Gauhati High Court
WP(C)/4313/2020 on 22 September, 2022
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GAHC010118322021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (Civil) no. 4313/2020
1) SMTI RINTI BAISHYA
W/O KAUSHIK KRISHNATRAYA,
R/O ASHIRWAD, HOUSE NO. 27, ANANTA PATH, VILL-KERAKUCHI, P.O.-
SAUKUCHI, P.S.-BASISTHA CHARIALI, DIST-KAMRUP METRO, ASSAM, PIN-
781040
2) SMTI KARABI BEZBARUAH
D/O SARAT BEZBARUAH, R/O VILL-SASTAR, P.O.-MAJORKUCHI, P.S.-HAJO,
DIST-KAMRUP RURAL, ASSAM-781102
3) SMTI. NAMITA HEMROM
W/O LAKHAN SOREN, R/O VILL-URAL, P.O.-SONAPUR, P.S.-SONAPUR, DIST-
KAMRUP METRO, ASSAM
4) SMTI SUSMITA HATIBARUAH
W/O SUNNY BORGOHAIN, R/O VILL-HOLONGPAR GOHAIN GAON,
LAHDOIGARH, P.O.-KAPARADHARA, P.S.-TEOK, DIST-JORHAT, ASSAM-785700
5) SMTI DHANJITA MEDHI
W/O DEBAJYOTI NATH, R/O SEWALI PATH, HOUSE NO. 40, HATIGAON,
GUWAHATI, DIST-KAMRUP(M), ASSAM-781038
6) SMTI DIPTI RAJBONGSHI
W/O BISWAJIT GOSWAMI, R/O MALAYBARI, P.O.-MALAYBARI, DIST-KAMRUP
METRO, ASSAM-782403
7) SMTI PRAGYA DEKA
W/O PALASH PALLAV TAMULI, R/O HOUSE NO. 23 (A), VILL-BORBARI,
THOMOKITILLA, P.O.-HENGRABARI, DIST-KAMRUP METRO, GUWAHATI,
ASSAM-781036
8) SMTI VINKUMANI BARMAN
W/O DHRUBAJYOTI DAIMARY, C/O SARAT BEZBARUAH, R/O VILL-
RADHADHALA, P.O.-COLLEGE NAGAR, P.S.-HAJO, DIST-KAMRUP RURAL,
ASSAM-781031
9) SMTI NANI SAHARIAH
W/O ANSUMON GOGOI, R/O SHANKAR PATH, NEAR RAISCON CONCLAVE,
HOCKEY STADIUM ROAD, P.O.-SAUKUCHI, P.S.-BASISTHA CHARIALI, DIST-
KAMRUP METRO, ASSAM-781040
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10) USHAJYOTI SAIKIA
D/O. GOKUL SAIKIA, VILL. PODUMONI JAPIHOJIA, P.O. JAPIHOJIA, P.S.
TEOK, DIST. JORHAT, ASSAM-785636.
11) KANIKA KUMARI
W/O. SASANKA NATH, VILL. TAPSIA, P.O. BOKO, P.S. BOKO, DIST. KAMRUP,
ASSAM-781123.
12) ANGSUSMITA BARMAN
W/O. DHIMANJYOTI PATHAK, R/O. KAILASHNAGAR BHABANIPUR, P.O.
NOONMATI, P.S. NOONMATI, DIST. KAMRUP (M), ASSAM-781020.
13) PALLABI BORUAH
W/O. CHAMPAK BARMAN, R/O. HOUSE NO.27, BALIRAM TERON PATH,
NARAKASUR, KAHILIPARA, DIST. KAMRUP (M), ASSAM-781019.
14) SANGEETA SARMA
W/O. BANAJ KUMAR SARMA, R/O. VILL. KSHUDRA BHALUKI, P.O. BHALUKI,
P.S. PATACHARKUCHI, DIST. BARPETA, ASSAM-781371.
15) SWARNALI KALITA
D/O. LT. UMESH KALITA, VILL. ATHARA, P.O. PUTHIMARI, P.S. RANGIA, DIST.
KAMRUP (R), ASSAM-781380.
16) PRANATI DAS
W/O. LAKHI NANDAN LAHKAR, R/O. HOUSE NO.32, BYE LANE NIJARAPUR,
LICHUBAGAN ROAD, P.O. HENGRABARI, P.S. DISPUR, DIST. KAMRUP (M),
ASSAM-781036.
17) LEETAK TAYENG
D/O. MANTI TAYENG, VILL. NO.2, MURKONGSELEK, KANOLPUR, P.O. JONAI,
P.S. JONAI, DIST. DHEMAJI, ASSAM-787060.
18) JURI BARUAH
D/O. ARABINDA BARUAH, VILL. MALAYABARI, P.O. MALAYABARI, P.S.
KHETRI, DIST. KAMRUP, ASSAM-782403.
19) ANAMIKA DAS
D/O. JAGDISH CHANDRA DAS, VILL. MANAHKUCHI, P.O. MANAKHUCHI, P.S.
HAJO, DIST. KAMRUP (R), ASSAM-781104.
20) CHANDRALEE GARGE
W/O. NITUMONI SARMA, R/O. RAILWAY COLONY, P.S. GEETANAGAR, DIST.
KAMRUP (M), ASSAM.
21) PARCHIYA BEGUM
D/O. MD. AMER ALI, R/O. ARUNODOI PATH, P.O. INDRAPUR, DIST. KAMRUP
(M), ASSAM-781032.
22) MINAKSHI DEKA
D/O. ARJUN DEKA, VILL. MAJORKURI, P.O. MAJORKURI, P.S. HAJO, DIST.
KAMRUP (R), ASSAM-781102.
23) KARUNA DIHINGIA
W/O. BHASKAR JYOTI DEKA, R/O. HOUSE NO.34, NARIKAL BASTI, DIST.
KAMRUP (M), ASSAM-781024.
24) KARABI BORGOHAIN
W/O. GAGAN KUMAR DEKA, R/O. VILL. BHAKATPARA, P.S. MANGALDOI,
DIST. DARRANG, ASSAM-784147.
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25) BIJU KONWAR
S/O. JOGEN KONWAR, VILL. MALAYABARI, P.S. KHETRI, DIST. KAMRUP (M),
ASSAM-782403.
26) BEAUTI BORUAH
C/O. MUKUT CHANDRA BORUAH, VILL. BHEHPARA BORUAH CHUK, P.O.
DHEMAJI, P.S. DHEMAJI, DIST. DHEMAJI, ASSAM-787057.
27) GEETASREE ROY
W/O. RAJDEEP DEY, R/O. HOUSE NO.18, BISHNU RABHA PATH,
GHORAMARA, DIST. KAMRUP (M), ASSAM-781028.
28) BARAKHA PHUKAN
W/O. JISHNU BORGOHAIN, R/O. JYOTINAGAR NAMRUP, P.S. NAMRUP, DIST.
DIBRUGARH, ASSAM-786623.
29) PHUNUMA OJAH
D/O. SARBESWAR OJAH, R/O. VILL. SOURAGURI, P.O. KACHUBARI, P.S.
TAMULPUR, DIST. BAKSA, ASSAM-781367.
30) GOURI NATH
D/O. ARABINDA KUMAR NATH, VILL. MEGHNA BARTANTHOR, P.O.
NILAMBAZAR, H.NO.16, DIST. KARIMGANJ, ASSAM-788722.
31) PINKI CHETIA
W/O. TAPAN SONOWAL, R/O. DILLI DOWANIA, P.O. PARBATPUR, P.S.
NAMRUP, DIST. DIBRUGARH, ASSAM-786623.
32) RAJOSHREE KUMAR
W/O. JITU BHUYAN, VILL. BARJALAH (JOURPUKHURI), P.O. TANGLA, P.S.
TANGLA, DIST. UDALGURI, ASSAM-784521.
33) SANJANA ROY
D/O. RAMESH ROY, VILL. BHASAKUTA, P.O. ABHAYAPURI, DIST.
BONGAIGAON, ASSAM-783384.
34) MAUSUMI MALAKAR,
W/O. TAPAN KALITA, R/O. VILL. SANTIPUR (HAJO VETERINARY HOSPITAL
ROAD), P.O. AND P.S. HAJO, DIST. KAMRUP (R), ASSAM-781102.
35) LEEMA NATH
D/O. NAGENDRA KUMAR NATH, VILL. DAKHIN, JANGALPARA, P.S. TANGLA,
DIST. UDALGURI, PIN-784521.
36) PRABHABANI BASUMATARY,
W/O. SRI VIKRAM SINGHA DAIMARY, VILL. LANDANGPARA, P.O. AND P.S.
HARISINGA, DIST. UDALGURI, PIN-784510, ASSAM.
37) PADMINI PHUKON
D/O. SRI MILAN CHANDRA PHUKAN, R/O. VILL. BAILUNG GAON, P.O.
TAMMULICHIGA, DIST. SIVASAGAR, PIN-785682, ASSAM.
38) PARIJAT BORBORAH,
D/O. SRI JADAV BORBORAH, VILL. BORBORAH GAON, P.O. JOKHARIA, P.S.
TEOK, DIST. JORHAT, PIN-785112, ASSAM.
39) SRIMATI MARJIYANA BEGUM
W/O. MD. SAMAUN AHMED, VILL. JAMLAI, P.O. JAMLAI, P.S. NAGARBERA,
DIST. KAMRUP(R), PIN-781127, ASSAM.
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40) SRIMATI MERINA TETE
W/O. SRI ABHISHEK HANS, VILL. KAWANI, P.O. FOLLONGNI, DIST.
GOLAGHAT, PIN-785621, ASSAM.
..............Petitioners
-Versus-
1) THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM, HEALTH AND FAMILY WELFARE (A) DEPARTMENT, DISPUR,
GUWAHATI-781006, ASSAM
2) THE SECRETARY TO THE GOVERNMENT OF ASSAM, HEALTH AND FAMILY
WELFARE (A) DEPARTMENT
DISPUR, GUWAHATI-781036, AKMRUP(M), ASSAM
3) THE DIRECTOR OF HEALTH SERVICES, HENGRABARI
GUWAHATI-781036, KAMRUP(M), ASSAM
4) THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM, FINANCE
DEPARTMENT, GUWAHATI, DISPUR-781006
5) THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
ASSAM, DEPARTMENT OF FINANCE, DISPUR-781006
...................Respondents
Writ Petition (Civil) no. 3619/2021
1) DUNA KONWAR
D/O AJIT KONWAR R/O VILL- TIPOMIA,
P.O., P.S. TENGAKHAT, DIST.DIBRUGARH, PIN-786184
2) PALLABI MILI,
D/O MR JAYANTA MILI R/O VILL- KARPUMPULI P.O.
SILAPATHAR, P.S. SILAPATHAR DIST. DHEMAJI,
ASSAM- PIN-787059
3) SATABDI MALLICK
D/O TARUNI KANTA MALLICK R/O KULIDUNGA, P.O. AMBAGAN P.S.
ULUNI, DIST. NAGAON, ASSAM,
PIN CODE - 782120
4) CHAYANIKA BURAGOHAIN
D/O SAILYA BURAGOHAIN R/O VILL- KEKURI AHOM GAON, P.O.
CHAMARAJAN, P.S. DHEMAJI, DIST. DHEMAJI,
ASSAM PIN-7857057
5) HIRANMAYEE CHUTIA
D/O ARUN JYOTI CHUTIA R/O DEWALIA GAON, P.O. GOBINDAPUR, P.S.
DHAKUAKHANA DIST. LAKHIMPUR,
PIN-787055
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6) RISTASHEBA TONGPER,
D/O MAWKORDOR SAJEM R/O JATINGA VILLAGE, P.O. HAFLONG P.S.
HAFLONG, DIST. DIMA HASAO, PIN-788819
7) DULUMONI BARHOI
D/O PARESH BARHOI R/O VILL- BOKATA JUTULITING, P.O. CHANDBASA,
P.S. NEMUGURI, DIST. SIVASAGAR, PIN-785674
8) RUBI DEVI,
D/O PRANADHAR SARMA R/O VILL- PACHARIA, P.O. PACHARIA P.S. HAJO,
DIST. KAMRUP, ASSAM PIN-781104
9) MARTINA BEGUM
D/O HIBJUR RAHMAN R/O VILL- SONARISAL, P.O. BALIKUCHI P.S.
BAIHATA CHARIALI, DIST. KAMRUP, ASSAM, PIN-781381
10) DIPALI SAIKIA
D/O DHARMANANDA SAIKIA R/O VILL- BORNAHARANI, P.O. BHOLABORI
P.S. NARAYANPUR, DIST. LAKHIMPUR, ASSAM, PIN-787033
11) CHANDRAMA SAIKIA,
D/O BIJOY SAIKIA R/O VILL- CHICHAPATHAR, P.O. LAHOLIAL, P.S.
BIHPURIA DIST. LAKHIMPUR, PIN-784161
12) SANGITA KURMI,
D/O MR RAMLAL KURMI R/O NALINIBARI, P.O. DUFFLAGARH P.S. HELEM,
DIST. BISWANATH, PIN-784171
13) GAYATRI KONWAR
D/O LT. KASHMIR KONWAR R/O C.D.ROAD, WARD NO. 4, P.O.
LAKHIMPUR, P.S. LAKHIMPUR, PIN-787001
14) MAGDALENE HMINGTHANGMAWI,
D/O LT. VANLALEN, R/O VILL- MUOLHOI, P.O. HAFLONG, P.S. HAFLONG
DIST. DIMA HASAO, PIN-788819
15) JABETH HAWITWIANGLIM VAIPHEI,
D/O KHAMLEMLAL VAIPHEI, R/O VILL- NORTH BAGETAR, P.O. HAFLONG,
P.S.HAFLONG DIST. DIMA HASAO,
ASSAM PIN-788819
16) MONMEE AHMED,
W/O MR. MIRAZUL HAQUE R/O MANGALDAI, P.S. MANGALDAI DIST.
DARRANG, ASSAM, PIN-784125
17) CAHERINE LALRAMPAR NEITHAM,
D/O LAFAMKIM HMR R/O VILL- HMARKHAWLIEN, P.O. FULERTAL,
P.SLAKHIPUR DIST. CACHAR, PIN-788106
..................petitioners
Vs.
1) THE STATE OF ASSAM
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT OF
ASSAM, HEALTH AND FAMILY WELFARE (A) DEPARTMENT, DISPUR,
Page No.# 6/15
GUWAHATI-781006, ASSAM
2) THE ADDITIONAL CHIEF SECRETARY
TO THE GOVT. OF ASSAM, FINANCE DEPARTMENT, DISPUR, GUWAHATI-
781006.
3) THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
FINANCE DEPARTMENT, GUWAHATI, DISPUR-781006
4) THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
DEPARTMENT OF FINANCE DISPUR-781006
5) THE SECRETARY TO THE GOVT. OF ASSAM,
HEALTH AND FAMILY WELFARE (A) DEPARTMENT, DISPUR, GUWAHATI-
781006, ASSAM
6) THE DIRECTOR OF MEDICAL EDUCATION ASSAM,
SIXMILE, KHANAPARA, GUWAHATI-22.
7) THE DIRECTOR OF HEALTH SERVICES,
HENGRABARI, GUWAHATI-781036, KAMRUP (M), ASSAM
8) THE PRINCIPAL-CUM-CHIEF SUPERINTENDENT,
ASSAM MEDICAL COLLEGE AND HOSPITAL, DIBRUGARH,
PIN -786002
9) THE SUPERINTENDENT,
ASSAM MEDICAL COLLEGE AND HOSPITAL, DIBRUGARH,
PIN -786002
...................................... Respondents
Advocates :
For the Petitioner : Mr. U.K. Nair, Sr. Advocate
Mr. R. Singha, Advocate
For the Respondents : Mr. B. Gogoi,
Standing Counsel, Health & Family Welfare Department
Standing Counsel, Finance Department
Date of Hearing & Judgment : 22.09.2022
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BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER [ORAL]
As both the writ petitions - W.P.[C] no. 4313/2020 & W.P.[C] no. 3619/2021 involve a
common issue, they are taken up together at the request of the learned counsel for the
parties and considering that the exchange of pleadings in both the writ petitions are
complete.
2. In the writ petition, W.P.[C] no. 4313/2020, 40 nos. of petitioners have joined together
stating that they have a common cause of action. On the other hand, 17 nos. of petitioners
have joined together for a common cause of action to institute the writ petition, W.P.[C] no.
3619/2021.
3. For better appreciation of the issue involved in the two writ petitions, it appears
necessary, at first, to narrate the events, in brief, leading to the institution of the two writ
petitions.
4. The facts of the writ petition, W.P.[C] no. 4313/2020 :- The Director of Health Services,
Assam i.e. the respondent no. 3 published an Advertisement on 18.11.2017 in the newspaper,
'The Assam Tribune' in its issue dated 19.11.2017 inviting applications for 500 nos. of post of
Staff Nurse under the establishment of different health institutions of the Joint Director of
Health Services of the districts and Medical Colleges & Hospitals of the State. An Addendum
to the Advertisement dated 18.11.2017 came to be published on 14.12.2017, whereby, it was
advertised that another 332 nos. of posts of Staff Nurse had been added to the earlier
advertised 500 nos. of post of Staff Nurse. With the publication of the Addendum, the total
nos. of post of Staff Nurse to be filled up stood at 832.
4.1. In the Advertisement dated 18.11.2017, minimum educational qualifications had been
laid down. A candidate must have passed General Nursing and Midwife [GNM] Course/B.Sc.
Nursing course from a Government recognized Institute and the candidate must have been
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registered with the Assam Nurses Midwives' and Health Visitors Council. The last date of
receipt of the applications was till midnight, 06.01.2018.
4.2. In response to the Advertisement, all the petitioners who have B.Sc. degree in Nursing,
submitted their candidatures. In the selection process undertaken pursuant to the
Advertisement dated 18.11.2017, the petitioners were called to appear in the selection
process and accordingly, they appeared in the selection process. After the selection process,
the petitioners were selected along with other candidates, for the post of Staff Nurse against
the posts advertised. After their selection, the respondent no. 3 issued separate appointment
orders to the petitioners in July, 2018. After receipt of the appointment orders, the petitioners
submitted joining reports at their respective place of joining. The petitioners are serving as
Staff Nurse since then.
4.3. In the Advertisement, the Pay Scale for the Staff Nurse was notified as Rs. 14,000/- -
Rs. 49,000/- plus Grade Pay @ Rs. 6,800/-. In the appointment orders also, it was mentioned
that the pay would be in the Pay Band : 2 [RoP 2017] with Grade Pay of Rs. 6,800/- and
other allowances as admissible under the rules. The petitioners, after joining the service,
came to learn that other Staff Nurses who have B.Sc. degrees in Nursing, have been allowed
to draw the Pay Scale : Pay Band : 2 Rs. 14,000/- - Rs. 49,000/- plus Grade Pay @ Rs.
8,700/-..
4.4. The petitioners have averred that the Staff Nurse with B.Sc. degrees in Nursing, who
have been appointed pursuant to an Advertisement dated 18.11.2017, have been authorized
to draw their pay with Grade Pay @ Rs. 8,700/- as per the provisions of the Assam Services
[Revision of Pay] Rules, 2017. Claiming disparity between the similarly situated Staff Nurses
and alleging discrimination, the petitioners submitted a representation before the respondent
no. 3 on 28.06.2019 with the request to pay the petitioners the Grade Pay @ Rs. 8,700/- in
terms of the Assam Services [Revision of Pay] Rules, 2017. As the representation failed to
evoke any response, the petitioners have approached this Court by the writ petition under
Article 226 of the Constitution of India seeking inter alia a direction to declare the action on
the part of the respondent authorities in not granting the Grade Pay @ Rs. 8,700/- to the
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petitioners, as envisaged in the Assam Services [Revision of Pay] Rules, 2017, as compared to
other counterparts, as illegal and arbitrary with the further direction to pay the petitioners the
Grade Pay @ Rs. 8,700/- with effect from the date of their appointments as Staff Nurse along
with the resultant arears.
5. The facts of the writ petition, W.P.[C] no. 3619/2021 :- The 17 nos. of petitioners
participated in a selection process initiated pursuant to an Advertisement dated 05.08.2020
published by the respondent no. 6 i.e. the Director of Medical Education, Assam. By the said
Advertisement dated 05.08.2020, on-line applications were invited from intending eligible
candidates, ordinarily residents of Assam, for 150 nos. of posts of Staff Nurse under the
establishment of the Superintendent of Assam Medical College & Hospital, Dibrugarh. The
minimum educational qualifications prescribed in the Advertisement were B.Sc. in Nursing/
General Nursing and Midwife [GNM] course passed from any nursing school/Institution
recognized by the Indian Nursing Council and have registered with the Assam Nurses,
Midwives and Health Visitors Council.
5.1. The Pay Scale indicated in the Advertisement dated 05.08.2020 was Rs. 14,000/- - Rs.
60,500/- plus Grade Pay @ Rs. 6,800/-. In the selection process so undertaken, the
petitioners emerged successful and by separate office orders dated 09.10.2020, all the 17
nos. of petitioners came to be appointed and posted as Staff Nurse in the establishment of
the Superintendent, Assam Medical College & Hospital, Dibrugarh against the vacant posts. In
the office orders whereby the petitioners were appointed, Pay Scale was mentioned : Rs.
14,000/ - Rs. 60,500/- per month [RoP 2016] plus Grade Pay @ Rs. 6,800/- per month plus
other allowances as admissible under the rules. On receipt of the appointment orders, all the
petitioners joined at their places of posting i.e. the Assam Medical College & Hospital,
Dibrugarh by submitting their respective joining reports.
5.2. By an office order dated 01.02.2021 passed by the respondent no. 9 i.e. the
Superintendent, Assam Medical College & Hospital, Dibrugarh, the petitioners and few others,
who have B.Sc. degrees in Nursing, were allowed the Grade Pay @ Rs. 8,700/- per month
instead Rs. 6,800/- as per the RoP Rules, 2017. The petitioners started receiving the Grade
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Pay @ Rs. 8,700/- per month since after the order dated 01.02.2021 and the same were also
reflected in their respective pay slips. During the subsequent period, some of the petitioners
had been transferred from the Assam Medical College & Hospital, Dibrugarh to other Medical
Colleges & Hospitals in the State. The respondent no. 9, to the shock and surprise of the
petitioners, passed an office order on 27.07.2021. In the office order dated 27.07.2021, the
said authority mentioned that the newly appointed Staff Nurse in the Assam Medical College
& Hospital were allowed to draw the Pay Scale as mentioned in their appointment orders @
Rs. 14,000/- - Rs. 60,500/- plus Grade Pay @ Rs. 6,800/- per month and hence, those Staff
Nurses who were allowed Grade Pay @ Rs. 8,700/- for having B.Sc. degrees in Nursing by the
office order dated 01.02.2021 stood cancelled with immediate effect and until further order.
The office order dated 27.07.2021 further mentioned that regarding allowing of Grade Pay @
Rs. 8,700/- to those Staff Nurses having B.Sc. degree in Nursing was under consideration by
the higher authority and final the decision by the Government was awaited. The office order
further mentioned that the excess drawal would be recovered in 10 [ten] installments from
those who had drawn Grade Pay @ Rs. 8,700/-.
5.3. Aggrieved by the office order dated 27.07.2021, the petitioners approached the higher
authorities by submitting representation with the request to allow them to draw the Grade
Pay @ Rs. 8,700/- in terms of the provisions of the Assam Services [Revision of Pay] Rules,
2017 on the ground that as per the Assam Services [Revision of Pay] Rules, 2017, the Staff
Nurses having B.Sc. degrees in Nursing are entitled to draw a Grade Pay @ Rs. 8,700/-. When
the representation failed to evoke any response, the petitioners have approached this Court
by the present writ petition seeking inter alia setting aside of the office order dated
27.07.2021 whereby the payment of Grade Pay @ Rs. 8,700/- per month has been stopped
with the further directions to the respondent authorities to pay the petitioners the Grade Pay
@ Rs. 8,700/- per month and not to recover any amount that had already been paid to them.
6. I have heard Mr. U.K. Nair, learned senior counsel assisted by Mr. R. Singha, learned
counsel for the petitioners in both the writ petitions and Mr. B. Gogoi, learned Standing
Counsel, Health & Family Welfare Department and Finance Department for all the
respondents.
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7. Mr. Nair, learned senior counsel appearing for the petitioners has submitted that the
pay and allowances to Staff Nurses are to be determined in terms of the provisions of the
Assam Services [Revision of Pay] Rules, 2017 ['the RoP Rules, 2017', for short]. It has been
specifically laid down in the RoP Rules, 2017 that the Staff Nurse having B.Sc. degree in
Nursing is entitled to draw pay and allowances in the Pay Band - 2 : Rs. 14,000/- - Rs.
49,000/- plus Grade Pay @ Rs. 8,700/-. Though in the Advertisement, it was mentioned that
after the appointment would be with Grade Pay @ Rs. 6,800/-, such mention would not allow
the respondent authorities to pay the Staff Nurses having B.Sc. degrees in Nursing at the
lesser rate than what has been prescribed in the RoP Rules, 2017. It is his submission that
the respondent authorities by way of administrative instructions/executive orders including
the office order dated 27.07.2021, cannot violate the provisions of law. The petitioners have
been made entitled to the Grade Pay @ Rs. 8,700/- considering their educational
qualification, that is, B.Sc. degree in Nursing. It is his further submission that the B.Sc.
degree in Nursing and GNM course cannot be treated as equivalent and B.Sc. degree in
Nursing being a higher qualification, the concerned Pay Commission recommended a higher
Grade Pay to the Staff Nurse having B.Sc. degree in Nursing to that of the Staff Nurse having
qualification of GNM degree and the same was also accepted by the State Government.
8. Mr. Gogoi, learned Standing Counsel, Family & Health Department & Finance
Department has referred to the stand taken by the respondent authorities in their counter
affidavit filed in the two writ petitions. He has submitted that in the counter affidavit filed on
behalf of the respondent authorities in the Finance Department in the writ petition, W.P.[C]
no. 3619/2021, it is mentioned that the 7 th Assam Productivity Pay Commission ['Pay
Commission'] recommended that the nurses who have got B.Sc. degrees should be given
Grade Pay @ Rs. 3,300/- [pre-revised] at the time of direct recruitment. Accordingly, in the
RoP Rules, 2017, the Pay Scale of the Staff Nurse [B.Sc. Nursing] was prescribed in the Pay
Band - 2 : Rs. 14,000/- - Rs. 60,500/- plus Grade Pay @ Rs. 8,700/-. Because of such Pay
Scale provided to the Staff Nurse having B.Sc. degree in Nursing, there emerged two
categories of Staff Nurses - [i] Staff Nurse in the pay structure : Pay Band - 2, Pay Scale :
Rs. 14,000/- - Rs. 60,500/- plus Grade Pay @ 6,800/-, and [ii] Staff Nurse in the pay structure
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: Pay Band - 2, Pay Scale : Rs. 14,000/- - Rs. 60,500/- plus Grade Pay @ 8,700/-. It is also
submitted by Mr. Gogoi, that a proposal was received in the Finance [Pay Research Unit]
Department from the Health & Family Welfare Department on the aspects - [a] uniform
nomenclature for entry level of Staff Nurse irrespective of their qualifications; [b] uniform
Grade Pay of Rs. 6,800/- for Staff Nurses; and [c] incentives of Rs. 1,500/- per month to the
Staff Nurses working in rural areas. The proposal is being considered at various stages and
the respondent Health & Family Welfare Department submitted a draft, "the Assam Nursing
Rules, 2020" showing a Pay Scale for Staff Nurse in the Pay Band - 2 with Grade Pay @ Rs.
6,800/- per month and views are being called for regarding the same.
8.1. Mr. Gogoi has also referred to the averments made in the counter affidavit filed by the
respondent no. 3 i.e. the Director of Health Services, Assam in the writ petition, W.P.[C] no.
4313/2020. In the affidavit, the respondent no. 3 has contended that a set of demands and
grievances were placed on record by the All Assam Nursing Association before the State
Government and the respondent no. 3 had no role in the matter of Grade Pay concerning the
Staff Nurse. It is the Government who has the final authority in the matter of Grade Pay to
the Staff Nurse.
9. I have given due consideration to the submissions of the learned counsel for the
parties and have also gone through the materials brought on record by the parties through
their pleadings. I have also gone through the provisions of the RoP Rules, 2017.
10. The RoP Rules, 2017 have been notified by a Notification dated 17.03.2017 and
published in the Assam Gazette in its issue dated 17.03.2017. The RoP Rules, 2017 deemed
to have come into force w.e.f. 01.04.2016. Rule 2[a] has stated that save as otherwise
provided by or under these rules, these rules shall apply to all employees appointed to
services or posts in connection with the affairs of the State of Assam and which are under the
rule making control of the Governor of Assam. Rule 4[b], Rule 4[f] and Rule 4[g] have
defined "existing pay structure", "Grade Pay" and "Revised Pay structure" respectively.
11. Rule 5 of the RoP Rules, 2017 which has provided for application of the revised pay,
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has stipulated that save as otherwise provided in the RoP Rules, 2017, a Government
employee who is in service on 31.03.2016 or who may have been appointed on or after
01.04.2016 shall draw pay in the revised pay structure [Pay Band with Grade Pay] applicable
to the post/service which he has been holding or to which he may have been appointed, as
the case may be; provided that a Government employee who is in service on 31.03.2016 or
who enters service on or after 01.04.2016, but before the date of publication of these rules,
may, at his option, continue to draw pay in the existing pay structure, until the date on which
he earns his next or any subsequent increment[s] in the existing pay structure or until he
vacates his post or ceases to draw pay in the existing pay structure.
12. From the writ petitions and the counter affidavits, it is demonstrated that in the RoP
Rules, 2017, there are two pay structures for the posts of Nurse/Staff Nurse which are as
under :-
Table
Name of Post or Existing Pay Scale Revised Pay Structure Remarks
Service Pay Band Grade pay Pay Band Grade Pay
Nurse PB-2 5200-20200 2700 PB-2 14000-49000 6800
Staff Nurse PB-2 5200-20200 2700 PB-2 14000-49000 8700 Having B.Sc.
Nursing
Degree
13. It is the stand of the respondent authorities that the 7 th Assam Pay and Productivity
Pay Commission ['the Pay Commission', for short] had recommended that all the nurses who
have got B.Sc. degree in Nursing should be given Grade Pay of Rs. 3,300/- [pre-revised] at
the time of direct recruitment. The recommendation of the Pay Commission are subject to
acceptance or rejection by the State Government and the State in its wisdom and in
furtherance of its valid policy, may or may not accept the recommendations of the Pay
Commission. If a recommendation of the Pay Commission is accepted by the State
Government, the State Government after acceptance of recommendations, without any
modifications or with modifications, usually give effect to the recommendations by framing
Page No.# 14/15
statutory rules being revision of pay rules and the pay structures of the employees are
accordingly fixed. In the case in hand, after acceptance of the recommendations of the 7 th
Assam Pay and Productivity Pay Commission with or without modifications, the State
Government have notified the same by the Notification dated 17.03.2017 and the same were
published in the Official Gazette in its issue dated 17.03.2017. The Notification dated
17.03.2017 have made it specific that the RoP Rules, 2017 has been made by the Governor of
Assam in exercise of the powers conferred by the proviso to Article 309 of the Constitution of
India.
14. It is a settled position of law that the rules made under the proviso to Article 309 of
the Constitution of India are legislative in character and they are constitutional rules, not like
rules under the statute. Hence, they have the same force as the statute, though made by the
executive. It is also true that the rules made under the proviso to Article 309 of the
Constitution of India can be given retrospective effect. But so long as the rules made under
the proviso to Article 309 of the Constitution of India are in force, the same have to be given
effect to. It has been held by a Constitution Bench of the Hon'ble Supreme Court of India in
Sant Ram Sharma vs. State of Rajasthan and others, reported in AIR 1967 SC 1910 that
Government cannot amend or supersede statutory rules by administrative instructions, but if
the rules are silent on any particular point the Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent with the rules already framed. An
authority therefore, cannot issue administrative orders/executive instructions in contravention
of the statutory rules as such instructions are only subservient to statutory rules. A statutory
rule shall always have primacy over the administrative orders/executive instructions.
15. A look at the RoP Rules, 2017, more particularly, the Table hereinabove, makes it ex-
facie apparent that the Staff Nurse having B.Sc. degree in Nursing has been allowed a Grade
Pay of Rs. 8,700/- whereas the other nurse, purportedly without B.Sc. degree in Nursing, is
allowed a Grade Pay of Rs. 6,800/-. Since the RoP Rules, 2017 are statutory rules framed
under the proviso to Article 309 Constitution of India, the Government and all other
authorities under it are under obligation to follow and enforce the statutory rules and the Pay
Structure and Grade Pay prescribed to a Government employee like a Staff Nurse having B.Sc.
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degree in Nursing, covered by the RoP Rules. It is trite to say that neither the Government
can act contrary to the rules nor the Court can direct the Government to act contrary to the
rules. From the fact situation obtaining in the two writ petitions in hand, it has emerged that
the petitioners have sought a direction in the nature of mandamus to the State respondents
to follow and enforce the provisions of the RoP Rules, 2017. As it has emerged that it is the
State respondents who have refrained from following and enforcing the provisions of the RoP
Rules, 2017 in relation to the Grade Pay entitled to Staff Nurse having B.Sc. degree in Nursing
@ Rs. 8,700/- per month without any justified cause, this Court is of the clear view that by
not allowing the Grade Pay @ Rs. 8,700/- per month to the petitioners, who are serving as
staff Nurses and are having B.Sc. degrees in Nursing, the State respondents have acted
contrary to law. In such view of the matter, the order dated 27.07.2021 passed by the
respondent no. 9 in respect of the petitioners in the writ petition, W.P.[C] no. 3619/2020 is
found unsustainable in law and the same is accordingly set aside. This Court is also of the
considered view that if the petitioners in the two writ petitions are having B.Sc. degrees and
are continuing as Staff Nurses under the State respondent authorities, they are entitled to
draw Grade Pay @ Rs. 8,700/- per month from the date of their respective appointments
which are seem to be after 01.04.2016, that is, the date of coming into force of the RoP
Rules, 2017. The State respondents are accordingly directed that the petitioners shall be paid
the Grade Pay @ Rs. 8,700/- from the date of their respective dates of joining. The arrears, if
any, shall be paid within a period of 4 [four] months.
16. With the observations made and the directions given above, the two writ petitions are
allowed to the extent indicated above. There shall, however, be no order as to costs.
JUDGE
Comparing Assistant
