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PETITIONER: DR. MS. O.Z. HUSSAIN

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT15/11/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SAWANT, P.B. RAMASWAMY, K.

CITATION:  1990 AIR  311            1989 SCR  Supl. (2) 177  1990 SCC  Supl.  688     JT 1989 (4)   407  1989 SCALE  (2)1134

ACT:     Civil  Services:  Service  Law--Directorate  General  of Health       Service--Non-medical      Wing--’A’       Group scientists--Whether  entitled to same pay scales and  allow- ances as admissible to their counter-parts in Medical Wing.     Promotion--Whether  a  normal  incidence  of   service-- Necessity to provide promotional avenue--Pointed out.

HEADNOTE:     The  petitioner,  group ’A’ scientist belonging  to  the non-medical wing of the Directorate General of Health  Serv- ices,  filed a wit petition in this Court seeking parity  in pay  scales  and  allowances with his  counter-part  in  the medical wing. It was contended that group ’A’ scientists are treated  discriminately  vis-a-vis  their  counter-parts  in other  Ministries,  because  the former are  not  given  any promotional  benefits  while the latter  are  provided  with avenues for promotion. Allowing the writ petition, this Court,     HELD: 1. Provision for promotion increases efficiency of the  public service while stagnation reduces efficiency  and makes  the service ineffective. Promotion is thus  a  normal incidence  of service. There is no justification  why  while similarly placed officers in other Ministries would have the benefit  of promotion, the non-medical ’A’ group  scientists in the establishment of Directorate General of Health  Serv- ices would be deprived of such advantage. [181B]     2. In a welfare State, it is necessary that there should be  an  efficient public service and, therefore,  it  should have  been the obligation of the Ministry of Health to  pro- vide promotional avenue for this category of officers,  [181 C]     3.  On  the  model of rules framed by  the  Ministry  of Science  and Technology, appropriate rules should be  framed providing promotional avenue for the ’A’ category scientists in the non-medical wing of the Directorate. [181D] 178     4. ’A’ Group scientists shall be entitled to book allow- ance, higher degree allowance, risk allowance and conveyance allowance  at the same rate as is admissible to  doctors  in

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the Medical wing in the Directorate. [18IF]     5. Government shall examine the tenability of the  claim of  Group  ’A’ scientists for equal pay  scales  with  their counterparts in medical wing. [181G]

JUDGMENT:     CIVIL  ORIGINAL JURISDICTION: Writ Petition (Civil)  No. 10 18 of 1989. (Under Article 32 of the Constitution of India) Ranjit Kumar for the Petitioner.     A.D.  Singh,  (N.P.) R.B. Misra, and Ms.  A  Subhashini, (N.P.) for the Respondents. The Order of the Court was delivered by     MISRA, J. This is an application under Article 32 of the Constitution  and the President of the National  Council  of Bio-Medical Scientists is the petitioner. The reliefs  asked for  are on the allegation that the Group ’A’ scientists  of the  Ministry of Health and Family Welfare who are the  mem- bers  of  the Council, are being  discriminatingly  treated; they  have  not  been given any  promotional  benefits  and, therefore, there is a large-scale stagnation in the service. It  has been alleged that the Group ’A’ scientists  are  re- cruited  through the Union Public Service Commission.  These scientists  possess a Master Degree in the  relevant  disci- plines  and  3 years’ experience to entitle them to  be  re- cruited.  It has been indicated in a chart filed along  with the Writ Petition that the total posts in this category  are 243  including post of Drug Controller of India. The  promo- tional  posts available are filled up by direct  recruitment and  open  competition and there is no  promotional  channel provided.  Similar scientists in other Ministries,  such  as Ministry  of  Science and Technology, Ministry  of  Defence, Ministry  of  Environment and Ministry of  Oceanography  are recruited in terms of rules made under the proviso to  Arti- cle  309 of the Constitution and for their Group ’A’  scien- tific and technical officers, promotional avenues are avail- able. The petition further alleges that on their representa- tions from time to 179 time,  meetings have been held but decisions taken  in  such meetings  have not been given effect to and, therefore,  all the representations have gone unheeded. Particular reference has  been  made to the Minutes of a meeting  held  on  15.5. 1989, where Shri Basudeven, Joint Secretary in the  Ministry of Health and Family Welfare presided; several officers from different wings of the Ministry attended and representatives of  the petitioner’s Council participated. It has  been  al- leged that though several demands were pressed by the repre- sentatives  of the Council, only a few were  considered  and yet there was no follow-up action for their implementation.     Notice  was issued to the Union of India in  the  Minis- tries of Health, Human Resources, Science and Technology and Bio-Technology  and  the notice indicated  that  the  matter would  be taken up for final disposal. Though no return  has been  filed to the Rule Nisi, counsel appeared for  the  re- spondents and upon appropriate instructions, participated in the hearing of the matter.     Annexure  P-1  indicates  the  institutions  located  in different parts of the country where the posts of ’A’  Group scientists who are members of the Council work. Their  total number  is 243 and this is not disputed. The petitioner  has placed  on  record the rules framed in  exercise  of  powers under  proviso  to Article 309 of the  Constitution  in  the

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Ministry  of  Science  and Technology,  covering  Group  ’A’ scientists. Rule 13 thereof provides avenues for  promotion. This also is not disputed. Annexure P-3 is a tabuler  state- ment prepared by the petitioner, showing the disparities  in the service conditions between the BioMedical scientists and other  similar scientists and the discrimination that  Group ’A’ specialists/scientists under the establishment of Direc- tor  General  of Health Services suffer. The  pay-scale  for different  categories  of Group ’A’ scientists in  the  non- medical posts and of doctors in the medical posts have  been separately shown. It has been pointed out therein that while there is a difference in the pay-scale in the  establishment of Director General of Health Services, there is no dispari- ty  in  respect of similar posts in the  Indian  Council  of Medical  Research  (ICMR) or in the All-India  Institute  of Medical  Sciences, Delhi or the Post--Graduate Institute  at Chandigarh.  It  has been further pointed out  in  the  said chart that various kinds of allowances are admissible to the doctors in the medical wing, such as book allowance,  higher degree allowance, risk allowance and conveyance allowance in the  establishment  of Director General of  Health  Services while  the  non-medical  category manned by  the  ’A’  Group scientists is denied all these allowances. It has also  been alleged  that  while the medical category doctors  get  non- practising allowance the benefit of 180 such allowance is not extended to the non-medical  category. Such  discrimination,  according to the petitioner,  is  not noticed in the I.C.M.R. or in the two Institute at Delhi and Chandigarh respectively.     The  4th  Pay Commission in Chapter 29,  paragraph  29.8 recommended:               "The  question of granting incentive to  offi-               cers  and staff who acquire higher  qualifica-               tion has also engaged our attention.  Railways               have suggested a scheme for giving such incen-               tives in the context of the need for  updating               the  skills  of  the employees  for  the  more               efficient  discharge of their duties in  these               days  when modernisation and adoption  of  ad-               vanced  technology  is  being  undertaken   in               different  fields of railway working.  Sugges-               tions  have also been made for grant  of  post               graduate allowance to veterinary surgeons  and               special allowances to EDP personnel. Some such               schemes are in existence in the defence  serv-               ices. We suggest that some incentive should be               given to employees who acquire  qualifications               which are useful for their work and contribute               to their efficiency."     On 15th of December, 1986, the Office Memorandum in  the Ministry  of Personnel, Public Grievances and Pension  indi- cated  that  this recommendation of the Pay  Commission  has been accepted by the Government.     Undoubtedly,  in regard to the three  other  allowances, namely, book allowance, risk allowance and conveyance allow- ance, there is no scope for discrimination between Group ’A’ scientists in non-medical and medical wings. In fact, at the hearing of the writ petition, respondent’s counsel found  it difficult to support the prevailing position. We are of  the opinion  that  these  four kinds of  allowances,  which  are admissible to the medical doctors are also admissible to the Group ’A’ scientists under the non-medical category employed in the establishment of Director General of Health Services. The  claim for nonpractising allowance stands on a  somewhat

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different  footing and we do not think on the present  state of the record of this proceeding, we can come to a  definite conclusion that the Group ’A’ scientists in the  non-medical category  would  be  also entitled to  such  allowance.  We, however,  leave  the question open and Government  at  their level  in the appropriate Ministry would examine  tenability of  this claim as and when raised. It has been canvassed  by petitioner’s counsel at the hearing that there is no  justi- fication  for the disparity in the scale of pay between  the two categories of officers. Government counsel has taken 181 the  stand  that the qualifications of officers in  the  two wings are different and the difference in the pay scales has always  existed.  It  is difficult for us  on  the  material available  to  take  any final view of the  matter  but  the respondent  should examine tenability of the claim to  equal scales of pay.     This  Court, has on more than one occasion, pointed  out that  provision  for promotion increases efficiency  of  the public service while stagnation reduces efficiency and makes the  service ineffective. Promotion is thus a  normal  inci- dence  of service. There too is no justification  why  while similarly placed officers in other Ministries would have the benefit  of promotion, the non-medical ’A’ Group  scientists in the establishment of Director General of Health  Services would be deprived of such advantage. In a welfare State,  it is necessary that there should be an efficient public  serv- ice  and, therefore, it should have been the  obligation  of the  Ministry of Health to attend to the representations  of the  Council and its members and provide promotional  avenue for  this category of officers. It is, therefore,  necessary that on the model of rules framed by the Ministry of Science and  Technology with such alterations as may  be  necessary, appropriate  rules should be framed within four months  from now providing promotional avenue for the ’A’ category scien- tists in the non-medical wing of the Directorate.     This  Writ Petition is allowed and the following  direc- tions are issued:                  1.  Within  four  months  from  today,  the               Ministry  of Health and Family Welfare of  the               Union of India shall frame a set of  appropri-               ate  rules,  inter  alia,  providing  suitable               promotional  avenue for the ’A’  Group  scien-               tists  in the non-medical wing of  the  estab-               lishment  of Director General of Health  Serv-               ices;                 2.  These  ’A’  Group  scientists  shall  be               entitled  to  book  allowance,  higher  degree               allowance,   risk  allowance  and   conveyance               allowance at the same rate as is admissible to               doctors in the medical wing in the Directorate               w.e.f. 1.4.1989;                 3.  Government shall examine the  tenability               of  the  claim of equal pay  scales  for  this               category  of officers within four months  from               today.               There shall be no directions for costs. T.N.A.                                  Petition allowed. 182