M.P. Thakkar, J.
1. Can officers belonging to the same cadre, Insurance Medical Officers, be treated differently in the matter of paying them non-practising allowance on the ground that some of them administer the allopathic system and the others administer the ayurvedic system? That is the question brought in the centre of the stage by two Insurance Medical Officers employed by the state to administer the ayurvedic system of medicine. They complain that non-practising allowance is paid to those administering the allopathic system whilst it is denied to those who administer the ayurvedic system on the ground that the two systems are different notwithstanding the fact that officers of both categories are equally debarred from engaging in private practice during the tenure of their service. The facts are not in dispute. The first petitioner, N.P. Trivedi was appointed as class iii Insurance Medical Officer, E.S.I.S. as per letter of appointment, Annexure a, dated September 21, 1964. He was confirmed in his office by order, Annexure b dated December 6, 1973. The second petitioner, A.H. Shukla was appointed as class III Insurance Medical Officer, E.S.I.S. As per an appointment order, Annexure C, dated August 7, 1964. He was also confirmed by an order, Annexure b, dated December 6, 1973. It is not in dispute that as Insurance Medical Officers of class iii, they are entitled to the same pay and other allowances as the other Insurance Medical Officer: of class iii regardless of the fact that the petitioners have been engaged to administer treatment as per the ayurvedic system whereas the others have been engaged to administer treatment as per the allopathic system. On February 10, 1971 the Government of Gujarat, panchayats and health department passed a resolution, Annexure F, directing that Insurance Medical Officers class ii and class III (allopathic) working under the E.S.I scheme should be granted compensatory allowance for loss of private practice at the specified rates with effect from June 1, 1967. It was further directed that those incumbents of office who had entered service prior to June 1, 1967 would be entitled to such allowance with effect from June 1, 1967 whereas those who entered the service after June 1, 1967 would be entitled to payment of such allowance from the date of their entry in the service. It was also provided in paragraph 3 of the resolution that payment of arrears should be regulated in the mariner specified therein, namely; (1) no arrears shall be paid for the period from June 1, 1967 to December 12, 1967; (2) arrears for the period from January 1, 1968 to December 31, 1968 shall be credited to G.P.F. amount of the employee concerned; and (3) that payment of arrears for the period from January 1, 1969 onwards shall be paid in cash. Upon this resolution being passed, the petitioners made a representation dated May 26, 1973, Annexure (j) to the minister for education. They made a request to treat them on par with their counterparts in the same cadre who were practising the allopathic system in the matter of payment of non-practising allowance. Thereafter a letter dated June 25, 1972, Annexure k, was addressed to the Samjalak E.S.I, scheme making a request for payment of non-practising allowance on the same lines as the payment to the officers administering the allopathic system. It was also stated therein that in the alternative it should be clarified that there would be no objection to their indulging in private practice. Requests made by some of the Insurance Medical Officers in similar terms were turned down as is shown by Annexures K-2 and by Annexure K-2 the concerned officer was informed that it would not be open to him to indulge in private practice and if he did so, he would be liable to be punished in accordance with the prevailing rules. By Annexure 'C' an officer who is a member of the gujarat state Insurance Medical Officers association was informed that the matter had been placed before the pay commission. Thereupon the petitioners instituted the present petition in order to seek appropriate reliefs on the ground that hostile discrimination was practised against them and that they were entitled to equal treatment in the matter of service conditions as others in the same cadre regardless of the fact that they were engaged in administering ayurvedic system and not the allopathic system.
2. Resolution, Annexure 'D' dated July 27, 1964 shows that a number of posts of Medical Officers in class ii and class iii were sanctioned in order to fill the posts of Medical Officers at the employees state insurance dispensaries. The resolution further shows that it was decided to increase the number of posts to provide for both allopathic and ayurvedic treatment to the insured workers and their families. The resolution proceeded to provide as under-
Government has since decided to increase the number of medical officers at the employees state insurance dispensaries to provide both allopathic and ayurvedic treatment to the insured workers and their families on adequate scale and is pleased to sanction upto 28th February 1965 in the first instance in modification of the orders quoted above, a total number of 174 posts of medical officers in class ii for all the employees state insurance dispensaries. Government is further pleased to authorise the director of health and medical services to appoint allopathic and ayurvedic medical officers against these posts according to the requirements and demands at the different dispensaries. In case it is not possible to fill all the posts by suitably qualified persons, the director of health and medical services should down-grade the post of class iii in the scale of Rs. 230-8-310 EB-10-460. In such down graded posts, a person possessing the qualification of G.F.A.M., or B.A.M.S., may be given a higher start of Rs. 270/- p.m. in the sanctioned scale.
3. This resolution would go to show that medical officers proficient in allopathic and ayuredic systems were to be engaged to man the cadre of Insurance Medical Officers. Accompaniments to Annexure e a resolution passed by the Government on March 28, 1972, also show that the Medical Officers engaged to administer the ayurvedic as well as allopathic systems are treated as officers belonging to the same cadre. For instance the documents disclose that three posts were sanctioned to man the post of I.M.O. Clause II including ayurvedic and leave reserve and that the incumbent would be entitled to draw a salary of Rs. 425-850. It is also shown that one post was to be continued in I.M.O. Clause II including ayurvedic in the pay scale of Rs. 250-480. Similarly for ESIS at Jamnagar two posts in class ii and one post in class ii in the same pay scales were to be continued for the purpose of administering treatment including treatment under the ayurvedic system. But apart from this, in the affidavit-in-reply sworn by Dr. H.N. Patel, director of medical services, E.S.I, scheme on August 16, 1974 it is clearly admitted that the Medical Officers treating the patients in allopathic and ayurvedic systems are officers of the same cadre. It has been stated on oath inter alia in paragraph 4 as under in this connection:
I say that pay-scales are fixed according to the cadre of the posts and as the Insurance Medical Officers in allopathy and ayurvedic are of the same cadre i.e. Gujarat Medical Service class III their pay scales are obviously similar.
Reliance has been placed in this context on the two resolutions referred to a short while ago. In view of this categorical and unambiguous admission, it has not been disputed by the learned assistant Government pleader appearing for the state that the petitioners belonged to the cadre of Insurance Medical Officers, E.S.I. scheme just like the other officers administering treatment in allopathic system. In other words, the Insurance Medical Officers belong to the same cadre in class II or class III as the case may be and draw salary in the same pay scale and are entitled to the same allowances and no distinction is drawn between the Insurance Medical Officers who hold degrees in allopathic system on the one hand and those who hold degrees in ayurvedic system on the other regardless of whether they hold degrees of one system or another and regardless of whether they administer treatment to the patients as per allopathic or ayurvedic system, all the officers belong to the same cadre. The question then is whether it can be lawfully provided by the state Government without contravening Articles 14 and 16 of the constitution of India that some out of the same cadre who hold degrees in the allopathic system and who administer treatment by allopathic system should be paid non-practising allowance but not the others, namely, those who hold degrees in the ayurvedic system and administer treatment in accordance with that system. Now, non-practising allowance is paid to compensate the officers in connection with the prohibition imposed against indulging in private practice during the tenure of their office. It is an undisputed position that under the prevailing rules, medical officers holding the degrees in allopathic system as also medical officers holding the degrees in ayurvedic system are debarred from indulging in private practice during the tenure of their office as Insurance Medical Officers. A question, therefore, legitimately arises as to why compensation is given to medical officers holding the degrees in allopathy to compensate for being debarred from indulging in private practice when a similar compensation is denied to those holding ayurvedic degrees and administering the ayurvedic system. The resolution passed by the state Government on October 27, 1965, Annexure G shows that so far as the panchayat and health department is concerned, the decision to pay non-practising allowance was taken in order to attract qualified medical persons to Government service and with a view to stop such persons from indulging in private practice. The relevant portion May be quoted here:
With a view to attract adequately qualified medical persons to the Government service and with a view to stop private practice in respect of new entrants initially govt. Had decided (1) to upgrade certain posts (2) to give advance increments to new comers and (3) to give allowance for loss of private practice as per details given in the accompanying statement.
4. In the Annexed statement, a reference has been made to medical officers class II and class iii in public and health department irrespective of whether they hold degrees in allopathic or ayurvedic system. In fact column No. 4 shows that those holding the degrees in the ayurvedic system like G.F.A.M. And B.A.M.S. Are also entitled to draw the non-practising allowance. It, therefore, appears strange that a different criterion is applied so far as the E.S.I, scheme is concerned. The question is-if the incumbents of the office of Insurance Medical Officers are entitled to non-practising allowance to compensate them for being debarred from indulging in private practice and the prohibition applies equally to those practising the ayurvedic system as also those practising the allopathic system, whether those practising the ayurvedic system can be discriminated against in the matter of payment of non-practising allowance. A rational basis for classification will then have to be unearthed in order to justify the unequal treatment and in this connection affidavit-in-reply sworn by Dr. H.N. Patel, director of medical services, E.S.I. Scheme on August 16, 1974 makes interesting reading:
With reference to paragraph 9 of the petition, I deny that the impugned Action of the respondent is discriminatory or violative of Article 14 or 16 the Constitution as alleged or at all. Maintain that the allopathic and ayurvedic systems are different and distinct. I submit that just because the pay scales are similar they cannot form the basis of claiming a non-practising allowance. I deny that allopathic and ayurvedic sides form one class.
5. It is on the touch-stone of this explanation as the basis for the unequal treatment that the state Action will have to be examined with a view to ascertain whether Articles 14 and 16 of the constitution of India are violated. It is difficult to comprehend as to why the difference in the system of treatment should make any difference in regard to the question as to whether or not non-practising allowance should be paid. Medical officers holding the allopathic degrees as also those holding the ayurvedic degrees can indulge in private practice. It is not as if only those who hold the degrees in allopathy can indulge in private practice. And if compensation is paid to prevent the incumbents of the office from indulging in private practice during the tenure of their office what difference does it make if the incumbent holds the degree in one system and not the other? The basis for discrimination does not reveal any rational nexus with the object to be served. The object to be served appears to be that those who hold the office of Insurance Medical Officers should not during the tenure of their office indulge in private practice presumably on the ground that if they retain the right to indulge in private practice, they may not devote their time faithfully, loyally, sincerely and efficiently in the discharge of their duties, and presumably on the ground that there is a danger of its giving rise to some malpractices if the incumbents of the office are permitted to engage in private practice. For instance the patients may not get the same satisfactory service from the officer concerned when the patient visits him at the E.S.I. Dispensary as he would get when he visit the same doctor at his private dispensary. Having acquired the advantage of introduction to the patients and popularity and recognition by virtue of the office as Insurance Medical Officers, it stands to reason that such officers are not enabled to exploit the advantages to promote their private practice to the detriment of their social obligation. Admittedly the incumbents of the office irrespective of whether they hold the degree in one system or another and whether they administer treatment in one system or another are debarred from private practice. Obviously, it has been considered undesirable for the officers drawn from both the sources to be permitted to indulge in private practice during the tenure of their office. If that is so, why is it that those drawn from one system are considered eligible for compensation for the loss suffered by them and not the other? One holds the degree in allopathy and administers the treatment in allopathy whereas the other holds the degree in ayurved and administers the treatment in that system. The answer provides no rational explanation for treating the two differently. If the allowance is paid to compensate them for loss of their right to indulge in private practice, the officers drawn from both the sources are equally debarred from availing of their right to indulge in private practice. There is, therefore, no point of distinction. If compensation is paid to for close or guard against undesirable practices, the officers drawn from both the sources are equally exposed to that danger and the medical service requires to be rendered immune in that connection regardless of whether the Insurance Medical Officer, E.S.I, scheme administers the treatment in one system or another. It is not contended (can it ever be?) That those who are practising allopathy can have private practice but those who are practising ayurved cannot or do not have private practice. And if those who practice ayurved did not or cannot have private practice there is no point in preventing them from indulging in private practice. The only explanation offered for the differential treatment is that the allopathic and ayurvedic systems are different. No doubt they are different. But what is the sequitur? The payment of non-practising allowance has nothing to do with the system of treatment or nature of drugs administered to the patient. Payment of non-practising allowance has no conceivable nexus therewith. Nor the slightest relevance. It is, therefore, clear that there is no rational basis for granting non-practising allowance to those of the same cadre who administer one system of medicine and not the other. The Action of the state in discriminating between the two in this behalf is, therefore, clearly violative of Articles 14 and 16 of the constitution of India. Having reached this conclusion, the only question that remains is as regards the relief to be granted. Having regard to the circumstances of the case, the respondents must be and are hereby directed not to exclude the petitioners from the benefit of non-practising allowance as is extended in this behalf to Insurance Medical Officers holding the allopathic degree or administering the allopathic system in the discharge of their duties as incumbents of the office of Insurance Medical Officers, E.S.I, scheme. The petition succeeds. Rule is made absolute to the aforesaid extent with costs.