Dr. Rajesh Pandey vs State Of U.P. And Another
2023 Latest Caselaw 27201 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Reserved on 08.05.2023
 
Delivered on 05.10.2023
 
					Neutral Citation No. - 2023:AHC:194339
 

 
Case :- WRIT - A No. - 1051 of 2020
 

 
Petitioner :- Dr. Rajesh Pandey
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Narayan Dutt Shukla,R.C. Singh , Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. Heard Sri R. C. Singh, learned Senior Counsel assisted by Sri N. D. Shukla, learned counsel for the petitioner and Sri R. S. Umrao, learned Standing Counsel for the State-respondents.

2. The petitioner by means of present writ petition has assailed the order dated 25.10.2019 passed by Principal Secretary, Department of Labour- respondent No.1 rejecting the representation for grant of benefit of Special Assured Career Progression (for short 'S.A.C.P.') Scheme which has been made applicable for the doctors of Provincial Medical Health Service (hereinafter referred to 'P.M.H.S.'). Further direction has been sought to the respondent to extend the benefit of S.A.C.P. to the doctors of Employees State Insurance Scheme, Labour Medical Service U.P. in terms of Government Order dated 26.02.2015 from the date it has been made applicable to the doctors of P.M.H.S. i.e. w.e.f. December, 2008.

3. The petitioner is a doctor working under the Employees State Insurance Scheme, Labour Medical Services U.P. The Employees State Insurance Corporation (hereinafter referred to 'E.S.I.C.') has been established under Section 3 of the Employees State Insurance Act, 1948 (referred as E.S.I. Act, 1948) which comes under the Ministry of Labour, Union of India. The E.S.I.C. runs its hospitals and provides the medical services to the hospitals which are covered under E.S.I. Act, 1948. Further case of the petitioner is that before June, 1985, the services to the hospitals were provided through Provincial Medical and Health Services, U.P., but vide Government Order dated 10.06.1985 issued by the State of U.P., the P.M.H.S. was bifurcated and a new department namely Employees State Insurance Scheme, Labour Medical Service U.P. was created. The employees of Labour Medical Services are under the control of Labour Department of State of U.P. After the creation of new department under the Government Order dated 10.06.1985, the doctors of P.M.H.S. were required to submit their option as to whether they want to continue to work in the parent department or they want to be transferred to the newly created department namely Employees State Insurance Scheme, Labour Medical Service U.P. Certain doctors who have been working in P.M.H.S. opted to work in new department namely Employees State Insurance Scheme, Labour Medical Service U.P. with the hope that they would have better promotional avenues etc.

4. The further case of the petitioner is that all the employees including the petitioner working in Employees State Insurance Scheme, Labour Medical Service U.P. and Medical Officers working in the department of P.M.H.S. discharge the same duty and there is no difference in the nature of job, therefore, Doctors/Medical Officers of both departments namely Employees State Insurance Scheme, Labour Medical Service U.P. and P.M.H.S. stand on equal footing. It is further stated that whenever any benefit like revision or upgradation and sanction of new pay scale etc. were provided by the State Government to the Doctors of P.M.H.S., the same benefit are also extended to the Medical Officers/Doctors of Employees State Insurance Scheme, Labour Medical Service U.P. Even special allowances like Non-Practicing Allowance and Vehicle Allowance, which are given to doctors of P.M.H.S., are also given to the doctors of Employees State Insurance Scheme, Labour Medical Service U.P.

5. It appears that Central Government while accepting the recommendation of 6th Pay Commission resolved that Dynamic Assured Career Progression (hereinafter referred to 'D.A.C.P.') will be extended to Senior Administrative Grade (Grade Pay of Rs.10,000/- in PB-4) to all medical doctors. The doctors of the P.M.H.S. also inline with the Scheme of D.A.C.P. extended to the doctors of Central Government claimed that they may also be extended the benefit of D.A.C.P.

6. On demands of doctors of P.M.H.S., a committee was constituted which in its meeting held in October, 2014 resolved that the doctors of P.M.H.S., Government of U.P. shall not be entitled to D.A.C.P., however, they shall be given the benefit of S.A.C.P. The recommendation of the committee was accepted by the State of U.P., and consequently, the Secretary, State of U.P. wrote a letter dated 14.11.2014 to issue a Government Order by taking consent of Finance Department. Consequently, a Government Order dated 26.02.2015 was issued by the State Government extending the benefit of Special A.C.P. to the doctors of P.M.H.S. w.e.f. 1st December, 2008. The relevant extract of the Government Order dated 26.02.2015 is being reproduced hereinbelow:-

"प्रेषक,

अरविन्द नारायण मिश्र,

सचिव,

उ०प्र० शासन।

सेवा में,

महानिदेशक,

चिकित्सा एवं स्वास्थ्य सेवायें,

उ०प्र० लखनऊ।

चिकित्सा अनुभाग-2			                          लखनऊ- दिनांक 26 फरवरी, 2015
 
	विषयः- प्रादेशिक चिकित्सा एवं स्वास्थ्य सेवा संवर्ग (पी०एम०एच०एस० संवर्ग) के पदधारकों को ए०सी०पी० की विशिष्ट व्यवस्था की स्वीकृति।
 
महोदय,
 

उपर्युक्त विषय पर मुझे यह कहने का निदेश हुआ है कि मुख्य सचिव समिति द्वारा दी गयी संस्तुतियों पर प्रादेशिक चिकित्सा एवं स्वास्थ्य सेवा संवर्ग (पी०एम०एच०एस० संवर्ग) के पदधारकों के लिये ए०सी०पी० की विशिष्ट व्यवस्था निर्धारित करने का निर्णय लिया गया है। उक्त निर्णयानुसार राज्यपाल महोदय पी०एम०एच०एस० संवर्ग के लिये निम्नानुसार ए०सी०पी० की विशिष्ट व्यवस्था निर्धारित करने का स्वीकृति प्रदान करते हैः-

(1) पी०एम०एच०एस० संवर्ग में प्रथम स्तर के पद (वेतनमान रू० 8000-13500/समकक्ष वेतनमान/पुनरीक्षित वेतन संरचना में सादृश्य वेतन बैण्ड-3 एवं ग्रेड वेतन रू० 5400/-) पर नियुक्ति की तिथि से निम्न तालिका के स्तम्भ-2 में उल्लिखित सेवावधि पर उसके सम्मुख स्तम्भ-3 के अनुसार वैयक्तिक वेतन बैण्ड एवं ग्रेड वेतन अनुमन्य कराये जायेः-

क्र०सं०

पी०एम०एच०एस० संवर्ग में प्रथम स्तर के पद पर नियुक्ति की तिथि से नियमित रूप से की गयी सेवावधि।

ए०सी०पी० की विशिष्ट व्यवस्था के अन्तर्गत वैयक्तिक रूप से अनुमन्य वेतन बैण्ड एवं ग्रेड वेतन।

1.

04 वर्ष की नियमित निरन्तर संतोषजनक सेवा।

वेतन बैण्ड-3 (रू० 15600-39100) एवं ग्रेड वेतन रू० 6600/-

2.

कुल 11 वर्ष की नियमित निरन्तर संतोषजनक सेवा।

वेतन बैण्ड-3 (रू० 16600-39100) एवं ग्रेड वेतन रू० 7600/-

3.

कुल 17 वर्ष की नियमित निरन्तर संतोषजनक सेवा।

वेतन बैण्ड-4 (रू० 37400-67000) एवं ग्रेड वेतन रू० 8700/-

4.

कुल 24 वर्ष की नियमित निरन्तर संतोषजनक सेवा।

वेतन बैण्ड-4 (रू० 37400-67000) एवं ग्रेड वेतन रू० 8900/-

विशिष्ट ए०सी०पी० की व्यवस्था के अन्तर्गत वित्तीय स्तरोन्नयन की अनुमन्यता हेतु नियमित रूप से की गयी निरन्तर संतोषजनक सेवा को ही गणना में लिया जायेगा।

उपर्युक्त व्यवस्था के आधार पर संवर्ग में वेतन बैण्ड-3 एवं ग्रेड वेतन रू० 5400/-के पद पर सीधी भर्ती से नियुक्त कार्मिक को इस पद पर रहते हुये निर्धारित सेवावधि पूर्ण करने पर प्रथम, द्वितीय, तृतीय तथा चतुर्थ वित्तीय स्तरोन्नयन अनुमन्य होगा।

सीधी भर्ती के पद से संवर्ग में प्रथम पदोन्नति होने के उपरान्त केवल द्वितीय, तृतीय तथा चतुर्थ वित्तीय स्तरोन्नयन का लाभ देय रह जायेगा।

सीधी भर्ती के पद से संवर्ग में द्वितीय पदोन्नति होने के उपरान्त केवल तृतीय तथा चतुर्थ वित्तीय स्तरोन्नयन का लाभ देय रह जायेगा।

सीधी भर्ती के पद से संवर्ग में तृतीय पदोन्नति होने के उपरान्त केवल चतुर्थ वित्तीय स्तरोन्नयन का लाभ देय रह जायेगा।

सीधी भर्ती के पद से संवर्ग में चतुर्थ पदोन्नति प्राप्त होने के पश्चात किसी भी दशा में वित्तीय स्तरोन्नयन का लाभ अनुमन्य न होगा।

(2) ए०सी०पी० की उक्त विशिष्ट व्यवस्था पुनरीक्षित वेतन संरचना में दिनांक 1 दिसम्बर, 2008 से प्रभावी होगी। दिनांक 30 नवम्बर, 2008 तक पुनरीक्षित वेतन संरचना में सम्बन्धित पदधारको हेतु समयमान वेतनमान की पूर्व में निर्धारित विशिष्ट व्यवस्था ही लागू रहेगी।

(3) -----------------------------------------"

7. As the petitioner is also discharging the same duty as that of the doctors of P.M.H.S., therefore, the doctors of Employees State Insurance Scheme submitted a representation to the respondent for extending the same benefit. When the respondent did not pay any head to the representation of the doctors, a Writ Petition No.7905 of 2019 was filed seeking a direction to the State Government to extend the benefit of S.A.C.P. to them which writ petition was disposed off by this Court vide judgment dated 17.05.2019 directing the respondent to decide the representation of the petitioner. The representation of the petitioners has been rejected by the Principal Secretary vide order dated 25.10.2019 on the ground that the nature and work of the doctors of P.M.H.S. are more important since they work in rural areas where the doctors are not available and they discharge their duty continuously and due to this reason, to attract the doctors in the P.M.H.S., the benefit of S.A.C.P. has been extended, but the service and duty discharged by the doctors of E.S.I.C. are not equal and as demanding in comparison to the duty discharged by the doctors of P.M.H.S., therefore, the said benefit cannot be extended to the Medical Officers of E.S.I.C.

8. It is also averred in the writ petition that doctors of P.M.H.S. and doctors of E.S.I.C. possess same qualification and their procedure of appointment is also same and doctors of both the streams i.e. doctors of P.M.H.S. and doctors of E.S.I.C. discharge the same duty. It is also stated that the E.S.I.C. dispensaries are also located in the rural areas and doctors working under the E.S.I.C. are also treating the outdoor patient and indoor patient and besides this, in emergency the doctors of E.S.I.C. also make domiciliary visit to see the patient on their residence on their request. The E.S.I.C. doctors also do the other work like certification work for E.S.I. Corporation for providing benefit under the E.S.I. Act. It is stated that the doctors working under the E.S.I. Scheme discharge the same duty as that of doctors of P.M.H.S. and their work is no less important than work and duty discharged by the doctors under P.M.H.S. and they stand on the same footing as the doctors of P.M.H.S., therefore, Medical Officers of E.S.I. are also entitled to the benefit of S.A.C.P.

9. Counter affidavit has been filed by the State of U.P. stating that any decision pertaining to sanction of salary and allowances of government employees are taken by the Financial Department, Government of U.P., Lucknow. The claim of officers of E.S.I. seeking the benefit of D.A.C.P. like officers of P.M.H.S. was referred to the Finance Department, Government of U.P., Lucknow, and the Finance Department was of the view that as the duties discharged by the doctors under the P.M.H.S. are more important and challenging than the doctors of Employees State Insurance Scheme, Labour Medical Service U.P., therefore, the benefit of Special A.C.P. cannot be extended to the doctors of Employees State Insurance Scheme, Labour Medical Service U.P.

10. It is further stated that the doctors of P.M.H.S. work in difficult circumstances in rural and remote areas, therefore, the provision of S.A.C.P. has been extended to them to attract the competent medical officers in P.M.H.S. It is further stated that since the duties and function of officers of P.M.H.S. are much harder and difficult than the officers of E.S.I., therefore, the denial of benefit of S.A.C.P. to the petitioner vide order dated 25.10.2019 is just and proper. It is further stated that the benefit of A.C.P. after completion of 10, 16 & 26 years is available to the employees of E.S.I.

11. The petitioner has also filed rejoinder affidavit denying the averments made in the counter affidavit and reiterating the averments made in the writ petition.

12. Challenging the impugned order, learned Senior Counsel for the petitioner has submitted that prior to 1985, doctors of P.M.H.S. were also treating the patients covered under the E.S.I. Act, 1948, however, after creation of new department namely Employees State Insurance Scheme vide government order dated 10.06.1985, the new department namely State labour Medical services U.P. was carved out under the control of Department of Labour of State of U.P. It is contended that after the creation of new department, the doctors who were working in the P.M.H.S. were given an option to join the new department, and some of the doctors considering the fact that they would have better avenues of promotion joined the new department. It is submitted that duties performed by the doctors of Employees State Insurance and doctors of P.M.H.S. are same as the duty of doctors of both the stream is to treat patient.

13. It is further contended that doctors working under Employees State Insurance Scheme, Labour Medical Service U.P. are working continuously for long hours and they are also giving domiciliary visit on the residence of the patient on their request. It is further submitted that the doctors working under Employees State Insurance Scheme, Labour Medical Service U.P. see outdoor patient, indoor patient and are also working in rural areas as the E.S.I. dispensaries are also situated in the rural areas. Accordingly, it is submitted that treating doctors of P.M.H.S. & E.S.I. differently on the ground that the duties of doctors of P.M.H.S. are harder and difficult than the doctors working under the Employees State Insurance Scheme, Labour Medical Service U.P. is wrong. Accordingly, it is submitted that the action of the respondent in treating the doctors of the two streams who are on par with each other so far as the duties discharged by them are concerned incongruously is hit by Article 14 of the Constitution of India, and therefore, the impugned order is not sustainable in law and is liable to be set aside. Learned counsel for the petitioner in support of his submission placed reliance upon two judgments in the cases of Dr. Om Prakash Gupta and another Vs. State of U.P. Through Principal Secretary Department of Finance, Lucknow and another, 2022 (5) WC 4121 and North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma and Ors., AIR 2021 SC 3795.

14. Per contra, learned counsel for the respondent would contend that as the duties discharged by the doctors working in the P.M.H.S. are difficult and tough as compared to duties discharged by doctors working in the Employees State Insurance Scheme, Labour Medical Service U.P. and as they do not stand on equal footing, therefore, the negation of benefit to the doctors working under Employees State Insurance Scheme, Labour Medical Service U.P. is neither discriminatory nor hit by Article 14 of the constitution of India. It is submitted that the doctors under P.M.H.S. are working continuously day and night and are also working in rural areas, therefore, to make the service of P.M.H.S. more attractive so as to attract the competent doctors, benefit of S.A.C.P. has been extended to the doctors of P.M.H.S. Accordingly, it is contended that there is no illegality in the impugned order, and therefore, the writ petition lacks merit and deserves to be dismissed.

15. I have considered rival contentions of learned counsel for the parties and perused the record.

16. The petitioner's case is that prior to the 1985, the doctors of P.M.H.S. were also treating the patients covered under the Scheme of Act E.S.I. Act 1948. However, after bifurcation of the P.M.H.S. vide Government Order dated 10.06.1985, a new department came into existence namely Employees State Insurance Scheme, Labour Medical Service, Kanpur under the control of Labour Department of State of U.P. The qualification and procedure of appointment of the doctors of P.M.H.S. and doctors under Employees State Insurance Scheme, Labour Medical Service, U.P. are same. The doctors working under the P.M.H.S. are discharging the same duties as that of doctors of Employees State Insurance Scheme, Labour Medical Service, U.P. who also treat the patient, see outdoor patient and indoor patient and also attend the patient in emergency. Besides this, the doctors working under Employees State Insurance Scheme, Labour Medical Service, U.P. are making domiciliary visit on the residents of the patient on their request to treat them as well as they discharge their duties in rural areas as the E.S.I. dispensaries are established in the rural areas. The duties discharged by the doctors under Employees State Insurance Scheme, Labour Medical Service, U.P are day and night. The aforesaid averments has been made in various paragraphs of the writ petition more particularly in paragraph 10, and thereafter from paragraph Nos.35 to 44 of the writ petition. The specific averments made by the petitioner in the aforesaid paragraphs have not been denied specifically by the respondent-State in the counter affidavit. The main plea which has been taken by the respondent in the counter affidavit is that the duties performed by the doctors of P.M.H.S. are tough and difficult as compared to the duties performed by the doctors working in E.S.I.C., therefore, they are not entitled to benefit of S.A.C.P.

17. At this stage, it would be apt to refer to the judgment of the Apex Court in the Case of North Delhi Municipal Corporation (supra), wherein, the Apex Court has upheld the order of the Delhi High Court by which the Central Administrative Tribunal has held that the Ayurvedic doctors are entitled to same service conditions including the enhanced age of superannuation to 65 years as made applicable to doctors (GDMOS) working under the C.H.S. in terms of the order dated 31.05.2016 of Ministry of Family and Health Welfare:-

"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. 14019/4/2016EI (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."

18. In the case of Dr. Om Prakash Gupta (supra), this Court has extended the benefit of S.A.C.P. to the Medical Officers (Ayurvedic) holding that the action of the State Government in not extending the benefit of S.A.C.P. to the AYUSH doctors is discriminatory and is hit by Article 14 of the Constitution of India. Paragraph Nos.28 to 31 of the said judgment is reproduced hereinbelow:-

"28. In this backdrop, having regard to the scope and nature of the ACP scheme, the question that arises is as to whether the Medical Officers rendering medical services in different streams can be discriminated as against Medical Officer PMHS depriving the SACP. In alternative, whether Medical Officer (Ayurvedic) are entitled to be treated at par with Medical Officer PMHS under the SACP scheme.

29. It goes without saying that the Western medicine (Allopathy) is integral to our current health care system, but so are other alternative and complementary health care modalities that are available for the people to choose. Western medicine is sometimes at a loss when it comes to treating the patients holistically. The submission of the learned State Counsel that the classification of Medical Officer (Ayurvedic) and Medical Officers PMHS is reasonable for the purposes of SACP having regard to their qualification and the nature of duties is not convincing. The classification is discriminatory and unreasonable since Medical Officers of both the segments are primarily performing the same function i.e. treating the patients. The difference is that one stream of doctors are using indigenous system of medicine and the other stream Allopathy for treating their patients. The mode of treatment, by itself does not qualify as an intelligible differentia. At the root is treatment of patients. The Medical Officers, both Ayurvedic and Allopathy render medical service to the patients and on this aspect, there is nothing to distinguish them. Treatment of patients is the core function common to the Medical Officers of different streams, therefore, no rational justification is seen to having different ACP scheme of bestowing the benefit of career progression to Medical Officers. As discussed earlier, the ACP scheme is personal to the government servant suffering stagnation and the pay upgradation does not rest upon any other consideration viz. status of post, qualification, nature of duty or seniority. The scheme is purely compensatory. In the circumstances the Medical Officers of the State cannot be discriminated against by providing different period of service to earn the benefit of career progression. Therefore, the classification on face value is discriminatory and violative of Article 14 of the Constitution of India.

30. AYUSH is an acronym for Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy are the six Indian system of medicines prevalent and practised in India. A department called the departments of Indian system of medicine was created in 1995 and renamed AYUSH in 2003 with a focus to provide increased attention for the development of these systems. This was felt in order to give increased attention to these systems in the presence of a strong counterpart in the form of Allopathic system of medicine. This took a reverse turn after the initiation of National Rural Health Mission (NRHM) and the AYUSH systems were brought into the mainstream health care. NHRM introduced the concept of mainstreaming of AYUSH and revitalization of local health traditions. This concept helped in utilizing the untapped AYUSH workforce, therapeutics and the principle of management of community health problems at different levels. The envisaged objective, inter alia, was to provide choice of the treatment system to the patients and strengthen implementation of national health programs.

31. The State Government is justified in not accepting the Dynamic ACP formulated by the Central Government for its Medical Officers, instead formulated the SACP scheme falling within the realme of administrative policy. But the question is whether such a policy upon being provided can discriminate amongst different streams of medicine practised by Medical Officers. Admittedly, the Medical Officers, irrespective of the stream of medicine (Allopathy or conventional) treat the patients which is the core underlying similarity. The comparison with regard to qualification, course of study/syllabus, nature of duty, responsibility etc. as is being pressed by the State Government to carve out a class of Medical Officers i.e. PHMS being superior to other Medical Officers is misconceived and unfounded insofar it relates to conferment of SACP. The administrative policy is invariably discriminatory in keeping the Medical Officers (Ayurvedic) and other streams out of the scheme having regard to the concept of ACP as discussed earlier."

19. If the action of respondent in denying the benefit of S.A.C.P. to the doctors of E.S.I.C. is tested on the principles enunciated in the aforesaid two judgments, this Court is of the view that the action of the respondent in denying the benefit of S.A.C.P. to the petitioner is not based upon any intelligible differentia and is hit by Article 14 of the Constitution of India since the duties discharged by the doctors working under Employees State Insurance Scheme, Labour Medical Service, U.P. are the same as that of duties discharged by doctors working under P.M.H.S., moreso, when the pleadings in the writ petition regarding the nature of duties discharged by the doctors working under Employees State Insurance Scheme, Labour Medical Service, U.P. demonstrating that the doctors working under Employees State Insurance Scheme, Labour Medical Service, U.P. stand on equal footing with the doctors of P.M.H.S. are not specifically denied by the State-Respondent in the counter affidavit. Therefore, the impugned order being hit by Article 14 of the Constitution of India cannot be sustained in law.

20. For the reasons given above, the order impugned is set aside and the writ petition is allowed with the direction to the respondent No.1 to extend the benefit of Special A.C.P. (S.A.C.P.) implemented by the Government Order dated 26.02.2015 to the doctors working under Employees State Insurance Scheme, Labour Medical Service, U.P. from the date it has been made applicable to the doctors/Medical Officers of Provincial Medical Health Service.

Order Date :- 05.10.2023

R.S. Tiwari