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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. 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. This was decreed by the Hon’ble Justice L. Nageshwara Rao and Hon’ble Justice Hrishikesh Roy in the case of North Delhi Municipal Corporation vs. Dr. Ram Naresh Sharma & Ors. [Civil Appeal No. 4578 of 2021] on the 03^rd of August 2021, before the Hon’ble Supreme Court of India.

The brief facts of the case are, the Government of India, Ministry of Health and Family Welfare issued the order dated 31.05.2016, with immediate effect, enhancing up to 65 years, the age of superannuation of the specialists of Non­teaching and public health sub­cadres of CHS and GDMOs of CHS. The ayurvedic doctors were not seen to have been covered by the Ministry’s order dated 31.05.2016. AYUSH (including ayurvedic doctors). At that stage, the Government of India, Ministry of Health and Family Welfare issued the order dated 31.05.2016, with immediate effect, enhancing upto 65 years, the age of superannuation of the specialists of Non­teaching and public health sub­cadres of CHS and GDMOs of CHS. By the common final order dated 24.08.2017, the Tribunal accepted the discrimination argument advanced by the ayurvedic doctors vis­à­vis the allopathic doctors. Accordingly, it was held that the applicants were entitled to same service conditions including the enhanced age of superannuation to 65 years, as made applicable to doctors (GDMOs) working under the CHS, in terms of the order dated 31.05.2016 of Ministry of Health and Family Welfare. Thus, the employer was directed to allow the ayurvedic doctors to continue in service till the age of 65 years. It was clarified that in case any of the applicants had been made to superannuate at the age of 60 years, he/she shall be reinstated and be permitted to serve until the age of 65 years. Aggrieved by the above decision of the Tribunal, the appellant NDMC preferred Writ Petitions before the High Court of Delhi. During the pendency of writ petition, on 24.11.2017, the Ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy (‘AYUSH’ for short), Government of India, issued an order whereby it was communicated that the superannuation age of AYUSH doctors is also enhanced to 65 years w.e.f. 27.09.2017, i.e. the date of approval of Union Cabinet. It was however directed that the doctors shall hold administrative positions only until age of 62 years and thereafter, their service shall be placed in non­administrative positions.

The counsel for the petitioner submitted that, respondent doctors are not entitled to remuneration and unpaid arrears as they were serving in the hospitals on the strength of the Court’s interim order. Such argument for appellants cannot however be accepted in light of the principle ‘Actus Curiae Neminem Gravabit’. In these matters, for almost 5 years, the respondent doctors have been providing service to countless patients, without remuneration or benefits. Their services are utilized by the employer in Government establishments, without demur. In this regard, the learned senior counsel for appellant submits that paying arrear unpaid wages to the respondent doctors will impose substantial financial burden upon the State. The learned counsel for respondents argue that relief to the respondents was granted by the Tribunal and by the High Court by concluding that the action of the authorities in treatment of the allopathic doctors vis­à­vis the ayurvedic doctors was discriminatory and violative of Art. 14 of Constitution. Accordingly, it is argued that there can be no separate service condition in so far as the superannuation age is concerned between allopathic and other category doctors, particularly when the AYUSH Ministry itself on 24.11.2017 has enhanced the retirement age for the non­allopathic doctors w.e.f. 27.09.2017, in tune with the Ministry’s order dated 31.05.2016. It was also submitted that the arrears must be cleared up since respondent­ doctors have been working continuously without break, pursuant to the Interim order of the Delhi High Court dated 26.09.2017.

The learned judge heard the submissions of both the parties and ‘No work should go unpaid’ should be the appropriate doctrine to be followed in these cases where the service rendered by the respondent doctors have been productive both for the patients and also the employer. The respondents must be paid their lawful remuneration­ arrears and current, as the case may be. The State cannot be allowed plead financial burden to deny salary for the legally serving doctors. Otherwise it would violate their rights under Articles 14, 21 and 23 of the Constitution. The petition was dismissed by observing, “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 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.”

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