Gauhati High Court
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GAHC010280772018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8759/2018
THE AYURVEDIC DOCTORS ASSOCIATION AND 2 ORS.
NATIONAL HEALTH MISSION, ASAM, HOUSE NO. 22, MILLANJYOTI PATH
SIJUBARI, HATIGAON, GUWAHATI-781038, DIST. KAMRUP (M), ASSAM,
REP. BY ITS PRESIDENT NAMELY, DE. MUKUL SARMA.
2: DR. MUKUL SARMA
S/O. LT. GIRINDRA NATH SARMA
VILL.
P.O. AND P.S. PATACHARKUCHI
DIST. BARPETA
ASSAM-781326.
3: DR. SHEIKHUL ISLAM
S/O. MD. SAMED ALI
VILL. GOREMARI (MAZDIA)
P.O. PASCHIM MAZDIA
P.S. SARTHEBARI
DIST. BARPETA
ASSAM-781305
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, HEALTH AND
FAMILY WELFARE DEPTT., DISPUR, GUWAHATI-781006.
2:THE PRINCIPAL SECRETARY
GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPTT.
DISPUR
GUWAHATI-781006.
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3:THE MISSION DIRECTOR
NATIONAL HEALTH MISSION
ASSAM
SAIKIA COMMERCIAL COMPLEX
SRINAGAR PATH
CHRISTIANBASTI
G.S. ROAD
GHY.-781005.
4:THE ADDL. SECRETARY AND MISSION DIRECTOR
NATIONAL HEALTH MISSION
MINISTRY OF HEALTH AND FAMILY WELFARE DEPTT.
GOVT. OF INDIA
NIRMAN BHAWAN
NEW DELHI-110011.
5:THE SECRETARY
GOVT. OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
NIRMAN BHAWAN
NEW DELHI-110011
Advocate for the Petitioner : MR. U K NAIR, (SR. ADV.)
Advocate for the Respondent : SC, HEALTH
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
04.02.2021
(1) Heard Mr. U.K. Nair, learned senior counsel for the petitioners. Also heard Mr. B. Gogoi,
learned counsel for the Health Department and National Health Mission (in short, NHM). Mr.
K.K. Parasar, CGC appears for the respondent No.5.
(2) The grievance of the petitioners is that while the NHM has engaged Allopathic and
Ayurvedic doctors under the NHM on contract basis, the fixed pay given to the Allopathic
doctors is higher than that given to the Ayurdevic doctors.
(3) The petitioners' counsel submits that as the job responsibility of the Medical Officers
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(Ayurvedic) under the NHM is identical with that of the job responsibility of the Medical
Officers (Allopathic), the fixed pay given to the Medical Officers (Ayurvedic) would have to be
the same as that given to the allopathic doctors, as that would be in consonance with the
doctrine of equal pay for equal work.
(4) The petitioners' counsel, in support of his submission that Allopathic and Ayurvedic
doctors are having identical responsibilities and duties, has referred to the terms of reference
for Medical Officers (Ayurvedic) and the terms of reference for Medical Officers (MBBS), which
is at Annexure-7 & 8 of the writ petition.
(5) The petitioners' counsel submits that with respect to doctors employed by the State
Government on regular basis, be it Allopathic doctors or Ayurvedic doctors, the same pay
scale is being given to them. As such, there can be no justification for giving different fixed
pay to Ayurvedic doctors and Allopathic doctors, who are engaged on contract basis under
the NHM. He further submits that the Secretary to the Government of India, Ministry of
Ayurveda, Yoga & Naturopathy, Unany, Siddha and Homeopathy, vide D.O. No.
Z.28015/04/2018-H & D Cell dated 27.02.2018, issued to all the Chief Secretaries of the
States/ UTs of India, has requested that appropriate steps be taken to enhance the salary of
AYUSH doctors to be at par with their Allopathic counterparts.
The petitioner's counsel has also relied upon the Judgment of the Division Bench of the
High Court of Uttarakhand in W.A. No. 484 of 2014 (S/B), by which the State Government of
Uttarakhand has been directed to pay the salary of AYUSH doctors at par with the Allopathic
and Dental doctors He also submits that the State of Jammu & Kashmir is also paying the
same monthly remuneration to both the Allopathic and Ayurvedic Doctors, vide order dated
08.09.2018 issued by the Mission Director, NHM, J & K, in terms of the Judgment dated
29.05.2018 passed by the High Court of Jammu & Kashmir in SWP No. 2590/2012. The
petitioner's counsel submits that the Budget of the NHM is paid by the Central Government
and the State Government, in the ratio of 85% and 15% respectively.
(6) Mr. B. Gogoi, the learned Standing Counsel for the Health Department and NHM submits
that the job responsibility of the Allopathic and Ayurvedic doctors is not identical but different.
He also submits that the educational qualifications of the two streams of Medical Officers are
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different. He also submits that in terms of the Judgment of the Apex Court in the Case of
S.C. Chandra and Ors. Vs. State of Jharkhand and Others , reported in (2007) 8 SCC
279, even if employees in two groups are doing identical work, they cannot be granted equal
pay, if there is no complete and wholesale identity. He also submits that as granting of pay
scales is a purely executive function, the Court should not interfere with the same.
(7) Mr. K.K. Parasar, learned counsel for the respondent No.5 is directed to obtain
instructions as to whether there should be parity of pay between Allopathic and Ayurvedic
doctors, who are engaged by the NHM on contract basis. He should also obtain instructions
as to whether parity of fixed pay is being given in all other NHMs under various States.
(8) List on 03.03.2021.
(9) Registry to reflect the name of Mr. K.K. Parasar, learned counsel for the respondent
No.5 in the cause list.
JUDGE
Comparing Assistant
