Hulas Dadel, Wife of Mr. Anmol Khalkho, resident of at Kadru Anand Vihar, Behind v. 1. The State of Jharkhand. 2. The Principal Secretary, Department of Health, Medical Education
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1954 of 2022 ------- Hulas Dadel, Wife of Mr. Anmol Khalkho, resident of at Kadru Anand Vihar, Behind FCI Godwon, P.O.-Doranda, P.S. Argora, District-Ranchi. ..… Petitioner Versus 1. The State of Jharkhand. 2. The Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, At-Nepal House, P.O. & P.S. Doranda, District-Ranchi. 3. The Director in Chief, Health Services, Government of Jharkhand, having its office at Namkom, P.O. & P.S. Namkom, District-Ranchi. 4. Shyamli, Colony, P.O. & P.S. Doranda, District-Ranchi. 5. Bariatu, District-Ranchi. 6. P.O. & P.S. Bariatu, District-Ranchi. The Director, RIMS, Ranchi, at Bariatu, P.O. & P.S. The Superintendent, RIMS, Ranchi, at Bariatu, The Accountant General (A &E), Jharkhand, At- ..… Respondents ------- CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN ------- : Mr. Abhijeet Kr. Singh, Adv For the Petitioner For the Respondents : Dr. Ashok Kr. Singh, Adv. For the Resp.-State : Mr. Mithilesh Singh, G.A.-IV ------- 05/31.07.2024 Heard learned counsel for the parties. 2. The instant writ petition has been preferred by the petitioner for following relief(s): (i) For quashing of the order contained in memo no. 157(25) dated 31.01.2022 (Annexure-8) passed by Director in Chief, Health Services, Government of Jharkhand whereby and where under her claim for fixation of her salary in the light of Jharkhand Nursing Cadre Appointment, Promotion and Service Condition Rules 2012 (herein referred as Rules) issued vide notification dated 20.07.2012 has been rejected on the ground that the same is not applicable for the order issued prior to issuance of the Rule as the same shows non application of mind because the petitioner has retired from her post on 30.09.2014 and other similarly situated person has been granted this benefit. (ii) For a direction upon the respondents to consider the claim of petitioner for fixation of her salary in the light of Jharkhand Nursing Cadre Appointment, Promotion and Service Condition Rules 2012 (herein referred as Rules 2012) 1 issued vide notification dated 20.07.2012 and accordingly fix her salary as stipulated in the aforesaid rules as the petitioner had retired from post of Senior Matron (Nursing Superintendent), RIMS, Ranchi but the pay scale as per her entitlement has not been given to her. (iii) For further direction upon the respondents to re calculate the arrears of salary and retiral dues after fixing her pay in appropriate grade pay. (iv) For a direction upon the respondents to immediately and forthwith grant the monetary benefits of 3rd M.A.C.P. as it is admitted position that the petitioner has been given benefits of 3rd M.A.C.P. but monetary benefits have not been given to her till date. 3. The brief facts of the case as enumerated in the instant writ application are that the petitioner had been appointed on the post of Staff Nurse Grade-A, after following due process of law on 23.11.1978 and she was given posting at Itki Sanatorium, Itki, Ranchi. After successfully completing her training course, she had been promoted and posted on the post of Junior Sister Tutor on 26.05.1987 and she had given her joining on 13.06.1987. In the year 2010, the petitioner had been granted promotion on the post of Senior Sister Tutor. Thereafter, the petitioner was given promotion on the post of Senior Matron (Nursing Superintendent), RIMS, Ranchi vide memo no. 328(iv) dated 26.05.2010. 4. In the year 2012, the State of Jharkhand by power conferred under proviso of Article 309 of Constitution of India had Promulgated Jharkhand Nursing Cadre Appointment, Promotion and Service Condition Rules, 2012 (hereinafter referred as Rules 2012 for sake of brevity) and the same was notified vide notification dated 20.07.2012. As per the Rules 2012 the post of Senior Matron carries pay scale of P.B.-3-15600-39100 and Grade Pay of 6600/-. Further, vide memo no. 1268 (26) dated 06.07.2017 2 it has been decided that in the light of Rules 2012, Staff Nurse Grade "A" will be given Grade pay of Rs. 4600/- as provided in Rules 2012. 5. The case of the petitioner is that one similarly situated person namely Neelima Runda who was posted on the post of Senior Matron (Nursing Superintendent) in RIMS, Ranchi had been given benefit of pay scale as stipulated in 2012 Rules by issuance of Memo no. 1626(26) dated 30.08.2017 and Memo no. 6290 dated 11.09.2017. Further case of the petitioner is that on attaining the age of superannuation she retired from the post of Senior Matron (Nursing Superintendent) RIMS, Ranchi w.e.f. 30.09.2014. As the benefits of Rules 2012 has not been granted to the petitioner, she earlier approached this Court by preferring a writ petition being W.P.(S) No.-5199/2019 which was disposed of vide order dated 02.12.2020 directing the respondents to consider her claim in accordance with law. The respondents have rejected the claim of the petitioner by passing an order contained in memo no. 157(25) dated 31.01.2022, and thus she has again approached this Court for quashing of memo no. 157 (25) dated 31.02.2022 and for consequential benefits. 6. Learned Counsel for the petitioner submits that the benefits of pay as provided in the Rule is uniformly applicable to all person working in the cadre. He further submits that petitioner cannot be denied the benefits of the pay merely on the ground that she has been promoted on the post of Senior Matron (Nursing Superintendent) earlier to issuance of notification. It has been further submitted that the Rules have 3 come in effect in the year 2012 and she remained in service till 30.09.2014 therefore, she is entitled for getting the benefits of the pay provided in Rules 2012. Learned Counsel for petitioner placed reliance upon the Judgment passed in the case of Amarendra Kumar Mohapatra & Ors. v. State of Orissa & Ors. reported in (2014) 4 SCC 583 wherein the Hon’ble Apex Court at 52 and 53 has held as under. "52. The approach to be adopted and the principles applicable to any forensic exercise aimed at examining the validity of a legislation on the touchstone of Article 14 of the Constitution have been long since settled by several decisions of this Court. Restatement or repetition of those principles was, therefore, considered platitudinous. The real difficulty as often acknowledged by this Court lies not in stating the principles applicable but in applying them to varying fact situations that come up for consideration. Trite it is to say at the outset that a piece of legislation carries with it a presumption of constitutional validity. Also settled by now is the principle that Article 14 does not forbid reasonable classification. A classification is valid on the anvil of Article 14. if the same is reasonable that is it is based on a reasonable and rational differentia and has a nexus with the object sought to be achieved.
Legal Reasoning
53. A comprehensive review of the law is. in our opinion, unnecessary at this stage in view of the Constitution Bench decision of this Court in Re: The Special Courts Bill, 1978 (1979) 1 SCC 380 where this Court undertook that exercise and noticed as many as thirteen propositions that bear relevance to any forensic determination of the validity of a law by reference to the equality clause enshrined in Article 14 of the Constitution. Some of those principles were stated by this Court in the following words: “(1) *** (2) The State, in the exercise of its governmental power, has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its large powers of policies, and distinguishing and classifying persons or things to be subjected to such laws. it must possess for that purpose (3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the Validity of classification in any given case. Classification is justified if it is not palpably arbitrary. (4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them 4 irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. (5) By the process of classification, the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject. This power, no doubt, in some degree is likely to produce some inequality: but if a law deals with the liberties of a number of well defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily. (6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. (7) The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. them. In short, while Article 14 (8) The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense abovementioned. (11) Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. It has been further submitted that in the facts of present case, reason assigned by respondents that petitioner had been promoted on the post of Senior Matron (Nursing Superintendent), RIMS prior to the enactment of 5 Rule 2012 is not tenable in the eyes of law as it makes classification among the persons working in same cadre. It is next submitted that the petitioner being member of the same cadre at the relevant time was entitled for benefits of pay provided under Rule 2012 and she cannot be deprived of the same benefits. 7. Learned counsel for the respondent-State submits that the petitioner has already been granted promotion on the post of Senior Matron by issuance of memo no. 328 (iv) dated 26.05.2010, therefore she cannot be given benefits of Rules 2012 which came in effect subsequent to her assuming the charge of Senior Matron. Learned Counsel further submits that the case of petitioner is not similar to the case of Nilima Runda who was promoted on the post of Nursing Superintendent on 11.09.2017 when 2012 Rules were in effect while by that time the petitioner has superannuated from her service. On the basis of the averments made in counter affidavit he contended that the case of petitioner is not similar to the case of Nilima Runda and benefits of the pay cannot be extended to the petitioner. Therefore, the claim of petitioner for grant of pay provided in 2012 Rules has rightly been rejected by passing the impugned order contained in memo no. 157 (129) dated 31.01.2022. 8. Having heard learned counsel for the parties and after going through the documents available and the respective affidavits, the facts of the case is that the Department of Health, Medical Education and Family Welfare, Government of Jharkhand has notified Jharkhand Nursing Cadre (Appointment, Promotion & other Service 6 Condition) Rules 2012. The Rules 2012 was made effective from 20.07.2012. It provides for grant of certain pay bands and grade pay to different posts of the nursing cadre. It is also not disputed that the benefits of the Rules have been granted to the subsequent person working on the post of Senior Matron (Nursing Superintendent) in RIMS. It is also an admitted position that the petitioner worked on the post of Nursing Superintendent till 30.09.2014 while Rules 2012 came into effect on 20.07.2012. 9. The reason assigned for rejecting the claim of petitioner for same benefits is that she had been promoted on the post of Nursing Superintendent in year 2010 when the Rules were not in effect and therefore, she cannot be granted the benefits of pay as provided in Rules 2012. The reason assigned by the respondents for rejecting the claim of petitioner is not sustainable because the Rules came in effect on 20.07.2012 when the petitioner was in service. Further the Rules do not provide that it will applicable only for those persons who will get promotion subsequent to the date of implementing the Rules. 10. The reasons assigned by the respondents’ amounts to making classification. Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. However, the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the Act. 7 11. The other reason explained in the counter affidavit that the Jharkhand Nurses Cadre (Appointment, Promotion & other service Condition) Rules 2019 was notified vide memo no. 13(21) dated 18.02.2019 and Rule 2012 was repealed by this Rule. This stand of the respondents is not tenable in the eyes of law because the benefits of Rule 2012 have already been granted to other persons. No reason has been shown in the impugned order for justifying the classification. 12. In the light of the above discussion, it is evident that the reason assigned in the impugned order rejecting the claim of petitioner is unreasonable and unjustified and has no legs to stand in the eye of law. Accordingly, the impugned order as contained in memo no. 157(25) dated 31.01.2022 (Annexure-8) passed by Director in Chief, Health Services, Government of Jharkhand whereby the claim for fixation of petitioner’s salary in the light of Jharkhand Nursing Cadre Appointment, Promotion and Service Condition Rules 2012 issued vide notification dated 20.07.2012, is hereby, quashed and set-aside. The respondents are directed to consider the claim of the petitioner afresh and pass an appropriate order in the light of observation and discussion made hereinabove within a period of 12 weeks. 13. So far as the prayer of petitioner for grant of monetary benefits of 3rd M.A.C.P. is concerned, Dr. Ashok Kumar Singh, learned Counsel for RIMS referring to para 5, 6 and 7 of the counter affidavit submits that the service book, C.R. details of the petitioner have been sent to Director-in-Chief Health Services for fixation of salary and 8 other emoluments of petitioner. If found to be payable, respondent- RIMS would take steps to make payment of the 3rd MACP amount after the service book of the petitioner is returned to RIMS from the office of Respondent no.-3 herein. 14. In view of the aforesaid submission of learned counsel, respondent no.-3 is directed to finalize the process and issue necessary order within a period of 6 weeks from the date of receipt of copy of this order. On receipt of necessary order and required documents as mentioned above, Director RIMS would ensure payment of admissible amount, within a further period of 6 weeks. 15. Accordingly, the instant writ petition stands disposed of in terms of the observation and direction made hereinabove. (Deepak Roshan, J.) Amardeep/- AFR/ 9