Srinagar: In a judgment that shall affect a large number of government servants, J&K High Court today held that classification made on the basis of educational qualification for promotion does not offend the Articles 14 and 16 of the constitution of India.
Article 14 says “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Similarly Article 16 reads “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
The judgment was pronounced in two clubbed writ petitions filed by Hanifa Deva and Arshad Hussain, Staff Nurses, at Sheri-Kashmir Institute of Medical Sciences (SKIMS) Srinagar. At the time of their appointment, the duo were matriculates with three years diploma in General Nursing and Midwifery.
Their grievance is directed against a Government order No.75-SKIMS of 2014 by virtue of which, sanction was accorded to the modification of recruitment rules for various categories of staff working in the Institute.
The post held by the petitioners is nowadays provided to be filled up 100% by promotion from Staff Nurse possessing B.Sc nursing/M.Sc nursing from amongst persons having at least five years and two years of service respectively.
It is this prescription of minimum qualification of B.Sc Nursing provided for promotion to the post of Sr Staff Nurse, the petitioners are aggrieved of.
They say the classification for the purpose of promotion falls foul of Article 14 and 16 of the constitution.
Arif Sikandar, their counsel said that the petitioners have served the SKIMS as Staff Nurses for about 27 years and have entertained legitimate expectation for promotion to the next higher post of Sr. Staff Nurse.
“By laying down modified criteria, the petitioners have been deprived of their right to promotion to the post of Senior Staff Nurse for all times to come”, he said.
After hearing the contending sides, Justice Sanjeev Kumar referred to many a judgments, saying “there should be left no doubt in the mind of anybody that the classification on the basis of educational qualification for promotion is permissible in law and does not offend Article 14 and 16 of the Constitution of India”.
He said “the prescription of higher qualification, the qualification of B.SC Nursing/M.Sc Nursing, for promotion to the post of Senior Staff Nurse from the post of is essentially for efficient discharge of duties of higher post”.
Nothing prevents respondents to prescribe higher technical qualification for the purpose of promotion to the next higher post, he opined.
Referring to the plea of counsel for the petitioners that classification made by the respondents does not have any rational nexus with the object sought to be achieved, Justice Kumar said “the plea cannot be accepted on the face of settled legal position and also having regard to the nature of duties a Senior Staff Nurse or higher Technical posts in the Health Sector are required to perform”.
He referred to the judgment on a case of similar nature by the Constitution Bench saying it clearly lays down that the mandate of Article 14 and 16 of the Constitution is not to treat un equals as equals.
The Staff Nurse possessing qualification of three years Diploma in General Nursing and Staff Nurses possessing qualification of B.Sc Nursing, cannot be at par and therefore, are unequal because of their qualification, he said.
“It would, therefore, not be obligatory for respondents to treat these two unequals as equals”, he said and dismissed the petitions.
