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Banshi Lal anr. Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 14/75
Judge
Reported in1983WLN(UC)17
AppellantBanshi Lal anr.
RespondentThe State of Rajasthan and ors.
DispositionAppeal allowed
Cases ReferredAir India v. Nergesh Meerza
Excerpt:
constitution of india - articles 14, 15 & 18 and rajasthan health & medical sabordinates service rules, 1965--validity of--amendment introduced in june 1982 prospective--came of grievance when writ filed not removed by amendment--held, appeal is not of purely academic nature.;the amendments that have been introduced in the rules by the notification dated 3rd june, 1982 are only prospective in effect the aforesaid amendments do not remove the cause for grievance which the appellants had when they filed the writ petitions and which they continued to have till the said amendments were introduced by the notification dated 3rd june, 1982. in so far as the period prior to 3rd june, 1982 is concerned, the appellants are entitled to submit that the rules, as they stood prior to the.....s.c. agrawal, j.1. both these special appeals raise common questions relating to the validity of the rajasthan medical and health subordinate service rules, 1965 (hereinafter reffered to as 'the rules' ).2. the rules have been made by the governor of rajasthan, in exercise of the power conferred on him by the proviso to article 309 of the constitution of india, for the purpose of regulating the recruitment to the posts in and the conditions of service of persons appointed to the rajasthan medical and health subordinate service ( hereinafter referred to as 'the service'). the rules were published in the rajasthan gazette dated 16th march, 1966 and they came into force with effect from that date. rule 4 of the rules relates to composition and strength of the service and the said rule, as.....
Judgment:

S.C. Agrawal, J.

1. Both these special appeals raise common questions relating to the validity of the Rajasthan Medical and Health Subordinate Service Rules, 1965 (hereinafter reffered to as 'the Rules' ).

2. The Rules have been made by the Governor of Rajasthan, in exercise of the power conferred on him by the proviso to Article 309 of the Constitution of India, for the purpose of regulating the recruitment to the posts in and the conditions of service of persons appointed to the Rajasthan Medical and Health Subordinate Service ( hereinafter referred to as 'the service'). The Rules were published in the Rajasthan Gazette dated 16th March, 1966 and they came into force with effect from that date. Rule 4 of the Rules relates to composition and strength of the Service and the said rule, as originally framed, laid down that the Service shall consist of eight groups specified in the Schedule to the Rules. The number of groups specified in the Schedule to the Rules was subsequently increased and Rule 4 was also correspondingly amended. The said Rule further provides that the right of promotion shall be confined to each group except to the extent specified in the Schedule. In the Schedule to the Rules, as originally enacted, there were eight groups i.e. Groups 'A' to 'H'.

3. Group A included six posts of (1) Matron Gr. I, (2) Matron Gr. If, (3) Asstt. Matron, (4) Sister or Sister Tutor, (5) Staff Nurse and (6) Midwife and Auxiliary Nurse Midwife. As regards recruitment to the post of Midwife and Auxiliary Nurse Midwife, it was provided that recruitment shall be made 100% by direct recruitment and that the minimum qualifications that were prescribed for the said post were Auxiliary Nurse Midwifery & V11I standard passed. For the post of Staff Nurse, it was provided that recruitment shall be made 75% by direct recruitment and 25% by promotion from amongst Midwife and Auxiliary Nurse Midwife. The qualification that was prescribed for direct recruitment was P.N.R.C or its equivalent qualification recognised by Government. For the purpose of promotion 7 years trained & service as Midwife and Auxiliary Nurse Midwife was prescribed. For the post of Sister or Sister Tutor, recruitment was to be made 25% by direct recruitment and 75% by promotion from the post of Staff Nurse. Qualifications that were prescribed for direct recruitment were R.N.C.R. or its equivalent qualification recognised by Government, Registered 'A' grade Nurse, Sister Tutor's course passed and three years experience as Staff Nurse. For the purpose of promotion, the requirement was five years service as Staff Nurse or four years service as Staff Nurse out of which three years continuous service should be in operation theatre or three years service as Staff Nurse with Sister Tutor certificate. A note was appended that the post of Sister Tutor, Sister Tutor's certificate was compulsory. For the post of Assistant Matron it was provided that recruitment would be made 25% by direct recruitment and 75% by promotion from the post of Sister or Sister's Tutor. The qualifications that were prescribed for direct recruitment were R.N.C.R. or its equivalent qualification recognised by Government, Registered 'A' grade Nurse, Sister Tutor's course passed, and seven years experience out of which atleast three years should be as Sister Tutor For the purpose of promotion, it was necessary to have two years service as Sister or Sister Tutor. For the post of Matron Gr. II, the recruitment was to be made 25% by direct recruitment & 75% by promotion from the post of Assistant Matron. The qualifications that were prescribed for direct recruitment were R.N C.R. or its equivalent qualification recognised by Government, Registered 'A' grade Nurse.

4. Sister Tutor's course passed and ten years experience out of which four years should be as Sister Tutor and three years as Assistant Matron or at an equivalent, post. For the purpose of promotion, it was necessary to have two years service as Assistant Matron. For the post of Matron Gr. I, it was provided that the recruitment should be made 50% by direct recruitment and 50 by% promotion from the post of Matron Gr. II. The qualifications that were prescribed for direct recruitment were R.N.C.R. or its equivalent qualification recognised by Government, Registered 'A' grade Nurse, Sister Tutor course passed and twelve years experience out of which four years must be as Sister Tutor and three years as Matron Gr. II or at an equivalent post. For promotion, it was necessary to have three years service as Matron Gr. II.

5. Group 'E' in the Schedule to the Rules consisted of three posts of (1) Compounder Gr. I, (2) Compounder Gr. II, and (3) Compounder Gr. III For the post of Componder Gr. III, it was provided that recruitment shall be made 100% by direct recruitment and the qualification that was prescribed was matriculate or equivalent qualification recognised by Government. For the post of Compounder Gr. II, it was provided that recruitment shall be made 100% by direct from amongst Compounder Gr. III and the qualification that was prescribed was P.N.R.C. or its equivalent qualification recognised by Government. For the post of Compounder Gr. I, it was provided that the recruitment shall be made 100% by promotion from amongst Compounders Gr. II and qualifications that were prescribed for promotion were P.N.R. C. or its equivalent qualification recognised by Government with five years service as Compounder Gr. II.

6. By notification dated 25th July, 1975 published in the Rajasthan Gazette dated 7th August, 1975, the Schedule to the Rules was amended with effect from 1st April, 1967 and the posts of Matron Gr. I, Matron Gr. II, Assistant Matron and Sister Tutor mentioned in Group 'A' of the said Schedule were redesignated as Nursing Superintendent Gr. I, Nursing Superintendent Gr. II, Assistant Nursing Superintendent and Nursing Tutor respectively.

7. Banshi Lal Sharma (the appellant in Special Appeal No. 14/75) was appointed as Male Nurse in the grade of Rs. 25.3-40 in the medical department of the former State of Jodhpur on 2nd September, 1941. He passed the P.N.R.C, (Punjab Nursing Registration Council) Examination in March, 1944. He was confirmed as a Compounder Gr. I with effect from 1st April, 1950. He was promoted as Sister Tutor in officiating capacity with effect from 8th February, 1960 and was holding the said post on the date of the coming into force of the Rules. On 24th February, 1971, he filed the writ petition giving rise to the present appeal. In the said writ petition, Shri Banshilal challenged the validity of the Rules in so far as they omitted the category of Compounder Gr. I in column No. 5 against serial No. 3 of Group A of the Schedule appended to the Rules and thereby denied to the Compounders Gr. I the right to be promoted to the higher post of Assistant Matron, Matron Gr. II and Matron Gr. I (subsequently designated as Assistant Nursing Superintendent, Nursing Superintendent Gr. II and Nursing Superintendent Gr. I) and were therefore, violative of the provisions of Articles 14 15 and 16 of the Constitution of India. In the writ petition aforesaid, Shri Banshilal also challenged the promotion of Shri Ram Swaroop Vyas (respondent No. 3 in special appeal No. 14/75) on the post of Nursing Superintendent on the ground that the said Shri Ram Swaroop Vyas was junior to the said appellant Shri Banshilal and the promotion of Shri Ram Swaroop Vyas without considering the case of the appellant Shri Banshilal, was violative of the rights guaranteed under A ticle 14 15 and 16 of the Constitution. In the writ petion aforesaid, Shri Banshilal prayed that a writ of certiorari, mandamus or any other appopriate writ, order or direction may be issued declaring the omission of the category of Compounder Gr. I in column No. 5 against item No. 3 of Group. A of the Schedule and the placing of the categories of Compounders in group E as ultravites the provisions of Articles 14 15 and 16 of the Constitution of India. In the said writ petition, Shri Banshilal also prayed that the promot on of Shri Ram Swaroop Vyas respondent No.3 on the post of Nursing Superintendent may be declared void being violative of the petitioner's fundamental right guaranteed Under Articles 14 15 and 16 of the Constitution of India and directing respondent No. 1 and 2 to comply with the provisions of Rule 9 part V of the Rules to fill in the existing vacancies and also to allow the appellant Banshilal and equal opportunity of promotion as Nursing Superintendent in officiating capacity till the permanent promotitions as per Rules were made and allowing him all benefits which he was entitled to enjoy equally with respondent No. 3. The aforesaid writ petition was contested by respondent No land 2. The said writ petition was decided by a learned Single Judge (Hon'ble Justice Kan Singh) by order dated 20th November, 1974 By the order aforesaid, the learned Single Judge partly allowed the writ petition. The learned Single Judge rejected the contention of the appellant with regard to the constitutional validity of the Rules and held that the grouping done under the Schedule so as to confine the promotion within the group itself did not violate Articles 14 15 and 16 of the Constitution. The learned single Judge, after considering the Rules, held that there is no discrimination between A & group E in as much as for posts falling in group A, the qualifications were different from these falling in group E. The learned Single Judge further held that there was no discrimination between the said two groups based on the grounds of sex in as much as the appointment to the posts of Group A was not confined to females only and that males were also eligible for holding the posts mentioned in group A. As regards Shri Ram Swaroop Vyas, the learned single Judge held that he substantively belonged to group E and the prohibition contained in Rule 4 operated against him and he could not have been promoted to a higher post, namely, Nursing Superintendent in group 'A' and that he was not eligible to hold the post of Nursing Superintendent and his posting as Nursing Superintendent, Udaipur was, therefore, in clear contravention of the Rules. The learned single Judge, therefore, partly allowed the writ petition and directed the State of Rajasthan and the Director of Medical & Health Services, Rajasthan, to pass immediate orders for relieving Shri Ram Swaroop Vyas, from the post of Nursing Superintendent, Udaipur. Being aggrieved by the aforesaid order passed by the learned single Judge in so far as he upheld the validity of the Rules, the appellant Banshilal has filed this special appeal.

8. Shanti Lal Jain (the appellant in special appeal No. 43/78), after passing his matriculation examination and after obtaining A grade Certificate in General Nursing, was appointed as Compounder Gr. II with effect from 1st June, 1955. He was confirmed as Compounder Gr. I in the year 1959 and by order dated 1st June, 1977, he was ordered to be fixed as Male Nurse Gr. I with effect from 3rd December, 1955. While in service, the said appellant passed his post-graduation in ward administration in the year 1962 from Indore and he obtained the Diploma of Advanced Course in public Health Nursing in the year 1962. He obatined the certificate in Public Health Nursing Supervision from All India Institute of Hygiene and Public Health, Calcutta in the year 1965. By order dated 24th December, 1962, the said appellant was promoted to officiate as Sister Tutor and he was officiating as Sister Tutor on the date of the coming into force of the Rules. On 19th April, 1978, the said appellent filed a writ petition in this court wherein he challenged the validity of rules 4(1) and (2) read with the Schedule of the Rules on the ground that the said provisions were ultravires the provisions of Articles 14 15 and 16 of the Constitution of India inasmuch as prior to the coming into force of the Rules, there was one joint cadre of nurses, male as well as female and the Rules have bifurcated the said cadre by placing male nurses in group E and female nurses in group A and the right to promotion to higher posts (Serial No. 1, 2 and 3) of group A has been denied to male nurses falling in group E. In the writ petition aforesaid, the said appellant, Shantilal Jain, prayed that an appropriate, writ, order or direction be issued declaring the provisions contained in Rule 4(1) and (2) read with rule 23 of the Rules as ultra vires Articles 14 15 and 16 of the Constitution of India, In the writ petition, the said appellant further prayed that respondents to the writ petition be directed to consider the case of the said appellant with retrospective effect from the date when persons junior to him were promoted and to give him all consequential benefits of promotion to higher post of Assistant Nursing Superintendent Gr. II and Nursing Superintendent Gr. I and further that the respondents be directed to determine the number of vacancies as per the provision of Rule 9 of the Rules and fill them up according to law treating the said appellant eligible for promotion to the higher post. The aforesaid writ petition was summarily dismissed by a learned single Judge of this Court (Hon'ble Dwarka Prasad J.) by order dated 27th April, 1978. In his order aforesaid, the learned single Judge has held that neither in the Rules nor in the Schedule annexed thereto, was there anything to show that females alone would be promoted or directly recruited on the posts of Sister Tutors and that male nurses would be excluded therefrom even if they fulfilled the requisite qualifications for such Posts and in the absence of such exclusion it could not be held that the Rules were discriminatory. The learned single Judge was also of the view that the rule making authority was fully competent to categorise the posts in the Service and no fault could be found with the categorisation made in the Rules or with the provision that further promotions would be confined within the group and not outside thereof. The learned single Judge further held that the absorption of appellant Shantilal Jain on the post of Sister Tutor in group A was not permissible for the reason that he did not possess the requisite qualification prescribed under the Rules either for direct recruitment or for promotion and not for the reason that only females were eligible for appointment on the said post or on account of formation of groups out of the posts included in the service. Being aggrieved by the order passed by the learned single Judge, the appellant Shantilal Jain has filed this special appeal in this Court. During the pendency of the special appeal, a reply to the writ petition had been filed on behalf of the respondents on the ground that the writ petition has been dismissed summarily without notice to the respondents and there was no opportunity before the learned Single Judge to file a reply to the writ petition. The appellant has filed a rejoinder to the aforesaid reply filed on behalf of the respondents.

9. It may be observed that during the pendency of these Special. Appeal, the Schedule to the Rules was amended and by the aforesaid amendment in item 5 of Group A, the post of Compounder Gr. II was added below 'Staff Nurse' in column 2 and the post of Compounder Gr. II was added after 'Staff Nurse' in columns 5 and 6 of item No. 4. As a result of the aforesaid amenmdent, the posts of Compounder Gr. II were made equivalent to the post of Staff Nurse and Compounder Gr. II, lecame eligible for promotion along with Staff Nurse to the higher post of Sister or Nursing Tutor. The notification by which the aforesaid amendment was introduced has not been placed before us but the learned Additional Advocate General stated that the said amendment was introduced in the year 1978. By notification dated 3rd June, 1982 published in the Rajasthan Gazette dated 3rd June, 1982, the Rules were further amended and as a result of the aforesaid amendments, the Schedule to the Rules has been substituted. In the Schedule, as substituted, there are 14 groups (Groups A, A-I A-II A-III, A-1V, A-V, A-VI, B-I, B-II, C, C-I, D and (E). The post of Nursing staff employed in the hospitals are grouped in Group A of the amended Schedule. The said group, i.e., group A (Medical Side). consists of separate male and female cadres for the posts of Nursing Superintendent Gr. 1, Nursing Superintendent Gr. II, Public Health Nurse Instructor, Nursing Tutor , Nurse Gr. I, Nurse Gr. II, Pharmacist-cum-Compounder and Psychiatric Nurse. A note has been appended to the said group wherein it is stated that the cadres or male and female nursing personnel on the medical side for promotional avenues upto the post of Nursing Superintendent Gr. I shall run separately and concurrently providing equal opportunities of promotional avenues to both the cadres and that the total cadre strength is to be decided by the Medical Department. There is no separate categorisation of Compounders in the amended Schedule to the Rules.

10. The learned Additional Advocate General has raised certain preliminary objections with regard to the maintainability of these special appeals. It is necessary to deal with the aforesaid objections before we proceed to deal with submissions urged by Shri Mridul, the learned counsel for the appellants in support of these appeals.

11. The first objection that was raised by the learned Additional Advocate General was that in view of the amendments that have been introduced in the Schedule by the notification dated 3rd June, 1982, the appellants can have no cause for grievance and therefore, the cause of action does not survive and the questions that are being raised by the appellants are merely of academic importance. It is true that after the amendments that have been introduced in the Rules by the notification dated 3rd June, 1982, the grievance of the appellants in the matter of denial of promotional avenues for the higher posts of Nursing Superintendent and Assistant Nursing Superintendent have been removed. But this does not mean that the questions which have been raised by the appellants in their appeals have ceased to survive and have become of academic importance only. The amendments that have been introduced in the Rules by the notification dated 3rd June, 1982 are only prospective in effect. The aforesaid amendments do not remove the cause for grievance which the appellants had when they filed the writ petitions and which they continued to have till the said amendments were introduced by the notification dated 3rd June, 1982. In so far as the period prior to 3rd June, 1982 is concerned, the appellants are entitled to submit that the Rules, as they stood prior to the amendments introduced by the notification dated 3rd June, 1982, were violative of the provisions of Articles 14 15 and 16 of the Constitution and that the appellants have been denied their right to equality as guaranteed under the aforesaid provisions of the Constitution. It can not, therefore be said that the questions which are sought to be agitated by the appellants in these appeals are purely of academic nature. We are, therefore, unable to accept the aforesaid objection that has been raised by the Additional Advocate General with regard to the maintainability of these appeals.

12. Another objection that was raised by the learned Additional Advocate General was that there was intordinate delay in the filing of the writ petitions by the appellants in as much as the Rules came into force on 16th March, 1966 and the writ petition of Banshilal was filed on 24th February, 1971 and the writ petition of Bansi Lal was filed on 19th April (978. The learned Additional Advocate General submitted that even though the aforesaid objection as to laches was not raised by the respondents before the learned single Judge in Banshilal's case, the said objection can be raised by the respondents in special appeal and that in the absence of any explanation for the long delay, the appellants are not entitled to any relief from this Court under Article 226 of the Constitution. We are unable to accept the aforesaid contentoin urged by the learned Additional Advocate General. It is true that the writ petition of Banshilal was filed nearly five years after the Rules came into force and the writ petition of Shri Shantilal lain was filed more than twelve years after the coming into force of the Rules. But in the writ petitions the appellants were challenging the constitutional validity of the Rules on the ground that they violative of Articles 14 15 and 16 of the Constitution. The case of the appellants is that the violation of their rights guaranteed under the aforesaid provisions of the Constitution by the impugned Rules was continuing on the dates of the filing of the writ petitions. It cannot, therefore, be said that the appellants were not entitled to seek relief from this Court on the ground of laches. We may, however, observe that the delay in the filing of the writ petition may be of relevance in the matter of the relief that may be granted to the appellants in these appeals in case the appellants succeed in establishing violation of the fundamental rights guaranteed under Articles 14 15 and 16 of the Constitution.

13. The learned Additional Advocate General has also submitted that the large number of persons had been appointed on the posts of Assistant Nursing Superintendent, Nursing Superintendent Gr. II and Nursing Superintendent Gr. I before the filing of the writ petitions and that if the writ petitions of the appellants are allowed, the said appointments would be rendered invalid and since the persons who had been appointed on the various posts of Assistant Nursing Suprintendent, Nursing Superintendent Gr. II and Nursing Superintendent Gr. I before the filing of the writ petitions, would be adversely affected by the orders that are passed by this Court on the writ petitions, the said persons were necessary parties to the writ petition and since the appellants have failed to implead them as parties in the writ petitions, the writ petitions are not maintainable. Shri Mridul has submitted that the appointments that had been made on the posts of Assistant Nursing Superintendent before the filing of the writ petitions had been made on the officiating basis only and that the said appointmants of persons Junior to the appellants on officiating basis could not confer a right on the persons to hold the post on which they were appointed on officiating basis and, therefore, it could not be slid that they would be adversely affected by the order that is passed by this Court in the writ petitions. Shri Mridul has further submitted that be is not challenging appointment of persons junior to the appellants on the higher posts of Assistant Nursing Superintendent and Nursing Superintendents and all that the appellants are seeking is that they should also be considered for promotion to the said higher posts with effect from the date on which persons junior to them were so promoted. In view of the fact that the appointments that had been made on the higher posts till the filing of the writ petition were on officiating basis only and that the appellants are not seeking to challenge the said appointments, it cannot be said that the persons who had been so promoted were necessary parties to the writ petitions. In the circumstances, it cannot be said that these appeals cannot be maintained in the absence of the persons who had been promoted to the higher posts.

14. Thus, none of the objections raised by the learned Additional Advocate General can be sustained. We would now come to the submissions urged by Shri Mridul in support of these appeals.

15. We may first deal with the contention urged by Shri Mridul with regard to the invalidity of the Rules on the ground of violation of the provisions of Article 15 of the Constitution. In this regard it may be pointed out that there is no express provision in the Rules which bars the appoitnment of males on the posts referred to in Group 'A' of the original Schedule to the Rules. Shri Mridul has, however, submitted that for the purpose of determining the constitutional validity of a provision the substance, and not the form, has to be examined and that, in substance and reality males were not eligible for appointment on the posts mentioned in Group 'A' of the Schedule. Shri Mridul has assailed the judgment of both the learned single Judges and has submitted that the learned single Judges have erred in holding that males were also eligible for appointment to the posts mentioned in group 'A' of the original Schedule to the Rules. In this regard, Shri Mridul has pointed out that the lowest post in group A of the said Schedule was that of Midwife and Auxiliary Nurse Midwife and that the only person eligible for appointment on the said post was Auxiliary Nurse Midwifery trained and VIII Standard passed Shri Mridul has submitted that training an midwifery was compulsory for a person to be appointed on the post of Midwife and Auxiliary Nurse Midwife mentioned at S.No. 6 of Group A Shri Mridul has also pointed out that females alone are eligible for training in midwifery and that males cannot obtain training in midwifery and, therefore, females only could not be appointed to the post of Midwife and Auxiliary Nurse Midwife and for that reason, females alone could be appointed to the higher posts in group A of the Schedule. In support of his aforesaid submission, Shri Mridul has referred to the various advertisements that have been issued by the Superintendent, Associate Group of Hospitals, Jodhpur inviting applications for the Four Year Course of General Nursing and Midwifery wherein it has been specifically mentioned that the applications were being invited from females candidates only. Shri Mridul has also referred to the letter dated 18th April, 1975 addressed by the Superintendent, Associated Group of Hospitals, Jodhpur to the Director, Medical and Health Services, Rajasthan Jaipur, wherein it has been stated that Shri Kishan Singh Bhati, Male Nurse Gr. I. could not be granted permission to appear in the midwifery examination for the reason that there was no provision for male nurses to take midwifery training as per syllabus and regulations of Indian Nursing Council followed by Rajasthan Nursing Council. On the basis of the aforesaid documents to which reference has been made by Shri Mridul. it may be said that male nurses are not permitted to take training in Midwifery in Rajasthan. But on the basis of the aforesaid documents, it cannot be said that the same is the position in other parts of the country and that males are not allowed to take training in Midwifery in other States also. Moreover, even if it be assumed that males are not permitted to take training in midwifery and, therefore, they cannot be appointed on the post of Midwife and Auxiliary Nurse Midwife, we find that in so far as appointmen on the next higher post of Staff Nurse was concerned, the said appointment was to be made 75% by direct recruitment and 25% by promotion and the qualification for direct recruitment was P.N.R C. or its equivalent recognised by the Government. It is not disputed that both males as well as females can obtain the P.N.R.C. or its equivalent qualification because for the post of Compounder Gr II in group E, the appointment was to be made by promotion of Compounder Gr. III and the qualification that was prescribed was P.N.R.C. or its equivalent qualification recognised by Government. This would show that males having P.N.R.C. or its equivalent qualification recognised by the Government were also eligible for appointment on the post of Staff Nurse against the 75% quota reserved for direct recruitment and once they were appointed as Staff Nurse, they could be appointed to the other higher posts in group E of the Schedule. Males were thus eligible for appointment to the posts in group A of the original Schedule and appointment to the said posts was not confined to females alone. Both the learned single Judges were, in our opinion, right in holding that the Rules did not exclude the appointment of males on the posts mentioned in group A of the Schedule and the said categorisation of groups A and E could not be held to be unconstitutional on the ground that it was based on sex alone. The argument of Shri Mridul that the Rules were violative of the provisions of Article 15 of the Constitution cannot, therefore, be accepted.

16. The question which next arises for consideration is as to whether the categorisation of Compounders Grades I, II and III separately under group E resulting in their being denied the right to be promoted to the higher posts of Assistant Matron, Matron Gr. II and Matron Gr. I (pe-designated as Assistant Nursing Superintendent, Nursing Superintendent Gr. II and Nursing Superindent Gr. I) was violative of the right to equality quaranteed under Articles 14 and 16 of the Constitution. In so far as Articles 14 and 16 are concerned, the law is well settled that there is no denial of equality unless the person who complains of discrimination is similarly situated with the person who is alleged to have been accorded a favourable treatment. If there are two separate and distinct classes the question of discrimination would arise only if persons falling within the same class are treated differently. No question of discrimination would, however, arise if persons falling in different classes are treated differently. In this context reference may be made to the recent decision of the Supreme court in Air India v. Nergesh Meerza 1982 (1) S.L.R. 117 wherein it has been land down that if equals and unequals are differently treated, no discrimination at all occurs JO as to amount to an infraction of Article 14 of the Constitution and that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. In the said case, the learned Judges have laid down that in order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:

(a) the nature, the mode and the manner of recruitment of a particular category from the very start

(b) the classifications of the particular category.

(c) the terms and conditions of service of the members of the category.

(d) the nature and character of the posts and promotional avenues.

(e) the special attributes that the particular categories possessed which are not to be found in other classes, and the like.

17. It is, therefore, necessary to consider as to whether on the date of the coining into force of the Rules, persons holding the post of Compounders Gr. I, II and III, who were grouped in group E of the schedule and the persons holding the posts of Staff Nurse, Sisters and Sisters Tutor falling in group A of the schedule, were similarly situated and constituted one class. The submission of Shri Mridul was that compounder Gr. I, II and III were, in fact, male-nurses and that all nurses, male as well as female, constituted one class discharging same functions and that the Rules by categorising Compounders Gr. I, Hand III, who were really male nurses, in a separate group 'E' and staff Nurses, Sisters and Sisters Tutors in a separate group 'A' and by denying to the Compounders falling in Group 'E' the right to promotion to higher posts of nursing in Group 'A' have arbitrarily discriminated between persons similarly situate and that there was no reasonable basis for the aforesaid classification of nurses into two groups only on the ground of their sex and that the said classification had no rational nexus with the object sought to be achieved by the Rules. The Additional Advocate General, on the other hand, has submitted that the posts of Compounder Gr. I, II and III were separate posts distinct from the posts of Staff Nurse and Sisters in the matter of qualification as well as pay and, therefore, it could not be said that on the date of the coming into force of the Rules, persnos holding post of Compounders as well as persons holding the posts of Staff Nurse and Sisters and Sister Tutor formed the same class and were persons similarly situate.

18. As regards pay it may be pointed out that initially there were four pay scales for the posts of Compounders. Compounders Gr. II were having the pay scale of Rs. 150-5-120, Compounders Gr. II were having the pay scale of Rs. 100-5-120, Compounders Gr. III were having the pay scale of Rs 80-4-100-5-120 and Compounders Gr IV were having the pay scale of Rs. 50-3-80. The pay scales were rationalised by the Rajasthan Civil Services (Rationalised Pay Scales) Rules, 1956 and there by the compounders were fixed in three grades. Compounders Gardes I and II were combined and fixed in the pay scale of Rs 100-5-150-8-190-10-250, Compounders Gr. III were fixed in the pay scale of Rs. 80-5-110-8-150 and compoundrs Gr. IV were fixed in the pay scale of Rs. 60-6-30-5-100 EB-5-130. The Pay scales were revised by the Rajasthan Civil Service (Revised pay) Rules 1961 which came into force with effect from 1st September, 1961. Under Revised pay Rules of 1961, Compounders Gr III and Auxiliary Nurse, Mid wife were fixed in the same pay scale No. 10 of Rs. 90-4-110EB-5-155-7/2-170, Compounder Gr. II was fixed in the pay scale No. 11 of Rs. 105-5-200. Staff Nurse was fixed in pay scale No. 14 of Rs. 130-5-155-10-235-20. Compounder Gr. I was fixed in pay scale No. 15 of Rs. 140-5-150-7/12-180-10-290. Sister and Sister Tutor were fixed in pay scale No. 17 of Rs. 170-10- 310-12 1/2-335. In Schedule III to the Revised Pay Rules of 1961, it was provided that for pay scale No. 11 of 105-5-20) for the post of Compounder in all the departments, it was necessary that they should be matriculate and should have certificate of training as well as experience prescribed by the Director of Medical and Health Services In respect of pay scale no. 10, i.e. Rs. 90-4-110EB-5-155-7 1/2-170, it was provided in the aforesaid Schedule that appointment in future to the post in the said grade should be of matriculate with such training or experience as may be directed by the appointing authority but an exception had been made in respect of qualified midwife. It would, thus be seen that on the date of coming into force of the Rules the same pay scale was prescribed for the posts of Compounder Gr. III & Auxiliary Nurse, Midwife but different pay scales were prescribed for the posts of Compounder Gr II, Staff Nurse, Compounder Gr. I and Sister and Sister Tutor.

19. In the matter of qualifications, the passing of the P.N.R.C. Examination or its equivalent was necessary for appointment on the post of Compounder Gr. 1 under the Rajasthan Civil Service ( Unified Pay Scales ) Rules, 1951. It appears that the educational and technical qualifications for the posts of Sister were the same as that of Compounder Gr. I because in his letter dated 29th May, 1954 addressed to all the Principal Medical and Health Officers, the Director of Medical and Health Services, Rajasthan, while dealing with the status of Compounder Gr. I, has observed that 'in view of the fact that the education and technical qualification and Grade of pay of both Compounders Grade I and that of Sisters are same, it is therefore, advisable that both of these categories of staff should be treated as on par and the work be distributed as far as possible in such a way that they are not subordinate to each other.' The learned Additional Advocate General has emphasised that Sisters possessed the special qualification in midwifery which was not possessed by Compounders and, therefore, the qualifications for the two posts were not the same. It is true that Compounders did not possess the special qualifications in midwifery which was possessed by Sisters and Staff Nurses but they could have special qualifications in other fields of nursing. In this context it would be relevant to refer to the letter dated 28th Sept. 1981 from the Secretary, Medical & Health Department, Government of Rajasthan to the General Secretary, Trained Nurses Association of India. New Delhi, wherein it has been stated that male nurses with special qualifications e.g. psychiatric nursing, nursing education, are usually posted in the respective speciality and that higher promotions to the posts of Sister-Tutor are given to those male nurses who are duly qualified or would qualify subject to vacancies that occur from time to time. Since Compounders were working as male nurses, a number of Compounders Gr. I, including the appellants in these appeals, were promoted as Sister-Tutor prior to the promulgation of the Rules. Schedule 'B' to the writ petition of appellant Shantilal Jain shows that male nurses Gr. I, have officiated on the higher posts of Nursing Superintendent Gr. I and Gr. II.

20. It can, therefore, be said that prior to the promulgation of the Rules, the post of Compounder Gr. I was at par with the post of Sister in the matter of qualifications (Educational and Technical) for appointment as well as the nature of duties that were performed by them and that Compounders Gr. I were eligible for promotion to higher posts of nursing administration. In the matter of pay, however, the pay scale for the post of Sister and Sister Tutor was higher than the pay scale for the post of Compounder Gr. I. The aforesaid difference in the pay scales appears to be the only reason for treating Compouders Gr. I in a category different from Sister and Sister Tutor in the Rules. Taking into cousideration the similarity in the qualifications for appointment and nature of duties performed by the Compounders Gr I and Sisters, we are of the opinion that difference in the pay scales was not such a factor as to deprive Compounders Gr. I the right to promotion to the higher posts in nursing administration. The Rules, in so far as they categorised Compounder Gr. I separately in group 'E' of the Schedule and denied to Compounder Gr. I the right to promotion to the higher posts of nursing administration viz, Assistant Matron (redesignated as Asstt. Nursing Superintendent), Matron Gr. II (redesignated as Nursing Superintendent Gr. II), and Matron Gr. I (redesignated as Nursing Superintendent Gr. I): arbitrarily picked out Compounders Gr. I for discriminatory treatment and thereby denied to Compounders Gr. I the fight to equality in the matter of employment.

21. The learned Additional Advocate General has sought to justify the aforesaid provisions in the Rules whereby Compounders Gr. 1 were denied the right to promotion to higher posts of nursing administration on the ground that special qualifications in midwifery is necessary for all nursing posts and since Compounders Gr. I do not possess the special qualification in midwifery they could not be promoted to the higher posts of nursing. We are unable to agree. Special qualification in midwifery is required for the purpose of maternity cases only. But maternity cases form only a small part of the patients undergoing treatment in the hospitals and special qualifications in midwifery is not required for other patients. In this regard it may be pointed out that under the original Schedule to the Rules a person having P.N.R.C. or its equivalent qualification recognised by Government was eligible for direct recruitment on the post of Staff Nurse and it was not necessary that he should be midwifery trained. Such a person on being appointed as Staff Nurse could be promoted to all the higher nursing posts enumerated in Group 'A' of the schedule. In other words, the absence of special qualification in midwifery would not preclude a person who was directly recruited as staff nurse being promoted to the higher posts. There is no reason why the same person should be denied this right if he, instead of joining as staff nurse, joined as Compounder Gr. III.

22. In so far as difference in the pay scales of Compounder Gr. I and Sisters is concerned it may be observed that the said difference was removed soon after the promulgation of the Rules. We may, therefore, take note of the developments which took place after the coming into force of the Rules. After the promulgation of the Rules the Rajasthan Civil Service Revised Pay Rules, 1961 were amended with effect from 1st April, 1967 by notification dated 24th August, 1967, As a result of the aforesaid amendments, the post of Matron Gr. I was redesigated as Nursing Superintendent Gr. I, the post of Matron Gr. II was redesignated as Nursing Superintendent Gr. II, Assistant Matron as Assistant Nursing Superintendent Sister Tutor was redesignated as Nursing Tutor, Compounders Gr. 1, II and III were redesignated as Male Nurses Gr. I, II and III with the note that only those Compounders would be designated as Male Nurses who had passed General Nursing course and the rest would be called Compounders. On 1st July, 1968, the Ranawat Pay Commission submitted its report on the question of revision of pay scales of Government employees and in the said report, the Ranawat Pay Commission recommended that Midwife and Male Nurse Gr, III should be placed in pay Scale of Rs. 110-200, Staff Nurse and Male Nurse Gr. II be placed in same pay scale of Rs. 130-320 and sister/sisters Tutor and Male Nurse Gr. I may be placed in the same pay scale of Rs. 170-390. The Ranawat Pay Commission recommended a special pay of Rs. 20/- for Sister Tutor. On the basis of the recommendations of the Ranawat Pay Commission, the Rajasthan Civil Services (New Pay Scale) Rules, 1969 were promulgated. The said Rules came into force from 1st September, 1968. In the aforesaid Rules, Midwife and Male Nurse Gr. III were placed in pay scale No. 7 Rs. 110-230, Staff Nurse and Male Nurse Gr. II were placed in pay scale No. 10. Rs 150-330, and Sister/Sisters Tutor and Male Nurse Gr. I were placed in pay scale no 12 Rs. 170-390. As noticed earlier, by notification dated 25th July, 1975, the Rules were amended and the expressions Matron Gr. I, Matron Gr. II, Assistant Matron and Sister Tutor in the Schedule of the Rules redesignated as Nursing Superintendent Gr. I, Nursing Superintendent Gr II, Assistant Nursing Superintendent and Nursing Tutor respectively. The aforesaid amendments in the Rules were brought into force with effect from 1st April, 1967, the date with effect from which the amendments in the Rajasthan Service Revised Pay Rules, 1961 and had been brought into effect. The only distinction between the aforesaid two amendments was that by the amendments that were made in the Rajasthan Civil Service Revised Pay Rules, 1961 by notification dated 24th August, 1967 the posts of Compounder Gr. I, II and III were redesignated as Male Nurse Gr. I, II and III respectively but similar redesignation of these posts was not made by the amendments that were introduced in the Rules by notification dated 25 July, 1975.

23. The aforesaid developments shows that in so far as the pay scale Rules were concerned, the Compounders Gr. I, II & III were redesignated as Male Nurse Gr. I, II & III provided they had passed the General Nursing Course and further that as a result of the Rajasthan Civil Service (New Pay Scale) Rules, 1969, which came into force with effect from 1st September, 1968, the pay scale of Compounder Gr. II (redesignated as Male Nurse Gr. II) was brought at par with that of Staff Nurse and the pay scale of Compounder Gr. I (redsignated as Male Nurse Gr. I) was brought at par with that of Sister Tutor. The aforesaid Rules came into effect from 1st September, 1968. It can, thus, be said that after 1st September, 1968, the post of Compounder Gr. II (redesignated as Male Nurse Gr. II under the Pay Scale Rules) was at par with those of Staff Nurse and the post of Compounder Gr. I (redesignated as Male Nurse Gr. I under the Pay Scale Rules) was at par with the post of Sister and Sister Tutor).

24. Thus even if there was any justification for treating Compounder Gr. I in a manner different from Sister in the matter of promotion to the higher post on ground that the pay scale of Sisters were higher than those of Compounders Gr. I the said justification ceased to be available after 1st September, 1968 when the pay scale of both these posts were equated and thereafter there could be no justification for the denial to Compounders Gr. I of the right of promotion to higher posts of Assistant Nursing Superintendend, Nursing Superintendent Gr. II and Nursing Superintendent Gr. I. The Rules in so far as they provided for such a denial of the right of promotion to Compounders Gr. I were violative of the right to equality of opportunity in the matter of employment guaranteed Under Articles 14 and 16 of the Constitution and the appellants in both these appeals who were confirmed Compounder Gr. I, which post was equivalent to the post of Sister/Sister Tutor, were entitled to promotion to the higher posts of Assistant Nursing Superintendent Gr. I.

25. The question which next arises for consideration is as to the relief which may be granted to the appellants. As noticed earlier, the Rules have been amended by notification dated 3rd June, 1982 and as a result of the aforesaid an endment, the vice of hostile discrimination against the male nursing staff viz. Compounders contained in the Rules, as originally framed, has been removed. In view of the aforesaid amendment the relief regarding striking down of the provisions of the Rules on the ground of violation of the provisions of Articles 14 and 16 of the Constitution cannot be granted. The appellants can, however, seek a declaration that as Compounders Gr. I they were entitled to be treated at par with sisters in the matter of promotion to the higher posts of Assistant Nursing Superintendent, Nursing Superintendent Gr. II and Nursing Superintendent Gr. I and that the denial of promotion to the appellants on these posts on the basis of the Rules, as originally framed, was wrongful and in disregard of the right of the appellants guaranteed Under Articles 14 and 16 of the Constitution. The aforesaid denial of their rights of the appellants Under Articles 14 & 16 the Constitution commenced when the Rules were promulgated in the year 1965. The appellants did not approach this Court for the redress of their grievance immediately after the promulgation of the Rules, Banshilal, the appellant in Special Appeal No. 14/75 moved (his Court on 24th February, 1971 and Shantilal, the appellant in Special Appeal No. 43/78 moved this Court on 19th April, 1978. During this period a number of persons had been promoted in accord-lance with the provisions of the Rules, as originally framed. In our opinion, the appellants, in view of their conduct in not moving this Court with due deligence, cannot be permitted to challenge the validity of the action that Was taken before they approached this Court and they can only be granted relief with effect from the date they approached this Court. This would mean that each of the two appellants would be entitled to be considered for promotion to the post of Assistant Nursing Superintendent on the substantive vacancies existing on the date of the filing of the writ petition by him and the substantive vacancies on the said post which occurred during the pendency of writ petition and the special appeal in this Court.

26. In the result, the Special Appeal No. 14/75 is allowed to this extent that the appellant would be entitled to be considered for promotion to the post of Assistant Nursing Superintendent against the substantive vacancies on the said post of Assistant Nursing Superintendent existing on 24th February, 1971 and the substantive vacancies which occurred on the said post of Assistant Nursing Superintendent during the pendency of the writ petition and the special appeal in this Court and in case the said appellant is found suitable for promotion to the post of Assistant Nursing Superintendent, he would be entitled to be further considered for promotion to the higher posts of Nursing Superintendent Gr. II and Nursing Superintendent Gr. I if he was otherwise qualified and eligible on the relevant date. Similarly Special Appeal No. 43/78 is allowed to the extent that the appellant would be entitled to be considered for promotion to the post of Assistant Nursing Superintendent against the substantive vacancies on the post of Assistant Nursing Superintendent existing on 19th April, 1978 and the substantive vacancies which occurred on the said post of Assistant Nursing Superintendent during the pendency of the writ petition and the special appeal in this Court and in case he is selected for promotion to the post of Assistant Nursing Superintendent, he would be further entitled to be considered for the higher posts of Nursing Superintendent Gr. II and I if he was otherwise qualified and eligible on the relevants date. Both the aforesaid appellants would be entitled to all the consequential benefits, which may accrue to them as a result of their promotion to the higher posts. Taking into consideration the facts and circumstances of the case, there will be no order as to costs.


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