THE UNION OF INDIA & ORS. versus RAJIB KHAN & ORS. on 16 January 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 02.11.2021 passed by the High Court of Gauhati in WANo.305 of 2021 by which the High Court has dismissed the said appealpreferred by the appellants herein -Union of India and others, notFinterfering with the judgment and order passed by the learned SingleJudge allowing the writ petition and holding that the original writ petitionersare entitled to Nursing Allowance, the Union of India and others havepreferred the present appeal.

2. That the respondents herein are working as the NursingAssistants in various hospitals under the establishment of Border SecurityGForce. All of them were being paid the ‘Hospital Patient Care Allowance’.According to the original writ petitioners they were entitled to the NursingAllowance like it was being given to the Staff Nurse. Therefore, a writpetition was filed before the High Court. The claim of the original writpetitioners claiming Nursing Allowance at par with the Nursing StaffHwas opposed by the appellants containing inter alia that they are being

paid the special allowance known as ‘Hospital Patient Care Allowance’and are not entitled to the Nursing Allowance at par with Staff Nursesas they are not qualified as a Staff Nurse. However, the learned SingleJudge negated the objection of the appellants – BSF by observing thatthe duties performed by the writ petitioners are the similar dutiesperformed by the Staff Nurses. Learned Single Judge observed thateducational qualification cannot be a ground for denial of NursingAllowance. Consequently, the learned Single Judge allowed the writpetition. The appeal preferred by the appellants before the Division Benchof the High Court has been dismissed by the impugned judgment andorder. Hence, the present appeal.

2.1 Ms. Madhavi Divan, learned ASG has vehemently submittedthat in the facts and circumstances of the case the High Court hascommitted a serious error in holding that the original writ petitioners –Nursing Assistants are entitled to the Nursing Allowance at par with theStaff Nurses.

2.2 It is submitted that so far as the qualification of the StaffNurses is concerned, it is four years course and so far as the NursingAssistants are concerned, they have completed only one year coursewhich is the requirement for the post of Nursing Assistants. It is submittedthat therefore, when the original writ petitioners – Nursing Assistantsare not eligible for appointment as Staff Nurses and the educationalqualification being different, they shall not be entitled to claim the NursingAllowance at par with the Staff Nurses.

2.3 It is further submitted that the High Court has not properlyappreciated the fact that the Nursing Assistants in the BSF do not havethe relevant experience and qualify only 6 months duration of NursingAssistant Cadre and later absorbed in BSF Para Medical Set up. It issubmitted that the Nursing Assistants also do not possess any registrationcertificate issued by the State Nursing Council and the Indian NursingCouncil and therefore, they do not possess the relevant qualification andexperience as mandated to receive the Nursing Allowance at par withthe Staff Nurses.

2.4 It is further submitted by Ms. Madhavi Diwan, learned ASGthat the High Court has materially erred in observing that the educationalqualification cannot be a ground for denial of Nursing Allowance to theNursing Assistants. It is submitted that as observed and held by thisCourt in a catena of decisions classification of the different pay scales is A

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Apermissible based upon educational qualifications, experience and natureof duties. Reliance is placed on the decisions of this Court in the case ofPunjab State Cooperative Milk Producers Federation Limitedand Another versus Balbir Kumar Walia and others, (2021) 8SCC 784; Director of Elementary Education, Odisha and Othersversus Pramod Kumar Sahoo, (2019) 10 SCC 674 and SecretaryBDepartment of Personnel Public Grievances & Pension & Anr.versus T.V.L.N. Mallikarjuna Rao, (2015) 3 SCC 653.

2.5 Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present appeal.

C3. While opposing the present appeal learned counsel appearingon behalf of the respondents – original writ petitioners has vehementlysubmitted that while passing the order the learned Single Judge had heavilyrelied upon the decisions of the Division Bench of the High Court takingthe view that the educational qualification cannot be a ground for denialof Nursing Allowance to the Nursing Assistants.D

3.1 It is submitted that as such the Nursing Assistants are beingintegral part of the nursing service and therefore the learned Single Judgewas right in observing and taking the view that both the NursingAssistants as well as the Staff Nurses are integral part of the nursingservice in general and therefore, like the Staff Nurse, the NursingEAssistants are also entitled to get the nursing allowance. It is submittedthat therefore, when both the Nursing Assistants as well as the StaffNurses are integral part of the nursing service and would be performingthe similar duties, the High court has not committed any error in directingto pay Nursing Allowance to the Nursing Assistants at par with the StaffNurse. Therefore, it is prayed to dismiss the present appeal.F

4. Having heard learned counsel for the respective parties, a shortquestion which is posed for consideration before this Court is whether ina case where the educational qualifications for the post of NursingAssistant and Staff Nurse are different, still the Nursing Assistants shallbe entitled to the Nursing Allowance at par with the Staff Nurses?

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4.1 The High Court has taken the view that the educationalqualifications cannot be a ground for denial of Nursing Allowance at parwith the Staff Nurse who can also be said to be an integral part of thenursing service in general. The view taken by the High Court is justcontrary to the decisions of this Court in the case of Punjab State H

Cooperative Milk Producers Federation Limited (supra), PramodKumar Sahoo (supra) and T.V.L.N. Mallikarjuna Rao (supra).

4.2 In the case of T.V.L.N. Mallikarjuna Rao (supra) it isobserved by this Court that the classification of posts and determinationof pay structure comes within the exclusive domain of the Executiveand the Tribunal cannot sit in appeal over the wisdom of the Executive inprescribing certain pay structure and grade in a particular service. In thecase before this Court, this Court upheld the different pay scales/paystructure based on different educational qualifications. It is observedand held that considering the educational qualifications prescribed forappointment to the post of Data Entry Operators, Grade B and the orderassigning duties, the classification of Data Entry Operators in differentgrades, does not violate any right of equality guaranteed by Articles 14and 16 of the Constitution nor does it violate the constitutional protectionagainst hostile or arbitrary discrimination.

4.3 In the case of Punjab State Cooperative Milk ProducersFederation Limited (supra), it is observed and held by this Court thatdifferent educational qualification and experience prescribed forappointment can be a ground to have different pay scales/pay structures.

4.4 In the case of Pramod Kumar Sahoo (supra) it is observedand held that nature of work may be more or less the same but the scaleof pay may vary based on academic qualification or experience whichjustifies classification. It is further held and observed that inequality ofmen in different groups excludes applicability of the principle of ‘equalpay for equal work’ to them. In the case before this Court, this Courtupheld the classification based upon the higher educational qualificationfor grant of higher pay scale to a trained person or a person possessinghigher qualification.

5. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand the view taken by the HighCourt that the educational qualification cannot be a ground for denial ofNursing Allowance to the Nursing Assistants is unsustainable. In thepresent case the respective Nursing Assistants are being paid ‘HospitalPatient Care Allowance’. The Nursing Assistants in the BSF neitherhave relevant experience for appointment as Staff Nurse nor they possessany educational qualification for appointment as Staff Nurse. Therefore,the case of Nursing Assistants cannot be compared with that of the A

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AStaff Nurses as both carry different educational qualification. Under thecircumstances, the High Court has committed a serious error in holdingand directing that the Nursing Assistants serving in the Assam Rifles/BSF are entitled to Nursing Allowance at par with the Staff Nurses.

6. In view of the above and for the reason stated above presentBappeal succeeds. The impugned judgment and order passed by the learnedSingle Judge as well as the Division Bench of the High Court holdingand directing that the original writ petitioners – Nursing Assistants shallbe entitled to Nursing Allowance at par with the Staff Nurse is herebyquashed and set aside.

CConsequently, the original writ petition filed before the learnedSingle Judge claiming Nursing Allowance at par with the Staff Nursestands dismissed. Present appeal is accordingly allowed. No costs.

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Ankit Gyan

(Assisted by : Abhishek Pratap Singh and Aarsh Choudhary, LCRAs)

Appeal allowed.

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