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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, J.
THE AYURVEDIC DOCTORS ASSOCIATION AND ORS. - Appellant
Vs.
THE STATE OF ASSAM AND ORS. - Respondent
WP(C) No. 8759 of 2018
Decided On : 29-03-2022
Equal pay for equal work - Pay scale - Health Department and National Health Mission - CGC appears for respondent - Grievance of petitioners is that while NHM has engaged Allopathic and Ayurvedic doctors under NHM on contract basis, fixed pay given to Allopathic doctors is higher than that given to Ayurvedic doctors - Petitioners’ counsel submits that as the job responsibility of Medical Officers (Ayurvedic) under NHM is identical with that of the job responsibility of Medical Officers (Allopathic), fixed pay given to Medical Officers (Ayurvedic) would have to be same as that given to allopathic doctors, as that would be in consonance with doctrine of equal pay for equal work - Petitioners’ counsel, in support of his submission that Allopathic and Ayurvedic doctors are having identical responsibilities and duties, has referred to terms of reference for Medical Officers (Ayurvedic) and terms of reference for Medical Officers (MBBS), which is at Annexure-7 & 8 of writ petition - Petitioners’ counsel submits that with respect to doctors employed by State Government on regular basis, be it Allopathic doctors or Ayurvedic doctors, the same pay scale is being given to them.
Finding of the Court:
Court may only clarify that respondents who are Ayurvedic doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme - After the order was passed, learned counsel for petitioners made a statement that petitioners would like to file a review petition before High Court - It is not for this Court to issue any such direction - It is always open to petitioners to pursue such remedy as may be available to them in law - A perusal of the order of Division Bench of the Uttarakhand High Court passed in WP and order passed by Apex Court in Special Leave to Appeal show that Ayurvedic doctors would have to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the NHM and as such, there cannot be any discrimination in the payment of salary/wages between the two - This is further fortified by fact that State respondents have taken a conscious decision to give the same scale of pay to Ayurvedic doctors and Allopathic doctors working in Health Department, under Government of Assam - In view of the reasons stated respondents are directed to pay and release salary to the petitioners at par with Allopathic Medical Officers of NHM, date of filing of the writ petition.
Result: Writ petition is disposed of
JUDGEMENT :
Heard Mr. B. Sinha, learned counsel for the petitioners. Also heard Mr. B. Gogoi, learned counsel for the Health Department and National Health Mission (in short, NHM). Mr. K.K. Parasar, CGC appears for the respondent No.5.
2. The grievance of the petitioners is that while the NHM has engaged Allopathic and Ayurvedic doctors under the NHM on contract basis, the fixed pay given to the Allopathic doctors is higher than that given to the Ayurvedic doctors.
3. The petitioners’ counsel submits that as the job responsibility of the Medical Officers (Ayurvedic) under the NHM is identical with that of the job responsibility of the Medical Officers (Allopathic), the fixed pay given to the Medical Officers (Ayurvedic) would have to be the same as that given to the allopathic doctors, as that would be in consonance with the doctrine of equal pay for equal work.
4. The petitioners’ counsel, in support of his submission that Allopathic and Ayurvedic doctors are having identical responsibilities and duties, has referred to the terms of reference for Medical Officers (Ayurvedic) and the terms of reference for Medical Officers (MBBS), which is at Annexure-7 & 8 of the writ petition.
5. The petitioners’ counsel submits that with respect to doctors employed by the State Government on regular basis, be it Allopathic doctors or Ayurvedic doctors, the same pay scale is being given to them. As such, there can be no justification for giving different fixed pay to Ayurvedic doctors and Allopathic doctors, who are engaged on contract basis under the NHM. He further submits that the Secretary to the Government of India, Ministry of Ayurveda, Yoga & Naturopathy, Unany, Siddha and Homeopathy, vide D.O. No.Z.28015/04/2018-H & D Cell dated 27.02.2018, issued to all the Chief Secretaries of the States/ UTs of India, has requested that appropriate steps be taken to enhance the salary of AYUSH doctors to be at par with their Allopathic counterparts. The petitioner’s counsel has also relied upon the Judgment of the Division Bench of the High Court of Uttarakhand in W.A. No. 484 of 2014 (S/B), by which the State Government of Uttarakhand has been directed to pay the salary of AYUSH doctors at par with the Allopathic and Dental doctors He also submits that the State of Jammu & Kashmir is also paying the same monthly remuneration to both the Allopathic and Ayurvedic Doctors, vide order dated 08.09.2018 issued by the Mission Director, NHM, J & K, in terms of the Judgment dated 29.05.2018 passed by the High Court of Jammu & Kashmir in SWP No. 2590/2012. The petitioner’s counsel submits that the Budget of the NHM is paid by the Central Government and the State Government, in the ratio of 85% and 15% respectively.
6. The petitioners’ counsel submits that the appeal filed against the judgment of the Division Bench of the High Court of Uttarakhand in WP No.484/2014 (S/B) has been dismissed by the Apex Court, vide order dated 24.03.2022 in Special Leave to Appeal (C) No.33645/2018 (State of Uttarakhand & Ors. Vs. Dr. Sanjay Singh Chauhan & Ors.).
7. Mr. B. Gogoi, the learned Standing Counsel for the Health Department and NHM submits that the job responsibility of the Allopathic and Ayurvedic doctors is not identical but different. He also submits that the educational qualifications of the two streams of Medical Officers are different. He also submits that in terms of the Judgment of the Apex Court in the Case of S.C. Chandra and Ors. Vs. State of Jharkhand and Others, reported in (2007) 8 SCC 279, even if employees in two groups are doing identical work, they cannot be granted equal pay, if there is no complete and wholesale identity. He also submits that as granting of pay scales is a purely executive function, the Court should not interfere with the same.
8. Mr. K.K. Parasar, learned CGC submits that Public Health and Hospitals being a State subject, it is the prerogative of the State Government to fix the honorarium of contractual Medical Officers as per local ne
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