Kh. Nobin Singh DECISION
Kh. Nobin Singh, J.
1. Heard Ms. Th. Babita, learned counsel appearing for the petitioners; Shri K. Jagat, learned Government Advocate for the State respondents and Shri S. Vijayanand, learned Senior panel counsel for the Union of India.
2. By the instant writ petition, the petitioners have prayed for issuing a writ of mandamus to maintain a parity of pay between the AYUSH doctors and the allopathic doctors working in the State Health Mission Society, Manipur under the NRHM on the principle of 'equal pay for equal work'.
3.1 Facts and circumstances as narrated in the writ petition, are that the National Rural Health Mission (hereinafter referred to as "the NRHM") was launched in the month of April, 2005 by which an innovative concept of mainstreaming AYUSH (an acronym of six Indian System of Medicine, say, Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy prevalent and practiced in India) was developed and introduced into the health care system by collocating AYUSH doctors along their counter parts of allopathic doctors at various health facility centres, say, District Hospitals, Community Health Centres, Primary Health Centres etc. in the country. The NRHM was implemented in all the States and Union Territories of India by establishing State Health Mission Societies under the aegis of Health and Family Welfare Departments of the respective States and Union Territories with the Central funding from the year, 2006. In the State of Manipur, the Director of Family Welfare Services, Manipur, at the relevant point of time, was the Mission Director of the State Health Mission Society, Manipur.
3.2 An Advertisement dated 19.06.2006 was issued by the State Mission Director/the Director (FW), Government of Manipur inviting applications from amongst the eligible candidates for appointment to various posts including AYUSH doctor and in response thereto, the petitioners applied for it and on the recommendation of the DPC, the petitioners were appointed as AYUSH doctors on contract basis for a period of 11 months at a consolidated pay of Rs. 15,000/- vide orders dated 27.10.2006 and 14.12.2007 under the State Health Mission Society, Manipur. The period of their appointment on contract basis was extended from time to time and the petitioners are still continuing in that capacity. As per the Advertisement, the consolidated pay of both the AYUSH doctors with degree in AYUSH and the allopathic doctors with MBBS was fixed equally at Rs. 15,000/- p.m. and a consolidated amount of Rs. 18,000/- in respect of Physicians with MD/DNB; Surgeons with MS/DNB; Obst & Gynae with MD/MS/DNB/DGO; Pediatrician with MD/NDB/DCH; Anesthetist with MD/DNB/DA Public Health Specialist with MD/DPH/DNB and AYUSH Specialist with PG Degree in AYUSH. The Memorandum dated 25.05.2009 also clearly shows that the AYUSH doctors and the Allopathic doctors were given the same consolidated pay under the State Health Mission Society, Manipur without any disparity in pay/honorarium between the doctors of the two streams. The medical officers of both the AYUSH and the allopathic streams, working in State Health Mission Society, Manipur under NRHM, perform or render the same or similar work.
3.3 Being apprehensive of a decision being taken as regards the disparity in pay, the All Manipur AYUSH Doctors Association, Manipur submitted a Memorandum dated 13.03.2010 to the Hon'ble Union Minister of Health and Family Welfare, Government of India, with copies endorsed to the concerned authorities, requesting him to maintain parity of pay of AYUSH doctors with that of allopathic doctors working under the NRHM, Manipur. On receipt of a copy of the representation, the Hon'ble Chief Minister, Manipur, in its UO note dated 12-04-2010, informed the Chief Secretary, Manipur to put up the matter before the Governing Body, NRHM for consideration. On 14-06-2010, the State Mission Director, State Health Society, Manipur wrote a letter to the Mission Director, NRHM, Ministry of Health & FW, Government of India informing that the unequal salary structure in Manipur had led to discontentment among the AYUSH doctors, followed by a D.O letter dated 17-06-2010 of the Hon'ble Chief Minister, Manipur requesting the AS & MD, Mission Director, NRHM, Ministry of Health & FW, Government of India to look into the matter and convey the approval for payment of equal remuneration to AYUSH doctors and the allopathic doctors. Without paying any heed to the request, the State Mission Director, State Health Society, Manipur issued an order dated 23-06-2010 granting different pay from the year 2010-2011 with the result that the AYUSH doctors with decree holder were given consolidated pay of Rs. 18750/- pm while allopathic Doctors with MBBS degree holder were given consolidated pay of Rs. 30,000/- per month. On 23-08-2010, the Deputy Secretary (Health & FW), Government of Manipur addressed a letter to the State Mission Director, NRHM, Manipur informing that the Secretary to the Government of India, Ministry of Health & FW, Department of AYUSH had intimated that the matter relating to wage disparity between AYUSH doctors and allopathic doctors be looked into considering the service rendered by the AYUSH doctors in far flung and difficult areas. As early as on 03.01.1991, the Government of India, Ministry of Health & Family Welfare, New Delhi had already communicated to all the Health Secretaries/Directors of ISM & Homeopathy in States and Union territories that having accepted the recommendation of the central Council of Homeopathy, no disparity in the pay scale was maintained among the physicians. Since the authority didn't take any positive action for grant of equal pay, the All Manipur AYUSH Doctors Association, Manipur submitted further representations dated 11.07.2016, 14.05.2018 and 03.10.2018 requesting to extend the benefit of 'equal pay for equal work' to AYUSH Doctors but to no effect, even though the Director AYUSH, Government of Manipur vide its letter dated 01.09.2018 has proposed to the Principal Secretary (Health & Family Welfare AYUSH), Government of Manipur for giving equal pay to AYUSH doctors with that of allopathic doctors. Recently, the State Health Society, Manipur issued a Memorandum dated 22.10.2018 rationalizing the said salary of the MBBS doctors under NHRM but it didn't state anything about the rationalization of pay of the AYUSH doctors resulting in the deprivation of 'equal pay for equal work' and therefore, the inaction on the part of the authority is not only arbitrary, whimsical but also discriminatory which is violative of Article 14, 16 and 21 of the Constitution of India. In addition thereto, the allopathic doctors with MBBS degrees and the AYUSH doctors with degree in Homeopathy, Nature Cure, Ayurvedic and Unani appointed as Medical Officers under the Manipur Health Service Rules, 1982 are placed in the same grade, ie., Grade-IV and doctors of both the streams are given the same pay under the Manipur Services (Revised Pay) Rules, 2010. Being aggrieved by the inaction on the part of the authorities, the instant writ petition has been filed by the petitioners.
4. No counter affidavit on behalf of the State respondents has been filed and therefore, the averment made in the writ petition shall be deemed to have been admitted by them. So far as the Union of India is concerned, an affidavit has been filed on its behalf wherein it has been stated that the Public Health and hospitals is a State subject being placed in Entry 6 of the List II of Seventh Schedule of the Constitution of India. The NRHM was launched in the year, 2005 with an initiative undertaken by the Government of India to supplement the efforts of the States in addressing the health care needs of underserved rural population by providing accessible, affordable and quality health care to them. The National Health Mission is a Mission with a number of programme/interventions under its umbrella and although it was initially launched for a period from 2005 to 2012, it has been extended till 2020. It is not a permanent programme and requires periodic approval of the Government for continuation. It does not substitute the expenditure to be borne by States/UTs on health care and it only supplements efforts of the State Governments. Therefore, it is open to the States/UTs to augment the NHM efforts from their own resources. It is the State Governments who are responsible for engagement of HR, payment of remuneration to them etc. Moreover, the petitioners were neither appointed nor were they paid by the Union of India. There is no privity of contract between the petitioners and the answering respondent and therefore, the answering respondent is not a necessary party in the present petition. Petitioners were appointed on contract basis for which an agreement was entered into between them and therefore, the petitioners are bound to follow the terms and conditions enumerated & stipulated in their contract. There are no terms and conditions which bound the State of Manipur to follow parity in salary of the AYUSH medical officer with the allopathic medical officer. The demand of the petitioners is beyond the terms and conditions of their contract. The principle of 'equal pay for equal work' would not be applicable in the instant case as their duties and responsibilities are not similar. The nature and scope of work of AYUSH doctors and the MBBS doctors as well as prescribed qualifications are different. They operate under different system of medicine. They are registered with and regulated by their respective Councils. The AYUSH doctors are placed at facilities to provide AYUSH treatment and not the treatment based on modern system of medicines. Most of the services envisaged at PHCs and CHCs, such as provision of immunization, prescription of modern medicines and any other services based on modern system of medicine are to be provided only by qualified MBBS doctors. There is no policy under the National Health Mission, of equal honorarium to AYUSH medical officer and allopathic medical officers and therefore, the difference in salary is justifiable and is not arbitrary.
In support of their contention, the Union of India has relied upon the decision rendered by the Allahabad High Court in Dr. Puneet Kumar Gupta and Another vs. Union of India in WP(C) No. 738 of 2015(S/B) wherein it has been held as under:-
"19. Considering the qualification and duties as shown in the chart and advertisement, we are of the view that the work and qualification of the Ayush doctors are different from other MBBS or BDS doctors. The mere fact that they were doing work similar to other doctors cannot be treated as sufficient for applying the principal of equal pay for equal work. Any direction by the Court with the aid of Article 226 of the Constitution of India would burden the exchequer relating to financial and policy matter and interference in the policy decisions though the order in question does not suffer from any legal or constitutional infirmity and it is not possible to entertain the plea of the petitioners for payment of pay or honorarium or other monetary benefits at par with other employees of other cadre having separate eligibility criteria for appointment by complying the principle of equal pay for equal work."
5. From the pleadings as aforesaid, the short question that arises for consideration by this court is as to whether the AYUSH doctors are entitled to the same pay being given to the allopathic doctors on the principle of 'equal pay for equal work'. In other words, whether both the AYUSH doctors and the allopathic doctors are similarly situated so as justify the claim of the AYUSH doctors that they be allowed to enjoy the same pay being enjoyed by the allopathic doctors.
6. The aforesaid question involved herein needs to be decided on the basis of the materials placed on record. It has been submitted by Ms. Babita Th. that at the time of issuing the advertisement, there was no difference as regards the pay between the AYUSH doctors and the allopathic doctors. The difference in pay came to be made only after the rationalization of pay in respect of some posts including the allopathic doctors but excluding the AYUSH doctors. It has been further submitted by her that as early as on 03-01-1991, the Ministry of Health & FW, Government of India, through its letter addressed to State/UTs, had informed that it had accepted the recommendation of the Central Council of Homeopathy; that no disparity in the pay scales was maintained amongst the physicians belonging to different systems of medicine and having completed a degree course and that since the AYUSH doctors and the allopathic doctors have been treated at par in the Manipur Health Services Rules, 1982 as amended vide Notification dated 20-11-2015, they are given the same pay in terms of the Manipur Services (Revised Pay) Rules, 2010. On the other hand, relying upon the averments made in the affidavit filed on behalf of the Union of India, Shri Vijayanand has submitted that the AYUSH doctors and the allopathic doctors are not similarly situated and therefore, the principle of 'equal pay for equal work' will have no application for the reason that the duties and responsibilities are not similar; that the work and qualification are different; that the nature and scope of work are different; that they work under different system of medicine and that they are regulated by different Councils.
7. Adverting to the above submissions of the learned counsel appearing for the parties, it is seen that the ancillary issue that falls for consideration by this court, is as to what is the nature of duties and responsibilities which are different between the AYUSH doctors and the allopathic doctors. According to the petitioners, they perform or render the same work being performed by the allopathic doctors but the details thereof as to how they claim that they perform or render the same work, are not averred in the writ petition. In other words, there is no any averment about the nature of duties being performed by them. The stand of the Union of India is that both the AYUSH doctors and the allopathic doctors are practicing different system of medicine, in the sense that while the AYUSH doctors merely provide AYUSH treatment which is not based on modern system of medicine, the service based on modern system of medicine like immunization, prescription of modern medicine etc., are to be provided by the qualified MBBS doctors. The stand of the Union of India appears to have some force and merit to the extent that there is a slight difference in the discharge of their duties. Moreover, it has relied upon the decision of the Allahabad High Court rendered in Dr. Puneet Kumar Case (supra) wherein it has been observed that the mere fact that they were doing work similar to that of other doctors, cannot be treated as sufficient for applying the principle of 'equal pay for equal work'. But it may be noted that this court is not bound by the decision of any other High Court except its persuasive value. The counsel appearing for the petitioners has not brought to the notice of this court any decision rendered by the Hon'ble Supreme court to substantiate her contention.
8. There are certain circumstances which need to be considered by this Court in order to resolve the present controversy. The learned counsel appearing for the petitioners appears to be right when she submits that in the Manipur Health services Rules, 1982 as amended in the year, 2015, both the AYUSH doctors and the allopathic doctors have been shown in the same grades and they are allowed to draw the same salary under the provisions of Manipur Services (Revised Pay) Rules, 2010. The said rules are made by the expert body after taking into account all relevant factors and even the nature of duties and responsibilities to be performed by both the AYUSH doctors and the allopathic doctors, might have been considered by the expert body while making the said rules, otherwise there is no reason as to why both the doctors of two streams be put in the same grades and be allowed to draw the same salary. Moreover, the Government of India took a similar stand when it wrote the letter dated 03-01-1991 to the States/UTs that it accepted the recommendation of the Central Council of Homeopathy and that no disparity in the pay scales was maintained amongst the physicians belonging to different systems of medicine and having completed a degree course. The Government of India being an institution, such a letter might have been written on certain and reasonable basis. However, this stand of the Government of India was sought to be explained in the affidavit stating that it was meant for the physicians who were appointed after following due process of appointment and were/are working under the Ministry on permanent roll and it was never meant for contractual employees appointed by the State authorities. The fixation of pay for the regular employee differently from that of the contract employees is understandable but to say that the nature of duties of a doctor working on regular basis will be different from a doctor working on contract basis, is illogical and irrational because the system of medicine will remain the same depending upon the type of system of medicine being practiced by a particular doctor. In other words and for instance, the duties and responsibilities of an MBBS doctor working on regular basis cannot be different from that of MBBS doctor working on contract basis. Since the nature of appointment being different, they are given different pay. Similar is the case with the AYUSH doctors. It is evident from the letter dated 14-06-2010 addressed to the Mission Director, NHRM, Ministry of Health & FW, Government of India by the State Mission Director, State Health Society, Manipur that in several States, equal salary/pay is given to both the AYUSH doctors and the allopathic doctors. It means that the equal pay might have been given by those States on certain basis and that it cannot be said that the payment of equal pay to both the AYUSH doctors and the allopathic doctors is impossible and impermissible at all. Moreover, in the letter dated 23-08-2010 of the Deputy Secretary (Health & FW), Government of Manipur addressed to the State Mission Director, NRHM, Manipur, it has been stated that the Secretary to the Government of India, Ministry of Health & FW, Department of AYUSH had intimated that the matter relating to wage disparity between AYUSH doctors and allopathic doctors be looked into considering the service rendered by the AYUSH doctors in far flung and difficult areas. Therefore, it appears that while considering the rationalisation of pay of various posts including that of the allopathic doctors and in particular, that of the AYUSH doctors, the said circumstances have not been taken into account by the authority. In this regard, the averments made in the affidavit of the Union of India are relevant wherein it has been stated that the public health being the State subject, it is open to the State Government to augment NHM effects from their own resources and that the payment of remuneration falls under the domain of the State Government. From these averments, it is seen that there is no bar or prohibition on payment of equal pay despite difference as regards the duties and responsibilities but it depends upon the wisdom of the State Government. So far as the State Government is concerned, it is unfortunate that its stand is not made known to this court because despite number of opportunities being given to it, no counter on its behalf was filed. Thus, it is clear that it is the State Government which has not taken keen interest towards the payment of equal pay to the AYUSH and allopathic doctors. The State Government being an institution, ought to act fairly and reasonably and to see that they are treated equally keeping in mind the provisions of the Manipur Health Services Rules, 1982, as amended in the year, 2015 and the Manipur Services (Revised Pay) Rules, 2010.
9. In view of the above, the instant writ petition is disposed of with the direction that the State Government and in particular, the respondent No. 3, the State Health Mission Society shall consider the cases of the AYUSH doctors and take appropriate steps to ensure that they are treated equally with the allopathic doctors as regards the payment of their pay in the light of the Manipur Health Services Rules, 1982, as amended in the year, 2015 and the Manipur Services (Revised Pay) Rules, 2010. The exercise shall be carried out within two months from the date of receipt of a copy of this judgment and order.
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