http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: STATE OF RAJASTHAN & ANR.

       Vs.

RESPONDENT: SHANTILAL ETC.

DATE OF JUDGMENT02/08/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SHETTY, K.J. (J)

CITATION:  1989 SCC  Supl.  (2) 777 JT 1989 (3)   273  1989 SCALE  (2)185

ACT:     Rajasthan Medical and Health Subordinate Service  Rules, 1965: Creation of two cadres--Nursing Cadre (Nursing  Super- intendent  Grade I/Grade II, Assistant Nursing  Superintend- ent,  Nursing Tutor) and Compounder Cadre (Compounder  Grade I/Grade II/Grade III)Whether valid and legal.

HEADNOTE:     Bansi Lal Sharma, respondent in one appeal, was appoint- ed as Male Nurse in 1941 and was officiating as Sister Tutor in March 1966 when the Rajasthan Medical and Health subordi- nate  Service Rules, 1965 came into force. Shanti Lal  Jain, respondent in the second appeal, was appointed as Compounder Grade I in the year 1959 and was holding the post of  Sister Tutor  in March 1966. In their separate petitions  fried  in the  Rajasthan  High Court, the respondents  challenged  the creation of two separate cadres Nursing Cadre and  Compound- ers  Cadre--under the Rules as arbitrary and as such  viola- tive of Articles 14, 15 and 16 of the Constitution of India. It  was pleaded that hitherto there was combined channel  of promotion  for  compounders  and nurses but  the  Rules  had arbitrarily  deprived Compounders Grade I of their right  to promotion to higher posts of Assistant Nursing  Superintend- ent  and  Nursing Superintendent Grade II/Grade  I.  It  was further  urged  that recruitment to the  Nursing  Cadre  was confined  to females alone which resulted in  discrimination on the ground of sex.     The writ petitions were dismissed by the learned  Single Judges who held that creation of two separate cadres was not arbitrary, did not infringe the equality clause, and was not discriminatory on the ground of sex. ’The Division Bench, on appeal, upheld the findings of the learned Single Judges  on Article 5 but set aside their judgments and found that there was no justification for creating separate cadres and  deny- ing  channel  of  promotion to Compounders Grade  I  to  the higher  posts in the Nursing Cadre. The Division  Bench  ac- cordingly  held the Rules to be arbitrary and  violative  of Articles 14 and 16 of the Constitution. Allowing the appeals filed by the State, this Court, 671     HELD:  1.  Prior to 1966 there was  no  statutory  Rules pertaining  to  the  service. No  executive  order  creating

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

cadres in the department or a joint seniority list  indicat- ing  common cadre for nurses and compounders have been  pro- duced. [673F]     2. Even assuming that prior to coming into force of  the Rules there was a combined cadre of nurses and  compounders, Articles  14  and 16 of the Constitution do not  forbid  the State  Government from creating new cadres, bifurcating  one cadre  into two or more, or uniting two or more cadres  into one. The creation of cadres in the service of the State is a matter  which has to be left entirely to the  State  Govern- ment. [673G-H]     Reserve  Bank of India v. N.C. Paliwal & Ors., [1977]  1 S.C.R. 377; referred to.     3. A bare reading of the Rules show that the composition of the two cadres including designations, qualifications and methods of appointment to various posts, is entirely differ- ent.  This  Court does not agree with the  High  Court  that Nurses and Compounders belong to one class and as such  must be encadred together. [678B]     4. It is not for the High Court to assume the extent  of maternity  cases  which are treated in the hospitals  or  to lay-down  that  compounders though not  qualified  to  treat maternity cases must be equated with nurses because they can treat other type of cases. [678G]     5.  By  amending the Rules in 1978 an opening  has  been provided for compounders Grade II to enter the Nursing cadre by competing with the staff nurses for promotion to the post of Sister/Nursing Tutor. The Compounders Grade II have  thus been  provided with two channels of promotion, one in  their own  cadre  and  the other to the Nursing  Cadre.  Thus  the grievance  of the Compounders that they were denied  channel of  promotion to the higher posts in Nursing Cadre has  also been removed. [679B-C]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6  147-6 148 of 1983.     From the Judgment and Order dated 17.1.83 of the  Rajas- than  High  Court  in  D.B. Spl. Appeal No.  43  of  1978  & D.B.S.A. No. 14 of 1975. B .D. Sharma for the Appellants. 672     Dalveer Bhandari, K.R.R. Pillai, Surya Kant, P.T. Mathur and Sambandhan for the Respondents. The Judgment of the Court was delivered by     KULDIP SINGH, J. The question for consideration in these two appeals is whether the creation of two cadres,  consist- ing of Nursing Superintendent Grade I, Nursing  Superintend- ent  Grade II, Assistant Nursing Superintendent and  Nursing Tutor (hereinafter called ’nursing cadre’) and of Compounder Grade  I,  Compounder  Grade 1I  and  Compounder  Grade  III (hereinafter called ’compounders cadre’) under the Rajasthan Medical and Health Subordinate Service Rules, 1965  (herein- after called ’Rules’), is arbitrary and as such violative of Articles 14 and 16 of the Constitution of India. The relevant facts are as under.     Bansi Lal Sharma was appointed as Male Nurse in 1941. He qualified Punjab Nursing Registration Council Examination in 1944 and was confirmed as Compounder Grade-I in 1950. He was officiating  as Sister Tutor when the Rules came into  force in March, 1966. He filed writ petition in the Rajasthan High Court  in  1971  challenging the creation  of  two  separate cadres  under the rules. It was pleaded that hitherto  there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

was combined channel of promotion for compounders and nurses but the rules have arbitrarily deprived compounders  Grade-I of their right to promotion to the higher posts of Assistant Nursing Superintendent, Nursing Superintendent Grade-II  and Nursing  Superintendent Grade-I. It was further  urged  that recruitment  to  the nursing cadre was confined  to  females alone which resulted in discrimination on the ground of  sex and  as such violative of Article 15 of the Constitution  of India. Kan Singh, J. rejected the contentions of Sharma  and held  that there was no arbitrariness in creating two  sepa- rate  cadres for nurses and compounders. The  learned  Judge further  found  as a fact that males and females  were  both eligible  for recruitment to the nursing cadre and  as  such repelled the attack on ground of Article 15.     Shanti  Lal  Jain,  in the second  case,  was  appointed compounder Grade-IV in 1955. He was confirmed as  compounder Grade-I  in the year 1959 and in March, 1966 when the  rules were  enforced, he was holding the post of Sister  Tutor  on officiating basis. He also challenged the vires of the Rules on the grounds of Articles 14, 15 and 16 of the Constitution of India. Dwarka Prasad, J. dismissed the writ petition 673 holding  that  creation of two separate cadres did  not  in- fringe  the equality clause and also that there was no  dis- crimination on the ground of sex. Both Sharma and Jain filed separate  special  appeals before a Division  Bench  of  the Rajasthan High Court.     The Division Bench upheld the findings of learned single Judges on Article 15 in the following terms:               "Both  the learned single Judges were, in  our               opinion,  fight in holding that the Rules  did               not  exclude the appointment of males  on  the               posts mentioned in group A of the Schedule and               the said categorisation of group A and E could               not  be  held to be  unconstitutional  on  the               ground  that  it was based on sex  alone.  The               argument  of Shri Mridul that the  Rules  were               violative  of the provisions of Article 15  of               the Constitution cannot, therefore, be accept-               ed."     So  far as the attack on the grounds of Articles 14  and 16 was concerned, the Division Bench set aside the judgments of learned single Judges and found that there was no  justi- fication for creating separate cadres and denying channel of promotion to compounders Grade-I to the higher posts in  the nursing cadre. The Bench held the Rules to be arbitrary  and violative of Articles 14 and 16 of the Constitution of India and  directed  the State Government to consider  Sharma  and Jain for promotion to the post of Assistant Nursing Superin- tendent  and  other higher posts from the  dates  when  they filed  writ petitions in the High Court. This is  how  these two  appeals by way of special leave, filed by the State  of Rajasthan, are before us.     There  is no material on the record to show as  to  what was  the cadre-composition before coming into force  of  the Rules. Prior to 1966 there was no statutory Rules pertaining to  the service. No executive order creating cadres  in  the department or a joint seniority list indicating common cadre for  nurses and compounders have been produced.  Simply  be- cause  Sharma  and  Jain were working as  Sister  Tutors  in officiating capacity in 1966 it cannot be assumed that there was  a  joint cadre of compounders and nurses.  Even  if  we assume  that prior to coming into force of the  Rules  there was a combined cadre of nurses and compounders, Articles  14 and  16 of the Constitution do not forbid the State  Govern-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

ment  from creating new cadres, bifurcating one  cadre  into two  or  more or uniting two or more cadres  into  one.  The creation  of cadres in the service of the State is a  matter which  has to be left entirely to the State  Government.  In Reserve  Bank  of India v. N.C. Paliwal & others,  [1977]  1 S.C.R. 377 this Court held as under: 674               "It  is now well settled, as a result  of  the               decision  of  this Court in  kishori  Mohanlal               Bakshi  v.  Union of India, A.I.R.  1962  S.C.               1139  that Article 16 a fortiori also  Article               14  do  not forbid the creation  of  different               cadres for government service. And if that  be               so, equally these two Articles cannot stand in               the  way  of the State  integrating  different               cadres into one cadre. It is entirely a matter               for the State to decide whether to have sever-               al different cadres or one integrated cadre in               its services. That is a matter of policy which               does  not  attract the  applicability  of  the               equality clause."     The  High Court has, by strained-reasoning, come to  the conclusion  that the nurses and compounders form  one  class and as such treating them differently by creating two  sepa- rate  cadres is discriminatory and violative of Articles  14 and 16 of the Constitution of India. To appreciate the  High Court reasoning we may reproduce Rule 4(1) of the Rules  and relevant part of Schedule to the Rules:               "4.   Composition   and   Strength   of    the               Service--(1)  The service shall consist  of  X               eleven groups. The fight of promotion shall be               confined  to  each  group  except  the  extent               specified in the Schedule. S. Name of  Source of  Minimum   Post from  Minimum remarks No. Post  recruitment qualification which pro-  qualifica             with       and        motion is     tion &             percentage experience   to be      experience                        for direct    made       required                        recruitment                for                                                 promotion  1    2         3          4          5        6       7                GROUP A 1.  Nursing    50% by    1. R.N.C.R. Nursing  3 years     Supdt.    direct     or its      Supdt.   service as     Gr.I     recruitment equivalent  Gr. II   Nursing               with per-  qualification        Superin-              centage &   recognised           tendent              50% by      by Govern-           Gr.II              promotion   ment                          2. Regd.’A’ 675                         grade Nurse                         3. Sister                         Tutor course                         passed                         4.12 years                         experience                         out of which                         4 years must                         be as Sister                         Tutor & 3                         years as                         Nursing                         Supdt.                         Gr. II or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

                       at an equi-                         valent post 2.  Nursing  25% by      1. R.N.C.R.   Asstt.   2 years     Supdt.   direct      or its equi-  Nursing  service as     Gr. II   recruitment valent quaIi- Supdt.   Asstt.              75% by      fication re-           Nursing              promotion   cognised by            Supdt.                          Government                         2. Regd. ’A’                          Grade Nurse                         3. Sister                          Tutors’                         course passed                        4. 10 years’                         experience                         out of which                         4 years’                         should be as                         sisters Tutor                         & 3 years as                         Asstt. Nursing                         Supdt. or                         at an equi-                         valent post. 676 3.  Asstt.   25% by      1. R.N.C.R.   Sister     2  years     Nursing  direct      or its equi-  or Nursing service as     Supdt.   recruitment valent quali- Tutor      Sister or              and 75% by  fication re-           Nursing              promotion   cognised by             Tutor                          Government                          2. Regd. ’A’                          grade Nurse.                          3. Sister                          Tutors course                          passed                          4.7 years exper-                          ience out                          of which at                          least 3 years                          should be as                          Nursing Tutor 1-.  Sister or  25% by      1. R.N .C.R. Staff       5 years      Nursing    direct      or its equi-  Nurse/   service      Tutor      recruitment valent quaIi- Comp.    as Staff                 and 75% by  fication re-  Gr. II    Nurse/                 promotion   cognised by            Comp.Gr.                             Government             II or 4                             2.Regd. ’A’          years ser-                                                  vice as                             grade Nurse       Staff Nurse                             3. Sister          out of                             Tutors             which 3                           Course passed.       years con-                                                tinuous                           4.3 years                service                           experience               should be                           as staff                                                   in opera-                          Nurse/Comp.              tion Thea-                           Gr.II                   tre or 3                                                   years ser-                                                   vice as                                                  Staff Nurse                                                  with Sister

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

                                              Tutor Certif-                                                  icate 677        Note: For the post of Sister Tutor, Sister               Tutor’s Certificate will be compulsory 5.  Staff     75% by     PNRC or          Midwife &7 years     Nurse     direct     its equi-      Auxiliary service as     Comp.     recruitment valent        Nurse     Midwife or     Gr.II     & 25% by   qualification  Midwife   Auxiliary               promotion  Recognised               Nurse                          by                       Midwife                          Government 6,  Midwife     100% by     Auxiliary      --     --     & Auxi-     direct      Nurse     liary Nurse recruitment Midwifery     Midwife                 trained and                             VIII standard                             passed GROUP ’E’ 1.  Compoun- 100% by      --       Compoun- PNRC or     der Gr. I  promotion           der Gr. II its equi-                                           valent                                           qualifica-                                           tion recog-                                           nised by                                           Govern-                                           ment with                                           5 years                                           service as                                           Compoun-                                           der Gr. II. 2.  Compoun-  -do-               Compoun- PNRC or     der Gr.   II                 der Gr. III its equi-                                          valent                                          qualifica-                                          tion recog-                                          nised by                                          Govern-                                          ment 678 3. Compoun-    100% by       Matriculate     der Gr.III direct        or equivalent                recruitment qualification                              recognised by                              Government.     A bare-reading of the Rules show that the composition of the  two cadres including designations,  qualifications  and methods of appointment to various posts, is entirely differ- ent.  We  do not agree with the High Court that  nurses  and compounders belong to one class and as such must be encadred together.  The attention of the High Court was  invited  to- wards  the qualifications prescribed for the  nursing  cadre and  it was argued that the compounders do not  possess  the said qualifications and hence are not eligible to be consid- ered for promotion in nursing cadre. The High Court repelled the argument with the following reasoning:               "Special  qualification  in midwifery  is  re-               quired  for  the purpose  of  maternity  cases               only.  But maternity cases form only  a  small               part  of the patients undergoing treatment  in               the  hospitals  and special  qualification  in               midwifery is not required for other  patients.               In  this  regard it may be  pointed  out  that               under  the  original Schedule to the  Rules  a               person  having  P.N.C.R.  or  its   equivalent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

             qualification  recognised  by  Government  was               eligible for direct recruitment or the post of               Staff  nurse and it was not necessary that  he               should be midwifery trained. Such a person  on               being  appointed as Staff nurse could be  pro-               moted to all the higher nursing posts  enumer-               ated  in group ’A’ of the schedule.  In  other               words, the absence of special qualification in               midwifery would not preclude a person who  was               directly  recruited as Staff nurse being  pro-               moted to the higher posts. There is no  reason               why  the  same person should  be  denied  this               right  if  he,  instead of  joining  as  staff               nurse, joined as compounder Gr. III."     We do not agree with the approach of the High Court.  It is not for the High Court to assume the extent of  maternity cases which are treated in the hospitals or to lay-down that compounders  though not qualified to treat  maternity  cases must  be  equated with nurses because they can  treat  other type of cases. The High Court further errored when it equat- ed the qualifications of Punjab Nursing Registration Certif- icate  with  that of matriculation for holding  that  staff- nurses and com- 679 pounders Grade-III possess the same qualifications for entry into  service.  On the face of it Nursing Certificate  is  a specialised qualification and cannot be equated with matric- ulation.     We  may  mention that by amending the Rules in  1978  an opening has been provided for compounders Grade 11 to  enter the  nursing  cadre by competing with the staff  nurses  for promotion to the post of Sister-Nursing Tutor. The compound- ers  Grade II have thus been provided with two  channels  of promotion,  one  in  their own cadre and the  other  to  the nursing  cadre. Thus the grievance of the  compounders  that they were denied channel of promotion of the higher posts  m nursing cadre has also been removed.     We,  therefore,  see no legal or  equitable  grounds  to sustain  the judgment of the High Court. We accept  the  ap- peals  and set aside the judgment of the Division  Bench  of the  High  Court.  Affirming the judgments  of  the  learned single  Judges we hold that the Rules  are  constitutionally valid. There shall be no order as to costs. R.S.S.                                               Appeals allowed. 680