vil Appeal Nos
6 147 6 148 of 1983
From the Judgment and Order dated 17183 of the Rajas than High Court in DB Spl
Appeal No 43 of 1978  DBSA No 14 of 1975
Sharma for the Appellants
672 Dalveer Bhandari KRR Pillai Surya Kant PT 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 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 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 vs NC Paliwal  others  this Court held as under 674 It is now well settled as a result of the decision of this Court in kishori Mohanlal Bakshi vs Union of India AIR 1962 SC 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 41 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
section 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
RNCR
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 412 years experience out of which 4 years must be as Sister Tutor  3 years as Nursing Supdt
II or at an equi valent post 2
Nursing 25 by 1
RNCR 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
RNCR
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
Sister Tutors course passed 47 years exper ience out of which at least 3 years should be as Nursing Tutor 1 
Sister or 25 by 1
RN CR
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
Government II or 4 2Regd A  years ser vice as grade Nurse Staff Nurse 3
Sister out of Tutors which 3 Course passed
years con tinuous 43 years service experience should be as staff in opera NurseComp
tion Thea Gr
II tre or 3 years ser vice as Staff Nurse with Sister 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
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 PNCR or its equivalent 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
 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
RSS Appeals allowed


Summary:
The appellant a transporter brought some goods to Delhi without paying terminal tax
Under Section 464 of the Delhi Municipal Corporation Act 1957 a penalty of ten times the amount of terminal tax was demanded from the appellant
The demand was challenged before the High Court by way of a Writ Petition
The High Court considered the question as to whether the penalty imposed under section 464 of the Act could be imposed by the taxing authority without a prosecution having been filed before a competent magis trate and answered it in the affirmative
This appeal by special leave is against the High Court s judgment
On behalf of the appellant it was contended that Sec tion 464 of the Act gives a wide discretion to impose penal ty upto ten times of the tax payable and as such is a judi cial function which cannot be left to the executive authori ty and hence the authority who imposed the penalty was not competent to do so
The respondents contended that Section 464 does not pertain to any offence and penalty levied under this section is not punishment that section 463 provides for punishment after conviction and so for imposition of penalty under Section 464 the prosecution of the appellant before a competent magistrate is not at all necessary
It was also contended that Section 59 confers very wide powers on the Commissioner and he is also authorised to delegate the functions and under such delegated authority the penalty has been imposed under Section 464
Dismissing the appeal HELD 1 Penalty under Section 464 of the Delhi Munici pal Corporation Act 1957 could be imposed without a convic tion by a 651 criminal court
The different phraseology used in sections 463 and 464 clearly go to show that where the ingredients of Section 463 are not in doubt it is open to the corporation authorities to launch a prosecution against the person who introduces the goods without payment of terminal tax and in this event the person on conviction only can be punished and the punishment is also imprisonment but the highest limit of fine is limited to Rs1000 whereas under Section 464 neither there is any reference to a conviction nor any reference to the Court of a Magistrate and the only penalty provided is monetary which may extend to ten times
It is therefore clear that Section 463 refers to a criminal of fence if committed could only be tried by a competent criminal court and on conviction alone the punishment could be imposed but Section 464 is in the nature of a revenue provision where non payment of tax could be remedied by imposition of penalty and the limit of penalty has been prescribed at ten times of the tax which is payable
In view of different language used in the two sections and also the language used in the marginal note it is clear that the two cannot be said to be same or similar
It is no doubt true that as regards the offences a specific provision has been made in Section 469 for appoint ment of a Municipal Magistrate but in respect of penalties there is no specific provision authorising any officer or authority to exercise jurisdiction under the section where for evasion of tax penalty could be levied like Section 464 but it could not be doubted that Section 59 gives a very wide power to the Municipal Commissioner either to exercise these powers himself or to delegate
It is not in dispute that in exercise of powers under Section 59 the Municipal Commissioner had the authority and exercising the powers under Section 491 of the Act by notification dated September 17 1973 he delegated the functions under Section 464 to the taxing authorities
Hence the taxing authorities were competent under the scheme of this Act to impose the penalty to the tune of ten times of the tax which is pay able
655G H 656A B