1. By way of these petitions, the petitioners have challenged the action of the respondent authorities in not extending/not granting benefit of higher pay- scale, as per various Government Resolutions, Notifications and Circulars, to the petitioners who had been working as Medical Officers (Ayurved) or as Medical Officers Class II (CHVS). The petitioners have also prayed for a declaration holding that Medical Officers (Ayurved) as well as Medical Officers Ayurved (Community Health Volunteer Scheme) are eligible and entitled to get benefit of higher pay- scale on completion of prescribed period of service as per various Government Resolutions, Circulars and Notifications, and to hold that the petitioners are eligible and entitled to get the benefit of higher pay-scale on completion of prescribed period of
Scheme; and accordingly to direct the respondent authorities to grant benefit of higher pay-scale to the petitioners, as they are exactly similarly situated to the Insurance Medical Officers under ESIS, and the difference of salary, pension and gratuity be directed to be paid in cash with 18% interest per annum.
2. As common questions of facts and law are involved in these matters, they are heard and decided by this common judgment.
3. The petitioners of Special Civil Application No. 6017/2008 and 6959/2008 were serving as Medical Officers (Ayurved), Class-II and were serving as Medical Officers, Class-II (CHVS).
4. The members of petitioner association of Special Civil Application No.3718/2008 were also serving as Medical Officers (Ayurved) and were serving in various Government Ayurved Dispensaries/Hospitals.
5. Petitioners of Special Civil Application No.11706 of 2008 were appointed as Medical Officer, Class-II in Gujarat Public Health Services and are serving as Medical Officers in Community Health Center in Rajkot/Junagadh Districts.
6. Petitioners of Special Civil Application No. 11363/2009 were appointed as Medical Officer, Class-II in Gujarat Public Health Services and are serving as Medical Officers in Community Health Center in Bhavnagar District.
7. The facts of the present cases are that Recruitment Rules for appointment of Medical Officers (Ayurved) under Employees State Insurance Scheme (ESIS) as well as Recruitment Rules for appointment of Medical Officers under Indian System of Medicine and Homeopathy (ISM & H) provide similar eligibility and qualification criteria.
8. Both the Rules, namely Rules for ESIS Scheme for appointment of Medical Officers (Ayurved) as well as Medical Officers under ISM&H, are having identical selection procedure and thus, the Rules provide for exactly identical qualification criteria and identical selection procedure. There is no distinction so far as qualification criteria or experience criteria or other criteria are concerned, for getting appointment under ESIS Scheme or ISM&H Scheme.
9. Some of the petitioners are having qualification of BAMS, some of the petitioners are having qualification of BASM and some of the petitioners are having qualification of DSAC i.e. Diploma in Shuddh Ayurved Course. Except the change of nomenclature, all the degrees are exactly identical and similar one.
10. A perusal of these Recruitment Rules would make it clear that for being eligible to be considered and appointed as Medical Officers (Ayurved), the basic qualification of BAMS/BSAM or DSAC was considered as basic requirement. Thus, any of the aforesaid qualification was considered as basic eligibility criteria for getting appointment as Medical Officers, Class II (Ayurved).
11. This would further make it clear that all the three categories of qualification, namely BAMS, BSAM or DSAC were considered as equivalent, identical and same. Despite petitioners have served Medical Officers (Ayurved), despite the respondent authorities have considered BAMS, BSAM or DSAC as valid qualification and accordingly, all the petitioners have already successfully served and discharged their duties and have attained the age of superannuation, surprisingly and shockingly, the benefit of higher pay-scale which was required to be made admissible to the petitioners as per the Government Resolution/Circulars as referred to herein above, has not been extended to the petitioners. Benefit of higher pay-scale is being made admissible to Medical Officers serving under Insurance Scheme, who are given nomenclature of Insurance Medical Officers (Ayurved). On behalf of the Ayurved Medical Officers Association, representations were made requesting the authorities to grant benefit of higher pay-scale.
12. All the representations made by the Association have been served upon respondent authorities, however, respondent authorities have not yet considered and decided the same. As on date all the representations have remained pending and the fact remains that respondent authorities have not passed any order either for extending the benefit or for not considering the request of the petitioners and as on date, no decision is being rendered by the respondent authorities in this regard.
13. All the petitioners have attained the age of superannuation. It is the say of the petitioners that the respondent authorities granted the benefit of higher pay-scale, retirement benefits and pension would have been fixed accordingly. It is stated by them that even gratuity and pensionary benefits are always paid considering the criteria like total length of service as well as on the basis of last pay drawn.
14. It is stated by them that there had been addition of higher pay scale, the pay of the petitioners would have been paid retirement benefits accordingly and even pension would have been fixed accordingly. They also stated that there is a recurring and continuous loss so far as the pensionary benefits of the petitioners are concerned, as petitioners have been denied the benefit of higher pay-scale.
15. They further submit that even otherwise also, higher pay-scale was required to be given to the petitioners without there being any insistence on the part of the petitioners, as it was the bounden duty of the respondent authorities to pay the benefits of higher pay-scale.
16. The ld. Counsel for the petitioner further contended that the petitioners are holding the equivalent post of MBBS and they are rendering the work as if they are general practitioners. The counsel for the petitioner further submitted that they made a representation, which it was wrongly rejected by order dated 15.04.2008. On the ground that the same is applicable to General Duty Medical Practitioners, who are working under the Health Department and is not applicable to any other officer.
17. The ld. Counsel for the petitioner further contended that in view of Government Resolution dated 07.02.1979, at page 139, the petitioners were known as Gazetted Post of Medical Practitioners Gujarat Public Health Services, Class-II.
18. The counsel for the petitioner has also pointed out that the qualification of BAMS etc. is recognized under the Gujarat Medical Practitioners Act, 1963 and non MBBS Practitioners are granted said benefits from 01.01.2007, and some practitioners are wrongly deprived their benefit on the different grounds, which are that, they had applied on the ground that they are not General Practitioner, or they are not selected through GPSC or they are not entitled under the Government Resolution.
19. The petitioner further contended that under the Right to Information Act, they have collected certain information and it was pointed out that by Government Resolution dated 28.06.2006 at page 109, some of the officers were granted benefits, who are identically situated to that of the petitioners. The counsel for the petitioner further contended that identical benefits are wrongly deprived to the petitioners.
20. Mr. Apurva Kapadia, for the petitioner in Special Civil Application No.11706 of 2008 has pointed out that the present petition is third round of litigation and he additionally pointed out that identically situated person i.e. Dr. R.N. Kothia has been extended similar benefit.
21. Mr. Kapadia further pointed out that the Government has taken contrary stand to the order which was passed and GPSC Examination was never held during their service tenure. In the rejoinder, he pointed out that similarly situated persons like the petitioners who are having degree of B.S.A.M. who are appointed under the Employees State Insurance Scheme though they are not GPSC passed and still hey have been given first promotion from Class-III to Class-II and thereafter they have been given benefits of Tikku Pay Commission.
22. The ld. AGP for the respondent Mr. Soni has mainly contended that the petitioners are not entitled to the benefits in view of the fact that they have not been selected by GPSC and that they are not required to be extended such benefits.
23. I have heard Mr. N.K.Majmudar, Mr. Kapadia for the petitioners and Mr.H.S.Soni, Ld.AGP, for the respondents.
24. Before proceeding with the matter, admitted facts, petitioners are the members of the petitioner association and are holding degree of BAMS or BSAM (Bachelor of Ayurved in Medicine and Surgery) and the same is equivalent and considered equal to MBBS for all purposes by Government Resolution dated 01.01.1999.
25. From the record it is very clear that in view of the representations filed by the Doctor raising their grievances about fact of promotional avenues and in view of shortage of Doctors in most of the parts of the State, the Cabinet Committee has been formed. After holding discussions and after careful consideration it was decided that in view of shortage of the Doctors at Rural Area, the benefit of the Tiku Commission, is required to be extended to all the medical practitioners under the Health and Medical Department as well as the ASI.
26. In view of the decision taken by the Cabinet and in view of the Government Resolution, they are entitled to be given the benefit pursuant to the resolution dated 17.10.1994 and 01.01.1999.
27. In the impugned order, which was passed by the respondent in rejecting the claim of the petitioner vide impugned order, the only reason which was given is that the scheme of higher pay scale as per the recommendations of the Tikku Commission is applicable only to those Medical Officers who have been regularly recruited as Medical Officers through the Gujarat Public Service Commission. However, in the affidavit- in-reply filed by the Under Secretary, Health and Family Welfare Department, it is stated that the petitioners were initially recruited as Community Health Volunteer Medical Officers (CHVMO) in 1979 under the scheme of Community Health Volunteer Medical Officer scheme of the Government of India. The entire expenditure on account of the salaries of the CHVMOs was being met by the Government of India. On discontinuance of the said scheme, the petitioners and other CHVMOs were required to be terminated. But, the State Government considered their case sympathetically and they were continued in service though the Government of India stopped bearing expenditure on account of their salaries.
28. In my view, the defense or reasons given are not genuine from the record and Mr. Soni, ld. AGP is not in a position to support the same from the rules defined under General Rules for Medical Practitioners.
29. It is only Medical Practitioners, which is defined under the Act and in that view of the matter, the decision of the Chief Personnel Officer of Health, Medical Services and Medical Education, is contrary to rules enshrined under Article 14 and 16 and petitioners are wrongly deprived of their right to get the benefit of higher pay scale pursuant to the benefits which are extended to them by Government Resolution dated 01.01.1999 read with Government Resolution dated 17.10.1994.
30. In view of the aforesaid discussion, order dated 15.04.2008 (at Annexure-K) to SCA No.11363 of 2009 is required to be quashed and the same is set aside.
31. The members of petitioner association in Special Civil Application No.3718/2008 will be extended benefits of Tiku Pay Commission in the matter of grant of higher pay scale.
32. The order dated 14.05.2007 at Annexure:M, page 112, in Special Civil Application No. 11706/2008 is also quashed and set aside. The petitioners will be entitled to benefit of Tiku Pay Commission in the matter of higher pay scale.
33. Similarly, petitioners of Special Civil Application No.6017/2008 and 6959/2008 are also entitled to the benefits of Tiku Pay Commission.
34. Since, the petitioners have already reached the age of superannuation and have retired from service, the respondents are directed to implement the aforesaid directions as expeditiously as possible and in any case within a period of three months from the date of receipt of copy of this judgment.
35. Rule is made absolute in each of the petitions with no order as to costs. Direct service is permitted.
Ankit* [K S JHAVERI, J]