Dismissed

State of U.P. Thru. Addl. Chief Secy. Finance Govt. of U.P. Civil Secrt. Lko. and Another v. Dr. Satya Pal Singh

Allahabad HC15 Mar 2023/272/2022

Case brief

AI extract

What is this about?

Special appeal filed by the State against the quashing of an order that denied special career progression benefits (SACP) to Ayurvedic medical officers, who argued they faced discrimination compared to Allopathic counterparts despite performing identical patient care duties.

What did the court decide?

Special appeal dismissed; no interference with the judgment and order dated 06.05.2022 passed by the learned Single Judge.

State of U.P. Thru. Addl. Chief Secy… — Pension and Retirement Benefits | Allahabad HC (2023)

RESERVED

Court No. - 2

Case :- SPECIAL APPEAL DEFECTIVE No. - 272 of 2022 Appellant :- State Of U.P. Thru. Addl. Chief Secy. Finance Govt. Of U.P. Civil Secrt. Lko. And Another Respondent :- Dr. Satya Pal Singh Counsel for Appellant :- C.S.C. Counsel for Respondent :- Avinash Tiwari

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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1. Heard learned counsel for the parties.

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2. Having regard to the averments made in the affidavit filed in support of the application seeking condonation of delay, we are satisfied that delay in filing the special appeal has sufficiently been explained.

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3. Accordingly, the application is allowed and delay in filing the special appeal is hereby condoned.

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4. Proceedings of this special appeal under Chapter VIII Rule 5 of the Rules of the Court have been instituted whereby the judgment and order dated 06.05.2022 passed by the learned Single Judge in Writ-A No.32882 of 2019 has been questioned. At this juncture itself we may observe that filing of Writ-A No.32882 of 2019 the respondent-petitioner had challenged the order dated 28.03.2017 passed by the State Government whereby his claim for giving him the benefit of Dynamic/Special Assured Career Progression (herein after referred to as 'SACP') was rejected.

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5. The order dated 28.03.2017 was passed by the State Government in compliance of an order dated 13.01.2017 passed by this Court in Writ Petition No.834 (S/B) of 2017. By

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the said order dated 13.01.2017 this Court permitted the respondent-petitioner to make a representation to the State Government in respect of his grievances relating to the benefit of SACP and the State Government was thus directed to take a decision on such representation. Writ Petition No.834 (S/b) of 2017 was finally disposed of by the said order dated 13.01.2017.

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6. The claim put forth by the respondent-petitioner before the State Government in pursuance of the order dated 13.01.2017 passed by this Court in Writ Petition No.834 (S/B) of 2017 related to grant of the benefit of SACP as has been made available to the officers of the Provincial Medical and Health Services (herein after referred to as 'PMHS'). It has been urged by the learned counsel representing the respondentpetitioner that by making the representation pursuant to the order dated 13.01.2017 passed by this Court, as referred to herein above, since the petitioner and other Medical Officers who are working on the post of Medical Officers (Ayurvedic) have been performing the same duties and functions and their minimum eligibility qualification is also the same as that of the members of PMHS, he prayed that he should also be made available the benefit of SACP, which was provided to the members of PMHS by means of the order dated 14.11.2014.

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7. The claim of the respondent-petitioner was, however, rejected by the State Government by passing the order dated 28.03.2017 which, as observed above, became the subject matter of challenge before the learned Single Judge in Writ-A No.32882 of 2019 and by the order under challenge before us in this special appeal dated 06.05.2022 passed in the said writ petition the order dated 28.03.2017 passed by the State

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Government has been quashed and it has further been directed that SACP which has been implemented by the Government Order dated 14.11.2014 shall be applicable to the Medical Officers of other streams (including the Medical Officers working in Ayurvedic System of Medicine).

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8. Learned State Counsel representing the appellants-State authorities has vehemently argued that the respondentpetitioner is not entitled to the benefit of SACP and further that the petitioner and other similarly placed Medical Officers (Ayurvedic) working under the State Government have not been discriminated with their counterparts working as Medical Officer in Allopathic System of Medicine for the reason that nature of duties, responsibilities and treatment being provided by the members of PMHS are entirely different than those of their counterparts working in Ayurvedic i.e. the Medical Officers (Ayurvedic). It has also been contended by the learned counsel representing the appellants-State authorities that the members of PMHS perform certain functions and duties which the Medical Officers (Ayurvedic) are not supposed to perform such as medico legal work and complicated surgeries. It has also been stated by the learned counsel representing the appellants-State authorities that the Medical Officers (Ayurvedic) are being provided the benefit of Assured Career Progression (ACP) as is available to other Government employees of State of Uttar Pradesh and hence keeping this fact in view it cannot be said that the petitioner or similarly circumstanced Medical Officers (Ayurvedic), have in any, manner been discriminated. It has, thus, been argued by the learned counsel representing the appellants-State authorities that the learned Single Judge has wrongly returned a finding

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that the petitioner and other Medical Officers (Ayurvedic) have been discriminated vis-a-vis the members of PMHS for the reason that the functions being performed by the Members of PMHS are different than those being performed by the Medical Officers (Ayurvedic).

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9. Emphasis by the learned counsel representing the appellants-State authorities in this special appeal is that the reason for grant of the benefit of SACP to the members of PMHS can be found in the Government Order dated 14.11.2014 which are germane only in respect of the Medical Officers working in Allopathic System of Medicine and as such the ground of discrimination is not available to the respondent-petitioner. His submission, thus, is that drawing comparison between the Medical Officers (Ayurvedic) and the members of PMHS is highly misplaced. His further submission is that the benefit of Assured Career Progression available to other government employees has, indisputedly, been made available to the Medical Officers (Ayurvedic) and as such the discrimination being pleaded by the Medical Officers (Ayurvedic) is not sustainable. Giving the reason for the alleged non-sustainability of discriminatory treatment meted out to the Medical Officers (Ayurvedic), it has been argued on behalf of the appellants-State authorities that the Medical Officers working in Allopathic System of Medicine form a distinct class for the reason that they perform certain duties and functions such as medico legal work and complicated surgeries which the Medical Officers (Ayurvedic) do not perform. In this view, submission is that the finding recorded by the learned Single Judge in the judgment and order under appeal that the Medical Officers (Ayurvedic) have been

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discriminated vis-a-vis the Medical Officers working in the Allopathic System of Medicine is not sustainable.

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10. On the aforesaid counts, learned State Counsel, thus, urges that the judgment and order passed by the learned Single Judge is not sustainable and hence this special appeal is liable to be allowed.

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11. Refuting the arguments made by the learned State Counsel representing the appellants-State authorities, learned counsel appearing for the respondent-petitioner has vehemently argued that since the Medical Officers of both the streams, the Allopathic System of Medicine and Ayurvedic System of Medicine perform the same function i.e. treating the patients as such they cannot be treated differently. It has, further, been argued by the learned counsel representing the respondentpetitioner that in fact duties and functions being performed by the Medical Officers (Ayurvedic) are the same as are being performed by the members of the PHMS for the reason that both are supposed to treat the patients. His further submission is that only because of difference in mode of treatment by the doctors of these two different streams or different systems of medicines, it is not reasonable to differentiate them in the matter of providing the benefit of SACP. Based on the aforesaid submissions, it has been urged by the learned counsel representing the respondent-petitioner that that the special appeal deserves to be dismissed.

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12. We have given our thoughtful consideration to the rival submissions made by the learned counsel for the parties and have also gone through the records available before us on this special appeal.

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13. The SACP as embodied in the Government Order dated 14.11.2014 provides for upgradation of pay on completion of 4, 11, 17 and 24 years of satisfactory service. This scheme has been made applicable w.e.f. 01.12.2008. Whereas, so far as the respondent-petitioner who belongs to a different System of Medicine, namely, Ayurvedic System of Medicine, is entitled to general Assured Career Progression (ACP) scheme which is applicable to all government servants as is embodied in the Government Order dated 04.05.2010. According to this scheme all categories of government employees are entitled to upgradation of pay on completion of 10, 18 and 26 years of service. The ACP scheme applicable to all government employees was modified by means of the Government Order dated 05.11.2014 wherein it was provided that they shall be entitled to upgradation of pay on satisfactory completion of 8, 16 and 24 years of service. Thus, so far as the members of PMHS are concerned, they have been provided different scheme for Career Progression known as SACP, whereas the respondent-petitioner has been provided the benefit of general Assured Career Progression scheme applicable to all other government servants. The general ACP Scheme offers upgradation of higher scale of pay only to those eligible government servants who are deprived of regular promotion to higher post for some reason. The scheme, thus, compensates such deprived lot of government servants by grant of monitory benefit on personal basis which does not amount to regular promotion and also does not require creation of availability of any new posts. The financial upgradation, thus, is available only if regular promotion during the prescribed period is not availed by the government servants.

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14. Learned Single Judge while rendering the judgment and order under appeal before us has observed that it is admitted by the State Government that the Medical Officers (Ayurvedic) are inducted on the same pay scale/pay band and pay grade at the entry level in service, however, in the case of members of PMHS, different pay scale is admissible depending on their specialization on super speciality/qualification. Learned Single Judge has further arrived at a conclusion that the respondentpetitioner is not claiming equal pay for equal work or the pay scale/band and or pay grade admissible to the specialist or super specialist working in the Allopathic System of Medicine; rather his claim is confined to the benefit of SACP which has been made applicable to a class of Medical Officers (namely those who are working in the Allopathic System of Medicine) which has resulted in exclusion of the said benefit to the Medical Officers working in other Systems of Medicine including Ayurvedic System of Medicine. The finding recorded by the learned Single Judge further is that concept of Assured Career Progression is based on the objective of removal of stagnation on a post and further that it is not based on the concept of equal pay for equal work. Learned Single Judge has further recorded a finding that the concept of ACP does not depend on the nature of duty being performed by the government servants; rather it is applicable to all government servants right from group-D employees to the highest ranked officers in a situation where such government servants face stagnation. However, what we find is that in case of members of PMHS which comprises of Medical Officers practising in the Allopathic System of Medicine the Special Assured Career Progression Scheme has been made applicable and such

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scheme excludes other Medical Officers practising other Systems of Medicine.

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15. Submission made by the learned State Counsel that classification of Medical Officers (Ayurvedic) and Members of PMHS is reasonable for the purposes of grant of SACP, having due regard to their qualification and nature of duties, has not been accepted by the learned Single Judge. In our opinion, the learned Single Judge appears to be correct while recording the finding that such classification is discriminatory and unreasonable for the reason that the Medical Officers of both the streams, namely, Ayurvedic System of Medicine and Allopathic System of Medicine primarily perform the same function i.e. patient care or treatment of patients. We are also of the opinion that the difference in the mode of treatment in different Systems of Medicines cannot be construed as an intelligible differentia as the basic function of both these classes of Medical Officers is treatment of patients. Learned Single Judge has, thus, rightly recorded a finding that the Medical Officers of both the streams i.e Ayurvedic stream and Allopathic stream render medical services to the patients and on this aspect there is nothing tangible to distinguish them. Reference in this regard may be made to a judgment of Hon'ble Supreme Court in the case of North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma and others, (Civil Appeal No.4578 of 2021) wherein discrimination in the age of superannuation of Medical Officers vis-a-vis Dentist and doctors of other streams including the Doctors of Ayurvedic System of Medicine, was not found permissible under law. Hon'ble Supreme Court in the said case of North Delhi Municipal Corporation (supra) has opined that the doctors of

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both the streams render service to the patients and on this aspect, there is nothing to distinguish them. It has further been held by Hon'ble Supreme Court that no rational justification can be seen to having different schemes for bestowing the benefit of extended age of superannuation to these two categories of doctors.

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16. Learned Single Judge while arriving at his conclusions has relied upon the judgment of Hon'ble Supreme Court in the case of North Delhi Municipal Corporation (supra).

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17. Learned Single Judge has also referred to a judgment of Hon'ble High Court of Uttarakhand in the case of Dr. Sanjay Chauhan and others vs. State of Uttarakhand and others, [Writ Petition No.484 of 2014 (S/B)] where the issue was as to whether the Medical Officers appointed in AYUSH (Ayurved, Unani, Siddha and Homeopathic System of Medicine) on contractual basis could be discriminated vis-a-vis the doctors appointed in Allopathic stream in the matter of salary. Hon'ble High Court of Uttarakhand has held that such classification made by the State of Uttarakhand was irrational for the reason that the duties discharged by Ayurvedic doctors vis-a-vis Allopathic Medical Officers and Dental Medical Officers are of equal sensitivity and quality and further the responsibility and reliability are the same.

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18. It is to be noticed that the said judgment of Hon'ble High Court of Uttarakhand was challenged before the Hon'ble Supreme Court by filing Special Leave to Appeal (C) No.33645 of 2018 which was dismissed by means of an order dated 24.03.2022. Hon'ble Supreme Court in the said case while dismissing the SLP filed by the State of Uttarakhand has

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clarified that Ayurvedic doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission.

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19. As observed above, it is not a case where respondentpetitioner and other Medical Officers working in Ayurvedic System of Medicine are claiming equal pay for equal work and hence judgment cited by the learned State Counsel before the learned Single Judge in the cases of Mewa Ram Kanojia vs. All India Institute of Medical Sciences and others, (1989) 2 SCC 235 , State of Madhya Pradesh vs. R.D. Sharma and others, Manu/SC/0098/2022, Dr. Puneet Kumar Gupta and another vs. Union of India through Secy. Ministry of Health and Family and others, (Service Bench No.738 of 2015), S.C. Chandra and others versus State of Jharkhand and others,(2007) 8 SCC 279, has rightly not been relied upon by the learned Single Judge giving the reason that the aforesaid judgments related to the principle of equal pay for equal work which has no application to the facts of the present case. We also notice that the learned Single Judge has given a categorical finding that comparison in respect of qualification, course of study/syllabus, nature of duty and responsibility etc. as is being sought to be pressed by the State Government to treat the members of PHMS being superior to other Medical Officers serving in certain Systems of Medicine other than Allopathy, is misconceived and unfounded so far as it concerns conferment of the benefit of SACP.

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20. Nothing has been brought to our notice which may persuade us to take a view other than the view taken by the learned Single Judge while passing the judgment and order under appeal before us.

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21. For the reasons aforesaid, we do not find any good ground to interfere with judgment and order dated 06.05.2022 passed by the learned Single Judge in Writ-A No.32882 of 2019.

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22. The special appeal is hereby dismissed.

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23. However, there will be no order as to costs.

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Order Date :- 15.3.2023 akhilesh/

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(Saurabh Srivastava, J.) (D. K. Upadhyaya, J.)

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Digitally signed by :- AKHILESHWAR KUMAR High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Addl. Chief Secy. Finance Govt. of U.P. Civil Secrt. Lko. and Another v. Dr. Satya Pal Singh

Case brief

What is this about?

What did the court decide?

State of U.P. Thru. Addl. Chief Secy. Finance Govt. of U.P. Civil Secrt. Lko. and Another v. Dr. Satya Pal Singh

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