New Delhi: Can the state differentiate between doctors practising alternative or traditional medicine and practitioners of modern medicine when it comes to framing rules governing them?
This question came up for the Supreme Court’s consideration on Friday, with a three-judge bench, led by Chief Justice of India D.Y. Chandrachud, agreeing to hear the Rajasthan government’s contention that superannuation age for AYUSH doctors cannot be the same as that of doctors employed in the modern medicine stream. The top court was initially reluctant to hear the case.
In February this year, the Rajasthan High Court increased the retirement age for AYUSH doctors working in state-run hospitals from 60 to 62 years. This direction came on a petition filed by AYUSH doctors who challenged an amendment made to the Rajasthan Service Rules, 1951, that changed the retirement age for doctors.
However, the provision was only made applicable to doctors holding MBBS degrees and left out medical professionals who practice alternative medicine such as Ayurvedic, Unani, Homeopathy and Naturopathy. The Rajasthan High Court termed this exclusion as discriminatory and granted relief to the petitioners by allowing their petition.
On Friday, the CJI-led bench expressed its reluctance to entertain the Rajasthan government’s appeal to the high court order.
CJI Chandrachud observed: “They (AYUSH doctors) are doing a great job and contributing. Why do you want to bring this up?” But on solicitor general Tushar Mehta’s persuasion, the bench issued notice to the AYUSH doctors on whose plea the high court had given its verdict.
The bench was also told that in view of conflicting judgements by two coordinate benches of the top court, a three-judge bench will have to determine the issue of whether AYUSH doctors can be treated at par with modern medicine doctors afresh.
According to the Rajasthan government’s appeal, settled by advocate Shiv Mangal Sharma, the high court had relied upon a 2021 verdict of the Supreme Court, which declared that ayurvedic doctors covered under AYUSH were also entitled to the benefit of enhanced retirement age of 65 years. The judgement upheld the Central Administrative Tribunal’s (CAT) decision that directed the North Delhi Municipal Corporation to maintain a uniform retirement age for both AYUSH and modern medicine doctors.
In this judgement, the court held that classification of AYUSH doctors as a separate group to justify the varied service rules for them was not a reasonable one. It opined that the mode of treatment by itself under the prevalent scheme of things does not qualify as an intelligible differentia.
However, the high court, the Rajasthan government submitted, ignored a recent judgement of the Supreme Court which differentiated the roles of an AYUSH and modern medicine doctor.
Delivered in April 2023, this bench of two judges had said “that practitioners of alternative systems of medicine such as Ayurveda are not entitled to equal pay with allopathic doctors as they are not involved in performing emergency duties and complicated surgeries”.
The emergency duty that modern medicine doctors are capable of performing and the trauma care that they can provide cannot be performed by Ayurved doctors, it had ruled, adding while an MBBS doctor can assist surgeons to perform complicated surgeries, but Ayurved doctors could not.
“Therefore, even while recognizing the importance of Ayurved doctors and the need to promote alternative/indigenous systems of medicine, we cannot be oblivious of the fact that both categories of doctors are certainly not performing equal work to be entitled to equal pay,” the 2023 judgement of the Supreme Court had said.
Bearing the divergent views taken by benches of the same strength, the Rajasthan government asked the Supreme Court to review the issue and settle it. It also wanted the top court to consider the circumstances prevailing in the state where, it said, there was a shortage of modern medicine doctors serving under the administration.
The decision to raise the retirement age of modern medicine doctors from 60 to 62 years was to meet the shortage of experts in this field. “Since there were a large number of AYUSH doctors serving in the state, a similar raising of retirement age for them was not considered necessary,” the state government’s appeal submitted.
(Edited by Tikli Basu)
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