IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 523 of 1995 in SPECIAL CIVIL APPLICATION No 1351 of 1982 For Approval and Signature: Hon'ble MR.JUSTICE A.R.DAVE and Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 523 of 1995 MR PRACHHAK, ASST. GOVERNMENT PLEADER for Appellant No. .......... for Appellant No. MR MR ANAND for Respondent No. 1-7,9-21,23-30,32-34,36-46,48-53,55- MR DIPAK C RAVAL for Respondent No. 1 RULE SERVED for Respondent No. 8,22,31,35,47,54 -------------------------------------------------------------- CORAM : MR.JUSTICE A.R.DAVE and MR.JUSTICE A.M.KAPADIA Date of decision: 30/07/2003 ORAL JUDGEMENT (Per : MR.JUSTICE A.R.DAVE) Being aggrieved by the judgment delivered in Special Civil Application No. 1351/82 dated 25.1.1995 by the learned single Judge of this court, the appellants have filed this appeal. 2. The facts giving rise to the appeal, in a nutshell, are as under: 2.1 The respondents are the original petitioners (hereinafter described as the 'petitioners'). The petitioners had approached this court with a grievance that the pay-scale offered to them was lower than what they were entitled to and it was also contended by them that on the principle of 'equal pay for equal work', they ought to have been paid salary in the pay-scale of Rs. 380-560 with effect from 1.1.1973. The said prayer was made by the petitioners for the reason that the petitioners, who were working in the cadre of Auxiliary Nurse Midwife (for short "ANM"), were doing the work, which was being done by the Staff Nurse/Nurse and though the work done by the ANM and the staff nurse was same, the petitioners were paid lesser salary than what was being paid to the staff nurse. Thus, by invoking the principle of 'equal pay for equal work' the petitioners had prayed that they should be paid salary, which was being paid to the staff nurse. 2.2. It was also submitted by them that though different designations were given to the ANM at different times like nurse, midwife, operation theatre nurse, nurse (TB), etc., the nature of work done by the petitioners was absolutely same and as they were performing duties like the staff nurse, they should have been paid higher pay scale. The petitioners had also tried to compare themselves with nurses working in different departments of the State of Gujarat. The details with regard to salary given to other persons have been given in the petition. 2.3 In reply to the petition, an affidavit-in-reply was filed on behalf of the present appellants-original respondents (hereinafter referred to as "the respondents") stating that the petitioners were working in the cadre of ANM and they were not appointed in the cadre of staff nurse. It was stated that the nature of work done by the petitioners and the staff nurse was absolutely different. It was also submitted that the requisite qualifications for appointment to the post of ANM and the staff nurse were different. According to the case of the respondents, lesser qualifications were required for appointment to the post of ANM and, therefore, the salary given to the ANM was less than the salary given to the staff nurse. It was the case of the respondents that at the time when the ESI scheme was set up in 1964, there was a shortage of trained and qualified nurses and, therefore, persons like the petitioners, having less qualifications, were appointed in a lower pay scale to assist the trained nurses. 2.4 It was also submitted that for appointment to the post of ANM, it was necessary to undergo 2 years nursing course or 1 1/2 years midwifery course, whereas for appointment to the post of staff nurse it was necessary to undergo 3 years nursing course and have registration as a nurse and midwife. 2.5 It was the case of the respondents that under the ESI Scheme, the petitioners were appointed as midwife or the ANM in the pay-scale of Rs. 120-5-125, which was subsequently revised to Rs. 260-400. At the relevant time, there were only two cadres, (1) Auxiliary Nurse or Midwife, and (2) Staff Nurse or Nurse. It was the case of the respondents that the work of the ANM was to assist the staff nurse and, therefore, the post of staff nurse was a higher post carrying higher pay-scale of Rs. 125-145 whereas the ANM was in the pay-scale of Rs.120-5-125. After hearing the learned advocates, the learned single Judge came to the conclusion that the nature of work done by the ANM i.e. the petitioners, and the staff nurse was similar. The learned single Judge also looked into the pay-scales of staff nurses working under the Directorate of Ayurved and other directorates and after considering the arguments advanced by the learned advocates, the learned single Judge ultimately came to the conclusion that as the nature of work done by the ANM and the staff nurse, was practically the same, the petitioners were entitled to higher pay-scale, which was being given to the staff nurse. The petition was, thus, allowed and the respondent authorities were directed to place the petitioners in the revised pay-scale of Rs. 330-560, the scale which was offered to the staff nurse at the relevant time, with effect from 1.1.1973. 2.6. Being aggrieved by the said judgment dated 25.1.1995, the original respondents, namely, the State of Gujarat and the Director of Medical Services, have filed this appeal. 3. Learned AGP Shri Prachhak appearing for the government authorities has submitted that the petition ought not to have been allowed by the learned Single Judge as the nature of work done by the petitioners i.e. the ANM and the staff nurse was absolutely different. It has been submitted by him that the qualifications required for appointment to the post of ANM, which was popularly known as "midwife" at the time when the ESI scheme had been introduced in the State of Gujarat, and the qualifications required for appointment to the post of staff nurse, which was popularly known as "nurse" at the relevant time, were absolutely different. 4. So as to substantiate his submissions, the learned AGP has submitted that for appointment to the post of ANM, a candidate was required to undergo a certificate course of 2 years, whereas for appointment to the post of staff nurse, general nursing and midwifery course for 3 years or a diploma course was the requisite qualification. It has been, thus, submitted that higher qualification was required for appointment to the post of staff nurse. 5. It has been further submitted by the learned AGP that the nature of work done by the ANM and the staff nurse was also different. It has been submitted by him that there used to be several ANMs but normally there was only one staff nurse in each ESI hospital managed under the ESI scheme and the staff nurse used to be assisted by the ANMs. The staff nurse used to supervise the work of all the ANMs and the ANMs used to assist the staff nurse. Thus, it has been submitted by him that the post of the staff nurse was also higher in status and for the said reason pay of the staff nurse was higher. 6. It has been further submitted by the learned AGP that the work, which was being done under the ESI Scheme by the petitioners and staff nurse cannot be compared with the work done by other nursing staff under different directorates. It has been submitted by him that under Health and Family Welfare Department of the State of Gujarat, there are other directorates. The petitioners were appointed under the ESI Scheme under the Director of Medical Services, whereas other nurses, who have been referred to by the petitioners in the petition, were working under different directorates. The learned AGP has submitted that, the petitioners have made an effort to compare themselves with the nursing staff of the directorate of Homeopathy and Indian System of Medicine. It has been submitted by him that the nature of work done by the nursing staff working in ayurved hospitals cannot be compared with the nature of work done by the nursing staff working under the ESI scheme, where normally drugs under allopathic system of medicine are administered. 7. It has been further submitted by the learned AGP that normally the function with regard to pay fixation is done by pay commissions and/or by the employers. According to him, the learned single Judge had exceeded his jurisdiction by comparing the work done by the petitioners and other nursing staff working under different departments and by fixing the pay-scale of the petitioners. According to him, even if this court comes to a conclusion that the petitioners are entitled to higher pay-scale, or someone getting the higher pay-scale was doing similar type of work, the proper course open to this court was to refer the matter to the State of Gujarat or to the concerned pay commission so that all relevant factors can be considered by the employer or by the pay commission and thereafter the pay-scale can be appropriately revised. According to him, looking to the law laid down by the Hon'ble Supreme Court in several cases, it would not be open to this court to revise the pay-scale of a particular cadre. 8. It has been, thus, submitted by him that two different cadres, which cannot be compared, had been compared by the learned single Judge while allowing the petition and as that was not just and proper, according to him, the judgment should be quashed and set aside. It has been reiterated by him that the pay-scales of the staff nurse and the ANM were different right from beginning and whenever their pay-scales had been revised, there used to remain some difference between the pay-scales of the ANM and that of the staff nurse. The said fact, according to him, denotes that the staff nurses were performing more duties with more responsibilities and the ANMs, being their assistants, cannot be given the same pay-scale. According to him, if a person, who is rendering assistance to someone, is paid the salary paid to the person who is being assisted, it would bring absurd results. He has, thus, submitted that the impugned order passed by the learned single Judge deserves to be quashed and set aside. 9. On the other hand, learned advocate Shri Dipak Raval appearing for the original petitioners has submitted that the judgment delivered by the learned single Judge is just, legal and proper. He has also tried to support the reasons given by the learned single Judge by advancing some further reasons. It has been submitted by him that the learned single Judge has rightly come to the conclusion that the nature of work done by the petitioners, namely, the ANM and the staff nurses, is practically the same. It has been also submitted by him that the principle of 'equal pay for equal work' was rightly invoked by the learned single Judge by comparing the nature of work done by persons belonging to both the cadres. It has been also submitted by him that not only the petitioners but nurses performing similar duties under different directorates of the State of Gujarat and even hospitals managed by Ahmedabad Municipal Corporation were getting much higher salary than what was being given to the petitioners. In view of the said fact, it has been submitted by him that the view expressed by the learned single Judge is just and proper and, therefore, the appeal should be dismissed. 10. The learned advocate appearing for the petitioners has relied upon the following judgments : (1) Kamlakar and others v. Union of India and others, 1999(4) SCC 756 (2) Alvaro Noronha Ferriera and another v. Union of India and others, 1999(4) SCC 408 (3) Employees aof Tannery & Footwear Corporation of India Ltd and another v. Union of India and others, AIR 1991 SC 1367 (4) R.D. Gupta and others v. Lt. Governor, Delhi Admn. and other, AIR 1987 SC 2086 (5) S.A. Dave v. The Director of Ayurveda and ors., S.C.A. No. 3238/79 (6) Randhir Singh v. Union of India and others, AIR 1982 SC 879 (7) Jaipal & others v. State of Haryana and others, AIR 1988 SC 1504 (8) Y.K. Mehta and others v. Union of India and another, AIR 1988 SC 1970 (9) P. Savita and others v. Union of India and others, AIR 1985 SC 1124 (10) State of Gujarat and another v. Natwarlal Babaldas Patel, 1993(1) GCD 377 (11) M.S. Pandya v. State of Gujarat & others, 1997(1) GLR 647 11. We have heard the learned advocates at length and have also considered the facts of the case and the judgments cited by both the learned advocates. 12. Looking to the facts of the case and the law laid down by the Hon'ble Supreme Court on the subject of pay fixation, in our opinion, this court would normally not undertake the work pertaining to pay fixation. For the reasons stated hereinbelow, we are not in agreement with the views expressed in the judgment delivered by the learned single Judge. 13. We have carefully gone through the pleadings and have found that all the petitioners were appointed somewhere in 1964. It is pertinent to note that the petitioners were appointed in the cadre of the ANM, which was also known as Midwife at the relevant time. At the time when the ESI Scheme had been framed by the State of Gujarat, it was decided to have two different cadres of nursing staff, namely, (1) Auxiliary Nurse Midwife, which was also known as Midwife, and (2) Staff Nurse, which was also known as Nurse. 14. Looking to the averments made in the pleadings and the submissions made by the learned AGP, it is clear that the function of the midwife or the ANM i.e., the petitioners, was to render assistance to the staff nurse. It appears that in all hospitals, which were managed under the ESI Scheme, there used to be only one staff nurse or nurse. The said staff nurse was being assisted by midwives or ANMs. 15. Looking to the above-referred scheme of nursing pattern, one cannot say that the staff nurses and midwives or ANMs were performing same type of work. One may say that all nurses do same type of work because they nurse patients. But when we are concerned with service jurisprudence, it would not be just to say that all nurses do same type of work and they should be given the same pay-scale. 16. Looking to the designation of the ANM, which the petitioners are having, it is very clear that they have to render assistance to staff nurse or nurse. The term "auxiliary" included in their designation denotes that they have to render assistance to the nurse. The term "auxiliary" has been defined in the 'Concise Oxford Dictionary' Ninth Edition, as under : 1. (of a person or thing) that gives help; 2. (of services or equipment) subsidiary, additional; The said term has also been defined in 'Webster's Encyclopedic Unabridged Dictionary', New Revised Edition, 1988, as under : 1. subsidiary; additional; supplementary; 2. used as a reserve; 3. giving support; serving as an aid; helpful; 4. a person or thing that gives aid of any kind; helper 17. Upon looking at the term 'auxiliary', it is very clear that it denotes rendering of some help or assistance to another person. Thus, the function of the auxiliary nurse would be to render assistance or help to the staff nurse or nurse. If a person is rendering help or assistance to another person, then by no stretch of imagination, it can be said that the person, who is rendering assistance or help is doing the same work as the person to whom he is rendering assistance. The designation clearly denotes that the person holding the designation of the ANM was responsible for rendering help or assistance to somebody who is working as staff nurse or nurse and, therefore, an assistant and the person who is assisted, can never be equated so far as the pay-scale is concerned. 18. If we look at the pay-scale, which was being offered to the ANM and the staff nurse, it is clear that formerly the ANM, i.e. the petitioners, were given pay in the pay-scale of Rs. 120-5-145 whereas the staff nurses were offered salary in the pay-scale of Rs. 125-145. This fact clearly denotes that the staff nurse was in a higher cadre as she used to be assisted by the ANMs. For this reason one can surely come to a conclusion that higher salary given to the staff nurse was justified and consequently lesser salary offered to the ANM i.e. the petitioners cannot be objected to by the petitioners. 19. Let us look at another aspect. If one looks at the qualifications required for appointment to the post of the midwife or the ANM, which had been framed somewhere in 1979, for appointment to the post of the ANM in the Employees State Insurance Scheme, (a) one should not be more than 35 years of age, and (b) should be a Registered Auxiliary Nurse Midwife registered with the Gujarat Nursing Council, whereas for being appointed as staff nurse under the Scheme, (a) one should be not be more than 37 years of age, and (b) should be a registered nurse and midwife, registered with the Gujarat Nursing Council, and (c) should possess adequate knowledge of Gujarati, Hindi and English. Thus, for being appointed as a nurse or a staff nurse, higher qualifications are required. 20. The learned AGP fairly conceded that these recruitment rules were framed in 1979. It has been however submitted by him that even in 1964, when the ESI Scheme had been framed, those who were appointed as ANMs were required to have undergone 2 years auxiliary nurse midwifery course whereas for appointment to the post of staff nurse it was necessary to undergo 3 years course of Registered Nurse & Registered Midwife. Thus, those who were less qualified, that is, who had done 2 years course of Auxiliary Nurse Midwife course, were appointed as ANMs, whereas those who had undergone 3 years R.N. & R.M. course, were appointed as nurse or staff nurse. It is also pertinent to note that after completion of 2 years course of ANM, it was open to the concerned student to study further one year so as to get the degree of R.N. & R.M., and in that event, the person undergoing that additional year's studies would be eligible to become staff nurse or nurse. 21. The above facts clearly denote that higher educational qualification was required for appointment to the post of staff nurse or nurse. 22. From the facts stated hereinabove, it is crystal clear that those who were appointed as nurse or staff nurse were more qualified as they had undergone 3 years study of RN&RM whereas ANMs or midwives had undergone only 2 years course of Auxiliary Nurse Midwife and therefore they were less qualified than staff nurse. 23. The above facts clearly justify lesser pay-scale for ANMs or midwives vis-a-vis staff nurse. If a person is more qualified and another person is less qualified, who is also rendering help and assistance to a person who is more qualified, the person who is less qualified, namely, in the instant case, ANMs, cannot claim higher pay-scale which is given to a person who is more qualified. The above facts clearly justify the action of the respondent authorities of giving lesser pay-scale to ANMs. 24. Learned advocate Shri Raval appearing for the original petitioners has made sincere efforts to compare pay-scale of the petitioners with pay-scales of persons working in different departments. In our opinion, the nature of work done by other persons in other departments like the Department of Indian System of Medicine and Homeopathy and E.S.I., i.e, the department wherein the petitioners are working, cannot be compared. If two persons are doing different type of work under different employers, the principle 'equal pay for equal work' cannot be invoked. So far as ayurved and homeopathy or Indian system of medicine is concerned, needless to say that they are much different from allopathy. If the nature of work, qualification, cadre and employer are different, in our opinion, the principle of 'equal pay for equal work' cannot be invoked. 25. The learned advocate appearing for the petitioners has also relied upon some orders/letters describing the petitioners as 'Nurse/Midwife' etc. Simply by using a different designation in a communication, which is altogether for a different purpose, a person's cadre would not be changed. Normally, to a layman all those who render assistance to a physician are nurses. Simply because a midwife is described as head nurse or matron or staff nurse, the midwife cannot be treated as a matron or staff nurse as designated in the correspondence. In our opinion, all the correspondence, wherein different designations were used for different petitioners, cannot render any help to the petitioners because the petitioners were not addressed letters in relation to fixation of their pay-scale. The learned advocate appearing for the petitioners was asked to produce the appointment letters, but he was unable to produce appointment letters in the cadre of staff nurse. If the petitioners were not appointed as staff nurse or nurse, then they cannot get salary payable to staff nurse simply because in the course of performance of their duties somebody had addressed a letter to the concerned petitioner addressing the petitioner as a nurse. In our opinion, the said submission of the learned advocate for the petitioners would not render any help to the petitioners for getting higher pay-scale. 26. The learned advocate appearing for the petitioners has relied upon several judgments to substantiate his submissions. He has mainly relied upon the judgment rendered in the case of State of West Bengal and others v. Deb Kumar Mukherjee and others, AIR 1995 SC 1889 to substantiate his argument with regard to 'equal pay for equal work.' In our opinion, the said judgment would not render any assistance to the petitioners because the principle of 'equal pay for equal work' cannot be invoked in this case for the reasons stated hereinabove. He has also cited judgment delivered in the case of Alvaro Noronha Ferriera and anr. v. Union of India and others, (1999) 4 SCC 408. The said judgment was rendered in the case of Judicial officers. Judicial officers of the same cadre working at different places were paid different salary and therefor the Hon'ble Supreme Court directed the concerned authority to pay same salary to all the judicial officers on the principle of 'equal pay for equal work.' In our opinion, the said judgment would not render any help to the petitioners because, in the instant case, the nature of work done by the petitioners and the work done by the staff nurse cannot be compared because the petitioners are subordinates to the staff nurse. They cannot expect salary which is being paid to their superiors. 27. The learned advocate has also relied upon the judgment delivered in the case of Kamlakar and others v. Union of India and others, (1999) 4 SCC 756. The Hon'ble Supreme Court has held in the said case that there should not be any different treatment to those who are direct recruits and promotees in one particular cadre. The Hon'ble Supreme Court has held in the said case that once a person is