# Dr. Om Prakash Gupta & Anr v. State of U.P. & Anr

- **Citation:** (2022) 5 ILRA 1019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-06
- **Case number:** Writ A No. 8366 of 2017
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-om-prakash-gupta-anr-v-state-of-u-p-anr-48391
- **Pages:** 9

## Headnote

A. Service Law - Dynamic/Special Assured
Career Progression (SACP) - An exception
has been carved out for the Medical
Officers, PMHS while implementing SACP,
which in the opinion of the Court is
discriminatory, insofar as it excludes the
other Medical Officers practising medicine
in different streams. (Para 26, 28)
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
Concept of ACP is the tied over stagnation on
a post and to grant financial upgradation to the
government servants, it is not based on the
concept of equal pay for equal work or the
nature of duties being performed by the
government servant. It is applicable across the
board from Class-D employee to the highest
rank officer, wherever such government servant
suffers stagnation. (Para 26)

The ACP Scheme in general is not an incentive
scheme resting upon to the nature of duty,
responsibility or qualification of the government
servant. The ACP Scheme, primarily, is to tide
over the stagnation which a government
servant, irrespective of his duty, post, pay,
qualification
or
seniority,
suffers
due
to
stagnation on a post without earning promotion.
The ACP Scheme, in the circumstances, provides
for pay up-gradation to the government servant
which is purely personal. (Para 27)The State
Government is justified in not accepting the
Dynamic ACP formulated
by the Central
Government for its Medical Officers, instead
formulated the SACP scheme falling within the
realme of administrative policy. But the question
is whether such a policy upon being provided
can discriminate amongst different streams of
medicine
practised
by
Medical
Officers.
Admittedly, the Medical Officers, irrespective of
the
stream
of
medicine
(Allopathy
or
conventional) treat the patients which is the
core underlying similarity. The comparison
with regard to qualification, course of
study/syllabus,
nature
of
duty,
responsibility etc. as is being pressed by
the State Government to carve out a class
of Medical Officers i.e. PHMS being
superior to other Medical Officers is
misconceived and unfounded insofar it
relates to conferment of SACP. The
administrative
policy
is
invariably
discriminatory in keeping the Medical
Officers (Ayurvedic) and other streams out
of the scheme having regard to the
concept of ACP. (Para 31)

Writ petition allowed. (E-4)

Precedent followed:

## Text

5 All. Dr. Om Prakash Gupta & Anr. Vs. State of U.P. & Anr.
1019

22. The specific need that the
landlord set up has come to an end with
his life that the long course of these
proceedings have defeated by sheer lapse
of time. Even if a member of the
landlord's family, within the meaning of
Section 3(g) of the Act were alive, the
prayer for release could have been
considered because the landlord had
sought release for the purpose of his
residence and to set up his chamber. The
bona fide need for the purpose of the
landlord's residence would include the
interest of a person who was a member of
his family, particularly one who was
residing with the landlord, within the
meaning of Section 3(g) of the Act. Here,
the landlord's wife was not staying with
him and upon his death, has not come
forward to seek substitution in his stead.

23. The heirs and LRs, who have been
substituted, claim on the basis of a
registered will dated 19.06.2020. It is the
case of the heirs and LRs themselves set
out in the affidavit that they have filed, in
support of the substitution application, that
they are the landlord's nephews. They are
the sons of his brother Vishnu Pal Singh.
No doubt, they have stepped into the
landlord's shoes, but the landlord's bona
fide need cannot enure to their benefit. If
the landlord's widow or a son had asked to
pursue release for the purpose of his/ their
residence, being members of his family as
defined under Section 3(g) of the Act, they
would be entitled to maintain the release
application. This would be so because a
member of the landlord's family would be
sharing the landlord's bona fide need for
residential purpose. Here, the heirs and LRs
who have come on record are the sons of
the landlord's brother and claim through a
testamentary disposition. Thus, if the heirs
and LRs of the landlord do have a case of
bona fide need of their own, it would be
generically different and unconnected to
the landlord's case. If the heirs and LRs of
the landlord have a case of bona fide need
as aforesaid, they would be free to pursue it
by
instituting
appropriate
proceedings
before the Prescribed Authority or other
Court of competent jurisdiction, as may be
advised. However, so far as the present writ
petition is concerned, no relief can be
granted in favour of the heirs and LRs of
the landlord.

24. In the result, subject to the above
clarification about the rights of heirs and
LRs of the landlord, this writ petition fails
and is dismissed.
----------
(2022)05ILR A1019
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 8366 of 2017
along with
Writ A No. 32882 of 2019

Dr. Om Prakash Gupta & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Avinash Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - Dynamic/Special Assured
Career Progression (SACP) - An exception
has been carved out for the Medical
Officers, PMHS while implementing SACP,
which in the opinion of the Court is
discriminatory, insofar as it excludes the
other Medical Officers practising medicine
in different streams. (Para 26, 28)
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
Concept of ACP is the tied over stagnation on
a post and to grant financial upgradation to the
government servants, it is not based on the
concept of equal pay for equal work or the
nature of duties being performed by the
government servant. It is applicable across the
board from Class-D employee to the highest
rank officer, wherever such government servant
suffers stagnation. (Para 26)

The ACP Scheme in general is not an incentive
scheme resting upon to the nature of duty,
responsibility or qualification of the government
servant. The ACP Scheme, primarily, is to tide
over the stagnation which a government
servant, irrespective of his duty, post, pay,
qualification
or
seniority,
suffers
due
to
stagnation on a post without earning promotion.
The ACP Scheme, in the circumstances, provides
for pay up-gradation to the government servant
which is purely personal. (Para 27)The State
Government is justified in not accepting the
Dynamic ACP formulated
by the Central
Government for its Medical Officers, instead
formulated the SACP scheme falling within the
realme of administrative policy. But the question
is whether such a policy upon being provided
can discriminate amongst different streams of
medicine
practised
by
Medical
Officers.
Admittedly, the Medical Officers, irrespective of
the
stream
of
medicine
(Allopathy
or
conventional) treat the patients which is the
core underlying similarity. The comparison
with regard to qualification, course of
study/syllabus,
nature
of
duty,
responsibility etc. as is being pressed by
the State Government to carve out a class
of Medical Officers i.e. PHMS being
superior to other Medical Officers is
misconceived and unfounded insofar it
relates to conferment of SACP. The
administrative
policy
is
invariably
discriminatory in keeping the Medical
Officers (Ayurvedic) and other streams out
of the scheme having regard to the
concept of ACP. (Para 31)

Writ petition allowed. (E-4)

Precedent followed:

1. North Delhi Municipal Corporation Vs Dr. Ram
Naresh Sharma & ors., Civil Appeal No. 4578 of
2021, Arising out of SLP (C) No(s) 10156/2019
(Para 12)

2. Dr. Sanjay Singh Chauhan & ors. Vs St. of
Uttarakhand & ors., Writ Petition No. 484 of
2014 (S/B) (Para 14)

Precedent distinguished:

1. Mewa Ram Kanojia Vs All India Institute of Medical
Sciences & ors., (1989) 2 SCC 235 (Para 18)

2. St. of M.P. Vs R.D. Sharma & ors., Civil
Appeal Nos. 474-475 of 2022 (Arising out of SLP
(Civil) Nos. 547-548 of 2021), decided on
27.01.2022 (Para 18)

3. Dr. Puneet Kumar Gupta & anr. Vs U.O.I.
through Secy. Ministry of Health and Family &
ors., Service Bench No. 738 of 2015 (Para 18)

4. S.C. Chandra & ors. Vs St. of Jharkhand &
ors., (2007) 8 SCC 279 (Para 18)

Present
petition
assails
order
dated
28.02.2017, passed by Principal Secretary,
Department of Finance, Civil Secretariat,
Lucknow.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Avinash Tiwari, learned
counsel for the petitioners and Sri Kuldeep
Pati Tripathi, learned Additional Advocate
General,
assisted
by
learned
Standing
Counsel appearing for the State-respondents
and perused the record with the assistance of
the learned counsels for the parties.

2. Both the writ petitions are being
heard and decided together on the consent of
the parties.

3. The facts and questions of law arising
in the writ petitions are identical.

4. The facts of Writ Petition No. 8366
of 2017 is being adverted to for the sake of
convenience.
5 All. Dr. Om Prakash Gupta & Anr. Vs. State of U.P. & Anr.
1021

5. The petitioners are confirmed Class-II
Officers on the post of Medical Officers
(Ayurvedic); the first petitioner claims to be the
President of Prantiya Ayurvedic Evam Unani
Chikitsa Seva Sangh (for short ''Association')
duly recognized by the second respondent,
Principal Secretary, Department of Medical
Education and Ayush (Ayush Anubhag-1), Civil
Secretariat, Lucknow. Petitioners are working
in the Pay-Scale at Rs. 15600-39100 and Grade
Pay at Rs. 6600/-.

6. The instant petition is directed
against the order dated 28.02.2017, passed by
the first respondent, Principal Secretary,
Department of Finance, Civil Secretariat,
Lucknow, whereby, the representation of the
first petitioner claiming the benefit of
Dynamic/Special Assured Career Progression
(for short ''SACP') Scheme made admissible
to the Medical Officers of the Provincial
Medical Health Services (for short ''PMHS'),
has been rejected. Further, a direction has
been sought to grant the Medical Officers
(Ayurvedic) the benefits of SACP w.e.f. the
date it has been allowed to the Medical
Officers of PMHS.

7. The facts, inter se parties, are not
disputed.

8. The Medical Officers PMHS
practice Allopathy stream of medicine. It
appears that Medical Officers PMHS made
a representation to the State Government
for implementation of Dynamic ACP
Scheme as made admissible to the Medical
Officers under the Central Government. On
considering their representation, the State
Government vide order dated 14.11.2014,
framed a scheme on the recommendation of
the Committee. The SACP, primarily,
provides that the Medical Officers PMHS
would be entitled to upgradation of pay on
completing 4, 11, 17 and 24 years of
satisfactory service. The scheme was made
applicable w.e.f. 01.12.2008. The relevant
portion of the Government Order dated
14.11.2014, for the purposes of the instant
writ petition, is extracted:

**1⁄411⁄2 izknsf'kd fpfdRlk ,oa LokLF; lsok
1⁄4ih0,e0,p0,l01⁄2 ds fpfdRldksa ds fy, dsUnzh;
fpfdRldksa ds leku Mh0,0lh0ih0 dh O;oLFkk ykxw
djus dk vkSfpR; ugh gSA

1⁄421⁄2 ih0,e0,p0,l0 laoxZ ds fy,
,0lh0ih0 dh fof'k"V O;oLFkk fu/kkZfjr dh tk;sA
rnuqlkj ,0lh0ih0 dh fof'k"V O;oLFkk ds vUrxZr
ih0,e0,p0,l0 laoxZ ds izFke Lrj ds in 1⁄4osrueku
:0 8000&13500@ led{k osrueku@ iqujhf{kr osru
lajpuk esa lkn`'; osru cS.M&3 ,oa xzsM osru :0
5400@&1⁄2 ij fu;qfDr dh frfFk ls fuEu rkfydk ds
LrEHk&2 esa mfYyf[kr lsokof/k ij mlds lEeq[k
LrEHk&3 ds vuqlkj oS;fDrd osru cS.M ,oa xzsM osru
vuqeU; djk;s tk;s%&

dz0 la0 ih0,e0,p0,l0 laoxZ esa
izFke Lrj ds in ij
fu;qfDr dh frfFk ls
lsokof/kA
,0lh0ih0 dh fof'k"V O;oLFkk ds
vUrxZr oS;fDrd :i ls vuqeU;
osru cS.M ,oa xzsM osruA
1
04 o"kZ dh fujUrj
larks"ktud lsokA
osru cS.M&3 ,oa xzsM osru :0
6600@&
2
dqy 11 o"kZ dh fujUrj
larks"ktud lsokA
Oksru cS.M&3 ,oa xzsM osru :0
7600@&
3
dqy 17 o"kZ dh fujUrj
larks"ktud lsokA
osru cS.M&4 ,oa xzsM osru :0
8700@&
4
dqy 24 o"kZ dh fujUrj
larks"ktud lsokA
osru cS.M&4 ,oa xzsM osru :0
8900@&

9. The petitioners herein belong to a
different stream of medicine i.e. Ayurvedic
and are entitled to the General ACP Scheme
applicable to all other government servants
which was conferred by the Government
Order dated 04.05.2010, wherein, upon
stagnation on a post the government
servant is entitled to upgradation of pay at
10, 18 and 26 years of service. The relevant
portion of the Government Order dated
04.05.2010 reads thus:

** 1⁄421⁄2 1⁄4i1⁄2 ,0lhih0 ds vUrxZr lh/kh
HkrhZ ds fdlh in ij izFke fu;fer fuq;fDr dh
frfFk ls 10 o"kZ] 18 o"kZ o 26 o"kZ dh vuojr
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
larks"ktud lsok ds vk/kkj ij rhu foRrh;
LrjksUu;u fuEu izfrcU/kkas ds v/khu vuqeU; fd;s
tk;saxs%&

1⁄4d1⁄2 izFke foRrh; LrjksUu;u lh/kh
HkrhZ ds in ds osrueku@ lkn`'; xzsM osru esa
10 o"kZ dh fu;fer lsok fujUrj lUrks"ktud :i
ls iw.kZ dj ysus Ikj ns; gksxkA**

10. The General ACP Scheme came to
be modified vide Government Order dated
05.11.2014 providing upgradation of pay
on satisfactory completion of 8/16/24 years
of service.

11. In this back drop, it is submitted
by the learned counsel for the petitioners
that the petitioners who are Medical
Officers (Ayurvedic) and were inducted by
the State Government on the same pay
scale/band as admissible to the Medical
Officers PMHS have been discriminated,
merely, because they belong to and practise
conventional stream of medicine as against
modern medicine. It is submitted that the
nature and duties of the Medical Officers
rendering medical services in different
streams of medicine is not comparable but
the primary duty being performed by the
Medical Officers (Ayurvedic) is the same
i.e. treating patients and number of hours of
duty is comparable with the Medical
Officer of PMHS. It is further sought to be
urged that the issue being raised in the
instant writ petition is not based on
comparison/parity with the other stream of
medical science or treatment. The benefit
of SACP admissible to the Medical
Officers
PMHS,
excluding,
Medical
Officers of their streams viz. Ayurvedic
/Unani/Dental
is
discriminatory.
The
concept of ACP is based on the principle of
tiding over stagnation on a post, ACP, per
se, is not an incentive scheme so as to
discriminate between Medical Officers
engaged in different stream of medical
treatment and practice. It is further
submitted that the Dynamic ACP Scheme
was made admissible to all the medical
officers of the Central Health Service,
irrespective, of the stream of medicine they
practice, whereas, State Government while
implementing the SACP has confined it to
the Medical Officers PMHS (Allopathy).

12.

Learned
counsel
for
the
petitioners, in support of his submission,
has placed reliance on the decision
rendered by the Supreme Court in North
Delhi Municipal Corporation Versus Dr.
Ram Naresh Sharma and others1.

13. The issue before the Court was
with regard to the discrimination in the age
of superannuation of the medical officers
vis-a-vis dentist and doctors covered under
the AYUSH, including, Ayurvedic doctors.
The Court was of the opinion that the
classification of AYUSH doctors and other
doctors of Central Health Scheme (for short
''CHS') in different categories is not
reasonable and permissible under law. The
doctors, both under AYUSH and CHS,
render service to patients and on this core
aspect, there is nothing to distinguish them.
It was held that there was no rational
justification for having different dates for
bestowing the benefit of extended age of
superannuation to these two categories of
doctors. Paragraph nos.22 and 23 are
extracted:

"22. The common contention of
the
appellants
before
us
is
that
classification of AYUSH doctors and
doctors under CHS in different categories
is reasonable and permissible in law. This
however does not appeal to us and we are
inclined to agree with the findings of the
Tribunal and the Delhi High Court that the
classification
is
discriminatory
and
5 All. Dr. Om Prakash Gupta & Anr. Vs. State of U.P. & Anr.
1023
unreasonable since doctors under both
segments are performing the same function
of treating and healing their patients. The
only difference is that AYUSH doctors are
using indigenous systems of medicine like
Ayurveda, Unani, etc. and CHS doctors are
using Allopathy for tending to 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
of
the
Constitution. The order of AYUSH Ministry
dated 24.11.2017 extending the age of
superannuation to 65 Years also endorses
such a view. This extension is in tune with
the notification of Ministry of Health and
Family Welfare dated 31.05.2016.

23. 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. Hence, the order
of
AYUSH
Ministry
(F.
No.
D.
14019/4/2016-E-1
(AYUSH))
dated
24.11.2017 must be retrospectively applied
from
31.05.2016
to
all
concerned
respondent-doctors, in the present appeals.
All consequences must follow from this
conclusion."

14. Further, reliance has been placed
on the decision rendered by the High Court
of Uttarakhand in Dr. Sanjay Singh
Chauhan and others versus State of
Uttarakhand and others2.

15. The issue before the High Court
was as to whether the Medical Officers
(AYUSH) appointed on contract could be
discriminated with their counter parts in
other streams insofar as salary given to the
Medical Officers (Allopathy) and Dental
Medical Officers. The High Court allowed
the writ petition. Para 10 reads thus:

"10. In the instant case, the duties
discharged by the petitioners viz-a-viz
Allopathic Medical Officers and Dental
Medical Officers are of equal sensitivity
and quality, even the responsibility and
reliability are the same. The classification
made
by
the
State
Government
is
irrational."

16. State of Uttrakhand carried the
decision in appeal3, the Supreme Court
dismissed the appeal in limine vide order
dated 24.03.2022 making the following
observations:

"Having heard learned counsel
for the parties and considering the facts
and circumstances of the case, we do not
find any ground for interference with the
order passed by the High Court. The
special leave petition is, accordingly,
dismissed.

However, we may only clarify that
the respondents who are Ayurvedic doctors
will be entitled to be treated at par with
Allopathic Medical Officers and Dental
Medical Officers under the National Rural
Health Mission (NRHM/NHM) Scheme.

After the order was passed,
learned counsel for the petitioners made a
statement that petitioners would like to file
a review petition before the High Court. It
is not for this Court to issue any such
direction. It is always open to the
petitioners to pursue such remedy as may
be available to them in law."

17. In rebuttal, learned counsel
appearing for the State-respondents submits
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
that the reasons assigned conferring SACP
to the Medical Officers PMHS as against
Medical Officers (Allopathy) is noted in the
impugned order. The qualification of the
Medical Officers of different streams is not
comparable;
the
nature
of
duties,
responsibility and treatment is entirely
different; the Medical Officers of other
streams,
including,
Medical
Officers
(Ayurvedic) are not engaged in Medico
Legal work; further, the Medical Officers
PMHS perform complicated surgery and
they are not paid Non-Practising Allowance
(NPA), whereas, the petitioners, Medical
Officers (Ayurvedic), are allowed private
practice.

18. In this backdrop, it is submitted
by
learned
counsel
for
the
Staterespondents that to encourage the Medical
Officers PMHS, the SACP Scheme was
formulated in respect of a class of Medical
Officers, excluding, Medical Officers of
other streams. It is further submitted that
the petitioners have not been discriminated
against as they are entitled to ACP Scheme
as is applicable to all the employees of the
State Government vide Government Order
dated 04.05.2010. In support of his
submission reliance has been placed on the
following authorities: Mewa Ram Kanojia
Versus All India Institute of Medical
Sciences and others4, State of Madhya
Pradesh
Versus
R.D.
Sharma
and
others5, Dr. Puneet Kumar Gupta and
another Versus Union of India through
Secy. Ministry of Health and Family and
others6, S.C. Chandra and others Versus
State of Jharkhand and others7.

19. The authorities relied upon by the
learned counsel appearing for the Staterespondents is of no assistance as the
decisions pertain to the concept and
principle of equal pay for equal work. It is
noted therein that the principle of equal pay
for equal work cannot be invoked in every
kind of service, particularly, in the area of
professional services.

20. The issue in the given facts is not
with regard to equal pay for equal work,
but the Scheme formulated for Career
Progression to tide over stagnation on a
post.

21. On perusal of the ACP Scheme
and
the
relevant
stipulations
and
conditions, therein, it is evident that the
scheme offers higher pay scale/financial
upgradation
only
to
those
eligible
government
servants
who
remained
deprived of regular promotions. For such
deprivation, they are compensated by grant
of monetary benefits on purely personal
basis i.e. not dependent upon the post or
seniority. The financial upgradation does
not amount to functional/regular promotion
and does not require creation of new posts.
The financial upgradation under the scheme
shall be available only if no regular
promotions during the prescribed periods
have been availed by the government
servant. In other words, the ACP Scheme is
compensatory and not an incentive scheme
to a class of government servants.

22. On specific query, learned counsel
appearing for the State-respondents submits
that the Medical Officers are inducted on
the same pay scale/band and pay-grade at
the entry level in the services, however, in
the case of Medical Officers PMHS,
different pay scale/band and pay-grade is
admissible
depending
upon
their
specialization
or
super
specialty/qualifications. The petitioners,
admittedly, are not claiming equal pay for
equal work or the pay scale/band and or
pay-grade admissible to the specialist or
5 All. Dr. Om Prakash Gupta & Anr. Vs. State of U.P. & Anr.
1025
super
specialist.
The
claim
of
the
petitioners is confined to a Scheme made
applicable to a class of Medical Officers
(Allopathy),
excluding
other
Medical
Officers (AYUSH).

23. The contention of the petitioners
is that a class of Medical Officers, insofar
as, it relates to the benefit of SACP have
been discriminated against without any
justification or rational, merely for the
reason that they are rendering medical
service in different streams of medical
science. The petitioners herein have been
inducted as Medical Officers and are
performing duties in various AYUSH and
Unani Hospitals as has been detailed in
para-10 of the writ petition, which is
extracted:

"10. That opposite party no. 1
rejected the case of petitioners as in
regard of their whole cadre on the fake
ground as work and responsibilities are
not
same
and
Medical
Officers,
Ayurvedic are not doing emergency
services and surgery and Medico legal
work."

24. The averments have not been
denied by the State-respondents in the
counter affidavit. On a bare perusal of the
Government Order dated 14.11.2014, while
conferring SACP, the State Government
declined the Dynamic ACP applicable to
the
Medical
Officers
of
the
CHS,
irrespective of the stream of specialization
i.e.
Allopathy/Ayurvedic/Unani/Dental.
Whereas, SACP has been made applicable
to Medical Officers PMHS and the Medical
Officers of other streams i.e. AYUSH/
Dental have been kept out of the scheme.

25. On specific query, learned counsel
appearing for the State-respondents admits
that the Dynamic ACP has been made
applicable to all the Medical Officers
irrespective of their streams, but submits
that the State Government is not bound to
implement
the
Central
Government
Scheme in totality.

26. Concept of ACP is the tied over
stagnation on a post and to grant financial
upgradation to the government servants, it
is not based on the concept of equal pay for
equal work or the nature of duties being
performed by the government servant. It is
applicable across the board from Class-D
employee to the highest rank officer,
wherever such government servant suffers
stagnation. However, an exception has been
carved out for the Medical Officers, PMHS
while implementing SACP, which in the
opinion of the Court is discriminatory,
insofar as it excludes the other Medical
Officers practising medicine in different
streams.

27. The ACP Scheme in general is not
an incentive scheme resting upon to the
nature
of
duty,
responsibility
or
qualification of the government servant.
The ACP Scheme, primarily, is to tide over
the stagnation which a government servant,
irrespective
of
his
duty,
post,
pay,
qualification or seniority, suffers due to
stagnation on a post without earning
promotion. The ACP Scheme, in the
circumstances,
provides
for
pay
upgradation to the government servant which
is purely personal.

28. In this backdrop, having regard to
the scope and nature of the ACP scheme,
the question that arises is as to whether the
Medical
Officers
rendering
medical
services in different streams can be
discriminated as against Medical Officer
PMHS depriving the SACP. In alternative,
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
whether Medical Officer (Ayurvedic) are
entitled to be treated at par with Medical
Officer PMHS under the SACP scheme.

29. It goes without saying that the
Western medicine (Allopathy) is integral to
our current health care system, but so are
other alternative and complementary health
care modalities that are available for the
people to choose. Western medicine is
sometimes at a loss when it comes to
treating the patients holistically. The
submission of the learned State Counsel
that the classification of Medical Officer
(Ayurvedic) and Medical Officers PMHS is
reasonable for the purposes of SACP
having regard to their qualification and the
nature of duties is not convincing. The
classification
is
discriminatory
and
unreasonable since Medical Officers of
both the segments are primarily performing
the same function i.e. treating the patients.
The difference is that one stream of doctors
are using indigenous system of medicine
and the other stream Allopathy for treating
their patients. The mode of treatment, by
itself does not qualify as an intelligible
differentia. At the root is treatment of
patients. The Medical Officers, both
Ayurvedic and Allopathy render medical
service to the patients and on this aspect,
there is nothing to distinguish them.
Treatment of patients is the core function
common to the Medical Officers of
different streams, therefore, no rational
justification is seen to having different ACP
scheme of bestowing the benefit of career
progression
to
Medical
Officers. As
discussed earlier, the ACP scheme is
personal
to
the
government
servant
suffering
stagnation
and
the
pay
upgradation does not rest upon any other
consideration
viz.
status
of
post,
qualification, nature of duty or seniority.
The scheme is purely compensatory. In the
circumstances the Medical Officers of the
State cannot be discriminated against by
providing different period of service to earn
the
benefit
of
career
progression.
Therefore, the classification on face value
is discriminatory and violative of Article 14
of the Constitution of India.

30. AYUSH is an acronym for
Ayurveda, Yoga and Naturopathy, Unani,
Siddha and Homeopathy are the six Indian
system
of
medicines
prevalent
and
practised in India. A department called the
departments of Indian system of medicine
was created in 1995 and renamed AYUSH
in 2003 with a focus to provide increased
attention for the development of these
systems. This was felt in order to give
increased attention to these systems in the
presence of a strong counterpart in the form
of Allopathic system of medicine. This took
a reverse turn after the initiation of
National Rural Health Mission (NRHM)
and the AYUSH systems were brought into
the
mainstream
health
care.
NHRM
introduced the concept of mainstreaming of
AYUSH and revitalization of local health
traditions. This concept helped in utilizing
the
untapped
AYUSH
workforce,
therapeutics
and
the
principle
of
management
of
community
health
problems at different levels. The envisaged
objective, inter alia, was to provide choice
of the treatment system to the patients and
strengthen implementation of national
health programs.

31. The State Government is justified
in not accepting the Dynamic ACP
formulated by the Central Government for
its Medical Officers, instead formulated the
SACP scheme falling within the realme of
administrative policy. But the question is
whether such a policy upon being provided
can discriminate amongst different streams
5 All. Rajendra Prasad Kureel & Ors. Vs. State of U.P. & Ors.
1027
of medicine practised by Medical Officers.
Admittedly,
the
Medical
Officers,
irrespective of the stream of medicine
(Allopathy or conventional) treat the
patients which is the core underlying
similarity. The comparison with regard to
qualification, course of study/syllabus,
nature of duty, responsibility etc. as is
being pressed by the State Government to
carve out a class of Medical Officers i.e.
PHMS being superior to other Medical
Officers is misconceived and unfounded
insofar it relates to conferment of SACP.
The administrative policy is invariably
discriminatory in keeping the Medical
Officers (Ayurvedic) and other streams out
of the scheme having regard to the concept
of ACP as discussed earlier.

32. Accordingly, the writ petition is
allowed.

33. The impugned order dated
28.02.2017, passed by the first respondent,
Principal Secretary, Department of Finance,
Civil Secretariat, Lucknow, is set aside and
quashed. It is provided that the Special
ACP Scheme (SACP) implemented vide
Government Order dated 14 November
2014, shall be applicable to the Medical
Officers of other streams.

34. No cost.
----------
(2022)05ILR A1027
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Writ A No. 5962 of 2017
along with
Writ A No. 11470 of 2016
Rajendra Prasad Kureel & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mohammad Naseerullah, D.P. Tyagi, I.M.
Pandey Ist, Param Shanker

Counsel for the Respondents:
C.S.C.

A. Service Law - Pay Upgradation -
Assured Career Progression (A.C.P.)- The
sole question that arise for consideration is, as
to whether the services of the petitioners'
appointment/recruited
by
way
of
deputation would count towards A.C.P. or
from the date of merger with the third
respondent. (Para 14)

The State Government on 04.05.2010,
issued
a
GO
addressed
to
all
the
Secretaries/Heads of the department to
implement the A.C.P. scheme pursuant to
the
recommendations
of
the
Pay
Committee (2008). The GO, inter alia,
provides that all government servants appointed
by way of direct recruitment on any post, from
the
date
of
their
first
regular/confirmed
appointment, are entitled to pay upgradation on
completing satisfactory continuous service of 10
years, 18 years and 26 years respectively. In
other words the first A.C.P. would be granted on
completion of 10 years of satisfactory service
and the subsequent upgradation would be on
completion of 16/26 years of satisfactory
service, as the case may be. The GO further
provides that in case a government servant in
between earns a promotion, then he shall not
be entitled to the subsequent upgradation but
would be entitled to A.C.P. on completing that
many years of service, from the date of
promotion. (Para 15)

Attention of the Court has been drawn to
the subsequent GO issued on 05.11.2014
bringing slight modification to the A.C.P.
Scheme.
There
is
no
modification
or
amendment in the scheme, save the entitlement
of A.C.P., has been made applicable on
completing satisfactory services i.e. 08 years, 16