JUDGMENT Amitava Roy, J. 1. Being aggrieved by the denial of 5 (five) advance increments for his Post Graduate Degree in Ayurvedic Medicine, as sanctioned to the Medical Officers of the State Health Services by the Government of Assam, the petitioner who is a Medical Officer (Ayurved), seeks to invoke the writ jurisdiction of this Court for redress. 2. I have heard Mr. S. Medhi, learned Counsel for the petitioner and Mr. D.K. Saikia, learned Standing counsel, Health and Family Welfare Department, Government of Assam. 3. The petitioner's pleaded version is that after obtaining his Post Graduate Degree in Ayurvedic Medicine from Utkal University, he was appointed by the notification dated 15.9.1994 as Ayurvedic Physician by the Deputy Secretary, Government of Assam, Health and Family Welfare (A) Department, Assam and was posted at Margherita Civil Hospital, Tinsukia. He joined the post accordingly. Vide communication No. HLB 241/94/19 dated 19.4.1995, of the Joint Secretary to the Government of Assam, Health and Family Welfare Department, the Government's decision to re-designate the post of Ayurvedic Physician as Medical Officer (Ayurved), was communicated to the Director of Health Services, Assam, Guwahati. Acting on the recommendations of the Assam Pay Commission (hereafter referred to as the 'Commission'), the Government of Assam decided to sanction five advance increments to various categories of employees in the different State departments including the department of Health & Family Welfare and the corresponding prevision was incorporated in the Assam Service (Revision of Pay) Rules, 1998 ('the Rules'), published in the issue dated 4.7.1998 of the Assam Gazette (Extraordinary). In terms thereof, the Medical Officer of the State Health Services, was granted five advance increments for Post Graduate Degree and two advance increments for Post Graduate Diploma, subject to the existing conditions governing grant of increments. The petitioner, thereafter, repeatedly submitted representations before the Secretary to the Government of Assam, Health & Family Welfare Department, Guwahati, Assam to be extended the above benefit of five advance increments in view of this post graduate degree. While forwarding his representation dated 22.4.2003, the Director of Health Services, Assam inter alia indicated that no Medical Officer (Ayurved), had been receiving advance increments, though, the Medical Officers of the State Health Service (Allopathic Doctor), were being extended the same. While forwarding his representation dated 22.4.2003, the Director of Health Services, Assam inter alia indicated that no Medical Officer (Ayurved), had been receiving advance increments, though, the Medical Officers of the State Health Service (Allopathic Doctor), were being extended the same. Perceiving the protracted inaction of the said authorities on the issue to be an unreasonable and arbitrary denial of his entitlements in law, the petitioner has approached this Court. 4. In his affidavit, the Under Secretary to the Government of Assam, Health & Family Welfare Department, has admitted that the Health Services of Assam comprise of the following disciplines: (i) Medicine, i.e., Allopath. (ii) Indian System of Medicine, which includes Ayurvedic, Homoeopathy Unani and Siddha. The deponent, however, had clarified that the advance increments as sought for, was being accorded to the MBBS Doctors only holding Post Graduate Degree and/or Diploma. It has been stated in the counter that the petitioner's representation had been duly processed by the Finance Department, which is of the opinion that the benefit of advance increments as per the Rules, was extendable only to Doctors of the State Health Services and that the Ayurvedic Doctors being hot in the State Health Cadre, were not entitled thereto. Referring to the Office Memorandum dated 30.11.1975, the answering respondent has pleaded that the five advance increments is grantable to the Doctors, who have pursued MBBS/Allopathy, course from recognized medical colleges/institutions and that the doctors of the Indian System of Medicine constituting Ayurvedic, Homoeopathy, Unani and Siddha are not contemplated therefor. The deponent, has contended that the pay scale of Medical Officer (Ayurved) is less than that of Allopath Physician, i.e., MBBS. Moreover, even a Veterinary Assistant Surgeon enjoying the same scale of pay as the MBBS Doctor, has not been accorded advance increments at par with the former. 4A. Mr. Medhi, has emphatically urged that the Government having re-designated the Ayurvedic Physician as a Medical Officer (Ayurved), he/she possessed of a Post Graduate Degree, is entitled to receive the five advance increments as per the Rules and the refusal thereof, is per se, arbitrary, unreasonable and discriminatory. No distinction, having been made between a Medical Officer (Ayurved) and any other category of Medical officer in the State Health Services, the denial of benefit of the five advance increments to the petitioner, is patently unjust and unconstitutional. According to Mr. No distinction, having been made between a Medical Officer (Ayurved) and any other category of Medical officer in the State Health Services, the denial of benefit of the five advance increments to the petitioner, is patently unjust and unconstitutional. According to Mr. Medhi, no separate service rule exists to govern the Ayurvedic Doctors and as admittedly the Ayurvedic System of Medicine is within the purview of the Health Services of Assam, there is no justifiable or conceivable reason to exclude Medical Officer (Ayurved) from the benefit of the advance increments sanctioned by the Rules. The learned Counsel has argued that as a matter of fact, Ayurvedic Doctors are accorded promotion in the cadre of the State Health Service and are for all practical purposes, considered to be assimilated therein. The classification sought to be introduced, Mr. Medhi, has contended, is wholly unintelligible and is liable to be adjudged unconstitutional, ineffectual, null and void. 5. Mr. Saikia, in reply, has argued that the Ayurvedic Physicians though, re-designated as Medical Officer (Ayurved), they are not at par with the MBBS Doctors designated as Medical and Health Officer, under the Assam Health Services Rules, 1995 ('the Health Rules') and, therefore, cannot legitimately claim to be the Medical Officers of the State Health Services. As in terms of the Health Rules, the minimum academic qualification for direct recruitment as a Medical and Health Officer, is MBBS or an equivalent degree of a recognized university, an Ayurvedic Physician being not possessed of the same, is neither eligible to be encadred in the Assam Health Service nor for the advance increments contemplated in the Rules. Mr. Saikia, has maintained that a Medical Officer (Ayurved) not being a Medical officer in the State Health Service under the Health Rules, cannot claim the benefit of five advance increments, though the Ayurvedic System of Medicine, as a matter of practice, is a discipline broadly in the domain of the Health Services of the State. The rules having unambiguously confined the benefit of the advance increments to the Medical Officers of the State Health Service, the benefit is not traceable beyond those encadred under the Health Rules. To buttress his contentions, the learned Standing counsel relied on the provisions of the Health Rules as well as the Assam Services (Revision of Pay) Rules 1998. Without prejudice to the above, Mr. To buttress his contentions, the learned Standing counsel relied on the provisions of the Health Rules as well as the Assam Services (Revision of Pay) Rules 1998. Without prejudice to the above, Mr. Saikia has argued that the issue being presently under the active consideration of the Government, an alternative course may be adopted to remit the same to the State authorities for an appropriate time bound decision thereon. 6. I have bestowed my careful consideration on the rival submissions. The petitioner's claim is wholly founded on the Government decision to re-designate the post of Ayurvedic Physician a Medical Officer (Ayurved) as conveyed by the letter dated 19.4.1995 (Annexure 3 to the writ petition) and the Rules where under, five advance increments for Post Graduate Degree and two advance increment for Post Graduate Diploma had been accorded to "Medical Officer of State Health Services." In this context, the Health Rules is of considerable significance. The same had been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India to regulate the condition of service of the persons appointed to the Assam Health Service and had come into force with effect from 26.9.1996, the date of its publication in the Assam Gazette. A plain reading of the Health Rules, proclaims that the post of Medical Officer (Ayurved), is not included in the cadre of the Assam Health Service. The post of Sub Divisional Medical and Health Officer, Health Officer, Boko Leprosy Training Centre and Senior Medical and Health Officer, are included in Class-I (Senior Grade) thereof. The post of Medical and Health Officer finds place in Class-I Junior Grade of the Service. Though, under Rule 3b(ii) any post equivalent to a post in the cadre or declared by the Government to be included in such cadre, would be in the service, no material has been placed on record to establish that the post of Medical Officer (Ayurved) has been encadred in the Assam Health Service. The redesignation of the post of Ayurvedic Physician as Medical Officer (Ayurved) per se would not signify the same. The hierarchy of posts in the service enumerated in Schedule 1 of the Health Rules, also does not project the post of Medical Officer (Ayurved) to be integrated in the Assam Health Service governed thereby. The redesignation of the post of Ayurvedic Physician as Medical Officer (Ayurved) per se would not signify the same. The hierarchy of posts in the service enumerated in Schedule 1 of the Health Rules, also does not project the post of Medical Officer (Ayurved) to be integrated in the Assam Health Service governed thereby. Appointment to the post of Medical and Health Officer in the Class-I Junior Grade, in terms of Health Rule has to be by direct recruitment for which the candidate concerned must be at least a MBBS or possessed of any equivalent degree of a recognized university. Promotion to the higher posts in the cadre is to be conducted as prescribed by Rule 11. The Health Rules, which is a self-contained code, therefore, obviously do not comprehend Ayurvedic Doctors including the Medical Officer (Ayurved), to be a part of the Assam Health Service. 7. The Commission had on the issue of advance increment recommended in Clause 10.01 and 10.2 of Chapter 10 of its report as hereunder: 10.1 The principal for grant of advance increment to various categories of posts in different departments was examined at length by the 1979 Assam Pay Commission and they observed: We feel that advance increment should be granted only in those cases where educational qualification of the incumbent is of greater use in due discharge of his official duties in that particular post. While acquisition of higher qualification is always to be encouraged, we are not recommending advance increment in all such cases of acquisition of higher qualification, unless it has direct link with actual performance of duties in the post. 10.2 We are also of the view that some incentives by way of advance increment is to be provided to the employees for acquisition of higher qualification having direct link with the actual performance of duties in the post. We recommend that the provision for grant of advance increment in the following cases may continue: * * * ---------------------------------------------------------------------------------------------------------- Sl. No. Designation of officer with department Advance Increment Admissible ---------------------------------------------------------------------------------------------------------- 1 2 3 ---------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------- 11. Medical Officer of the State Health Services: Five advance increments for P.G. Degree and two advance increments for P.G. Diploma subject to the existing conditions governing grant of such advance increments. 8. No. Designation of officer with department Advance Increment Admissible ---------------------------------------------------------------------------------------------------------- 1 2 3 ---------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------- 11. Medical Officer of the State Health Services: Five advance increments for P.G. Degree and two advance increments for P.G. Diploma subject to the existing conditions governing grant of such advance increments. 8. The Commission therefore, recommended advance increments to be granted in those cases where the higher educational qualification of the incumbent is of greater use in due discharge of his official duties. It also recommended the continuance of such increments amongst others to the Medical Officer of the State Health Service. In the Assam Services (Revision of Pay) Rules, 1998, the Government of Assam on the question of advance increments acting on the report decided as hereinbelow: 9. (i) In respect of some posts advance increments as are admissible for higher or special qualification have been provided to continue in the revised scales and no separate Government orders will be necessary for allowing the same. (ii) In respect of some new categories of posts advance increments have been provided and the same will be admissible from 1st August, 1998 provided that possession or acquisition of higher qualification by an incumbent is considered to be an added qualification of greater use in due discharge of his official duties. (iii) Advance increments will be admissible irrespective of whether such qualification were acquired by the Government servant before or after entering Government service. It, therefore, conceived of some new categories of posts to be favoured with the benefit of advance increments to be admissible with effect from 1.8.1998, provided the possession or acquisition of higher qualification of an incumbent was considered to be an added qualification of greater use in due discharge of his official duties. Accordingly, in Appendix II of the Rules for the Health Department, advance increments for the following posts were provided: 11. Graduate Nurse. Two advance increments p.m. the first appointment as Staff Nurse. 12. Medical Officer of State Health Services Five advance increments for P.G. Degree and two advance increments for P.O. Diploma subject to the existing conditions Governing grant of such advance increments. Graduate Nurse. Two advance increments p.m. the first appointment as Staff Nurse. 12. Medical Officer of State Health Services Five advance increments for P.G. Degree and two advance increments for P.O. Diploma subject to the existing conditions Governing grant of such advance increments. It is, thus, obvious that while the State Government retained the grant of five advance increments for P.G. Degree and two advance increments for P.G. Diploma to Medical Officers of State Health Services in the Health Department, it decided to extend the benefit of two advance increments to the Graduate Nurse of the said department as well, on her first appointment as Staff Nurse. 9. In the Schedule to the Rules containing the department wise revised pay scales under the Health & Family Welfare Department, the following three broad classifications have been made: (i) Director of Medical Education. (ii) Director of Health Services. (iii) Miscellaneous Services. Ayurvedic service has been catalogued under the third category with the following posts: (i) Deputy Director. (ii) Zonal Officer, Ayurved. (iii) Ayurvedic Physician [re-designated as Medical Officer (Ayurved) with effect from 19.4.1995]. (iv) Ayurvedic Pharmacists. The revised pay scale of the Ayurvedic Physician/Medical Officer (Ayurved) has been reflected to be Rs. 4,300-11,025, incidentally, the revised pay scale of Medical & Health Officer (I) governed by the Health Service Rules is Rs. 4,390-11,425, which is higher than that of the Medical Officer (Ayurved). This assumes importance in view of the expression State Health Services applied in Appendix II of the Rules to identify the Medical Officers entitled to the advance increments. The Rules having been framed after the enforcement of the Health Rules, it is unlikely that the authorities concerned were unmindful of the implication of the reference of the Assam Health Services for the said purpose. The Ayurvedic Physician having been re-designated as Medical Officers (Ayurved) in the year 1995, there was otherwise, no reason or justification not to include the said post in the said Appendix, the authorities being conscious that Ayurvedic Doctors were otherwise not within the purview of the Assam Health Services. The incorporation of the Ayurvedic service comprising amongst others the post of Ayurvedic Physician (re-designated as Medical Officer, Ayurved), as a miscellaneous service under the Health Department, is redolent of the fact that the same was not intended to be integrated into the Assam Health Service governed by the Health Rules. The incorporation of the Ayurvedic service comprising amongst others the post of Ayurvedic Physician (re-designated as Medical Officer, Ayurved), as a miscellaneous service under the Health Department, is redolent of the fact that the same was not intended to be integrated into the Assam Health Service governed by the Health Rules. No material has been brought forth either to evince that the Ayurvedic Service including the post of Medical Officer (Ayurved) has been assimilated in the Assam Health Service. The Commission in its report also did not specifically recommend grant of advance increments to the Medical Officer (Ayurved). As it is the Commission's recommendations are not per se binding on the Government and as the Rules demonstrate, it decided to continue with the grant, vis-a-vis the Medical Officer of the State Health Services and bestow the benefit on the Graduate Nurse in addition. The Ayurvedic Physician having been re-designated as Medical Officer (Ayurved) in the year, 1995, nothing stood in the way of the Government, if it intended to do so to clearly identify them, for the advance increments as well. 10. The Rules having been framed in exercise of the Constitutional power, which is legislative in nature, use of the expression State Health Services, cannot be disregarded lightly. True it is that the Ayurvedic Physicians had been re-designated as Medical Officer (Ayuryed), but they evidently not being a component of the Assam Health Services, in my considered opinion, are not comprehended under the Rules for being accorded the advance increments envisioned therein. As it is every law enacting body is construed to be conscious of the implications of the expression applied and consequently the use of the words State Health Services cannot be discarded as unnecessary surplusage or dehors any import. Rather these are in my view of decisive significance. On a consideration of the scheme of the Legislations involved, I am of the unhesitant opinion that the State authorities did not contemplate any Medical Officer beyond the Assam Health Services governed by the Health Rules to be entitled to the advance increments prescribed by the Rules. The use of the expression "Medical Officer" in the Appendix to the Rules, though strictly not appropriate having regard to the hierarchy of posts in the Assam Health Services, the same do not ipso facto recognize any claim of the Medical Officer (Ayurved) for the advance increments. 11. The use of the expression "Medical Officer" in the Appendix to the Rules, though strictly not appropriate having regard to the hierarchy of posts in the Assam Health Services, the same do not ipso facto recognize any claim of the Medical Officer (Ayurved) for the advance increments. 11. In the above view of the matter, the petitioner's claim for advance increments, is unsustainable and the petition in the result stands dismissed. No costs. Petition dismissed