The Union of India & Ors Versus Rajib Khan & Ors

The Union of India & Ors Versus Rajib Khan & Ors

 [REPORTABLE]
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
J U D G M E N T
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
with the judgment and order passed by the learned Single
Judge allowing the writ petition and holding that the original
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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
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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
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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
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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.
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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?
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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
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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
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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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