STATE OF GUJARAT ETC & Ors. v. DR. P. A. BHATT ETC & Ors.

From the Judgment and Order dated 17.01.2014 of the High Court of Gujarat at Ahmedabad in SCA Nos.3718, 6017, 6959, 11706 of 2008, 11363 of 2009 and LPA Nos. 295, 610, 642, 964, 965 of 2013. With Contempt Petition (C) Nos.701, 674 and 916 of 2017. Nirav Majumdar, Priank Adhyaru, Rameshwar Prasad Goyal, Kusum Chaudhary, Ms. Archana Pathak Dave, Ms. Swati Ghildiyal, Ms. Devyani Bhatt, Advs. for the appearing parties. The Judgment of the Court was delivered by V. RAMASUBRAMANIAN, J.

1. These civil appeals arise out of a common order passed by the Division Bench of the High Court of Gujarat at Ahmedabad confirming the order of the learned Single Judge, holding that the respondents possessing a degree of BAMS (Bachelor of Ayurved in Medicine and Surgery) should be treated at par with the doctors holding MBBS degrees and that they are entitled to the benefits of the recommendations of the Tikku Pay Commission.

2. We have heard the learned counsel appearing for the parties.

3. On the basis of a Memorandum of Settlement dated 21.08.1989 A B C D E F G H STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS. ETC. [V. RAMASUBRAMANIAN, J.] 305 entered into by the Ministry of Health and Family Welfare with the Joint Action Council of Service Doctors Organisation, a High-Power Committee was constituted on 03.05.1990 with Shri R.K. Tikku as its Chairman, for the purpose of improving the service conditions and prospects of the doctors in Government service.

4. This Committee held 30 meetings during the period from June- 1990 to October-1990 and submitted its recommendations under a Report dated 31.10.1990. The recommendations contained in this Report was confined only to service doctors holding MBBS degrees and post-graduate medical degrees and degrees in super-specialities and those on the teaching and non-teaching sides.

5. By a separate order dated 19.11.1990, the Ministry of Health and Family Welfare constituted another High-Power Committee under the chairmanship of the very same person, namely, Shri R.K. Tikku, for the purpose of considering the career improvement and cadre restructuring of the practitioners of Indian Systems of Medicine and Homeopathy. This Committee submitted a separate Report on 26.02.1991 and it was confined to practitioners of alternative Systems of Medicine, holding degrees in Ayurved/Unani/Siddha/Homeopathy.

6. The Government of India accepted the recommendations of the Tikku Committee dated 31.10.1990, in respect of allopathic doctors by Office Memorandum dated 14.11.1991. The State of Gujarat also accepted the recommendations of the Tikku Committee for allopathic doctors and issued an order in Resolution No.GHS/1094/2842/T dated 17.10.1994. It was stated in the said order dated 17.10.1994 that adequate number of allopathic doctors was not available in the State and that therefore, it was necessary to attract talent.

7. After the implementation of the recommendations of the Tikku Committee dated 31.10.1990 in respect of allopathic doctors, in the State of Gujarat by the Government Resolution dated 17.10.1994, the Local Fund Audit, Ahmedabad sought clarifications, vide letters dated 04.03.1998 and 21.04.1998, as to whether the same benefits are available to non- MBBS medical officers holding qualifications such as G.A.F.M/LMP.

8. In response, the Health and Family Welfare Department of the Government of Gujarat issued a Government Resolution bearing No.KRV/ 1098/726/CH dated 01.01.1999, holding that non-MBBS medical officers are also entitled to the benefit. Incidentally this letter stated that the A B C D E F G H 306 SUPREME COURT REPORTS [2023] 5 S.C.R. recommendations of the Tikku Committee were extended even to doctors working under the Employees State Insurance Scheme, vide Government Resolution dated 01.07.1997.

9. The respondents herein who were originally appointed on adhoc basis, under the ‘Community Health Volunteer Medical Officers Scheme’ floated by the Government of India and who were later absorbed by the State of Gujarat in May- 1999, filed 4 writ petitions on the file of the High Court of Gujarat seeking extension of the benefit of higher scales of pay on the basis of the recommendations of Tikku Pay Commission. A separate writ petition was filed by the Medical Officers (Ayurved) Association, comprising of persons initially appointed as Medical Officers Class-III. The relief sought by this Association was similar to the one sought in the batch of four writ petitions.

10. By a common order dated 26.07.2012, a learned Judge of the High Court allowed all the writ petitions, holding that doctors having degrees in alternative Systems of Medicine are entitled to be treated at par with doctors holding MBBS degree.

11. The State of Gujarat preferred intra-court appeals. After filing appeals, the State also issued a Government Resolution dated 31.07.2013 withdrawing the Resolution dated 01.01.1999 by which the benefit was extended to non-MBBS degree holders. This was because the learned Single Judge held that discrimination between non-MBBS degree holders working in the ESI Scheme and non-MBBS degree holders working in other areas was not permissible.

12. But the Division Bench of the High Court dismissed all the intra-court appeals holding, (i) that both MBBS and non-MBBS doctors form part of the same cadre and hence no discrimination is permissible within the cadre on the basis of educational qualifications; and (ii) that the non-MBBS doctors were also discharging the same duties and functions discharged by MBBS doctors and were even manning primary health centres independently and that therefore they were entitled to equal pay.

13. Aggrieved by the said order of the Division Bench of the High Court, the State has come up with the above appeals. On 08.09.2014, this Court granted leave in the special leave petitions and passed an interim order to the following effect. A B C D E F G H STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS. ETC. [V. RAMASUBRAMANIAN, J.] 307 “Leave granted. Having heard learned counsel for the parties, it is directed that the State of Gujarat shall comply with the order of the High Court up to 50% within two months. Needless to say, it case the appeal is dismissed, the respondents shall be entitled to the balance 50% with interest, which shall be determined at the time of final adjudication of the appeal. Hearing expedited.”

14. Claiming that the above interim direction issued on 08.09.2014 was not complied, a batch of contempt petitions was filed in the year 2016. Those contempt petitions were disposed of on the basis of a statement made to the effect that the State will comply with the order by the end of October, 2016.

15. However, a fresh set of three contempt petitions were filed in the year 2017, complaining of wilful disobedience of the order dated 08.09.2014. These contempt petitions were directed to be listed alongwith the main appeals and this is why we have five civil appeals and three contempt petitions on hand. Preliminary contention

16. The learned counsel for the respondents raised a preliminary issue that the question raised in these appeals is squarely covered by a recent judgment of this Court in North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma1 and that therefore the impugned order of the High Court does not need a deeper scrutiny. Therefore, it is necessary to address this preliminary issue before we proceed to consider the rival contentions on merits.

17. In Dr. Ram Naresh Sharma (supra), the only question that arose was as to whether the benefit of enhancement of age of retirement from 60 years to 65 years, granted in favour of Allopathy doctors, was available even for Ayurved doctors or not. It was held in the said decision 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 1 2021 (9) SCALE 47 A B C D E F G H 308 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H 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.D14019/4/2016-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.”

18. A cursory reading of the portion of the judgment extracted supra, may give an impression as though the question arising for consideration is no longer res integra and that Allopathy doctors and Ayurved doctors should be treated on par insofar as all service conditions are concerned. But a careful reading of the entire judgment shows that the said decision was based upon an order of the Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) dated 24.11.2017. As seen from paragraph 2 of the said decision, the age of retirement of Allopathy doctors was increased by an order dated 31.05.2016 issued by the Ministry of Health and Family Welfare. This was followed by consequential amendment of the Fundamental Rules and Supplementary Rules, 1922. Since Ayurved doctors were not covered by the Ministry’s order dated 31.05.2016, Ayurved doctors filed applications before the Administrative Tribunal. The Administrative Tribunal allowed the applications by an order dated 24.08.2017. The North Delhi Municipal Corporation (employer) filed writ petitions before STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS. ETC. [V. RAMASUBRAMANIAN, J.] 309 the High Court of Delhi challenging the decision of the Tribunal. During the pendency of the writ petitions, the Ministry of AYUSH issued an order dated 24.11.2017 enhancing the age of retirement of AYUSH doctors also to 65 years, but with effect from 27.09.2017. It is in that context that this Court held as aforesaid in Dr. Ram Naresh Sharma. This Court did not go into the question whether AYUSH doctors and Allopathy doctors were performing equal duties and responsibilities so as to be entitled to equal pay.

19. We must remember the fundamental distinction between, (i) the issue of law that equal work entails equal pay; and (ii) the issue of fact as to whether two categories of employees are performing equal work or not? This Court did not go into the factual aspect in Dr. Ram Naresh Sharma as to whether AYUSH doctors were performing equal work as Allopathy doctors. This Court simply relied upon the order of the Ministry of AYUSH itself enhancing the age of retirement of AYUSH doctors on par with Allopathy doctors.

20. In any case, the question of age of retirement stands on a different footing from the service conditions relating to pay and allowances and revision of pay. Therefore, we do not think that the issue raised in these appeals can be said to be covered by the decision in Dr. Ram Naresh Sharma. Other contentions

21. Assailing the impugned order of the High Court, it is contended on behalf of the State that the recommendations of Tikku Pay Commission for enhancement of the scales of pay were per se applicable only to MBBS doctors; that the revision of scales of pay in favour of Allopathy doctors was warranted by the perennial shortage of Allopathy doctors; that the State Government had to fulfil its Constitutional obligation of providing adequate healthcare infrastructure to the citizens by recruiting qualified MBBS doctors, but the State could not attract sufficient talent, due to the poor pay structure; that in contrast, the State was never running short of AYUSH doctors and hence there was no necessity to lure qualified AYUSH doctors to come to service; that there is no impediment in law for providing different scales of pay to persons employed in the same cadre, based upon the qualifications; and that the High Court miserably failed to appreciate the completely different nature of duties and responsibilities performed by Allopathy doctors and AYUSH doctors and that therefore the impugned order is wrong, both in law and on facts. A B C D E F G H 310 SUPREME COURT REPORTS [2023] 5 S.C.R.

22. In response, it is contended by the learned counsel for the respondents that both Allopathy doctors and AYUSH doctors are appointed to the post of Medical Officer falling in Class-II of Gujarat Medical Services; that once persons with different qualifications are appointed to one unified cadre with a common pay scale and governed by one set of rules, then at a later stage, the Government cannot make a classification; that all Medical Officers, irrespective of their qualifications were discharging the same duties and responsibilities; that by the Government Resolution dated 01.01.1999, the recommendations of the Tikku Pay Commission were made applicable to non-MBBS degree holders working in the ESI Scheme; that it was only after the learned Single Judge allowed the writ petitions, that the State issued another Resolution dated 31.07.2013 withdrawing the Resolution dated 01.01.1999; and that the findings of fact recorded by the learned Single Judge and the Division Bench of the High Court that both categories of doctors are performing equal work, does not call for any interference under Article 136 of the Constitution and that therefore the appeals are liable to be dismissed.

23. We have carefully considered the above submissions.

24. Two questions, in our opinion, arise for consideration in these appeals. They are: (i) Whether different scales of pay can be fixed for officers appointed to the same cadre, on the basis of educational qualifications possessed by them? (ii) Whether Allopathy doctors and doctors of indigenous medicine can be said to be performing “equal work” so as to be entitled to “equal pay”? Question No.1: Whether different scales of pay can be fixed for officers appointed to the same cadre, on the basis of the educational qualifications possessed by them?

25. The first issue arising for consideration is as to whether persons appointed to the same post in a cadre can be given different scales of pay on the basis of educational qualifications?

26. Though the issue is no longer res integra, we shall refer to a few decisions, some of which were cited before the High Court also. A B C D E F G H STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS. ETC. [V. RAMASUBRAMANIAN, J.] 311

27. In The State of Mysore vs. P. Narasinga Rao2, which is one of the earliest cases to be considered by a Constitution Bench of this Court, the classification of two grades of Tracers, one for matriculates with a higher pay scale and the other for non-matriculates with a lower pay scale, was held by this Court to be not violative of Articles 14 and 16 of the Constitution. In fact, it was a case where both matriculates as well as non-matriculates were drawing the same scale of pay in the erstwhile State of Hyderabad, but after the reorganization of States in 1956, two different scales of pay came to be given to those who were allotted to the new Mysore State. Yet this Court upheld the classification.

28. In Dr. C. Girijambal vs. Government of Andhra Pradesh3, the holder of a Diploma in Ayurvedic Medicine (DAM), appointed to the post of Medical Officer, was given a scale of pay lower than the scale of pay given for the holders of Graduate of the College of Integrated Medicine (GCIM) and Licentiate in Indigenous Medicine (LIM). When questioned, the Authorities pointed out that a higher scale of pay was available only to those with Class ‘A’ Registration Certificate under the Andhra Ayurvedic and Homeopathic Medical Practitioners’ Registration Act, 1956. Therefore, the Medical Officer filed a writ petition seeking a direction to the Andhra Board of Ayurveda to register her as Class ‘A’ Practitioner. The High Court allowed the writ petition and the writ petitioner was granted higher scale of pay with retrospective effect. But when a revision of the scales of pay of Medical Officers was undertaken in the year 1975, under GOM No.574 dated 20.10.1975, a higher scale of pay was granted to those holding LIM and the petitioner was granted a lower scale of pay. Her challenge to this classification was rejected by the Administrative Tribunal and the claim landed up before this Court. While rejecting the claim, this Court clarified the law pithily in the following words: “6. Dealing with the first contention we would like to observe at the outset that the principle of equal pay for equal work cannot be invoked or applied invariably in every kind of service and certainly it cannot be invoked in the area of professional services when these are to be compensated. Dressing of any injury or wound is done both by a doctor as well as a compounder, but surely it cannot be suggested that for doing this job a doctor cannot be compensated more than