Civil Appeal No. 598 of 1980.

Appeal by Special leave from the judgment and order dated the 9th November, 1979 of the Delhi High Court in CWP No.885 of 1974.

N.C. Sikri for the Appellant.

Hardayal Hardy, Girish Chandra and R.N. Poddar for the Respondents.

The Judgment of the Court was delivered by SEN, J.

This appeal by special leave from a judgment and order of the Delhi High Court dated January 9, 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 rs.

(2) and (2A) of r.8 and paragraphs 2(b) and 3 of Annexure I to the Second Schedule of the Central Health Service (Amendment) Rules, 1966.

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 May 1, 1963 made the Central Health Service Rules, 1963 which came into force 18 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 not 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 essential pre condition 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 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) Director General of Health Services on a fixed pay scale of Rs.2750/ and (ii) Additional Director General of Health Services on a fixed pay of Rs. 2250/ ; a Supertime Grade I carrying a pay scale of Rs. 1800 2250; Supertime Grade II with a pay scale of Rs. 1300 1800; Category (2) Specialists ' Grade with a pay scale of Rs. 600 1300; Category (3) General Duty Officers Grade I with a pay scale of Rs. 450 1250; and Category (4) General Duty Officers Grade II on a scale of Rs. 350 900.

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 20 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 newly formed 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 ' and were selected by the Departmental Promotion Committee for appointment to the Specialists ' Grade General Duty Officers Grade I and General Duty officers Grade I and General Duty Officers Grade II after 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.

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 21 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 specialist ' 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% 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. 1800 2250 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." (Emphasis supplied) As a result of the recommendation of the Third Pay Commission, the Specialists ' Grade is now bifurcated into specialists 22 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.

As at present constituted, the Central Health Service has the following grade structure as per the recommendations of the Third Pay Commission : ____________________________________________________________ section No. Grade Pay (Rs.) ____________________________________________________________ 1.

(a) Supertime Grade I (i) Director General Health Services 3500 (ii) Commissioner of Rural Health 3000 (iii) Additional Director General Health Services 3000 (iv) Other post (a) Level I 2500 2750 (b) Level II 2250 2500 (b) Supertime Grade II & Specialists Grade I 1800 2250 2.

Specialist Grade II 1100 1800 3.

General Duty Officers Grade I 1100 1600 General Duty Officers Selection Grade 1500 2000 General Duty Officers Grade II 700 1300 ____________________________________________________________ The Commission also recommended a scheme of special merit promotion for the medical services on the following lines: "Doctors in Specialists ' Grade I in the revised grade of Rs. 1800 2250 and Supertime Grade II (Rs. 1500 2000) who have outstanding performance to their credit, deserving the recognition, may be promoted to Supertime Grade I scale, while continuing in their original posts, without 23 having to wait until a vacancy arises in the Supertime Grade I.

Such upgradations of the post consequent upon merit promotions will be personal to the individuals concerned.

Eminent specialists and doctors in Supertime Grade I should be considered for merit promotion to the grade Rs. 3000 3500.

There will be no non practical allowance in addition.

" Such being the infra structure of the Central Health Service, the question is as to the promotional prospect of a Specialist Grade II in a teaching hospital to Specialists Grade I.

The whole controversy turns on the question whether such a person is eligible for appointment as a Professor or Associate Professor of the concerned speciality, and that depends on whether for purposes of sub rs.

(2) and (2A) of r. 8 and paragraphs 2 (b) and 3 of Annexure I to the Second Schedule, the condition prerequisite is actual teaching experience of the Specialist or the capacity in which such teaching experience is gained.

It is common ground that the appellant has the requisite essential qualifications for appointment as a Professor or an Associate Professor of Radiology.

After obtaining his M.B.B.S. degree from Calcutta University in the year 1955, the appellant went for further studies to the United Kingdom.

There he studied Radiotherapy for two years at the Liverpool Radium Institute and obtained the Diploma in Medical Radiology & Therapy (D.M.R.T.) from the University of Liverpool in 1958.

During the course of his studies there, he held the appointment of Registrar in Radiotherapy at the Liverpool Radium Institute from August 1957 to December 1958.

Besides gaining teaching experience in that post which under Indian Medical Council Rules is a teaching post, he also had the privilege of visiting some important London hospitals like Mt. Verman and Hammersmith which institutions have a unique and distinguished position in the area of Cancer therapy by irradiation.

On his return to India, the appellant worked as Junior Lecturer and Clinical Assistant in the Department of Radiology at the Christian Medical College & Hospital, Vellore from February 6, 1959 to December 26, 1960.

This post required the appellant to take up 24 teaching classes in Radiotherapy for the Master of Surgery (M.S.), Diploma in Gynaecology & Obstetrics (D.G.O.) and M.B.B.S. courses.

During his stay there he was placed in charge of the Department of Radiotherapy during the absence of Professor Scudder, and as he had considerable experience in the United Kingdom in the practical aspect of handling such cases, he proved to be extremely useful to the institution.

The certificate of the renowned Neuro Surgeon Dr. Jacob Chandy, Medical College & Hospital, Vellore pays high encomiums to the services rendered by the appellant and records that his work there was well appreciated by colleagues and teachers both as a surgeon and as a teacher.

As a consequence of a successful academic career as a teacher of post graduate courses in the Christian Medical College & Hospital, Vellore, the appellant was appointed as a Lecturer in Radiology under the West Bengal Health Scheme and held that post from January 2, 1961 to January 12, 1963.

During this period as a Lecturer in the Medical College, Calcutta, he had the privilege of teaching post graduate classes in Diploma in Medical Radiology & Electrology (D.M.R.E.).

While he was employed in that capacity, he was asked by the authorities of the Christian Medical College, Vellore, his erstwhile employers, to assist them in organizing the newly installed Tele Cobalt Therapy Unit under the Colombo Plan Aid from Canada in that institution.

The State Government of West Bengal were pleased to depute him for the task and he apparently performed and fulfilled his duties to the entire satisfaction of the authorities.

On January 14, 1963 the appellant was appointed as a Lecturer in Radiology in Maulana Azad Medical College, New Delhi, a post placed in Category `E ' of the Central Health Service and continued to work in that capacity till October 8, 1964.

He was also employed as a part time Lecturer in Delhi University with effect from 1963 and even now continues to be employed as such.

On October 9, 1964 he was appointed as a Radiologist in the Irwin Hospital which was a post in Category `C ' of the Central Health Service.

By Letter dated April 6, 1965, the Delhi Administration informed the Principal, Maulana Azad Medical College in answer to a communication made by him, that consequent upon the appointment of the appellant in Category `C ' of the Central Health Service, the Administration had no objection to designating him as Associate Professor of Radiology (ex officio) in the Maulana Azad Medical 25 College provided it was not detrimental to his normal duties as a Radiologist and no financial implications were involved.

In pursuance of r. 7A (1) (b) of the Central Health Service Rules, 1963, as amended by the Central Health Service (Amendment) Rules, 1966 and all other powers enabling him in that behalf, the President of India issued a notification dated June 8, 1967 making substantive appointments of 80 officers to the Specialists ' Grade with effect from September 9, 1966.

The appellant was listed at Sr. No. 80 and the entry giving his name and designation reads: "80.

Dr. Asim Kumar Bose Radiologist, Irwin Hospital, New Delhi.

" As a result of this, the appellant has continued to hold the post of Radiologist in the Irwin Hospital which is attached to the Maulana Azad Medical College and treated as an Associate Professor of Radiology (ex officio) both by the University of Delhi as well as by the Maulana Azad Medical College.

By the early 70s, the appellant had acquired the requisite teaching experience of an Associate Professor of Radiology as well as acquired higher academic qualification.

On August 19/20, 1968 the Principal, Maulana Azad Medical College addressed a letter to the appellant conveying that the Vice Chancellor of the Delhi University in exercise of his emergency powers, had granted him recognition as an Associate Professor of Radiology for teaching the post graduate and under graduate students for the D.M.R.T. and M.B.B.S. courses of studies.

In 1970, the appellant was conferred the degree of Doctor of Philosophy (Medicine) in Radiotherapy by the Calcutta University.

The Faculty of Medical Sciences, University of Delhi by its letter dated July 10, 1972 informed the appellant that the Board of Research Studies for Medical Sciences had at its meeting held on January 15, 1972 appointed him as a Supervisor for the post graduate students for the M.D. (Radiotherapy) course of study.

It would therefore appear that the appellant was not only holding the post of Radiologist in the Irwin Hospital, but was also actively associated with teaching the under graduate and post graduate students as an Associate Professor of Radiology of the Maulana Azad Medical College for the M.D., D.M.R.T. and M.B.B.S. courses of studies of the Delhi University.

26 It appears that subsequent to his substantive appointment by the President to Specialists ' Grade with effect from September 9, 1966, the appellant was called by the Banaras Hindu University for an interview on August 7, 1972 for the post of Professor of Radiotherapy but since the post of Associate Professor of Radiotherapy in Maulana Azad Medical College was falling vacant in 1973, he did not appear for the interview.

In 1973, the Government of India promoted and appointed Dr. K.P. Mittal, Lecturer in Radiology in the Maulana Azad Medical College as Associate Professor of Radiotherapy ignoring the claim of the appellant.

The appellant accordingly made a representation to the Government of India but the same was rejected.

The Government of India, Ministry of Health & Family Planning, Department of Health by its letter dated February 23, 1974 informed the Delhi Administration that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College inasmuch as he did not possess at least five years ' teaching experience as Reader/Assistant Professor in the concerned speciality as required under the Central Health Service (Amendment) Rules, 1966.

The Ministry of Health was of the view that although the appellant had the essential qualification prescribed for teaching post the teaching experience gained by him while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) in the Irwin Hospital since October 9, 1964 cannot be taken into consideration.

The appellant assailed the impugned order by filing a writ petition in the Delhi High Court on July 24, 1974 complaining that the action of the Government of India in the Ministry of Health disregarding his claim for appointment to the post of Associate Professor of Radiotherapy was in denial of equal opportunity in matters of employment and thus violative of articles 14 and 16 of the Constitution.

The contention upon which the writ petition was based was that on a true construction of r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule, he was clearly eligible for appointment to the post of Associate Professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) in the Irwin Hospital which is a teaching hospital attached to the Maulana Azad Medical College.

The respondents Nos. 1 and 2 filed a return reiterating the stand 27 taken by the Government of India in the Health Ministry that the experience gained by the appellant as an Associate Professor of Radiology (ex officio) by virtue of his holding the post of Radiologist in the Irwin Hospital cannot be taken into consideration for the purpose of determining the question of his eligibility for appointment as Associate Professor.

It was pleaded that the impugned order was thus perfectly legal and valid and had been issued on a correct interpretation of the Central Health Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules, 1966.

In support of the plea, it was averred: "The teaching experience gained by the petitioner while holding the post of Radiologist in the Irwin Hospital, New Delhi by virtue of his having ex officio status of Associate Professor of Radiotherapy from the 9th of October, 1964 cannot be counted as requisite teaching experience under the Central Health Service Rules.

" It appears that while the writ petition was pending in the High Court, the appellant was in 1976 selected by the Haryana Public Service Commission for the post of Professor of Radiology (Radiotherapy) in the Medical College, Rohtak, but was not relieved of his duties by the Government of India in the Ministry of Health & Family Planning.

A letter of the Registrar of the Rohtak University dated December 9, 1976 requesting the Central Government to place his services on deputation with the Rohtak University for a period of three years in the first instance as the appellant, having put in 17 years ' service, was not inclined to resign his post as Radiologist in the Irwin Hospital.

The Ministry of Health by its letter dated January 17, 1976 however informed the Secretary (Medical), Delhi Administration that it was not possible to relieve the appellant of his duties or place his services on deputation with a lien on his post as Radiologist in the Irwin Hospital, and if he wanted to join as Professor of Radiology (Radiotherapy) in the Medical College, Rohtak, he should "give up all connections with the Central Health Service".

By the judgment under appeal, the High Court, while observing that the appellant admittedly holds high academic and professional qualifications and has also good teaching experience to his credit, 28 rejected his writ petition on its construction of the Rules.

It observed that the recruitment rules required that the requisite experience must be the experience gained while working in a medical college or in a teaching institution i.e. as a teacher in a teaching department.

It also observed that "it is a well known fact that after acquiring the requisite medical qualifications there are different careers open to a medical graduate, and in fact it is so in all professional careers." According to the High Court, "some people opt for a teaching career while others opt for a regular professional career as Doctors.

The medical graduates who opt for a teaching career, join a cadre different from that of the career of Doctors.

" In the words of the High Court, "they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers.

" While rejecting the claim of the appellant, the High Court observed : "It is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment.

The normal duty of such a doctor is in the hospital and in the cadre of doctors in hospital.

If the person who is working as a doctor is allowed to compete, with teachers in the teaching cadre, such teachers are at a disadvantage.

Their chances of promotions are adversely affected by recruitment of people who do not initially opt for a teaching career.

This being the rationale behind the respondents ' decision, we do not find that there is any illegality or arbitrariness in the decision of the respondent.

" It is difficult to support the reasoning or the conclusion reached by the High Court on a construction of the Rules.

The appellant has placed on record a number of documents emanating from the University of Delhi as well as from the Dean, Maulana Azad Medical College showing that his services were utilized as an Associate Professor of Radiology (ex officio) for delivering lectures to the post graduate and undergraduate students for the M.D., M.S., D.M.R.T. and M.B.B.S. courses during the last 17 years.

In response to a query from the Court, the Ministry of Health prepared a note on the structure of the Central Health Service 29 drawing our particular attention to r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule and Sr. No. 4 of Annexure II to the Second Schedule and on the basis of these provisions it is asserted that for promotion to the post of Associate Professor at least five years ' experience as Reader/Associate Professor in the concerned speciality in a medical college/teaching institution after the requisite post graduate qualification is absolutely essential.

It is said that in response to an advertisement of the Union Public Service Commission for the non teaching post of Radiologist in the former Category 'C ' the appellant who had joined the Central Health Service in Category 'E ' as Lecturer in Maulana Azad Medical College with effect from January 14, 1963 on selection to that post, switched over from teaching to non teaching post of Radiologist.

After setting out his teaching experience as a Lecturer of Radiology in Maulana Azad Medical College from January 14, 1963 to October 8, 1964 and elsewhere, it is said that the appellant was not eligible for appointment as Associate Professor as he was not holding the post of Reader/Assistant Professor.

In trying to refute the appellant 's allegation that there was denial of equal opportunity, it is asserted : "In the absence of the particular advertisement for the post of Associate Professor, it is not possible to indicate as to when the applications were first called for the appointment to the post of Associate Professor of Radiology in a teaching institution participating in the CHS.

According to the provisions of the CHS Rules, all posts of Lecturers, Assistant Professors and Associate Professors were required to be filled through the UPSC before the rules came to be amended w.e.f.

After the amendment of the CHS Rules, only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor.

Since Dr. Bose was holding the clinical post of Radiologist, he was not in direct line of and eligible for promotion to the post of Associate Professor.

" It is somewhat strange that alongwith the aforesaid note, the Ministry had produced a letter of the Dean, Maulana Azad Medical College dated January 25, 1982 addressed to the Secretary, Ministry of Health & Family Welfare which tends to show that 30 the appellant as Radiologist cum Associate Professor of Radiology (ex officio) was not actually teaching the post graduate and undergraduate students of the Maulana Azad Medical College.

The letter is self explanatory and reads : "With reference to the telephonic conversation with Sri R. N. Tewari with respect to the question received from the Supreme Court regarding Dr. A. K. Bose I have to state that Dr. Bose while performing his duties as Radiologist was not lecturing to the students as an Associate Professor is required to do.

" It is rather difficult to act on the letter of the Dean particulary when it runs counter to his own affidavit sworn in February, 1982 the relevant extracts of which are given below : "That since 1964 the Appellant continues to be a Radiologist and is not holding any teaching designation assigned by the Central Health Service and is not is receipt of the teaching allowance of Rs. 200.00 which is admissible in the case of an Associate Professor.

Dr. Bose has never worked as Assistant Professor/Reader to become eligible for promotion as Associate Professor.

He is working in the Radiology Department.

The Head of the Radiology Department, uses the services of some of the Radiologists who do not have any teaching designation to take lectures.

Over the years as an internal arrangement the non teaching Radiologists such as Dr. I. Sahai, Dr. D.P. Garg, Dr. A.R. Dar, Dr. B.L. Jain, Dr. S.C. Gupta etc., in addition to Dr. A.K. Bose, have been assigned lectures to under graduate students.

Dr. A.K. Bose has been delivering lectures to post graduates of Delhi University and has guided some thesis.

Delhi University has recognised him as a Supervisor of Thesis and a teacher.

However in the matter of post graduate teaching the Delhi University also recognises and utilises the services of Specialists of non teaching hospitals like Safdarjang Hospital, Army Hospital and Dr. R.M.L. Hospital (Willingdon).

The Specialist in Safdarjang Hospital and Dr. R.M.L. Hospital do not have teaching designation assigned by 31 the Central Health Service.

The Army Hospital is not under the Central Health Service.

" As regards the documents placed on record by the appellant, the Dean goes on to aver in the affidavit : "That the Appellant has produced the Under graduate lecture programme, the post graduate lecture programme, prospectus of Maulana Azad Medical College for the year 1966 67 and Annual Report of Maulana Azad Medical College for the year 1980.

The Under graduate teaching programme is only an internal arrangement of the Radiology Department.

The post graduate programmes have been drawn up by the Delhi University.

The prospectus and the Annual Report are informative bulletins only.

All that they state is that Dr. A.K. Bose is an ex officio Associate Professor.

" The Ministry has also filed the affidavit of Shri N.S. Bakshi, Deputy Secretary to the Government of India, Ministry of Health & Family Welfare to the effect : "That according to the Central Health Service (Amendment) Rules, 1966, atleast 5 years experience as Reader/Assistant Professor in the concerned speciality in a medical college/teaching institution is after the requisite post graduate qualification is absolutely essential for promotion to the post of Associate Professor.

That the appellant does not fulfil the above mentioned requirement and thus cannot be considered for promotion to the post of Associate Professor as per CHS Rules.

That according to the provisions of the CHS Rules, all posts of Lecturers, Assistant Professors and Associated Professors were required to be filled through the UPSC before the Rules came to be amended with effect from 18 9 1971.

After the amendment of the CHS Rules, only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor.

Since Dr. Bose was holding the Clinical post of Radiologist, he was not in direct line of and eligible for promotion to the 32 post of Associate Professor.

As such the question of the Appellant becoming due for promotion to the post of Associate Professor does not arise." After the conclusion of the hearing, the Health Ministry at our behest prepared a note on the pattern of teaching and non teaching staff as laid down in the Central Health Service Rules, 1963 amended from time to time.

It would be convenient to re produce the note in its entirety and it reads : TEACHING POSTS Specialists ' Grade (new Specialist Grade II) Lecturers All vacancies in this Grade are filled by direct recruitment through the UPSC at the level of Lecturers in the scale of pay of Rs. 1100 1800 plus NPA at graded rates.

Assistant/Associate Professors All vacancies in the posts of Assistant Professor and Associate Professor are filled by promotion through the Departmental Promotion Committee from amongst officers holding the posts of Lecturers and Assistant Professor respectively.

The officers are required to possess the qualification and experience prescribed for the post in question.

The officers promoted to the posts of Assistant Professor and Associate Professor are allowed a special pay of Rs. 100/ p.m. and Rs. 200/ p.m. respectively In case no departmental officer is available for promotion to the posts of Assistant/Associate Professor, such vacancy is filled by direct recruitment through the U.P.S.C. Composite Supertime Grade II (Revised Specialist Grade I) Professor On the recommendation of the Third Pay Commission, the Composite Supertime Grade II has been bifurcated into Specialist Grade I (Rs. 1800 2250) and Supertime Grade II revised (Rs. 1500 2000).

Vacancies in the Specialist Grade I posts of Professor are filled by direct recruitment and promotion in the ratio of 1 : 1. 33 For promotion to the posts of Professor, Associate Professor/Assistant Professor with 8 years service are eligible.

Supertime Grade I (Level II) Rs.

2250 2500 All the vacancies in the posts of Principals of Medical College, Heads of teaching institution, Deans are filled by promotions of Professors.

NON TEACHING POSTS Specialists ' Grade (now Specialist Grade II) All vacancies in this Grade (Rs. 1100 1800) are filled by direct recruit through the UPSC.

Composite Supertime Grade II (now Specialist Grade I Rs.1800 2250) Vacancies in the Specialist Grade I posts of Senior Specialists are filled by direct recruitment and by promotion to the ratio of 1 : 1.

For promotion in the posts of Senior Specialists, Specialist Grade II officers with eight years of regular service and considered.

Supertime Grade I (Level II) Rs. 2250 2500 Vacancies in Supertime Grade I posts of Consultants etc.

are filled by promotion of officers of composite Supertime Grade II.

The officers must, however, possess the requisite qualifications and experience for appointment to a particular post in this grade.

" The aforesaid note is in consonance with the view that there is no inflexible rule that Specialists in a teaching hospital cannot be promoted as Associate Professor or Professors of their concerned speciality.

On the contrary, the note clearly brings out that vacancies in Specialists Grade I posts of Professors are filled by direct recruitment and by promotion in the ratio of 1 : 1.

The Health Ministry has also submitted a separate note regarding persons imparting teaching in various disciplines who are neither Professor, Associate Professor, Assistant Professor or Lecturer.

The note runs as under: 34 "There is no provision in the C.H.S. Rules, whereby the officers who do not possess the requisite teaching experience is appointed to a post of Professor in CHS.

However, the University College of Medical Sciences which is under the administrative control of the University of Delhi has been utilising the services of the Medical officers of the CHS working in the Safdarjang Hospital, New Delhi, for clinical teaching of the students of the University College of Medical Sciences.

These persons who are participating in the teaching programme have been recognised by the University of Delhi as Professors/Readers/Lecturers/Teachers without specific teaching designation on the condition that such designations will be valid "for the period till such time the Safdarjang Hospital continues to impart instructions in clinical subjects to the under graduate students of University College of Medical Sciences and the persons continue to take part in the said teaching".

The conferment of teaching designations by the University of Delhi does not mean that these officers are recognised as teachers for the purposes of their service conditions in the Central Health Service.

" Instances are not uncommon where Specialists have been promoted as Professors of their concerned speciality.

One instance of this as given by the appellant is of his immediate predecessor Dr. O. P. Bhardwaj, Radiologist cum Reader in Radiology ex officio) in the Irwin Hospital who was appointed as Professor of Radiology in the Maulana Azad Medical College; and presently is Dean, Jawaharlal Institute of Post Graduate Medical Education & Research, (JIPMER), Pondicherry.

The other instances that we could gather with difficulty are these.

One is that of Dr. (Kum.) P. Nirupma Nayak, Specialist in Gynaecology, Central Hospital, Dhanbad, promoted as Professor of Obstetrics & Gynaecology, JIPMER, Pondicherry; later promoted to Supertime Grade I as Medical Superintendent at JIPMER, Pondicherry.

Another is that of Dr. Prakash Chand Sikand, Specialist Physician, Safdarjang Hospital, promoted as Professor of Medicine, Medical College, Simla; later transferred as Professor of Medicine to Lady Hardinge Medical College, New Delhi.

The other is that of Dr. Harinandan Prasad Verma, Specialist in Anaesthesia, promoted as Professor of Anesthesiology, Maulana Azad Medical College, New Delhi.

A 35 further instance is furnished by the case of Dr. N. C. Shinghal vs Union of India.(1) On the recommendation of the Medical Superintendent, Willingdon Hospital, the post of Specialist in Ophthalmology which was an unspecified Specialist Grade post was upgraded by the Central Government as a specified post in Supertime Grade II, and Dr. B. section Jain, Chief Ophthalmologist cum Associate Professor of Ophthalmology, Medical College, Simla was transferred to that post.

In the vacancy caused thereby, Dr. Shinghal who was Specialist in Ophthalmology attached to the Willindon Hospital, was offered the post of Chief Opthalmologist cum Associate Professor of Ophthalmology, Medical College, Simla.

There may be other instances as well.

It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex officio) shall not count towards the requisite teaching experience.

There is no provision made in the Rules that the teaching experience must be gained on a regular appointment.

There is hardly any difference so for as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex officio designation.

As the statutory rules do not provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor or Radiology in Maulana Azad Medical College.

There is a failure on the part of the Ministry of Health to draw a distinction between teaching and non teaching hospitals under the Central Health Service.

The two general hospitals under the Central Health Service are the Willingdon Hospital & Nursing Home, New Delhi and the Safdarjang Hospital, New Delhi.

The Service also runs Central Hospital, Asansol, Central Hospital, Dhanbad, Goa Medical College & Hospital, Panaji, G.B. Pant Hospital, Port Blair, and Government Hospital, Lakshadweep.

In contradistinction, the teaching hospitals under the Central Health 36 Service are : (1) Irwin Hospital, New Delhi and (2) G. B. Pant Hospital, New Delhi which are both associate hospitals of Maulana Azad Medical College.

The Lady Hardinge Medical College also has a separate hospital attached to it.

The medical colleges run by the Central Health Service are : (1) Maulana Azad Medical College, New Delhi; (2) Lady Hardinge Medical College, New Delhi; and (3) Jawaharlal Institute of Post Graduate Medical Education & Research (JIPMER), Pondichery.

Besides the medical colleges, the Central Health Service also runs several medical institutions, viz. Hospital for Mental Diseases, Ranchi, Patel Chest Institute.

Delhi etc.

The teaching in these medical colleges is undertaken by Professors and Associate Professors as well as by Specialists attached to the hospitals affiliated to the respective colleges.

The modern pattern in medical education during recent years is the organization of clinical units.

As medical education has developed, the distinctive feature is the thoroughness with which theoretical and scientific knowledge are fused with what experience teaches in the practical responsibility of taking care of human beings.

The clinical teacher has an immediate and absolute responsibility, Physicians and surgeons still go round their wards at stated hours, followed by groups of students to whom they point out the features of each case, expound the nature of the malady and explain the reasons for the treatment adopted.

But no longer, as formerly, is the student dependent upon "walking the wards", attending lectures and reading about the illness of which the cases he has seen are illustrations.

The clinical unit is a far more efficient training centre.

The importance of the clinical years is brought out in the Encyclopaedia Britannica Macropaedia, 15th edn.

p. 810 : "The two or more clinical years of un effective curriculum are characterized by active student participation in small group conferences and discussions, a decrease in the number of formal lectures, and an increase in the amount of contact with patients in teaching hospitals and clinics.

Through work with patients, under the supervision and guidance of experienced teachers, students learn methods of obtaining comprehensive, accurate and meaningful accounts 37 of illness, how to conduct physical examinations and how to develop judgments in the selection and utilization of laboratory diagnostic aids.

During this period, they learn to apply the knowledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities.

" We must first deal with certain amendments in the Rules prescribing the mode in which the posts of Professors and Associate Professor can be filled in.

By amendments dated February 21, 1968 and September 18, 1971, paragraphs 2 (b) and 3 of Annexure I to the Second Schedule and sub r.

(2A) of r. 8 were inserted respectively.

These amendments have brought about a change inasmuch as there is now a vertical channel of promotion to the teaching posts upto the post of Associate Professor.

The Third Pay Commission in its Report at p. 173 observes : "While the Specialists on the teaching side can hold posts of hospital specialists, the latter cannot be promoted to teaching posts because of lack of teaching experience.

" On a literal construction of these Rules, the effect of these amendments appears to be this.

Normally, a Professor or an Additional Professor in a medical college or teaching institution can be appointed by direct recruitment from amongst persons holding the post of Associate Professor or Assistant Professor in the concerned speciality in a medical college or a teaching institution having at least six years ' teaching experience out of 12 years ' standing in the Grade through the Union Public Service Commission.

An Associate Professor in the medical college or a teaching institution can only be promoted from amongst persons holding the post of Assistant Professor having at least five year 's teaching experience in the concerned speciality by the Departmental Promotion Committee.

We are inclined to the view that the word "as" in the collocation of the words used "at least six years" experience as Associate Professor/Assistant Professor/Reader" in paragraph 2 (b) and of the words "at least five years ' experience as Reader/Assistant Professor" in paragraph 3 and sub r.

(2A) of r. 8 must be interpreted in its ordinary sense as meaning teaching experience gained "in the capacity of".

In Black 's Legal Dictionary, 5th edn.

, p. 104 the meaning of the word "as" as given is : "Used as an adverb, etc.

means like, similar to of the same kind, in the same manner, in the 38 manner in which".

In Shorter Oxford Dictionary 3rd edn.

p. 111, the word "as" is stated to mean : "The same as, in the character capacity, role of".

In our view, the Ministry of Health is apparently wrong in assuming that the word "as" in paragraphs 2 (b) and 3 of Annexure I the Second Schedule and sub r.

(2A) of r. 8 makes holding of a post in the cadre a condition precedent to the appointment of a Professor or an Associate Professor.

The question that falls for consideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College, New Delhi, and if not, whether the appellant is eligible for appointment to the post of Professor of Radiotherapy in that College.

That depends on whether he fulfilled the conditions laid down in r. 8 (2) and 2 (A) and paragraphs 2 (b) and 3 of Annexure I to the Second Schedule.

R. 8 provides that after appointments have been made to the Service under rs. 7 and 7A, future vacancies shall be filed in the manner provided there under.

R. 8 (2) provides that every vacancy in the Specialists ' Grade shall be filled by direct recruitment in the manner specified in the Second Schedule.

That is to say, 100% of vacancies in the Specialists ' Grade have to be filled by direct recruitment through the Union Public Service Commission.

The post of Professor of Radiotherapy in the Maulana Azad Medical College is a post belonging to Specialist Grade I which is equivalent to Supertime Grade II carrying a pay scale of Rs. 1800 2250.

Annexure I to the Second Schedule prescribes the age limit, educational qualifications and experience for direct recruitment to the various categories of the Service.

Paragraph 2 (b) thereof reads : "Supertime Grade II 50 years For Professors/Additional Rs. 1300 1800 and be Professors low re in medical colleges laxable /teaching institu for Govt.

tions.

servant.

A post graduate degree in the concerned speciality mentioned Govt.

in Part A of Annexure II or equiva lent servant.

* * * * * * * * For Professors/Additional Professor, in medical colleges or tea 39 ching institutions, at least 6 years experience as Associate Professor/ Assistant Professor/Reader in a medical college or teaching institution after the requisite post graduate degree qualifica tion out of the aforesaid 12 years ' standing.

(Qualifications relaxable at Commission 's discretion in the case of candidates otherwise well qualified).

" R. 8 (3) provides that 50% of the vacancies in Supertime Grade II to be filled in by promotion of General Duty officers Grade I and Specialists Grade II officers in the ratio of 2:3 and the remaining 50% of the vacancies to be filled by direct recruitment in the manner specified in the Second Schedule.

That is to say, there is certain amount of flexibility and it cannot be that the appellant who is a Radiologist in the Maulana Azad Medical College which is a post belonging to Specialists Grade II, cannot be appointed by direct recruitment as Professor of Radiotherapy under r. 8 (2).

The Ministry of Health seems to quite oblivious of the fact that during the pendency of appeal, the post of Professor of Radiotherapy in Maulana Azad Medical College having fallen be vacant, the vacancy in the post has to be filled up in the manner provided by r. 8 (2) i. e. by direct recruitment through the Union Public Service Commission.

It is not disputed before us that the Union Public Service Commission has the power to relax the qualifications prescribed in the case of candidates otherwise well qualified.

That being so, the appellant who admittedly is a highly qualified person and has the requisite teaching experience as Radiologist cum Associate Professor of Radiologist (ex officio) is clearly eligible for appointment as Professor of Radiotherapy under r. 8 (2).

The Union Public Service Commission while advertising the post of Professor Radiotherapy which has fallen vacant, must, as it rightly did, invite the appellant for an interview for being considered for appointment to that post.

That conclusion however does not relieve us from dealing 40 with the main question viz. whether the appellant possessed the qualifications and experience requisite for appointment to the post of Associate Professor of Radiotherapy.

The question must turn on a construction of r. 8 (2 A) and paragraph 3 of Annexure I to the Second Schedule of the Rules.

As stated above, r. 8 (2) provides that every vacancy in the Specialists ' Grade shall be filled by direct recruitment in the manner specified in the Second Schedule.

R. 8 (2A) however makes an exception in the case of Associate Professors and Assistant Professors Sub r.

(2A) of r. 8 contains a non obstante clause and it reads : "Notwithstanding anything contained in sub r.

(2) the vacancies in the post of Associate Professor and Assistant Professor in the medical colleges and teaching institutions shall be filled by the appointment of Assistant Professors and Lecturer respectively in the Specialists ' Grade, possessing the qualifications and experience prescribed in Annexure I to the Second Schedule for the respective post, on the recommendation of a Departmental Promotion Committee.

Provided that if no suitable officer is available for appointment to the post of Associate Professor or Assistant Professor in any medical college or teaching institution from the Grades of Assistant Professor or Lecturer, as the case may be, such vacancy shall be filled by direct recruitment in the manner specified in the Second Schedule.

" Paragraph 3 of Annexure I to the Second Schedule reads as follows : "Specialists ' Grade 45 years For Associate (Rs. 600 1300) and below Professers/Readers (relaxable Assistant Profe for Govt.

ssors/Lecturers.

servants) A post graduate degree in the concerned specially mentioned in Part A of Annexure II or equivalent.

For Associate Professors : At least 5 years ' experience as Reader /Assistant Professor in 41 the concerned speciality in a medical college /teaching institution after the requisite post graduate qualifications.

(Qualifications relaxable at Commissions 's discretion in the case of candidates otherwise well qualified.)" The contention on behalf of the respondents is that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College because the teaching experience gained by him while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) in the Irwin Hospital since October 9, 1964 cannot be taken into consideration.

It is urged that there is a distinction between the two posts of Radiologist and Associate Professor of Radiology as the post of Radiologist is a clinical post while that of Associate Professor of Radiology is a teaching post.

That being so, it was urged that the channels of promotion to the two posts are different and the appellant who had been substantively appointed to the post of Radiologist in the Irwin Hospital must seek his own channel of promotion in Supertime Grade II for a non teaching job.

It is further urged that since the appellant was not holding the post of an Associate Professor, he was not drawing the teaching allowance of Rs. 200/ p.m. to which he would otherwise be entitled.

It is also urged that the status of Associate Professor of Radiology (ex officio) which the appellant holds in the Irwin Hospital is akin to that of honorary Professor or Associate Professor in the Willing don Hospital or the Safdarjang Hospital and the mere designation of the appellant as Associate Professor of Radiology (ex officio) by the University of Delhi does not give him a right to hold the post of Professor of Radiology in Maulana Azad Medical College.

It is pointed out that a similar question arose in connection with the conferral of honorary teaching designations on certain medical officers in the Willingdon Hospital and Safdarjang Hospital, New Delhi in the year 1973.

It is said that the President of India was pleased to direct that the conferral of such teaching designations would not entitle the Specialists to claim seniority or eligibility for promotion merely by virtue of these honorary designations, nor would it entitle the incumbent any special benefit with regard to any teaching 42 allowance which may be given to the teachers in a medical college.

By parity of reasoning, it is urged that the designation of the appellant as a Radiologist cum Associate Professor of Radiology (ex officio) did not make him eligible for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College.

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 Radiologist cum Associate Professor or Radiology (ex officio) 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 to 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 post graduate 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 a non clinical post 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 as Radiologist cum Associate Professor of Radiology (ex officio) in 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 Associate Professor of Radiology, cannot 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 43 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 a non teaching hospital.

There cannot be a medical college without a teaching hospital as its integral and inseparable part.

The mere fact that the appellant was not drawing a teaching allowance of Rs. 200/ p.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.

The result therefore is that the appeal must succeed and is allowed with costs.

The judgment and order of the High Court is set aside and the impugned order passed by the Government of India, Ministry of Health & Family Planning, Department of Health New Delhi dated February 23, 1974 is quashed.

It is declared that the appellant had acquired the requisite teaching experience as envisaged by r. 8 (2A) and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules, 1963, as amended by the Central Health Service (Amendment) Rules, 1966, and was therefore eligible to be considered for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College which had fallen vacant in 1973.

The second respondent shall give effect to the declaration.

As a necessary consequence, we direct the Union Public Service Commission to re advertize the post of Professor of Radiology in Malulana Azad Medical College, New Delhi which had fallen vacant during the pendency of the appeal and call the appellant for an interview for being considered appointment to that post.

44 We wish to clarify that the declaration shall not adversely affect or act to the detriment of any person who was and is senior to the appellant in the Central Health Service or had already been appointed as Associate Professor in the concerned speciality.

S.R. Appeal allowed.

Summary: In pursuance of r. 7A(1)(b) of the Central Health Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules.

Summary: 1966 and all other powers enabling in that behalf, the President of India issued a notification dated.

Summary: June 8,1967 making the substantive appointment of the appellant Dr. Asim Kumar Bose as Radiologist, Irwin Hospital, New Delhi.

Summary: By virtue of his post as Radiologist cum Associate Professor of Radiology, the appellant was teaching the under graduate and post graduate students as an Associate Professor of Radiology of the Maulana Azad Medical College for the M.D., M.S., D.M.R.T.

Summary: And M B.B.S. courses of studies of the Delhi University.

Summary: In 1973 the Central Government promoted Dr. K.P. Mittal, Lecturer in Radiology in the Maulana Azad Medical College as Associate Professor of Radiotherapy ignoring the claim of the appellant who thereupon made a representation.

Summary: The Government of India, Ministry of Health & family Planning Department of Health by its letter dated February 23, 1974 rejected the representation holding that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College inasmuch as he did not possess at least five years ' teaching experience as Reader/Assistant Professor in the concerned speciality as required under r. 8(2A) and paragraph 3 of Annexure I to the Second Schedule of the 1966 Rules.

Summary: The appellant filed a writ petition in the Delhi High Court challenging the impugned order, but the High Court rejected the writ petition holding that the requirement rules required that the requisite teaching experience must be the experience gained while working in a medical college or in a teaching institution i.e. as a Teacher in a teaching department.

Summary: Allowing the appeal.

Summary: ^ HELD: (1) There was a failure on the part of the Government of India in the Ministry of Health to draw a distinction between teaching and non 17 teaching hospitals under the Central Health Service.

Summary: The Irwin Hospital and the G.B. Pant Hospital are the two associate hospitals of the Maulana Azad Medical College and the teaching in the medical college is undertaken by Professors and Associate Professors as well as by the Specialists attached to the two hospitals affiliated to the College.

Summary: Thus the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) had to be taken into consideration to determine his eligibility for appointment as Professor or Associate Professor of the concerned speciality.

Summary: [35 G H, 36 A C, 43 F G] (2) On a construction of r. 8(2) and paragraph 2(b) of Annexure 1 to the Second Schedule of the 1966 Rules, it was held that the appellant possessed the qualifications and experience requisite for appointment to the post of Professor of Radiotherapy in the Maulana Azad Medical College which is a post belonging to Specialist Grade I equivalent to Supertime Grade II carrying a pay scale of Rs. 1800 2250, which had fallen vacant during the pendency of the appeal.

Summary: The Union Public Service Commission must therefore re advertise the post of Professor and call the appellant for an interview for being considered for appointment to the post.

Summary: [38 C D, F H] (3) The action of the Central Government in the Ministry of Health ignoring the claim of the appellant for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College in 1973 was based on a misconstruction of r. B(2A) and paragraph 3 of Annexure I to the Second Schedule.

Summary: The word "as" in these provisions must, in the context in which it appears, be interpreted to mean "in the capacity of".

Summary: These provisions must be interpreted in a broad and liberal sense as it would otherwise work great injustice of persons in Specialists Grade II like the appellant who, while holding a non clinical post in a teaching hospital like the Irwin Hospital, has actually been teaching the students of the Maulana Azad Medical College to which it is affiliated.

Summary: The Ministry of Health cannot be heard to say that the appellant had 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 post graduate 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.

Summary: The arrangement has continued for all these years with the approval of the Delhi University which has conferred the designation of Associate Professor of Radiology on the appellant presumably with the tacit sanction of the Medical Council of India.

Summary: [37 F G, 38 A B, 42 D F] (4) The recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex officio) shall not count towards the requisite teaching experience for purposes of sub rs.

Summary: (2) and (2A) of r. 8 and paragraph 2 (b) and 3 of Annexure I to the Second Schedule of the 1966 Rules.

Summary: There is no provision made in the Rules that the teaching experience must be gained on a regular appointment.

Summary: There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as a Specialist in a teaching hospital with the ex officio designation.

Summary: As the statutory rules do not 18 provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience, the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology (ex officio) in the Irwin Hospital can not be ignored in determining his eligibility for appointment as Professor or Associate Professor of the concerned speciality.

Summary: [35 C E]


Appeal No. 390 of 1966.

Appeal by special leave from the Award, dated January 11, 13, 1964 of the Industrial Tribunal, Orissa, Cuttack in Industrial Dispute Case No. 8 of 1962.

D.L. Sengupta, Janardan Sharma, Anil Das Chowdhury and S.K. Nandy, for the appellants.

H.R. Gokhale, K. Gobind Das, N.C. Shah, Krishna Sen and R. Gopalakrishnan, for the respondent.

The Judgment of the Court was delivered by Bhargava, J.

The. workmen of Orient Paper Mills Ltd., Brajrajnagar, have come up in this appeal by special leave against an award of the Industrial Tribunal, Orissa.

An industrial dispute between these workmen and the management of Orient Paper Mills Ltd. (hereinafter referred to as "the Company") was referred by the State Government under section 10(1) (d) of the Industrial Disputes Act (hereinafter referred to as "the Act") for adjudication by the Tribunal enumerating 30 different items of dispute.

The Tribunal gave its award on all the thirty items.

The special leave in this Court was sought and granted in respect of two matters covering some of these items.

The first matter related to fixation of wages, including minimum wages, and this was covered by items Nos. 1, 3, 4, 22 and 26 in the Schedule attached to the Order of Reference.

The second matter in the appeal related to bonus covered by item No. 2 of that Schedule.

In the course of the hearing of the appeal, learned counsel appearing on behalf of the workmen further gave up some of the points which were the subject matter of the items mentioned above, so that in this judgment we need deal with only those points which were argued by him in support of the appeal.

The first and the main point argued with regard to wages was that the Tribunal, after holding that there was no identical industry in this region comparable with the Company, came to.

the view that there were other industries in the region in which minimum wages were higher than the minimum wages paid by the Company, but failed to fix the minimum wages in the award in accordance with the minimum wages being paid in those industries.

Instead, what the Tribunal did was to work out the minimum wages, which should be paid, on an entirely different basis.

It was also urged in the alternative that, even in adopting the latter course, the Tribunal committed an error inasmuch as, in making the calculation, the Tribunal only tried to neutralise about 36 per cent of the cost of living 9n the basis of the rise in Price Index instead 669 of permitting neutralisation to the extent of at least 90%, which could have been done when fixing the minimum wages for the owest, class of workmen.

The principle for fixation of minimum wages that should ordinarily be adopted was laid down by this Court in the case of French Motor Car Co. Limited.

vs Workmen(1) where it was held : "It is now well settled that the principle of industry cum region has to be applied by an Industrial Court, when it proceeds to consider questions like wage structure, dearness allowance and similar conditions of service.

In applying that principle, industrial courts have to compare wage scales prevailing in sinular concerns in the region with which it is dealing, and generally speaking similar concerns would be those in the same line of business as the concern with respect to which the dispute is under consideration.

Further, even in the same line of business, it would not be proper to compare (for example) a small struggling concern with a large flourishing concern.

" The Tribunal, in giving its decision, kept this principle in view, but came to the finding of fact that there were no other concerns in the same line of business as the Company in the region which could be compared with the Company.

The Tribunal found that there are only two other paper mills in the region.

They are Titaghur Paper Mill No. 3 situated at Chaudwar, and the J.K. Paper Mills at Rayagada.

The Tribunal found that the Company is an old established business carrying on manufacture of paper on a very large scale.

The Titaghur Paper Mill No. 3 started production only in April, 1960, while the J.K. Paper Mills at Rayagada started production in 1961 62.

These two Paper Mills were, therefore, both of very recent origin compared with the Company.

The strength of their labour force and the annual production were also very mueh lower.

Even the profits earned were much smaller.

On these facts, the Tribunal held that it would not be proper to compare the wage structure for these Paper Mills with that of the Company.

TIffs is a finding of fact recorded by the Tribunal and nothing has been shown by learned counsel for the Company which would induce us to interfere with this finding of fact.

In fact, learned counsel was unable to urge that this finding of fact suffered from any error at all.

On this finding, it is clear that the region cure industry principle laid down in the ease of French Motor Car Co. Ltd. (1) could not have been applied by the Tribunal when fixing the wages in the Company.

(1) [1963] Supp. 670 This Court in the same case of the French Motor Car Co. (x) further indicated what principles should be adopted in such a situation where there is no concern in the same industry in the region comparable with the concern in which wages have to be fixed.

That situation was envisaged as occurring whenever the particular concern in question happens to be already paying the; highest wages in its particular line of business.

It was held that such a case: "there should be greater emphasis on the region part of the industry cum region principle, though it would be the duty of the industrial court to see that for purposes of comparison such other industries in the region are taken into account as are as nearly similar to the concern before it as possible.

Though, therefore, in a case where a particular concern is already paying the highest wages in its own line of business, the industrial courts would be justified in looking at wages paid in that region in other lines of business, it should take care to see that the concerns from other lines of business taken into account are such as are as nearly similar as possible, to the line of business carried on by the concern before it.

It should also take care to see that such concerns are not so disproportionately large as to afford no proper basis for comparison.

" In the light of these views which were brought to the notice of the Tribunal, the Tribunal proceeded to consider the minimum wages paid by three Collieries, Orient Colliery, Ibe Colliery and Himgiri Rampur Colliery, the Rourkela Steel Plant, the Cement Factory at Rajgangpur and the Indian Aluminum Company, Hirakud which the Tribunal found were situated not very far away from the place where the Company had its factory.

The Tribunal mentioned that, according to the Coal Award, the minimum wage in the Collieries at the then existing Price Index was Rs. 93 7 0; in the Cement Factory Rs. 96.88; in the Steel Plant Rs. 95.00 and in the Aluminium Company Rs. 97.84 nP. The Tribunal then also took into account the minimum wages being paid by other Paper Mills situated outside the region and thereafter recorded its own decision in the following words : "The conclusion that flows from these figures is that the lowest paid worker in the Paper Mill at Brajrajnagar gets more than what is paid as minimum wage in the other two Paper Mills of Orissa, but it is less than what is paid to the lowest paid worker in some of the Paper Mills outside the State.

In other industries, which are comparatively close to the paper industry at (1) [1963] Supp.

671 Brajrajnagar, the minimum wage is above Rs. 90 in almost all the cases.

" On the basis of this finding of fact, the Tribunal held that, if the minimum wage in the Company is to be fixed more on the basis of the minimum wage prevailing in other industries in that region which, in its opinion, would be appropriate under the circumstances of the case, then, a revision was really necessary.

We think that the criticism of learned counsel for the workmen that the Tribunal committed an error at this stage in merely holding that the facts found by it justified a revision and in not proceeding to fix minimum wages on the basis of the other industries in the region, is fully justified.

It is to be noted that there is no mention in the award of the Tribunal that the Company at any stage put forward the case that the Collieries, the Steel Plant, the Cement Factory, and the Aluminjure Company were concerns which were not comparable with the Company.

In fact, in the course of arguments before us, we asked learned counsel for the Company to point out whether such a plea was taken at any stage by the Company and whether evidence was led to show that these concerns were not comparable with the Company.

Learned counsel had to admit that no specific plea was taken by the Company in this behalf and at least no evidence at all was led to show that these concerns are not comparable with the Company.

The workmen in their written statement had relied on the wage structure in these concerns obviously on the basis that they were comparable.

Since the Company never took the plea that they were not comparable, no occasion arose for the workmen to give evidence of the concerns being comparable.

In fact, the Tribunal also accepted them as being comparable 'and that is why, in its conclusion, the Tribunal held that, in its opinion, it would be appropriate under the circumstances of the case to fix the minimum wage in the Company on the basis of the minimum wage prevailing in other industries in that region.

By the expression "other industries in the region" the Tribunal was obviously referring to these concerns.

Having come to this view, it is clear that, to give full effect to the principle laid down by this Court the case of French Motor Car Co.(1), the Tribunal should have proceeded to fix the minimum wage in the Company on the basis of the average minimum wage prevailing in these concerns.

We have already quoted the figures of the minimum wage prevailing these concerns.

On their basis, it appears to us that there will be full justification for fixing the minimum wage in the Company at Rs. 95 per mensum which is about the average of the wages prevailing in all those concerns.

In this connection, we may take notice of the fact that, in the written statement of the workmen, the minimum wages prevailing in these concerns were (1) [1963] Supp. 672 shown at figures lower than those mentioned by the Tribunal; but it appears that those lower figures were given, because the, wages mentioned in the written statement were based on a lower Price Index.

The Tribunal considered the minimum wages in these concerns on the basis of the prevailing Price Index of 441 a ' Sambalpur taking 100 as the basic Price Index for the year 1939 Even when fixing the minimum wage ,for the Company on the basis of the alternative calculation made by the Tribunal, the Tribunal has proceeded on the assumption that the minimum wage is being fixed for the Price Index No. 441 prevailing at the time of the award taking 100 as the basic index for the year 1939 In these circumstances, we think that the minimum wage in the Company should have been fixed by the Tribunalmensera, following the principle laid down by this Court in the case of French Motor Car Co.(1).

The Tribunal should not have proceeded to make the alternative calculation on some other basis so as to arrive at a lower figure of Rs. 73 p.m. as the wage covering the basic wage and the dearness allowance, in addition to Rs. 11 p.to.

payable as production bonus.

Learned counsel for the Company urged before us that the principle of fixation of wages on the basis of Comparison in the region laid down in the French Motor Car Co. 's case(1) is not rigid and, it is not.

necessary that the minimum wage.

in the Company must be fixed at the average level of 'wages in the other comparable industries in the region.

According to him, note should be taken of the fact that, at least . in the paper industry in this.

area, the other concerns are paying much lower wages.

This point has to be 'rejected straightaway in view of the finding that.

those concerns are very small and not comparable with the Company.

It was also urged that, in fixing the minimum wage, the wages payable in the paper industry in other.

parts of the country.

should also be kept in view.

We do.

not think that such a consideration should be taken.

into account.

when applying the principle of fixing the minimum wage primarily on the basis of comparison.

between.

different industries.

in the same region.

Finally, it was argued that other amenities being provided by the Company should also be taken into account when fixing the minimum wage.

In this case, however, there is nothing to show that the Company is providing any such amenities which are different from the amenities that are being provided by those concerns in the region which.

are being.compared with the Company for the purpose of fixation of the minimum wage Consequently, we do not think that there is any justification for departing from the figure of Rs.95 which is the average minimum wage payable by those industries (1) [1963] Supp.

673 We may, at this stage, take notice of the fact that, in con sidering the question of minimum wage, the Tribunal had in view the total wage packet to be received by each workman and, in the opinion of the Tribunal, it consisted of three elements.

These elements are basic wage, dearness allowance and production bonus.

The Tribunal, in its award, held that the minimum wage in so far as it consists of basic wage and dearness allowance,, should be fixed at Rs. 73 and there should be paid, in addition, production bonus to the extent of Rs. 11 in each case.

Thus, the total minimum wage packet which a workman should be entitled to receive was fixed by the Tribunal at Rs. 84.

It is for this figure of Rs. 84 that we think the Tribunal should have substituted the figure of Rs. 95.

From the facts noted in the Award or appearing on the record, it appears that production bonus, in addition to the minimum wage, is payable in the case of Aluminium Company, Hirakud; but there does not appear to be any, production bonus payable in the three Collieties, in the Steel Plant and in the Cement Factory.

In the majority of the industries, which are being compared with the Company in the region, consequently, the minimum wage is the total wage packet receivable by the workman and there is no extra amount received as production bonus.

There is only an exception in the case of Indian Aluminium Company.

That particular Company, it appears, has some special features which have been brought out in the evidence of the Management 's witness, B.B. Panda.

He has stated that the Alumihium Factory at Hirakud carries on its work with the help of highly automatic machines and is ' supplied electricity by the Government at subsidised rates.

The nature of work is such that the total number of workmen employed does not exceed 125 which is a very small number as compared ' with the number of workmen employed by the Company.

It is clear that, in the Aluminium Factory, the number of workmen, who have to be paid production bonus is very small and almost insignificant as compared with the number in the Company 'In these circumstances, it would be more appropriate to compare the total wage packet of the Company with the wage packet received by the workmen of other industries in the region, viz., the three Collieries, the Rourkela Steel Plant, and the Cement Factory at Rajgangour.

Comparing with them, there is justification for fixing the total wage packet of the workmen in the Company 'at Rs. 95 which would include production bonus.

So far as annual profit bonus is concerned, it is payable in the Company also as in those other concerns.

Consequently, in varying the award of the Tribunal we would direct that the 'total minimum wage packet of a workman in the Company shall be fixed ,at Rs. 95 consisting of ' the three elements of basic wage; dearness allowance and production bonus.

The break up of this wage into the three 'elements is of some importance in this case because of the principle on which the 674 profit bonus is paid by tiffs Company.

The profit bonus that is paid is three months ' basic wage and does not take into account the dearness allowance and the production bonus elements of the total wage.

The Company has always treated the total wage of a workman as consisting of these three elements in the proportion of 3:3: 1.

On behalf of the workmen, it was urged before the Tribunal that the proportion should be 3: 1: 1, so that the production bonus and the dearness allowance would both be equal and 1/3rd of the basic wage.

This plea of the workmen was rejected by the Tribunal primarily on the ground that the other break up urged on behalf of the Company was the break up which had been accepted by mutual consent between the workmen and the Company in an earlier settlement which had been arrived at in the year 1959.

We are unable to hold that the Tribunal committed any error in arriving at this decision and, consequently, the total minimum wage fixed by us must also be deemed to have the same break up.

As a result, it would have to be held that the total minimum wage of Rs. 95 will consist of Rs. 41 as basic wage, Rs. 41 as dearness allowance and Rs. 13 as production bonus.

In connection with the fixation of minimum wage, one point vehemently argued by learned counsel for the workmen was that at least the dearness allowance element of the wage should have been made variable with the Price Index, so that the labour could automatically be compensated for further rise in the cost of living subsequent to the making of the award.

Learned counsel was, however, unable to show to us that this Court or any other Tribunal has ever laid down the principle that, where the dearness allowance forms a part of the consolidated wage fixed, there should be such linking so as to bring in continuous variation of the wage, depending on the variation in the Price Index.

It appears to us that an Industrial Tribunal has the discretion, in appropriate cases, of making a direction linking the dearness allowance element of a wage to the Price Index; but, at the same time, the Tribunal is entitled to choose the alternative course of fixing the wage at the prevailing Price Index and leaving the labour to raise a fresh demand and, if necessary, a fresh industrial dispute for further rise in wages, in case there is marked variation in the Price Index and the wage fixed in the award becomes out dated.

Reference in this connection may be made to the decision of this Court in Hydro (Engineers) Pvt. Ltd. vs The Workmen,(x) where also the Court did not hold that it was compulsory to link minimum wage with the cost of living index and only envisaged that such linking may be permissible by holding that : "It is thus clear that the concept of minimum wage, does take in the factor of the prevailing cost of essen (1) ; 675 tial commodities whenever such minimum wage is to be fixed.

The idea of fixing such wage in the light of cost of living at a particular juncture of time and of neutralising the rising prices of essential commodities by linking up scales of minimum wages with the cost of living index cannot, therefore, be said to be alien to the concept of a minimum wage.

" In the present case, the Tribunal chose the course of leaving it to the workmen to ask for increase in minimum wage on any further rise in Price Index and did not consider it advisable to link the wages with it.

In fact, from the Award, it appears that, so far as the Tribunal was concerned, the workmen did not press for such linking when the award was being given.

Consequently, we are unable to hold that the Tribunal has committed any error and that, in this respect, any interference by us is called for.

The only 'other point argued before us in respect of wages by learned counsel was that casual workers should also be paid minimum wages on the same basis as the permanent workers for whom the minimum wage was fixed by the Tribunal which is being varied by us by increasing it to a total wage packet of Rs. 95.

It appears that the Tribunal did not accept this demand primarily on the ground that the distinction between casual workers and ' the permanent workers was recognised by both the parties in the agreement of 1959.

It may be noticed that, by the very nature of employment being casual, it can be presumed that a casual worker is on a lower footing and cannot expect the same wagesas a permanent employee.

Therefore, the decision by the Tribunal not to equate the casual workers with the permanent employees.

cannot be held to be incorrect and must be upheld.

The Tribunal had directed that the increase of Rs. 12 p.m. in the total minimum wage packet allowed by it will enure to the benefit of the lowest paid female, badIi and permanent dailyrated workers also.

This principle will remain effective with the modification that these workers will be entitled to the increase of Rs. 23 p.m. substituted by us for the increase of Rs. 12 allowed by the Tribunal.

Learned counsel appearing for the Company drew our attention to the fact that the revised wages are payable with effect from 13th December, 1962 and, by this time, a period of 5 to 6 years has elapsed, so that the Company will have to pay arrears of wages for this long period.

It was urged that this would cast a very heavy burden on the Company.

We do not think that this reason advanced on behalf of the Company will justify our making a direction that the increase in wages should be effective from some later date.

The previous agreement of 1959 was binding only up to 12th December, 1962 and we think that the Tribunal 213 Sup.

C.I./68 12 676 was right in directing that the revised wages must take effect from 13th December, 1962.

Even though arrears will have to be paid for about 6 years, it has to be kept in view that, since then, there has been a very considerable rise in the Price index and the labour has not so far raised a fresh dispute for a further revision of wages over and above the wages fixed by the Tribunal which are being now refixed by us.

In all these circumstances, we think that the revised wages should take effect from 13th December, 1962.

The only other dispute raised in this appeal related to the bonus for the year 1962 63.

Initially, the workmen had challenged the decision of the Tribunal with regard to, bonus for all five years from 1959 60 to 1963 64, but, in the course.

of arguments at the last stage before us, learned counsel for the workmen confined his arguments to the bonus for the year 1962 63 only.

The main point urged by learned counsel was that, in giving the decision with regard to bonus for this year, the Tribunal committed the error of not making calculation of surplus available on the basis of the Full Bench Formula approved by this Court in the case of The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka vs Its Workmen and Another.(x) The Company is paying profit bonus equivalent to three months ' basic wage of each workman.

The demand made by the workmen was for bonus equivalent to six months ' wages, and the argument was that, if the Tribunal had worked out the surplus available on the correct basis, that surplus would have certainly justified grant of profit bonus at the rate of six months ' wages.

This argument fails, because it appears to us that the demand, as put forward before the Tribunal for bonus equivalent to six months ' wages, was, in fact, never made by the workmen on the basis that the surplus calculated under the Full Bench Formula would justify bonus being granted at that rate.

The 'tribunal, in this connection, has quoted the pleading of the workmen in their written statement before it.

The pleading makes it clear that the claim for six months ' wages was not based on the Full Bench Formula, but on the ground that certain clerical staff was being paid bonus which, in effect, amounted to about six months ' basic wages, because the bonus was calculated ;in their case by taking into account the consolidated wages, including dearness allowance, while in the case of the workmen, the dearness allowance element of the wages was being ignored and bonus was calculated only by taking into account basic wages.

We agree with this interpretation of the pleadings of the workmen.

Further, there is one very significant circumstance, viz. that this dispute was raised by the workmen 'before the expiry of the year 1962 63.

Initially, there was an attempt that the dispute be referred to the Industrial (1)[1959] S.C.R. 925.

677 Tribunal under section 10(2) of the Act on the basis of an agreed enumeration of subjects of dispute drawn up by the workmen and the Company together.

That reference under section 10(2) of the Act, however, failed due to some technical defect.

The reference was ultimately made by the Government under section 10(1) of the Act, but it was made in the same form in which the parties had agreed to.

refer it.

The reference was made by the Government on the 4th October, 1962.

At that time, the year 1962 63 was still running and the accounts for that year could not possibly have been closed and made available.

The balance sheet and the profit and loss.

account of that year could only be prepared after the closure of the year on 31st March, 1963.

In fact, the reference included a dispute even for the year 1963 64 which year had not even started running.

On the face of it, at the time of the reference, there could be no question of applying the Full Bench Formula for calculation of surplus, because there were no completed accounts for the two years 1962 63 and 1963 64.

This circumstance makes it clear that the claim for higher bonus could not, at the time of reference, have been based on the availability of surplus according to the Full Bench Formula.

The Tribunal was, therefore, quite correct in not trying to work out the surplus according to the Full Bench Formula and in awarding bonus on that basis.

In this connection, learned counsel for the workmen urged that, at least by the time when the Award was given, the completed accounts for the year 1962 63 were available; but it seems to us that this circumstance is of no assistance.

The award had to cover the year 1963 64 also and at least for that year the accounts could not possibly have been completed, as that year was still running when the award was given by the Tribunal on the 11 th January, 1964.

Further, the Tribunal was expected to decide the dispute only as referred to it and, at the time of reference at least, there was not and there could possibly not be a claim for higher bonus on the basis of the application of the Full Bench Formula.

The claim was, in fact, based on the circumstances that, according to the workmen, the bonus in their case was being calculated as equivalent to three months ' basic wages, while, the case of some clerical staff, the calculation was made on the basis of their consolidated wages consisting of basic wages and dearness allowance.

The argument is incorrect.

In the case of even the lowest paid clerical staff, to whom dearness allowance is separately payable, the bonus is only calculated on the basis of basic wages, and the dearness allowance is ignored.

There is some clerical staff which does not get any dearness allowance at all and it is only in those cases.

that the bonus is worked out on the basis of the total wages paid.

In such cases, the calculation is still on the basis of basic wage, because it cannot be assumed that their wage is a consolidated wage consisting of the two 678 elements of basic wage and dearness allowance lumped together.

In fact, the principle which is being applied is the simple one of calculating the bonus payable at the rate of three months ' basic wage in each case and in no case is the dearness allowance taken into account.

There is, therefore, no discrimination or inequality as urged on behalf of the workmen.

Finally it was urged that even the casual and badIi workers should be allowed bonus on the same basis as the permanent workers.

The Tribunal rejected this demand on the ground that, under the Agreement of 1959, the workmen and the Company had agreed specifically to exclude these classes of workers in regard to payment of bonus.

We are unable to hold that the Tribunal committed any error of law, requiring interference by us, in basing its decision on the principle contained in the earlier Agreement of the parties and in holding that there was no justification to introduce a new element of payment of bonus to casual and badIi workers at this stage.

The claim in this respect also fails.

As a result, the appeal is only partly allowed inasmuch as the minimum wage fixed by the Tribunal in the Award is carried as indicated by us above.

The rest of the Award of the Tribunal is upheld.

Since, in this appeal, the principal dispute related to the fixation of minimum wage of the workmen and we are allowing the appeal of the workmen in that respect, we direct that the workmen will be entitled to their costs of this appeal from the Company.

V.P.S. Appeal allowed in part.

Summary: An industrial dispute regarding fixation of wages and bonus, between the respondent paper mills and its workmen, the appellants, was referred to the Industrial Tribunal in October, 1962, and the reference included a dispute about bonus payable for the years 1962 63 and 1963 64.

Summary: The Tribunal held: (1 ) that there were in the region no ' other concerns in the same line of business which could be compared with the respondent but that there were three collieries, a steel plant, a cement factory and an aluminum company in the region which were comparable with the resportdent, that as the minimum wage in those industries which was about Rs. 95 was above that of the respondent, a revision of the minimum wage in the respondent mills was justified.

Summary: that such minimum wage should be fixed for the price index prevailing at the time of the award taking 100 as the basic index for the year 1939, and that on that basis, the basic wage and dearness allowance should be Pa. 73, and that Pa. 11 was payable as production bonus; (2) that the dearness allowance element need not be linked to the price index, but that wage should be fixed at the prevailing price index leaving it to the workmen to ask for increase in minimum wage on any further rise in price index; (3 ) that the revised wages were payable with effect from 13th December, 1962; (4) that the three elements of basic wage, dearness allowance, and production bonus which make up the total minimum wage packet of Rs. 84 (Rs. 73 + Pa. 11) should be in the proportion of 3: 3: 1, and that profit bonus was payable at three months ' basic wage.

Summary: The proportion of 3:3: 1 was fixed by the Tribunal, because, under an agreement of 1959 the management and workmen accepted that proportion by mutual consent.

Summary: On the basis of that agreement, the Tribunal also held that; (5) casual workers should not be equated to permanent workers for purpose of minimum wages, and that casual and radii workers should not be allowed bonus on the same basis as the permanent workers; (6) The appellants also claimed before the Tribunal 6 months ' basic wage instead of 3 months ' basic wage, which was being paid by the respondent, on the assumption that certain before staff were being paid as bonus 3 months ' consolidated wage consisting of basic wage and dearness allowance; but the Tribunal rejected the claim.

Summary: In appeal to this Court.

Summary: HELD: (1) This Court laid down in French Motor Car Co. Ltd. vs Its Workmen, [1963] Supp.

Summary: that where there is no concern in the same industry in the region comparable with the concern in which wages have to be fixed, greater emphasis should be laid on the region part of the industry cum region principle.

Summary: To give full effect to this rule the Tribunal should have proceeded to fix the minimum wage in the respondent mills on the basis of the average minimum wage prevailing 667 in the other industries in that region.

Summary: The respondent was not providing any amenities which should be taken into account in fixing the minimum wage, different from the amenities provided by those concerns in the region which were being compared.

Summary: Therefore, the Tribunal should have fixed the minimum wage packet at Rs. 95 per mensem which was the average wage prevailing in all those concerns and should not have fixed the wages on an entirely different basis.

Summary: [671 F H; 672 G H] (2) The Industrial, Tribunal has the discretion, in appropriate cases, of making a direction linking the dearness allowance element of a wage to the price index, or to fix the wage at the prevailing price index leaving the labour to raise a fresh demand and, if necessary, a fresh industrial dispute for further rise in wages, in case there is marked variation in price index and the wage fixed becomes outdated; and therefore.

Summary: the Tribunal was not wrong in choosing the latter alternative.

Summary: [674 F G; 675 B] Hydra (Engineers), vs The Workmen, ; , referred (3) This direction ' was objected to by respondents, on the ground that the respondent may have to pay arrears for 5 or 6 years which would be a heavy burden.

Summary: But the previous agreement of 1959 was binding only upto 12th December, 1962.

Summary: So, the Tribunal was right in directing that the revised wages should take effect from 13th December, 1962, in view of the considerable rise in the price index and the fact that the labour had not raised a fresh dispute for a further revision of wages since the date of the award.

Summary: [675 G H] (4) No error was committed by the Tribunal in the break up of the wages into the 3 elements of basic wage, dearness allowance and production bonus in the proportion of 3: 3: 1.

Summary: The contention of the workmen that the proportion should be 3:1: 1: so as to increase the basic wage element and consequently the profit bonus.

Summary: was rightly rejected by the Tribunal, because.

Summary: the proportion of 3:3:1 was accepted by mutual consent.

Summary: [674 B C] (5) The distinction between casual workers and permanent workers for purpose of minimum wage, and casual and badli workers on the hand and permanent workers on the other for purpose of bonus, was recognised by the parties themselves in the agreement of 1959, and therefore, the Tribunal was right in keeping up the distinction in its award.

Summary: [675 D E; 678 B C] (6) The allegation that some clerical staff was receiving what amounted to 6 months ' basic wage as bonus was incorrect.

Summary: There was some clerical staff which did not get any dearness allowance and the bonus in their case was worked out on the basis of their wages which was only the basic wage.

Summary: The appellants were wrong in assuming that the wage of such clerical staff was a consolidated wage consisting of the 2 elements of basic wage and dearness allowance.

Summary: Therefore, the appellants could not claim 3 months ' consolidated wages as bonus which would amount to 6 months ' basic wage.

Summary: [677 G H; 678 A B] It could not be urged by the appellants that calculation of available.

Summary: surplus for purposes of bonus should have been on the basis of the Full Bench formula approved by this Court in Associated Cement Companies Ltd. vs Its Workmen, , for justifying 6 months ' basic wages as bonus, because, that was not the basis of the claim before the Tribunal.

Summary: Further, the Tribunal was expected to decide the dispute only as referred to it, and at the time of the reference the accounts for the years 1962 63 and 1963 64 could not have been available, and therefore, 668 there could not possibly be a claim for higher bonus on the basis of the application of the Full Bench Formula.

Summary: [676 D F; 677 C D]