STATE OF GUJARAT & ORS. ETC. versus DR. P. A. BHATT & ORS. ETC. on 26 April 2023

[2023] 5 S.C.R. 301

STATE OF GUJARAT & ORS. ETC.

v.

DR. P. A. BHATT & ORS. ETC.

(Civil Appeal Nos. 8553-8557 of 2014)

APRIL 26, 2023

[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]

Service Law : Equal Pay – Allopathy doctors and doctors ofindigenous medicine-, if can be said to be performing “equal work”so as to be entitled to “equal pay Non-MBBS medical officers seekedextension of the benefit of higher scales of pay on parity with theallopathic doctors on the basis of the recommendations of TikkuPay Commission – – Held: Classification based upon educationalqualification for the grant of higher pay scale, is a validclassification – Both categories of doctors are certainly notperforming equal work to be entitled to equal pay.

Pay scales – Appointment of officers to the same post in acadre – Fixation of different scales of pay on the basis of educationalqualifications possessed by them – Held: Classification based uponeducational qualification for the grant of higher pay scale, is avalid classification – Thus, the classification based upon educationalqualification is not violative of Articles 14 and 16 of the Constitution.

Allowing the appeals, the Court

HELD: 1.1 The classification based upon educationalqualification is not violative of Articles 14 and 16 of theConstitution. Hence, the answer to Issue No.1 that Whetherdifferent scales of pay can be fixed for officers appointed to thesame cadre, on the basis of the educational qualificationspossessed by them would be in favour of the State and againstthe respondents. [Para 37][314-D-E]

1.2 Allopathy doctors are required to perform emergencyduties and to provide trauma care. By the very nature of thescience that they practice and with the advancement of scienceand modern medical technology, 23 the emergency duty thatAllopathy doctors are capable of performing and the trauma care

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Athat they are capable of providing, cannot be performed byAyurved doctors. [Para 43][316-D-E]

1.3 It is also not possible for Ayurved doctors to assistsurgeons performing complicated surgeries, while MBBS doctorscan assist. This Court shall not be understood to mean as thoughBone system of medicine is superior to the other. It is not themandate nor within competence of this Court to assess therelative merits of these two systems of medical sciences. As amatter of fact, this Court is conscious that the history of Ayurvedadates back to several centuries. The Encyclopaedia Britannicastates that the golden age of Indian medicine from 800 B.C., tillC1000 A.D., was marked by the production of two medical treatisesknown as “caraka-samhita” and “susruta-samhita”. [Para 44][316-E-G]

1.4 Every alternative system of medicine may have its prideof place in history. But today, the practitioners of indigenousDsystems of medicine do not perform complicated surgicaloperations. A study of Ayurved does not authorise them to performthese surgeries. [Para 49][319-B-C]

1.5 A post-mortem or autopsy is not carried out by/in thepresence of Ayurved doctors. Section 174 of the Code of CriminalEProcedure, 19738 deals with the procedure for the police toinquire and report on suicide, etc. Sub-section (3) of Section 174mandates that the police officer shall, subject to such rules asthe State Government may prescribe, forward the dead body, witha view to its being examined, to the nearest Civil Surgeon, orother qualified medical man appointed in this behalf by the StateFGovernment, in certain types of cases such as, (i) suicide by awoman within seven years of marriage; (ii) death of a woman withinseven years of marriage in certain circumstances; and (iii) caseswhere there are any doubts regarding the cause of death. Section176 of Cr.P.C deals with inquiry by Magistrates into cause ofGdeath. Sub-section (5) of Section 176 uses similar words namely“Civil Surgeon or other qualified medical man”. The AYUSHdoctors are normally not notified as competent to perform post-mortem. [Paras 50, 51][319-C-F]

1.6 It is common knowledge that during out-patient daysH(OPD) in general hospitals in cities/towns, MBBS doctors are made to attend to hundreds of patients, which is not the casewith Ayurveda doctors. In the comparative chart extracted, theState of Gujarat have claimed that IV injections and ART injectionscannot be administered by Ayurved doctors. [Paras 52-53][319-F-H]

1.7 Even while recognizing the importance of Ayurveddoctors and the need to promote alternative/indigenous systemsof medicine, this Court cannot be oblivious of the fact that bothcategories of doctors are certainly not performing equal work tobe entitled to equal pay. Hence, issue No.2 is answered in favourof the appellant-State and against the respondents. [Para 54][320- A-B]

1.8 The impugned order of the High Court is liable to beset aside. As a sequitur, the benefits derived by the respondentsby virtue of the interim order passed by this Court on 08.09.2014,are liable to be recovered from the respondents. In the normalcourse, this Court would not have desired to allow the State toeffect recovery but for the fact that a few doctors have receivedand a few have not. Among the Ayurved doctors, a classificationcannot be amde between those who have already received somebenefits by virtue of the interim order of this Court dated08.09.2014 and those who have not received such benefits.Moreover, the fundamental principle cannot be overlooked thata benefit derived by an individual by virtue of an interim orderpassed by a Court cannot be allowed to be retained, if the ultimateoutcome of the case went against such a person. [Para 55][320-B-E]

North Delhi Municipal Corporation vs. Dr. Ram NareshSharma 2021 (9) SCALE 47; The State of Mysore vs.P. Narasinga Rao AIR 1968 SC 349 : [1968] SCR 407;Dr. C. Girijambal vs. Government of Andhra Pradesh(1981) 2 SCC 155 : [1981] 2 SCR 782; Mewa RamKanojia vs. All India Institute of Medical Sciences(1989) 2 SCC 235 : [1989] 1 SCR 957; Shyam BabuVerma vs. Union of India (1994) 2 SCC 521 : [1994] 1SCR 700; State of Haryana vs. Ram Chander (1997) 5SCC 253 : [1997] 1 Suppl. SCR 309; Director ofElementary Education, Odisha vs. Pramod KumarSahoo (2019) 10 SCC 674 – referred to.

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ABritannica records in page 776 of Volume-23 (15thEdition); “Man and Medicine - A History” authoredby Farokh Erach Udwadia – referred to.

From the Judgment and Order dated 17.01.2014 of the High CourtDof Gujarat at Ahmedabad in SCA Nos.3718, 6017, 6959, 11706 of 2008,11363 of 2009 and LPA Nos. 295, 610, 642, 964, 965 of 2013.

With

Contempt Petition (C) Nos.701, 674 and 916 of 2017.

ENirav Majumdar, Priank Adhyaru, Rameshwar Prasad Goyal,Kusum Chaudhary, Ms. Archana Pathak Dave, Ms. Swati Ghildiyal,Ms. Devyani Bhatt, Advs. for the appearing parties.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.F

1. These civil appeals arise out of a common order passed by theDivision Bench of the High Court of Gujarat at Ahmedabad confirmingthe order of the learned Single Judge, holding that the respondentspossessing a degree of BAMS (Bachelor of Ayurved in Medicine andSurgery) should be treated at par with the doctors holding MBBS degreesGand that they are entitled to the benefits of the recommendations of theTikku Pay Commission.

2. We have heard the learned counsel appearing for the parties.

3. On the basis of a Memorandum of Settlement dated 21.08.1989

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entered into by the Ministry of Health and Family Welfare with the JointAction Council of Service Doctors Organisation, a High-PowerCommittee was constituted on 03.05.1990 with Shri R.K. Tikku as itsChairman, for the purpose of improving the service conditions andprospects of the doctors in Government service.

4. This Committee held 30 meetings during the period from June-1990 to October-1990 and submitted its recommendations under a Reportdated 31.10.1990. The recommendations contained in this Report wasconfined only to service doctors holding MBBS degrees and post-graduatemedical degrees and degrees in super-specialities and those on theteaching and non-teaching sides.

5. By a separate order dated 19.11.1990, the Ministry of Healthand Family Welfare constituted another High-Power Committee underthe chairmanship of the very same person, namely, Shri R.K. Tikku, forthe purpose of considering the career improvement and cadrerestructuring of the practitioners of Indian Systems of Medicine andHomeopathy. This Committee submitted a separate Report on 26.02.1991and it was confined to practitioners of alternative Systems of Medicine,holding degrees in Ayurved/Unani/Siddha/Homeopathy.

6. The Government of India accepted the recommendations ofthe Tikku Committee dated 31.10.1990, in respect of allopathic doctorsby Office Memorandum dated 14.11.1991. The State of Gujarat alsoaccepted the recommendations of the Tikku Committee for allopathicdoctors and issued an order in Resolution No.GHS/1094/2842/T dated17.10.1994. It was stated in the said order dated 17.10.1994 that adequatenumber of allopathic doctors was not available in the State and thattherefore, it was necessary to attract talent.

7. After the implementation of the recommendations of the TikkuCommittee dated 31.10.1990 in respect of allopathic doctors, in the Stateof Gujarat by the Government Resolution dated 17.10.1994, the LocalFund Audit, Ahmedabad sought clarifications, vide letters dated 04.03.1998and 21.04.1998, as to whether the same benefits are available to non-MBBS medical officers holding qualifications such as G.A.F.M/LMP.

8. In response, the Health and Family Welfare Department of theGovernment of Gujarat issued a Government Resolution bearing No.KRV/1098/726/CH dated 01.01.1999, holding that non-MBBS medical officersare also entitled to the benefit. Incidentally this letter stated that the A

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Arecommendations of the Tikku Committee were extended even to doctorsworking under the Employees State Insurance Scheme, vide GovernmentResolution dated 01.07.1997.

9. The respondents herein who were originally appointed on adhocbasis, under the ‘Community Health Volunteer Medical Officers Scheme’Bfloated by the Government of India and who were later absorbed by theState of Gujarat in May- 1999, filed 4 writ petitions on the file of theHigh Court of Gujarat seeking extension of the benefit of higher scalesof pay on the basis of the recommendations of Tikku Pay Commission.A separate writ petition was filed by the Medical Officers (Ayurved)Association, comprising of persons initially appointed as Medical OfficersCClass-III. The relief sought by this Association was similar to the onesought in the batch of four writ petitions.

10. By a common order dated 26.07.2012, a learned Judge of theHigh Court allowed all the writ petitions, holding that doctors havingDdegrees in alternative Systems of Medicine are entitled to be treated atpar with doctors holding MBBS degree.

11. The State of Gujarat preferred intra-court appeals. After filingappeals, the State also issued a Government Resolution dated 31.07.2013withdrawing the Resolution dated 01.01.1999 by which the benefit wasEextended to non-MBBS degree holders. This was because the learnedSingle Judge held that discrimination between non-MBBS degree holdersworking in the ESI Scheme and non-MBBS degree holders working inother areas was not permissible.

12. But the Division Bench of the High Court dismissed all theFintra-court appeals holding, (i) that both MBBS and non-MBBS doctorsform part of the same cadre and hence no discrimination is permissiblewithin the cadre on the basis of educational qualifications; and (ii) thatthe non-MBBS doctors were also discharging the same duties andfunctions discharged by MBBS doctors and were even manning primaryhealth centres independently and that therefore they were entitled toGequal pay.

13. Aggrieved by the said order of the Division Bench of the HighCourt, the State has come up with the above appeals. On 08.09.2014,this Court granted leave in the special leave petitions and passed aninterim order to the following effect.H

“Leave granted.

Having heard learned counsel for the parties, it is directed thatthe State of Gujarat shall comply with the order of the High Courtup to 50% within two months. Needless to say, it case the appealis dismissed, the respondents shall be entitled to the balance 50%with interest, which shall be determined at the time of finaladjudication of the appeal.

Hearing expedited.”

14. Claiming that the above interim direction issued on 08.09.2014was not complied, a batch of contempt petitions was filed in the year2016. Those contempt petitions were disposed of on the basis of astatement made to the effect that the State will comply with the order bythe end of October, 2016.

15. However, a fresh set of three contempt petitions were filed inthe year 2017, complaining of wilful disobedience of the order dated08.09.2014. These contempt petitions were directed to be listed alongwiththe main appeals and this is why we have five civil appeals and threecontempt petitions on hand.

Preliminary contention

16. The learned counsel for the respondents raised a preliminaryissue that the question raised in these appeals is squarely covered by arecent judgment of this Court in North Delhi Municipal Corporationvs. Dr. Ram Naresh Sharma[1]and that therefore the impugned orderof the High Court does not need a deeper scrutiny. Therefore, it isnecessary to address this preliminary issue before we proceed to considerthe rival contentions on merits.

17. In Dr. Ram Naresh Sharma (supra), the only question thatarose was as to whether the benefit of enhancement of age of retirementfrom 60 years to 65 years, granted in favour of Allopathy doctors, wasavailable even for Ayurved doctors or not. It was held in the said decisionas follows:

“22. The common contention of the appellants before us isthat classification of AYUSH doctors and doctors under CHS indifferent categories is reasonable and permissible in law. Thishowever does not appeal to us and we are inclined to agree with A

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Athe findings of the Tribunal and the Delhi High Court that theclassification is discriminatory and unreasonable since doctors underboth segments are performing the same function of treating andhealing their patients. The only difference is that AYUSH doctorsare using indigenous systems of medicine like Ayurveda, Unani,etc. and CHS doctors are using Allopathy for tending to their patients.BIn our understanding, the mode of treatment by itself under theprevalent scheme of things, does not qualify as an intelligibledifferentia. Therefore, such unreasonable classification anddiscrimination based on it would surely be inconsistent with Article14 of the Constitution. The order of AYUSH Ministry datedC24.11.2017 extending the age of superannuation to 65 Years alsoendorses such a view. This extension is in tune with the notificationof Ministry of Health and Family Welfare dated 31.05.2016.

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23. The doctors, both under AYUSH and CHS, render serviceto patients and on this core aspect, there is nothing to distinguishDthem. Therefore, no rational justification is seen for having differentdates for bestowing the benefit of extended age of superannuationto these two categories of doctors. Hence, the order of AYUSHMinistry (F.No.D14019/4/2016-E-I(AYUSH)) dated 24.11.2017must be retrospectively applied from 31.05.2016 to all concernedrespondent-doctors, in the present appeals. All consequences mustEfollow from this conclusion.”

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18. A cursory reading of the portion of the judgment extractedsupra, may give an impression as though the question arising forconsideration is no longer res integra and that Allopathy doctors andAyurved doctors should be treated on par insofar as all service conditionsFare concerned. But a careful reading of the entire judgment shows thatthe said decision was based upon an order of the Ministry of Ayurveda,Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) dated24.11.2017. As seen from paragraph 2 of the said decision, the age ofretirement of Allopathy doctors was increased by an order dated31.05.2016 issued by the Ministry of Health and Family Welfare. ThisGwas followed by consequential amendment of the Fundamental Rulesand Supplementary Rules, 1922. Since Ayurved doctors were not coveredby the Ministry’s order dated 31.05.2016, Ayurved doctors filedapplications before the Administrative Tribunal. The AdministrativeTribunal allowed the applications by an order dated 24.08.2017. TheHNorth Delhi Municipal Corporation (employer) filed writ petitions before the High Court of Delhi challenging the decision of the Tribunal. Duringthe pendency of the writ petitions, the Ministry of AYUSH issued anorder dated 24.11.2017 enhancing the age of retirement of AYUSHdoctors also to 65 years, but with effect from 27.09.2017. It is in thatcontext that this Court held as aforesaid in Dr. Ram Naresh Sharma.This Court did not go into the question whether AYUSH doctors andAllopathy doctors were performing equal duties and responsibilities soas to be entitled to equal pay.

19. We must remember the fundamental distinction between, (i)the issue of law that equal work entails equal pay; and (ii) the issue offact as to whether two categories of employees are performing equalwork or not? This Court did not go into the factual aspect in Dr. RamNaresh Sharma as to whether AYUSH doctors were performing equalwork as Allopathy doctors. This Court simply relied upon the order ofthe Ministry of AYUSH itself enhancing the age of retirement of AYUSHdoctors on par with Allopathy doctors.

20. In any case, the question of age of retirement stands on adifferent footing from the service conditions relating to pay andallowances and revision of pay. Therefore, we do not think that the issueraised in these appeals can be said to be covered by the decision in Dr.Ram Naresh Sharma.

Other contentions

21. Assailing the impugned order of the High Court, it is contendedon behalf of the State that the recommendations of Tikku Pay Commissionfor enhancement of the scales of pay were per se applicable only toMBBS doctors; that the revision of scales of pay in favour of Allopathydoctors was warranted by the perennial shortage of Allopathy doctors;that the State Government had to fulfil its Constitutional obligation ofproviding adequate healthcare infrastructure to the citizens by recruitingqualified MBBS doctors, but the State could not attract sufficient talent,due to the poor pay structure; that in contrast, the State was never runningshort of AYUSH doctors and hence there was no necessity to lure qualifiedAYUSH doctors to come to service; that there is no impediment in lawfor providing different scales of pay to persons employed in the samecadre, based upon the qualifications; and that the High Court miserablyfailed to appreciate the completely different nature of duties andresponsibilities performed by Allopathy doctors and AYUSH doctors andthat therefore the impugned order is wrong, both in law and on facts.

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A22. In response, it is contended by the learned counsel for therespondents that both Allopathy doctors and AYUSH doctors areappointed to the post of Medical Officer falling in Class-II of GujaratMedical Services; that once persons with different qualifications areappointed to one unified cadre with a common pay scale and governedby one set of rules, then at a later stage, the Government cannot make aBclassification; that all Medical Officers, irrespective of their qualificationswere discharging the same duties and responsibilities; that by theGovernment Resolution dated 01.01.1999, the recommendations of theTikku Pay Commission were made applicable to non-MBBS degreeholders working in the ESI Scheme; that it was only after the learnedCSingle Judge allowed the writ petitions, that the State issued anotherResolution dated 31.07.2013 withdrawing the Resolution dated01.01.1999; and that the findings of fact recorded by the learned SingleJudge and the Division Bench of the High Court that both categories ofdoctors are performing equal work, does not call for any interferenceunder Article 136 of the Constitution and that therefore the appeals areDliable to be dismissed.

23. We have carefully considered the above submissions.

24. Two questions, in our opinion, arise for consideration in theseappeals. They are:E

(i) Whether different scales of pay can be fixed for officersappointed to the same cadre, on the basis of educationalqualifications possessed by them?

(ii) Whether Allopathy doctors and doctors of indigenousFmedicine can be said to be performing “equal work” so asto be entitled to “equal pay”?

Question No.1: Whether different scales of pay can be fixedfor officers appointed to the same cadre, on the basis of theeducational qualifications possessed by them?G

25. The first issue arising for consideration is as to whether personsappointed to the same post in a cadre can be given different scales ofpay on the basis of educational qualifications?

26. Though the issue is no longer res integra, we shall refer to afew decisions, some of which were cited before the High Court also.H

27. In The State of Mysore vs. P. Narasinga Rao[2], which is oneof the earliest cases to be considered by a Constitution Bench of thisCourt, the classification of two grades of Tracers, one for matriculateswith a higher pay scale and the other for non-matriculates with a lowerpay scale, was held by this Court to be not violative of Articles 14 and 16of the Constitution. In fact, it was a case where both matriculates aswell as non-matriculates were drawing the same scale of pay in theerstwhile State of Hyderabad, but after the reorganization of States in1956, two different scales of pay came to be given to those who wereallotted to the new Mysore State. Yet this Court upheld the classification.

28. In Dr. C. Girijambal vs. Government of Andhra Pradesh[3],the holder of a Diploma in Ayurvedic Medicine (DAM), appointed to thepost of Medical Officer, was given a scale of pay lower than the scaleof pay given for the holders of Graduate of the College of IntegratedMedicine (GCIM) and Licentiate in Indigenous Medicine (LIM). Whenquestioned, the Authorities pointed out that a higher scale of pay wasavailable only to those with Class ‘A’ Registration Certificate under theAndhra Ayurvedic and Homeopathic Medical Practitioners’ RegistrationAct, 1956. Therefore, the Medical Officer filed a writ petition seeking adirection to the Andhra Board of Ayurveda to register her as Class ‘A’Practitioner. The High Court allowed the writ petition and the writ petitionerwas granted higher scale of pay with retrospective effect. But when arevision of the scales of pay of Medical Officers was undertaken in theyear 1975, under GOM No.574 dated 20.10.1975, a higher scale of paywas granted to those holding LIM and the petitioner was granted a lowerscale of pay. Her challenge to this classification was rejected by theAdministrative Tribunal and the claim landed up before this Court. Whilerejecting the claim, this Court clarified the law pithily in the following words:

“6. Dealing with the first contention we would like toobserve at the outset that the principle of equal pay forequal work cannot be invoked or applied invariably in everykind of service and certainly it cannot be invoked in thearea of professional services when these are to becompensated. Dressing of any injury or wound is done both by adoctor as well as a compounder, but surely it cannot be suggestedthat for doing this job a doctor cannot be compensated more than 2 AIR 1968 SC 349

3 (1981) 2 SCC 155

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312SUPREME COURT REPORTS

Athe compounder. Similarly, a case in Court of law is argued bothby a senior and a junior lawyer, but it is difficult to accept that inmatter of remuneration both should be treated equally. It is thusclear that in the field of rendering professional services atany rate the principle of equal pay for equal work would beinapplicable. In the instant case Medical Officers holding theBqualification of G.C.I.M., or the qualification of L.I.M. or thequalification of D.A.M., though in charge of dispensaries run byZilla Parishads, cannot, therefore, be created on par with eachother and if the State Government or the Zilla Parishads prescribedifferent scales of pay for each category of Medical Officers noCfault could be found with such prescription. …”29. Though the decision in Dr. C. Girijambal (supra) was cited,the High Court, in the cases on hand, sought to distinguish the same onthe ground that in the case of holders of GCIM, LIM and DAM, theState did not treat them equally in the matter of proficiency right fromDthe beginning, but that in the case of non-MBBS degree holders andMBBS degree holders, the cadre remained the same. Therefore, theHigh Court held that the ration of the decision in Dr. C. Girijambal wasnot applicable to the cases on hand.

30. But we do not think that the High Court was right inEdistinguishing the decision in Dr. C. Girijambal. In the said case, thewrit petitioner succeeded in the first round of litigation and secured aClass ‘A’ Registration Certificate as well as the same scale of pay onpar with holders of GCIM and LIM. It was only thereafter when arevision was undertaken that a classification was sought to be made. Inother words, the petitioner in Dr. C. Girijambal reached the sameFpedestal as that of others through a court order and it was onlysubsequently, that she suffered inequal treatment at the time of revisionof pay. Therefore, the distinguishment made by the High Court to thedecision in Dr. C. Girijambal is not well founded.

31. In Mewa Ram Kanojia vs. All India Institute of Medical GSciences[4], a person initially appointed to the post of Teacher Coordinatorin a project funded by the Indian Council of Medical Research, wasredesignated as Hearing Therapist, upon his unit getting absorbed withthe All India Institute of Medical Sciences. While implementing therecommendations of the Third Pay Commission, he sought parity with H4 (1989) 2 SCC 235

Speech Therapists and Audiologists. His claim was not considered, forcinghim to approach this Court directly under Article 32 of the Constitution,contending that he was performing the same duties and functions as thatof Speech Therapists and Audiologists. While rejecting his claim, thisCourt held that “… it is open to the State to classify employees on thebasis of qualifications, duties and responsibilities of the postsconcerned. …”.

32. The decision in Mewa Ram Kanojia (supra) was distinguishedby the High Court on the ground that in the case on hand the Allopathydoctors and Ayurved doctors are performing the same duties andresponsibilities. The question whether they are in fact performing thesame duties and functions will be dealt with by us while answering thesecond issue arising for consideration before us.

33. In Shyam Babu Verma vs. Union of India[5], this Courtclarified that though “…the nature of work may be more or less thesame, but scale of pay may vary based on academic qualificationsor experience which justifies the classification. …”. This view hasbeen the consistent view of this court.

34. In the impugned order, the High Court placed reliance on thedecision in State of Haryana vs. Ram Chander[6]. It was a case wherelanguage teachers in Haryana Government Vocational Education Institutesought parity in pay scale with teachers in higher secondary schools.There was a finding of fact in that case that the teachers in highersecondary schools were designated as lecturers and only those with aMaster’s Degree were appointed. However, language teachers inVocational Education Institutes possessed only an undergraduate degreein Arts and an undergraduate degree in Education with Hindi/English asone of the teaching subjects. Despite finding that the teachers in highersecondary schools had a higher educational qualification than those inVocational Education Institutes, the High Court granted relief to languageteachers working in those Institutes and the same was upheld by thisCourt. Therefore, the High Court, in the impugned order, placed strongreliance upon this decision.

35. But a careful perusal of the decision in Ram Chander (supra)will show that this Court was convinced to uphold the judgment of theHigh Court mainly for the reason that the State itself had ignored the 5 (1994) 2 SCC 521

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Adifference in the educational qualifications. In paragraph 13 of the decision,this Court held as follows:

“13. In the light of these salient features which are well establishedon record there would be no escape from the conclusion that butfor the difference in educational qualifications both these sets ofBemployees are similarly circumscribed. So far as the educationalqualifications’ difference is concerned that would have, asnoted above, made some vital difference but for the factthat the appellants themselves in their own wisdom thoughtit fit to ignore this difference in the educational qualificationsby offering a uniform time scale of Rs 1640-2900 to all postgraduateClecturers in higher secondary schools. ….”

36. In Director of Elementary Education, Odisha vs. PramodKumar Sahoo[7], this Court held that the classification based uponeducational qualification for the grant of higher pay scale, is a validclassification. This Court relied upon the decision in Shyam Babu VermaD(supra).

37. Therefore, it is clear that the classification based uponeducational qualification is not violative of Articles 14 and 16 of theConstitution. Hence, our answer to Issue No.1 will be in favour of theState and against the respondents.E

Question No.2: Whether Allopathy doctors and therespondents practicing alternative systems of medicine can be saidto be performing “equal work” so as to be entitled to “equal pay”?

38. The second question arising for consideration is as to whetherFthe holders of degrees and post-graduate degrees in indigenous and othernon-Allopathic Systems of Medicine can be said to be performing equalwork as the holders of degrees and postgraduate degrees in AllopathicSystems of Medicine, so as to be entitled to equal pay?

39. In the writ petition filed by them, it was claimed by therespondents herein that they were doing the same work as was done byGother medical officers holding MBBS degrees and that they were alsoserving in various Primary Health Centres/ Community Health Centres.They also claimed that even as per the job-chart of the General DutyMedical Officers, the duties performed by both categories of doctors H7 (2019) 10 SCC 674

STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.ETC. [V. RAMASUBRAMANIAN, J.]

are the same. The respondents further claimed that they held postsinterchangeable with those having MBBS degrees.40. The Government filed an affidavit before the High Courtcontending inter alia :- A

(i) that while General Hospitals and Government Hospitalscome under the Medical Services Department, PHCs,BCHCs and Government dispensaries come under the PublicHealth Department;

(ii) that in respect of medical services, doctors with MD/MSor postgraduate degree/diploma are appointed to Class-Ispecialist cadre; C

(iii) that Homoeopathy doctors are appointed to Class-III posts;

(iv) that Ayurved doctors are appointed to Class-II posts; and

(v) that there are lot of differences between the duties andresponsibilities discharged by both these categories ofdoctors.

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41. In paragraph 9 of the affidavit filed on 23.07.2013, on behalfof the Government before the Division Bench of the High Court, acomparative chart was provided. It reads as follows:- A42. Apart from the above comparative chart, the learnedGovernment Pleader also placed before the High Court, anothercomparative chart showing the various characteristics of Ayurvedicmedicine and Allopathic medicine. The High Court extracted the saidcomparative chart in paragraph 5 of the impugned order. Butunfortunately, the said chart is of no assistance to find out whether bothBthese categories of doctors are performing the same or similar dutiesand responsibilities, to be entitled to claim equal pay. The comparativechart extracted in paragraph 5 of the impugned order merely showswhat these two categories of doctors “can do” and the differentapproaches that the different systems of medicine have towards personsCsuffering from various illnesses. But an appreciation of thesecharacteristics will not empower the Court to direct the Government totreat both categories of doctors on par. Taking into consideration acomparative chart relating to the characteristics of both these types ofmedicine and not taking into consideration the comparative chart whichwe have extracted in paragraph 41 above, was the first mistakeDcommitted by the High Court in the impugned order.

43. As seen from paragraph 41 above, Allopathy doctors arerequired to perform emergency duties and to provide trauma care. Bythe very nature of the science that they practice and with the advancementof science and modern medical technology, the emergency duty thatEAllopathy doctors are capable of performing and the trauma care thatthey are capable of providing, cannot be performed by Ayurved doctors.

44. It is also not possible for Ayurved doctors to assist surgeonsperforming complicated surgeries, while MBBS doctors can assist. Weshall not be understood to mean as though one system of medicine isFsuperior to the other. It is not our mandate nor within our competence toassess the relative merits of these two systems of medical sciences. Asa matter of fact, we are conscious that the history of Ayurveda datesback to several centuries. The Encyclopaedia Britannica states that thegolden age of Indian medicine from 800 B.C., till 1000 A.D., was markedGby the production of two medical treatises known as “caraka-samhita”and “susruta-samhita”. The Britannica records in page 776 of Volume--23 (15th Edition) as follows:

“In surgery, ancient Hindu medicine reached its zenith. Operationsperformed by Hindu surgeons included excision of tumours, incisionand draining of abscesses, punctures to release fluid in the H

abdomen, extraction of foreign bodies, repair of anal fistulas,splinting of fractures, amputations, cesarean sections, and stitchingof wounds.

A broad array of surgical instruments were used. According toSusruta the surgeon should be equipped with 20 sharp and 101blunt instruments of various descriptions. The instruments werelargely of steel. Alcohol seems to have been used as a narcoticduring operations, and bleeding was stopped by hot oils and tar.

Hindu surgeons also operated on cataracts by couching ordisplacing the lens to improve vision.”

45. In a Book titled “Man and Medicine - A History” authoredby Farokh Erach Udwadia, an Emeritus Professor of Medicine(Allopathy) and published by Oxford University Press (2001 Edition), aninteresting event is reported at page No.43. It is about the documentedperformance of Rhinoplasty (for which Susruta was famous) witnessedand recorded in 1793 in Pune. A Parsee gentleman by the name ofCowasjee, who was serving the English Army at the time of the MysoreWar in 1792, was captured by the soldiers of Tipu Sultan. His nose andone hand was cut off. He and three of his friends, who had met with thesame fate, consulted a person who was only a bricklayer by profession.The bricklayer performed a surgery, which was witnessed by ThomasCruso and James Findlay, Senior British Surgeons in Bombay Presidency.They described and drew the skin graft procedure and the same waspublished in the Madras Gazette. It was later reproduced in the October1794 issue of the Gentleman’s Magazine of London. The surgery wasdescribed in the following words:- “A thin plate of wax is fitted to the stump of the nose so as tomake a nose of a good appearance, it is then flattened and laid onthe forehead. A line is drawn around the wax which is then of nofurther use and the surgeon then dissects off as much skin as ithad covered, leaving undivided a small slip between the eyes.This slip preserves the circulation till a union has taken placebetween the new and old parts.

The cicatrix of the stumps of the nose is next paired off andimmediately behind the new part an incision is made through theskin which passes around both alae, and goes along the upper lip.The skin now brought down from the forehead and being twisted AB

C

D

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Ahalf around, is inserted into this incision, so that a nose is formedwith a double hold above and with its alae and septum belowfixed in the incision.

A little Terra Japanica (pale catechu) is softened with water andbeing spread on slips of cloth, five or six of these are placed overBeach other to secure the joining. No other dressing but this cementis used for four days. It is then removed and clothes dipped inghee (clarified butter) are applied. The connecting slip of skin isdivided about the twentieth day, when a little more dissection isnecessary to improve the appearance of the new nose. Four, fiveor six days after the operation, the patient is made to lie on hisCback and on the tenth day bits of soft cloth are put into the nostrilsto keep them sufficiently open.”

46. The learned author of the Book Mr. Udwadia, goes on to saythat the above occurrence caught the attention of J.C. Carpue, a 30year old Surgeon in London. He successfully used the same skin graftDprocedure for nose repair on a patient in 1814. According to the learnedauthor, J.C. Carpue reported his successful results in 1816,introducing the “Hindu Surgical Technique” and with it, “The IndianNose” to the West.

47. After pointing out that Susruta recommended the use of aEfacial skin flap for repair of a cleft lip, the author of the Book states thatCarl Ferdinand Von Graefe (1747-1840) popularised the Indian SurgicalTechnique of plastic reconstruction of the nose in Germany and Europe.

48. It is common knowledge that smallpox vaccine was inventedby Dr. Edward Jenner, an English Physician in 1798. But on the occasionFof the opening ceremony of the King’s Institute of Preventive Medicinein February 1905 at Madras, the then Governor of Madras, Lord Ampthill,said the following:-

“It is also very probable, so Colonel King assures me, that theancient Hindus used animal vaccination secured by transmissionGof the smallpox virus through the cow, and he bases this interestingtheory on a quotation from a writing by Dhanwantari, the greatestof the ancient Hindu physicians, which is so striking and soappropriate to the present occasion that I must take the liberty ofreading it to you. It is as follows:

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“Take the fluid of the pock on the udder of the cow or onthe arm between the shoulder and elbow of a human subjecton the point of a lancet, and lance with it, the arm betweenthe shoulders and elbows until the blood appears : thenmixing the fluid with the blood the fever of the smallpoxwill be produced. This is vaccination pure and simple. Itwould seem from it that Jenner’s great invention wasactually forestalled by the ancient Hindus.”

49. Therefore, we have no doubt that every alternative system ofmedicine may have its pride of place in history. But today, the practitionersof indigenous systems of medicine do not perform complicated surgicaloperations. A study of Ayurved does not authorise them to perform thesesurgeries.

50. Similarly, a post-mortem or autopsy is not carried out by/in thepresence of Ayurved doctors. Section 174 of the Code of CriminalProcedure, 1973[8]deals with the procedure for the police to inquire andreport on suicide, etc. Sub-section (3) of Section 174 mandates that thepolice officer shall, subject to such rules as the State Government mayprescribe, forward the dead body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointedin this behalf by the State Government, in certain types of cases such as,(i) suicide by a woman within seven years of marriage; (ii) death of awoman within seven years of marriage in certain circumstances; and(iii) cases where there are any doubts regarding the cause of death.

51. Section 176 of Cr.P.C deals with inquiry by Magistrates intocause of death. Sub-section (5) of Section 176 uses similar words namely“Civil Surgeon or other qualified medical man”. We do not think thatthe AYUSH doctors are normally notified as competent to perform post-mortem.

52. It is common knowledge that during out-patient days (OPD)in general hospitals in cities/towns, MBBS doctors are made to attend tohundreds of patients, which is not the case with Ayurved doctors.

53. In the comparative chart extracted in paragraph 41 above, theState of Gujarat have claimed that IV injections and ART injectionscannot be administered by Ayurved doctors.

8 For short “Cr.P.C“

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B

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54. Therefore, even while recognizing the importance of Ayurveddoctors and the need to promote alternative/indigenous systems ofmedicine, we cannot be oblivious of the fact that both categories ofdoctors are certainly not performing equal work to be entitled to equalpay. Hence, Issue No.2 has to be answered in favour of the appellant-State and against the respondents.

A

B

Conclusion

55. In view of our answer to both the issues, the Civil Appeals areliable to be allowed and the impugned order of the High Court is liable tobe set aside. As a sequitur, the benefits derived by the respondents byCvirtue of the interim order passed by this Court on 08.09.2014, are liableto be recovered from the respondents. In the normal course, we wouldnot have desired to allow the State to effect recovery but for the factthat a few doctors have received and a few have not. Among the Ayurveddoctors, we cannot make a classification between those who have alreadyreceived some benefits by virtue of the interim order of this Court datedD08.09.2014 and those who have not received such benefits. Moreover,we cannot overlook the fundamental principle that a benefit derived byan individual by virtue of an interim order passed by a Court cannot beallowed to be retained, if the ultimate outcome of the case went againstsuch a person.

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56. Therefore, all the appeals are allowed, the impugned order ofthe High Court is set aside and the writ petitions filed by the respondentsare dismissed. The contempt petitions are also dismissed along with allinterlocutory applications including the impleadment application(s). Nocosts.

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Nidhi Jain(Assisted by : Mayank Batra, LCRA)

Appeals allowed.

G

H