State of Gujarat & Ors. Etc. v. Dr. P. A. Bhatt & Ors. Etc.
V. RAMASUBRAMANIAN, J.
1. These civil appeals arise out of a common order passed by the
Division Bench of the High Court of Gujarat at Ahmedabad confirming
the order of the learned Single Judge, holding that the resp ondents
possessing a degree of BAMS (Bachelor of Ayurved in Medic ine and
Surgery) should be treated at par with the doctors holding MBBS degrees
and that they are entitled to the benefits of the recommendations of the
Tikku Pay Commission.
2. We have heard the learned counsel appearing for the parties.
3. On the basis of a Memorandum of Settlement dated 21.08.1989
305
entered into by the Ministry of Health and Family Welfare with the Joint
Action Council of Service Doctors Organisation, a H igh-Power
Committee was constituted on 03.05.1990 with Shri R.K. Tikku as i ts
Chairman, for the purpose of improving the service conditi ons and
prospects of the doctors in Government service.
4. This Committee held 30 meetings during the period from June-
1990 to October-1990 and submitted its recommendations under a Report
dated 31.10.1990. The recommendations contained in this Report was
confined only to service doctors holding MBBS degrees and post-graduate
medical degrees and degrees in super-specialities and those on the
teaching and non-teaching sides.
5. By a separate order dated 19.11.1990, the Ministry of Health
and Family Welfare constituted another High-Power Committee under
the chairmanship of the very same person, namely, Shri R.K. Tikku, for
the purpose of considering the career improvement a nd cadre
restructuring of the practitioners of Indian Systems of Medic ine and
Homeopathy. This Committee submitted a separate Report on 26.02.1991
and it was confined to practitioners of alternative Systems of Medicine,
holding degrees in Ayurved/Unani/Siddha/Homeopathy.
6. The Government of India accepted the recommendations of
the Tikku Committee dated 31.10.1990, in respect of allopathic doctors
by Office Memorandum dated 14.11.1991. The State of Gujarat also
accepted the recommendations of the Tikku Committee for all opathic
doctors and issued an order in Resolution No.GHS/1094/2842/T dated
17.10.1994. It was stated in the said order dated 17.10.1994 that adequate
number of allopathic doctors was not available in the State and that
therefore, it was necessary to attract talent.
7. After the implementation of the recommendations of the Tikku
Committee dated 31.10.1990 in respect of allopathic doctors, in the State
of Gujarat by the Government Resolution dated 17.10.1994, the Local
Fund Audit, Ahmedabad sought clarifications, vide letters dated 04.03.1998
and 21.04.1998, as to whether the same benefits are available to non-
MBBS medical officers holding qualifications such as G.A.F.M/LMP.
8. In response, the Health and Family Welfare Department of the
Government of Gujarat issued a Government Resolution bearing No.KRV/
1098/726/CH dated 01.01.1999, holding that non-MBBS medical officers
are also entitled to the benefit. Incidentally this letter stated that the
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
recommendations of the Tikku Committee were extended even to doctors
working under the Employees State Insurance Scheme, vide Government
Resolution dated 01.07.1997.
9. The respondents herein who were originally appointed on adhoc
basis, under the ‘Community Health Volunteer Medical Officers Scheme’
floated by the Government of India and who were later absorbed by the
State of Gujarat in May- 1999, filed 4 writ petitions on the file of the
High Court of Gujarat seeking extension of the benefit of higher scales
of pay on the basis of the recommendations of Tikku Pay Commission.
A separate writ petition was filed by the Medical Offi cers (Ayurved)
Association, comprising of persons initially appointed as Medical Officers
Class-III. The relief sought by this Association was simil ar to the one
sought in the batch of four writ petitions.
10. By a common order dated 26.07.2012, a learned Judge of the
High Court allowed all the writ petitions, holding that doctors having
degrees in alternative Systems of Medicine are entitled to be treated at
par with doctors holding MBBS degree.
11. The State of Gujarat preferred intra-court appeals. After filing
appeals, the State also issued a Government Resolution dated 31.07.2013
withdrawing the Resolution dated 01.01.1999 by which the benefit was
extended to non-MBBS degree holders. This was because the lea rned
Single Judge held that discrimination between non-MBBS degree holders
working in the ESI Scheme and non-MBBS degree holders working in
other areas was not permissible.
12. But the Division Bench of the High Court dismissed all t he
intra-court appeals holding, (i) that both MBBS and non-MBBS doctors
form part of the same cadre and hence no discrimination is permissible
within the cadre on the basis of educational qualifications; and (ii) that
the non-MBBS doctors were also discharging the same duties and
functions discharged by MBBS doctors and were even manning primary
health centres independently and that therefore they were ent itled to
equal pay.
13. Aggrieved by the said order of the Division Bench of the High
Court, the State has come up with the above appeals. On 08.09 .2014,
this Court granted leave in the special leave petitions a nd passed an
interim order to the following effect.
307
“Leave granted.
Having heard learned counsel for the parties, it is directed that
the State of Gujarat shall comply with the order of the High Court
up to 50% within two months. Needless to say, it case the appeal
is dismissed, the respondents shall be entitled to the balance 50%
with interest, which shall be determined at the time of final
adjudication of the appeal.
Hearing expedited.”
14. Claiming that the above interim direction issued on 08.09.2014
was not complied, a batch of contempt petitions was fil ed in the year
2016. Those contempt petitions were disposed of on the basis o f a
statement made to the effect that the State will comply with the order by
the end of October, 2016.
15. However, a fresh set of three contempt petitions were filed in
the year 2017, complaining of wilful disobedience of the orde r dated
08.09.2014. These contempt petitions were directed to be listed alongwith
the main appeals and this is why we have five civil appea ls and three
contempt petitions on hand.
Preliminary contention
16. The learned counsel for the respondents raised a preliminary
issue that the question raised in these appeals is squarely covered by a
recent judgment of this Court in North Delhi Municipal Corporation
vs. Dr. Ram Naresh Sharma 1 and that therefore the impugned order
of the High Court does not need a deeper scrutiny. Therefor e, it is
necessary to address this preliminary issue before we proceed to consider
the rival contentions on merits.
17. In Dr. Ram Naresh Sharma (supra), the only question that
arose was as to whether the benefit of enhancement of age of retirement
from 60 years to 65 years, granted in favour of Allopathy doctors, was
available even for Ayurved doctors or not. It was held in the said decision
as follows:
“22. The common contention of the appellants before us is
that classification of AYUSH doctors and doctors under CHS in
different categories is reasonable and permissible in la w. This
however does not appeal to us and we are inclined to agree with
1 2021 (9) SCALE 47
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
the findings of the Tribunal and the Delhi High Court that the
classification is discriminatory and unreasonable since doctors under
both segments are performing the same function of treating and
healing their patients. The only difference is that AYUSH doctors
are using indigenous systems of medicine like Ayurveda, Unani,
etc. and CHS doctors are using Allopathy for tending to their patients.
In our understanding, the mode of treatment by itself und er the
prevalent scheme of things, does not qualify as an intellig ible
differentia. Therefore, such unreasonable classific ation and
discrimination based on it would surely be inconsistent with Article
14 of the Constitution. The order of AYUSH Ministry dat ed
24.11.2017 extending the age of superannuation to 65 Years also
endorses such a view. This extension is in tune with the notification
of Ministry of Health and Family Welfare dated 31.05.2016.
23. The doctors, both under AYUSH and CHS, render service
to patients and on this core aspect, there is nothing to distinguish
them. Therefore, no rational justification is seen for having different
dates for bestowing the benefit of extended age of superannuation
to these two categories of doctors. Hence, the order of AYUSH
Ministry (F.No.D14019/4/2016-E-I(AYUSH)) dated 24.11.2017
must be retrospectively applied from 31.05.2016 to all concerned
respondent-doctors, in the present appeals. All consequences must
follow from this conclusion.”
18. A cursory reading of the portion of the judgment extracted
supra, may give an impression as though the question arising for
consideration is no longer res integra and that Allopathy doctors and
Ayurved doctors should be treated on par insofar as all service conditions
are concerned. But a careful reading of the entire judgment shows that
the said decision was based upon an order of the Ministry of Ayurveda,
Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH) dated
24.11.2017. As seen from paragraph 2 of the said decision, the age of
retirement of Allopathy doctors was increased by an order dated
31.05.2016 issued by the Ministry of Health and Family Welfare. This
was followed by consequential amendment of the Fundamental Rules
and Supplementary Rules, 1922. Since Ayurved doctors were not covered
by the Ministry’s order dated 31.05.2016, Ayurved do ctors filed
applications before the Administrative Tribunal. The Admini strative
Tribunal allowed the applications by an order dated 24.08.2017. The
North Delhi Municipal Corporation (employer) filed writ petitions before
309
the High Court of Delhi challenging the decision of the Tribunal. During
the pendency of the writ petitions, the Ministry of AYUSH issued an
order dated 24.11.2017 enhancing the age of retirement of AYU SH
doctors also to 65 years, but with effect from 27.09.2017. It is in that
context that this Court held as aforesaid in Dr. Ram Naresh Sharma.
This Court did not go into the question whether AYUSH doctors a nd
Allopathy doctors were performing equal duties and responsibilities so
as to be entitled to equal pay.
19. We must remember the fundamental distinction between, (i)
the issue of law that equal work entails equal pay; and (ii) the issue of
fact as to whether two categories of employees are perfor ming equal
work or not? This Court did not go into the factual aspect in Dr. Ram
Naresh Sharma as to whether AYUSH doctors were performing equal
work as Allopathy doctors. This Court simply relied upon the order of
the Ministry of AYUSH itself enhancing the age of retirement of AYUSH
doctors on par with Allopathy doctors.
20. In any case, the question of age of retirement stands on a
different footing from the service conditions relat ing to pay and
allowances and revision of pay. Therefore, we do not think that the issue
raised in these appeals can be said to be covered by the decision in Dr.
Ram Naresh Sharma .
Other contentions
21. Assailing the impugned order of the High Court, it is contended
on behalf of the State that the recommendations of Tikku Pay Commission
for enhancement of the scales of pay were per se applicable only to
MBBS doctors; that the revision of scales of pay in favour of Allopathy
doctors was warranted by the perennial shortage of Allopathy doctors;
that the State Government had to fulfil its Constitutional obligation of
providing adequate healthcare infrastructure to the citizens by recruiting
qualified MBBS doctors, but the State could not attract sufficient talent,
due to the poor pay structure; that in contrast, the State was never running
short of AYUSH doctors and hence there was no necessity to lure qualified
AYUSH doctors to come to service; that there is no impediment in law
for providing different scales of pay to persons em ployed in the same
cadre, based upon the qualifications; and that the High Court miserably
failed to appreciate the completely different natur e of duties and
responsibilities performed by Allopathy doctors and AYUSH doctors and
that therefore the impugned order is wrong, both in law and on facts.
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
22. In response, it is contended by the learned counsel for the
respondents that both Allopathy doctors and AYUSH d octors are
appointed to the post of Medical Officer falling in Class- II of Gujarat
Medical Services; that once persons with different qualifications are
appointed to one unified cadre with a common pay scale and governed
by one set of rules, then at a later stage, the Government cannot make a
classification; that all Medical Officers, irrespective of their qualifications
were discharging the same duties and responsibilitie s; that by the
Government Resolution dated 01.01.1999, the recommendations of the
Tikku Pay Commission were made applicable to non-MBBS degr ee
holders working in the ESI Scheme; that it was only after the learned
Single Judge allowed the writ petitions, that the State is sued another
Resolution dated 31.07.2013 withdrawing the Resolut ion dated
01.01.1999; and that the findings of fact recorded by the learned Single
Judge and the Division Bench of the High Court that both categories of
doctors are performing equal work, does not call for any int erference
under Article 136 of the Constitution and that therefore the appeals are
liable to be dismissed.
23. We have carefully considered the above submissions.
24. Two questions, in our opinion, arise for consideration in these
appeals. They are:
(i) Whether different scales of pay can be fixed for officers
appointed to the same cadre, on the basis of educational
qualifications possessed by them?
(ii) Whether Allopathy doctors and doctors of indigenous
medicine can be said to be performing “equal work” so as
to be entitled to “equal pay”?
Question No.1: Whether different scales of pay can be fixed
for officers appointed to the same cadre, on the ba sis of the
educational qualifications possessed by them?
25. The first issue arising for consideration is as to whether persons
appointed to the same post in a cadre can be given differ ent scales of
pay on the basis of educational qualifications?
26. Though the issue is no longer res integra, we shall refer to a
few decisions, some of which were cited before the High Court also.
311
27. In The State of Mysore vs. P. Narasinga Rao2, which is one
of the earliest cases to be considered by a Constitution B ench of this
Court, the classification of two grades of Tracers, one for matriculates
with a higher pay scale and the other for non-matriculates with a lower
pay scale, was held by this Court to be not violative of Articles 14 and 16
of the Constitution. In fact, it was a case where both matr iculates as
well as non-matriculates were drawing the same scale of p ay in the
erstwhile State of Hyderabad, but after the reorganizati on of States in
1956, two different scales of pay came to be given to those who were
allotted to the new Mysore State. Yet this Court upheld the classification.
28. In Dr. C. Girijambal vs. Government of Andhra Pradesh 3,
the holder of a Diploma in Ayurvedic Medicine (DAM), appointed to the
post of Medical Officer, was given a scale of pay lower t han the scale
of pay given for the holders of Graduate of the College of Inte grated
Medicine (GCIM) and Licentiate in Indigenous Medicine (LIM). When
questioned, the Authorities pointed out that a higher scale of p ay was
available only to those with Class ‘A’ Registration Certificate under the
Andhra Ayurvedic and Homeopathic Medical Practitioners’ Registration
Act, 1956. Therefore, the Medical Officer filed a writ petition seeking a
direction to the Andhra Board of Ayurveda to register her as Class ‘A’
Practitioner. The High Court allowed the writ petition and the writ petitioner
was granted higher scale of pay with retrospective effe ct. But when a
revision of the scales of pay of Medical Officers was undertaken in the
year 1975, under GOM No.574 dated 20.10.1975, a higher scale of pay
was granted to those holding LIM and the petitioner was granted a lower
scale of pay. Her challenge to this classification was rejected by the
Administrative Tribunal and the claim landed up before this Court. While
rejecting the claim, this Court clarified the law pithily in the following words:
“6. Dealing with the first contention we would like t o
observe at the outset that the principle of equal pay for
equal work cannot be invoked or applied invariably in every
kind of service and certainly it cannot be invoked i n the
area of professional services when these are to be
compensated. Dressing of any injury or wound is done both by a
doctor as well as a compounder, but surely it cannot be suggested
that for doing this job a doctor cannot be compensated more than
2 AIR 1968 SC 349
3 (1981) 2 SCC 155
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
the compounder. Similarly, a case in Court of law is argued both
by a senior and a junior lawyer, but it is difficult to accept that in
matter of remuneration both should be treated equally. It is thus
clear that in the field of rendering professional servic es at
any rate the principle of equal pay for equal work would be
inapplicable. In the instant case Medical Officers holding the
qualification of G.C.I.M., or the qualification of L.I.M. or t he
qualification of D.A.M., though in charge of dispensaries run by
Zilla Parishads, cannot, therefore, be created on par wit h each
other and if the State Government or the Zilla Parishads prescribe
different scales of pay for each category of Medical Officers no
fault could be found with such prescription. …”
29. Though the decision in Dr. C. Girijambal (supra) was cited,
the High Court, in the cases on hand, sought to distinguish the same on
the ground that in the case of holders of GCIM, LIM and DAM , the
State did not treat them equally in the matter of proficiency right from
the beginning, but that in the case of non-MBBS degree holders and
MBBS degree holders, the cadre remained the same. Therefore , the
High Court held that the ration of the decision in Dr. C. Girijambal was
not applicable to the cases on hand.
30. But we do not think that the High Court was rig ht in
distinguishing the decision in Dr. C. Girijambal. In the said case, the
writ petitioner succeeded in the first round of litigation and secured a
Class ‘A’ Registration Certificate as well as the same scale of pay on
par with holders of GCIM and LIM. It was only thereafter when a
revision was undertaken that a classification was sought to be made. In
other words, the petitioner in Dr. C. Girijambal reached the same
pedestal as that of others through a court order an d it was only
subsequently, that she suffered inequal treatment at the time of revision
of pay. Therefore, the distinguishment made by the High Court to t he
decision in Dr. C. Girijambal is not well founded.
31. In Mewa Ram Kanojia vs. All India Institute of Medical
Sciences4, a person initially appointed to the post of Teacher Coordinator
in a project funded by the Indian Council of Medical Research, was
redesignated as Hearing Therapist, upon his unit getting absorbed with
the All India Institute of Medical Sciences. While implem enting the
recommendations of the Third Pay Commission, he sought parity with
4 (1989) 2 SCC 235
313
Speech Therapists and Audiologists. His claim was not considered, forcing
him to approach this Court directly under Article 32 of the Constitution,
contending that he was performing the same duties and functions as that
of Speech Therapists and Audiologists. While rejecting his claim, this
Court held that “… it is open to the State to classify employees on the
basis of qualifications, duties and responsibilitie s of the posts
concerned. …”.
32. The decision in Mewa Ram Kanojia (supra) was distinguished
by the High Court on the ground that in the case on hand the Allopathy
doctors and Ayurved doctors are performing the same duties and
responsibilities. The question whether they are in fact pe rforming the
same duties and functions will be dealt with by us while answering the
second issue arising for consideration before us.
33. In Shyam Babu Verma vs. Union of India 5, this Court
clarified that though “…the nature of work may be more or less the
same, but scale of pay may vary based on academic qualif ications
or experience which justifies the classification. …”. This view has
been the consistent view of this court.
34. In the impugned order, the High Court placed reliance on the
decision in State of Haryana vs. Ram Chander 6. It was a case where
language teachers in Haryana Government Vocational Education Institute
sought parity in pay scale with teachers in higher seconda ry schools.
There was a finding of fact in that case that the teachers in higher
secondary schools were designated as lecturers and only those with a
Master’s Degree were appointed. However, language te achers in
Vocational Education Institutes possessed only an undergraduate degree
in Arts and an undergraduate degree in Education with Hindi/English as
one of the teaching subjects. Despite finding that the teachers in higher
secondary schools had a higher educational qualification than those in
Vocational Education Institutes, the High Court granted relief to language
teachers working in those Institutes and the same was upheld b y this
Court. Therefore, the High Court, in the impugned order, placed strong
reliance upon this decision.
35. But a careful perusal of the decision in Ram Chander (supra)
will show that this Court was convinced to uphold the judgment of the
High Court mainly for the reason that the State itself had ig nored the
5 (1994) 2 SCC 521
6 (1997) 5 SCC 253
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
difference in the educational qualifications. In paragraph 13 of the decision,
this Court held as follows:
“13. In the light of these salient features which are well established
on record there would be no escape from the conclusion that but
for the difference in educational qualifications both these sets of
employees are similarly circumscribed. So far as the educational
qualifications’ difference is concerned that would have , as
noted above, made some vital difference but for the fact
that the appellants themselves in their own wisdom thou ght
it fit to ignore this difference in the educational qualifications
by offering a uniform time scale of Rs 1640-2900 to all postgraduate
lecturers in higher secondary schools. ….”
36. In Director of Elementary Education, Odisha vs. Pramod
Kumar Sahoo 7, this Court held that the classification based upon
educational qualification for the grant of higher pay s cale, is a valid
classification. This Court relied upon the decision in Shyam Babu V erma
(supra).
37. Therefore, it is clear that the classification based upon
educational qualification is not violative of Articles 14 and 16 of the
Constitution. Hence, our answer to Issue No.1 will be in favour of th e
State and against the respondents.
Question No.2: Whether Allopathy doctors and the
respondents practicing alternative systems of medicine can be said
to be performing “equal work” so as to be entitled to “equal pay”?
38. The second question arising for consideration is as to whether
the holders of degrees and post-graduate degrees in indigenous and other
non-Allopathic Systems of Medicine can be said to be performing equal
work as the holders of degrees and postgraduate degrees in Allopathic
Systems of Medicine, so as to be entitled to equal pay?
39. In the writ petition filed by them, it was claime d by the
respondents herein that they were doing the same work as was done by
other medical officers holding MBBS degrees and that they were also
serving in various Primary Health Centres/ Community Health Centres.
They also claimed that even as per the job-chart of the G eneral Duty
Medical Officers, the duties performed by both categories of doctors
7 (2019) 10 SCC 674
315
are the same. The respondents further claimed that they held posts
interchangeable with those having MBBS degrees.
40. The Government filed an affidavit before the High Court
contending inter alia :-
(i) that while General Hospitals and Government Hospitals
come under the Medical Services Department, PHCs,
CHCs and Government dispensaries come under the Public
Health Department;
(ii) that in respect of medical services, doctors with MD/MS
or postgraduate degree/diploma are appointed to Class-I
specialist cadre;
(iii) that Homoeopathy doctors are appointed to Class-III posts;
(iv) that Ayurved doctors are appointed to Class-II posts; and
(v) that there are lot of differences between the duties and
responsibilities discharged by both these categories o f
doctors.
41. In paragraph 9 of the affidavit filed on 23.07.2013, on behalf
of the Government before the Division Bench of the High Cou rt, a
comparative chart was provided. It reads as follows:-
Sr. no. Allopathy Doctors Ayurved Doctors
1. MBBS/MD/P.G.Degree/P.G Diploma /
Specialization
BAMS/BHMS/MD
2. Required to perform emergency duties and
trauma cases, surgery cases and post
mortem cases.
No emergency duty, cannot
perform surgery and post
mortem.
3. Have to work in OPD and operation
theater.
No operation work
4. Give IV injections and ART injections
themselves.
Not applicable
5. Medicines given are allopathic. For eg:
pain killers
The medicine is based on
ayurved. For eg: Powder to be
taken with boiled water
6. Main duty is with respect to emergencies,
casualty and OPD patients.
Main duty is to advertise/make
people aware about ayurvedic
treatment and organizing camps
where different vanaspati are
displayed.
7. Nature of treatment thus different from
ayurved.
Nature of treatment is totally
different from allopathy.
8. Such doctors not easily available. Available in plenty.
9. Therefore bond system applicable for
getting service of atleast 5 years in village.
No such bond system.
10. Night Duty No Night Duty
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
42. Apart from the above comparative chart, the lea rned
Government Pleader also placed before the High Court , another
comparative chart showing the various characteristics of Ayurvedic
medicine and Allopathic medicine. The High Court extracted the said
comparative chart in paragraph 5 of the impugned or der. But
unfortunately, the said chart is of no assistance to find out whether both
these categories of doctors are performing the same or simi lar duties
and responsibilities, to be entitled to claim equal pay. The comparative
chart extracted in paragraph 5 of the impugned order merely sho ws
what these two categories of doctors “ can do ” and the different
approaches that the different systems of medicine have towards persons
suffering from various illnesses. But an appreciati on of these
characteristics will not empower the Court to direct the Government to
treat both categories of doctors on par. Taking into considerat ion a
comparative chart relating to the characteristics of bot h these types of
medicine and not taking into consideration the comparative chart which
we have extracted in paragraph 41 above, was the fir st mistake
committed by the High Court in the impugned order.
43. As seen from paragraph 41 above, Allopathy doctors are
required to perform emergency duties and to provide trauma care. By
the very nature of the science that they practice and with the advancement
of science and modern medical technology, the emergency duty that
Allopathy doctors are capable of performing and the trauma ca re that
they are capable of providing, cannot be performed by Ayurved doctors.
44. It is also not possible for Ayurved doctors to assist surgeons
performing complicated surgeries, while MBBS doctors can assist. We
shall not be understood to mean as though one system of medicine is
superior to the other. It is not our mandate nor within our competence to
assess the relative merits of these two systems of medical sciences. As
a matter of fact, we are conscious that the history of Ayurveda dates
back to several centuries. The Encyclopaedia Britannica states that the
golden age of Indian medicine from 800 B.C., till 1000 A.D., was marked
by the production of two medical treatises known as “caraka-samhita”
and “susruta-samhita”. The Britannica records in page 776 of Volume-
23 (15th Edition) as follows:-
“In surgery, ancient Hindu medicine reached its zenith. Operations
performed by Hindu surgeons included excision of tumours, incision
and draining of abscesses, punctures to release flui d in the
317
abdomen, extraction of foreign bodies, repair of anal fistulas,
splinting of fractures, amputations, cesarean sections, and stitching
of wounds.
A broad array of surgical instruments were used. According t o
Susruta the surgeon should be equipped with 20 sharp and 101
blunt instruments of various descriptions. The instruments were
largely of steel. Alcohol seems to have been used as a nar cotic
during operations, and bleeding was stopped by hot oils and tar.
Hindu surgeons also operated on cataracts by couchi ng or
displacing the lens to improve vision.”
45. In a Book titled “ Man and Medicine - A History ” authored
by Farokh Erach Udwadia, an Emeritus Professor of M edicine
(Allopathy) and published by Oxford University Press (2001 Edition), an
interesting event is reported at page No.43. It is about the documented
performance of Rhinoplasty (for which Susruta was famous) witnessed
and recorded in 1793 in Pune. A Parsee gentleman by the name of
Cowasjee, who was serving the English Army at the time of the Mysore
War in 1792, was captured by the soldiers of Tipu Sultan. His nose and
one hand was cut off. He and three of his friends, who had met with the
same fate, consulted a person who was only a bricklayer by profession.
The bricklayer performed a surgery, which was witnessed by Thomas
Cruso and James Findlay, Senior British Surgeons in Bombay Presidency.
They described and drew the skin graft procedure and the s ame was
published in the Madras Gazette. It was later reproduced in the October
1794 issue of the Gentleman’ s Magazine of London. The surgery was
described in the following words:-
“A thin plate of wax is fitted to the stump of the nose so a s to
make a nose of a good appearance, it is then flattened and laid on
the forehead. A line is drawn around the wax which is then of no
further use and the surgeon then dissects off as much skin as it
had covered, leaving undivided a small slip between the eyes.
This slip preserves the circulation till a union has taken p lace
between the new and old parts.
The cicatrix of the stumps of the nose is next paired off a nd
immediately behind the new part an incision is made through the
skin which passes around both alae, and goes along the upper lip.
The skin now brought down from the forehead and being twisted
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
half around, is inserted into this incision, so that a nose is formed
with a double hold above and with its alae and septum below
fixed in the incision.
A little Terra Japanica (pale catechu) is softened with water and
being spread on slips of cloth, five or six of these are placed over
each other to secure the joining. No other dressing but this cement
is used for four days. It is then removed and clothes dipped in
ghee (clarified butter) are applied. The connecting slip of skin is
divided about the twentieth day, when a little more dissection is
necessary to improve the appearance of the new nose. Four, five
or six days after the operation, the patient is made to lie on his
back and on the tenth day bits of soft cloth are put into the nostrils
to keep them sufficiently open.”
46. The learned author of the Book Mr. Udwadia, goes on to say
that the above occurrence caught the attention of J.C. Carpue, a 30
year old Surgeon in London. He successfully used the same skin graft
procedure for nose repair on a patient in 1814. According to the learned
author, J.C. Carpue reported his successful results in 1816,
introducing the “Hindu Surgical Technique” and with it, “The Indian
Nose” to the West.
47. After pointing out that Susruta recommended the use of a
facial skin flap for repair of a cleft lip, the author of the Book states that
Carl Ferdinand Von Graefe (1747-1840) popularised the Indian Surgical
Technique of plastic reconstruction of the nose in Germany and Europe.
48. It is common knowledge that smallpox vaccine was invented
by Dr. Edward Jenner, an English Physician in 1798. But on the occasion
of the opening ceremony of the King’s Institute of Preventive Medicine
in February 1905 at Madras, the then Governor of Madras, Lord Ampthill,
said the following:-
“It is also very probable, so Colonel King assures me, tha t the
ancient Hindus used animal vaccination secured by transmission
of the smallpox virus through the cow, and he bases this interesting
theory on a quotation from a writing by Dhanwantari, the greatest
of the ancient Hindu physicians, which is so striking an d so
appropriate to the present occasion that I must take the liberty of
reading it to you. It is as follows:
319
“Take the fluid of the pock on the udder of the cow or on
the arm between the shoulder and elbow of a human subject
on the point of a lancet, and lance with it, the arm betw een
the shoulders and elbows until the blood appears : t hen
mixing the fluid with the blood the fever of the small pox
will be produced. This is vaccination pure and simpl e. It
would seem from it that Jenner’s great invention wa s
actually forestalled by the ancient Hindus.”
49. Therefore, we have no doubt that every alternative system of
medicine may have its pride of place in history. But today, the practitioners
of indigenous systems of medicine do not perform complicated surgical
operations. A study of Ayurved does not authorise them to perform these
surgeries.
50. Similarly, a post-mortem or autopsy is not carried out by/in the
presence of Ayurved doctors. Section 174 of the Code of Crim inal
Procedure, 19738deals with the procedure for the police to inquire and
report on suicide, etc. Sub-section (3) of Section 174 mandates that the
police officer shall, subject to such rules as the State Government may
pres cribe, forwa rd the dea d body, with a vie w to its be ing examine d, to
the nearest Civil Surgeon, or other qualified medical man appointed
in this behalf by the State Government, in certain types of cases such as,
(i) suicide by a woman within seven years of marriage; (ii) death of a
woman within seven years of marriage in certain circumstances ; and
(iii) cases where there are any doubts regarding the cause of death.
51. Section 176 of Cr.P.C deals with inquiry by Magistrates into
cause of death. Sub-section (5) of Section 176 uses similar words namely
“Civil Surgeon or other qualified medical man ”. We do not think that
the AYUSH doctors are normally notified as competent to perform post-
mortem.
52. It is common knowledge that during out-patient days (OPD)
in general hospitals in cities/towns, MBBS doctors are made to attend to
hundreds of patients, which is not the case with Ayurved doctors.
53. In the comparative chart extracted in paragraph 41 above, the
State of Gujarat have claimed that IV injections and ART injections
cannot be administered by Ayurved doctors.
8 For short “ Cr.P .C“
STATE OF GUJARAT & ORS. ETC. v. DR. P. A. BHATT & ORS.
ETC. [V. RAMASUBRAMANIAN, J.]
54. Therefore, even while recognizing the importance of Ayurved
doctors and the need to promote alternative/indigenous s ystems of
medicine, we cannot be oblivious of the fact that both categ ories of
doctors are certainly not performing equal work to be entitled to equal
pay. Hence, Issue No.2 has to be answered in favour of the ap pellant-
State and against the respondents.
Conclusion
55. In view of our answer to both the issues, the Civil Appeals are
liable to be allowed and the impugned order of the High Court is liable to
be set aside. As a sequitur, the benefits derived by the respondents by
virtue of the interim order passed by this Court on 08.09.2014, are liable
to be recovered from the respondents. In the normal course, we would
not have desired to allow the State to effect recovery b ut for the fact
that a few doctors have received and a few have not. Among the Ayurved
doctors, we cannot make a classification between those who have already
received some benefits by virtue of the interim order of this Court dated
08.09.2014 and those who have not received such benefits. Moreover,
we cannot overlook the fundamental principle that a benefit derived by
an individual by virtue of an interim order passed by a Court cannot be
allowed to be retained, if the ultimate outcome of the case went against
such a person.
56. Therefore, all the appeals are allowed, the impugned order of
the High Court is set aside and the writ petitions filed by the respondents
are dismissed. The contempt petitions are also dismissed along with all
interlocutory applications including the impleadment application(s). No
costs.
Nidhi Jain Appeals allowed.
(Assisted by : Mayank Batra, LCRA)