Supreme Court refers to larger bench question of parity between AYUSH and allopathic doctors

New Delhi: The Supreme Court has referred to a larger bench the question whether doctors practising indigenous medical systems such as Ayurveda, Unani, homeopathy can be treated on par with "allopathic" doctors for determining service conditions, retirement age, and pay scales.

On May 13, a bench comprising Chief Justice B R Gavai and Justice K Vinod Chandran reserved its order on the pleas seeking answer to whether there can be a different age of superannuation for doctors practising modern medicine from the practitioners of AYUSH in government hospitals and clinics.

In an order delivered on October 17, the bench said "there is divergence of opinion" on whether doctors of the two systems can be treated equally for service benefits and hence, the issue required an authoritative pronouncement.

The term 'allopathy' was coined by the founder of homeopathy, Samuel Hahnemann, who used it to disparage the mainstream medicine system prevailing then.

The court noted that earlier decisions had taken divergent stands on whether AYUSH doctors could claim the same retirement benefits and pay scales as allopathic doctors.

"We cannot ignore the submission of the States that enhancement of the retirement age (of allopathic doctors) was only to ensure that there are sufficient experienced medical practitioners available to treat the public.

"The dearth of medical practitioners as occurring in allopathy does not exist in the indigenous systems of medicine especially when critical life-saving therapeutic, interventional and surgical care is not carried out by the practitioners of indigenous systems of medicine.

"We are of the opinion that there should be an authoritative pronouncement on the issue and we hence refer the matter to a larger Bench. The Registry is directed to place the matter before the Hon'ble the Chief Justice of India on the administrative side," the order read.

Pending the larger bench's decision, the court allowed states and authorities the option to continue AYUSH practitioners beyond their current age of superannuation, up to the retirement age applicable to allopathic doctors, on a temporary basis, but without regular pay and allowances.

If the larger bench ultimately rules in favour of AYUSH doctors, they will be entitled to full pay and allowances for the extended period, the court said.

Conversely, those not continued in service would still receive arrears if the issue is decided in their favour later, it added.

The court further directed that AYUSH doctors permitted to continue in service during the interim period be paid half of their pay and allowances, to be adjusted against pension or regular emoluments depending on the outcome of the reference.

The bench was hearing as many as 31 petitions on the issue and heard many lawyers, including Solicitor General Tushar Mehta, who appeared for the Rajasthan government, and Ashwini Upadhyaya, who represented a few ayurvedic practitioners.

On May 3 last year, the bench had agreed to examine the issue.

Earlier, the Rajasthan government took note of the shortage of "allopathic" doctors and enhanced their age of retirement from 60 to 62 years with effect from March 31, 2016.

The decision led to litigation by similarly placed government AYUSH doctors.

The Rajasthan High Court, on February 28, rendered a judgement accepting the grievances of the ayurvedic doctors and held they will be deemed to be in service up to the age of 62 years if their date of retirement fell after March 31, 2016.

"Those who have been superannuated on attaining the age of 60 years, but have not completed the age of 62 years, be reinstated in service forthwith," the high court held.

The state government appealed in the top court and urged the bench that the order be stayed.

"Why should we be interfering with this," the bench then observed.

However, later the bench agreed to consider the appeal of the state government after taking note of the submissions of Mehta.

The law officer said around 1,000 such doctors will come back to service due to the effect of the high court verdict.

"We will issue notice," the bench said.

The high court had allowed the plea of the AYUSH doctors that the different age of superannuation was discriminatory as being violative of Article 14 (right to equality) of the Constitution.

The AYUSH doctors submitted that they perform the same function of treating and healing their patients and hence, the classification is discriminatory and unreasonable.

The state government, on the other hand, submitted before the high court that since there is shortage of modern medicine doctors serving under it, a decision was taken to raise their retirement age from 60 years to 62 years.

However, since there was a large number of AYUSH doctors serving with the state government, a similar raising of retirement age for AYUSH doctors was not considered necessary by the government, the state government had said.