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IN THE HIGH COURT OF ALLAHABAD
RAMESH SINHA, SUBHASH VIDYARTHI, JJ.
Mission Director/Convenor Executive Committee National Health Mission Mandi Bhawan Lko. and Another - Appellants
Versus
Dr. Ram Suresh Rai and Others - Respondents
Special Appeal Defective No. 49 of 2023
Decided On : 03-03-2023
Constitution of India,1950 - Article 226 - Allahabad High Court rules - Chapter VIII - Rule 5 - Writ petition was filed by respondent nos.1 to 29 to this Special Appeal, who will be referred to as petitioners - Briefly stated, facts pleaded in writ petition are that petitioners are B.A.M.S./B.U.M.S./B.H.M.S. (Aayush) Doctors and they are engaged as Doctors across state on contractual basis - Petitioners are aggrieved by difference in honourarium paid to them and that paid to allopathic Doctors and they claim that M.B.B.S. Doctors and B.D.S. Doctors are not superior to Ayush Doctors - When no decision was taken on representations, petitioners no. 1 to 3 had filed Writ Petition No. (S/B) of 2018, which was disposed of by means of an order dated with a direction to state workmen to take a decision on representation - Representation was rejected by means of an order dated passed by Mission Director, National Health Mission - Whether such a policy upon being provided can discriminate amongst different streams of medicine practiced by Medical Officers - Learned counsel for appellants has submitted that petitioners have been engaged on contractual basis by a society under a program called National health Mission and they have not been appointed against any regular post under State government or under Central government - Honourarium payable to persons engaged on contract under program is approved by government of India and not by State government. [Para 15]
Finding of Court : Reasons recorded in order dated passed on representation of petitioners, that working conditions of Ayush doctors engaged on contractual basis are not same as those of M.B.B.S. Doctors for 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 - Law laid down in aforesaid cases referred by learned Counsel for respondents would not apply to the present case - In view of aforesaid discussion, Court are of considered opinion that order dated passed by government rejecting the representation of 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 Constitution of India.
Result : Instant special appeal is allowed.
JUDGMENT :
Subhash Vidyarthi, J.
Order on C.M. Application No.2 of 2023:
1. Heard Shri Anil Tiwari, Senior Advocate assisted by Shri Neerav Chitravanshi, learned counsel for appellants, Dr. L.P. Mishra along with Shri Amrendra Nath Tripathi, learned counsel for respondent nos.1 to 28, Shri S.B. Pandey, Assistant Solicitor General of India, appearing on behalf of respondent No.29-Union of India and Shri Indrajeet Shukla, learned Standing Counsel for State/respondent No.30.
2. This is an application for condonation of delay in filing special appeal.
3. The application is supported with an affidavit, in which the reasons for delay have been explained sufficiently.
4. Accordingly, application is allowed. Delay, if any, in moving this special appeal is hereby condoned.
Order on memo of special appeal:
5. The instant special appeal under Chapter VIII rule 5 of the Allahabad High Court rules has been filed against the judgment and order dated 12.12.2022 passed by Hon'ble single Judge allowing Civil Misc. Review Application No.187 of 2022 reviewing the judgment and order dated 20.10.2022 passed in Writ-A No. 23479 of 2019 and a further prayer has been made for dismissal of the writ petition.
6. The aforesaid writ petition was filed by the respondent nos.1 to 29 to this Special Appeal, who will be referred to as the petitioners. Briefly stated, facts pleaded in the writ petition are that the petitioners are B.A.M.S./B.U.M.S./B.H.M.S. (Aayush) Doctors and they are engaged as Ayush Doctors across the state on contractual basis. The petitioners are aggrieved by the difference in honourarium paid to them and that paid to allopathic Doctors and they claim that the M.B.B.S. Doctors and B.D.S. Doctors are not superior to the Ayush Doctors.
7. Earlier some of the petitioners had filed Writ Petition No.738 (S/B) of 2014, which was dismissed by means of an order dated 12.04.2017. Some of the petitioners filed Special Leave Petitions before the Hon'ble Supreme Court and Hon'ble Supreme Court disposed of the petitions with liberty to the petitioners to make representation for the State government. When no decision was taken on the representations, the petitioners no. 1 to 3 had filed Writ Petition No. 22529 (S/B) of 2018, which was disposed of by means of an order dated 08.08.2018 with a direction to the state workmen to take a decision on the representation. The representation was rejected by means of an order dated 16.11.2018 passed by the Mission Director, National Health Mission.
8. Some of the petitioners had challenged the order dated 16.11.2018 by filing Writ Petition No. 5633 (S/S) of 2019, which was allowed by means of an order dated 7th March 2019 and a direction was issued to the State government to take a decision on the petitioners' claim regarding parity of honourarium. The claim was rejected by means of an order dated 29th March 2019, passed by the Principal Secretary, Health and Family Welfare.
9. It has been stated in the order dated 29th March 2019 passed by the Principal Secretary that the services of Ayush doctors under the mainstreaming of Ayush program under the National Health Mission in 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. The M.B.B.S. lady doctors are assigned 24 hours emergency duty for operating the first referral units and when and E.M.O. is not available the contractual M.B.B.S. lady doctors are posted as E.M.O. 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 states that the appointment of Ayush Doctors under National Health Mission is made against posts sanctioned by the
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