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2016 DIGILAW 309 (HP)

Damyanti Jairath v. State of H. P.

2016-03-22

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Mansoor Ahmad Mir, J. By the medium of this Execution Petition, the petitioner has sought implementation and execution of the judgment made by the learned Single Judge of this Court in CWP-T No. 2709 of 2008, dated 28.7.2010 in case titled Damyanti Jairath versus State of H.P. and others. It is apt to reproduce relevant portion of para 1 and operative portion of the said judgment herein. “……There is no merit in the contention of Mr. R.P. Singh that staff nurses and designated staff nurses are two separate categories holding separate cadre. A conscious decision has been taken by the State Government as per Annexure A-2 to designate only those ANMs, who had put in 20 years or more service as such under the Department of Health and Family Welfare, Himachal Pradesh and are two years trained ANM. Once the ANMs have been designated as staff nurses, they cannot be treated differently even though their initial qualification may be different. The duties discharged by the staff nurses and designated staff nurses are same. Once the petitioner has been designated as per order dated 26.11.1998 as Staff Nurse, she is entitled to the same pay scale, which is payable to other regularly appointed Staff Nurses as per notification annexed alongwith covering letter dated 9.4.1991…..” “Consequently, the petition is allowed. Respondents are directed to consider the case of the petitioner for the release of the pay scale of Rs.1640-2925 with effect from 1.4.1986 as per Annexure S-1 annexed with covering letter dated 9.4.1991 with interest @ 6% per annum. No costs.” 2. The State had questioned the said judgment by the medium of LPA No. 165 of 2011 dated 21.11.2013 titled State of Himachal Pradesh and others versus Smt. Damyanti Jairath, which was dismissed by the Division Bench of this Court. It is apt to reproduce para 2 of the judgment passed in the LPA herein. “2. The main ground urged before us is that there is only change in the designation of the staff nurse and there were no financial benefits attached. The learned Single Judge has considered this point in extenso in para-1 of the judgment and has rejected the consideration of the same, what has been urged before us. We find that the judgment passed by the learned Single Judge is only direction to consider. The learned Single Judge has considered this point in extenso in para-1 of the judgment and has rejected the consideration of the same, what has been urged before us. We find that the judgment passed by the learned Single Judge is only direction to consider. There can be no grievance as far as the direction for consideration is concerned. We are unable to find out any illegality in the order passed, subject matter of this appeal. Appeal dismissed.” 3. It is averred in the Execution Petition that the respondents have complied with the directions passed by this Court but has passed the consideration order on the foundation, which was already raised as ground in the reply and turned down by the Writ Court. The same grounds were urged before the Division Bench in LPA which were also turned down by the LPA Bench, by holding that the Writ Court has rightly determined the issue. 4. The respondents herein had taken the same grounds in the reply; stand thrashed out by the learned Writ Court. It is apt to reproduce para 3 of the supplementary affidavit dated 23.4.2009, filed by the respondents to the Original Application herein. “3. That the Designated Staff Nurse were not at all equal to the ‘A’ Grade Staff Nurses, as ‘A’ grade Staff Nurses were highly qualified and professionally trained for three and half years with their registration with the Nursing Council as ‘A’ grade Nurse, whereas, the old Auxiliary Nurse Midwives Designated as Staff Nurse did not possess this professional qualification. It is to submit further that both these categories i.e. Staff Nurse and Designated Staff Nurse were/are two separate categories holding separate cadre not analog and similar to each other ion the matter of eligibility criteria including professional qualification, duration of training course, nature of duties and pay scales etc., and they both as such, cannot be equated and brought at part with each other.” 5. The consideration order has been made only on same basis which cannot stand in the eyes of law. It is apt to reproduce relevant paras of the consideration order herein. “And whereas, after having received the specific advice from the Govt. The consideration order has been made only on same basis which cannot stand in the eyes of law. It is apt to reproduce relevant paras of the consideration order herein. “And whereas, after having received the specific advice from the Govt. in the matter as per the observations made by the Hon’ble High Court in LPA No. 165 of 2011, the complete matter was thoroughly examined in detail on the basis of the old correspondence and instructions as also the record on files and after detail perusal of the records, it has been gathered that Smt. Damyanti Jairath was working with the Appellant State and the Department as Auxiliary Nurse Midwife (ANM). In the year 1983, the posts of Auxiliary Nurse Midwife were re-designated as to that of the Female Health Worker (FHW) under the Multipurpose Health Workers Scheme. As per the then existing provisions, Selection Grade of Rs.680-1120 (i.e. the next higher stage in the prerevised scale) was allowed to some of the Female Health Workers (ANMs) including Smt. Damyanti Jairath w.e.f. 1.4.1986 as per their seniority, vide office order dated 29.4.1988 ……” “……..And whereas, after a detailed and thorough consideration of the matter in terms of the specific observations made by the Hon’ble Court on 21.11.2013 in LPA No. 165/11, it appears that the claim of Smt. Damyanti Jairath for releasing of higher inadmissible pay scale of Rs.1640-2925 w.e.f. 1.4.1986, is not justified in the light of the given facts and circumstances of the case as also the old record and Notifications of the Govt. as well as issued from time to time with regard to the grant and revision of pay scales. Moreover, if the claim so advanced is considered, it would also lead to multiplicity of litigation besides there being a wrong precedence as also the huge burden on the State exchequer……...” 6. Thus, the consideration order cannot stand and is virtually repetition of the reply filed by the respondents in the writ petition. 7. Having said so, the respondents are directed to pass fresh consideration order, keeping in view the directions made by the Writ Court and upheld by the Division Bench in LPA. The consideration order be passed within six weeks from today and compliance report be filed before the Registrar (Judicial). 8. Accordingly, the Execution Petition is disposed of alongwith pending applications, if any.