Judgment

KULDIP SINGH, J.

(1) THE question for consideration in these two appeals is whether the creation of two cadres, consisting of Nursing Superintendent Grade I, Nursing Superintendent Grade II, Assistant Nursing Superintendent and Nursing Tutor (hereinafter called nursing cadre) and of Compounder Grade I, Compounder Grade II and Com- pounder Grade III (hereinafter called compounders cadre) under the Rajasthan Medical and Health Subordinate Service Rules, 1965 (hereinafter called Rules), is arbitrary and as such violative of Articles 14 and 16 of the Constitution of India.

(2) 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 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 1. 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 separate 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.

(3) 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 holding that creation of two separate cadres did not infringe the equality clause and also that there was no discrimination on the ground of sex. Both Sharma and Jain filed separate special appeals before a division bench of the Rajasthan High court.

(4) 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, right 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 groups 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 accepted."

(5) 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 justification 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 Superintendent and other higher posts from the dates when they filed Writ Petition in the High court. This is how these two appeals by way of special leave, filed by the State of Rajasthan, are before us.

(6) 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 were no st