Full Judgment Text
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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]
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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
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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.
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