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IN THE HIGH COURT OF GAUHATI
MANISH CHOUDHURY, J.
Rinti Baishya And Others — Appellant
Versus
State Of Assam And Others — Respondent
Writ Petition (Civil) Nos. 4313 of 2020 and 3619 of 2021
Decided on : 22-09-2022
Grade Pay - Staff Nurse - RoP Rules, 2017 - 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. Rule 5 of the RoP Rules, 2017 which has provided for application of the revised pay, 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.
Fact of the Case:
The petitioners, who are Staff Nurses with B.Sc. degrees in Nursing, sought a direction to declare the action of the respondent authorities in not granting the Grade Pay @ Rs. 8,700/- to them, as envisaged in the Assam Services [Revision of Pay] Rules, 2017, 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 arrears.
Finding of the Court:
The Court found that the State respondents acted contrary to law 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 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. The Court directed the State respondents to pay the petitioners the Grade Pay @ Rs. 8,700/- from the date of their respective dates of joining, with arrears to be paid within a period of 4 [four] months.
Issues: The main issue was the entitlement of the petitioners, who are Staff Nurses with B.Sc. degrees in Nursing, to draw Grade Pay @ Rs. 8,700/- per month as per the Assam Services [Revision of Pay] Rules, 2017, and the legality of the respondent authorities' actions in not granting the Grade Pay @ Rs. 8,700/- to them.
Ratio Decidendi: The Court held that the State respondents acted contrary to law 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, and accordingly set aside the order dated 27.07.2021. The Court directed the State respondents to pay the petitioners the Grade Pay @ Rs. 8,700/- from the date of their respective dates of joining, with arrears to be paid within a period of 4 [four] months.
Final Decision: The two writ petitions were allowed to the extent indicated above, with no order as to costs.
JUDGMENT :
Manish Choudhury, J.
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 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 pet
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