Dr. Rajaram S/O Vitthal Patil And ... vs The State Of Maharashtra And Ors.
2002 Latest Caselaw 1137 Bom

JUDGMENT

V.K. Tahilramani, J.

1. The petitioners No. 1 and 3 are holding a degree of B.S.A.M. (Bachelor of Ayurved in Medicine and Surgery). The petitioner No. 2 is holding a degree of A.V.M.S. (Ayurvedic Vigyanacharya with Modern Medicine and Surgery). They are all registered under the Maharashtra Medical Practitioners Act, 1961 read with Section 17 of the Indian Medicine Central Council Act, 1970. On the basis of the said qualifications, the petitioners were appointed on 28.8.1980, 21.4.1979 and 28.8.1980 respectively as Medical Officers (Health) Class-III at various Primary Health Centres/dispensaries run by the Zilla Parishad, Dhule.

2. The qualifications of the petitioners are included in the Second Schedule of the Indian Medicine Central Council Act, 1970. Section 17(3A) of the Maharashtra Medical Practitioners Act, 1961 provides that :

Notwithstanding anything contained in any law for the time being in force. every person enrolled on the register maintained under the Indian Medicine Central Council Act, 1970, but not enrolled on the register maintained under this Act, shall, on an application and on payment of the fee as provided in Sub-section (3), be entitled to have his name entered in the register maintained under this Act.

That the petitioners are all duly registered under the Maharashtra Medical Practitioners Act. The learned Advocate for the petitioners relied on the decision in the case of Dr. Mahadev Shivaling Ajamane v. State of Maharashtra and Ors. Writ Petition No. 636/98 dated 11.8.1998., (Coram : A.C. Agarwal and S.S. Nijjar, JJ.) wherein it is observed that the degree of B.S.A.M. is held to be equivalent to B.A.M.S, by Shivaji University, Kolhapur and Karnataka University, Dharwar, the Director of Ayurved (M.S.). Bombay and the Maharashtra Council of Indian Medicine. It is further stated by the learned advocate for the petitioners that the degree of petitioner No. 2 i.e. A.V.M.S. is also equivalent to B.A.M.S. This statement was not controverted on behalf of the Respondents. The Medical Officers possessing the qualification of B.A.M.S. were granted the scale of Rs. 395-800 on 1st April, 1976, as the said qualifications fall in Part-A or A-I of the Schedule of the Maharashtra Medical Practitioners, Act, 1961. This scale was further revised on the recommendations of the Pay Commission to Rs. 2,000-3,500 from 1.1.1986.

3. The petitioners and the persons similarly situated had been granted the pay scale of Rs. 305-460 with effect from 1st April, 1976, which was subsequently revised to Rs. 1,640-2,900 on the recommendations of the Pay Commission. A grievance was made by the petitioners that they are holding equivalent qualification of the Medical Officers having the qualification of B.A.M.S. and they are performing identical duties and had identical responsibilities, thus, they were entitled to the same pay scale of Rs. 2,000-3,500.

4. In the affidavit-in-reply filed by the State, the only justification given is that at the time of IVth Pay Commission, the Government took the decision of granting revised pay scale to the Medical Officers whose qualification was listed in Schedule A and A-1 of the Maharashtra Medical Practitioners Act, 1961. Further it is stated that it came to the notice of the Government that some of the degree qualifications were not included in the Schedule A and A-l. Therefore, in 1992, it was recommended that the degree holders whose qualifications are not mentioned in Schedule A and A-1 be also given the Pay Scale of Rs. 2,000-3,500, but with effect from 1st April, 1992. Subsequently, the petitioners also came to be granted this scale.

5. The learned advocate for the petitioners submitted that the grant of the revised pay scale to the petitioners with effect from 1st April, 1992 is arbitrary and suffers from discrimination. We are inclined to accept the submission made by the learned advocate for the petitioners as it is a settled proposition of law that similarly situated persons cannot be treated differently. If the petitioners are performing identical duties and are also possessing equivalent qualifications, then there can be no justification in restricting the benefit of the revised pay scale to 1st April, 1992. The petitioners are entitled to the benefit of the revised pay scale from 1.1.1986.

6. The learned advocate for the petitioners has, in support of the above contention, placed reliance on the decision in the case of Dr. Mahade v Shivaling (supra). In the said case also, the petitioner was holding the degree of B.S.A.M. and he was holding the post of Medical Officer (Health) Class-III in the Zilla Parishad. In the said case, it was held that as the petitioner was having equivalent qualifications and was having identical duties and responsibilities, hence he was entitled to the same pay scale from 1.1.1986 as drawn by those holding the qualification of B.A.M.S. On perusal of the said decision, we noticed that the facts therein are identical to those in the present case and hence the said decision would be squarely applicable to the case of the petitioners.

7. It has been held by the Supreme Court in the case of Bhagwan Sahai Carpenter and Ors. v. Union of India and Anr. , that when the recommendations of the Pay Commission are accepted, then the Government has to accept the recommendations in toto. No further discrimination can then be made at the discretion of the Government. In paragraph 11, the Supreme Court has held as follows :

The employees of the different trades in the skilled grade cannot be treated differently i.e. by allowing higher scale of pay to employees of some of the trades from an earlier date and giving the same benefit to members of other trades in the skilled grade from a later date. This will per se be discriminatory and it will be contrary to the equity clause envisaged in Articles 14 and 16 of the Constitution as well as the fundamental right of equal pay for equal work.

8. In our view, the facts in the present case are similar to the facts which were before the Supreme Court in the case quoted above. The facts in the present case are identical to those in W.P. No. 636/98 (supra). Thus, in our opinion, action of the Respondents in restricting the benefit of revised Pay Scale from 1st April, 1992, in case of the petitioners suffers from discrimination and is, therefore, in breach of Articles 14 and 16 of the Constitution.

9. In view of the above. Rule is made absolute in terms of Prayer Clause (B). Prayer Clause (B) reads as under :

Issue writ of mandamus or order, or directions in the nature of writ of mandamus, directing the Respondents to grant revised pay scale of Rs. 2,000/- to Rs. 3,500/- to the petitioners since 1986 and the consequential benefits, for that purpose issue necessary order.

10. No order as to costs.