The Union Of India vs Rajib Khan

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 172 of 2023 (@ Special Leave Petition (Civil) No.8083 of 2022)

The Union of India & Ors. …Appellants

Versus

Rajib Khan & Ors. …Respondents

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 02.11.2021 passed by the High

Court of Gauhati in WA No.305 of 2021 by which the High

Court has dismissed the said appeal preferred by the

appellants herein -Union of India and others, not interfering Signature Not Verified Digitally signed by Neetu Sachdeva Date: 2023.01.16 16:51:29 IST with the judgment and order passed by the learned Single Reason:

Judge allowing the writ petition and holding that the original

1 writ petitioners are entitled to Nursing Allowance, the Union of

India and others have preferred the present appeal.

2. That the respondents herein are working as the Nursing

Assistants in various hospitals under the establishment of

Border Security Force. All of them were being paid the

‘Hospital Patient Care Allowance’. According to the original

writ petitioners they were entitled to the Nursing Allowance

like it was being given to the Staff Nurse. Therefore, a writ

petition was filed before the High Court. The claim of the

original writ petitioners claiming Nursing Allowance at par

with the Nursing Staff was 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 Nurses

as they are not qualified as a Staff Nurse. However, the

learned Single Judge negated the objection of the appellants –

BSF by observing that the duties performed by the writ

petitioners are the similar duties performed by the Staff

Nurses. Learned Single Judge observed that educational

2 qualification cannot be a ground for denial of Nursing

Allowance. Consequently, the learned Single Judge allowed

the writ petition. The appeal preferred by the appellants

before the Division Bench of the High Court has been

dismissed by the impugned judgment and order. Hence, the

present appeal.

2.1 Ms. Madhavi Divan, learned ASG has vehemently

submitted that in the facts and circumstances of the case the

High Court has committed a serious error in holding that the

original writ petitioners – Nursing Assistants are entitled to the

Nursing Allowance at par with the Staff Nurses.

2.2 It is submitted that so far as the qualification of the Staff

Nurses is concerned, it is four years course and so far as the

Nursing Assistants are concerned, they have completed only

one year course which is the requirement for the post of

Nursing Assistants. It is submitted that therefore, when the

original writ petitioners – Nursing Assistants are not eligible

for appointment as Staff Nurses and the educational

3 qualification being different, they shall not be entitled to claim

the Nursing Allowance at par with the Staff Nurses.

2.3 It is further submitted that the High Court has not

properly appreciated the fact that the Nursing Assistants in

the BSF do not have the relevant experience and qualify only 6

months duration of Nursing Assistant Cadre and later

absorbed in BSF Para Medical Set up. It is submitted that

the Nursing Assistants also do not possess any registration

certificate issued by the State Nursing Council and the Indian

Nursing Council and therefore, they do not possess the

relevant qualification and experience as mandated to receive

the Nursing Allowance at par with the Staff Nurses.

2.4 It is further submitted by Ms. Madhavi Diwan, learned

ASG that the High Court has materially erred in observing that

the educational qualification cannot be a ground for denial of

Nursing Allowance to the Nursing Assistants. It is submitted

that as observed and held by this Court in a catena of

decisions classification of the different pay scales is

permissible based upon educational qualifications, experience

4 and nature of duties. Reliance is placed on the decisions of

this Court in the case of Punjab State Cooperative Milk

Producers Federation Limited and Another versus Balbir

Kumar Walia and others, (2021) 8 SCC 784; Director of

Elementary Education, Odisha and Others versus Pramod

Kumar Sahoo, (2019) 10 SCC 674 and Secretary

Department 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

above decisions, it is prayed to allow the present appeal.

3. While opposing the present appeal learned counsel

appearing on behalf of the respondents – original writ

petitioners has vehemently submitted that while passing the

order the learned Single Judge had heavily relied upon the

decisions of the Division Bench of the High Court taking the

view that the educational qualification cannot be a ground for

denial of Nursing Allowance to the Nursing Assistants.

5 3.1 It is submitted that as such the Nursing Assistants are

being integral part of the nursing service and therefore the

learned Single Judge was right in observing and taking the

view that both the Nursing Assistants as well as the Staff

Nurses are integral part of the nursing service in general and

therefore, like the Staff Nurse, the Nursing Assistants are also

entitled to get the nursing allowance. It is submitted that

therefore, when both the Nursing Assistants as well as the

Staff Nurses are integral part of the nursing service and would

be performing the similar duties, the High court has not

committed any error in directing to pay Nursing Allowance to

the Nursing Assistants at par with the Staff Nurse. Therefore,

it is prayed to dismiss the present appeal.

4. Having heard learned counsel for the respective parties, a

short question which is posed for consideration before this

Court is whether in a case where the educational

qualifications for the post of Nursing Assistant and Staff Nurse

are different, still the Nursing Assistants shall be entitled to

the Nursing Allowance at par with the Staff Nurses?

6 4.1 The High Court has taken the view that the educational

qualifications cannot be a ground for denial of Nursing

Allowance at par with the Staff Nurse who can also be said to

be an integral part of the nursing service in general. The view

taken by the High Court is just contrary to the decisions of

this Court in the case of Punjab State Cooperative Milk

Producers Federation Limited (supra), Pramod Kumar

Sahoo (supra) and T.V.L.N. Mallikarjuna Rao (supra).

4.2 In the case of T.V.L.N. Mallikarjuna Rao (supra) it is

observed by this Court that the classification of posts and

determination of pay structure comes within the exclusive

domain of the Executive and the Tribunal cannot sit in appeal

over the wisdom of the Executive in prescribing certain pay

structure and grade in a particular service. In the case before

this Court, this Court upheld the different pay scales/pay

structure based on different educational qualifications. It is

observed and held that considering the educational

qualifications prescribed for appointment to the post of Data

7 Entry Operators, Grade B and the order assigning duties, the

classification of Data Entry Operators in different grades, does

not violate any right of equality guaranteed by Articles 14 and

16 of the Constitution nor does it violate the constitutional

protection against hostile or arbitrary discrimination.

4.3 In the case of Punjab State Cooperative Milk Producers

Federation Limited (supra), it is observed and held by this

Court that different educational qualification and experience

prescribed for appointment can be a ground to have different

pay scales/pay structures.

4.4 In the case of Pramod Kumar Sahoo (supra) it is

observed and held that nature of work may be more or less the

same but the scale of pay may vary based on academic

qualification or experience which justifies classification. It is

further held and observed that inequality of men in different

groups excludes applicability of the principle of ‘equal pay for

equal work’ to them. In the case before this Court, this Court

upheld the classification based upon the higher educational

8 qualification for grant of higher pay scale to a trained person

or a person possessing higher qualification.

5. Applying the law laid down by this Court in the aforesaid

decisions to the facts of the case on hand the view taken by

the High Court that the educational qualification cannot be a

ground for denial of Nursing Allowance to the Nursing

Assistants is unsustainable. In the present case the

respective Nursing Assistants are being paid ‘Hospital Patient

Care Allowance’. The Nursing Assistants in the BSF neither

have relevant experience for appointment as Staff Nurse nor

they possess any educational qualification for appointment as

Staff Nurse. Therefore, the case of Nursing Assistants cannot

be compared with that of the Staff Nurses as both carry

different educational qualification. Under the circumstances,

the High Court has committed a serious error in holding and

directing that the Nursing Assistants serving in the Assam

Rifles/BSF are entitled to Nursing Allowance at par with the

Staff Nurses.

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6. In view of the above and for the reason stated above

present appeal succeeds. The impugned judgment and order

passed by the learned Single Judge as well as the Division

Bench of the High Court holding and directing that the

original writ petitioners – Nursing Assistants shall be entitled

to Nursing Allowance at par with the Staff Nurse is hereby

quashed and set aside.

Consequently, the original writ petition filed before the

learned Single Judge claiming Nursing Allowance at par with

the Staff Nurse stands dismissed. Present appeal is

accordingly allowed. No costs.

………………………………….J. [M.R. SHAH]

………………………………….J. [C.T. RAVIKUMAR]

NEW DELHI;

JANUARY 16, 2023.

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