S. Saghir Ahmed, J. - (1.) THE petitioner, who is a Physio-THErapist in the District Hospital, Faizabad, is claiming through this petition filed under Article 226 of the Constitution of India, parity in the scale of pay with the Physio- THErapists posted in the State Medical Colleges.
(2.) INITIALLY the scale of pay of the Physio Therapists/Occupational Therapists was Rs.350-700. In November 1980, the Second Pay Commission submitted its report to the State Government recommending that the scale of pay applicable to Physio Therapists/Occupational Therapists be revised to Rs. 625-1170. But the Government by G. O. dated 13-9-1982, of which a copy has been filed as Annexure 3 to the writ petition, fixed the pay scale of Physio Therapists/Occupational Therapists working in the District Hospitals at Rs.570-25-770-EB-30-980- EB-30-1100 while by another G.O. dated 12-10-1982 it fixed the pay scale of Physio Therapists/Occupational Therapists working in the State Medical Collges at Rs.625-30-835-EB-30-925-35-1065-EB-35-1240. It is the G.O. dated 13-9-1982 which has been challenged in this petition on the ground, inter alia, that the Physio Therapists/Occupational Therapists belong to one cadre and their nature of duties being similar, they are entitled to be paid their salary in the pay scale fixed for Physio Therapists/Occupational Therapists working in the State Medical Colleges. Opposite-parties have filed a counter-affidavit in which, inter alia, they have stated as under :- "3. That the contents of paragraph 1 of the writ petition are not admitted as stated. It is stated that Physio Therapists and Occupational Therapists constitute separate cadres. It is further stated that some posts of Physio Therapists and Occupational Therapists are also sanctioned for Associated Hospitals of State Medical Colleges in U. P. other than those sanctioned for District Hospitals in different pay scales viz. 625-1240 and Rs.570-1100 respectively. Thus, the posts are also not inter-transferable. 5. That with regard to the contents of paragraphs 3 and 4 of the writ petition it is stated that the State government after due consideration of the recommendations made by the Pay Commission issued orders for revision of the Pay Scales of the Physio Therapists/Occupational Therapists from Rs.350-700 to Rs.625-1240 for those who are posted at State Medical Colleges and their associated Hospitals as would be evident from the perusal of Annexure No. IV to the writ petition, the reason being that the Associated Hospitals of the Medical Colleges are the referral hospitals who have to deal with the complicated/acute cases referred to them by the District Hospitals. 6. That with regard to the contents of paragraph 5 of the writ petition it is submitted that the State Government has rightly revised the pay scale of Physio Therapists/Occupational Therapists posted at District Hospitals from Rs.350-700 to Rs.570-1100 after due consideration of the recommendations of the Pay Commission. 7. That with regard to the contents of paragraph 6 of the writ petition it is submitted that the Pay Scale of Rs. 625-1240 are for the posts of Physio Therapists/Occupational Therapists posted at Medical Colleges and their Associated Hospitals for the reasons stated in reply to paragraphs 3 and 4 of the writ petition. 8. That the contents of paragraph 7 of the writ petition are denied. The State Government has the right to accept or to reject the recommendations of the Pay Commission. As such no wrong has been done by the Government in allowing the pay scale of Rs.625-1240 to the Physio Therapists/Occupational Therapists of Medical Colleges. 9. That the contents of paragraph 8 of the writ petition are denied being vague and misleading. As already stated above in reply to paragraphs 3 and 4 of the writ petition the Physio Therapists/Occupational Therapists of the Medical Colleges have to deal with the patients referred to them by the District Hospitals. As such the Therapists of the District Hospitals cannot claim to be placed on the same footing as that of the Medical Colleges. Needless to say that the Physio Therapists/Occupational Therapists of the Medical Colleges are found to be more dexterous and able in their profession than those posted at District Hospitals. 12. That with regard to the contents of paragraph 11 of the writ petition it is stated that the services of Physio Therapists/Occupational Therapists posted as the District Hospitals may be transferred to Medical Colleges if found suitable for that post and nothing wrong has been done if Sri Ravish Kumar Srivastava, Physio Therapist has been posted in Medical Collge. The petitioner will be dealt according to the Rules applicable to him and he will not be put to financial loss in any way. As such the averments made to the contrary in the paragraph under reply are denied. 13. That the contents of paragraph 12 of the writ petition are denied. No representation of the petitioner or other Therapists is available in the records of the Medical Directorate. The Therapists of the District Hospitals are not entitled to the pay scale of Rs.625-1240 which is allowed to the Therapists of the Medical Colleges for the reasons mentioned above in reply to paragraphs 3 and 4 of the writ petition. " On the basis of the averments contained in the paragraphs of the counter-affidavit extracted above, it is contended by the learned Standing Counsel that the petitioner is not entitled to be paid his salary in the scale of payment for Physio Therapists/Occupational Therapists in the State Medical Colleges as the cadre is different and the incumbents working in the District Hospitals cannot be transferred to the State Medical Colleges. Moreover, it is further contended that the nature of duties performed by the Physio Therapists/Occupational Therapists in the State Medical Colleges require greater expertise and are more dexterous and able in their profession than those posted in the District Hospitals.
(3.) THE petitioner has filed a rejoinder-affidavit in which he has controverted the allegations set out in the counter-affidavit. He has filed a copy of the G.O. dated 10-6-1985 as Annexure 5 to the rejoinder-affidavit which indicates that in the Employees State Insurance Dispensaries also Government has fixed the pay scale for the posts of Physio THErapists/Occupational THErapists at Rs.625-1170. He has also filed copies of letters of the Director, Health and Family Planning, U. P., Lucknow in which also it is mentioned that the cadre of Physio THErapists working in the State Medical Colleges and the District Hospitals is one and their duties are also similar. THEse letters are Letter No. 4/D/2/1847 dated 8-2-83 and Letter No. 4D/2/Writ/374/83/10671 dated 30-6-83. The petitioner has also filed a supplementary-affidavit dated 10-3-1987 in which he has, inter alia, stated as under :- "4. That the State Government, while implementing the recommendations of the 2nd Pay Commission, for the reasons best known to them, without any notification for creation of separate cadres for the purposes of District Hospitals, E.S.I Dispensaries and State Medical Colleges, created different pay scales, creating discrimination in the post of Physio Therapist and Occupational Therapist, posted at District Hospitals, or E.S.I. Dispensaries vide their G.O. dated 13-9-1982 placing them in the pay scale of Rs.570-1100 ; while vide another G.O. dated 12-10-1982 for Physio Therapists and Occupational Therapists serving and posted at State Medical Colleges Rs.625-1240 though the work and duties and functions and responsibilities assigned and discharged by Physio Therapists serving at District Hospitals or E S.I. Dispensaries and those at Medical Colleges being one and the same, irrespective of the fact that the posts are inter-se transferable. 5. That though the Physio Therapists and Occupational Therapists posted at State Medical Colleges are attached and posted in various departments such as Orthopaedic, Neurology, Psyciatry, Plastic Surgery, Physical Medicine Departments while the Physio Therapists and Occupational Therapists discharge more onerous duties at the District Hospitals and render service to the ailing masses referred by the various sections/departments of the District Hospitals as an independent section/ department. The therapy accorded by them includes the diagnosis as well as the treatment to the patients. The G.O. dated 18-10-1984 recognising the services of the Physio/Occupational Therapists as independent service of his section/department under the control of the Superintendent is being annexed herewith as Annexure 8 to this affidavit (Annexure-1 to 4 being appended to the writ petition and Annexures 5 to 7 to the Rejoinder Affidavit). 6. That from the Annexure-8 the G.O. dated 18-10-1984 the independent services rendered by the Physio/Occupational Therapists at the District Hospitals makes it abundantly clear that they discharge more onerous duties than that what are discharged by the Physio Therapists and Occupational Therapists attached to the various departments in the State Medical Coliges though the nature of work, duties and responsibilities perform by them is the one and the same. 7. That under G. O. dated 10-6-1985 (Annexure-5 to the writ petition) separate cadre of medical services has been created for the ESI Dispensaries under the direct control of the Secretary to Government, U. P., Labour Department and under that G. O. also the pay scale for the Physio Therapists/Occupational Therapists opting to join the services also the pay scale accorded is Rs.625-1170 though the nature of work, job and responsibilities performed by them remains the same as performed by the Physio Therapists and Occupational Therapists posted or working at district hospitals and ESI dispensaries or the State Medical Colleges." ;