# Mission Director/ Convener Exe. Committee, National Health Mission Mandi Bhawan Lko. & Anr v. Dr. Ram Suresh Rai & Ors

- **Citation:** (2023) 3 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Special Appeal Defective No. 49 of 2023
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mission-director-convener-exe-committee-national-health-mission-mandi-bhawan-49849
- **Pages:** 12

## Headnote

A. Special Law - Allahabad High Court
Rules, 1952-Ch. VIII Rule 5-Claim-Equal
pay for Equal work-B.A.M.S./ B.U.M.S./
B.H.M.S. (Aayush) Doctors engaged as
Ayush Doctors on contractual basis-Held,
cannot claim honorarium equal to M.B.B.S.
Doctors- Working condition of doctors
engaged on contractual basis are not
same as those of M.B.B.S. Doctors for
reasons that their duty is for six hours a
day, they are not given any physical
charge, they are not required to deal with
medico legal cases and to conduct postmortem examinations, there not required
to administer I.V. injections and they do
not perform surgeries other than only
Ayurvedic/Yunani surgeries.

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,962 of 40,211. This is a partial read: ask again with offset=39962 for what follows._

82 INDIAN LAW REPORTS ALLAHABAD SERIES
differently in other respects (vide P.
Ramanatha Aiyar Advanced Law Lexicon
Edition 4, Vol. III, Page 3443).

38. Once, we assign ordinary meaning
to the words "or otherwise", the position
would be clear that, by virtue of sub section
(3) to section 35, the provisions of subsection (2) of Section 35 of 1973 Act shall
apply to any decision to terminate the
service of a teacher whether by way of
punishment or by way of termination
simpliciter. We, therefore, find no good
reason to take a different view than what
was taken by this court in Dr. A.P.
Srivastava's case (supra) and Committee
of
Management
Mahatama
Gandhi
Shanti Smarak Maha Vidyalaya's case
(supra).

39. In light of the discussion above,
we come to the conclusion that the decision
of the management of a College affiliated
or associated to the University to terminate
the service of a Principal or teacher of the
College, during or on expiry of the period
of probation, shall not take effect unless it
has been approved by the Vice-Chancellor.
Having held so, as we find that in the
instant case the termination of the services
of respondent no. 5 was communicated
without approval of the Vice-Chancellor,
the same could not have taken effect
therefore, we do not find any good reason
to interfere with the order of the ViceChancellor. The appeal is dismissed.
----------
(2023) 3 ILRA 82
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.
Special Appeal Defective No. 49 of 2023

Mission
Director/
Convener
Exe.
Committee, National Health Mission Mandi
Bhawan Lko. & Anr. ...Appellants
Versus
Dr. Ram Suresh Rai & Ors. ...Respondents

Counsel for the Appellants:
Neerav Chitravanshi

Counsel for the Respondents:
Amrendra Nath Tripathi, A.S.G.I., C.S.C.

A. Special Law - Allahabad High Court
Rules, 1952-Ch. VIII Rule 5-Claim-Equal
pay for Equal work-B.A.M.S./ B.U.M.S./
B.H.M.S. (Aayush) Doctors engaged as
Ayush Doctors on contractual basis-Held,
cannot claim honorarium equal to M.B.B.S.
Doctors- Working condition of doctors
engaged on contractual basis are not
same as those of M.B.B.S. Doctors for
reasons that their duty is for six hours a
day, they are not given any physical
charge, they are not required to deal with
medico legal cases and to conduct postmortem examinations, there not required
to administer I.V. injections and they do
not perform surgeries other than only
Ayurvedic/Yunani surgeries.

The appeal is allowed. (E-6)

List of Cases cited:
1. Kunhayammed Vs St. of Ker. (2000) 6 SCC
359

2. Escorts Ltd. Vs CCE (2004) 8 SCC 335

3. Bhavnagar Univ. Vs Palitana Sugar Mill (P)
Ltd. (2003) 2 SCC 111

4. North Delhi Munc. Corp.Vs Ram Naresh
Sharma (2021) SCC OnLine SC 540

5. Sanjay Singh Chauhan & ors. Vs St. of U.K. &
ors. ,WP No. 484 of 2014

6. St. of U.K. Vs Sanjay Singh Chauhan SLP(C)
No. 33645/2018
3 All. Mission Director/ Covener Exe. Committee, National Health Mission Mandi Bhawan Lko.
 & Anr. Vs. Dr. Ram Suresh Rai & Ors.
83
7. Dr. Om Prakash Gupta & anr.. Vs St. of U.P.,
WRIT A No.-83666/2017

8. Indian Drugs & Pharm. Ltd. Vs Workmen
(2007) 1 SCC 408

(Delivered by Hon'ble Subhash Vidyarthi, J.)

Order on C.M. Application No.2 of
2023:

1. Heard Shri Anil Tiwari, Senior
Advocate
assisted
by
Shri
Neerav
Chitravanshi,
learned
counsel
for
appellants, Dr. L.P. Mishra along with Shri
Amrendra Nath Tripathi, learned counsel
for respondent nos.1 to 28, Shri S.B.
Pandey, Assistant Solicitor General of
India, appearing on behalf of respondent
No.29-Union of India and Shri Indrajeet
Shukla, learned Standing Counsel for
State/respondent No.30.

2. This is an application for
condonation of delay in filing special
appeal.

3. The application is supported with
an affidavit, in which the reasons for delay
have been explained sufficiently.

4.

Accordingly,
application
is
allowed. Delay, if any, in moving this
special appeal is hereby condoned.

Order on memo of special appeal:

5. The instant special appeal under
Chapter VIII rule 5 of the Allahabad High
Court rules has been filed against the
judgment and order dated 12.12.2022
passed by Hon'ble single Judge allowing
Civil Misc. Review Application No.187 of
2022 reviewing the judgment and order
dated 20.10.2022 passed in Writ-A No.
23479 of 2019 and a further prayer has
been made for dismissal of the writ
petition.

6. The aforesaid writ petition was
filed by the respondent nos.1 to 29 to this
Special Appeal, who will be referred to as
the petitioners. Briefly stated, facts pleaded
in the writ petition are that the petitioners
are B.A.M.S./B.U.M.S./B.H.M.S. (Aayush)
Doctors and they are engaged as Ayush
Doctors across the state on contractual
basis. The petitioners are aggrieved by the
difference in honourarium paid to them and
that paid to allopathic Doctors and they
claim that the M.B.B.S. Doctors and B.D.S.
Doctors are not superior to the Ayush
Doctors.

7. Earlier some of the petitioners had
filed Writ Petition No.738 (S/B) of 2014,
which was dismissed by means of an order
dated 12.04.2017. Some of the petitioners
filed Special Leave Petitions before the
Hon'ble Supreme Court and Hon'ble
Supreme Court disposed of the petitions
with liberty to the petitioners to make
representation for the State government.
When no decision was taken on the
representations, the petitioners no. 1 to 3
had filed Writ Petition No. 22529 (S/B) of
2018, which was disposed of by means of
an order dated 08.08.2018 with a direction
to the state workmen to take a decision on
the representation. The representation was
rejected by means of an order dated
16.11.2018 passed by the Mission Director,
National Health Mission.

8. Some of the petitioners had
challenged the order dated 16.11.2018 by
filing Writ Petition No. 5633 (S/S) of 2019,
which was allowed by means of an order
dated 7th March 2019 and a direction was
issued to the State government to take a
84 INDIAN LAW REPORTS ALLAHABAD SERIES
decision on the petitioners' claim regarding
parity of honourarium. The claim was
rejected by means of an order dated 29th
March 2019, passed by the Principal
Secretary, Health and Family Welfare.

9. It has been stated in the order dated
29th March 2019 passed by the Principal
Secretary that the services of Ayush doctors
under the mainstreaming of Ayush program
under the National Health Mission in U.P.
do not fall within the purview of
emergency
services.
Honourarium
is
payable to them on the basis of their duties
for six hours a day and there is a provision
that no physical charge is to be given to the
Ayush Doctors and no medicolegal case is
to be conducted by them. The M.B.B.S.
lady doctors are assigned 24 hours
emergency duty for operating the first
referral units and when and E.M.O. is not
available the contractual M.B.B.S. lady
doctors are posted as E.M.O. By means of a
Government Order dated 9th October 2015,
it has been provided that Ayurved and
Yunani
doctors
will
not
perform
medicolegal
cases,
post-mortem
examination, I.V. injection and surgeries
other than pure Ayurvedic/Yunani surgeries
like Ksharsootra. The order further states
that the appointment of Ayush Doctors
under National Health Mission is made
against
posts
sanctioned
by
the
Government
of
India
in
record
of
proceedings under any program/scheme
and these appointments are not made
against any regular sanctioned posts of the
State. Moreover, the honourarium paid to
contractual Ayush Doctors in the State of
Uttar Pradesh is equal to or higher than the
honourarium paid to the Ayush Doctors of
26 States of the Union Territories. As per
the directions and guidelines issued by the
National Health Mission, the prescribed
qualification, field of work and duties of
contractual Ayush Doctors are not the same
as those of contractual M.B.B.S. Doctors
stop therefore, it would not be proper to
pay any Ayush doctors equal to that paid to
the MBBS Doctors.

10. The petitioners challenged the
aforesaid order dated 29th March 2019 by
filing Writ Petition No. 23479 (S/S) of
2019. The writ petition was allowed by an
Hon'ble single Judge means of a judgment
and order dated 19th October 2022. The
Hon'ble Single Judge proceeded to decide
the writ petition on the premise that:

"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
3 All. Mission Director/ Covener Exe. Committee, National Health Mission Mandi Bhawan Lko.
 & Anr. Vs. Dr. Ram Suresh Rai & Ors.
85
completing 4, 11, 17 and 24 years of
satisfactory service. The scheme was made
applicable w.e.f. 01.12.2008.

* * *

31. 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."

11. The Hon'ble Single Judge
concluded by holding that: -

"42. 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 realm of
administrative policy. But the question is
whether such a policy upon being provided
can discriminate amongst different streams
of medicine practiced 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 28 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.

43. Accordingly, the writ petition
is allowed.

44. The impugned order dated
29.03.2019, passed
by
the
Principal
Secretary, Medical and Health Department,
Government of U.P., Lucknow, is hereby
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 also."

12. As the writ petition had been filed
claiming parity in payment of honourarium
to Ayush Doctors with that paid to Ayush
Doctors and not claiming A.C.P. benefits,
the
petitioners
themselves
filed
an
application for review of the judgment
passed
in
their
favour. The
review
application was allowed by means of the
judgment and order dated 12.12.2022. Even
while allowing the review application the
Hon'ble single Judge held that: -

"18.
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
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.

19. In view of the aforesaid
discussions, the writ petitions is allowed.
The impugned order dated 29.03.2019,
passed by the Principal Secretary, Medical
and Health Department, Government of
U.P., Lucknow, is hereby quashed.

20. The respondents are directed
to pay honorarium to the petitioners who
are working on the post of Ayush Medical
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Officers at par with the payments made to
the Allopathic Medical Officers and Dental
Medical Officers and the arrears of
honorarium be paid to the petitioners from
the date they were 25 discriminated in
making payments of honorarium to the
Allopathic Medical Officers and Dental
Medical Officers."

 (Emphasis supplied)

13. While Assailing the Aforesaid
Judgment passed by the Hon'ble Single
Judge, Shri Anil Tiwari Senior Advocate
has submitted that the issue raised by the
petitioners in the Writ Petition was
payment of honourarium to Ayush Doctors
equal to that which is paid to the M.B.B.S.
Doctors and the issue of assured career
progression was not involved in the writ
petition as the petitioners are working on
contractual basis and the scheme of grant of
assured career progression is not applicable
to persons working on contract. However,
the learned Single Judge has decided the
writ petition as well as the review
application on the premise that the issue
raised before him was denial of benefit of
A.C.P. to the Ayush doctors.

14. The learned counsel for the
petitioners has submitted that the issue
regarding payment of honourarium to
Ayush Doctors under the National health
Mission was duly considered by a Division
Bench of this Court while dismissing the
Writ Petition No. 738 (S/B) of 2018 and
other connected writ petitions by means of
judgment and order dated 12 April 2017.
The aforesaid judgment was challenged by
filing a special leave petition before the
Hon'ble Supreme Court and the Hon'ble
Supreme Court had merely permitted the
petitioner
is
to
move
representation,
without setting aside the findings given by
the High Court.

15. The learned counsel for the
appellants has submitted that the petitioners
have been engaged on contractual basis by
a society under a program called National
health Mission and they have not been
appointed against any regular post under
the State government or under the Central
government. The honourarium payable to
the persons engaged on contract under the
program is approved by the government of
India and not by the State government. It
has further been submitted by the learned
counsel for the appellant that the petitioners
are working under a contract and are being
paid honourarium as per the terms and
conditions of the contract, which are
binding on them and which has rightly not
been challenged by them, as the conditions
of contract cannot be challenged in writ
petition filed under article 226 of the
Constitution of India.

16. Per contra, Dr. L.P. Mishra, the
learned
counsel
appearing
for
the
respondents no.1 to 28 (petitioners in the
writ petition) has submitted that the mere
fact that the Hon'ble Supreme Court had
given the petitioners liberty to file a fresh
representation implies that the order passed
by this Court in Writ Petition No.738 (S/B)
of
2018
was
set
aside
and
the
representation
ought
to
have
been
considered afresh without being influenced
by the findings recorded in the judgment
passed in the aforesaid writ petition.

17. In the judgment dated 12.04.2017
passed by this Court in Writ Petition
Number 738 (S/B) of 2018 and several
other connected writ petitions, this Court
had held as follows: -

"19.
Considering
the
qualification and duties as shown in the
chart and advertisement, we are of the view
3 All. Mission Director/ Covener Exe. Committee, National Health Mission Mandi Bhawan Lko.
 & Anr. Vs. Dr. Ram Suresh Rai & Ors.
87
that the work and qualification of the Ayush
doctors are different from other MBBS or
BDS doctors. The mere fact that they were
doing work similar to other doctors cannot
be treated as sufficient for applying the
principal of equal pay for equal work. Any
direction by the Court with the aid of
Article 226 of the Constitution of India
would burden the exchequer relating to
financial
and
policy
matter
and
interference in the policy decisions though
the order in question does not suffer from
any legal or constitutional infirmity and it
is not possible to entertain the plea of the
petitioners
for
payment
of
pay
or
honorarium or other monetary benefits at
par with other employees of other cadre
having separate eligibility criteria for
appointment by complying the principle of
equal pay for equal work.

33. After noticing the judicial
precedents on the subject, we are of the
view that the petitioners cannot invoke the
theory
of
legitimate
expectation
for
compelling the respondents to pay the
honorarium which is paid to other doctors
having different qualification and different
duties.

34. Learned counsel for the
petitioners has relied upon (1989) 2 SCC
235- Mewa Ram Kanojia v. All India
Institute of Medical Sciences and others but
the citation does not favour the petitioners.
It has been stated in the above noted case
that in judging the equality of work for the
purposes of equal pay, regard must be had
not only to the duties and functions but also
to
the
educational
qualifications,
qualitative difference and the measures of
responsibility prescribed for the respective
posts. Even it the duties and functions are
of similar nature but if the educational
qualifications prescribed for the two posts
are different and there is difference in
measure of responsibilities, the principle of
''Equal pay for equal work' would not
apply. There is a reasonable classification
on the basis of qualification and duties and
if qualification has reasonable nexus with
the objective sought to be achieved,
efficiency in the administration, the State
would be justified in prescribing different
pay scale but if the 21 classification does
not stand the test of reasonable nexus and
the classification is founded on unreal and
unreasonable basis it would be violative of
Articles 14 and 16 of the Constitution of
India. Similarly in (1989) 3 SCC 191- V.
Markendeya and others v. State of Andhra
Pradesh and others, which has been relied
upon by the learned counsel for the
petitioners, does not favour the petitioners
on the ground that the citation provides
that the question what scale should be
provided to a particular class of service
must be left to the executive and only when
discrimination is practised amongst the
equals, the Court should intervene to undo
the wrong and to ensure equality among the
similarly placed employees. The Court
however cannot prescribed equal scales of
pay for different class of employees."

18. The petitioners had challenged the
aforesaid judgment dated 12.04.2017 by
filing Special Leave Petition (Civil) No.
26625 of 2017 and Hon'ble Supreme Court
disposed of the petition on 03.10.2017 by
means of the following order: -

"Delay condoned.

Learned
senior
counsel
appearing for the petitioners submits that
the view of the High Court that the
permission is required from the Central
government
for
enhancement
of
honourarium is not correct. The petitioners
are appointed by the State government. If
that be so, we make it clear that it will be
open to the petitioners to approach the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
State government for enhancement of
honourarium, in which case, it will be open
to the State government to consider the
representation and the impugned judgment
shall not stand in the way of the
government taking appropriate decision.

With the aforesaid observation
and directions, the special leave petitions
are disposed off."

19. A bare perusal of the aforesaid
order indicates that the Hon'ble Supreme
Court disposed of the special leave petition
without granting leave to appeal and
without setting aside the judgment dated
12.04.2017 passed by this Court or the
findings recorded therein. The Hon'ble
Supreme Court had merely granted liberty
to the petitioners to approach the State
government
for
enhancement
of
honourarium and it was left open to the
State
were
meant
to
consider
the
representation without being influenced by
the judgment dated 12.04.2017. There was
not even any passing reference of the claim
of parity with the M.B.B.S. doctors in
payment of honourarium, what to say about
any finding in this regard. Therefore, we
are of the view that the findings recorded
by this Court in the judgment dated
12.04.2017 have not been disturbed by the
Hon'ble Supreme Court and the same have
attained finality.

20. Dr. L. P. Mishra, the learned
counsel for the respondents, has submitted
that the order dated 12.04.2017 passed by
this Court in writ petition No. 738 of 2015
and other connected writ petitions, stood
merged in the order dated 3 October 2017
passed by the Hon'ble Supreme Court. The
doctrine of merger vis-à-vis rejection of
S.L.P. was summarized by the Hon'ble
Supreme Court in Kunhayammed v. State
of Kerala, (2000) 6 SCC 359, in the
following words: -

"44. To sum up, our conclusions
are:

(i) Where an appeal or revision is
provided against an order passed by a
court, tribunal or any other authority
before superior forum and such superior
forum modifies, reverses or affirms the
decision put in issue before it, the decision
by the subordinate forum merges in the
decision by the superior forum and it is the
latter which subsists, remains operative
and is capable of enforcement in the eye of
the law.

(ii) The jurisdiction conferred by
Article 136 of the Constitution is divisible
into two stages. The first stage is up to the
disposal of prayer for special leave to file
an appeal. The second stage commences if
and when the leave to appeal is granted
and the special leave petition is converted
into an appeal.

(iii) The doctrine of merger is not
a doctrine of universal or unlimited
application. It will depend on the nature of
jurisdiction exercised by the superior forum
and the content or subject-matter of
challenge laid or capable of being laid
shall be determinative of the applicability
of merger. The superior jurisdiction should
be capable of reversing, modifying or
affirming the order put in issue before it.
Under Article 136 of the Constitution the
Supreme Court may reverse, modify or
affirm the judgment, decree or order
appealed against while exercising its
appellate jurisdiction and not while
exercising the discretionary jurisdiction
disposing of the petition for special leave
to appeal. The doctrine of merger can
therefore be applied to the former and not
to the latter.
3 All. Mission Director/ Covener Exe. Committee, National Health Mission Mandi Bhawan Lko.
 & Anr. Vs. Dr. Ram Suresh Rai & Ors.
89

(iv) An order refusing special
leave to appeal may be a non-speaking
order or a speaking one. In either case it
does not attract the doctrine of merger. An
order refusing special leave to appeal does
not stand substituted in place of the order
under challenge. All that it means is that
the Court was not inclined to exercise its
discretion so as to allow the appeal being
filed.

(v) If the order refusing leave to
appeal is a speaking order i.e. gives
reasons for refusing the grant of leave, then
the order has two implications. Firstly, the
statement of law contained in the order is a
declaration of law by the Supreme Court
within the meaning of Article 141 of the
Constitution. Secondly, other than the
declaration of law, whatever is stated in the
order are the findings recorded by the
Supreme Court which would bind the
parties thereto and also the court, tribunal
or authority in any proceedings subsequent
thereto by way of judicial discipline, the
Supreme Court being the Apex Court of the
country. But, this does not amount to saying
that the order of the court, tribunal or
authority below has stood merged in the
order of the Supreme Court rejecting the
special leave petition or that the order of
the Supreme Court is the only order
binding as res judicata in subsequent
proceedings between the parties.

(vi) Once leave to appeal has
been granted and appellate jurisdiction of
the Supreme Court has been invoked the
order passed in appeal would attract the
doctrine of merger; the order may be of
reversal,
modification
or
merely
affirmation.

(vii) On an appeal having been
preferred or a petition seeking leave to
appeal having been converted into an appeal
before the Supreme Court the jurisdiction of
the High Court to entertain a review petition
is lost thereafter as provided by sub-rule (1)
of Order 47 Rule 1 CPC."

21. Order dated 03.10.2017 was
passed by the Hon'ble Supreme Court
disposing of the special leave petition
without granting leave to appeal to the
petitioners and without setting aside the
findings of the High Court and recording
any findings of its own, we are of the
view that in light of the law summarized
by the Hon'ble Supreme Court in the case
of Kunhayammed (Supra), the order
dated 12.04.2017 passed by this Court did
not get merged in the order dated
03.10.2017 passed by the owner will
Supreme Court. Therefore, the findings
recorded by this Court in its previous
judgment dated 12.04.2017 continues to
bind the parties and the effect of the order
passed by the Hon'ble Supreme Court is
that the State government is free to take a
decision for enhancing the honourarium
paid to the petitioners, although it is not
bound to grant parity to the petitioners
with M.B.B.S. doctors.

22. The Hon'ble Single Judge has
allowed the writ petition and the review
petition by extensively quoting and relying
upon the judgment in the case of Dr. Om
Prakash Gupta and another versus State of
UP and another, Writ A No. 8366 of 2017
decided on 06/05/2022 , which was a case
filed by confirmed class to officers working
on the post of medical officers (Ayurvedic)
challenging an order passed by the
government
denying
the
benefit
of
dynamic/special assured career progression
scheme which was made admissible to the
medical officers of the provincial medical
health services. The issue of payment of
honourarium
doctors
engaged
on
contractual basis was not involved in
aforesaid case.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

23. It is settled law that judgments are
not to be read as statutes and the ratio
decidendi of judgment is to be read along
with the context in which the case was
decided.

24. In Escorts Ltd. v. CCE, (2004) 8
SCC 335, the Hon'ble Supreme Court held
that: -

"8. Courts should not place
reliance on decisions without discussing as
to how the factual situation fits in with the
fact situation of the decision on which
reliance is placed. Observations of courts
are neither to be read as Euclid's theorems
nor as provisions of a statute and that too
taken
out
of
their
context.
These
observations must be read in the context in
which they appear to have been stated.
Judgments of courts are not to be construed
as statutes. To interpret words, phrases and
provisions of a statute, it may become
necessary for Judges to embark into
lengthy discussions but the discussion is
meant to explain and not to define. Judges
interpret statutes, they do not interpret
judgments. They interpret words of statutes;
their words are not to be interpreted as
statutes. In London Graving Dock Co. Ltd.
v.
Horton2
(AC
at
p.
761),
Lord
MacDermott observed: (All ER p. 14 C-D)

"The matter cannot, of course, be
settled merely by treating the ipsissima
verba of Willes, J., as though they were part
of an Act of Parliament and applying the
rules

of
interpretation
appropriate
thereto. This is not to detract from the great
weight to be given to the language actually
used by that most distinguished judge,..."

9. In Home Office v. Dorset Yacht
Co.3 Lord Reid said (All ER p. 297g-h),

"Lord Atkin's speech ... is not to
be treated as if it were a statutory
definition. It will require qualification in
new circumstances."

Megarry, J. in Shepherd Homes
Ltd. v. Sandham (No. 2)4 observed: (All
ER p. 1274d-e) "One must not, of course,
construe even a reserved judgment of even
Russell, L.J. as if it were an Act of
Parliament;" And, in Herrington v. British
Railways Board5 Lord Morris said: (All
ER p. 761c)

"There is always peril in treating
the words of a speech or a judgment as
though they were words in a legislative
enactment, and it is to be remembered that
judicial utterances are made in the setting
of the facts of a particular case."

10.
Circumstantial
flexibility,
one additional or different fact may make
a world of difference between conclusions
in two cases. Disposal of cases by blindly
placing reliance on a decision is not
proper."

25. In Bhavnagar University v.
Palitana Sugar Mill (P) Ltd., (2003) 2
SCC 111, the Hon'ble Supreme Court held
that: -

"59. A decision, as is well
known, is an authority for which it is
decided and not what can logically be
deduced therefrom. It is also well settled
that a little difference in facts or
additional facts may make a lot of
difference in the precedential value of a
decision."

26. Therefore, we are of the view that
the case of Dr. Om Prakash Gupta, which
does not deal with the subject of payment
of honourarium to doctors engaged on
contract, has no application while deciding
the claim of parity in payment of
honourarium between Ayush doctors and
M.B.B.S. doctors.
3 All. Mission Director/ Covener Exe. Committee, National Health Mission Mandi Bhawan Lko.
 & Anr. Vs. Dr. Ram Suresh Rai & Ors.
91

27. The learned Counsel for the
respondents has relied upon the judgment
in the case of North Delhi Municipal
Corporation v. Ram Naresh Sharma, 2021
SCC OnLine SC 540, in which the Hon'ble
Supreme Court held that: -

"23. 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
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.

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. 14019/4/2016E-I (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.

In light of the above discussion,
the appellant's actions in not paying the
respondent doctors their due salary and
benefits, while their counterparts in CHS
system received salary and benefits in full,
must be seen as discriminatory. Hence, we
have no hesitation in holding that the
respondent-doctors are entitled to their full
salary arrears and the same is ordered to
be disbursed, within 8 weeks from today.
Belated payment beyond the stipulated
period will carry interest, at the rate of 6%
from the date of this order until the date of
payment. It is ordered accordingly. The
appeals are disposed of in above terms
without any order on cost."

28. Dr. Mishra has also relied upon
the decision in Sanjay Singh Chauhan
and Ors. vs. State of Uttarakhand and
Ors., Writ Petition No. 484 (S/B) of 2014,
decided on 03.04.2018, wherein the High
Court of Uttrakhand held that:-

"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.

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
92 INDIAN LAW REPORTS ALLAHABAD SERIES
made
by
the
State
Government
is
irrational."

29. In The State Of Uttarakhand vs
Sanjay
Singh
Chauhan
SLP
(C)
No.33645/2018,
the
Hon'ble
Supreme
Court was pleased to provide 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.

30. In WRIT-A No.-8366of 2017,
Dr.Om Prakash Gupta And Anr.Versus
State Of U.P. it has been held that under: -

"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 (10) 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.

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,
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
93
nature of duty, responsibility etc. as is
being pressed by the State Government to
carve (11) 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."

31. In the case of Indian Drugs &
Pharmaceuticals
Ltd.
v.
Workmen,
(2007) 1 SCC 408, the Hon'ble Supreme
Court clarified that "a mere direction of the
Supreme Court without laying down any
principle of law is not a precedent. It is
only where the Supreme Court lays down a
principle of law that it will amount to a
precedent."

32. The reasons recorded in the order
dated
29/03/2019
passed
on
the
representation of the petitioners, that the
working conditions of Ayush doctors engaged
on contractual basis are not the same as those
of M.B.B.S. Doctors for the reasons that their
duty is for six hours today, they are not given
any physical charge, they are not required to
deal with medicolegal cases and to conduct
post-mortem examinations, there not required
to administer I.V. injections and they do not
perform
surgeries
other
than
only
Ayurvedic/Yunani surgeries like ksharsutra,
has not been found to be perverse or
unsustainable. Therefore, the law laid down
in the aforesaid cases referred by the learned
Counsel for the respondents would not apply
to the present case.

33. In view of the aforesaid discussion,
we are of the considered opinion that the
order dated 29/03/2019 passed by the
government rejecting the representation of
the petitioners does not suffer from any such
error
or
illegality,
as
warranted
and
interference by this Court in exercise of its
extraordinary jurisdiction under article 226 of
the Constitution of India.

34. The Hon'ble Single Judge has
allowed the writ petition and the review
petition under mistaken belief that the benefit
of assured career progression was being
denied to the petitioners and that they were
entitled to the same whereas the petitioners
having been engaged on contractual basis, are
not entitled to assured career progression and
they had not raised any such claim. In view
of the discussion made above, we do not find
ourselves in agreement with the view taken
by the Hon'ble single Judge while allowing
the writ petition and the review petition.

35. Accordingly, the instant special
appeal is allowed. The judgment and order
dated 12.12.2022 passed by the Hon'ble
single Judge in Civil Miscellaneous Review
Application Number 187 of 2022 as well as
the judgment and order dated 20/10/2022
passed in Writ A No. 23479 of 2019 are
hereby set aside and Writ A No. 23479 of
2019 is dismissed.
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(2023) 3 ILRA 93
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2023
BEFORE