NORTH DELHI MUNICIPAL CORPORATION  versus DR. RAM NARESH SHARMA & ORS.
[2021] 8 S.C.R. 79, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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NORTH DELHI MUNICIPAL CORPORATION
V.
DR. RAM NARESH SHARMA & ORS.
(Civil Appeal No. 4578 of 2021)
AUGUST 03, 2021
[L. NAGESWARA RAO AND HRISHIKESH ROY, JJ.]
Service law: Age of superannuation – Ayurvedic doctors
covered under AYUSH – Benefit of enhanced superannuation age
of 65 years along with renumeration like allopathic doctors –
Entitlement to – Tribunal holding that the applicants-ayurvedic
doctors covered under AYUSH entitled to the benefit of enhanced
superannuation age of 65 years (raised from 60 years), just like
the allopathic doctors – Upheld by the High Court – On appeal,
held: Applicants have continuously served in hospitals till attaining
the enhanced age of superannuation i.e. 65 years vide the AYUSH
Ministry order dated 24.11.2017 and by virtue of interim order of
the High Court – Principle of ‘No Work, No Pay’ would not be
applicable – Service rendered by the applicant-doctors having been
productive both for the patients and also the employer, the basic
benefit of salary cannot be denied to the doctors – Government not
paying the applicants their due salary and benefits, while their
counterparts in CHS received salary and benefits in full, is
discriminatory – State cannot plead financial burden to deny salary
for the legally serving doctors, else it would violate their rights u/
Arts. 14, 21 and 23 – Thus, applicants entitled to their lawful
remuneration-arrears –Constitution of India – Arts. 14, 21 and 23.
Constitution of India: Art. 14 –
Classification and intelligible
differentia – Classification of AYUSH doctors and doctors under
Central Health Scheme in different categories – Held: Is
discriminatory and unreasonable since doctors under both segments
are performing the same function of treating and healing their patients
– Only difference is the mode of treatment which  does not qualify
as an intelligible differentia – Thus, such unreasonable classification
and discrimination, inconsistent with Art. 14 – Further, no rational
justification for having different dates for bestowing the benefit of
extended age of superannuation to these two categories of doctors
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– Hence, the order of AYUSH Ministry dated 24.11.2017 to be
retrospectively applied from 31.05.2016 to all concerned AYUSH
doctors.
Disposing of the appeals, the Court
HELD: 1.1 Bearing in mind the legal principle maxim
“Actus Curiae neminem gravabit”, which means that the act of
the Court shall prejudice no one, the Interim order of Delhi High
Court dated 26.09.2017 cannot be the basis to deny salary and
arrear benefits to respondents. The said interim order merged
with the final judgment dated 15.11.2018 and all consequential
benefits of employment were due to the respondents. Therefore,
when the respondents worked and served patients, the basic
benefit of salary cannot be denied to the doctors. [Para 17][88-G-
H; 89-A]
Kalabharati Advertising v. Hemant Vimalnath
Narichania (2010) 9 SCC 437 : [2010] 10 SCR 971
– relied on.
1.2 In these matters, for almost 5 years, the respondent
doctors have been providing service to countless patients,
without remuneration or benefits. Their services are utilized by
the employer in Government establishments, without demur. The
principle of ‘No Work, No Pay’ protects employers from paying
their employees if they don’t receive service from them. A
corollary thereto of ‘No work should go unpaid’ should be the
appropriate doctrine to be followed in these cases where the
service rendered by the respondent doctors have been
productive both for the patients and also the employer.
Therefore,
the respondents must be paid their lawful remuneration-arrears
and current, as the case may be. The State cannot be allowed
plead financial burden to deny salary for the legally serving doctors.
Otherwise it would violate their rights under Articles 14, 21 and
23 of the Constitution. [Para 20][90-A-E]
1.3 In the case of the respondent in SLP (C) 12046/2019
i.e. Dr. H.P. Singh, it is averred by the appellants, that he has not
worked after superannuation on attaining the age of 60 years.
But, there is sufficient evidence on record to suggest that the
respondent-doctor through several representations sought to be
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re-appointed but it was the employer who created impediments
and did not allow the respondent to re-join his duties in hospitals.
In such circumstances, the principle of ‘No Work, No Pay’ cannot
be raised by the employers, as it is they who had obstructed the
doctor from discharging his service. [Para 21][90-E-F]
Dayanand Chakrawarthy v. State of Uttar Pradesh
(2013) 7 SCC 595 – referred to.
1.4 The findings of the tribunal and the High Court that the
classification of AYUSH doctors and doctors under Central Health
Scheme-CHS in different categories is discriminatory and
unreasonable since doctors under both segments are performing
the same function of treating and healing their patients, is
concurred with. 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.
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. [Para 22][91-A-D]
1.5 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. D. 14019/4/2016-E-I (AYUSH))
dated 24.11.2017 must be retrospectively applied from 31.05.2016
to all concerned respondent-doctors. [Para 23][91-D-E]
1.6 The appellant’s actions in not paying the respondent
doctors their due salary and benefits, while their counterparts in
CHS system received salary and benefits in full, must be seen as
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discriminatory. Hence, the respondent-doctors are entitled to their
full salary arrears and the same is ordered to be disbursed.
Belated payment beyond the stipulated period would carry
interest, at the rate of 6% from the date of this order until the
date of payment. [Para 24][91-F-G]
U. P. State Brasswar Corporation Ltd. and Anr. v. Uday
Narain Pandey (2006) 1 SCC 479 : [2005] 5 Suppl.
SCR 609; New Okhla Industrial Development Authority
& Anr. v. B. D. Singhal & Ors. (2021) SCC OnLine SC
466 – distinguished.
Central Electricity Supply Utility of Odisha v. Dhobei
Sahoo and Ors. (2014) 1 SCC 161 : [2013] 14 SCR
621 – referred to.
Case Law Reference
[2005] 5 Suppl. SCR 609
distinguished
Para 15
[2010] 10 SCR 971
relied on
Para 17
[2013] 14 SCR 621
referred to
Para 18
(2013) 7 SCC 595
referred to
Para 21
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4578
of 2021.
From the Judgment and Order dated 15.11.2018 of the  High Court
of Delhi at New Delhi in   W. P. (C) No.637 of 2018.
With
Civil Appeal Nos.4579, 4580, 4581, 4582, 4583, 4584, 4585 and
4586 of 2021.
R. Balasubramanian, Sr. Adv., Praveen Swarup, Ms. Payal
Swarup, Ameet Singh, Ms. Pareena Swarup,  Raghvendra Shukla, Advs.
for the Appellant.
Ms. Madhvi Divan, ASG, Gurmeet Singh Makker, Ms. Alka
Agarwal, Adit Khorana, Manish, Ravi Kumar Tomar, Dr. K.  B. S. Rajan,
Ashiesh Kumar, Vijay Kumar Sharma, SPM Tripathi, V K Shukla, Sugam
Mishra, Ms. Swagoti Batchas, Ms.
Beena, Satish Kumar, P. Niroop,
Manoj C. Mishra, Tanvir Nayar, Raj Kumar Chandiwal, Advs. for the
Respondents.
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The Judgment of the Court was delivered by
HRISHIKESH ROY, J.
1. Leave granted. These appeals are directed against the judgment
and order dated 15.11.2018 passed by the High Court of Delhi whereby
the Court upheld the common final order dated 24.08.2017 of the Central
Administrative Tribunal, Principal Bench [hereinafter referred to as the
‘Tribunal’ for short] and dismissed the petitions filed by the North Delhi
Municipal Corporation [hereinafter referred to as the ‘NDMC’ for short].
The Tribunal declared that the applicants who are ayurvedic doctors
covered under AYUSH are also entitled to the benefit of enhanced
superannuation age of 65 years (raised from 60 years), just like the
allopathic doctors. The entitlement of the respondents to continue in
service upto 65 years and receive due remuneration for the same is the
only issue to be considered in these cases. For the sake of convenience,
the relevant facts are taken from SLP (C) No. 10156 of 2019.
2. Prior to 31.05.2016, the retirement age was 60 years for the
General Duty Medical Officers [‘GDMO’ for short] of the Central Health
Scheme [‘CHS’ for short], the Dentists and Doctors covered under
AYUSH (including ayurvedic doctors). At that stage, the Government
of India, Ministry of Health and Family Welfare issued the order dated
31.05.2016, with immediate effect, enhancing upto 65 years, the age of
superannuation of the specialists of Non-teaching and public health sub-
cadres of CHS and GDMOs of CHS.
This was followed by consequential
amendment of the Fundamental Rules, 1922 by Gazette Notification dated
31.05.2016 of the Department of Personnel Training. On 30.06.2016 the
NDMC adopted the Government of India order by issuing office order
dated 30.06.2016 and enhanced the retirement age to 65 years for the
Allopathic doctors working in the NDMC. The Office Memorandum
issued by the Ministry of Health and Family Welfare on 30.08.2016 then
clarified that the enhanced superannuation age granted by order dated
31.05.2016 is applicable to GDMOs of CHS i.e. the allopathic doctors
and municipal corporations and others were given the liberty to take
their own decision on the matter, on the applicability of the Ministry’s
decision on enhancement of superannuation age. Thus, the ayurvedic
doctors were not seen to have been covered by the Ministry’s order
dated 31.05.2016.
3. The above led to several Original Applications (OA) filed by
the ayurvedic doctors, before the Tribunal. The respondent Dr. Ram
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Naresh Sharma and other ayurvedic doctors sought the benefit of the
Government decision and the office order of NDMC, for it to be made
applicable to the ayurvedic doctors as well. On 09.12.2016 an interim
order was passed by the Tribunal to the following effect.:
“In the meantime, it is directed that the Applicant may be
allowed to continue in service on the post held by him beyond
the date of his retirement/superannuation till further orders,
however, he will not be paid any salary nor shall this order
confer any right or equity in favour of the Applicant.”
4. By the common final order dated 24.08.2017, the Tribunal
accepted the discrimination argument advanced by the ayurvedic doctors
vis-à-vis the allopathic doctors. Accordingly, it was held that the applicants
were entitled to same service conditions including the enhanced age of
superannuation to 65 years, as made applicable to doctors (GDMOs)
working under the CHS, in terms of the order dated 31.05.2016 of Ministry
of Health and Family Welfare. Thus, the employer was directed to allow
the ayurvedic doctors to continue in service till the age of 65 years. It
was clarified that in case any of the applicants had been made to
superannuate at the age of 60 years, he/she shall be reinstated and be
permitted to serve until the age of 65 years.
5. Aggrieved by the above decision of the Tribunal, the appellant
NDMC preferred Writ Petitions before the High Court of Delhi.
During
the pendency of writ petition, on 24.11.2017, the Ministry of Ayurveda,
Yoga, Naturopathy, Unani, Siddha and Homeopathy (‘AYUSH’ for short),
Government of India, issued an order whereby it was communicated
that the superannuation age of AYUSH doctors is also enhanced to 65
years w.e.f. 27.09.2017, i.e. the date of approval of Union Cabinet. It
was however directed that the doctors shall hold administrative positions
only until age of 62 years and thereafter, their service shall be placed in
non-administrative positions.
6. It may be noted that the High Court on 26.09.2017 in WP(C)
8704/2017 arising out of OA 2712/ 2016 (NDMC vs. Dr. Santosh Kumar
Sharma), had passed the following interim order:
“****
****
***
***
Since the private respondents are still working under the
orders as passed by the Tribunal, the respondents may continue
to work, if they so desire without receiving any salary as of
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now. We are inclined to permit the respondents to continue to
serve this interim order, since learned counsel for the private
respondents have stated, on instructions, that in case the
petitioner succeeds, they shall not claim any equity on account
of the fact that they have rendered services under the order
of the Court. The respondents shall remain bound by their
said statements.”
7. When the Writ Petition 637/2018 arising out of O.A. 4026/2016
of the respondent Dr. Ram Naresh Sharma came up for consideration,
the High Court on 23.01.2018 while issuing notice passed an interim
order to the following effect.
“In the meantime, the operation of the impugned order shall
remain stayed on the same terms as recorded in the interim
order dated 26.09.2017, passed in W.P.8704/2017”
8. The Writ Petitions challenging the Tribunal’s common order
dated 24.08.2017 were heard analogously and were dismissed affirming
the Tribunal’s conclusion in favor of the ayurvedic doctors. The Tribunal
noted in its order that although initially the benefit of policy decision of
government to enhance the retirement age was confined to allopathic
doctors but subsequently the policy decision was made applicable to
other category doctors (including ayurvedic doctors), covered by AYUSH.
Significantly, while the NDMC has adopted the Ministry’s decision but
those ayurvedic doctors of the NDMC who fall in the window between
31.05.2016 and 26.09.2017, are deprived of getting the benefit of
the
enhanced retirement age. In other words, only those retiring on or after
27.09.2017, could aspire to serve until 65 years.
9. The High Court in the analogous judgment referred to the case
of Dr. Pratibha Sharma who was employed as an ayurvedic doctor under
the East Delhi Municipal Corporation [‘EDMC’] and observed that her
employer, unlike the NDMC, has not adopted the Government decision
dated 24.11.2017 to enhance the retirement age to 65 years for the
AYUSH category doctors. Taking note that Dr. Pratibha Sharma’s
employers had not adopted the AYUSH Ministry’s decision dated
24.11.2017, it was left open to the EDMC to deal with her case as
deemed appropriate. With such finding and observation, the WPs came
to be dismissed upholding the view taken by the Tribunal in favor of the
ayurvedic doctors and consequential direction was issued to the NDMC
to disburse payment of arrears of salary and allowances to the ayurvedic
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doctors, who continue to serve with the NDMC beyond the age of 60
years.  Specific direction was also issued on their entitlement to salary
and other allowances till they superannuate at the age of 65 years.
Aggrieved by the said decision of the High Court of Delhi, the present
Appeals are filed.
10. The Respondents in SLP (C) No. 19288/2019 (Dr. Brijesh
Kumari) and SLP (C) No. 19287/2019 (Dr. Mohd. Ahmed Khan) are
Ayurvedic and Unani doctors respectively, working under the South Delhi
Municipal Corporation [‘SDMC’]. Dr. Brijesh Kumar was supposed to
retire on 31.07.2017 upon attaining age of 60 years, whereas Dr. Mohd.
Ahmed Khan was supposed to superannuate on 31.05.2017. Dr. Brijesh
Kumar filed O.A. 2503/2017 in the Tribunal, which came to be decided
on 05.09.2017. In its order the Tribunal, relied on its earlier judgment in
the matter of Dr. Santosh Sharma, whereby the respondents were allowed
to continue in service till they attain the age of 65 years.  Similarly, Dr.
Khan’s application came to be decided on 21.09.2017 with like
consequences. Aggrieved by these orders, Writ Petitions were preferred
by the SDMC impugning the judgments by the Tribunal. These Writ
Petitions were dismissed by the Delhi High Court on same day i.e.
27.03.2019 vide judgments in W.P.(C) No. 1776/2018 and W.P.(C) No.
1769/2019. In this Court, the SDMC has averred that the order of AYUSH
Ministry dated 24.11.2017 has been adopted by the
SDMC on 31.10.2018,
but the approval for the same from the House of SDMC, is still pending.
Hence, it cannot be said that the SDMC has adopted the order of AYUSH
Ministry dated 24.11.2017.
11. The respondent in SLP (C) 24693/2019, Dr. Lata A. Dupare,
was working as a dental surgeon under CGHS, Nagpur. Dr. Lata was
supposed to retire on 31.05.2016. The Tribunal by an order dated
17.11.2017 in O.A. 3795/2017 citing its own judgment in Dr. Santosh
Sharma, and Dr. H. P. Singh vs. Union of India1 gave her the benefit of
extended superannuation age. Aggrieved by this order, the Union preferred
a W.P.(C) 3210/2019 in the High Court of Delhi which came to be
dismissed on 01.04.2019.
12. We have heard the learned counsel appearing for the appellants
and the respondents. Questioning the legality of the impugned decision,
Mr. R. Balasubramaniam, learned senior counsel contends that the benefit
of enhanced retirement age should have been extended only w.e.f.
1 O.A. 3321/2016.
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27.09.2017 as per the AYUSH Ministry’s decision, as there is limited
scope for interference on a cut-off date, stipulated by the government.
The interim order dated 26.09.2017 in W.P. 8704/2017 of the High Court
is read by the counsel to argue that while the respondents were permitted
to continue in service beyond 60 years, they are disentitled to claim any
equitable relief by way of arrear of salary on account of the fact that
they remained in service under interim orders of the court. The financial
implication for the employer is highlighted by the learned senior counsel
to argue that the appellants should not be burdened with the liability to
disburse the unpaid arrear salary to the respondents.
13. On the other hand, the learned counsel for respondents argue
that relief to the respondents was granted by the Tribunal and by the
High Court by concluding that the action of the authorities in treatment
of the allopathic doctors vis-à-vis the ayurvedic doctors was
discriminatory and violative of Art. 14 of Constitution. Accordingly, it is
argued that there can be no separate service condition in so far as the
superannuation age is concerned between allopathic and other category
doctors, particularly when the AYUSH Ministry itself on 24.11.2017 has
enhanced the retirement age for the non-allopathic doctors w.e.f.
27.09.2017, in tune with the Ministry’s order dated 31.05.2016.
14.  Ld. Sr. Counsel for appellant relied on judgment of this Court
in U. P. State
Brasswar Corporation Ltd. and Anr. vs. Uday Narain
Pandey2, and argued that while earlier, awarding full arrears of salary
was the practice, under the prevalent pragmatic view of the issue, the
Court should determine the award of back wages based on facts and
circumstances of each case. For the Bench, Justice S. B. Sinha in Uday
Narain Pandey (supra) stated that:
“17. Before adverting to the decisions relied upon by the
learned counsel for the parties, we may observe that although
direction to pay full back wages on a declaration that the
order of termination was invalid used to be the usual result
but now, with the passage of time, a pragmatic view of the
matter is being taken by the court realizing that an industry
may not be compelled to pay to the workman for the period
during which he apparently contributed little or nothing at
all to it and/ or for a period that was spent unproductively as
a result whereof the employer would be compelled to go back
2 (2006) 1 SCC 479
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to a situation which prevailed many years ago, namely, when
the workman was retrenched.”
15. The above ratio in Uday Narain Pandey (supra) is however
not attracted to the matters before us, as there is significant difference
in the factual matrix. In the cited case, the respondent-worker had not
re-joined or continued his employment after his retirement, and was
asking for wages for work, he did not actually render. Whereas, in this
bunch of cases, it is undisputed that the respondent doctors have
continuously served in hospitals till attaining the enhanced age of
superannuation i.e. 65 years vide the AYUSH Ministry order dated
24.11.2017 and by virtue of interim order of the High Court dated
26.09.2017. In other words, they have been productive not only for the
patients but also for their employers.
16. The learned senior counsel for appellant by placing reliance
upon the HC interim order submits that respondent doctors are not entitled
to remuneration and unpaid arrears as they were serving in the hospitals
on the strength of the Court’s interim order. Such argument for appellants
cannot however be accepted in light of the principle ‘Actus Curiae
Neminem Gravabit’. Explaining the principle, Justice B. S. Chauhan
speaking for this court in Kalabharati Advertising vs. Hemant
Vimalnath Narichania3, stated the following:
“15. …The maxim “Actus Curiae neminem gravabit”, which
means that the act of the Court shall
prejudice no-one,
becomes applicable in such a case. In such a situation the
Court is under an obligation to undo the wrong done to a
party by the act of the Court. Thus, any undeserved or unfair
advantage gained by a party invoking the jurisdiction of the
Court must be neutralised, as the institution of litigation cannot
be permitted to confer any advantage on a party by the
delayed action of the Court.”
17. Bearing in mind the above legal principle the Interim order of
Delhi High Court dated 26.09.2017 in our opinion cannot be the basis to
deny salary and arrear benefits to respondents. The said interim order
merged with the final judgment dated 15.11.2018 and all consequential
benefits of employment were due to the respondents. Therefore, when
3 (2010) 9 SCC 437
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the respondents worked and served patients, the basic benefit of salary
cannot be denied to the doctors.
18. This Court in case of Central Electricity Supply Utility of
Odisha vs. Dhobei Sahoo and Ors.4, stated that:
“51....Till the declaration is made, the incumbent renders
service and when he has rendered service he cannot be
deprived of his salary. Denial of pay for the service rendered
tantamounts to forced labour which is impermissible. When
an appointment is admitted and the incumbent functions in
the post and neither suspended nor removed from service, he
is entitled to get salary, for it is his legal right and it is the
duty of the employer to pay it as per the terms and conditions
of the appointment.…”
The above ratio correctly sets out the employers’ responsibility to
pay the wages for the productive employees serving under them.
19. In the case of New Okhla Industrial Development Authority
& Anr. vs. B. D. Singhal & Ors.5, this Court while dealing with a
comparable issue, declined to give retrospective application to the U.P.
State Government order dated 30th September 2012, which extended
the age of superannuation from 58 years to 60 years. The arrears of
salary to respondent employees who had retired on 31st August, 2012,
upon attaining the age of 58 years was also denied.  But that case can
have no application in the present appeals since facts are distinguishable.
There are two vital factual differences, which need to be considered.
Firstly,
the Allahabad High Court retrospectively applied the U.P. State
Government order dated 30th September 2012, from 29th June 2002 i.e.
the day on which recommendation for extending the age of superannuation
was made. Whereas, in the case at hand, on 31.05.2016 a notification
was issued which was expeditiously implemented. Secondly, arrears of
salary were disallowed, because the respondent-employees in New Okhla
Industrial Development Authority had not worked even a single day
after retiring, on attaining 58 years of age. But, in the present case,
respondent-doctors have been working continuously without break,
pursuant to the Interim order of the Delhi High Court dated 26.09.2017.
Hence, based on these two distinguishing aspects, the ratio in New Okhla
4 (2014) 1 SCC 161
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Industrial Development Authority cannot in our opinion be applicable
here, to defeat the legitimate expectation of the respondents.
20. In these matters, for almost 5 years, the respondent doctors
have been providing service to countless patients, without remuneration
or benefits. Their services are utilized by the employer in Government
establishments, without demur. In this regard, the learned senior counsel
for appellant submits that paying arrear unpaid wages to the respondent
doctors will impose substantial financial burden upon the State. Such
submission cannot however be countenanced as a fair submission by
the State’s counsel. The principle of ‘No Work, No Pay’ protects
employers from paying their employees if they don’t receive service
from them. A corollary thereto of ‘No work should go unpaid’ should
be the appropriate doctrine to be followed in these cases where the
service rendered by the respondent doctors have been productive both
for the patients and also the employer. Therefore, we are quite clear in
our mind that the respondents must be paid their lawful remuneration-
arrears and current, as the case may be. The State cannot be allowed
plead financial burden to deny salary for the legally serving doctors.
Otherwise it would violate their rights under Articles 14, 21 and 23 of the
Constitution.
21. In the case of the respondent in SLP (C) 12046/2019 i.e. Dr.
H. P. Singh, it is averred by the
appellants, that he has not worked after
superannuation on attaining the age of 60 years. But, there is sufficient
evidence on record to suggest that the respondent-doctor through several
representations sought to be re-appointed but it was the employer who
created impediments and did not allow the respondent to re-join his duties
in hospitals. In such circumstances, the principle of ‘No Work, No Pay’
cannot be raised by the employers, as it is they who had obstructed the
doctor from discharging his service.  For support we may cite Dayanand
Chakrawarthy vs. State of Uttar Pradesh6 where this Court speaking
through Justice S. J. Mukhpadhyaya rightly held that:
“48. … If an employee is prevented by the employer from
performing his duties, the employee cannot be blamed for
having not worked, and the principle of “no pay no work”
shall not be applicable to such employee.”
6 (2013) 7 SCC 595.
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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 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. D.
14019/4/2016-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.
24. In light of the above discussion, the appellant’s actions in not
paying the respondent doctors their due salary and benefits, while their
counterparts in CHS system received salary and benefits in full, must be
seen as discriminatory. Hence, we have no hesitation in holding that the
respondent-doctors are entitled to their full salary arrears and the same
is ordered to be disbursed, within 8 weeks from today. Belated payment
beyond the stipulated period will carry interest, at the rate of 6% from
the date of this order until the date of payment. It is ordered accordingly.
The appeals are disposed of in above terms without any order on cost.
Nidhi Jain
Appeals disposed of.
NORTH DELHI MUNICIPAL CORPORATION V. DR. RAM
NARESH SHARMA & ORS. [HRISHIKESH ROY, J.]