1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8553-8557 OF 2014

STATE OF GUJARAT & ORS. ETC. …APPELLANT (S)

VERSUS

DR. P. A. BHATT & ORS. ETC. …RESPONDENT (S)

WITH

CONTEMPT PETITION (C) NO.701 OF 2017

IN

C.A. NO.8556 OF 2014 @ C.A. NOS .8553-8557 OF 2014

CONTEMPT PETITION (C) NO.674 OF 2017

IN

C.A. NO.8555 OF 2014 @ CA NOS. 8553-8557 OF 2014

CONTEMPT PETITION (C) NO.916 OF 2017

IN

C.A. NO.8557 OF 2014 @ CA NOS.8553-8557 OF 2014

J U D G M E N T

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

Digitally signed by

POOJA SHARMA

Date: 2023.04.26

16:17:16 IST

Reason:

Signature Not Verified 2023 INSC 434

2

respondents possessing a degree of BAMS (Bachelor of Ayurved

in Medicine 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 entered into by the Ministry of Health and Family

Welfare with the Joint Action Council of Service Doctors

Organisation, a High-Power Committee was constituted on

03.05.1990 with Shri R.K. Tikku as its Chairman, for the

purpose of improving the service conditions 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.

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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 and cadre restructuring of the practitioners

of Indian Systems of Medicine 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 allopathic 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

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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 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 Officers (Ayurved) Association,

comprising of persons initially appointed as Medical Officers

5

Class-III. The relief sought by this Association was similar 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 learned 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 the

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

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independently and that therefore they were entitled 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

and passed an interim order to the following effect.

“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

filed in the year 2016. Those contempt petitions were disposed of

on the basis of 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 order

dated 08.09.2014. These contempt petitions were directed to be

listed alongwith the main appeals and this is why we have five

civil appeals and three contempt petitions on hand.

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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

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and that therefore the impugned order of the High Court does not

need a deeper scrutiny. Therefore, 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 law. This however

does not appeal to us and we are inclined to agree

with 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 under the prevalent scheme of

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2021 (9) SCALE 47

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things, does not qualify as an intelligible differentia.

Therefore, such unreasonable classification and

discrimination based on it would surely be

inconsistent with Article 14 of the Constitution.

The order of AYUSH Ministry dated 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

9

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

doctors filed applications before the Administrative Tribunal. The

Administrative Tribunal allowed the applications by an order

dated 24.08.2017. The North Delhi Municipal Corporation

(employer) filed writ petitions before 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 AYUSH 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 and 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

performing 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

10

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 relating 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;

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that there is no impediment in law for providing different scales of

pay to persons employed in the same cadre, based upon the

qualifications; and that the High Court miserably failed to

appreciate the completely different nature 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.

22. In response, it is contended by the learned counsel for the

respondents that both Allopathy doctors and AYUSH doctors 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 responsibilities; that by the Government

Resolution dated 01.01.1999, the recommendations of the Tikku

Pay Commission were made applicable to non-MBBS degree

holders working in the ESI Scheme; that it was only after the

learned Single Judge allowed the writ petitions, that the State

issued another Resolution dated 31.07.2013 withdrawing the

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Resolution 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 interference 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 basis 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

different scales of pay on the basis of educational qualifications?

13

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.

27. In The State of Mysore vs. P. Narasinga Rao

2, which is

one of the earliest cases to be considered by a Constitution Bench

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 matriculates as well as non-matriculates

were drawing the same scale of pay in the erstwhile State of

Hyderabad, but after the reorganization 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 than the scale of pay given for the holders of Graduate of

the College of Integrated Medicine (GCIM) and Licentiate in

Indigenous Medicine (LIM). When questioned, the Authorities

2

AIR 1968 SC 349

3

(1981) 2 SCC 155

14

pointed out that a higher scale of pay 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 effect. 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 to 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 in 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 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

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in the field of rendering professional services 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 the qualification of D.A.M.,

though in charge of dispensaries run by Zilla

Parishads, cannot, therefore, be created on par with

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 right 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

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petitioner in Dr. C. Girijambal reached the same pedestal as

that of others through a court order and 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 the decision in Dr. C. Girijambal is not well founded.

31. In Mewa Ram Kanojia vs. All India Institute of Medical

Sciences

4, 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 implementing the recommendations of the Third Pay

Commission, he sought parity with 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

responsibilities of the posts concerned. …”.

4

(1989) 2 SCC 235

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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 performing 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

qualifications 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 secondary 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 teachers in Vocational Education Institutes

5

(1994) 2 SCC 521

6

(1997) 5 SCC 253

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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 by 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 ignored the 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

thought 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. ….”

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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

scale, is a valid classification. This Court relied upon the decision

in Shyam Babu Verma (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 the 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 po st-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 claimed by the

respondents herein that they were doing the same work as was

done by other medical officers holding MBBS degrees and that

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(2019) 10 SCC 674

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they were also serving in various Primary Health Centres/

Community Health Centres. They also claimed that even as per

the job-chart of the General Duty Medical Officers, the duties

performed by both categories of doctors 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 Cla ss-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 of

doctors.

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41. In paragraph 9 of the affidavit filed on 23.07.2013, on behalf

of the Government before the Division Bench of the High Court, 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

42. Apart from the above comparative chart, the learned

Government Pleader also placed before the High Court, another

comparative chart showing the various characteristics of

22

Ayurvedic medicine and Allopathic medicine. The High Court

extracted the said comparative chart in paragraph 5 of the

impugned order. But unfortunately, the said chart is of no

assistance to find out whether both these categories of doctors

are performing the same or similar duties and responsibilities, to

be entitled to claim equal pay. The comparative chart extracted in

paragraph 5 of the impugned order merely shows 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 appreciation of these

characteristics will not empower the Court to direct the

Government to treat both categories of doctors on par. Taking

into consideration a comparative chart relating to the

characteristics of both these types of medicine and not taking

into consideration the comparative chart which we have extracted

in paragraph 41 above, was the first 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,

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the emergency duty that Allopathy doctors are capable of

performing and the trauma care 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 fluid in the 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 to 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 narcotic during

24

operations, and bleeding was stopped by hot oils and

tar.

Hindu surgeons also operated on cataracts by

couching 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 Medicine

(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 same 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 as to make a nose of a good appearance, it is then

25

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 place between the new and old parts.

The cicatrix of the stumps of the nose is next paired off

and 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 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

26

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, that

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 and so appropriate to the

present occasion that I must take the liberty of reading it

to you. It is as follows:

"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 between the shoulders and elbows

until the blood appears : then mixing the fluid with

the blood the fever of the smallpox will be produced.

This is vaccination pure and simple. It would seem

from it that Jenner's great invention was 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.

27

50. Similarly, a post-mortem or autopsy is not carried out by/in

the presence of Ayurved doctors. Section 174 of the Code of

Criminal Procedure, 1973

8

deals 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 prescribe, forward the dead body,

with a view to its being examined, 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

8

For short “Cr.P.C”

28

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.

54. 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. Hence, Issue No.2 has to be answered in

favour of the appellant-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 but for the fact that a few doctors have

received and a few have not. Among the Ayurved doctors, w e

cannot make a classification between those who have already

29

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.

……………………………….. J.

(V. RAMASUBRAMANIAN)

……………………………….. J.

(PANKAJ MITHAL)

New Delhi;

April 26, 2023