# Dr. Ram Suresh Rai & Ors v. U.O.I

- **Citation:** (2022) 11 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-19
- **Case number:** Writ-A No. 23479 of 2019
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ram-suresh-rai-ors-v-u-o-i-47938
- **Pages:** 17

## Headnote

Civil Law - Constitution of India,1950 -
Article 14 & 226 - Writ Petition - Petitioners
who are Ayush Doctors engaged on contractual
basis under the NHRM Scheme - challenging the
rejection order by which Govt. denied to grant
equivalent honorarium as given to the Allopathic
Doctors - on the ground of qualification, nature
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1021
of duties, responsibility & treatment which are
different in comparable - plea of petitioners,
that a class of Medical officers have been
discriminated, in so far as it relates to the
benefit of SACP, without any justification or
rational reason - court find - Govt. declined the
Dynamic ACP applicable to the Medical Officers
of the CHS, irrespective of the stream of
specialization (i.e. Allopathiy/ Ayurvedic/ Unani/
Dental) - The ACP scheme in general is not an
incentive scheme resting U.P.on to the nature of
duty, responsibility or qualification of the Govt.
Servant - The comparison by the St. Govt. to
carve out a class of Medical officers i.e. PHMS
being sU.P.erior to other medical officers is
misconceived and unfounded - impugned order
quashed - direction issued - the Special ACP
Scheme shall be applicable to the Medical
Officers of other streams also - Writ Petition
Allowed. (Para - 28, 34, 42, 43, 44)

Writ Petition is Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,954 of 58,413. This is a partial read: ask again with offset=39954 for what follows._

1020 INDIAN LAW REPORTS ALLAHABAD SERIES
wrath of section 2 of the ''Qualifying
Service Act'. Therefore, the petitioners
never became the sacrificial offering
contemplated under Rule 34 of the
''Applicable Rules', as may have visited
them the sufferance of the amended
''Government Employees Rules'.

48. If any clarification was ever
necessary, the same is contained in the
above amendments, itself. The ''Qualifying
Service Act' is a creature of the State
legislature. Also, both sets of Rules
namely, the 'Government Employees Rules'
and the 'Applicable Rules' are rules framed
under Article 309 of the Constitution of
India. The State having chosen to amend
only the law pertaining to government
servants including the set of Rules
applicable to them, without making any
parallel effort to amend the other set of
Rules applicable to teachers at State-aided
educational institutions, it is impossible to
conceive - the petitioners' rights to pension
have been altered. In fact, the exact
opposite is true.

49. In view of the above, denial of the
claim made by the petitioners' is found to
be contrary to law. The impugned orders
are set aside. A positive direction is issued
to
the
Deputy
Director
Secondary
Education, Uttar Pradesh (as impleaded in
individual cases) to complete all formalities
and compute the pension payable to each
respective petitioner and to ensure its
timely payment. For that purpose, period of
two months is granted to the said
respondent to compute the individual
pension amount payable to individual
petitioners, after including the ad hoc
service rendered by each petitioner, before
regularisation
of
his
service
in
the
''qualifying
service'
rendered
for
the
purpose of the ''Applicable Rules'. The
pension together with its dues so computed
may be paid out within a further period of
one month. Failing that, the petitioner
concerned shall be entitled to interest @ of
8% from today till the date of actual
payment.

50. With the above directions, the writ
petitions stand allowed. No order as to
costs.

51. The Court may record its
appreciation for the spirited submissions
advanced by the younger members of the
Bar. Unless the younger bar takes up the
mantle in time, the critical interests of
institution may remain unserved.
----------
(2022) 11 ILRA 1020
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 23479 of 2019

Dr. Ram Suresh Rai & Ors. ...Petitioners
Versus
U.O.I. ...Respondent

Counsel for the Petitioners:
SAmrendra
Nath
Tripathi,
Kumkum
Tripathi, Lalta Prasad Misra

Counsel for the Respondent:
C.S.C., Puneet Chandra, Ravi Shanker
Tewari

Civil Law - Constitution of India,1950 -
Article 14 & 226 - Writ Petition - Petitioners
who are Ayush Doctors engaged on contractual
basis under the NHRM Scheme - challenging the
rejection order by which Govt. denied to grant
equivalent honorarium as given to the Allopathic
Doctors - on the ground of qualification, nature
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1021
of duties, responsibility & treatment which are
different in comparable - plea of petitioners,
that a class of Medical officers have been
discriminated, in so far as it relates to the
benefit of SACP, without any justification or
rational reason - court find - Govt. declined the
Dynamic ACP applicable to the Medical Officers
of the CHS, irrespective of the stream of
specialization (i.e. Allopathiy/ Ayurvedic/ Unani/
Dental) - The ACP scheme in general is not an
incentive scheme resting U.P.on to the nature of
duty, responsibility or qualification of the Govt.
Servant - The comparison by the St. Govt. to
carve out a class of Medical officers i.e. PHMS
being sU.P.erior to other medical officers is
misconceived and unfounded - impugned order
quashed - direction issued - the Special ACP
Scheme shall be applicable to the Medical
Officers of other streams also - Writ Petition
Allowed. (Para - 28, 34, 42, 43, 44)

Writ Petition is Allowed. (E-11)

List of Cases cited: -

1. Dr. Sanjay Singh Chauhan & ors. Vs St. of
Uttrakhand (WP (SB/) No. 484/2014 decided on
03.04.2018),

2. North Delhi Municipal Corporation Vs Dr. Ram
Naresh Sharma & ors. (SLP © No. 10156/2019),

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

4. St. of Madhya Pradesh Vs R.D. Sharma & ors.,
Manu/SC/0098/2022,

5. Dr. Puneet Kumar GU.P.ta & anr. Vs U.O.I.
through Secy. Ministry of Health & Family & ors.,
Writ Petition No. 738 (S/B) of 2015,

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

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Dr. L.P. Mishra, alongwith
Sri Amrendra Nath Tripathi, learned
counsel for the petitioners as well as Sri
Rahul Shukla, learned Additional Chief
Standing Counsel for the State respondents,
Sri S.B. Pandey, learned Senior Advocate
assisted by Sri Anand Dwivedi, learned
counsel appearing for Union of India and
Sri Puneet Chandra, learned counsel
appearing on behalf of National Health
Mission.

2. It is submitted by learned counsel
for the petitioners that they are Ayush
doctors who are working in the NHRM
Scheme and are aggrieved by the impugned
order dated 29.03.2019, passed by the
Principal Secretary, Medical and Health
Department,
Government
of
U.P.,
Lucknow
thereby
rejecting
their
representation for being granted equivalent
honorarium as is being given to the
Allopathic doctors.

3. Brief facts of the case are that the
petitioners are qualified AYUSH Doctors
and were engaged as such and were posted
in different districts in the State of Uttar
Pradesh and their services were renewed
from time to time and are currently serving
as contractual employees. The Union of
India recognizing the importance of health
in the process of economic and social
development and improving the quality of
life of its citizens resolved to launch the
National Health Mission Scheme to carry
out necessary aid in the basic health case
delivery system.

4. An advertisement was issued for
appointment on various posts in all the
districts including the post of Medical
Officer Allopathic, BDS Doctors as well as
AYUSH Doctors. Till the year 2009-10,
honorarium for all the above-mentioned
doctors was proposed to be Rs.24,000/- per
month but later on in 2010-11, the
honorarium of Medical Officers Allopathic
was increased to Rs.30,000/- per month.
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
Similarly, for the year 2011-12, the
honorarium
of
the
Medical
Officers
Allopathic was increased to Rs.36,000/- per
month for rural posting and Rs.33,000/- per
month for urban posting and honorarium of
Medical Officers BDS was increased to
Rs.35,000/- per month for rural posting and
Rs.30,000/- per month for urban posting.
The honorarium of Ayush Doctors was not
revised and renewal of Ayush Doctors was
denied and aggrieved by the order, not
renewing the period of Ayush Doctors, they
challenged the action before this Court and
Court while disposing the Writ Petition No.
769 (S/B) of 2011, directed the respondents
to continue their services till the scheme
continues and be paid accordingly.

5. The State Government assailed the
order passed by the writ Court by filing
Special Leave Petition (Civil) No. 28122 of
2011, which was dismissed on 18.10.2011
and in compliance of the order of the Court
the services of Ayush doctors were
continued and renewed but the honorarium
remained Rs.24,000/- per month.

6. The claim of the AYUSH Doctors
for equal honorarium was further raised
in Writ Petition No. 295 (S/B) of 2013 -
Anil Kumar and Others Vs. Union of
India and Others, which was disposed of
by this Court by means of order dated
01.03.2013,
with
direction
to
the
Principal Secretary, Health and Family
Welfare, U.P. to take decision in this
regard and the Principal Secretary took
the decision in the matter vide order
dated
04.09.2013,
whereby
the
representation was rejected on the ground
that honorarium was to be fixed in terms
of the operational guidelines/record of
proceedings and in the said terms the
Government of India had approved
honorarium only Rs.24,000/- per month.

7. The claim of the petitioners to be
treated at par with the Allopathic Doctors
has been rejected by the State Government
on the following ground :

"(i) AYUSH doctors do not have
to render emergency services,

(ii) their services are limited for
their work up to six hours and

(iii) they are not given any
medico legal work."

8. The aforesaid order has been
passed
considering
various
directions
issued by the High Court in Writ Petition
No. 5633 (S/S) of 2019 and Writ Petition
No. 22529(S/B) of 2018, rejecting the
claim of the petitioners.

9. It is submitted by learned counsel
for the petitioners that it is wrong to say
that the duties and responsibilities of the
AYUSH doctors are in any way inferior to
the Allopathic doctors, and the reasoning
given for such discrimination is illegal and
arbitrary. The reasoning that Allopathic
doctors are entitled for non-practicing
allowance,
is
baseless,
as
no
such
allowance is admissible to any contractual
employee either Allopathic or AYUSH. It
is submitted that the State Government is
giving equal honorarium to the Allopathic
and AYUSH medical officers in case of
contractual appointments. It is also relevant
to mention here that in case of emergency,
every moment and every second is
important and vital and every medical
practitioner is under pious and legal
obligation
to
attend
the
medical
emergencies.
Moreover,
in
many
PHCs/CHCs only AYUSH doctors are
appointed and in medical emergencies,
such doctors have been appointed to take
care of the medical emergencies, and such
patients are treated by the AYUSH doctors
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1023
and even the guidelines of the AYUSH
doctors also permit them to do the same.

10. It is submitted by learned counsel
for the petitioners that on one hand the
order says that the honorarium of the
AYUSH doctors are to be decided by the
Department
of
AYUSH
of
Central
Government and on the other hand
National AYUSH Policy, 2002 formulated
by the Department of AYUSH of the
Central Government are not being followed
while fixing the honorarium.

11. To canvass their claim for being
treated equally on the ground that their
obligations are also similar to those of
Allopathic doctors, it has been stated that
AYUSH doctors are employed under the
Jan Suraksha Yojana, are employed as
Obstetrics and also employed in emergency
service. It is stated that AYUSH doctors are
also duly registered by the registering
Council and are practicing as doctors in
their respective fields of medicine and it is
submitted that the State Government is
discriminating between them without there
being any rational basis which is illegal and
arbitrary.

12. It is further submitted that till
2009-10, honorarium for all the doctors
was uniformly fixed at Rs.24,000/- per
month and it is only after 2011-12 that
honorarium of Allopathic doctors was
raised to Rs. 36,000/- per month for rural
posting and Rs.33,000/- per month for
urban posting, while honorarium for Ayush
doctors was not revised.

13. In earlier round of litigation, this
very aspect was meticulously scrutinised
and this Court while deciding bunch of
cases leading being Writ Petition No. 738
(S/B) of 2015, had considered all the
aspects
of
their
work,
educational
qualifications and returned a finding that
AYUSH doctors are also entitled to the
same honorarium as is given to Allopath
doctors.

14. Similar controversy was raised
before the High Court Uttrakhand in the
case of Dr. Sanjay Singh Chauhan and
Others Vs. State of Uttrakhand, Writ
Petition No. 484 (S/B) of 2014 (decided on
03.04.2018), wherein the High Court of
Uttrakhand observed as under :-

"1.
The
petitioners
were
appointed as Medical Officers "Ayush" on
the contract basis during the year 2010 to
2013
under
"National
Rural
Health
Mission"
(hereinafter
referred
to
as
"NRHM" for the sake of brevity). The
NRHM was started by Government of India
in the year 2005 for the purpose of
Healthcare, more particularly, in rural
areas. The 85% expenses are borne by the
Central Government and 15% by the State
Government.

2. According to the preamble of
NRHM scheme, it is meant to develop and
improve the quality of life of citizens and to
adopt a synergistic approach by relating
health to indica of good health viz.
segments of nutrition, sanitation, hygiene
and safe drinking water. It also aims at
main streaming the Indian System of
Medicine to facilitate health care. The
overall goal of the Mission is to improve
the availability of access to quality health
care by people especially for those residing
in rural areas, the poor, women and
children. In fact, it provides effective health
care to rural population throughout the
country 2 with special focus on 18 States
including State of Uttarakhand.

3. The petitioners were appointed
in Rastriya Bal Swasthaya Karyakram
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
(RBSK) run by the NRHM. The State
Government has also employed Allopathic,
Dental,
Ayurvedic
and
Homeopathic
Medical Officers under NRHM on contract
basis. The Allopathic and Dental Doctors
were
given
consolidated
salary
of
Rs.48,000/-, Rs.52,000/- and Rs.56,000/-
for Sugam, Durgam and Ati-durgam places
respectively. The petitioners were paid only
Rs.36,000/-, Rs.40,000/- and Rs.44,000/-
for Sugam, Durgam and Ati-durgam places
respectively. There were 82 Ayurvedic and
18
Homeopathic
Medical
Officers
appointed on contract basis under NRHM.
296 Ayurvedic Medical Officers were also
appointed on contract basis under RBSK.
Initially there was no difference in the
salary between Allopathic Medical Officers
and Ayurvedic Medical Officers as per
advertisement issued in the year 2010. The
petitioners
have
made
several
representations seeking parity of salary
with
their
counter-parts
working
as
Allopathic Medical Officers and Dental
Medical Officers.

4. The case of the petitioners has
been rejected only on the ground that they
are working on contractual basis and thus,
they are not entitled to the parity with
Allopathic Medical Officers and Dental
Medical Officers. The petitioners are
discharging the same duties which are
being discharged by the Allopathic Medical
Officers and Dental Medical Officers. 3

5. The underlying principles of
NRHM is to provide basic health facilities
to
the
citizen
of
the
State,
more
particularly, of rural areas. The petitioners
have
obtained
their
degrees
from
recognized institutions. They have also
taken 4-5 years course. It is for the patient
to opt for any of the system i.e. Allopathic
or Ayurvedic or Homeopathic.

6.
There
is
no
intelligible
differentia
so
as
to
distinguish
the
Ayurvedic
and
Homeopathic
Medical
Officers viz-a-viz Allopathic and Dental
Medical Officers. There is no rational why
the similar situate persons have been
discriminated against. The petitioners as
well as Allopathic and Dental Medical
Officers constitute homogenous class.

7. Homeopathy, Ayurved and
Allopathy
are
different
streams
of
Medicines, yet these have to be treated at
par with each other. The nature of degrees
and duration of courses are almost the
same. There is also discrimination by
paying Rs.10,000/- extra to the Doctors
working in Community Health Centres and
Primary Health Centres. The petitioners
are working in rural areas. They cannot be
discriminated against only on the ground
that they are not serving in Community
Health
Centres
and
Primary
Health
Centres.

8. Their Lordships of Hon'ble
Supreme Court in (1987) 4 SCC 634 in the
case of Bhagwan Dass and others Vs. State
of Haryana and others have held that if
duties
and
functions
of
temporary
appointees and employees of regular cadre
in the same government 4 department are
similar, there cannot be discrimination in
pay between them merely on ground of
difference in mode of their selection or that
the appointment or scheme under which
appointments made was temporary. Their
Lordships have held as under :-

 "8. It is therefore futile to
contend that the petitioners in their
capacity as Supervisors were required only
to perform part-time work. As per clause
(d) of the aforesaid extract, the supervisors
were required to stay for the whole day in
the village and were required to visit the
Informal Education Centre and the Adult
Education Centre in the night. They were
also required to go on tour and to remain
at the headquarter once a week from 9.30
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1025
A.M. to 4.00 P.M. The conclusion is
therefore inevitable that the petitioners
were not part-time functionaries but were
whole-time functionaries. 10. With regard
to the first ground for not granting salary
on the same basis as of respondents 2 to 6,
viz. that they are part-time employees
whereas respondents 2 to 6 are full-time
employees, having examined the aforesaid
records placed before the Court, we are of
the opinion that there is no substance in
this contention.

11. With regard to the next
contention viz. that the mode of recruitment
of the petitioners is different from the mode
of recruitment of respondents 2 to 6, we are
afraid it is altogether without substance.
The contention has been raised in the
following terms (paragraph 4(d) of the
Counter affidavit dated 6-1-1986 filed on
behalf of Respondents 1 to 13):-- It is
absolutely incorrect that the Petitioners are
similarly placed as the employees under the
Social Education Scheme, as alleged. The
latter are wholetime employees selected by
the subordinate services Selection Board
after competing with candidates from any
pan of the country. In the case of
Petitioners, normally the selection at best is
limited to the candidates from the Cluster
of a few villages only. The contention made
by the Petitioners has no justifiable basis."
(Emphasis added).

We need not enter into the merits
of the respective modes of selection.
Assuming
that
the
selection
of
the
petitioners has been limited to the cluster of
a few villages, whereas Respondents 2 to 6
were selected by another mode wherein
they had faced competition from candidates
from all over the 5 country., we need not
examine the merits of these modes for the
very good reason that once the nature and
functions and the work are not shown to be
dissimilar the fact that the recruitment was
made in one way or the other would hardly
be relevant from the point of view of "Equal
pay for equal work" doctrine. It was open
to the State to resort to a selection process
whereat candidates from all over the
country might have competed if they so
desired. If however they deliberately chose
to limit the selection of the candidates from
a cluster of a few villages it will not
absolve the State from treating such
candidates in a discriminatory manner to
the disadvantage of the selectees once they
are appointed, provided the work done by
the candidates so selected is similar in
nature.
It
was
perhaps
considered
advantageous to make recruitment from the
cluster of a few villages for the purposes of
the Adult Education Scheme because the
Supervisors appointed from that area
would know the people of that area more
intimately and would be in a better position
to persuade them to take advantage of the
Adult Education Scheme in order to make it
a success. So also it was perhaps
considered desirable to make recourse to
this mode of recruitment of candidates
because candidates from other parts of the
country would have found it inconvenient
and onerous to seek employment in such a
Scheme where they would have to work
amongst total strangers and it would have
made it difficult for them to discharge their
functions of persuading the villagers to
avail of the Adult Education Scheme on
account of that factor. So also they might
not have been tempted to compete for these
posts in view of the fact that the Scheme
itself was for an uncertain duration and
could have been discontinued at any time.
Be that as it may, so long as the petitioners
are doing work which is similar to the work
performed by respondents 2 to 6 from the
stand point of 'Equal work for equal pay'
doctrine,
the
petitioners
cannot
be
discriminated against in regard to pay
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
scales. Whether equal work is put in by a
candidate, selected by a process whereat
candidates from all parts of the country
could have competed or whether they are
selected by a process where candidates
from only a cluster of a few villages could
have competed is altogether irrelevant and
immaterial, for the purposes of the
applicability of 'Equal work for equal pay'
doctrine.. A typist doing similar work as
another typist cannot be denied equal pay
on the ground that the process 6 of
selection was different in as much as
ultimately the work done is similar and
there is no rational ground to refuse equal
pay for equal work. It is quite possible that
if he had to compete with candidates from
all over the country, he might or might not
have been selected. It would be easier for
him to be selected when the selection is
limited to a cluster of a few villages. That
however is altogether a different matter. It
is possible that he might not have been
selected at all if he had to compete against
candidates from all over the country. But
once he is selected, whether he is selected
by one process or the other, he cannot be
denied equal pay for equal work without
violating the said doctrine. This plea raised
by the Respondent-State must also fail.

12. Turning now to the contention
that the nature of the duties are different,,
the Respondent-State has failed to establish
its plea. In the regular cadre, the essential
qualification for appointment is B.A., B.Ed.
Petitioners
also
possess
the
same
qualifications viz. B.A., B.Ed. In fact many
of them even possess higher degrees such
as M.A.M.Ed. In what manner and in what
respect are the duties and functions
discharged by those who are in the regular
cadre different? The petitioners having
discharged the initial burden showing
similarity in this regard, the burden is
shifted on the Respondent-State to establish
that these are dissimilar in essence and in
substance. We are unable to uphold the
bare assertion made in this behalf by the
State of Haryana (in paragraph 21 of the
Counter-affidavit dated November 23,
1985). In fact the communication dated
April 8, 1985 (Annexure R-2) addressed by
the respondent State of Haryana to the
District Officers which has been quoted in
the earlier part of the judgment supports
the contentions of the petitioners and belies
the plea raised by the Respondent-State."

9. Their Lordships of Hon'ble
Supreme Court in the recent judgment
reported in (2017) 1 SCC 148 in the case of
State of Punjab and others Vs. Jagjit
Singh and others have laid down the
following principles to determine parity in
principle of "equal pay for equal work".
Their Lordships have held that the
temporary employees are also entitled to
minimum regular pay scale 7 on the
principle of "equal pay for equal work".
Their Lordships have held as under : "42.2.
The mere fact that the subject post
occupied by the claimant, is in a "different
department" vis-a-vis the reference post,
does not have any bearing on the
determination of a claim, under the
principle of ''equal pay for equal work'.
Persons
discharging
identical
duties,
cannot be treated differently, in the matter
of their pay, merely because they belong to
different departments of Government (see -
the Randhir Singh case1, and the D.S.
Nakara case2).

42.3. The principle of ''equal pay
for equal work', applies to cases of unequal
scales of pay, based on no classification or
irrational classification (see - the Randhir
Singh case1). For equal pay, the concerned
employees with whom equation is sought,
should be performing work, which besides
being functionally equal, should be of the
same quality and sensitivity (see - the
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1027
Federation of All India Customs and
Central Excise Stenographers (Recognized)
case3, the Mewa Ram Kanojia case5, the
Grih Kalyan Kendra Workers' Union case6
and the S.C. Chandra case12).

 42.4.Persons holding the same
rank/designation (in different departments),
but having dissimilar powers, duties and
responsibilities, can be placed in different
scales of pay, and cannot claim the benefit
of the principle of ''equal pay for equal
work' (see - the Randhir Singh case1, State
of Haryana v. Haryana Civil Secretariat
Personal Staff Association9, and the
Hukum Chand Gupta case17). Therefore,
the principle would not be automatically
invoked, merely because the subject and
reference
posts
have
the
same
nomenclature.

42.5. In determining equality of
functions and responsibilities, under the
principle of ''equal pay for equal work', it is
necessary to keep in mind, that the duties of
the two posts should be of equal sensitivity,
and also, qualitatively similar. Differentiation
of pay-scales for posts with difference in
degree of responsibility, reliability and
confidentiality, would fall within 8 the realm
of valid classification, and therefore, pay
differentiation would be legitimate and
permissible (see - the Federation of All India
Customs and Central Excise Stenographers
(Recognized) case3 and the State Bank of
India case8). The nature of work of the
subject post should be the same and not less
onerous than the reference post. Even the
volume of work should be the same. And so
also, the level of responsibility. If these
parameters are not met, parity cannot be
claimed under the principle of ''equal pay for
equal work' (see - State of U.P. v. J.P.
Chaurasia4, and the Grih Kalyan Kendra
Workers' Union case6).

42.6. For placement in a regular
pay-scale, the claimant has to be a regular
appointee. The claimant should have been
selected, on the basis of a regular process
of recruitment. An employee appointed on a
temporary basis, cannot claim to be placed
in the regular payscale (see - the Orissa
University of Agriculture & Technology
case10).

42.7. Persons performing the
same or similar functions, duties and
responsibilities, can also be placed in
different pay-scales. Such as - ''selection
grade', in the same post. But this difference
must emerge out of a legitimate foundation,
such as - merit, or seniority, or some other
relevant criteria (see - State of U.P. v. J.P.
Chaurasia4).

 42.8. If the qualifications for
recruitment to the subject post vis-a- vis the
reference post are different, it may be
difficult to conclude, that the duties and
responsibilities
of
the
posts
are
qualitatively similar or comparable (see -
the Mewa Ram Kanojia case5, and
Government of W.B. v. Tarun K. Roy11). In
such a cause, the principle of ''equal pay
for equal work', cannot be invoked.

 42.9. The reference post, with
which parity is claimed, under the principle
of ''equal pay for equal work', has to be at
the same hierarchy in the service, as the
subject post. Pay-scales of posts may be
different, if the hierarchy of the posts in
question, and their channels of promotion,
are different. Even if the duties and
responsibilities are same, parity would not
be permissible, as against a superior post,
such as 9 a promotional post (see - Union
of India v. Pradip Kumar Dey7, and the
Hukum Chand Gupta case17).

42.10. A comparison between the
subject post and the reference post, under
the principle of ''equal pay for equal work',
cannot be made, where the subject post and
the
reference
post
are
in
different
establishments,
having
a
different
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
management.
Or
even,
where
the
establishments
are
in
different
geographical locations, though owned by
the same master (see - the Harbans Lal
case23). Persons engaged differently, and
being paid out of different funds, would not
be entitled to pay parity (see - Official
Liquidator v. Dayanand13).

42.11. Different pay-scales, in
certain eventualities, would be permissible
even for posts clubbed together at the same
hierarchy in the cadre. As for instance, if
the duties and responsibilities of one of the
posts are more onerous, or are exposed to
higher nature of operational work/risk, the
principle of ''equal pay for equal work'
would not be applicable. And also when,
the
reference
post
includes
the
responsibility to take crucial decisions, and
that is not so for the subject post (see - the
State Bank of India case8).

42.12. The priority given to
different
types
of
posts,
under
the
prevailing policies of the Government, can
also be a relevant factor for placing
different posts under different payscales.
Herein also, the principle of ''equal pay for
equal work' would not be applicable (see -
State of Haryana v. Haryana Civil
Secretariat Personal Staff Association9).

42.13. The parity in pay, under
the principle of ''equal pay for equal work',
cannot be claimed, merely on the ground,
that at an earlier point of time, the subject
post and the reference post, were placed in
the same pay- scale. The principle of
''equal pay for equal work' is applicable
only when it is shown, that the incumbents
of the subject post and the reference post,
discharge
similar
duties
and
responsibilities (see - State of West Bengal
v. West Bengal Minimum Wages Inspectors
Association14).

 42.14. For parity in pay-scales,
under the principle of ''equal pay for equal
work', equation in the nature of duties, is of
paramount importance. If the principal
nature of duties of one post is teaching,
whereas that of the other is non-teaching,
the principle would not be applicable. If the
dominant nature of duties of one post is of
control and management, whereas the
subject post has no such duties, the
principle
would
not
be
applicable.
Likewise, if the central nature of duties of
one post is of quality control, whereas the
subject post has minimal duties of quality
control, the principle would not be
applicable
(see
-
Union
Territory
Administration,
Chandigarh
v.
Manju
Mathur15).

42.15. There can be a valid
classification in the matter of pay-scales,
between employees even holding posts with
the same nomenclature i.e., between those
discharging duties at the headquarters, and
others working at the institutional/suboffice level (see - the Hukum Chand Gupta
case17), when the duties are qualitatively
dissimilar.

42.16. The principle of ''equal
pay for equal work' would not be
applicable, where a differential higher payscale is extended to persons discharging
the same duties and holding the same
designation,
with
the
objective
of
ameliorating stagnation, or on account of
lack of promotional avenues (see - the
Hukum Chand Gupta case17).

 42.17.
Where
there
is
no
comparison between one set of employees
of one organization, and another set of
employees of a different organization, there
can be no question of equation of payscales, under the principle of ''equal pay
for equal work', even if two organizations
have a common employer. Likewise, if the
management
and
control
of
two
organizations, is with different entities,
which are independent of one another, the
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1029
principle of ''equal pay for equal work'
would not apply (see - the S.C. Chandra
case12,
and
the
National
Aluminum
Company Limited case18). 60. Having
traversed
the
legal
parameters
with
reference to the application of the principle
of ''equal pay for equal work', in relation to
11
temporary
employees
(daily-wage
employees, ad-hoc appointees, employees
appointed on casual basis, contractual
employees and the like), the sole factor that
requires our determination is, whether the
concerned employees (before this Court),
were
rendering
similar
duties
and
responsibilities, as were being discharged
by
regular
employees,
holding
the
same/corresponding posts. This exercise
would require the application of the
parameters of the principle of ''equal pay
for equal work' summarized by us in
paragraph 42 above. However, insofar as
the instant aspect of the matter is
concerned, it is not difficult for us to record
the factual position. We say so, because it
was fairly acknowledged by the learned
counsel representing the State of Punjab,
that all the temporary employees in the
present bunch of appeals, were appointed
against posts which were also available in
the regular cadre/establishment. It was
also accepted, that during the course of
their employment, the concerned temporary
employees were being randomly deputed to
discharge duties and responsibilities, which
at some point in time, were assigned to
regular
employees.
Likewise,
regular
employees holding substantive posts, were
also posted to discharge the same work,
which
was
assigned
to
temporary
employees, from time to time. There is,
therefore, no room for any doubt, that the
duties and responsibilities discharged by
the temporary employees in the present set
of appeals, were the same as were being
discharged by regular employees. It is not
the case of the appellants, that the
respondent-employees did not possess the
qualifications prescribed for appointment
on regular basis. Furthermore, it is not the
case of the State, that any of the temporary
employees would not be entitled to pay
parity, on any of the principles summarized
by us in paragraph 42 hereinabove. There
can be no doubt, that the principle of
''equal pay for equal work' would be
applicable to all the concerned temporary
employees, so as to vest in them the right to
claim wages, at par with the minimum of
the
pay-scale
of
regularly
engaged
Government employees, holding the same
post.

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.

11. Accordingly, the writ petition
is allowed. The State/respondents are
directed to pay and release the salary to
the petitioners at par with Allopathic
Medical Officers and Dental Medical
Officers from the date when the same was
paid to the Allopathic and Dental Medical
Officers, within a period of three months
from today with arrears."

15. The High Court of Uttrakhand
allowed the writ petition and held the
AYUSH doctors should be treated at par
with the Allopathic doctors and are entitled
for the same honorarium. The said
judgment was challenged before the
Hon'ble Apex Court in Special Leave to
Appeal (Civil) No. 33645 of 2018, which
was dismissed by means of order dated
24.03.2022. Same issue has been raised
before this Court where the AYUSH
doctors have been denied the benefit of
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
ACP, which was made admissible to the
medical officers of Provincial Medical
Services, there also the State Government
had tried discriminate between medical
officers (Ayurvedic) from AYUSH and
Allopathic doctors.

16. 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 Anubhag1), Civil Secretariat, Lucknow. Petitioners
are working in the Pay-Scale at Rs. 1560039100 and Grade Pay at Rs. 6600/-.

17. 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.

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

19. 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 hereinbelow:

**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%&3

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@&
11 All. Dr. Ram Suresh Rai & Ors. Vs. U.O.I.
1031

20. 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 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**

21. 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.

22. 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 practice
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.