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2019 Supreme(Gau) 1100
IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Rajib Khan and Others – Appellants
Versus
Union of India and Others – Respondents
W.P. (C) No. 1354 of 2018
Decided On : 11-06-2019
Advocate Appeared:
For the Appellants : R. Mazumdar, H. Bezbaruah.
Headnote:
Standing Operating Procedure 2010 – BSF Combatised Para Medical Staff Recruitment Rules, 2013 – CCS (Pension) Rules, 1972 – Rule 26 – Grant of Nursing Allowance – In this petition, the petitioners who are serving as Nursing Assistants in the Border Security Force and are claiming for grant of nursing allowance as had been given to other Nursing Assistants serving in other paramilitary forces like Assam Rifles and CRPF – It is the claim of the petitioners that the petitioners were selected for appointed to the posts of Head Constable (Nursing Assistant) in BSF having fulfilled the eligibility criteria for appointment to the said posts as mentioned in the Standing Operating Procedure 2010 – The petitioners contend that after serving in the force in the Border Security Force for several years they had undergone various nursing courses conducted by the BSF authorities for which they had to undergo certain examination also – On completion of the said aforesaid nursing courses conducted by the BSF authorities, they were issued certificates to the effect – The aforesaid certificates clearly mention that they have acquired the required skill for nursing assistance to the ill/sick and accordingly, they have been discharging the duties of nursing to the ill and sick members of the force in various composite hospitals, base hospitals and unit hospitals – It is the Nursing Assistants including the petitioners who provide service not only to Composite Hospitals, but to the remaining Frontier Hospitals, Sector Hospital, Training Sector and Unit Hospitals – Held, From the above, it is clear that the stand of the respondent authorities is that the petitioners do not possess the necessary qualifications for appointment as Nursing Personnel, as they do not possess registration certificate from the State Nurse Council and also have not undergone Nursing Program recognized by the Indian Nursing Council as mentioned by Ministry of Home Affairs UO N, Ministry of Home Affairs UO – As regards these contentions, this Court is of the opinion that similar contentions had been raised before the Court by the authority of Assam Rifles Personnel in the writ petition referred to above, which had repelled by the Court by holding that the educational qualifications cannot be a ground for denial of nursing allowance, if the nursing assistants also form integral part of the nursing service – In this petition also the respondent authorities have admitted in their affidavit-in- opposition that the nursing assistants form an integral part of the nursing staff of the organization – If that is so, this Court would held that the said plea cannot be accepted – If the role and duties of the petitioners are similar to nurses and they form integral part of the nursing staff, denial of nursing allowance to the petitioners, while giving to other nurses would be plainly discriminatory, as also held by the Court in the case referred to above –Accordingly for the reason discussed above, this Court is of the view that the petitioners would be entitled to nursing allowance and respondent authority will do the needful and pass appropriate orders in this regard to grant the petitioners the same benefit of nursing allowance from the date they had been discharging duties as Nursing Assistants – Order Accordingly
ORDER :
1. Heard Mr. R. Mazumdar, learned senior counsel, assisted by Mr. H. Bezbarua, learned counsel for the petitioners. Also heard Mr. S.S. Roy, learned Govt. Advocate for the Union respondent.
2. In this petition, the petitioners who are serving as Nursing Assistants in the Border Security Force and are claiming for grant of nursing allowance as had been given to other Nursing Assistants serving in other paramilitary forces like Assam Rifles and CRPF.
3. The claim of the petitioners is also based on decision rendered by this Court in WP (C) No. 279 (SH) of 2009 of the then Shillong Bench of this Court, disposed of on 4.11.2010, which was upheld by the Division Bench of the Shillong Bench of this Court in Writ Appeal No. (SH) 1 of 2011.
4. Only the relevant facts in brief may be referred to.
5. The petitioners entered service as Nursing Assistants on different dates as mentioned in para 5 of the Writ Petition.
6. It is the claim of the petitioners that the petitioners were selected for appointed to the posts of Head Constable (Nursing Assistant) in BSF having fulfilled the eligibility criteria for appointment to the said posts as mentioned in the Standing Operating Procedure 2010 which reads as follows:
"4. Eligibility Conditions:
Those Head Constable and Constables, who are possessing certificates of not less than 06 months Nursing Assistant Course conducted by BSF or Army authority, are to be considered for appointment by deputation/absorption:-
| (a) | Age | (i) | Head Constable below 45 years of age. |
| (ii) | Constable below 40 years of age with 5 years of continuous service in the grade. | ||
| (b) | Education Qualification |
|
|
| (i) | Academic |
| Class 10th Passed. |
| Preference will be given to the candidates possessing education 10+2 with science. | |||
| (ii) | Technical | (i) | Certificate of not less than 6 months Nursing Assistant Course conducted by BSF or Army authorities. |
| (ii) | Preference will be given to those candidates qualified in advanced Nursing Assistant Course conducted by BSF equivalent Army Course for the duration not less than 01 year. | ||
| (iii) | Candidates undergone Training/Course/Experience in Lab Technology, Physiotherapy, X-ray, ECG for duration of minimum 3 months conducted by BSF or Army or any other state/Central Agency will be considered for merit. | ||
| (iii) | Experience |
| Minimum 3 years experience in BSF Hospital as Nursing Assistant is essential. However, preference will be given to those presently performing duty/ attached with BSF Hospital as Nursing Assistant. |
| Note: The years of experience will be assessed from the ACR dossiers of the individual. In absence of entry of performing duty as Nursing Assistant in ACR file, certificate issued by a Medical Officer/Comdt/HOO based on records of service will be considered. | |||
7. The petitioners contend that after serving in the force in the Border Security Force for several years they had undergone various nursing courses conducted by the BSF authorities for which they had to undergo certain examination also. On completion of the said aforesaid nursing courses conducted by the BSF authorities, they were issued certificates to the effect.
8. The aforesaid certificates clearly mention that they have acquired the required skill for nursing assistance to the ill/sick and accordingly, they have been discharging the duties of nursing to the ill and sick members of the force in various composite hospitals, base hospitals and unit hospitals.
9. Though, the petitioners were initially appointed as Constables and other ranks initially, after they successfully underwent the nursing courses conducted by the Border Security Force as mentioned above, they have been formally appointed and absorbed as Head Constabl
