offr of mns are commissioned offrs of army aft
TRANSCRIPT
TA No.211/2010
1
IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT
NEW DELHI
T.A. No. 211/2010 [W.P. (C) No. 4485/05 of Delhi High Court]
Maj Gen Mrs. Usha Sikdar .........Petitioner
Versus
Union of India & Ors. .......Respondents
For petitioner: Sh.P.D.P. Deo, Advocate. For respondents: Col. (Retd.) R. Balasubramanian, Advocate. CORAM:
HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON. HON’BLE LT. GEN. M.L. NAIDU, MEMBER.
O R D E R 30.03.2010
1. The present petition has been transferred from
Hon‟ble Delhi High Court to this Tribunal on its formation.
2. Petitioner by this petition has prayed that respondents
may be directed to withdraw their letter dated 30th April, 2004 and
restore her status and other Nursing Officers at par with all other
officers of the Indian Army as per laid down orders, rules and
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regulations of the Indian Armed Forces. She also prayed that
respondents may be directed to restore all the privileges
enshrined in the Army Act, Army Rules, and Army
Order/Regulation for the Army as applicable to various rank. It is
also prayed that respondents may be directed to allow her and all
Brigadiers of the Military Nursing Services to use star plates and
flag on their official vehicle corresponding to their ranks when
using the official staff car while in service which is authorised to
them as per the rules and regulations of the Indian Armed Forces.
3. Brief facts which are relevant for the disposal of
present petition are that petitioner was commissioned/appointed
as Lieutenant in the Military Nursing Services (in short MNS) on
21.09.1967. She was appointed under the authority of President
of India and same was presented in the Gazette of India dated
24.07.1968. She continued to serve in Armed Forces and with
passage of time she reached to the position of Major General on
01.07.2003 and she was appointed as Additional Director General
of Military Nursing Services (in short ADGMNS). On her
promotion as Major General and appointed as ADGMNS, she
made her official tour to Indian Naval Hospital Ship (in short
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INHS), Asvini, Mumbai. The visit was carried out on 17th and 18th
August, 2003. During visit to INHS, Asvini, Mumbai, she was
humiliated and insulted by the Commanding Officer of the
hospital, Rear Admiral V.K. Singh by unceremoniously denying
her authorised staff car i.e. a car with star plate signifying her rank
and a flag signifying her appointment. The matter was reported
to the DGAFMS and DGMS(Army) immediately after the
conclusion of her visit and representation was put up to the
DGAFMS and senior Colonel Commandant, Army Headquarters
vide letter dated 05.09.2003 but no reply has been given to her
representation. The Adjutant General‟s Branch, Army
Headquarters issued a letter dated 28.04.2004, labelling
unfounded and baseless allegations made by her, in addition to
that she was warned without any statutory authority, not to display
stars and fly flag on her official vehicle which is entitled to her
being a commissioned officer. She had no other option than to
implement the directions of Adjutant General‟s Branch and she
had to discontinue displaying star plates and flag on her official
vehicle. As a sequel to this harassment, Adjutant General‟s
Branch again issued a letter on 30.04.2004 and disseminated the
same to all concerned unit. The highlights of the order issued by
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the Adjutant General‟s Branch are that Indian Military Nursing
Officers are not covered under the definition of „Officer‟ as given in
Section of Army Act 3(XVIII) Army Act, 1950 and it is also
mentioned that MNS was raised vide Indian Military Nursing
Ordinance 1943, in that, MNS officers are appointed as „officers of
Indian Military Nursing Service‟ implying that officers of MNS are
not part of the Armed Forces/Regular Army and therefore, not at
par with rest of the officers of the Indian Army and it was finally
ordered that under the provisions of existing Army
orders/Regulations for the Army, Nursing officers are not
authorized to fly flags or display star plates. Aggrieved by this
discrimination and denying the status of officers of Indian Army
she sought personal interview with the Chief of Army Staff and the
Chief of Army Staff assured her that all grievances of the MNS
officers would be looked into and all the privileges which had been
arbitrarily withdrawn would be restored. However, the assurance
given by the Chief of Army Staff was not adhered to. Petitioner
again filed representation to the Chief of Army Staff on 30.06.2004
drawing his attention to his assurances. Ultimately, having failed
at all levels, she was driven to file the present writ petition before
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the Hon'ble Delhi High Court with aforesaid reliefs and the same
was transferred to this Tribunal on its formation.
4. A reply was filed by the respondents and respondents
took the position that petitioner was not recruited under Army Act
and Rules and she has been recruited under Indian Military
Nursing Ordinance 1943 and she cannot be treated to be part of
Regular Army. As such she cannot be considered at par with
officers who are regularly recruited under Army Act. Specially
learned counsel for respondents has drawn our attention to
definition of „officers‟ given in Section of Army Act 3(XVIII) Army
Act, 1950.
5. We have heard learned counsel for the parties and
bestowed our best of consideration.
6. Petitioner was recruited under the Indian Military
Nursing Ordinance, 1943. The Ordinance was issued in exercise
of power conferred by section 72 of the Government of India Act,
1935 and this Ordinance still holds field till date. Section 3 lays
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down the Constitution of the Indian Military Nursing Service which
reads as under :-
“3. Constitution of Indian Military Nursing Service.-- (1) there shall be raised and maintained, in the manner hereinafter provided, as part of the armed forces of the $$ (Union) and for service with @@@ (the Indian) Military forces an auxiliary force which shall be designated the Military Nursing Services (India).”
7. As per Section 3 the force recruited under the Military
Nursing Service shall be part of the Armed Forces and it is an
auxiliary force, which shall be designated the Military Nursing
Services (India).
8. Section 5 says about the members of commissioned
rank which reads as under :-
“5. Members to be of commissioned rank—All members of the $ (Indian Military Nursing Service) shall be of commissioned rank and shall be appointed as officers of the $ (Indian Military Nursing Service) by the Central Government by notification in the Official Gazette.”
9. Section 9 says about application of Indian Army Act,
1911 to members of Indian Military Nursing Service which reads
as under:-
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“9. Application of Army Act and Indian Army Act, 1911, to members of Indian Military Nursing, to members of Indian Military Nursing Service.—(1) The provisions of the Indian Army Act, 1911, shall, to such extent and subject to such adaptations and modifications as may be prescribed, apply to members of the Indian Military Nursing Service as they apply to Indian commissioned officers, unless they are clearly inapplicable to women.”
10. Section 10 provides empowers the Central
Government to frame rules to carry out the purposes of this
Ordinance and Section 11 further empowers the Chief of Army
Staff to make regulations consistent with this Ordinance and the
rules made thereunder, providing for all matters to be laid down by
regulations, and generally for all details connected with the
organisation, pay, allowances, duties, discipline, training, clothing,
equipment and leave of members of the Indian Military Nursing
Service.
11. In exercise of power under section 10, Military Nursing
Service (India) Rules, 1944 were framed. In that the definition
given in Rule 2 (c) says “the appropriate Act” means in relation to
an officer of the Nursing Services the Act, whether the Army Act
(44 & 45 Vict. C. 58) or the Indian Army Act, 1911 (VIII of 1911),
as applicable to her by virtue of section 9 of the Ordinance and
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these Rules. The expression “Commanding Officer” in the
provisions of the appropriate Act relating to courts-martial and to
the powers of a Commanding Officer and in these Rules means
the military officer in command of the hospital or other unit in
which she is serving or to which she is attached. The expression
“regimental” in the Army Act and in these Rules means connected
with the Nursing Services or any corps or other sub-division
thereof.
12. Rule 3 reads „application of appropriate Acts‟. It is
relevant for all purposes which read as under:-
“3. Application of appropriate Act.—In so far as they are capable of such application but subject to the provisions of these Rules—
(a) the provisions of the Indian Army Act, 1911, shall apply to officers of the Nursing Services mentioned in Sub-section (1) of section 9 of the Ordinance, as if they were Indian commissioned officers, and
(b) the provisions of the Army Act shall apply to officers of the Nursing Services mentioned in Sub-section (2) of the said section, as if they were officers of the Regular Forces;
and reference in the said Acts to military ranks shall, in relation to the Nursing Services, be construed as references to the corresponding ranks laid down in the Regulations made under the Ordinance for officers of the Nursing Services.”
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13. So far as application of appropriate Act is concerned,
the provisions of the Indian Army Act, 1911 shall apply to the
officers of the Nursing Services mentioned in sub-section (1) of
Section 9 of the Ordinance, as if they were Indian commissioned
officers and the provisions of the Army Act shall apply to officers
of the Nursing Services mentioned in Sub-section (2) of the said
section, as if they were officers of the Regular Forces.
14. Rule 5 says about modification of the Army Act. It
says the provisions of sections 4 to 41 of the Army Act, only
sections 15 and 40 shall apply to offences committed by officers
of the Nursing Services referred to in sub-section (2) of section 9
of the Ordinance and those sections shall have effect in relation to
such offences as if they were modified as follows:-
(i) Section 15—“An officer who absents herself without leave commits an offence against this Act”.
15. Further procedure has been given how the
punishment can be awarded and about summary of punishment
and courts martial.
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16. In this background the recruitment of the nursing staff
is undertaken and by virtue of provisions of the Ordinance, 1943
and rules framed thereunder. One important aspect emerges is
that Military Nursing Services are part of the Indian Armed Forces
and has to be construed as an “auxiliary force” of the Indian
Armed Forces and they are fictionally treated as an Indian
commissioned officers and they are also treated as part of the
regular forces. From this, what emerges is that they will have the
same status and same entitlements as is applicable to the officers
of the Indian Armed Forces. Now, this is amply clear by the
various orders issued from time to time i.e. with regard to relative
Rank mentioned in clause (b) of para 733 of Chapter XVII of
Regulations for the Army and same reads as under :-
“Women officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with male officers of the same titular rank e.g., a captain (woman officer) in the Army Medical Corps, will rank equally with a captain in the Artillery or Engineers.”
17. Similarly is the Army Order 353/73 under the heading
of „Saluting MNS Officers‟. The relevant portion reads as under :-
“AO 353/73 Saluting—MNS Officers
Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.”
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18. Similarly with regard to the use of National Flag, this
has been given as per the ranks of the officers and same will be
applicable to the petitioner also who has equivalent rank to the
members of the Indian Army.
19. From these provisions of the Acts, Rules and the
Military Orders issued from time to time leave no manner of doubt.
Though petitioner was recruited as per Indian Military Nursing
Ordinance, 1943, she is members of the Military Nursing Service
which is an “auxiliary force” and part of the Indian Armed Forces
and she has also been equated with the same rank and as per the
rank she is authorised to all entitlements which are admissible to
regularly recruited commissioned officers of the Armed Forces.
20. Learned counsel for the respondents has seriously
contested the position and submitted that despite all this,
petitioner was not recruited under the Army Act, 1950 and she
cannot be treated to be an officer as defined under Section of
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Army Act 3 (XVIII). Section of Army Act 3 (XVIII) defines officers
which reads as under :-
“Officer means a person commissioned, gazetted or in pay as an officer in the Regular Army, and includes:-
(a) an officer of the Indian Reserve forces.
(b) an office holding a commission in the Territorial Army granted by the President with designation of rank corresponding to that of an officer of the Regular Army who is for the time being subject to this Act.
(c) an officer of the Army in India Reserve of Officers who is for the time being subject to this Act.
(d) an officer of the Indian Regular Reserve of Officers who is for the time being subject to this Act.
(e) (Omitted)
(f) in relation to a person subject to this Act when serving under such conditions as may be prescribed an officer of the Navy or Air Force.”
21. It is true that the petitioner was not recruited under the
Army Act, 1950 but she was recruited under Military Nursing
Ordinance, 1943 and as per the provisions of the Ordinance as
well as the rules, she has been fictionally treated as regular
member of the Indian Armed Forces, though she was not
recruited directly under the Army Act, 1950 and rules framed
thereunder. But for all purposes she will be treated as a regular
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member of the Indian Armed Forces and she will be authorised to
the entitlements which are commensurate to the concerned rank.
Simply by a technical objection as per Section of Army Act 3
(XVIII), she cannot be treated not to be a part of Indian Armed
Forces or commissioned officer under the Army Act, that will not
distract from the fact that for all purposes she will be treated at par
with the officers of the Indian Armed Forces. The objection that
she does not fall in Section of Army Act 3 (XVIII) makes no
difference. Once she has been given a status of regularly
recruited officers of Indian Army and she has been specifically as
per Rule 3 given the status of Indian commissioned officer and
officers of the regular force, practically she falls under the
extended definition of an officer of the Indian Armed Forces also.
Simply because she has not been recruited under the Army Act,
that will not in any way reduce her status from commissioned
officer of regular Indian Army. Technically she may not be given
status under the definition of Section of Army Act 3 (XVIII), but
notionally she will be treated to be officer of Indian Armed Forces
and commissioned officer of the Indian Armed Forces. Hence, it
is clear that she is a regular commissioned officer of the Indian
Armed Forces and she is authorised to all entitlements and
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benefits which a regular officer entitled under the Army Act, 1950
and rules framed thereunder and regulations issued from time to
time. Therefore, we have no hesitation to declare that the
petitioner is entitled to be treated as a commissioned officer and
as a part of the regular force, and she is authorised to all
entitlements which are authorised to the regular recruited army
officers of the Indian Army. In this background, order issued on
30th April, 2004 is quashed and respondents are directed to treat
all the commissioned officers of Military Nursing Service as a part
of the regular force of the Indian Armed Forces and extend all
entitlements which are commensurate with the rank as equal to
commissioned officers of Indian Army to her.
22. Petition is accordingly allowed. No order as to costs.
A.K. MATHUR (Chairperson)
M.L. NAIDU
(Member) New Delhi March 30, 2010.