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Judgment
Heard Mr. R. Mazumdar, learned counsel appearing for and on behalf of the petitioners. Though, Mr. R. Debnath, learned CGC was not
present before the Court on the date of argument, but he had filed an affidavit stating that he could not appear due to pre-occupation in other
Court.
The brief fact of the petitioner''s case in a nutshell is that:
The Petitioners preferred the present writ petition before this Hon''ble High Court under Article 226 of the Constitution of India
praying for a direction to the respondents to pay to the petitioners the benefits of the Nursing Allowance for the period of their service
rendered as Nursing Assistants in the Assam Rifles to which they are legally entitled to. The petitioners had joined the services of the
Assam Rifles as Nursing Assistants in the year 2001, 1999, 2000, 1987, 1999, 1987 and they were thereafter re-mustered as Dental
Tech (Hav), DH, DORA. The petitioners are continuing to serve in the Assam Rifles in the aforesaid capacities. The Government of
India, Ministry of Health and Family Welfare had conveyed the sanction of Nursing Allowance to nursing personnel of all categories
at all levels working in the Central Govt. Hospitals/Institutions/Hospitals run by Delhi Administration including Municipal Committees
and the centrally funded statutory bodies and autonomous bodies w.e.f. 01/10/1986. The scheme revised from time to time and at
present the rate of Nursing Allowance stands at Rs. 3200/- per month w.e.f. 01/09/2008. By Office Memorandum dated
20/07/2009, the Government of India in the Ministry of Home Affairs with the concurrence of the Ministry of Finance conveyed the
sanction of Nursing Allowance to be applicable to the Nursing personnel of Central Police Forces. The Assam Rifles had
communicated the decision for payment of Nursing Allowance to Assistant Matrons, Staff Nurse and Auxiliary Nursing Midwives
leaving aside the Nursing Assistants. The issue as to the entitlement of Nursing Assistants to Nursing Allowance in the Assam Rifles is
no-longer reintegrate, the same having been decided affirmative by this Hon''ble Court by Judgment and Order dated 04/10/2010
passed in WP(C) No.279 (SH)/2009, which has been upheld by a decision of the Division Bench of this Hon''ble Court by Judgment
and Order dated 25/05/2012 passed in Writ Appeal (SH) No. 1/2011. The Respondents have initiated action to pay the nursing
allowance in applicable rates to only those nursing assistants who were the party/petitioner in WP(C) 279(SH)/2009. The Petitioners
state in addition to the fact that they are entitled to the nursing allowances at the applicable rates as given in the various office
memorandums, the Respondents have not only acted beyond the law in not affording the same to the Petitioners herein but have also
violated the Principles of Equality when the said allowances now being proposed to be paid only those persons who were party in the
writ proceedings before this Hon''ble High Court and are attempting to discriminate the petitioners who are similarly situated persons
from the said benefits. Hence this writ petition"".
The learned counsel for the petitioners submitted that this is a covered case and further submits that the petitioners are claiming the benefits of
the Nursing allowance for the period of their service rendered as Nursing Assistants in the Assam Rifles. The prayer of the petitioners is quoted
herein below:
In the premises aforesaid, it is most respectfully prayed that your Lordships may be pleased to:-
(I) Allow the Petitioners to approach this Hon''ble Court by this joint petition for redressal of their grievances; and further be pleased
to
(II) Issue a writ, thereby upholding the entitlement of the petitioners to the Nursing Allowance since they are nursing personnel serving
in the Assam Rifles; and as a consequential relief be further pleased to
(III) Issue a writ of Mandamus directing the official Respondents to grant the benefit of Nursing Allowance to the writ petitioners as
per orders dated 4/1/1988, 2/7/1998, 28/7/1998 and 19/11/2008 issued by the Ministry of Health and Family Welfare and the office
memorandum dated 28/7/2009 issued by the Ministry of Home Affairs within a reasonable period of time, as is being given to the
Nursing Personnel of all Categories at all levels in the Hospitals run by the Central Government and/ or be pleased to
(IV) Pass such other order or orders, as your Lordships may deem fit and proper in the facts and circumstances of the case.
And for this act of kindness, the petitioners, as in duty bound, shall ever pray"".
To support his submission, the learned counsel for the petitioners relied on the judgment dated 04.11.2010 ""Naib Subedar/Nursing Assistant
Dijendra Pathak No. 370399P & 50 Others versus The Union of India & 2 Others"" passed by the Hon''ble Gauhati High Court, Shillong Bench in
WP(C) No. 279 (SH) of 2009 as well as the Appeal in W.A. No. (SH) 1 of 2011. Para 25 of the said judgment dated 04.11.2010 in WP(C)
No. 279 (SH) of 2009 is reproduced herein below for ready reference:
For all the aforesaid reasons, the prayer of the petitioners in acceptance of the Writ Petition is allowed. It is hereby declared and
ordered that the petitioners are entitled to NA at par with the other nursing staff from the respective date of applicability of the same
at the prescribed rates. The respondents are directed to provide the petitioners with the benefit of NA as expeditiously as possible,
but at any rate not later than three months from today.
On perusal of the judgment referred above and after considering the submission advanced by the learned counsel for the petitioners, I do not
find any impediment to consider the prayer of the petitioners. If it is so, in my considered view, the same principle is applicable to the petitioners in
this instant writ petition.
The Respondents are directed to provide the petitioners with the benefit of Nursing Assistant within 3(three) months from the date of receipt of
a copy of this judgment and order.
With this observation and direction the writ petition is allowed to that extent and stands disposed of.