Pradip Kr. Sarkar and 96 Ors v. The State of Assam and 3 Ors

J U D G M E N T & O R D E R (CAV) Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Ms. R. Kakoti, learned counsel for the petitioners. Also heard Mr. B. Gogoi, learned Standing Counsel National Health Mission (NHM) for all the respondents. [2.] The case of the petitioners is that they have been working as Dental Surgeon

(BDS) under the Mission Director, National Rural Health Mission, now National Page No.# 19/27 Health Mission (NHM) and likewise, there are a number of Medical Officers (MBBS) working under the same establishment. The petitioners contend that the respondent authorities have failed to maintain parity in pay structure between BDS and MBBS. Initially, both the categories of Doctors were paid a remuneration of Rs. 18,000/- per month while Medical Officers (Ayurvedic), Medical Officers (Homeo) were getting Rs. 15,000/- per month. After a few months, the remuneration in respect of MBBS was increased to Rs. 25,000/- and later vide Notification dated

11.01.2011 to Rs. 35,000/-per month. By the same notification, the remuneration of BDS was fixed at Rs. 29,000/-per month and that of Medical Officers (Ayur) and Medical Officers (Homeo) at Rs. 22,000/-per month. Again, by a subsequent Notification dated 30.08.2012, the remuneration in respect of MBBS was increased to Rs. 40,000/-per month and the remuneration of Medical Officers (Ayur) and Medical Officers (Homeo) were increased to Rs. 40,000/-per month while remuneration for BDS has remained at Rs. 29,000/-. It is therefore the case of the petitioners that they perform equal work, equal duties and responsibilities like Medical Officer (MBBS) and that their educational qualification was declared to be equivalent by the Govt. of India and therefore, they are entitled to equal pay for equal work. Although the petitioners have filed their representations before the respondent authorities but since the same has not been addressed and mitigated, they are before this Court through the instant writ petition. Page No.# 20/27 [3.] Mr. K.N. Choudhury, learned Senior Counsel submits that the action of the respondents in treating MBBS Doctors and BDS differently cannot be sustained in view of the fact that the Govt. of India, Ministry of Health & Family Welfare by its Office Memorandum dated 16.11.1984 declared the post in the field of Dental Science as Medical Post like that of MBBS Doctors. He submits that offering different pay to the same class of people by the respondent authorities has hit the mandate of Article 39 (d) of the Constitution of India, which proclaims 'equal pay for equal work' for both men and women. He submits that equal pay for equal work for men and women means pay for equal work for everyone of between the sexes. He submits that BDS and MBBS degrees are equivalent degree, and as such, the petitioners were rightly given the same amount of remuneration at the time of their initial appointment. Subsequently, remuneration of MBBS Doctors was increased by overlooking the rights of the petitioners for equal amount of salary. He submits that the mandate of equality enshrined in Article 14 of the Constitution of India has been violated by the respondent authorities by not giving the petitioners equal pay with that of MBBS Doctors. He therefore submits that the respondent authorities should be directed to grant the petitioners equal pay and at par with those MBBS Doctors. The learned Senior Counsel in support of his submission relies upon the following authorities:-

(1) State of Telangana represented by its Secretary to the Page No.# 21/27 Government, Health, Medical & Family Welfare Department & Ors. Vs. Mohd. Ibrahim & Ors. 2023 SCC OnLine TS 38 and the Order dated 24.07.2023 passed by the Apex Court in SLP (C) Diary No. 20204/2023 (The State of Telangana & Ors. Vs. Mohd. Ibrahim & Ors.)

(2) North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma & Ors. (2021) 17 SCC 642

(3) Order dated 03.04.2018 passed by the High Court of Uttarakhand in WP(C) No. 484/2014 (Dr. Sanjay Singh Chauhan & Ors. Vs. State of Uttarakhan & Ors.) and the Order dated

24.03.2022 passed by the Apex Court in SLA (C) No. 33645/2018 (State of Uttarakhand & Ors. Vs. Sanjay Singh Chauhan & Ors.) and

(4) Order dated 29.03.2022 passed by a coordinate Bench of this Court in WP(C) No. 8759/2018 (The Ayurvedic Doctors Association & 2 Ors. Vs. The State of Assam & Ors.). [4.] Mr. B. Gogoi, learned Standing Counsel, NHM on the other hand submits that the remuneration of Medical Officers (MBBS) under the NHM were revised vide Order dated 30.08.2012 to Rs. 40,000/-per month with an objective to keep parity to the extent possible with similar categories of post under regular Government Page No.# 22/27 Services as well as on the basis higher job responsibilities assigned. He submits that there is no relation of pay parity of Medical Officers (BDS) with Medical Officers (MBBS) under NHM, Assam. Revision of remuneration of various positions including Medical Officers (MBBS), Medical Officers (Ayur) and Medical Officers (Homeo) were done based on job responsibilities within the budgetary provision of Revision of Pay (ROP) and with an objective to keep parity to the extent possible with similar categories of post under regular Government Service. He submits that at par revision of remuneration does not arise since job responsibilities of Dental Surgeon are not the same with Medical Officers (MBBS). He submits that the job responsibilities of Medical Officers (BDS) are not related to life threatening situations while the responsibilities of Medical Officers (MBBS) are related to life threatening matters. He therefore submits that the petitioners cannot have any legitimate grievance with regard to the remuneration given to them and therefore, the writ petition should be dismissed. Mr. B. Gogoi, learned Standing Counsel, NHM in support of his submission relies upon the following authorities:-

(1) S.C. Chandra & Ors. Vs. State of Jharkhnad & Ors. (2007) 8 SCC 271

(2) State of Punjab & Ors. Vs. Jagjit Singh & Ors. (2017) 1 SCC 148

(3) Judgment dated 26.04.2023 of the Apex Court in Civil Page No.# 23/27 Appeal No. 8557/2014 (State of Gujarat & Ors. Vs. Dr. P.A. Bhatt & Ors.) and

(4) Judgment dated 02.01.2024 passed by the Apex Court in Civil Appeal No. 17/2024 (The State of M.P & Ors. Vs. Vijay Kumar Tiwari & Ors.) [5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the authorities relied upon by the parties. As already stated, the petitioners, who are Dental Surgeons are claiming parity of pay with that of Medical Officers (MBBS). They were initially having equal pay in the year 2007 but at subsequent stages, there arose difference of pay and as on 2023, Medical Officers (MBBS) are getting Rs. 55,000/- while the Dental Surgeons are getting Rs. 33,550/- per month. The stand taken by the respondents is that due to the difference in the nature of their work and responsibilities, they cannot be treated at par. Such stand is briefly taken in their counter affidavit. It is also seen that the representations filed by the petitioners have not been considered by the respondent authorities concerned. [6.] Coming to the authorities relied upon by the petitioners, it may be seen that the case of pay parity in Mohd. Ibrahim & Ors. (supra), which was allowed by the High Court and upheld by the Supreme Court was in respect of inequality in the stipend given to Post Graduate students of Ayush Institution on one hand and Page No.# 24/27 House Surgeon and Post Graduate students in Alopathic Institutions in the State of Telangana on the other. However, in the present case, we are concerned with the claim for equal remuneration by Dental Surgeons and with that of Medical Officers

(MBBS) and it is not an issue of stipend. [7.] Reliance has also been placed on the case of Dr. Ram Naresh Sharma & Ors. (supra), which is again in respect of the age of superannuation between Ayush Doctors and Alopathic Doctors. It may be seen that a brief comparison has been made with regard to the area of treatment by Doctors of both discipline, unlike the instant case, where comparison will have to be made between Dental Surgeons and Medical Officers (MBBS). Similarly, the case of Dr. Sanjay Singh Chauhan & Ors. (supra) though relates to pay parity but the discipline under comparison was between Medical Officers (Ayush) on one hand and Alopathic Medical Officers and Dental Medical Officers on the other. Likewise, the case of the Ayurvedic Doctors Association & 2 Ors. (supra) is also in respect of Medical Officers (Ayurvedic) on one hand and Medical Officers (MBBS) on the other hand. A comparison of the duties and activities of both disciplines have been made. Perusal of the same would go to show that the same cannot be done in respect of the present case as the area of practice of a Dental Surgeon as already stated would differ with that of Medical Officers (MBBS). [8.] The learned Standing Counsel, NHM has relied upon the case of S.C Chandra Page No.# 25/27 & Ors. (supra) wherein, the Apex Court had examined and considered various decisions rendered by the same Court. The Apex Court observed that fixation of pay is a delicate mechanism, which requires various considerations including financial capacity, responsibilities, educational qualification, mode of appointments etc. and it has a cascading affect. Therefore, in subsequent decisions of the Apex Court, the principle of equal pay for equal work has been considerably watered down and it has hardly ever been applied by the Court in recent years. The case of State of Haryana Vs. Jasmer Singh, (1996) 11 SCC 77 was one of the cases referred to wherein, it was held that persons doing the same work may have different degrees and responsibilities, reliabilities and confidentialities and those would be sufficient for valid differentiation of pay. Consequently, the writ petition filed by the appellants before the High Court, which was dismissed was upheld. [9.] The Apex Court in the case of Dr. P.A Bhatt & Ors. (supra) considered the issue as to whether the respondents who possessed the degree of Ayurved in medicine and surgery can be treated at par with Doctors having MBBS degree. After a detail examination between the two (2) disciplines, the Apex Court came to the conclusion that the two (2) disciplines cannot be treated at par and the Doctors of both the discipline cannot be said to be performing equal work so as to be entitle them equal pay. Similar comparison was also made in the case of Vijay Kumar Tiwari (supra) in respect of Post Graduate students in the Ayurveda stream and Post Graduate students in Alopathy stream and it was held that both the Page No.# 26/27 streams cannot be treated at par. [10.] The Apex Court in State of Haryana Vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72 observed that equation of posts and salary is a complex matter which should be left to an expert body. Courts must realize that the job is both a difficult and time consuming task which even expert having the assistance of staff with requisite expertise have found difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the expert to discharge. In the present case, as already noticed, the representations submitted by the petitioners have not been considered by the respondent authorities, which led them to file the instant writ petition. Having regard to the complexity in determining parity of pay for two (2) separate disciplines although in the medical field, this Court is of the considered view that a decision in this regard should be left to those who are expert in the field. [11.] Accordingly, this writ petition is disposed of with a direction to the respondents to look into the grievance projected by the petitioners in terms of their representations which were submitted on 19.02.2014 (Annexure-K), 13.02.2015 (Annexure-L) and 12.01.2018 (Annexure-M). Liberty is also given to the petitioners to submit any other additional documents which justify their claim to the respondent authorities. Such consideration should be done by the respondent authorities if necessary, by constituting an Expert Body/Committee and the Page No.# 27/27 consideration should be concluded by passing a reasoned and speaking order within a period of four (4) months from the date of receipt of a certified copy of this Order. Under the facts and circumstances, the parties are directed to bear their own cost.

JUDGE Comparing Assistant

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