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Judgment
Hasnain Massodi, J.â€"Petitioners are working as Indian System of Medicine (ISM) Doctors under National Rural Health Mission (NRHM).
They were initially engaged on consolidated salary of Rs. 8,000/- per month. Health and Medical Education Department vide No.
HD/Plan/NRHM/Incentive/2009 dated 7th October 2009, authorised enhancement of their remuneration from Rs. 8,000/- per month to Rs.
16,000/- per month and also incentives to such of doctors working in difficult areas, irrespective of their nature of engagement. Governing Body of
J & K State Health Society in 4th Meeting held on 20th October 2011 accorded approval to further enhancement of remuneration for all
categories of staff engaged under NRHM. Decision taken was reflected in Order No. 46/JR/NRHM of 2011 dated 8th December 2011.
However, vide communication dated 2nd July 2012, remuneration of doctors of Allopathic Stream (with MBBS Degree) was enhanced from Rs.
19,200/- to Rs. 25,000/-. Petitioners are aggrieved that they are unjustifiably denied enhancement of remuneration granted in favour of doctors
with MBBS Degree. They claim to have voiced their grievance in series of representations addressed to respondents without any response.
Lackadaisical approach on part of respondents to accord consideration to their claim, promoted petitioners to file writ petition, being SWP No.
1397/2012. Writ petition was disposed of vide order dated 16th July 2012 with a direction to respondents to accord consideration to petitioners'
claim and release of remuneration at par with remuneration paid to Allopathic doctors in their favour.
Mission Director, NRHM - respondent No. 3 herein, accorded consideration to petitioners' claim and rejected it vide Order No.
SHS/K/NRHM/579 dated 29th August 2012. Petitioners through medium of present writ petition seek quashment of consideration order on the
grounds detailed in petition.
Petitioners' case is that State Government vide Order No. 316-HME of 1998 dated 20th April 1998, placed doctors in ISM Wing of Health,
Family Welfare & Medical Education Department at par with Allopathic doctors of the Department. It is stated that order has been passed on
basis of recommendations of Pay Anomaly Committee and in wake of order, doctors of both ISM, Ayush as well as MBBS placed in the same
pay scale. It is pleaded that in the background of aforesaid Government order, there is no justification for denying equal remuneration to ISM and
MBBS doctors engaged under NRHM.
Petitioners further reinforce their claim on the ground that as both ISM and MBBS doctors were engaged on consolidated pay of Rs. 8,000/-
per month and thereafter vide order No. 46-JK/NRHM of 2011 dated 8th December 2011, 20% increase in remuneration directed across the
board i.e. ISM and MBBS doctors, there was no reason to make further enhancement selectively in favour of Allopathic (MBBS) doctors. It is
pleaded that ISM and MBBS doctors are part of same Scheme, though working under two different systems of medicine and therefore either of
them cannot be exposed to any discrimination.
Petitioners, on strength of averments made, seek following relief:
I) Writ of Certiorari, quashing order No. SHS/K/NRHM/579 dated 29.8.2012 issued by respondent No. 3;
II) Writ of Mandamus, commanding respondents to enhance salary of ISM doctors including petitioners as well from Rs. 19200/- to Rs. 25000/-
as has been done in the case of MBBS doctors on the principle of equal pay for equal work from the same date which it has been enhanced for
MBBS doctors and to treat petitioners and MBBS doctors as one unit for all consequential benefits.
Petition is opposed by respondents 1 to 5 on the grounds purely technical in nature. Respondents 1 to 5, as a matte of fact, justify petitioners'
claim by stating in paragraphs 5 & 6 of there reply that State Health Society projected enhancement of remuneration of ISM/Ayush doctors,
working at Public Health Centres (PHCs) but proposal was rejected by Ministry of Health & Family Welfare, Government of India. Respondents
1 to 5 express their helplessness to accede to requests of petitioners on the ground that State Government has no role in enhancement of
remuneration and proposal, if any, made in this regard, is necessarily to find approval of Ministry of Health & Family Welfare, Government of
India. Reference in this regard is made to State Programme Implementation Plan for the financial year 2012-13, wherein proposal for enhancement
of remuneration from Rs. 19,000/- to Rs. 25000/-, is reflected.
Respondent No. 6 seeks dismissal of writ petition on the ground of its maintainability. It is pleaded that under NRHM, Ministry of Health &
Family Welfare, Government of India, has a limited role of providing financial support to States and Union Territories, responsible for im financial
support to States and Union Territories, responsible for implementing approved projects and engagement/recruitment of doctors/paramedical staff
of fixation of their remuneration falls exclusively within domain of respondents 1 to 5. Role of respondent No. 6, it is pleaded, is supportive and
facilitative in character with object of overall improvement of medical facilities in the country. The clear stand taken by respondent No. 6 is that
petitioner's grievance is to be redressed by respondents 1 to 5 and not Ministry of Health and Family Welfare, Government of India.
I have gone through pleadings and record placed on file. I have heard learned counsel for parties.
There can be no disagreement on the fact that ISM, Ayush and MBBS doctors are equal partners in health care system of country. They may
work under different systems of medicine and treat patients having regard to their respective system, but they are linked by common object i.e.
treatment of patients suffering from various diseases. Qualifying of examination for admission in all professional courses i.e. BUMS, BAMS,
MBBS, BHMS, in the same duration of course and so is same and so is the duration of courses. Doctors from both systems are appointed in
Health and Family Welfare/ISM Departments in same pay scale. This appears to have persuaded respondent No. 3 to fix same remuneration for
ISM and MBBS doctors at the time of their initial engagement and further give uniform enhancement i.e. 20% across the board. There, in the
circumstances, is substance in petitioners' case that they cannot be all of a sudden given discriminatory treatment and lag allowed to behind MBBS
doctors in the matter of remuneration.
The stand taken by respondents in opposition to writ petition is evasive and an effort to pass buck to each other. Respondents 1 to 5 admit
petitioners' stand and even claim to have projected proposal for enhancement of remuneration from Rs. 19,000/- to Rs. 25,000/- in Record of
Proceedings 2012-13. They express their inability to redress petitioners' grievance on the plea that the proposal did not find approval of
respondent No. 6. Respondent No. 6, on its part, by implication, accepts petitioners' grievance. It justifies inaction on its part on the plea that
respondent No. 6 has limited role in the matter and fixation of remuneration falls within domain of State Government. Neither of respondents, in
short, i.e. respondent No. 3 or respondent No. 6, dispute genuineness of petitioners' claim. Consideration order No. SHS/K/NRHM/579 dated
29.08.2012, therefore, is discriminatory in character and violative of letter and spirit of Articles 14 and 16, Constitution of India.
Petition, against above backdrop and for reasons discussed, deserves to be allowed and relief sought granted in favour of petitioners.
Viewed thus, writ petition is accepted and by writ of Certiorari, order No. SHS/K/NRHM/579 dated 29.08.2012 is quashed and
respondents by writ of Mandamus, directed to enhance salary of ISM doctors including petitioners as well from Rs. 19200/- to Rs. 25,000/- with
effect from the date such enhancement has been granted to Allopathic doctors working under the Scheme. Disposed of.