DR. MS. O.Z. HUSSAIN v. UNION OF INDIA AND ORS.

The Order of the Court was delivered by

MISRA, J. This is an application under Article 32 of tile Constitu- E tion 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 members of the Council, are being discriminatingly treated; they have not been given any promotional benefits and, therefore, there is a large-scale stagnation in tbe service. It has been alleged that the Group F 'A' scientists are recruited through the Union Public Service Commis- sion. These scientists possess a Master Degree in the relevant disci- plines and 3 years' experience to entitle them to be recruited. It has been indicated in a chart filed along with the Writ Petitii:m that the total posts in this category are 243 including post of Drug Controller of India. The promotional posts available are·filled up by direct recruit- O ment and open competition and there is no promotional channel pro- vided. 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 Ijlade under the proviso to Article 309 of the Constitution and for their Group 'A' scientific and technical officers, promotional avenues are available. H The petition further alleges that on their representations from time to

O.Z. HUSSAIN v. U.0.1. [MISRA, J.[ 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 rep- resentatives of the petitioner's Council participated. It has been alleged that though several demands were pressed by the representa- tives 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 Ministries of Health, Human Resources, Science and Technology and Bio-Techno- logy and the notice indicated that the matter would be taken up for c final disposal. Though no return has been filed to the Rule Nisi, counsel appeared for the respondents and upon appropriate instruc- tions, 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 mem- D bers ,of the Council work. Their total number is 243 and this is not disputed. The petitioner has placed cm record the rules framed in exercise of powers under proviso to Article 309 of the Constitution in the Ministry of Science and Technology, covering Group 'A' scientists. Rule 13 thereof provides avenues for promotion. This ;ilso is not dis- puted. Annexure P-3 is a tabuler statement prepared by the petitioner, showing the disparities in the service conditions between the Bio- Medical scientists and other similar scientists and the discrimination that Group 'A' specialists/scientists under the establishment of Director 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 disparity 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 tlie medical wing, such as book allo- wance, higher degree allowance, risk allowance and conveyance allo- wance 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 ca-iegory doctors get non-practising allowance the benefit of H

p. 180 Copy page pinpoint

such allowance is not extended to the non-medical category. Such A 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 2~.8 recom- mended:

B "The question of granting incentive to officers and staff who acquire higher qualification has also engaged our attention. Railways have suggested a scheme for giving such incentives iQ 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 advanced technology is being undertaken in different c fields of railway working. Suggestions 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 services. We sug- gest that some incentive should be given to employees who D acquire qualifications which are useful for their work and contribute to their efficiency.'' On 15th of December, 1986, the Office Memorancjum in the Ministry of Personnel, Public Grievances and Pension indjcated that this recommendation of the Pay Commission has been accepted by the Government. E Undoubtedly, in regard to the three other allowances, namely, book allowance·, risk allowance and conveyance allowance, there is no scope for discrimination betwee~ Group 'A' scientists in non-medical and medical wings. In fact, at the hearing of the writ petition, respon- dent's counsel found it difficult to support the prevailing position. We f are of the opinion that these four kinds of allowances, whieh are admissible to the medical doctors are also admissible to the Group 'A' scientists under the non-medical category employed in the establish- ment of Director General of Health Services. The claim for non- practising allowance stands on a somewhat different footing and we do not think on the present state of the record of this proceeding, we can 0 come to a_ definite conclusi9n 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 convassed by petitioner's counsel at the hear- ing that there is no justification for the disparity in the scale of pay H between the two categories of officers. Gov~rnment counsel has taken

O.Z. HUSSAIN v. U.0.1. {MISRA, J.] 181

the stand that the qualifications of officers in the two wings are diffe- A rent 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 pubiic service while stagnation reduces efficiency and makes the service ineffective. Pro- motion is thus a normal incidence of service. There too is no justifica- tion 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 service 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 promo- tional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science .and D Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promo- tional avenue for the 'A' category scientists in the non-medical wing of the Directorate. This Writ Petition is allowed and the following directions are issued: · E

1Copy pinpoint1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services; .p

2Copy pinpoint2. These 'A' Group scientists shall be entitled to book allo- wance, higher degree allowance, risk allowance and conve- yance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989; G

3Copy pinpoint3. 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.