Holding

Nursing Assistants, who lack the educational qualifications and experience required for appointment as Staff Nurses, are not entitled to the Nursing Allowance at par with Staff Nurses.

Summary

The case concerned Nursing Assistants employed by the Border Security Force who were paid a Hospital Patient Care Allowance and claimed entitlement to the Nursing Allowance granted to Staff Nurses. A single judge of the Gauhati High Court allowed the claim, holding that the duties performed were similar and that educational qualification could not be a ground for denial. The Union of India appealed, and the Division Bench dismissed the appeal, prompting a further appeal to the Supreme Court. The Supreme Court examined precedents that permit classification of posts and pay based on educational qualifications, experience and nature of duties, and held that the Nursing Assistants lack the requisite qualifications and experience of a Staff Nurse. Consequently, the Court found the High Court’s decision erroneous, quashed it, dismissed the original writ petition, and allowed the appeal without costs.

Issues considered

Whether the difference in educational qualifications between Nursing Assistants and Staff Nurses precludes entitlement to Nursing Allowance at par.
Whether classification of posts for pay allowances can be based on educational qualifications, experience and nature of duties under service law.
Whether the High Court erred in holding that educational qualification cannot be a ground for denial of Nursing Allowance.

Subjects

Nursing AllowanceService LawPay Scale ClassificationEducational QualificationEquality before lawAdministrative Law

Judgment

[2023] 1 S.C.R. 1009 1009

THE UNION OF INDIA & ORS. A
v.
RAJIB KHAN & ORS.
(Civil Appeal No. 172 of 2023)
JANUARY 16, 2023 B
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Service Law – Entitlement to Nursing allowance – Respondents
were working as Nursing Assistants in BSF and were paid “Hospital
Patient care Allowance” – Respondents claimed to be entitled to
C
“Nursing Allowance” at par with Staff Nurses – Single Judge of
the High Court held that similar duties performed by Staff Nurses
& Nursing Assistants, thus respondents are entitled to Nursing
allowance – It also held that educational qualification cannot be a
ground for denial of Nursing Allowance – Division Bench of the
High Court dismissed the appeal preferred by the appellant-Union D
of India – On appeal, held: 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
E
qualification – Under the circumstances, the High Court has
committed a serious error in holding and directing that the Nursing
Assistants serving in the BSF are entitled to Nursing Allowance at
par with the Staff Nurses.
Allowing the appeal, the Court
F
HELD: 1. 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 G
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. [Para
5][1013-G-H; 1014-A-B]
H
1009
1010 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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; Secretary Department of
Personnel Public Grievances & Pension & Anr. Versus
B
T.V.L.N. Mallikarjuna Rao, (2015) 3 SCC 653: [2014]
13 SCR149 – referred to.
Case Law Reference
(2021) 8 SCC 784 referred to Para 2.4
C (2019) 10 SCC 674 referred to Para 2.4
[2014] 13 SCR 149 referred to Para 2.4
CIVIL APPELLATE JURISDICTION : Civil Appeal No.172 of
2023.
From the Judgment and Order dated 02.11.2021 of the High Court
D of Gauhati at Guwahati in W.A No. 305/2021.
Ms. Madhavi Divan, ASG, Arvind Kumar Sharma, Adv. for the
Appellants.
Omanakuttan K. K., Adv. for the Respondents.
The Judgment of the Court was delivered by
E 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
F interfering with the judgment and order passed by the learned Single
Judge allowing the writ petition and holding that the original 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
G
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
H was opposed by the appellants containing inter alia that they are being
THE UNION OF INDIA & ORS. V. RAJIB KHAN & ORS. 1011
[M. R. SHAH, J.]

paid the special allowance known as ‘Hospital Patient Care Allowance’ A
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
B
educational 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 C
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 D
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 E
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 F
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. G
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 H
1012 SUPREME COURT REPORTS [2023] 1 S.C.R.

A permissible based upon educational qualifications, experience 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
B
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.

C 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.
D
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
E 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.
F
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?
G
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
H
THE UNION OF INDIA & ORS. V. RAJIB KHAN & ORS. 1013
[M. R. SHAH, J.]

Cooperative Milk Producers Federation Limited (supra), Pramod A
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 B
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 Entry Operators, Grade B and the order
assigning duties, the classification of Data Entry Operators in different C
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 D
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 E
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 qualification
for grant of higher pay scale to a trained person or a person possessing F
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 G
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
H
1014 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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.
6. In view of the above and for the reason stated above present
B 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.
C 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.

Ankit Gyan Appeal allowed.
(Assisted by : Abhishek Pratap Singh and Aarsh Choudhary, LCRAs)
D

E

F

G

H