VINOD SAINI AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition has been filed by 93 writ petitioners questioning the constitutional validity of Notification dated 03.07.2014 (Annexure-7) whereby proviso existing below Rule 8 of the Rajasthan Service Rules, 1951 (for short 'the Rajasthan Service Rules') was substituted by another proviso to the effect that in cases of Medical Officer of the Rajasthan Medical and Health Service, Senior Demonstrator and Assistant Professor of the Rajasthan Medical Service (Collegiate Branch), who possess MBBS degree and have spent one year in internship, the period of Probation Training shall be one year instead of two years. Earlier proviso had used the word, "Medical Officer" whereas new proviso has qualified it by providing that "Medical Officer of the Rajasthan Medical and Health Service, Senior Demonstrator and Assistant Professor of the Rajasthan Medical Service (Collegiate Branch)". The petitioners, who have approached this Court, are working on the post of Ayurved Chikitsadhikari. However, their designation was earlier Ayurved Chikitsak, but vide amendment brought in the Rajasthan Ayurvedic, Unani, Homoeopathy and Naturopathy Service Rules, 1973 (for short 'the Rules of 1973') vide Notification dated 07.05.2010, the same was changed to Ayurved Chikitsadhikari. In the writ petition therefore the petitioners have called themselves as Ayurved Medical Officer instead of Ayurved Chikitsadhikari.

(2.) Mr. Ashwini Jaiman, learned counsel for the petitioners argued that the petitioners are possessing degree of Bachelor of Ayurvedic Medicine and Surgery (for short 'BAMS'), which has been awarded to them after successful completion of internship of one year. It is submitted that they were appointed on the aforesaid posts in pursuance of Advertisement dated 01.06.2013 vide three different orders dated 11.12015, 18.02016 and 29.03.2016 in the pay scale of Rs. 15600-39100 with grade pay of Rs. 5400/- on probation for a period of two years, during which period they were to receive fix salary of Rs. 22,180/-. It is submitted that the Finance Department while amending Rule 8 of the Rajasthan Service Rules added a proviso vide Notification dated 26.12011 to the effect that in case of Medical Officer, the period of probation training should be one year instead of two years as they spent one year in internship. This proviso would equally apply to the petitioners as they are also Medical Officers. Reliance is placed on the definition of "Medical Officer" given in Rule 4(3) of the Rajasthan Medical Officers and Nursing Staff Fees Rules, 2011 (for short 'the Fees Rules of 2011') promulgated vide Notification dated 30.05.2011. It is argued that the Fees Rules of 2011 would also be binding on the respondents as this set of rules has been promulgated under proviso to Article 309 of the Constitution of India. Reference is also made to order dated 24.12011 by which candidates were appointed on the post of Medical Officers pursuant to their selection by Rajasthan University of Health Sciences in the pay scale of Rs. 15600-39100 with fixed salary of Rs. 30,000/- on probation for a period of two years, which also included period of one year spent on internship. As such probation period was reduced to one year. It is argued that the petitioners, who possess degree of BAMS, having been appointed on the post of Ayurved Medical Officer, are identically situate with those Medical Officers, who possess degree of MBBS and fall in the same category. Therefore, the action of the respondents in treating them differently is wholly discriminatory and arbitrary.

(3.) Learned counsel for the petitioners has relied upon judgment dated 29.04.2009 passed by Single Bench of this Court in Dr. Vinod Saini & Others Vs. State of Rajasthan & Others (S. B. Civil Writ Petition No. 414/2009) directing payment of equivalent amount as stipend to the students of Indian System of Medicine (Ayurvedic) on the rates revised for the students of Modern System of Medicines (Allopathy) and action of the respondents to the contrary was held to be discriminatory. Learned counsel further argued that sole basis on which period of probation training has been reduced from two years to one year is the time spent by the Medical Officer in the internship. The students of BAMS during said course have to undergo internship of one year. The petitioners with their BAMS degree course have completed internship of one year. This being the only criteria for grant of benefit of reduction of one year from the period of two years of probation training, there is no reason for not extending similar treatment to the petitioners.