed that the AYUSH doctors could not be denied the benefit of a higher retirement age granted to allopathic doctors merely by virtue of practising a different medical system when their work is comparable. The court observed that the classification based on medical systems, without a rational nexus to job functions or public interest, may amount to unreasonable discrimination.
However, a coordinate bench held in the 2023 judgment in the case of State of Gujarat & Ors. v. Dr. P.A. Bhatt & Ors., that the classification based on educational qualification and medical specialization, distinguishing allopathic doctors from AYUSH practitioners, was allowed, given the differences in their training and scope of practice. In that judgment, it was held that the AYUSH doctors were not entitled to equal pay as Allopathic doctors because their functions were not the same. A similar view was also taken in the case of Dr. Solamon A. v. State of Kerala and Ors., which held that AYUSH doctors cannot claim parity with medical doctors.
Apart from this, a reference was also made to the decision in the case of Central Council for Research in Ayurvedic Sciences and Another v. Bikartan Das and Others, where the court observed that an employee of CCRAS, Ministry of AYUSH, was not automatically entitled to demand parity in superannuation age with AYUSH doctors, just because he treated OPD and IPD patients.
Referring to these judgments, the Apex Court on Friday observed,
"We are quite conscious of the fact that Dr. Ram Naresh Sharma1 was distinguished in Dr.P.A. Bhatt 2. Still, there is an area of ambiguity insofar as service conditions, especially of retirement age and the pay packages, with reference to the doctors administering different forms of medical treatment, evaluated for the purposes of parity, should be ideally considered, according to us, on the touchstone of, identity of functions, similarity in work carried out and comparable duties assigned."
"The claim for parity will have to be decided finally looking at the qualification acquired, the treatment practices, the functions, work and duties and so on. As has been noticed in Dr. P.A. Bhatt2, it is the MBBS doctors, the allopathy practitioners, who are dealing with critical care, immediate life saving measures, invasive procedures including surgeries and even postmortem; none of which can be carried out by any of the practitioners of indigenous systems of medicine. The contention of the States which have brought in two different retirement ages, is also that of public good and the concern expressed is of dearth of sufficient allopathy doctors. As has been noticed in Dr. P.A. Bhatt (supra), it is common knowledge that the footfalls in allopathy institutions are far more than the institutions administrating indigenous system of medicine. The curriculum leading to the different qualifications, the dissimilar diagnostic methods, contrasting treatment philosophies and the disparate composition of medicines administered sets the allopathy doctors apart. Further, casualty, critical care, trauma management and the emergency interventional procedures are dealt with by allopathy doctors and not by AYUSH doctors. These aspects according to us, puts the former in a different class altogether, who can be classified differently for service conditions. This has a reasonable nexus with the object sought to be achieved, i.e.: the sufficiency of qualified and experienced MBBS doctors with better pay scales and longer service, both," it further observed.
Noting that the court could not ignore the submission of the States that an enhancement of the retirement age was only to ensure that there were sufficient experienced medical practitioners available to treat the public, the Apex Court bench also highlighted the dearth of medical practitioners as occurring in allopathy, which does not exist in the indigenous systems of medicine especially when critical life-saving therapeutic, interventional and surgical care is not carried out by the practitioners of indigenous systems of medicine.
On the matter required to be considered by a larger bench, the top court bench observed,
"the States and the authorities would be entitled to either continue the practitioners of indigenous systems of medicine, even after the age of superannuation specified for them till the age of superannuation provided for MBBS doctors, without the benefit of regular pay and allowances. Eventually, if the larger Bench holds in favour of the AYUSH doctors, entitling them for enhancement in retirement age, the practitioners would be entitled to avail pay and allowances during the period they were continued. However, if they are not allowed to continue by virtue of this order, still they would be entitled to avail the pay and allowances for the enhanced period, if the issue is held in their favour. If the State Government permits such continuance and the individual doctors do not take up such assignment without regular pay and allowances, they would be treated as retired and the fate of this reference will be inconsequential to them."
The bench further ordered,
"Considering the fact that if the AYUSH doctors are continued, they will not be entitled to pension also, it is directed that they shall be paid half of the pay and allowances, which, if the reference does not yield any favourable orders will be adjusted in their pension or otherwise against the regular pay and allowances."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/supreme-court-ayush-vs-allopathy-305017.pdf
