The Supreme Court Tuesday said that doctors, both allopathic and AYUSH, render service to patients and there is no rational justification for having different dates for giving benefit of extended age of superannuation to these medical practitioners.
The apex court made the observations in its judgement on appeals against the Delhi High Court's November 2018 verdict upholding the order of the Central Administrative Tribunal which had said that ayurvedic doctors covered under AYUSH are also entitled to benefit of enhanced superannuation age of 65 years, raised from 60 years, just like allopathic doctors.
The high court had dismissed the petitions filed by the North Delhi Municipal Corporation (NDMC) which was aggrieved by the tribunal's order.
An apex court bench of justices L Nageswara Rao and Hrishikesh Roy said it is inclined to agree with the findings of the tribunal and the 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.
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 (equality before law) of the Constitution, the bench said.
It said the only difference is that AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy) doctors are using indigenous systems of medicine while Central Health Scheme (CHS) doctors are using allopathy for tending to their patients.
The bench said the action of the concerned authority in not paying AYUSH 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 eight weeks from today, it said.
The bench noted in its verdict that prior to May 31, 2016, the retirement age was 60 years for general duty medical officers (GDMO) of CHS, the dentists and doctors covered under AYUSH, including ayurvedic doctors.
It noted that Ministry of Health and Family Welfare had issued May 31, 2016 order with immediate effect, enhancing the age of superannuation of specialists of non-teaching and public health subcadres of CHS and GDMOs of CHS up to 65 years.
The bench noted that on June 30, 2016 the NDMC adopted the Centre's order and enhanced the retirement age to 65 years for allopathic doctors.
It said office memorandum issued by the Ministry of Health and Family Welfare on August 30, 2016 then clarified that enhanced superannuation age granted by May 31, 2016 order is applicable to GDMOs of CHS and municipal corporations and others were given the liberty to take their own decision on the matter.
The bench noted that several applications were filed before the tribunal by ayurvedic doctors seeking that benefit of the government decision and office order of the NDMC be made applicable to them.
In August 2017, the tribunal held that applicants were entitled to same service conditions including the enhanced age of superannuation to 65 years, as made applicable to doctors working under the CHS, in terms of the May 31, 2016 order of the ministry.
The apex court noted that the Ministry of AYUSH had on November 24, 2017 issued an order saying the superannuation age of AYUSH doctors is also enhanced to 65 years with effect from September 27, 2017.
It said the NDMC had adopted the ministry's decision but those ayurvedic doctors who fall in the window between May 31, 2016 and September 26, 2017, were deprived of getting the benefit of enhanced retirement age.
The bench, while dealing with the arguments that paying arrear unpaid wages to these doctors will impose substantial financial burden upon the state, said such submission cannot be countenanced as a fair submission by the state's counsel.
The principle of no work, no pay' protects employers from paying their employees if they don't receive service from them. A corollary thereto of no work should go unpaid' should be the appropriate doctrine to be followed in these cases where the service rendered by the respondent doctors have been productive both for the patients and also the employer, it said.
The bench said state cannot be allowed to plead financial burden to deny salary for the legally serving doctors.
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, it said.
It said the November 24, 2017 order of AYUSH Ministry must be retrospectively applied from May 31, 2016 to all concerned doctors in these appeals.