Delhi High Court
Sunil Kumar vs Uoi And Ors. on 21 September, 2015
Author: S.Ravindra Bhat
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 19.08.2015
Pronounced on: 21.09.2015
+ W.P.(C) 1358/2014
SUNIL KUMAR ..... Petitioner
versus
UOI AND ORS. ..... Respondents
+ W.P.(C) 3829/2014, C.M. NO.4627/2015
KIRAN NONIWAL AND ORS. ..... Petitioners
versus
UOI AND ORS. ..... Respondents
Through : Ms. Rekha Palli, Sr. Advocate with Ms.
Shruti Munjal, Ms. Ankita Patnaik and Ms.
Garima Sachdeva, Advocates, for petitioners in
W.P.(C) 1358/2014.
Ms. Tamali Wad with Sh. Vaibhav Sharma,
Advocates, for petitioners in W.P.(C) 3829/2014.
Sh. Rajesh Gogna, CGSC with Ms. L. Gangmei,
Advocate, for the respondents.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT
%
1. In these two writ petitions, identical reliefs are sought: in W.P.(C)
1358/2014, the petitioners, working as Combatised Staff Nurses (holding the
rank of Sub-Inspector [SI]) seek parity of pay with Non-Combatised Staff
Nurses. In W.P.(C) 3829/2014, the petitioners seek similar relief in the form
of parity with Nursing Sister, in the grade pay of `4600/- (PB-2) in the pay
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 1
scale of `9300/-34800/- of the Indo Tibetan Border Police Force (ITBP) in
the case of all petitioners, except Petitioner Nos. 10,12,18,19 and 20- in the
case of the latter, they seek the grade pay of `4800/-. The ITBP Petitioners
are also working as Nurses. Both complain that their employers have acted
arbitrarily in denying them a normal replacement scale pertaining to
Category S-10 after the Central Civil Services (Revised Pay) Rules, 2008,
(2008 Rules) by granting them a lower grade. They say that given the
arduous nature of their duties of Staff Nurses entitles them to be placed in
Pay Band-2 with Grade Pay of `4600/- and Nursing Sisters drawing `5500-
9000 to be placed in Pay Band-2 with Grade Pay of `4800/-.
2. The CRPF has both Combatised and Non-Combatised Staff Nurses.
Before 01.01.2006 both categories of Nurses were being paid „Nursing
Allowance‟ at the rate applicable to Nursing personnel of Central
Government Hospitals. Then, Combatised Staff Nurses like the Petitioners
were drawing a higher pay in the scale of `5500-175-9000/- while their
Non-Combatised counterparts, i.e. Staff Nurses in CRPF were placed in a
slightly lower pay scale of `5000-150-8000/-. The Petitioners rely on the
extracts of Paras 1.2.18, 3.6.16, 3.8.1, 3.8.3(e) and 3.8.15 of VIth Central
Pay Commission (hereafter VIth PC) Report. The Petitioners explain that
differential pay whereby combatised nurses were given slightly higher pay is
because they were trained for handling arms and they are expected to
maintain high standards of physical fitness and are posted in field areas, as
compared with non-combatised staff nurses.
3. It is argued that after implementation of the 2008 Rules, all Staff
Nurses in CRPF were given the normal replacement scale in terms of the
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 2
special recommendations for Nursing Staff. This led to representations by all
staff nurses. The third respondent by order dated 18.06.2010 enhanced the
pay of only Non-Combatised Staff. Combatised Staff Nurses were informed
that the matter was still under consideration. By a letter dated 10.09.2013
the CRPF Petitioners were informed that pay of only Non-Combatised Staff
Nurses working in CRPF had been enhanced.
Petitioner's Contentions
4. Counsel for the CRPF staff nurses submitted that granting revision
and pay relief in accord with the VIth PC recommendations only to Non-
Combatised staff nurses, while denying it to Combatised stafff nurses is
discriminatory. Stressing that before the report and recommendations as well
as the 2008 Rules, in fact the Combatised staff nurses were given slightly
higher pay, it was urged that denying parity was indefensible. At the very
outset it should be noted that in writ petition, in line with the position as it
existed before the 2008 Rules, the petitioners prayed for the upgraded pay-
scale of `7500-12000 and Grade Pay of `4800, however in the course of
their arguments limited the relief prayed for to a Grade Pay of `4600, the
same as that of Non-Combatised staff nurses under the VIth PC. Ms. Rekha
Palli, learned senior counsel relied upon recommendations of the VIth PC
report and urged that if the Central Government felt that there was a need to
depart from it, vis-a-vis combatised nurses, some reasons germane to the
subject had to be forthcoming. Learned senior counsel emphasized that
combatised staff nurses are made to face more hardship and are required to
discharge responsibilities under more arduous conditions than non-
combatised nurses. In addition, they have to undergo arms training and bear
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 3
arms whenever required. These features have remained unchanged.
Therefore, denying parity with non-combatised staff nurses, is unjustified
and discriminatory.
5. The CRPF petitioners argue that the Respondents have not denied the
fact that prior to 01.01.2006, Combatised Staff Nurses working in CRPF
were drawing higher pay than the Non-Combatised Staff Nurses working in
CRPF and, therefore, there is no justification to now bring down their pay
scale and status vis-a-vis the Non-Combatised Staff Nurses in CRPF,
especially when VIth PC has specifically recommended a higher pay
structure for Nursing and Para-medical staff.
6. It is submitted that the comparison of SI/Staff Nurses with SI/GD is
even otherwise not justified as not only their qualifications but even their
promotional prospects are totally different. It is submitted that the SI/GD are
able to earn their promotion as Inspector in 4-6 years whereas a SI/Staff
Nurse gets a promotion after more than 18 years. It is submitted that the
petitioners are entitled to receive pay in accordance with the specific
recommendations of VIth CPC for Nursing Staff and it is, therefore, prayed
the Writ Petition be allowed with costs.
7. The ITBP Petitioners, are 20 in number. Petitioner Nos.1 to 19 were
directly recruited as Sub-Inspector (Nurse) in ITBP on various dates during
the years 2006 to 2011 while the Petitioner no.20 was directly recruited as
Subedar/lnspector (Staff Nurse) on 23.09.1997.Amongst the Petitioner nos.
1 to 19, four of them viz the Petitioner no. 10, 12, 18 & 19 were recently
promoted as Inspector (Staff Nurse) during 2013-14. Initial induction of
Nurses through direct recruitment in the ITBP is only at the level of Sub-
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 4
Inspector (Staff Nurse) presently classified as a General Central Service,
Group B, Non gazetted non ministerial post. It is governed by the pay scales
of the 6th Pay Commission and was fixed in PB-2 in the scale of `9300-
34800 plus Grade pay of `4200 w.e.f 1.1.2006. The immediate next post on
promotion is that of Inspector (Staff Nurse) which is also classified as a
General Central Service, Group B, Gazetted non ministerial post and has
been fixed in PB-2 in the scale of `9300-34800 plus Grade pay of `4600/-
w.e.f 1.1.2006.
8. It is submitted by Ms. Tamali Wad, learned counsel that with
implementation of the 5th CPC and rationalization of pay scales w.e.f
10.10.1997, the rank of Subedar/ Inspector was placed in the revised pay
scale of ` 6500-10500/-. In terms of ITBP order dated 06.03.1998 the post
of Staff nurse in the pre revised scale of `1400-2600/- as well as the
promotional post of Nursing sister in pre revised scale of `1640-2900/-
being in the rank of Subedar/lnspector were both placed in the revised pay
scale of `6500-10500/- (fifth CPC). As a consequence of this upgradatlon
the revised pay of the Petitioner No.20 was fixed in the scale of `6500-
10500/-. It is further submitted that on 29th March 2004 the Respondent
No.1 issued an order directing that henceforth direct induction of Nurses in
the Combatised posts of Para-medical staff in the Central Police Forces
would be in the rank of Sub-Inspector in the pay scale of `5500-9000/-(5th
CPC).
9. The ITBP Petitioners‟ grievance is that in the light of a Central
Government order dated 31.03.2009, a Staff Nurse employed in the Central
Government Hospital was placed in PB-2 in the revised scale of `9300-
34800 plus Grade pay of `4600 w.e.f 1.1.2006. So far as the ITBP is
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 5
concerned the pay of the Petitioners no.1 to 19 was revised in PB-2 `9300-
34800 but with lower Grade pay of `4200. Resultantly the pay of the said
Petitioners w.e.f 1.1.2006 has been wrongly fixed at the minimum of the pay
band i.e. at `9300 Instead of `12,540/- as directed by the Union Ministry of
Health & Family Affairs. Further in so far as Nursing Sisters under the
Central Government is concerned, their pay (`5500-9000/- pre- revised) has
been revised in `9300-34800 plus Grade pay of `4800/- but in case of the
Petitioner no.20 her pay has also been wrongly fixed by the ITBP in the
revised scale of `9300-34800 plus Grade pay of `4600/- instead of grade
pay `4800/-. The ITBP Petitioners, like the CRPF Petitioners, rely on the
recommendations of the fifth Pay commission, in support of their claim.
These petitioners argue that nursing staff in the other departments, notably
in the Ministry of Health and Family Welfare, have been fixed in the pay-
scale of `9300-34800 plus Grade pay of `4600/- whereas in their cases, the
grade pay is `4200/-. Besides, Nursing Sisters (who are equiavalent to SI
grade) draw `4800/- grade pay in the Central Government, whereas in the
ITBP it is `4600/-.
Respondents' contentions
10. The CRPF- the main respondent in W.P.(C) 1358/2014 does not deny
that the Union Government approved revised pay structure of nursing and
para-medical staff in terms of recommendations of VIth PC. It also admits
that a higher scale was sanctioned for Non-Combatised Nursing Cadre in
CRPF by order dated 18.06.2010. However the CRPF relies on a letter dated
25.08.2009 issued by second respondent to contend that review pay
band/scale of Sub-Inspector of all categories including LM/Radio
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 6
Grapher/Physio/Blood Bank Tech/Staff Nurse/Pharma OS(Non-
Combatised)/Ward Sister (Non-Combatised)/Sr. Pharma was notified as the
normal replacement applicable to category S-10.
11. Mr. Rajesh Gogna, learned standing counsel for the Union, argued
that parity in pay cannot be insisted upon merely because of identity of
nomenclature of the post. In this context, it was argued that unlike the cadre
structure of nursing staff in other departments of the Central Government,
that of the CRPF is based on its specific rules and regulations; an entirely
different hierarchy of posts is in place. It is also emphasised that there is lack
of parity as between Combatised and Non-Combatised staff nurses. Whereas
the first class is entitled to 60 days leave annually, the latter, i.e Non-
Combatised staff nurses are permitted only half that time as leave.
Furthermore, as Combatised personnel, Combatised staff nurses are entitled
to other allowances which Non-Combatised personnel are not entitled to.
CRPF also submits that there is no comparison between Combatised nursing
staff and Non-Combatised nursing staff. The latter do not enjoy several
privileges which the former get, on account of being Combatised staff.
12. As regards ITBP, Mr. Gogna contended that extension of pay-scales
in other departments of the Central Government cannot be a ground for
saying that nursing staff in the force should necessarily have parity. Here, it
is emphasized that the nursing staff enjoy a nursing allowance of `3200/-.
Furthermore, there is no comparison between nursing staff of ITBP and
combatised staff, such as those in General Duty. It is argued that the latter
work under more onerous conditions and have to bear arms which is the
reason their pay scales, grade pay etc are different. Nursing staff, on the
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 7
other hand, work mostly in static postings.
13. The ITBP argues that by a Gazette notification dated 09.07.2010, the
Central Government notified the ITBP Force Para-Medical Care (Group
A,B,C Posts) Recruitment Rules, 2010. In supersession of all previous
Recruitment Rules in respect of the Nursing and Paramedic staff of ITBP
whereby Initial Induction by direct entry is in the post of Sub-Inspector
(Staff Nurse) which is now classified as a General Central Service Group
'B'(Non Gazetted) Non Ministerial post and is placed in PB-2, `9300- 34800
plus grade pay `4200/-. The next post viz Inspector (Staff Nurse) classified
as a General Central Service Group „B‟Non (Gazetted) Non Ministerial post,
to be filed up entirely through promotion from the feeder level of Sub
lnspector ( Staff Nurse) with 5 years regular service, has been placed in PB-
2, `9300-34800 plus grade pay `4600 /-.
Analysis and Reasoning
14. Before proceeding to analyze the relative merits of the parties‟
contentions, it would be necessary to notice the recommendations of the
Sixth Central Pay Commission. The relevant extracts are as follows:
"Upgradation of certain categories
1.2.18 The Commission has recommended upgradation of
certain specific categories like Nurses, Teachers, Constabulary
and Postmen keeping in view the important functions being
discharged by these categories. Parity between field offices and
secretariat has been proposed as, in Commission's view, equal
emphasis has to be given to the field offices in order to ensure
better delivery.
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 8
************* ***************
Nursing allowance
3.6.16 Nurses are presently given nursing allowance at
the rate of Rs.1600 pm. In consonance with the general factor
used for revising the rates of various allowances, the
Commission recommends doubling of the rate of this allowance
to Rs.3200 pm. The rate of this allowance shall be increased by
25% whenever DA payable on revised pay scales crosses 50%.
This allowance should be paid to all the nurses whether
working in dispensaries or in hospitals. This is necessary
because nurses in CHS are already paid nursing allowance
irrespective of whether they are deployed in hospitals or
dispensaries. A similar dispensation, therefore, needs to be
extended to the nursing staff working in other organizations as
well.
************* ***************
COMMON CATEGORIES
Introduction
3.8.1 Common categories of staff are those categories that are
engaged in similar functions spread across various
ministries/departments/organizations of the Central Government.
These categories are not limited to any specific ministry or
department and, therefore, any decision taken for them impacts
more than one ministry/department/organization.
General Principles
3.8.3 While dealing with these common categories, the
Commission has been guided by the following principles:-
(a) In future, all recruitments in the Central Government
would only be in the posts belonging to Group 'C' or higher
categories carrying minimum qualifications of matriculation or
ITI.
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 9
************* ***************
(e) Similarly, higher scales have been recommended for the
nursing cadre keeping in view the arduous nature of their
duties.
************* ***************
Para Medical Staff
3.8.15 As mentioned in para 3.8.3, the Commission is
recommending higher pay scales for the cadre of Nurses. This
will affect some of the existing relativities of nursing cadres vis-
a-vis other para medical staff. This, however, is a conscious
decision of the Commission for giving a better deal to the Nurses
in recognition of the duties being performed by them. Apart from
the cadre of Nurses, the Commission has made a conscious effort
not to disturb any of the established relativities between the other
cadres of para medical staff. In any case, the different categories
of para medical staff will benefit from the re-organization of pay
scales being recommended by the Commission. Accordingly, the
following pay structure is being recommended for different
categories of para medical staff including Nurses:-
Design Present Recommended Corresponding Pay
ation Pay Scale Pay Scale Band and Grade Pay
Nursin 5500- 7500-12000 PB-2 4800
g Sister 9000
Dieticia 6500- 7450-11500 PB-2 4600
n 10500
Gr.II/L
ecturer
in
PT/OT/
Radiog
rapher
Assista 6500- 8000-13500 PB-3 5400
nt 10500
Nursin
g
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 10
Superin
tendent
Deputy 7500- 8000-13500 PB-3 5400
Nursin 12000
g
Superin
tendent
Nursin 8000- 10000-15200 PB-3 6100
g 13500
Superin
tendent
Chief 10000- 12000-16500 PB-3 6600
Nursin 15200
g
Officer
Posts of other para-medical technicians/personnel not
mentioned above shall be extended the corresponding revised
pay bands and grade pay. The posts which were in different pay
scales earlier but have come to lie in an identical pay band and
grade pay shall stand merged.
Rates of existing allowances for all the categories of para-
medical staff, except those specifically considered in the Report
(like HPCA/PCA), shall stand doubled."
CRPF's contention
15. In the counter affidavit filed before this Court, it is contended that a
notification was received from DIGP (ADM) on 25.08.2009 regarding
revised pay band/scale and grade pay in respect of various posts of Sub-
Inspector (includingNurse/Pharma) OS(Non-Comb). It has relied on a
tabular chart, which is reproduced below:
Existing Revised Pay band Correspon Grade Pay Relevant
Pay scale pay scale ding Pay rule of
Band CCS(RP)
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 11
Rules-
2008
5500-175- 6500- PB-2 9300- 4200 Part-B
9000 10500 34800 Sec-1(ii) of
(S-10) 1st
Schedule
By order dated 18.06.2010 Non-Combatised nursing staff were granted the
pay benefits. The following chart (extracted from the CRPF‟s counter
affidavit) shows this:
SL. NO. POST Existing Pay Structure Pay Structure
approved by
Govt.
01 Matron GP 5400 in PB-3 GP 6600 in PB-3
02 Asstt. Matron GP 4200 in PB-2 GP 5400 in PB-3
03 Ward Sister GP 4200 in PB-2 GP 4800 in PB-2
04 Staff Nurse GP 4200 in PB-2 GP 4600 in PB-2
The counter affidavit thereafter states:
"4. That accordingly Pay of affected Civil nursing staff has
been refixed. But the combatised nursing personnel have not
been extended the benefit of above higher scale.
5. That for the above stated reasons the Petitioners,
combatised nursing personnel, have not been extended the
benefits of above upgraded scale, i.e. Grade pay from Rs.4200 to
Rs.4600/-.
6. That since the pre-revised scales of civil nursing cadre
were different hence no parity can be claimed and the petitioners
are drawing correct pay as per latest instructions and according
to the grade pay of entitled rank.
7. That it is further submitted that the Civilian Nurses have
always been given higher pay scale by all the Pay Commissions.
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 12
The Petitioners are combatised Staff Nurses and are asking the
parity of pay with common category Staff nurses. Here it is
pertinent to mention that Non combatised Staff Nurses are
entitled to only 30 days Earned Leave and 08 days Casual Leave
in a year whereas Combatised personnel are entitled for 60 days
Earned Leave and 15 days Casual Leave, besides free Railway
warrant to visit home town annually, Ration Money, clothing kit
articles etc. Also, age of retirement is different. However, pay
structure of civil nursing cadre has been enhanced by letter
dated 18.06.2010 issued by the Respondent No.1 with regard to
the pay structure enhanced in civil organizations. Whereas
combatised staff nurses have been placed alongwith similar rank
in other cadres like GD, Min. etc.
8. That the Government of India while approving various
posts in different departments/forces, considers the nature of
deployment, number of personnel affected, condition of services
etc. and pay scales and thereby finalizes the pay scales.
9. That as per letter no. 27012/26/2010-PF-III dated
18.06.2010 issued by the Respondent No.1, the pre-revised scales
of Non-combatised and Combatised Staff Nurses are different.
Therefore, the Respondents have not done anything contrary to
law."
16. The Directorate General, CRPF‟s letter dated 25.08.2009 referred to
above, reads as follows:
"Subject NOTIFICATION OF RANK-WISE REVISED PAY
STRUCTURE IN R/O CRPF PERSONNEL
Consequent on implementation of 6th CPC Report notified vide
Notification No.G.S.R. 622 (E) dated 29/08/2008 revised pay
band/scale and grade pay in respect of various ranks/posts of
CRPF will be as under:-
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 13
Rank Existing Revis Pay Correspon Gra Relevant
pay scale ed Band ding Pay de rule of
pay Band Pay CCS(RP)
scale Rules,
2008
Sub 5500-175- 6500- PB-2 9300- 4200 Part-B
Insp(GD/Min/Stn/RO/RF/RM/Cry 9000 (S- 10500 34800 Sec I(ii)
pto/Tech/Armr/MT/MM/TLR/JE/ 10) of 1st
DM/LM/Radio Schedule
Grapher/Physio/Blood Bank .
Tech/Staff
Nurse/Pharma)OS(Non-
Comb)/Water Sister (Non-
Comb)/Sr.Pharm
Hd. Clk (Non Comb/Stn(GR-II 5000-150- 6500- PB-2 9300- 4200 Part-B
(Non Com)/HT (GR-I)/Staff 8000 (S-9) 10500 34800 Sec I(ii)
Nurse (Non Comb)/Pharm (G-I) of 1st
(Non_Comb)/FSN Schedule
.
XXXXXXX XXXXXX XXXXXX
(S.R. Ojha)
DIGP (Adm)
Dte. Genl. CRPF"
The letter dated 18.06.2010, addressed by the Union Home Ministry to the
CRPF reads as follows:
"Sub: Grant of upgraded pay scales recommended by 6 th CPC
to non-combatised nursing staff in CRPF - reg.
I am directed to refer to DG CRPF's UO No.P.I-1/2009-PC
Cell-6th CPC (Adm.I) dated 15.4.2009 on the above subject, and
convey the approval of the competent authority for grant of
upgraded pay scales to non-combatised nursing cadre in CRPF,
as per the specific recommendations of 6th CPC regarding the
common category posts belonging to Nursing Cadre wef the date
of implementation of the CCS (Revised Pay) Rules, 2008, as
indicated below:-
(in Rupees)
SI No. Post Existing pay structure Pay structure approved
by D/o Expenditure
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 14
1 Matron GP 5400 in PB-3 GP 6600 in PB-3
2 Asstt Matron/Sister GP 4200 in PB-2 GP 5400 in PB-3
incharge
3 Ward Sister GP 4200 in PB-2 GP 4800 in PB-2
4 Staff Nurse GP 4200 in PB-2 GP 4600 in PB-2
2. This issues with the approval of Ministry of Finance
(Department of Expenditure, Implementation Cell) vide their UO
No.7.19/26/2009-IC dated 30.4.2010 and concurrence of
Integrated Finance Division of this Ministry vide their Dy.
No.662/Fin.II/2010 dated 17.6.2010."
It is clear from the above extracts of the CRPF‟s affidavit that:
(a) Non-Combatised nursing staff was granted higher grade pay with
effect from the date of implementation of the Central Civil Services
(Revised Pay) Rules, 2008, i.e 1-1-2006 even though approval was only on
18-06-2010;
(b) There was no attempt to analyse and consider the relativities of pay of
similar staff, within the organization;
(c) The CRPF does not deny that Non-Combatised nursing staff have less
onerous duties as compared to Combatised staff. However it prefers to
highlight certain disparities, such as facility of longer duration of annual
leave and allowances given to Combatised nurses because they bear arms.
(d) No attempt has been made in the counter affidavit by CRPF to show
why the recommendations of the Sixth PC cannot be implemented only on
the question of parity of grade pay, i.e grant of `4600 /-.
17. It is astonishing that the CRPF rationalizes the disparity in pay
structure within the organization, between nursing staff. The essence of
discrimination is where the state of its agency treats two individuals or
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 15
groups unequally, where there is no justification to do so. To sustain the
differentia CRPF highlights certain points, viz that Non-Combatised staff
get less leave and are not receipents of certain privileges which Combatised
staff secure. However, these differences have no bearing on the salient
aspect of identity of work between the two categories. It is obvious that
Combatised nursing staff have to be given the same leave allowances and
facilities which other Combatised staff are granted: that is the mandate of
Article 14, as between those two groups, because both are Combatised and
discharge onerous duties, in forward and "non-static" areas. In the same
breath, given that Combatised nursing staff discharge onerous duties under
difficult circumstances cannot be a valid justification to deny parity in the
general pay structure- to wit, grade pay with Non-Combatised nursing staff,
because both perform identical duties in hospitals, clinics and dispensaries.
18. That over-emphasis on the doctrine of classification can lead to
strange results which defy the concept of equality was perceived long ago; in
Roop Chand Adlakha v Delhi Development Authority 1988 Supp (3) SCR
253 the Supreme Court ruled as follows:
"But the process cannot in itself generate or aggravate the
inequality. The process cannot merely blow-up or magnify in-
substantial or microscopic differences on merely meretricious or
plausible differences. The over-emphasis on the doctrine of
classification or any anxious and sustained attempts to discover
some basis for classification may gradually and imperceptibly
deprive the article of its precious content and end in replacing
Doctrine of equality by the doctrine of classification."
19. The present case is a striking instance of the government justifying an
untenable differentiation on the anvil of doctrine of classification. The
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 16
rationale cannot pass muster; it is clearly untenable and the result
discernable to the Court, i.e plain discrimination by the CRPF of two
categories falling within the same class, i.e nursing staff.
20. In the case of ITBP too, the rationale wears thin- albeit for different
reasons. ITBP (another wing of the Central Government) curiously rejects
the demand for parity of grade pay to nursing staff (saying that Combatised
personnel are discharging more onerous duties and nurses have to work in
"static" postings). The irony here is not lost on the Court: in the CRPF this
rationale is used to deny Combatised nursing staff parity with Non-
Combatised nursing staff, vis-à-vis grade pay. In other words, here it is
stated that Combatised staff perform onerous duties and are to be given
higher grade pay. This logic is a perfect answer to the CRPF‟s stand in the
petition against it. And the CRPF‟s stand that non-combatised nursing staff
can get higher grade pay because they work in less onerous conditions, is a
perfect answer to the ITBP‟s reply in the writ petition filed by its nursing
staff. This Court does not want to speculate further because elements of the
theatre of the absurd would emerge from exploring incompatible arguments
made by two wings of the same authority, i.e the Central Government.
Instead, it would prefer to rest its decision on the established principles
which apply to consider claims for parity in pay structure and claims.
21. Executive "free play in the joints" in devising pay revisions was
emphasized by the Supreme Court in the following passage in Secretary,
Finance Department & Ors. v. West Bengal Registration Service
Association & Ors. 1993 SUPP (1) SCC 153 where the scope of judicial
review in such decisions was spelt out:
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 17
"We do not consider it necessary to traverse the case law on
which reliance has been placed by counsel for the appellants as
it is well settled that equation of posts and determination of pay
scales is the primary function of the executive and not the
judiciary and, therefore, ordinarily courts will not enter upon the
task of job evaluation which is generally left to expert bodies like
the pay commissions, etc. But that is not to say that the court has
no jurisdiction and the aggrieved employees have no remedy if
they are unjustly treated by arbitrary state action or inaction.
Courts must, however, realize that job evaluation is both a
difficult and time consuming task which even expert bodies
having the assistance of staff with requisite expertise have found
difficult to undertake sometimes on account of want of relevant
data and scales for evaluating performances of different groups
of employees. This would call for a constant study of the external
comparisons and internal relativities on account of the changing
nature of job requirements. The factors which may have to be
kept in view for job evaluation may include (i) the work
programme of his department (ii) the nature of contribution
expected of him (iii) the extent of his responsibility and
accountability of the discharge of his diverse duties and functions
(iv) the extent and nature of freedoms/limitations available or
imposed on him in the discharge of his duties (v) the extent of
powers vested in him (vi) the extent of his dependence on
superiors for the exercise of his powers (vii) the need to co-
ordinate with other departments, etc. We have also referred to
the history of service and the effort of various bodies to reduce
the total number of pay scales to a reasonable number. Such
reduction in the number of pay scales has to be achieved by
resorting to broad banding of posts by placing different posts
having comparable job charts in a common scale. Substantial
reduction in the number of pay scales must inevitably lead to
clubbing of posts and grades which were earlier different and
unequal. While doing so care must be taken to ensure that such
rationalization of the pay structure does not throw up anomalies.
Ordinarily a pay structure is evolved keeping in mind several
factors, e.g. (i) method of recruitment, (ii) level at which
recruitment is made, (iii) the hierarchy of service in a given
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 18
cadre, (iv) minimum educational/technical qualifications
required, (v) avenues of promotion, (vi) the nature of duties and
responsibilities, (vii) the horizontal and vertical relativities with
similar jobs, (viii) public dealings, (ix) satisfaction level, (x)
employer's capacity to pay, etc. We have referred to these
matters in some detail only to emphasize that several factors
have to be kept in view while evolving a pay structure and the
horizontal and vertical relativities have to be carefully balanced
keeping in mind the hierarchical arrangements, avenues for
promotion, etc. Such a carefully evolved pay structure ought not
to be ordinarily disturbed as it may upset the balance and cause
avoidable ripples in other cadres as well. It is presumably for
this reason that the Judicial Secretary who had strongly
recommended a substantial hike in the salary of the sub-
registrars to the second (state) pay commission found it difficult
to concede the demand made by the registration service before
him in his capacity as the chairman of the third (state) pay
commission. There can, therefore, be no doubt that equation of
posts and equation of salaries is a complex matter which is best
left to an expert body unless there is cogent material on record to
come to a firm conclusion that a grave error had crept in while
fixing the pay scale for a given post and court's interference is
absolutely necessary to undo the injustice."
22. The demand for parity in both the CRPF and ITBP amongst its
nursing staff have certain salient aspects:
(1) It stems from a common recommendation of the VIth PC to treat all
nursing staff equally (Para 3.8.3 (e) of the report/recommendations) in view
of the "arduous" nature of their duties;
(2) The report/recommendation was that all nursing staff, regardless of
whether they worked in hospitals or dispensaries, should be given "nursing
allowance" of `3200/- per month.
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 19
(3) Other wings of the Central Government, where nursing staff form part
of the cadre: typically in the Ministry of Health and Family Welfare have
been granted pay scales and allowances in line with the Sixth PC report.
(4) Before the Sixth PC recommendations and the CCS (Revised Pay)
Rules 2008, there was no disparity as between Combatised nursing staff and
Non-Combatised nursing staff, within CRPF.
23. The recommendation of the Sixth PC, pertinently is that:
"3.8.15 As mentioned in para 3.8.3, the Commission is
recommending higher pay scales for the cadre of Nurses. This
will affect some of the existing relativities of nursing cadres vis-
a-vis other para medical staff. This, however, is a conscious
decision of the Commission for giving a better deal to the Nurses
in recognition of the duties being performed by them. Apart from
the cadre of Nurses, the Commission has made a conscious effort
not to disturb any of the established relativities between the other
cadres of para medical staff. In any case, the different categories
of para medical staff will benefit from the re-organization of pay
scales being recommended by the Commission. Accordingly, the
following pay structure is being recommended for different
categories of para medical staff including Nurses:-
**********
**************
Posts of other para-medical technicians/personnel not
mentioned above shall be extended the corresponding revised
pay bands and grade pay. The posts which were in different pay
scales earlier but have come to lie in an identical pay band and
grade pay shall stand merged.
Rates of existing allowances for all the categories of para-
medical staff, except those specifically considered in the Report
(like HPCA/PCA), shall stand doubled."
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 20
24. The Central Government - and the CRPF as well as ITBP do not
dispute that in regard to the replacement scales and increments, allowances
recommended, etc by the Sixth PC, there is unreserved acceptance. However
in regard to Grade Pay (and fixation in scale) there is resistance. This Court
has already expressed why the CRPF‟s justification for denial of parity to
Combatised nursing staff with its Non-Combatised nursing staff is
discriminatory. The same logic prevails in respect of the claim of ITBP
personnel. They may not be Combatised; yet, they do perform "arduous"
duties. The pay scales recommended by the Sixth Pay Commission have
been given them. The rationale for specifically denying grade pay (as
claimed by them) is that they receive `3200/- per month as nursing
allowance. However, that logic is a self defeating one; the allowance was
recommended for all- evident from the above extract of the Sixth CPC. Like
in the CRPF, that the nursing staff secure some allowance cannot be a
counter to denial of what was recommended as their grade pay.
25. For the foregoing reasons, the writ petitions have to succeed. In
W.P.(C) 1358/2014 the respondents are directed to accord parity to
Combatised Sub-Inspector Nurses with Non-Combatised Staff Nurses
(holding the rank of Sub-Inspector [SI]) and fix their grade pay at `4600/-
per month, as claimed by them. Similarly, in W.P.(C) 3829/2014, the
petitioners shall be granted parity with Nursing Sister, in the grade pay of
`4600/- (PB-2) in the pay scale of `9300/-34800/- of the Indo Tibetan
Border Police Force (ITBP) in the case of all petitioners, except Petitioner
Nos. 10,12,18,19 and 20- in the case of the latter, the grade pay shall be
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 21
`4800/-. In both these petitions, the grade pay shall be in Category S-10
under the Central Civil Services (Revised Pay) Rules, 2008, (2008 Rules).
The fixation shall be effective from the date the said rules came into force;
consequential orders releasing differential amounts shall be issued within 12
weeks from today. W.P.(C) 1358/2014 and W.P.(C) 3829/2014 are allowed
in the above terms; there shall be no order as to costs.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
SEPTEMBER 21, 2015
W.P.(C) 1358/2014 & W.P.(C) 3829/2014 Page 22
