Devi Prasad Singh, J. - (1.) IN these bunch of writ petitions, common questions of fact and law are involved, hence with the consent of the parties, writ petitions are decided by the present common judgment. FACTS
(2.) PETITIONERS possess BAMS, BHMS and BUMS degrees and the degree with regard to pharmacist from recognized colleges and entitled to practice and discharge their obligations in accordance to statutory provisions. They were appointed under the scheme framed by the Government of India implemented by State of U.P, namely National Rural Health Mission (2005-2012) (in short NRHM) by the State authorities. The scheme commenced in the year 2005 and sheduled to continue upto 2012. The NRHM scheme is wholly financed by Government of India as additional grant to improve health and hygienic condition of the State of U.P. The Government of India is continuing with the original scheme and provided sufficient fund but the State authorities took a decision to discontinue the service of Male Ayush doctors and pharmacists. Being aggrieved with the decision of the Government, the petitioners have preferred the present bunch of writ petitions. The undisputed facts on record are that the NRHM Programme has been conceived by the Government of India and is being implemented and executed by the State Government through Special Purpose Vehicles created at the State level and also at the District level in the form of State Health Society and District Health Societies registered under the Societies Registration Act. These societies have been entrusted with the work relating to the NRHM under the Project Implementation Plan (in short, PIP). The PIP is approved by the Government of India. The society at State level and District level are executing the work of NRHM as additional support to the mainstream Health Care System of the State Government to run Medical, Health and Family Welfare Department by introducing NRHM. The Government of India had tried to improve deficient health system of the State of U.P. by providing necessary funds, medicines with liberty to engage the doctors having degree of Unani, Homeopath and Ayurved medicines. The PIP is prepared by the State authorities with the active participation of Mission Director, State Project Management Unit (in short, S.P.M.U.), State Health Society of the NRHM U.P. It is not disputed that right from 2005 i.e. from beginning of NRHM scheme the Male, Famale qualified Ayush doctors and pharmacists were appointed on contract basis and their tenure of service have been renewed after the grant provided by the Government of India subject to satisfactory work. It has further been admitted by the opposite parties that a memorandum of understanding has been entered into between the Central Government and the State Government, inter alia, provides that the Ministry of Health and Family Welfare, Government of India shall provide resources to support implementation of an agreed State NRHM Sector Programme Implementation Plan. According to memorandum of understanding, Project Implementation Programme is prepared at State level to implement NRHM Programme with due approval of Central Government. With regard to years 2011- 2012, plan has been sent to Government of India and the approval is awaited according to Para 8 of the counter-affidavit filed by Mohd. Mustafa, the Mission Director of S.P.M.U.
(3.) WHILE filing affidavit, it has been specifically pleaded that in the PIP for 2011-2012, provision for MaleAyush doctors and pharmacists has not been made. For convenience, Para 8 of the Counter-affidavit filed by Shri Mohd. Mustafa, Mission Director of S.P.M.U is reproduced as under: "Para 8: That it is in this background that a Memorandum of Understanding has been entered into between the Central Government and State Government which inter alia provides that the Ministry of Health and Family Welfare, government of India will provide resources to support implementation of an agree State NRHM Sector Programme Implementation Plan (PIP). According to said Memorandum of Understanding, the State Programme Implementation Plan is prepared at the State Level and the NRHM Programme is thus implemented and executed only after its approval by the Central Government. It is relevant to point out at this juncture that the Project Implementation Programme for the financial year 2011-2012 has been prepared by the State Programme Management Unit and has been sent to Government of India for its approval. In the said PIP, for valid reasons to be stated hereinafter, provision for having male Ayush Doctors and Pharmacists has not been made. However, the decision regarding approval of PIP submitted to the Central Government is pending before the Government of India and as such any intervention/ interference by this Hon'ble Court in the present writ petition at this juncture, that is to say, before any decision on approval of the PIP by the Government of India would be premature and hence the same is not called for. Thus, the writ petition is not maintainable because this reason also and the petitions are liable to be dismissed as premature." The reason for justification in not appointing Male Ayush doctors and Pharmacists has been enumerated in Para 11 of the Counter-affidavit filed by Mission Director. It has been stated that the Ayush doctors, who possess degree of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy systems of medicine are not entitled to profess allopathic medicine practice. Ayush Health Care Facility has been provided in Primary Health Care Centre, Community Health Care Centers and District Hospitals. The employment of Ayush Doctors is the responsibility of the Department of Medical Education and to supervise the programme for the purpose of separate cadre of Ayush doctors has been prepared under the scheme. The Ayush doctors from Ayurvedic and Unani stream are posted at PHCs called MOCH (Medical Officer, Community Health) with separate cadre. The function of the NRHM is to mainstream these Ayush doctors and not to employ them. It is further stated that in the year 2009-10, 147 male Ayush Doctors and 500 Pharmacists were engaged for the first time in NRHM. In the year 2010-2011,1140 male Ayush doctors and 759 Pharmacists were engaged, but on account of non availability of Ayush medicines during 2009-2010 and 2010- 2011, their services could not be utilized and the salary paid to these doctors has become waste. It is further stated that the Government of India has not provided essential drugs and medicines to Ayush Hospitals and Dispensaries established under the scheme in terms of Operational guidelines dated 3.9.2009 as amended upto date. It is further stated that a request of State Government has not been considered by the Government of India to provide medicines and drugs for Ayuush doctors, hence while preparing the revised PIP the State Government took a decision not to appoint Male Ayush Doctors and Pharmacists. Decision to appoint female Ayush doctors has been taken to utilize their services in the Anti Natal and Post Natal care service.;