Supreme Court: The Division Bench of L. Nageswara Rao and Hrishikesh Roy, JJ., held that,

“…doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them.” 

“…no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors.”

Background

Instant appeals were filed directing against the judgment and order passed by the Delhi High Court whereby the Court upheld the decision of the Central Administrative Tribunal and dismissed the petitions filed by the North Delhi Municipal Corporation.

What did CAT declare?

CAT held that the applicants who were ayurvedic doctors covered under AYUSH were also entitled to the benefit of enhanced superannuation age of 65 years (raised from 60 years), just like the allopathic doctors.

Issue in Consideration

Entitlement of respondents to continue in service upto 65 years and receive due remuneration for the same.

Aggrieved by the decision of CAT, the appellant NDMC preferred writ petitions before the Delhi High Court. During the pendency of the petition, the AYUSH Ministry issued an order whereby it was stated that the superannuation age of AYUSH doctors was also enhanced to 65 years w.e.f. 27-09-2017. Though it was directed that the doctors shall hold administrative positions only until the age of 62 years and thereafter, their service shall be placed in non-administrative positions.

The writ petitions challenging the Tribunal’s order were heard analogously and were dismissed affirming the Tribunal’s conclusion in favour of the ayurvedic doctors. The Tribunal noted in its order that although initially the benefit of policy decision of the government to enhance the retirement age was confined to allopathic doctors but subsequently the policy decision was made applicable to other category doctors.

Significantly, while the NDMC had adopted the Ministry’s decision but those ayurvedic doctors of the NDMC who fell in the window between 31-5-2016 and 26-9-2017, were deprived of getting the benefit of the enhanced retirement age.

Contention

It was contended that while the respondents were permitted to continue in service beyond 60 years, they were disentitled to claim any equitable relief by way of arrear of salary on account of the fact that they remained in service under interim orders of the court.

Further, it was also contended that the appellants should not be burdened with the liability to disburse the unpaid arrear salary to the respondents.

Respondent’s counsel argued that there can be no separate service condition in so far as the superannuation age was concerned between the allopathic and other category doctors, particularly when the AYUSH Ministry itself enhanced the retirement age for the non-allopathic doctors in tune with Ministry’s order dated 31-5-2016.

Analysis, Law and Decision

Bench noted that it is undisputed that respondent doctors have continuously served in hospitals till attaining the enhanced age of superannuation and by virtue of interim order of High Court.

Bearing in mind the legal principle ‘Actus Curiae Neminem Gravabit’ the interim order of Delhi High Court dated 26-9-2017 cannot be the basis to deny salary and arrear benefits to respondents.

Court decided that the basic benefit of salary cannot be denied to the doctors who worked and served patients.

In the Supreme Court decision of Central Electricity Supply Utility of Odisha v. Dhobet Sahoo, (2014) 1 SCC 161, stated that:

“51…Till the declaration is made, the incumbent renders service and when he has rendered service he cannot be deprived of his salary. Denial of pay for the service rendered tantamounts to forced labour which is impermissible. When an appointment is admitted and the incumbent functions in the post and neither suspended nor removed from service, he is entitled to get salary, for it is his legal right and it is the duty of the employer to pay it as per the terms and conditions of the appointment….”

Supreme Court in view of the ratio laid down above correctly sets out the employers’ responsibility to pay the wages for the productive employees serving under them.

Elaborating more, the Court noted that for almost 5 years, the respondent doctors had been providing service to countless patients, without remuneration or benefits. Their services have been utilized by the employer in Government establishments without demur.

Further, the Court remarked that,

The principle of ‘No Work, No Pay’ protects employers from paying their employees if they don’t receive service from them.

‘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.

Hence, the Bench held that it is quite clear that the respondents must be paid their lawful remuneration-arrears and current, as the case may be and State cannot be allowed to 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.

Bench declined the contention of the appellants that the classification of AYUSH doctors and doctors under CHS in different categories is reasonable and permissible in law, stating that the same was discriminatory and unreasonable since doctors under both segments were performing the same function of treating and healing their patients.

Court opined that the mode of treatment by itself under the prevalent scheme of things does not qualify as an intelligible differentia.

Therefore, Supreme Court held that the Order of the AYUSH Ministry must be retrospectively applied to all concerned respondent-doctors in the present appeals.

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.

Conclusion

Respondent doctors were entitled to their full salary arrears and the same was ordered to be disbursed, within 8 weeks. [North Delhi Municipal Corporation v. Dr Ram Naresh Sharma, 2021 SCC OnLine SC 540, decided on 3-08-2021]

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One comment

  • AYUH doctors are deprived since 2017 as because they are not getting their benefit for enhance of super annuation age from 60 years to 65 years.Ministry of Aysh issued the order on 24th November 2017, order No.F.No. D.14019/4/2016 -E -I(AYUSH), still it is no implemented.Please try to implement this as early as soon.

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