DK ASIM KUMAR BOSH Vs. UNION OF INDIA
SUPREME COURT OF INDIA (FROM: DELHI)
ASIM KUMAR BOSH
UNION OF INDIA
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(1.) THIS appeal by special leave from a judgment and order of the Delhi High Court dated January ( 9/11/1979 raises a question of some complexity. The question is whether a Specialist Grade II in a teaching hospital belonging to the Central Health Service is eligible for appointment or promotion as a Professor or Associate Professor of the concerned speciality. The appeal turns on a construction of sub-rules (2) and (2-A) of Rule 8 and paragraphs 2 (b) and 3 of Annexure I to the Second Schedule of the Central Health Service (Amendment) Rules, 1956.
(2.) THE Central Health Service was formed more than two decades ago and was intended to replace the Indian Medical Service, but the recruitment rules were not framed till the year 1963. THE Service was constituted for providing doctors for manning the medical, public health and medical research and teaching posts in the Central Government hospitals, dispensaries, scientific research institutions and institutions of higher education. THE members of this Service are also meant to man posts in the Union Territories and the various autonomous bodies.
In exercise of the powers conferred by the proviso to Art. 309 of the Constitution, the President on 1/05/1963 made the Central Health Service Rules, 1963 which came into force on 5/05/1963. Rule 3 provided for the constitution of the Central Health Service. Under Rule 4 the Service was divided into two classes viz. Class I and Class 11. The rules envisaged categorization of personnel manning the Service into five different categories viz. Categories 'A' to 'E'. Rule 5 provided for the authorized permanent and temporary strength of the Service. Under Rule 5 (3), the controlling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category. R. 8 provided for the future maintenance of the Service. 80 per cent of the vacancies in Category B of the supertime scale were to be filled by promotion through Departmental Promotion Committee of officers holding the post in the senior scale who had rendered not less than six years of service in that scale and 20 per cent of the vacancies thereof were to be filled by direct recruitment in the manner prescribed, in the Second Schedule. By a notification dated 1/01/1965, the initial appointments were notified. The essential precondition for the inclusion of a post in the Central Health Service was that a medical qualification recognized under the Indian Medical Council should be prescribed for it.
By the Central Health Service (Amendment) Rules, 1966, the Central Health Service was reorganized with effect from 9/09/1966 and the concept of General Duty Officers and Specialist Grade Officers was introduced for the first time. Rule 3 provides that there shall be a Service constituted to be known as the "Central Health Service" consisting of (a) persons appointed to the Service under Rule 7 or Rule 7-A, and (b) persons appointed to the Service under Rule 8. Rule 4 classifies the Service into four categories viz. Category (1) Supertime Grade, apart from the post of (i) Director-General of Health Services on a fixed pay scale of Rupees 2750/- and (ii) Additional Director-General of Health Services on a fixed pay of Rs. 2250.00; Supertime Grade I carrying a pay-scale of Rs. 1800-2250; Supertime Grade II with a pay-scale of Rupees 1300-1800, Category (2) Specialists Grade with a pay-scale of Rupees 600-1300; Category (3) General Duty Officers Grade I with a pay-scale of Rs. 450-1250; and Category (4) General Duty Officers Grade 11 on a scale of Rs. 350-900. Under Rule 5 the authorized strength of the various categories was to be as specified in the First Schedule. Rule 7 provides for the initial appointment to the Service. Rule 7-A provides for the appointment of departmental candidates. Rule 7-A is in two parts. Part A deals with the departmental candidates who were initially appointed in Categories 'A' and 'B' of the Service prior to the 1966 Rules. All of them are to be appointed to the corresponding Supertime Grade I and Supertime Grade II of the new Categories. Part B provides that every departmental candidate who was initially appointed to a category other than Categories 'A' and 'B' shall be appointed to the newlyformed appropriate Category "after selection". That had to be so because the new Categories were different and the conditions of eligibility had also been revised. Accordingly, officers from Category 'C', Category D and Category E were selected by the Departmental Promotion Committee for appointment to the Specialists Grade - General Duty Officers Grade I and General Duty Officers Grade II - after taking into account the qualifications, experience and conditions of eligibility. Several officers who were in former Category 'C' were placed in General Duty Officers Grade I.
(3.) RULE 8 provides for the future maintenance of the Service. After appointments have been made to the Service under Rr. 7 and 7-A future vacancies have to be filled in the manner provided therein. R. 8 (2) provides that every vacancy in the Specialists Grade shall be filled by direct recruitment in the manner provided by the Second Schedule through the Union Public Service Commission, subject to the exception made in R. 8 (2A) with regard to Associate Professors and Assistant Professors. RULE 8 (3) provides for 50 per cent of the vacancies in Supertime Grade II to be filled by promotion of General Duty Officers Grade I and Specialists' Grade Officers in the ratio of 2:3 on the basis of merit and seniority and the remaining 50 per cent of the vacancies are to be filled by direct recruitment in the manner specified in the Second Schedule.
It would therefore appear that there is 50 per cent direct recruitment in Supertime Grade II which practice is in the public interest and is essential for the maintenance of efficiency. Further, Supertime Grade II serves as a promotion avenue to GDOs Grade I also. In view of this the Third Pay Commission found it difficult to recommend the merger of the Specialists' Grade with the Supertime Grade II, but at the same time it appreciated present difficulties in promotion of Specialists to Supertime Grade II. It accordingly recommended a structural reorganization of the cadre of Specialists to get over these difficulties and to ensure that the GDOs Grade I. Hospital Specialists and Teaching Specialists have reasonable promotional opportunities in their respective fields. It therefore directed taking of the following steps:
"The administrative posts in Supertime Grade II should be reserved for GDOs Grade I except where GDOs Grade I with the required specialists qualifications are not available. The posts which cannot be filled by direct recruitment through the Union Public Service Commission and it would be open to the Specialists' Grade Officers to compete for such posts. These posts should not be filled by hospital specialists or teaching specialists by promotion in the normal course. The Supertime Grade II will thus consist only of administrative posts in future for which the revised scale will be Rs. 1500-2000.
The teaching posts (Professors) and hospital specialists' posts (comprising other than administrative and teaching posts) at present included in Supertime Grade II should be placed in the revised scale of Rs. 1800-2250. This new grade may be called. Specialists' Grade I and the existing Specialists' Grade may be called Specialists Grade II. 50 per cent of the vacancies in the new grade (i.e. Specialists Grade I) should be filled by direct recruitment as at present the remaining 50 per cent being filled by promotion from the new Specialists Grade II. There could be interchange between hospital specialists and Professors in the higher grade subject to the candidates satisfying the prescribed qualifications. We notice that at present out of 27 clinical specialities only a few have posts in Supertime Grade II. We would suggest that there should be at least one post in the higher grade of Rs. 1800-2250 for every speciality. The proportion of hospital specialists' posts in the new grade should not exceed 20 per cent of the number of hospital specialists' posts in the lower grade (Specialists Grade II) and additional number of posts as may be necessary to make up the 20 per cent may be created."
As a result of the recommendation of the Third Pay Commission, the Specialists Grade is now bifurcated into Specialists Grade I or Supertime Grade II carrying a pay-scale of Rs. 1800-2250 and Specialists Grade II carrying a pay-scale of Rs. 1100-1800.
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