Case: Dr. Asim Kumar Bose Vs. Union of India and Others

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.3. In exercise of the powers conferred by the proviso to Art.309 of the Constitution, the President on May 1, 1963 made the Central Health Service Rules, 1963 which came into force on May 5, 1963. R.3 provided for the constitution of the Central Health Service. Under r.4 the Service was divided into two classes viz. Class I and Class II. 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 r.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% 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 no t less than six years of service in that scale and 20% of the vacancies thereof were to be filled by direct recruitment in the manner prescribed in the Second Schedule. By a notification dated January 1, 1965 the initial appointments were notified. The essentialfor 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 Heath Service (Amendment) Rules, 1966, the Central Health Service was reorganized with effect from September 9, 1966 and the concept of General Duty officers and Specialist Grade Officers was introduced for the first time. R.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 r.7 or r.7A, and (b) persons appointed to the Service under r.8. R.4 classifies the Service into four categories viz. Category (1) Supertime Grade, apart from the post of (i)of Health Services on a fixed pay scale of Rs.2750/and (ii) Additionalof Health Services on a fixed pay of Rs.a Supertime Grade I carrying a payscale of Rs.Supertime Grade II with a00; Category (2) Specialists Grade with a00; Category (3) General Duty Officers Grade I with a50; and Category (4) General Duty Officers Grade II on ascale of Rs.Under r.5 the authorized strength of the various categories was to be as specified in the First Schedule. R.7 provides for the initial appointment to the Service. R.7A provides for the appointment of departmental candidates. R.7A 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 theappropriate 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 and were selected by the Departmental Promotion Committee for appointment to the SpecialistsDuty Officers Grade I and General Duty officers Grade I and General Duty Officers Grade IIafter taking into account the qualification, experience and conditions of eligibility. Several Officers who were in former Category C were placed in General Duty Officers Grade I.R.8. provides for the future maintenance of the Service. After appointments have been made to the Service under rs . 7 and 7A, 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. R.8(3) provides for 50% 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% of the vacancies are to be filled by direct recruitment in the manner specified in the Second Schedule.4. It would therefore appear that there is 50% 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 followingadministrative 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.teaching posts (Professors) and hospital specialist posts (comprising other than administrative and teaching posts) at present included in Supertime Grade II should be placed in the revisedscale of Rs.This new grade may be called Specialists Grade I and the existing Specialists Grade may be called Specialists Grade II. 50% of the vacancies in the new grade (i.e., Specialists Grade I) should be filled by direct recruitment as at present, the remaining 50% 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.for every speciality. The proportion of hospital specialists posts in the new grade should not exceed 20% 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% may be created." (Emphasisa result of the recommendation of the Third Pay Commission , the Specialists Grade is now bifurcated into specialists Grade I or Supertime Grade II carrying a250 and Specialists Grade II carrying a

Reasoning:
We are afraid, we cannot subscribe to this line of argument.We find it rather difficult to support the impugned action of the Government of India in the Health Ministry in holding that the teaching experience gained by the appellant as RadiologistProfessor or Radiology (exofficio) with effect from October 9, 1964 cannot be taken into consideration. The view taken by the Health Ministry appears to proceed, on a misconstruction of r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule. As already stated, the word "as" in these provisions must, in the context in which it appears, be interpreted to mean "in the capacity of". The Ministry of Health cannot be heard t o say that the appellant has not acquired the status of an Associate Professor of Radiology with effect from October, 9, 1964, particularly when the Central Government have been utilizing his services as such for teaching the postgraduate and under graduate students of the Maulana Azad Medical College for the M.D., M.S., D.M.R.T. and M.B.B.S. courses of studies for the last 17 years. The arrangement has continued for all these years with the approval of the Delhi University and presumably with the tacit sanction of the Medical Council of India. In our opinion, the provisions contained in r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule must be interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in Specialists Grade II like the appellant who, while holding apost in a teaching hospital like the Irwin Hospital, has been actually teaching the students of the Maulana Azad Medical College to which it is affiliated. The contention that the position which the appellant enjoys asProfessor of Radiologyin the Irwin Hospital is similar to that of honorary Professor or Associate Professor in the Willingdon Hospital or the Safdarjang Hospital and the mere designation of the appellant as such does not give him a right to hold the post of Associatecannot prevail. There is no order placed before us of the President of India directing that conferral of honorary teaching designations on Specialists in the Willingdon Hospital and the Safdarjang Hospital would not entitle such Specialists to claim seniority or eligibility for promotion. Even if it were so, that would hardly make any difference. The submission overlooks the distinction between a teaching and ap.m. is of no legal consequence because the allowance is attached to the post of Associate Professor.We wish to make it clear that it is not for the Court to give the appellant promotion or make his appointment to the post of Professor of Radiotherapy. The Court can only on a true construction of r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule determine the question of his eligibility for such promotion or appointment. If the appellant is eligible to hold the post of Professor of Radiotherapy, he can always apply irrespective of the fact whether or not he is in the line of promotion. It is for the Union Public Service Commission to advertise the post of Professor of Radiotherapy and everyone who satisfies the required qualifications can make an application. That is because the Commission undoubtedly has the power to relax any of the qualifications.