The court upheld the age limit of 60 for Ayurvedic and Homeopathic doctors, distinguishing their responsibilities from Allopathic doctors, thus finding no grounds for equal treatment claims.

JUDGMENT

(W.P(C) Nos. 22106 of 2023 and 16787 of 2024) Dated this the 25 th day of July 2024

The issue in both cases is related to fixing the upper age as 60 for Ayurvedic and Homeopathic Doctors, while the Allopathy doctors are allowed to continue beyond that age. Therefore, these two writ petitions are heard together, and a common judgment is passed.

2. The facts in W.P.(C) No. 22106 of 2023 are stated below-:

The petitioner is a qualified Ayurvedic Medical Practitioner employed under the National Rural Health Mission of National Health Mission and National Ayush Mission and posted at Idukki district on a contract basis. He joined the service on the bonafide belief that his service conditions would be on par with that of Allopathic Doctors as directed by the apex Court in SLP No. 33645 of 2018 dated 24.03.2022. The third respondent issued an order dated 13.07.2021, which shows that the Ayurvedic Doctors have to exit from service upon attaining the age of 60. In contrast, the MBBS Doctors can continue up to 67 in backward districts and 62 years in other districts. Pointing out the clear discrimination, the petitioner filed a representation relying on the orders passed by the apex court to recommend equal treatment in case of service conditions. Because of the non-consideration of the representation filed by the petitioner, he along with some others approached this Court by filing W.P.(C) No. 11109 of 2023 and by Ext.P5 judgment dated 11.4.2023, this Court directed the Governing Body of the National Health Mission, to decide the matter within a period of 3 months. Though the respondents took no decision, the 4 th respondent issued an order dated 01.04.2023 extending the service of the petitioner and others up to 31.03.2024 on a contract basis. If Ext.P5 judgment is duly complied, the petitioner and similarly situated persons will be entitled to continue up to the age of 70 years. The respondents passed an order dated 05.10.2023 claiming to be in compliance with the directions in Ext.P5 judgment. Therefore, the petitioner prayed for the following reliefs:-

“i. To call for the records leading to Ext.P1 to P6 documents and issue a writ of mandamus or any other appropriate writ, direction or order directing the Respondents to take urgent steps based on Ext.P1 judgment of the Honourable Supreme Court of India and Ext.P5 judgment of this Hon'ble Court to avoid discrimination of Ayurvedic Doctors from Allopathic Doctors in the service conditions which will adversely affect the fundamental right of the petitioner for equal treatment in the case of his service as declared by the Honourable Supreme Court in Exhibit P-1 judgment;

ii. To issue a declaration that the petitioner is entitled to get an equal treatment in the case of all service conditions with that of the MBBS Doctors as directed by the Honourable Supreme Court of India in Exhibit P1 judgment and allow him to continue upto the age of 70 years;

iii. to declare that apart from his entitlement for equal treatment, the petitioner is also entitled to continue in service upto 31.03.2024 even on the basis of Exhibit P-6 contractual appointment;

iv. To call for the records leading to Ext P-12 order and quash the same as unsustainable as the same is not in proper compliance with the Ext.P-5 judgment of this Hon'ble Court and Ext. P-1 judgment of the Hon'ble Supreme Court.

v. To issue any other appropriate writ, order or direction to meet out justice under the circumstances of the above case;”

3. A counter affidavit has been filed by the 2 nd respondent in W.P.(C) No.22106 of 2023 stating that the National Health Mission (NHM) is a mission, a joint venture between the Central and State Governments with monetary contributions made by both Governments. The NHM does not have permanent employees under its rolls. It has at its apex, the National Health Mission, State Health & Family Welfare Society (which in Kerala is popularly known as ‘Aarogyakeralam’) in State level and in the District level a