Classification of AYUSH doctors and doctors under CHS in different categories is discriminatory: Supreme court of India

and order dated 15.11.2018 passed by the High Court of Delhi of the Central Administrative Tribunal Principal Bench just like the allopathic doctors. The entitlement of the respondents to continue in service upto 65 years and receive due Prior to 31.05.2016 the retirement age was 60 years for the Scheme the Dentists and Doctors covered under AYUSHGovernment of India issued an order whereby it administrative positions only until age of 62 years and thereafter It may be noted that the High Court on 26.09.2017 in WP(C 8704 2017 arising out of OA 2712 2016 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 other words only those retiring on or after 27.09.2017 could aspire to of Dr. Pratibha Sharma who was employed as an ayurvedic doctor under the East Delhi Municipal Corporation and observed that her employer unlike the NDMC has not adopted the Government for the AYUSH category doctors. Taking note that Dr. Pratibha came to be dismissed upholding the view taken by the Tribunal in to the ayurvedic doctors who continue to serve with the NDMC 10. The Respondents in SLP No. 19288 2019 No. 1776 2018 and W.P.(C) No. 1769 2019. In this Court the SDMC has averred that the order of AYUSH Ministry dated 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 11. The respondent in SLP24693 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 extended superannuation age. Aggrieved by this order the Union 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 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 1 O.A. 3321 2016. years they are disentitled to claim any equitable relief by way of under interim orders of the court. The financial implication for the 13. On the other hand the learned counsel for respondents argue High Court by concluding that the action of the authorities in 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 non­allopathic doctors w.e.f. 27.09.2017 in tune with the Ministry’s order dated 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 circumstances of each case. For the Bench Justice S. B. Sinha in “17. Before adverting to the decisions relied 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 spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago 15. The above ratio in Uday Narain Pandeyis however not 21 SCC 479 the factual matrix. In the cited case the respondent­worker had not 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 16. The learned senior counsel for appellant by placing reliance the hospitals on the strength of the Court’s interim order. Such principle ‘Actus Curiae Neminem Gravabit’. Explaining the principle Justice B. S. Chauhan speaking for this court in Kalabharati 39 SCC 437 “15. …The maxim "Actus Curiae neminem gravabit" which means that the act of the Court act of the Court. Thus any undeserved or unfair advantage gained by a party invoking the 17. Bearing in mind the above legal principle the Interim order of 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 18. This Court in case of Central Electricity Supply Utility of Odisha 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 41 SCC 161 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 pay it as per the terms and conditions of the In the case of New Okhla Industrial Development Authority Anr. vs. B. D. Singhal & Ors.5 this Court while dealing with a State Government order dated 30th September 2012 which extended salary to respondent employees who had retired on 31st August 2012 have no application in the present appeals since facts are be considered. Firstly the Allahabad High Court retrospectively from 29th June 2002 i.e. the day on which recommendation for 5 2021 SCC OnLine SC 466 C.A. No. 23121 at hand on 31.05.2016 a notification was issued which was expeditiously implemented arrears of salary were disallowed because the respondent­employees 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 respondent­doctors 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 Industrial Development Authority cannot in our In these matters for almost 5 years the respondent doctors have been providing service to countless patients without 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 countenanced as a fair submission by the State’s counsel. The principle of ‘No Work No Pay’ protects employers from paying their 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 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 respondent­doctor the employer who created impediments and did not allow the 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 Uttar Pradesh6 where this Court speaking through Justice S. J “48. … If an employee is prevented by the principle of “no pay no work” shall not be 22. The common contention of the appellants before us is that appeal to us and we are inclined to agree with the findings of the Tribunal and the Delhi High Court that the classification is 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 67 SCC 595 is in tune with the notification of Ministry of Health and Family 23. The doctors both under AYUSH and CHS render service to dated 24.11.2017 must be doctors in the present appeals. All consequences must follow from paying the respondent doctors their due salary and benefits while must be seen as discriminatory. Hence we have no hesitation in holding that the respondent­doctors are entitled to their full salary today. Belated payment beyond the stipulated period will carry payment. It is ordered accordingly. The appeals are disposed of in

Summary: 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. This was decreed by the Hon’ble Justice L. Nageshwara Rao and Hon’ble Justice Hrishikesh Roy in the case of North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma &amp; Ors. [Civil Appeal No. 4578 of 2021] on the 03rd of August 2021, before the Hon’ble Supreme Court of India. The brief facts of the case are, the Government of India, Ministry of Health and Family Welfare issued the order dated 31.05.2016, with immediate effect, enhancing up to 65 years, the age of superannuation of the specialists of Non­teaching and public health sub­cadres of CHS and GDMOs of CHS. The ayurvedic doctors were not seen to have been covered by the Ministry’s order dated 31.05.2016. 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 Non­teaching and public health sub­cadres of CHS and GDMOs of CHS. By the common final order dated 24.08.2017, the Tribunal accepted the discrimination argument advanced by the ayurvedic doctors vis­à­vis 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. 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 non­administrative positions. The counsel for the petitioner submitted 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’. 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. 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 vis­à­vis 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 non­allopathic doctors w.e.f. 27.09.2017, in tune with the Ministry’s order dated 31.05.2016. It was also submitted that the arrears must be cleared up since respondent­ doctors have been working continuously without break, pursuant to the Interim order of the Delhi High Court dated 26.09.2017.