WP(C) 1299/2007 BEFORE HON’BLE MR.JUSTICE P K MUSAHARY Heard Mr. B Chakraborthy, learned counsel for the petitioner’s associat ion. Also Heard Mr. B Gogoi, learned Standing Counsel for the Health Department. The petitioner is a registered association of Dental Surgeons serving under the Assam Health Services in various Government hospitals. It has 62 (sixty two) me mbers in total. The post to which the members of the petitioner’s association we re appointed, were created in 1974. Initially the post of Dental Surgeons belong ed to Class-II Gazetted Officer and subsequently it was upgraded as Class-I Gaze tted post. The grievances of the petitioner’s association is that there is no pr omotional post above the post of Dental Surgeon unlike the MBBS Doctors working under the State Health Services who have promotional avenues upto the level of D irector of Health Services. The members of the petitioner’s association have bee n stagnated at the posts of Dental Surgeons equivalent to Medical Health Officer -1. Mr. Chakraborthy, learned counsel for the petitioner’s association submits that the Government of Assam enacted the Assam Health Services Rules, 1976 providin g number of promotional posts / avenues for the MBBS doctors as indicated below : A. i. Medical and Health Officer- I ( M & HO- 1 ) ii. Senior Medical and Health Officer iii. Sub-Divisional Medical and Health Officer iv. Additional Chief Medical and Health Officer (F.W) v. Chief Medical and Health Officer vi. Joint Director of Health Services vii. Additional Director of Health Services viii. Director of Health Services The aforesaid rules do not provide any such promotional avenues for the Dental S urgeons and therefore, there is a total discrimination in framing the aforesaid rules against the Dental Surgeons. It has been submitted by Mr. Chakraborthy tha t in the Service Rules, stagnation of employees at a particular cadre/ post is n ot sustainable in as much as such stagnation causes heart burning amongst the me mbers of the staff and generates inefficiency in administration. According to hi m, the Court can pass necessary direction to the State for framing necessary rul es or amending the existing rules providing channel of promotion to avoid the st agnation. In this regard, he cites the following cases: 1. AIR 1988 (SC) - 1033 ( Para- 4) Raghunath Prasad Singh -vs- ( Secretary Police Department) State of Bihar and Or s. 2. AIR 1989 (SC) - 1972 ( Para-9 & 14) Council of Scientific & Industrial Research & Anr. -vs- K G S Bhatta and anoth er. 3. 1990 Supple (SCC) - 688 ( Para- 7 & 8) Dr. M.S.O.Z. Hussain -vs- Union of India 4. 2001 (10) SCC - 401 ( Para- 22) V. Jagannadha Raon & Ors.-vs-State of A.P. & Ors.. 5. 1997(1), GLT, 584, ( Para- 6, 7, 8, & 10)Krishna Keshab Roy-vs- State of Tripura and ors. 6. 2004 (9) SCC -65 ( Para -4,5 & 6) State of Tripura and Ors. -vs- Krishna Keshab Roy . Mr. Gogoi, learned Standing Counsel, Health Department, referring to the affidav it -in-opposition filed by the Respondent No. 1, submits that the total strength of Dental Surgeon is 60 (sixty) only as on date and no post of different catego ries in higher rank for Dental Surgeon has been created and as such there is no scope for promotion of Dental Surgeons to any higher post. However, in the affid avit, it has been stated that the services of Dental Sugeons is a part of medica l services and there is a vast difference in the duties/ responsibilities of the MBBS Doctors and the Dental surgeons. It has also been stated that the Dental S urgeons are not comparable with the MBBS Doctors not only in duties/ responsibil ities but also in the coverage of spectrum of medical services in as much as the MBBS Doctors are to involve themselves in implementation of various National he alth programmes in addition to other duties during natural and man - made calam ities . From the affidavit of the Respondent No. 1, it is discernible that the allegatio n of the petitioner’s association to the effect that no separate cadre has been created with further promotional avenue/ avenues as per the aforesaid Service Ru les, has been denied . It is found that the services of the members of the petit ioner’s association have been utilized alongwith the MBBS doctors for years toge ther but they have been subjected to permanent stagnation for the entire service career. Unless the present rule is suitably amended providing separate cadre wi th promotional avenue, the members of the petitioner’s association would be depr ived of their rightful progression in their service career by way of providing p romotion to higher post. There is no indication in the affidavit -in -opposition filed by the State Respondents that some corrective measures by way of amending the aforesaid rules or enacting separate rules are being taken or would be take n up in near future for giving justice to the members of the petitioner’s associ ation. In reply to the affidavit-in-opposition filed by the Respondent No. 1, the petit ioner’s association has filed a re-joinder wherein , amongst other, it has been stated that at least in the States of Arunachal Pradesh and Nagaland, Rules have been so framed to provide promotional avenue for the Dental Surgeons upto to th e level of Additional Director ( Dental) . For instance the Arunachal Pradesh ha s enacted Arunachal Pradesh Health Services Rules, 2000 and by the State of N agaland The Nagaland Health Services Rules 2006 . In both the aforesaid rules, provisions have been made for promotion upto the rank of Additional Director ( D ental). The Apex Court in the case of Dr. M.S.O.Z. Hussain -vs- Union of India reported in 1990 Supple (SCC) - 688, has held inter alia that absence of provision for promotion channel for non -medical group A-Scientist in the Establishment of Director General of Health Services under the Ministry of Health and Family Wel fare, making similar provision is necessary with modification. In the aforesaid Judgment , the necessity of providing promotional avenue has been explained in p aragraph 7, which is quoted here under : This court, has on more than one occasion, pointed out that provision for prom otion increases efficiency of the public service while stagnation reduces effici ency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in ot her ministries would have the benefit of promotion, the non-medical ’A’ Group sc ientists in the establishment of Director General of health Services would be de prived 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 obligatio n 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 Scien ce and Technology with such alterations as may be necessary, appropriate rules s hould be framed within four months from now providing promotional avenue for the ’A’ category scientists in the non-medical wing of the Directorate In paragraph 8 of the same judgment, the Apex Court issued certain direction whi ch included direction to frame a set of appropriate Rules inter alia providing suitable promotional avenue for A- Group Scientist in the non- medical unit of the establishment of the Director General of Health Services. In the light of the aforesaid Judgment and dictum of the Hon’ble Supreme Court , I am of the considered view that the petitioner’s association has been able to make out a case for issuing a direction to the State Respondents to suitably am end the Assam Health Services Rules , 1976, providing a separate cadre for the D ental Surgeons with suitable promotional avenues for them, in the line of the Ru les framed by the Governments of Arunachal Pradesh and Nagaland. In view of the above, this Writ Petition is disposed of with a direction to the petitioner’s association to file a representation before the Respondent No. 1 a long with a certified copy of this order and a copy of the writ petition and the re-joinder as early as possible and on receipt of such representation, the Resp ondent No. 1 shall take up the grievances of the petitioner for suitably amendin g the Services Rules as indicated above within a reasonable period of time.