ITEM NO.1 COURT NO.1 SECTION X SUBREME COURT OF INDIA RECORD OF PROCEEDINGS Writ Pet: 7144/2016 Lf. COL. UMA KAUSHIK AND ANR. Petitioner (s) ‘VERSUS UNION OF INDIA : Respondent (s) (with appln. (s) for permission to file synopsis and list of dates and office report) Date : 28/09/2016 This petition was called on for hearing today. ‘CORAM HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.¥. CHANDRACHUD For Petitioner (s) Mr. Colin Gonsalves, Sr. Adv. Mr. Madhur Bhartiya, Adv. Mr. Satya Mitra, Adv. Yor Respondent (s) UPON hearing the counsel the Court made the following ORDER Issue notice. Tag along with W.P. (Civil) No.806 of 2015. (Ashok Raj Singh) (Veena Khera) Court Master Court MasterI_N.D'E:X RECORD: “OF PROCEEDINGS: “oR No. Date of record of Proceedings : Pages “pl. | Courts order.dated Gourts ordei dated ... Courts ordev Gated ..., Courts order dated , ‘| Courts order dated . 5. 6. | Courts order dated . Courts orcter dated « Cqurts order dated... Counts order dated ., 12; | Courts order dated ... 113; | Courtd order datea a Gouirts order dated! . | Courts orderdated «., M17. | Courts ordér dated:INDEX SI. No. Particulars Page Listing Porforma A-M ‘Synopsis and list of dates K-27 ‘Writ Petition with Affidavit LaF Appendix i, Relevant provisions of Army Act, 1950 Section 3 (xxi) , section 27. ji. Relevant provisions of Army Rules, 1954: Rule 9 we )47 Annexure P-1 True copy of The Indian Military Nursing Ordinance, 1943 dated 15.09.1943 promulgated by the Governor General. jgo783 Annexure P-2 True copy of the Army Instruction 274/50 dated 12.08.1950 issued by the respondent. [suc [ase Annexure P-3. True copy of sample oath or affirmation made by the MNS officers on being granted commission in the regular army dated nil. be [UF Annexure P-4 True copy of the sample certificate underIndian Official Secrets Act, 1923 as per Indian Army Form ‘IAFZ 2033A’ executed on being granted commission in the 148 regular army dated nil. 9. Annexure P-5 True copy of the Army Instruction 4/59 dated 03.01.1959 issued by the respondent. (91>) 10. | Annexure P-6 True copy of the Defence Service Regulation (Regulations for the Army), 1962 dated 06.12.1962. [EX-ISF 11. | Annexure P-7 True copy of the Army Order 501/63 issued by the Chief of Army Staff dated nil. Ike 12. | Annexure P-8 True copy of the sample bond to be signed by the father or guardian of a minor girl admitted for the B.Sc (Nursing) Course at the colleges of nursing armed forces medical services and the surety dated nil tie [68 13. | Annexure P-9 True copy of the Army Order 353/73 issued by the Chief of Army Staff dated I bY nil.14. Annexure P-10 True copy of the Annexure ‘D’ to Army Instruction 61/77 form of agreement of service of regular nursing officer in the Military Nursing Service dated nil. (68-167 45. Annexure P-11 True copy of the Army Order 11/82 issued by the Chief of Army Staff dated nil. 168 16. Annexure P-12 True copy of the Defence Services Regulations (Regulations for the Army), 1987 dated 05.12.1986. 168 SH 17. Annexure P-13 True copy of the sample appointment letter in military nursing service dated nil. 18. Annexure P-14 True copy of the relevant provision of the 5" Central Pay Commission, 1997 dated nil. 19. Annexure P 15 True copy of the Military Nursing Service Ordinance 1943 circulated within the Army dated nil. (17-17920. Annexure P-16 True copy of the judgment dated 13.11.2003 delivered by this Hon'ble Court in Transfer Case (c) 38 of 2002. 186-7190 21. Annexure P-17 True copy of the army headquarters AG/CW-1 dated 30.04.2004 on flying of car flags and display of star plates nursing officers 19) 22. Annexure P-18 True copy of the relevant portions of the 6" Central Pay Commission dated nil. AL 23. Annexure P-19 True copy of the letter bearing reference number G/7021/VI-PCC (Army) dated 20.06.2008 written by General Deepak Kapoor. 17ZA74 24. Annexure P-20 True copy of the office Gazette of India notification dated 30.08.2008 on implementation of sixth central pay commission recommendations. asayh 25. Annexure P 21 True copy of the order dated 30.03.2010 passed by the Armed Forces tribunal,Principal bench at New Delhi in T.A. No. 211/2010 197-210 26. Annexure P 22 True Copy of the Dte Gen/LWE/Policy (Qtr) bearing reference no. B/37614/Policy/(Qtr) on accommodation for nursing officers of MNS dated 20.01.2015 2H ?48 27. Annexure P-23 True copy of the personal application dated 02.09.2015 by the petitioner no.1 under Section 27 of the Army Act, 1950. Ally 2287) 28. Annexure P-24 True copy of the personal application dated 17.09.2015 by the petitioner no.2 under Section 27 of the Army Act, 1950. rb-28 29. Annexure P-25 True copy of note titled “The glorious history of Military Nursing Service” prepared by the petitioners dated August 2016. 2 Ve23L 30. C.M. A. No.. of 2016 Application for permission to file lengthy synopsis and list of dates Zar r*yA PROFORMA FOR LISTING SECTION, fe The case pertains to (Please tick/check the correct box): [5 Central Act: Army Act, 1950, Constitution of India,1950 [29 Section: Section 3 (xxi), section 27 of the Army Act, 1950 Article 14, 15 (1) of the Constitution of India,1950 [) Central rule: (Title) Army Rules, 1954 [ Rule No(s): Rule 9 [State Act (Title) _NA (Section: —NA (5) State Rule (Title) _NA [1 Rule No(s): NA [) Impugned Interim Order Date: ___NA [—_Impugned Final Order/Decree Date: 4), ([) High Court Name: die [= Name of Judges: oar ([)_Tribunal/ Authority (Name): Hn 1, Nature of matter: waten Criminal 2.(a) Petitioner/Appellant No.1:Lt. Col. Uma Kaushik #4#& (b) E-mail ID: NA _ (c) Mobile Phone Number: __NA 3. (a) Respondent No.: Union of India (b) e-mail ID: (©) Mobile Phone Number: NA, 4, (a) Main category classification: pig (b) Sub classification: = 5. Not to be listed before: Nift 6. Similar/Pending matter; #77 @? A/0° bes /> us 7. Criminal Matters: a.Whether accused/ convict has surrendered: Yes/No] [7] b. FIR No. Date: c. Police Station: d. Sentence Awarded: _NA e. Sentence Undergone: 8. Land Acquisition Matters: (a) Date of Section 4 notificatio (b) Date of Section 6 Notificatior (c) Date of Section 17 notification: __NA 9. Tax Matters: State the tax effect: NA. 10. Special Category (first petitioner/appellant only): (Senior citizen > 65 years }[SC/ST [—Woman/Child CDisabled [1 Legal Aid casf_] —_—In custody 11. Vehicle Number (in case of Motor Accident Claim matters): NA. 12. Decided case with citation: NA. Datesy4 /a/2o1L (Satya Mitra) AOR for Petitioner(s)/Appellant(s) Registration No. 1852 Email id: satyamitra2003@yahoo.co.inSYNOPSIS & This writ petition is identical to Writ Petition (C) 806 of 2015 MNS Corps Association vs. Union of India, the only difference being that whereas the aforesaid petition was filed by retired officers of the Military Nursing Service, the Present petition is being filed by two serving officers of the Military Nursing Service. The orders passed by this Court in the earlier case abovementioned are as under: “Date: 04/12/2015 This petition was called on for hearing today. CORAM: HON'BLE MR. JUSTICE J. CHELAMESWAR HONBLE MR. JUSTICE ABHAY MPNOHAR SAPRE For Petitioner(s) Mr. M.N. Krishnamani, SrAdv. Mr. Umesh Sharma, Adv. Mr. Satish Kuinar, Adv. For Respondent (s) UPON hearing the counsel the Court made the following ORDERc Issue notice on the SLP as well as on the application for interim relief returnable in four weeks.” Officers of the Military Nursing Service stand on par in every respect with the officers of the other Arms/Services of the regular Army The current Military Nursing Service has its origin in the Indian Military Nursing Service which came into being with the Indian Military Nursing Service Ordinance, 1943. Even Prior to this Ordinance Indian nurses were part of the war efforts as part of the Allied Forces in the British Indian Army. The Ordinance constituted the Indian Military Nursing Service (IMNS) “as part of the armed forces of the Union”, The members of the IMNS were to “be of commissioned rank and shall be appointed as officers of the IMNS, The Indian Army Act, 1911 applied to them.” With the coming into force of the Army Act, 1950, the commissioned officers of the IMNS previously governed by the IMNS Ordinance, 1943 came to be governed by the provisions of the Army Act, 1950, Section’3 (xxi) of the Army Act, 1950 defined the term “Regular Army” as under:D “Regular Army” means officers; junior commissioned officers, warrant officers, non- commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;” Army Instructions 274/50 relating to “Terms and Conditions of Service for the Grant of Regular Commission in the Military Nursing Service” were made by the Central Government in accordance with the provisions of the Army Act, 1950. These instructions categorically speak of regular commissions in what is now called the Military Nursing Service (MNS). Accordingly, all the commissioned officers of the erstwhile IMNS became commissioned officers of the MNS. Annexure A to the said Instruction contains clause 2 (A) which is as under: “2. Rank, Seniority and Promotions.- (A) Rank.—All members of the MNS are granted commissions on appointment in the rank of Sister. The rank will be antedated in accordance with6 clause (B) below for the purposes of seniority and promotion. They rank as follows:- Sister . - Lieutenant, Senior Sister - Captain: *Matron - Major Principal Matron - Lt. Col. Chief Principal Matron - Colonel, *Those employed on staff will be called Staff Matrons.” Thus by this Instruction the commissioned officers in the MNS were treated. as officers of the regular Army. This was made clearer by Army Instruction 4/59, the relevant part of which is as under: 2, Rank, Seniority and Promotions- (A) (i) Rank- Commissions will be granted in the rank of Lieut. On first appointment. This rank will be antedated in accordance with Clause (B) below for the purposes of seniority and promotion. (ji) The rank in the MNS will be as under- Lieut. Captain Major Lt, Colonelp Colonel (iii) The present ranks of serving Nursing Officers will be redesignated to confirm to the nomenclature given in sub-clause (Ii) above. (iv) The rank of Nursing Officers when seconded to the Navy or the Air Force will correspond to equivalent ranks in those Services.” Thus the officers of the MNS were officers of the regular army. Army Rules, 1954 require every person mentioned in Section 16 of the Act to take an oath which is as under: “Rule 9: Form of Oath I. do swear in name of God that I will bear true faith and allegiance to the Constitution of India as by the law established and that I will, as in duty bound, honestly and faithfully serve in the regular Army of the Union of India and go wherever ordered by land, sea or air, and that I will observe and obey all commands of the President of the Union of India and the commands10. ii. of any officer set over me even to the peril of my life.” Accordingly, all officers commissioned in the regular Army including the officers of the MNS were required and were administered the oath of allegiance to faithfully serve in the regular Army of the Union of India. Prior to training the petitioner no.1 (and over 3500 officers similarly situated) concerned with this Petition executed a bond titled “Bond to be Signed by the Father or Guardian of a Minor Girl Admitted for the B.Sc (Nursing) Course at the Colleges of Nursing Armed Forces Medical Services and the Surety” and the relevant part of the bond is as follows: “whereas...has been selected by government for admission to...with a view to her being granted permanent commission/short service commission as a nursing officer in the regular army...” It is now pertinent refer to the Defence Service Regulation (Regulations for the Army), 1962 the relevant parts of which are as under: “Para 733(b) Women Officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with the 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.” 12. It is now pertinent to refer to Army Order 501/63, the relevant parts of which are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.” 13. It is also necessary to refer to Army Order 353/73 the relevant parts of which are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.” 14. The abovementioned Army Orders 501/63 and 353/73 clearly demonstrate that officers in the MNS of the regular Army are required to salute and be saluted in the same manner as other officers of the regular Army. 15. Army Order 11/82 lays down the Order of Precedence where the MNS officers of the regular Army were placed first among the Medical Services. The relevant part of the Order of Precedence is as under:“7. Medical Services (a) MNS (b) AMC (c) ADC” 16. Government of India issued Regulations for the Army, 1987 superseding the earlier regulations of 1962 where the MNS is mentioned alongside the Arms/Corps/Services of the Army in every relevant portion. The duties and responsibilities of the Director of Nursing Services (now ADG MNS) is given in Para 32 alongside the similarly placed heads such as the Director of Medical Services, Director of Dental Services, Judge Advocate General and Provost Marshal. The Director of Nursing Services had duties and responsibilities similar to any other head of any other Corps/Services of the Army. The relevant parts of the Regulations for the Army, 1987 laid down that officers in the MNS would rank equally with male officers of the same titular rank. These regulations are as under: “Para 733 (b) : ...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”7 J On 6.12.93 by SRO 17E Government of India amended the Army Rule 1954 inserting Rule 16A, which is referred to by the petitioners herein to demonstrate that even upto the end of 1993 the officers of the MNS were treated on par with the officers from other Corps/Services of the regular army. The relevant part of the said order is.as under: “16A. Retirement of officers. — (1) Officers shall be retired from service under the orders of the Central Government, or the authorities specified in sub-rule (2), with effect from the afternoon of the last date of the month in which they— (a) Attain the age limits specified in sub-rule (5); or (b) Complete the tenures of appointment specified in sub-rule 5 (f) (ii) and (g) (li) and sub-rule (6), whichever is earlier. (2) The authorities referred to in sub-rule (1) shall be— (a) The Director-General, Armed Forces Medical Services in respect of officers of the Army Medical Corps, Army Dental Corps and Military Nursing Service;”18. The report of the 5" Central Pay Commission 1997, accepted by the Government of India, made certain vital determination in respect of the Indian Army Officers Cadre Configuration and commented that the Military Nursing Service was a specialist cadre of the Indian Army in the following terms: “Officer Cadre of Army 147.3 In the Army, the Artillery, Mechanised Infantry, Infantry, Engineers, of Signals and Army Aviation Corps comprise the arms or the fighting elements. The Army Service Corps, Army Ordnance Corps, Corps of Electrical and Mechanical Engineers, Army Postal Service Corps and the Pioneer Corps comprise the logistic support and maintenance clement, — while Intelligence Corps, Army Medical Corps, Army Dental Corps, Military Nursing Service, Remount and Veterinary Corps, Army Education Corps, Judge Advocate General's Branch, Army Physical Training Corps, Corps of Military Police and Military Farms comprise the specialist cadres”, 19. Officers of the MNS have always been treated on par with the officers of the regular Army belonging to the various other Arms/Services as above stated. Some of the features of this common treatment is as under:vie vii. viii. xi. xi. xiii. xiv. xvi. xvii. Same method of commissioning Same rank, insignia and designation Identical conditions of service Same uniform Same service privileges and entitlements Same retirement conditions and benefits Same identity cards Same Form on which personal documents are maintained Same Form on which medical category is maintained No services selection board interview like the doctors and dentists of the Army No promotion examination like the doctors and dentists of the Army Same promotion board for the nursing, medical and dental officers of the Army Liability to serve in the Army, Navy and Air Force like the doctors and dentists of the Army Same manner of issue of personal numbers Same Controller of Defence Accounts disburses the pay and allowances Same scale of rations Identical accommodation according to rank” 20. There is therefore no doubt that the officers of the MNS stand on par in every respect with the officers of all other Arms/Services of the regular Army. The officers of the MNS. are also given a similar appointment letter like the other officers granted commission in a particular Service of the regular Army. A sample appointment letter issued to an officer of the MNS and the relevant part is as under: “I, reposing special trust and confidence in your fidelity, courage and good conduct, do by these Presents Constitute and Appoint you to be Lieutenant in the Military Nursing Service from the...day of... I, therefore, charge and command you carefully and diligently to discharge your Duty in the Rank or in any higher Rank to which you may from time to time hereafter be promoted or appointed, of which a notification will be made in the Gazette of India and to obey such directions as from time to time you shall receive from me or any of your superior Officers and to observe and execute the Rules Regulations and Orders for the Governance of the Military Nursing Service. And I do hereby charge and command the Officers and Others subordinate to you to conduct themselves withN due Respect and Obedience to you as their Superior Officer.” 21. In 2014 the Law Commission of India in report no. 249 relating to obsolete law warranting immediate repeal recommended that the IMNS Ordinance of 1943 be repealed and suitable amendments brought in the Army Act of 1950 to incorporate provisions pertaining to the erstwhile members of the IMNS. While doing so the Law Commission failed to notice an elementary and obvious fact namely that after the Ordinance of 1943 many statutory developments had been taken place and that extensive statutory provisions relating to the erstwhile members of the IMNS as well as subsequent joining members of the MNS of the regular Army had been enacted. There was therefore no need for the Law Commission to recommend that suitable amendments be done as extensive amendments had already been enacted and were being implemented. The stand of the petitioner is that with the subsequent statutory developments and amendments made from time to time starting with the Army Act, 1950 and all the statutory developments thereafter as set out above, the IMNS Ordinance of 1943 ceased to have any effect or force and was impliedly repealed. Moreover, the IMNS Ordinance of 1943 flows from the Indian Army Act, 1911 which was repealed by the Army Act, 1950 and by this repeal the IMNS Ordinance, 1943 is also impliedly repealed.The beginning of Discrimination The glorious history of Military Nursing Service 22. The history of Military Nursing Service in India came into 23. existence in 1888, It was called the Indian Army Nursing Service. It went through several changes they were active in World War I and II. Many nurses lost their lives when the ship SS Kuala was sunk by Japenese bombers in 1942. Petitioner has prepared a note titled “The glorious history of Military Nursing Service” is annexed at Annexure P-25 where it is stated inter alia, that about 350 Indian Army nurses either died or were taken prisoner or declared missing in action during the two world wars. a. The Discontinuation of Arms Training In 1996 or thereabouts the Army discontinued weapon and arms training for the officers of the MNS. Every officer of every branch of the Army gets weapon and arms training. This is true of all the doctors, all the lawyers, dentists, veterinarians, education branches, postal service, military farming personnel and so on. None of these personnel from these branches except the doctors are required to go the battle front. The officers of the MNS are required to go the battle front whenever the situation demands it. In fact in the24, 25. 26. agreement for service entered into between the Government of India and the officers of the MNS it is specifically stated as under: “If appointed to service I agree.... to proceed on field service and to any station in or out of India to which I may be ordered” Thus the officers of the MNS may be ordered to go abroad and have been so ordered to operate in Sudan, Congo, Sierra Leone, Lebanon, Tajikistan, Afghanistan, Srilanka, Somalia and elsewhere. In some of these places such as Sudan, Congo, Somalia, Sierra Leone, Afghanistan and Srilanka the officers of the MNS were posted in war zones and conflict zones. In India the officers of the MNS have been posted at J&K where it is impossible to distinguish which part of the state is a conflict zone and which is not. They are posted at “border static hospitals” and elsewhere. These border static hospitals are often close to the border with Pakistan (Line of Control). In Kargil it is about 2 kms. In Tangdhar it is about 1.5 kms. In Assam and other parts of the North East the officers of the MNS have been posted to counter insurgency areas. In Manipur areas have been declared as disturbed areas under27. 28. 29, AFSPA and the officers of the MNS are posted in these disturbed areas. Not only are the officers of the MNS required to work in the’ hospitals but they are also required to accompany the patients in ambulances when they are being transferred in the conflict zones and insurgency areas. The officers of the MNS often travel with other persons of the regular Army in convoys through conflict zones. and insurgency areas thus facing the same level of threat to their lives as other army personnel. To deprive the officers of the MNS of arms training was therefore an arbitrary act which render the officers of the MNS vulnerable, and the said instruction or orders issued orally or in writing ought to be set aside by this Court. The written orders are not available hence this Court may direct their production. In this regard one ought to take note of Article 22 of the “Geneva Convention for the Amelioration of the Condition of ‘the Wounded and Sick in Armed Forces in the Field” which is as under: “ARTICLE 22 The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19:(1) That the personnel of the unit or establishment are armed, and that they use the arms in their own defence, or in that of the wounded and sick in their charge.” 30. The distinction between combat and non combat officers 31. of the Army is not to be found in any statute or any Army Order or Army Instruction. This is because in many situations officers of the MNS are required to work in insurgency areas, disturbed areas and possibly very close to combat zones. Not only are they required to do so they have agreed in writing to do so. b. Change in Uniform After the year 2000 an issue arose relating to medical Officers and nursing officers of the regular army wearing the same uniform as it was said that it was difficult for the patients to distinguish between the doctors and the nurses. Accordingly steps were taken by the army to change the uniform of the nursing officers. This controversy reached the Supreme Court and judgment was delivered on 13.11.2003 in Transfer Case (c) 38 of 2002. In that decision relating to the nature of the uniform to be32. 33. 34. gS worn by the nursing officers an observation crept in namely: “That the Indian Military Nursing Service is a separate class, sui generis even though an auxiliary force of the Indian Military, is an undeniable fact.” Based on this observation the central government and the Chief of Army staff began introducing a series of changes in the service condition and status of the officers of the MNS of the regular army designed to downgrade their status and change their service conditions to their detriment. A perusal of the above decision shows that, on the basis of wrong submissions relating to the statutes in question, certain errors were committed by this Hon’ble Court in that decision, as a result of which, the submission is now being made by the petitioner, that the said decision is per incurium as the changes in the statutes were not brought to the notice of the Court and the fact that the Ordinance relied upon had been impliedly repealed was also not brought to the notice of the Court. Secondly, the extensive statutory and ground level changes as stated in the earlier paragraphs integrating the officers of the MNS as officers of the regular Army in everyT respects, the observation of the Supreme Court abovementioned which might have been correct prior to the Army Act, 1950 can no longer is said to be a correct statement on law or facts. What has been stated in the judgment as an “undeniable fact” is completely contrary to all the statutory and ground level and statutory changes that have taken place and have been set out in detail in the aforesaid paragraphs. So misleading was the presentation of the statutory scenario and facts presented to the Supreme Court, that the Supreme Court was not informed: i) That the Ordinance of 1943 on which the entire judgment rests was impliedly repealed by the enactment of the Army Act, 1950 and. various statutory instruments made thereafter. ii) That the IMNS, (which term is used repeatedly in the judgment) ceased to exist in 1950 and was replaced by the Military Nursing Service. which was a substantially different force even though the nomenclature may sound similar, because the MNS was integrated into the regular Army in every respect through a series of statutoryinstruments and ceased to be a separate class or an auxiliary force; iii) | The numerous statutory instruments in the form of Army Rules, Army Instructions and Army Orders integrating the Military Nursing Services completely into the regular Army were not brought to the notice of the Supreme Court. 35. Therefore, in the petitioner's submission, this decision ought not to be treated as binding and the issues of law and the determinations on facts ought to be reconsidered. At the very minimum the observation in the decision “that The Indian Military Nursing Services is a separate class sui generis, even though an auxiliary force of the Indian Military, is an undeniable fact” should not be taken to be correct and binding and ought to be held to be an observation made per incurium and on the basis of wrong factual submissions made to the Court by the parties. c. Stripping of the stars and flags from the vehicles 36. By order dated 30.04.04 the army made an order stripping the car flags and star plates from the official cars used by the senior MNS officers of the General officer rank in the following terms:“2. Regulations for Army para 773 only Wy down the shape/colour of Car Flags and Star Plates to be displayed according to appoint of the officer AO 46/87, para 1 gives out the entitlement to fly a car flag by officers of the Army AO 46/87, para 10 and also RA Para 774 gives out star plates to be displayed in accordance with the rank of the officer. 3. The Indian Military Nursing Officers are not ‘covered under the definition of “Officer” as given in AA 3 (XVIII) Army Act 1950. The Military Nursing Service was raised vide Indian Military Nursing Ordinance 1943, in that MNS officers are appointed as officers of Indian Military Nursing Service. 4. In view of the above, under the provisions of existing Army Orders/ Regulations for the Army, Nursing Officers are not authorized to fly flags or display star plates.” 37. In the case of Major General Mrs. Usha Sikdar (Retd.) versus Union of India & Ors., this order came to be challenged and the decision of the Armed Forces Tribunal dated 30.03.10 was delivered in her favour.38. This case was also wrongly pleaded before the Tribunal by the Army that stated: “Para 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.” 39. This was wrongly accepted by the Tribunal which observed as under: iv) “Para 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 down theConstitution of the Indian Military Nursing Service which reads as under......” 40. A perusal of this decision shows that from para 6 onwards a substantial part of the judgment is based on the IMNS Ordinance 1943 in respect of an officer who was commissioned in 1967 when the ordinance was no longer in force and the petitioner in that case was governed by a totally different statutory regime starting with the Army Act, 1950 and various Army Instructions and Army Orders made thereafter. Even in para 21 it is stated: v) “Para 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... 41. Although the ultimate decision was in favour of the petitioner in that case, and the reasoning in the latter part of para 21 is correct, the earlier observations to the effect that she wasappointed and was governed by the Ordinance of 1943 is based on the Uol making wrong submissions before the Tribunal. d. Creation of a Training Manual with Distorted Information 42. The wrong submissions made by Uol to the Supreme Court in Transfer Case ( C ) 38 of 2002 mentioned earlier as well as the decision of the Tribunal dated 30.03.10 mentioned above is probably not accidental but intentional. Evidence of this is a book published by the Army titled “Military Law Officer Training School AMC Centre & School Lucknow PSR May 2003”. This publication makes out as if the Ordinance 1943 is still in place and effective and wilful distortions are made in the 1943 ordinance to give the impression that it is this ordinance which binds officers of the MNS even today. A chart showing the fabrications made while preparing the book is set out in the petition. This book is used as.a training manual and is repeatedly used to point out to the MNS officers and others that they do not have the rank and status of officers of the regular Army. e@. Verbal instructions issued to stop saluting MNS officersZ 43. Post 2003, post the decision of the Supreme Court in Jasbir Kaur’s case, where an unfortunate one line observation has been made which according to the petitioner is ter incuriam, a series of discriminatory practices against MNS officers were introduced by the Army. All these practices relied on that crucial one line which read as follows: vi) “That the Indian Military Nursing Service is a separate class, sui generis even though an auxiliary force of the Indian Military, is an undeniable fact.” 44, Prior to this observation as explained by the petitioner in detail above MNS officers were treated as officers of regular army on par with the officers of the other Arms/Corps/services. The abovementioned observation was of the Supreme Court was wrongly treated by the Army as a license to discriminate thus the following discriminatory practices were introduced: i. Verbal orders were issued to stop salutingiti. vi. vii. Z-4 The flag and stars of the general officers rank were ordered to be taken away from the official vehicles When seconded to other branches of armed forces such as Navy or the Air Force the wearing of the ranks of that particular service was discontinued while for doctors and dentists the practice continues Membership. to exclusive institutes and clubs for officers of the armed forces were denied by Verbal orders Officer mess’ and command mess’ which used to provide accommodation to MNS officers were directed by a verbal command not to provide accommodation; Although the 6 Pay Commission recommended parity between the MNS officers and the officers of the regular army, on the persuasion of the army government kept the pay of the MNS officers at a lower level; Though the central government has accepted the recommendations of the 6” Pay Commission to bring the time scaleviii. 2 Promotions of the MNS officers upto the rank of Lt. Colonel, on par with the officers of the other arms/services, a notification has been issued but not implemented; By order dated 20.01.2015 the army Proposed to separate MNS officers’ accommodation from other officers of the regular army; In the case of ACRs (Annual Confidential Reports), upto 2005 they were initiated by the head of the nursing services in the hospitals/ establishments. After 2005 the ACRs were directed to be initiated by medical officers who are outside the cadre of MNS. Thus the head of the MNS. in the hospitals/establishments loses control over her officers and the doctors take control. The Form ‘G’, an exclusive form meant for the officers of the MNS for concessional travel in the Indian Railways had been discontinued in 2005 and they were granted concessional travel in trains on ‘Concession Voucher’ (CV) earlierxi, xii. xiii. xiv. Zs meant only for the personnel below officers ranks in the armed forces. The Army stopped using the term officer when referring to officers of the MNS in 2004 and started using the term “members of MNS” in all official correspondence and in public gathering of its personnel. The Director General Resettlement (DGR) of the Army totally excluded the officers of the MNS while introducing courses for the resettlement of officers of all other Arms/Services of the Army who are retiring. The officers of the MNS are not being given even a single seat for the junior level management course at Defence Services Staff College at Wellington or middle level management course at College of Defence Management at Secunderabad, whereas all other Arms/Services of the Army has certain reserved seats decided on pro rata basis or otherwise. The General Officers (Brigadiers and Major Generals) of the MNS were2-4 instructed to wear the shoulder badges with the name of the service (MNS) along with the officer rank insignias since 2004, whereas similarly ranked Officers from all other Arms/Services of the Army need not to wear the name of their parent Arm/Service. xv. Steps are being taken to separate the MNS officers from the regular army, to reconstitute the MNS as an auxiliary force and to take away the army commissioned officers ranks and status. f. Verbal Orders issued to Stop Saluting 45. Sometime in 2004 particularly after the observation of the Supreme Court in the abovementioned case verbal orders seem to have been issued for MNS officers not to be saluted. Thus, without any written order made available to the MNS officers, all junior officers and jawans in the army stopped saluting the MNS officers. This was a huge insult to the MNS officers. Though an MNS officer may be a Major General in uniform, a jawan will not salute. g. Membership to Exclusive Institutes and Clubs46. 47. Zs After 2004, MNS officers were denied access to Institutes and clubs for armed forces officers. No written orders were ever issued or made public. Thus all of a sudden access to these institutes and clubs were suddenly denied. The children of MNS officers use these clubs for sporting facilities. From 2004 onwards children of the MNS officers were turned away from these places. All army officers’ children may study in the same school and sit on the same bench but when it comes to utilising the sport and recreation facilities of the institutes and clubs they are turned away saying that they cannot enter because they are children of MNS officers. This has a psychological bearing on the child who feels that his mother is a somewhat inferior officer. h. Accommodation In the Army Battle Honours Mess (ABHM) and Command Officers’ Mess, the officers posted in the administrative vacancies used to be given accommodation which was discontinued from post 2004 by a verbal order. Many MNS officers who were originally eligible applied for accommodation and were denied. i, 6 Pay Commission Parity2-6 48. The 6" Pay Commission made a recommendation as under: “The Commission, however, is of the view that no differential in salary of officers belonging to the services or MNS is justified and that the pay band and grade pay of similarly designated posts in service officers cadre and MNS cadre should be the same."(2.3.20 of the 6 Pay Commission Report). 49, Despite this, the MNS officers are kept on a lower basic and grade pay than other officers of equal rank in the army. This discrimination was done due to a letter dated 20.6.08 by the then Chief of Army Staff opposing the recommendation made by the 6" Pay Commission in the following terms: “1. Please refer to Chiefs of Staff Committee letter No. COSC/1940 dated 15 Apr 08 addressed to Hon'ble Raksha Mantri, expressing Armed Forces concerns over the VI CPC Report and the anomalies therein. 2. While forwarding the above, an important issue which inadvertently missed out is being brought to your notice. This is pertaining to the Pay and Grade Pay of MNS vis-a-vis AMC officers which had not been highlighted earlier. The issue50. 51. 2-7 pertains to grant of pay scale and grade pay at par with AMC Officers to MNS Officers who hitherto had lower pay scales and no rank pay. Efforts of the VI CPC to meet the just aspirations of Nurses with regard to Pay, Grade Pay and status be it in civil or in the Armed Forces Medical Services is well appreciated. However selective upgradation of Basic Pay, Grade Pay and the hence the status of Nurses only in the Armed Forces to equate them with Doctors will seriously impact the command and control in the Military Hospitals, which would adversely affect patient care in the long run. 3. Hence, there is a need for reconsidering these aspects and keeping the Pay and Grade Pay of MNS Officers distinct from Service Officers, The detalled case is attached.” As a result of this letter, parity was not done. The 7 Pay Commission Recommendations is proposed to be separately challenged by way of another petition. j. Parity in Time Scale Promotions The 6'" Pay Commission recommended parity in time scale promotions as under:52. 53. 54. ZB “The Scheme of time bound promotions upto the level of Lieutenant Colonel, already available to the service officers, should be extended to MNS officers as well."(2.3.21 6 Pay Commission report) Pursuant to this notification dated 30.8.08 was issued by Government of India accepting the abovementioned recommendation. Notwithstanding this notification the recommendation has not been implemented till date. k. Segregated Accommodation Whereas earlier MNS officers and other officers of the regular army were accommodated in the same areas. Now by order dated 20.1.15 the MNS officers are to be no longer accommodated in the same areas as other officers of the same rank of the army. |, Attempt to take away the Commissioned Rank The discrimination against the MNS officers has now become acute. From 1943 when the nursing officers were given commissioned ranks, to the 1950s when they were fully integrated in the Army, to 1959 where there ranks were55. changed from Sister, Matron etc. to the. regular army ane the history of the MNS is that of transition to full integration with the regular army. However from 2003 onwards there is a deliberate attempt to go backwards and thereby to ignore the mandate of the Article 14 of the Constitution which prevents discrimination on the grounds of sex. m. Plans by the Army for future Discrimination The discrimination is also based on an obsolete and backward notion that nurses are somehow inferior to other professionals. This is a core consideration in this case and it is this mental makeup that forms the silent substratum of the moves that are afoot to reduce the status and undermine the dignity of the nursing officers. The heart of the matter is that doctors and male officers find it unpalatable that they are required to treat nursing officers in accordance with their status and rank. Why should a nursing officer who deals with the body fluids of a patient and with their cleanliness and hygiene on a dally basis (apart from the other professional medical duties) be saluted, be given a regular uniform and rank, and over years with experience even be a given a rank higher than the newly recruited doctors? The core issue is one of dignified treatment of the nursing officers in keeping with their nursing qualifications , their years of experience and their dedication to their patients, the army and the56. 57. 2-10 country. This is the core consideration behind the steps taken by the army to strip the nursing officers first of their arms training , then of their regular uniforms, then of their flag and stars on their official vehicles, then of the requirement that they should be saluted like any other officer, then of their status as officers of the regular army and now of their rank when it is proposed that their ranks in the regular army be changed to the obsolete categories of “sister”, “matron” and the like which was abandoned as inappropriate and undignified as far back as 1959. In an interaction with the MNS officers on 29.2.16 the Adjutant General of the Indian Army made an observation to the effect that the army had drafted a separate Act for MNS officers to separate them from the regular army. An International Comparison In the UK there is no segregation of discrimination against the army nurses. They are called the “Queen Alexandria’s Royal Army Nursing Corps” and they form an integral part of the Royal Army. They wear the same uniforms, bear the same insignia’s and ranks as officers of the regular army, salute and are saluted to and have exactly the same status, dignity, rights and privileges as officers of the regular Army.2-1) 58. This is the situation in the US as well. Recently, the head of the nursing services was made the Commander of the Army Medical Command and retired as Major General. In the US nursing officers routinely command hospitals and medical establishments and are made commanders of the US Army Medical Command. 59. As in the UK and the US so too in Nepal, the nursing officers are like any other officer of the regular army on par in every respect and they wear the same uniform. 60. This is also the situation in most of Europe and in other developed countries such Australia, New Zealand and Canada. LIST OF DATES AND EVENTS Date : Event 15.09.1943 | :| The Central Government constituted a force called the Indian Military Nursing Service (hereinafter IMNS), as part of the armed forces of the Union, through the Indian Military Nursing Service | Ordinance, 1943 (30 of 1943). 26.01.1950 |:|The Parliament through the Adaptation of Laws Order, 1950 amended the Indian Military NursingZ-/e Service Ordinance, 1943 on the Country becoming a Republic. 12.08.1950 :|The Army Instruction 274/50 was issued by the Government of India which granted retrospective effect for the Rank, Seniority and Promotions in the Military Nursing Service with effect from 15.08.1947. 22.07.1950 :| The Indian Army Act, 1911 stood repealed; and the Army Act, 1950 came in to force, vide Notification No. S.R.O. 120, Gazette of India, Part-II, Section-4; and the IMNS as a force cease to exist in the Army. Hence, the IMNS ordinance, 1943 stood repealed impliedly. 12.08.1950 :/The Government of India issued the Army Instruction 274/50, laying down the terms and conditions of service for the grant of regular commissions in the MNS. The members of the erstwhile IMNS stood absorbed as officers of the MNS commissioned in the Regular Army, with retrospective effect from 15.08.1947; and the auxiliary force called IMNS cease to exist ever after. 23.11.1954 :|/The Central Government made the Army Rules, 1954 and brought the corps/service called MNS2-3 under the Army Rules along with every other Corps/ Service of the regular Army. 07.05.1955 :| The Commander-in-Chief (Change in Designation) Act, 1955; substituted the words ‘Commander-in- Chief, Indian Army’ with ‘Chief of the Army Staff’ in the Sections 7 and Section 11 of the IMNS, 1943; however no specific amendment was made to bring the members of the IMNS or its successors under the Army Act, 1950. This mere change of designation cannot raise IMNS ordinance 1943 which stood already repealed impliedly. 03.01.1959 :| The Army Instruction 4/59 was issued whereby the Government of India re-designated the rank of the officers in the MNS to conform to the nomenclature used by the other officers of the Regular Army. 1962 :/The Government of India issued the Defence Service Regulation, (Regulations for the Army), 1962 for the administration of the Regular Army. The said regulations addresses the MNS as a Corps/Service, and stated that officers in the MNS are Army Officers and will rank equally with male officers of the same titular rank. 1963 :| The Chief of Army Staff through Army Order 501/63 |ZAG laid down that Military Nursing Service.Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers; and MNS Officers while wearing uniform with service caps will salute service officers senior to them and return the salutes of junior officers and soldiers at all times. 1973 |The Chief of Army Staff through the Army Order 120/73; laid down the order of precedence of the Arms/ Services and Units of the Army including the MNS. 23.03.1973 :| The Chief of Army Staff through Army Order 353/73 cancelled the Army Order 501/63 and laid down that Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers; and MNS Officers while wearing uniform with service caps will salute service officers senior to them and return the salutes of junior officers and soldiers at all times. 15.03.1982 :| The Chief of Army Staff through the Army Order 11/82 laid down the order of precedence of. the Arms/ Services and Units of the Army including the MNS and the cancelled the earlier Army Order 120/73 on the subject.ZI 1985 :|The Army proposed to the 4th Central pay Commission for granting the same rank based pay scales to officers in the MNS as for other Service officers. 27.12.1985 |: Petitioner No.1 was granted Commission in the| Regular Army by the President of India under the provisions of the Sections 10, 16 and 17 of the Army Act, 1950 read with Rules 8 and 9 of the Army Rules, 1954; and Army Instructions 274/50, 4/59 and 61/77; and Army Order 127/50 05.12.1986 :| The Government of India issued the Revised Edition of the Defence Service Regulations, Regulations for the Army, 1987; replacing the Regulations for the Army, 1962 issued for the administration of the regular Army. The said regulations also addresses the MNS as a Corps/Service, and stated that officers in the MNS are Army Officers and will rank equally | with male officers of the same titular rank. 06.12.1993 :| The Government of India amended the Army Rules 1954 and inserted the Rule 16A dealing with the retirement of officers of the regular Army from all Corps/ Services including the MNS.Z16 1995 :|The Army proposed to the 5th Central pay Commission to introduce rank pay to officers in the MNS as available for other service officers. 09.02.2004 :|The Army vide letter no. B/42706/MNS/AG/CW-1 09.02.2004 changed the olive green shirt and pants (like other officers in the Army) worn by the officers in the MNS to safari style beige colour uniform. From this date onwards officers in the MNS were being discriminated due to their profession and is a grave gender injustice as the MNS is the only all women Corps of the regular Army. The change of uniform/rules was to tell officers in the MNS that “you are not our equals”. 18.10.2005 :| The Chief of the Army Staff without stating the reason disallowed the display of star plates and flying of flags by the officers in the MNS of the rank of Brigadier and Major general on their official vehicles. This again is grossly discriminatory. 20.06.2008 :| The Chief of the Army Staff wrote to the Cabinet Secretary against granting the same pay band and grade pay to officers in the MNS as for the other service officers as recommended by the 6" Central Pay Commission. This is a grave discrimination based on profession of the officers in the MNS.277 30.08.2008 :|The Government of India through the Gazette of India, Part-I, Section 3, Para 1(xi), laid down that the Grade pay to determine seniority of posts only within a cadre’s hierarchy and not between various cadres, 25.10.2010 Petitioner No.2 was granted Commission in the Regular Army by the President of India under the provisions of the Sections 10, 16 and 17 of the Army Act, 1950 read with Rules 8 and 9 of the Army Rules, 1954; and Army Instructions 274/50, 4/59, 61/77, 3/84 and 3/98; and Army Order 127/50. 13.10.2014 The Law Commission of India in its Report No. 249 recommended for specific repeal of the Military Nursing Service Ordinance, Ordinance 30 of 1943 with amendments to the existing law in the form of suitable amendments to the Army Act, 1950 to incorporate provisions pertaining to members of the IMNS. 2015 :|The Army authorities sets up/refers to various Committee reports for amendments to Army Rules, 1954; Regulations for the Army, 1987; Army Orders 353/73 and 11/82 etc. and also re-designate the ranks in the MNS, disallowing army officer rank2-7/8 insignias and segregation of family accommodation etc. to discriminate the officers in the MNS from other officers of the regular Army to mete out invidious discrimination to the officers in the MNS from other officers serving in other branches/services of the regular Army in gross violation of Article 14 and Article 15 (1) of the) | Constitution. ‘September 2015 |The Petitioners individually complained to the Central Government under the provisions of Section 27, Army Act, 1950, titled "Remedy of aggrieved officers” that they were granted Commission in the Regular Army by the President of India under the provisions of the Sections 10, 16 and 17 of the Army Act, 1950 read with Rules 8 and 9 of the Army Rules, 1954; and Army Instructions 274/50 and other relevant Army Instructions and Army Orders. Through the said individual applications the Petitioners had requested the appropriate authorities to refrain from making any change or amendment to the existing laws which may alter their status as an Officer of the Regular Army. Further, the Petitioners brought out the fact the IMNS and the MNS are two different legal entities2-19 and the organisation called IMNS as mentioned in the Law Commission of India’s impugned Report cease to exist in the Indian from the commencement of the Army Act, 1950. 04.12.2015 :|The Hon‘ble Supreme Court issued notice on’ the ‘Writ Petition (Civil) No. 806/2015 on MNS Corps Association versus Union of India filed by the veteran officers of the MNS through their representative body called the’ MNS Corps Association, 4 2-16) Hence this petitionIN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. OF 2016 (Under Article 32 of the Constitution of India) IN THE MATTER OF: 1 Lt. Col. Uma Kaushik W/o Bharat Kaushik R/o 54, Ever Green CGHS, Plot No.9, Sector-7, Dwarka, Delhi- ..Petitioner No.1 Captain Harpreet Kaur W/o Amaninder Singh R/o H.No. 147, St. No. 5, Jujhar Nagar, New Shimlapuri, Ludhiana, Punjab-141003 .-nPetitioner No.2 VERSUS Union of India ‘Through its Secretary, Ministry of Defence, Government of India, 101 A, South Block, New Delhi — 110011 .-RespondentTO, THE HON'BLE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANION JUDGES OF HON'BLE SUPREME COURT OF INDIA, THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED: MOST RESPE( LLY SI 1. The petitioners are filing this writ petition under Article 32 of the Constitution of India, of mandamus nature seeking urgent intervention of this Hon’ble Court to direct the respondent to do away with all the discriminatory practices against the officers in the Military Nursing Service (MNS) and to restore to the officers in the MNS their status, dignity and service conditions as officers of the Regular Army. 1A. That the Petitioners have not approached the respondent or any other authority or made any representation seeking relief as sought in this petition. 2. The Petitioner No.1 has been serving the respondent from past 30 years as nursing officer and presently holds the rank of Lieutenant Colonel in the Indian Army. The Petitioner No.2 has been serving the respondent from past 5 years as nursing officer and presently holds the rank of Captain in the Indian Army. 2A. The Petitioners are not involved in any pending civil, criminal or revenue litigation, which has or could have a legal nexus with thea issues involved in this Writ Petition. No Government Authority has been moved for relief sought in this petition. sRespondent No. 1 herein is the Union of India through the Ministry of Defence which is the nodal ministry for overseeing the work of the officers of the MNS. At present 4600 persons including petitioners are serving as military Nursing Officers. The petitioners have filed this petition to protect the status and rank of the MNS officers and do away with the discrimination meted out to them due to prejudice and stigma attached to their service and how the respondents are bent upon changing their status from that of officers of the Regular Army to auxiliary forces under the garb of repealing the obsolete IMNS Ordinance, 1943. ‘That the petitioners are officers who have dedicated their lives in the service of the Army and concerned about the rank and status of the officers of the MNS, which has given them their identity in the society. Any change in the status of the officers of the MNS will adversely affect their standing in the society. That the present petition is being filed by the petitioners after exhausting the statutory remedies provided under Section 27 of the Army Act, 1950. MNS is a corps of the Regular Army The present MNS has its origin from the Indian Military Nursing Service which came into being with the Indian Military NursingService Ordinance, 1943. Even prior to this Ordinance Indian nurses were part of the war efforts as part of the Allied Forces in the British Indian Army. The Indian Military Nursing Service, 1943 Ordinance constituted the Indian Military Nursing Service (IMNS) “as part of the armed forces of the Union”. The members of the IMNS were to “be of commissioned rank and shall be appointed as officers of the IMNS. The Indian Army Act, 1911 applied to them.” Subsequently, the then Central Government framed the Military Nursing Services (India) Rules, 1944. True copy of The Indian Military Nursing Ordinance, 1943 dated 15.09.1943 promulgated by the Governor General. annexed herewith and marked as Annexure P-1 (Pages [20 to/%%). That on 22.07.1950 the Indian Army Act, 1911 stood repealed; and the Army Act, 1950 came into force, vide Notification No, S.R.O. 120, dated 22 July 1950, Gazette of India, Part-II, Section-4; and the IMNS as a force cease to exist in the Indian Army. With the enactment of the Army Act, 1950, ‘Military Nursing Services was created absorbing the members of the existing Nursing Services with retrospective effect from 15.08.1947, as part of the Armed Forces Medical Services (hereinafter AFMS). Along with the other two constituents of the AFMS namely; Army Medical Corps (hereinafter AMC) and Army Dental Corps (hereinafter ADC) a regular cadre of Nursing Officers was formed through the Army Instruction 274/50, which10. BS replaced the erstwhile IMNS. It is important to submit that all these services were constituted primarily as “Non Combatant Services”. The serving members of the IMNS became the cadre of the Nursing Officers called MNS forming part of the regular Army. With the coming into force of the Army Act, 1950, the commissioned officers of the IMNS previously governed by the IMNS Ordinance, 1943 came to be governed by the provisions of the Army Act, 1950, Section 3 (xxl) of the Army Act, 1950 defined the term “Regular Army” as under: “Regular Army” means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;” The respondent on 12.08.1950 issued the Army Instruction 274/50, Terms and Conditions of Service for the Grant of Regular Commission in the Military Nursing Service, to set the terms and conditions of service for the grant of regular commissions in the MNS. According to Para 2 of Annexure ‘A’ toi 12. & Army Instruction No. 274 of 1950, Rank, Seniority and Promotions (in the Military Nursing Service) will be with retrospective effect from 15" August 1947; reads as, “These will have retrospective effect from 15th August 1947 or the dates individuals assumes appointments carrying these ranks whichever is later, provided they have held such ranks in a temporary capacity continuously.” That hence, the newly constituted MNS came in to existence with retrospective effect from 15.08.1947; by absorbing the members of the IMNS as officers of the regular Army with due recognition for their existing Rank, Seniority and Promotions (received in the IMNS before 12" August 1950) subject to the Army Instructions 34/S/47, 29/S/48, 36/5/48, 109/48, 268/49 and 274/50 and Army Order 940/48. These instructions categorically speak of regular commissions in what is now called the Military Nursing Service (MNS). Accordingly, all the commissioned officers of the’ erstwhile IMNS became commissioned officers of the MNS. Annexure A to the said Instruction contains clause 2 (A) which is as under: “2. Rank, Seniority and Promotions.- (A) Rank.—All members of the MNS are granted commissions on appointment in the rank of Sister.13. 7 The rank will be antedated in accordance with clause (B) below for the purposes of seniority and promotion. They rank as follows:- Sister - Lieutenant, Senior Sister z Captain. *Matron = Major Principal Matron - Lt. Col. Chief Principal Matron - Colonel. *Those employed on staff will be called Staff Matrons.” True copy of the Army Instruction 274/50 dated 12.08.1950 issued by the respondent annexed herewith and marked as Annexure P-2 (Pages [24 to 1M). Since the creation of the MNS through Army Instruction 274/50; like other officers of the regular Army serving in other ‘Arms/Services; the MNS officers had also made and subscribed an oath or affirmation as given in Army Order 127/50, which binds them (as officers of the regular Army) to duty bound, honestly and faithfully serve in the regular Army of the Union of India. The same is mandated by the Section 16 of the Army Act, 4950 in the manner provided in Section 17 of the Act. The said14. 8 cath or affirmation reads as given in the Army Order 127/50 reads as: “Les .., do swear in name of God that I will bear true faith and allegiance to the Constitution of India as by the law established and that I will, as in duty bound, honestly and faithfully serve in the regular Army of the Union of India and go wherever ordered by land, sea or air, and that I will observe and obey all commands of the President of the Union of India and the commands of any officer set over me even to the peril of my life”. True copy of sample oath or affirmation made by the MNS officers on being granted commission in the regular army dated nil annexed herewith and marked as Annexure P-3 (Pages \Y6 to_/7). ‘That all officers granted Commission in the Regular Army were required to render a certificate under the Indian Official Secrets Act, 1923 on being conferred the Commission. Since its constitution of the MNS, all the officers in the MNS had rendered the same certificate like officers serving in the other Arms/ Services of the regular Army at the time of commissioning. True copy of the sample certificate under Indian Official Secrets ‘Act, 1923 as per Indian Army Form ‘IAFZ 2033A’ executed on15. 16. being granted commission in the regular army dated nil annexed herewith and marked as Annexure P-4 (Pages!4B to_— ). That subsequently, on 24.11.1954, the Central Government framed the Army Rules, 1954 accordingly all other wings of Army including the MNS came under the purview of the Army Act and the Rules framed therein. It is important to mention here that the Army Act or the Rules framed there under did not mention the name of IMNS anywhere as it became redundant after the creation of the MNS; whereas the MNS finds mention in the Army Rules along with the other Arms and Services of the Regular Army. That by Army Instruction 274/50 the commissioned officers in the MNS were treated as officers of the regular Army. This was made: clearer by Army Instruction 4/59, the relevant part of which is as under: “2. Rank, Seniority and Promotions- (A) (i) Rank- Commissions will be granted in the rank of Lieut. On first appointment. This rank will be antedated in accordance with Clause (B) below for the purposes of seniority and promotion. (i) The rank in the MNS will be as under- Ueut. Captain1. 18. Major Lt. Colonel Colonel (iii), The present ranks of serving Nursing Officers will be redesignated to confirm to the nomendiature given in sub-clause (li) above. (iv) The rank of Nursing Officers when seconded to the Navy or the Air Force will correspond to equivalent ranks in those Services.” True copy of the Army Instruction 4/59 dated 03.01.1959 issued by the respondent annexed herewith and marked as Annexure p-5 (Pages 49 to ]S2)- Thus the officers in the MNS were officers of the regular Army. ‘Amy Rules, 1954 require every person mentioned in Section. 16 of the Act to take an oath which is as under: *pule 9: Form of Oath Tie , do swear in name of God that I will bear true faith and allegiance to the Constitution of India as by the law established and that T will, as in duty bound, honestly and faithfully serve in the19, /) regular Army of the Union of India and go wherever ordered by land, sea or air, and that I will observe and obey all ‘commands of the President of the Union of India and the commands of any officer set over me even to the peril of my life.” Accordingly, all officers commissioned in the regular Army including the officers in the MNS were continued to be administered the oath of allegiance to faithfully serve in the regular Army of the Union of India. The same oath or affirmation binding the officers to duty bound, honestly and faithfully serve in the regular Army was earlier made under the authority of the Army Order 127/50. That in 1962, the Government issued the Defence Service Regulation (Regulations for the Army), 1962 for the administration of the regular Army. The said regulations addresses the MNS as a Corps/Service, and stated that officers in the MNS are Army Officers and will rank equally with male officers of the same titular rank. the relevant parts of the 1962 regulation are as under: “Para 733(b) Women Officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with the male officers of the same titular rank, e.g. a captain (woman officer) in20. 12 the Army Medical Corps will rank equally with a captain in the Artillery or Engineers.” True copy of the Defence Service Regulation (Regulations for the Army), 1962 dated 06.12.1962 annexed herewith and marked as Annexure P-6 (Pages [6% to]S9_). That in the year 1963, after having re-designated the rank in the MNS and equating the status of the officers in the MNS with other officers of the Regular Army through the regulations for the Army, 1962, by the Government; the Chief of Army Staff through Army Order (hereinafter called AO) 501/63 had clarified or instructed on saluting the MNS. officers. The relevant parts of which are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers. 2. MNS Officers while wearing uniform with service caps will salute service officers senior to them and return the salutes of junior officers and soldiers at all times.” True copy of the Army Order 501/63 issued by the Chief of Army Staff dated nil annexed herewith and marked as Annexure P-7 (Pages 1fo to_=).21. 22. That inthe year 1964, the Government established the College of Nursing, AFMC Pune; ever since the Nursing Cadets or selected candidates admitted for training in that College had executed a bond titled “Bond to be Signed by the Father or Guardian of a Minor Girl Admitted for the B.Sc (Nursing) Course at the Colleges of Nursing Armed Forces Medical Services and the Surety” and the relevant part of the bond is as follows: “whereas...has been selected by government for admission to...with a view to her being granted permanent commission/short service commission as a nursing officer in the regular army...” The petitioner no.1 (and over 3500 officers similarly situated) concerned with this petition executed similar bonds prior to being admitted for pre-commissioning training in B.Sc (Nursing) or Diploma in General Nursing and Midwifery (GNM). True copy of the sample bond to be signed by the father or guardian of a minor girl admitted for the B.Sc (Nursing) Course at the colleges of nursing armed forces medical services and the surety dated nil annexed herewith and marked as Annexure P-8 (Pages 161 to 162), That in the year 1973, the AO 501/63 was cancelled through Army Order 353/73 and further laid down that the Military Nursing Service Officers are required to salute and are entitled23. 24, 4 to salutes in the same manner as other commissioned officers; and MNS Officers while wearing uniform with service caps will salute service officers senior to them and return the salutes of junior officers and soldiers at all times. The same order also mentioned certain conditions in which they are not required to return the salutes. The relevant parts of Army Order 353/73 are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.” True copy of the Army Order 353/73 issued by the Chief of Army Staff dated nil annexed herewith and marked as Annexure P-9 (Pages J&4 to_— ). The abovementioned Army Orders 501/63 and 353/73 clearly demonstrate that officers in the MNS of the regular Army are required to salute and be saluted in the same manner as other officers of the regular Army. That in the year 1977 the Government issued the Army Instruction 61/77 in supersession of Army Instruction 274/50. Similar to the provisions contained in the AI 274/50, the Government continued the provision of executing an agreement on being granted commission in the regular Army. In the stated agreement the President of India is one party and the other25. Is” Party is the officer who is being granted the commission in the regular Army. All the present and past officers in the MNS including the Petitioners had executed or signed that form of agreement as given in annexure ‘D’ to Army Instruction 61/77 (or previously under AI 274/50). According to Para 2 (d) of the said agreement, the Government shall have the right to terminate their service at any time without prior notice if they are found guilty of ‘insubordination’. The ‘insubordination’ is an offence which is committed personnel serving in the Regular Army, under Section 42 of the Army Act, 1950. True copy of the Annexure ‘D’ to Army Instruction 61/77 form of agreement of service of regular nursing officer in the Military Nursing Service dated nil annexed herewith and marked as Annexure P-10 (Pages [6S to /4?-). That with the creation of the MNS forming part of the Regular Army; several instructions, notifications were issued to define the status, rank, duties etc for officers in the MNS in exercise of. the powers under the Army Act, 1950. On 15.03.1982, The Chief of Army Staff through the Army Order 11/82; laid down the order of precedence of Arms/ Services and Units of the Army and the earlier Army Order 120/73 on the subject was cancelled. In which as per the then long established traditions of the Army in honouring the women, the only all women Corps of the Army that is the MNS was placed first among the Medical Services at26. {6 Para 7 (a) of the Order of Precedence, Army Order. 11/82 lays down the Order of Precedence where the MNS officers of the regular Army were placed first among the Medical Services. The relevant part of the Order of Precedence is as under: “7. Medical Services (a) MNS (b) AMC (©) adc” True copy of the Army Order 11/82 issued by the Chief of Army Staff dated nil annexed herewith and marked as Annexure P-11 (Pages [68to_— ). Government of India issued Regulations for the Army, 1987 superseding the earlier regulations of 1962 where the MNS is mentioned alongside the Arms/Corps/Services of the regular Army in every relevant portion. The duties and responsibilities of the Director of Nursing Services (now ADG MNS) is given in Para 32 alongside the similarly placed heads such as the Director of Medical Services, Director of Dental Services, Judge Advocate General and Provost Marshal. The Director of Nursing Services had duties and responsibilities similar to any other head of any other Corps/Services of the Army. The relevant parts of the Regulations for the Army, 1987 laid down that officers in the27. (7 MNS would rank equally with male officers of the same titular rank. These regulations are as under: “Para 733 (b) : ....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.” True copy of the relevant portions of the Defence Services Regulations (Regulations for the Army), 1987: enreed herewith and marked as Annexure P-12 (Pages 16? tof4). The said revised Regulations also deal with the matters concerning the administration of every Corps of the regular Army including the MNS. The MNS finds mention alongside the Arms/Corps/Services of the Army in every relevant portion. The duties and responsibilities of Director of Nursing Services (now ADGMNS) are given in Para 32 alongside the similarly placed heads of the Services like Director of Medical Services, Director of Dental Services, Judge Advocate General and Provost Marshal (Para 30 to 34 of regulations of the Army, 1987). The ADGMNS has similar duties and responsibilities like head of any other Corps of the Army.28. 29. 30. 1/8 That Para 57 of the Regulations for the Army mentions the appointments to the Regular Army, whereas the Para 58, 59 and 60 laid down the criteria for appointment in the MNS, Army Medical Corps (Non-Technical) and the Special List of Officers respectively. The promotion of the officers belonging to every Corps/ Service of the regular Army including the MNS is given in Para 65, 66 and 67. The tenure admissible in the substantive rank of Brigadier and above and the rules governing them concerning all officers of the regular Army including the MNS is given in Para 75. The age limits for compulsory retirement of all officers of the regular Army is given in Para 76 of the Regulations. The Para 77 laid down that Special List, JAG branch, MNS and Regimental Commissioned Officers are exempted from attending basic young officers course. The Para 81 exempted all Engineers (seconded to survey of India), AMC, ADC, MNS, RVC, MF, AEC, JAG, Regimental Commission, Special List, EMAE (SA) officers from certain promotion examinations. The constitution and duties of selection boards for commissioning in the AMC, ADC and MNS is given in Para 109. There is no services selection board (SSB) interview for the doctors, dentists and nurses for appointment in the regular Army; whereas rest of the officers in the Army undergoes a selection system involving SSB interview. The other types of31. 32. 33. 3 promotion boards dealing with their subsequent promotions are also given in Para 109 of the regulations. The Para 255 of the Regulations made the Director General Armed Forces Medical Services responsible for the professional training of the officers in AMC, ADC and MNS: The same Para address the MNS as a Corps/Service (of the regular Army). The Para 341 addresses the Officers in the MNS as Army Officers and made it mandatory for them to seek permission of the President for accepting certain employments post retirement/ release from the Army just like any other officer of the regular Army. The Personal Numbers of all officers of the Army including that of the MNS are issued as laid down in Para 608. The Records of Service of all Commissioned Officers in the Army including those in the MNS is maintained on form IAFZ-2041. The Annexure-II to TAFZ-2041, Part-I ‘Personal Particulars’ has been reproduced with additions in Appendix ‘C’ to Special Army Order (SAO) 4/S/88. The Para 619 laid down the procedure for maintaining the same in respect of all other officers of the regular Army other than officers of the Medical, Dental‘and Nursing Services. The procedure for maintaining the records of service of the Medical, Dental and Nursing Officers on form IAFZ-2041 is laid down in Para 621 of the regulations. The Para 733 of the regulations laid down the order of precedence and the corresponding ranks of commissioned34. 35. 2 officers of the Army; Indian Navy and Indian Air Force. The Para 733 (b) further laid down that, ‘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, €.9., a captain (woman officer) in the Army Medical Corps, will rank equally with a captain in the Artillery or Engineers’, The admissibility of the free rations is laid down in Para 885 (a) of the regulations. The officers in the MNS are entitled and are provided with free rations in the similar manner as applicable to the other officers of the regular Army. The change of names procedure for officers of the Army including those in the MNS is given in Para 1394 of the regulations. All officers of the regular Army serving in the Arms are issued with a certificate signed by the President as per the format as given in Appendix D to Para 151 of the Regulations for the Army, revised edition 1987; and previously under the corresponding Para of the Regulations, 1962 edition. The said certificate from the President of India, reads as, “I, reposing special trust and confidence in your fidelity, courage and good conduct do by these presents constitute and appoint you to be Lieutenant in the regular Army”36. “I therefore charge and command you carefully and diligently to discharge your duty in the rank or in the higher rank to which you may from time to time hereafter promoted or appointed of which a notification will be made in the gazette of India and to obey such directions as from time to time you shall receive from me or any of your superior officers and to observe and execute the rules regulations and orders for the governance of the regular Army”. However rest of the officers of the regular Army including the MNS, who belong to the Services are given an appointment letter mentioning his/ her parent Service suitably amending the given format. The relevant portion of a sample appointment letter issued to an officer commissioned in the Services of the regular Army including the MNS is as under: “I, reposing special trust and confidence in your fidelity, courage and good conduct, do by these Presents Constitute and Appoint you to be Lieutenant in the ... «from the...day Of..... I, therefore, charge and command you carefully and diligently to discharge your Duty in the Rank or in any higher Rank to which you may from time to time37. hereafter be promoted or appointed, of which a notification will be made in the Gazette of India and to obey such directions as from time to time you shall receive from me or any of your superior Officers and to observe and execute the Rules Regulations and Orders for the Governance of the ... . And Ido hereby charge and command the Officers and Others subordinate to you to conduct themselves with due Respect and Obedience to you as their Superior Officer.” There is therefore no doubt that the officers in the MNS stand on par in every respect with the officers in all other Services of the regular Army. True copy of the sample appointment letter in military nursing service dated nil annexed herewith and marked as Annexure P- 13 (Pages [7Sto —_) On 6.12.93 by SRO 17E Government of India amended the Army Rule 1954 inserting Rule 16A, which is referred to by the petitioners herein to demonstrate that even upto the end of 1993 the officers of the MNS were treated on par with the officers from other Corps/Services of the regular army. The relevant part of the said order is as under: “16A. Retirement of officers. —28 (1) Officers shall be retired from service under the orders of the Central Government, or the authorities specified in sub-rule (2), with effect from the afternoon of the last date of the month in which they— (a) Attain the age limits specified in sub-rule (5);or (b) Complete the tenures of appointment specified in sub-rule 5 (f) (ii) and (g) (ii) and sub-rule (6), whichever is earlier. (2) The authorities referred to in sub-rule (1) shall be— (a) The Director-General, Armed Forces Medical Services in respect of officers of the Army Medical Corps, Army Dental Corps and Military Nursing Service;” 38. That the MNS is not attached to any of the corps or departments. as given in the Rule 187 (a) to (x); and the MNS is a Corps as given in the Army Rules, 1954; and the Rule 187(1)(y), reads as, “Corps’ prescribed under section 3 (vi).—(1) Each of the following separate bodies of persons subject to the Act shall be a “corps”--—---, namely:— ----- -- (y) Any other separate body of persons subject to the Act, employed on39, 40. 41. any service and NOT attached to any of the above ot or to any department.” That the Section 3(vi), comprises of Definitions (of the Army Act, 1950); reads as, “In this Act, unless the context otherwise requires,- (vi) Corps” means any separate body of persons subject to this Act, which is prescribed as a corps for the purposes of all or any of the provisions of this Act;”. Further, the Para 255 of the Regulations for the Army, 1987 refers to the ‘MNS’ as a Corps/Service of the regular Army. This was further reiterated when the COAS through the Army Orders 120/73 and 11/82 laying down the order of precedence of the Arms/ Services and Units of the Army. In which the MNS is placed first among the Medical Services which includes the Army Medical Corps and Army Dental Corps. This order was in view of. the status of the 'MNS’ as a Corps of the regular Army. The report of the 5" Central Pay Commission 1997, accepted by the Government of India, made certain vital determination in respect of the Indian Army Officers Cadre Configuration and commented that the Military Nursing Service was a specialist cadre of the Indian Army in the following terms:42. “Officer Cadre of Army Para 147.3 In the Army, the Artillery, Mechanised Infantry, Infantry, Engineers, Corps of Signals and Army. Aviation Corps comprise the arms or the fighting elements. The Army Service Corps, Army Ordnance Corps, Corps of Electrical and Mechanical Engineers, Army Postal Service Corps and the Pioneer Corps comprise the logistic support and maintenance clement, while Intelligence Corps, Army Medical Corps, Army Dental Corps, Military Nursing Service, Remount and Veterinary Corps, Army Education Corps, Judge Advocate General's Branch, Army Physical Training Corps, Corps of Military Police and Military Farms comprise the specialist cadres”. True copy of the relevant provision of the 5® Central Pay Commission, 1997 dated nil annexed herewith and marked as Annexure P-14 (Pages [74 to —_). MNS officers including the Petitioners were granted commission in the Regular Army Officers in the MNS have always been treated on par with the other officers of the regular Army belonging to the various other Arms/Services as above stated. Some of the features of this common treatment is as under:vi. vil. vill. xill. xiv. xvi. xvil. 43. That like other officers of the Regular Army, the officers in the MNS including the Petitioners was required to be attested on i. Same method of commissioning i. Same rank, insignia and designation ili, Identical conditions of service . Same uniform . Same service privileges and entitlements Same retirement conditions and benefits Same identity cards Same Form on which personal documents are maintained Same Form on which medical category is maintained . No services selection board interview like the doctors and dentists of the Army i. No promotion examination like the doctors and dentists of the Army Same promotion board for the nursing, medical and dental officers of the Army Liability to serve in the Army, Navy and Air Force like the doctors and dentists of the Army Same manner of issue of personal numbers . Same Controller of Defence Accounts disburses the pay and allowances ‘Same scale of rations Identical accommodation according to rankbeing granted Commission in the Regular Army. The said attestation is carried out under Section 16 of the Army Act, 1950; which reads as, “Persons to be attested. The following persons shall be attested, namely: (a) All persons enrolled as combatants; (b) All persons selected to hold a non-commissioned or acting non-commissioned rank, and (c) All other persons subject to this Act as may be prescribed by the Certral Government”. 44. That like other officers of the Regular Army, the officers in the MNS including the petitioners were administered the oath or affirmation before commissioning in accordance with the Section 17 (1) of the Act, which reads as: “When a person who is to be attested is reported fit for duty, or has completed the prescribed period of probation, an oath or affirmation shall be administered to him in the prescribed form by his commanding officer In front of this corps or such portion thereof or such members of his department as may be present, or by any other prescribed person” 45. That like other officers of the Regular Army, the officers in the MNS including the Petitioners are combatants and according to28 the Rule’8 of the Army Rules, 1954, was required to be attested in the manner provide in Section 17 of the Army Act, 1950; which reads as: “all combatants, and other enrolled persons who may be selected to hold non-commissioned or acting non- commissioned rank shall when reported fit for duty, be attested in-the manner provided in section 17”. 46. That like officers in every other Arms/ Corps/ Service of the Regular Army, the officers in the MNS including the Petitioners also made and subscribed an oath or affirmation as mandated by the Section 16 of the Army Act, 1950 in the manner provided in Section 17 of the Act, which is as given in Rule 9 of the Army Rules, 1954; which reads as: “I. ., do swear in name of God that I will bear true faith and allegiance to the Constitution of India as by the law established and that I will, as in duty bound, honestly and faithfully serve in the regular Army of the Union of India and go wherever ordered by land, sea or air, and that I will observe and obey all commands of the President. of the Union of India and the commands of any officer set over me even to the peril of my life”. 47. The oath or affirmation as given in Rule 9 of the Army Rules, 1954; is required to be made and subscribed by all officers at48. 49. the time of being granted commission in the regular Army. The officers in the MNS are being made to make and subscribe the same oath from the commencement of the Army Act, 1950 (the same was initially introduced under the provisions of the Army Order 127/50) on being granted commission in the Regular Army. As stated earlier that on being granted Commission in the Regular Army by the President of India, the officers in the MNS ‘including the Petitioners had executed or signed a form of agreement as mandated by Army Instruction 61/77. According to that agreement, the Government shall have the right to terminate their service at any time without prior notice if they are found guilty of ‘insubordination’. The offence ‘insubordination’ is an offence which is specially created by Section 42 of the Army Act, 1950; under that only the personnel of the regular Army (or persons subject to the Act) is capable of committing the same. That all officers granted Commission in the Regular Army were required to render a certificate under the Indian Official Secrets Act, 1923 on being conferred the Commission on Indian Army Form ‘IAFZ 2033A’. All the officers in the MNS including the Petitioners have rendered the certificate on Indian Army Form50. Si. 52. ze ‘IAFZ 2033A’ like officers in the other Arms/ Services of the regular Army at the time of commissioning. That all officers in the Arms (Infantry, Mechanised Infantry, Armoured, Artillery, Signals etc.) of the regular Army are issued with a certificate signed by the President as per the format as given in Appendix D to Para 151 of the Regulations for the Army, revised edition 1987; and previously under the corresponding Para of the Regulations, 1962 edition. The said certificate from the President of India, appointed them (officers of the Arms) in the regular Army and ordered them to observe and execute the rules regulations and orders for the governance of the regular Army. That the officers serving in the Services of the regular Army including the MNS were also given a similar appointment letter like the officers who were granted commission in the Arms. However the appointment letter issued them is with suitably amendment to the given format to include the name of that particular Service. There is therefore no doubt that the officers jin the MNS stand on par in every respect with the officers in other Services of the regular Army. That all officers of the regular Army including the Petitioner officers belong to the different Arms/ Corps/ Service of the Indian Army. They were all appointed in the commissioned rank and promoted by the President of India under the relevant Army53. 54. Instructions issued from time to time which established their parent Arms/ Corps/ Service. In the case of officers of the MNS, such provisions are contained in Army Instruction 274/50; the Para 8 of which reads as: “Appointments, confirmation, substantive promotion and relinquishment of commission will be notified in the Gazette of India”. That, accordingly such notifications regarding appointments, confirmation, substantive promotion and relinquishment of commission of officers in the MNS granted commission in the regular Army which includes the Petitioner officers were done through the notifications issued by the Ministry of Defence in the Gazette of India, Part I, Section 4 under the title “Army Branch”, “Regular Army”, “Military Nursing Service” in the same manner as other officers of the regular Army belong to different Arms/ Corps/ Service. That the Records of Service of all officers in the MNS including the Petitioners is maintained on form IAFZ 2041 and their Medical Records are maintained on Health Record Card (Officers of the Indian Army) as given in Annexure 1 to Appendix ‘C’ to Army Order 48/78. These are in the same manner as other officers granted commission in the regular Army by the President of India.55. 56. 22 The Respondent from time to time publishes the Army List. The Army List contains the complete list of officers of the regular Army. In the Army List, the officers in the MNS, AMC and ADC are listed under the Medical Services. The Army List is the authority when it comes to decide on the inter se seniority among the officers of the regular Army including the Petitioners. Further, the officers in the MNS including the Petitioners were issued with the same Identity Cards on form IAFZ 2015 like other officers of the regular Army. The Petitioners and other officers in the MNS are also entitled for the same scale of rations which is as authorised for the officers of the Army by the Para 885(a) of the Regulations for the Army, 1987. That according to the Scales of Accommodation for Defence Service, 1983; and its revised edition 2009, all the officers in the MNS including the Petitioners are entitled for the same rank based entitlement of floor area and other facilities for their married accommodation and separated family accommodation as applicable to the other officers of the regular Army. The Petitioners and other officers of MNS have the same entitlements like any other officer of the regular Army in the Canteens runs by the Canteen Stores Department under Ministry of Defence. The pay account and salary disbursement of the Petitioners and other officers of MNS are also maintained by the Principal Controller of Defence Accounts at Pune as for officers in the other Arms/ Corps/ Service of the Army.57. 58. 23 That the Petitioners and other officers in the MNS are officers of the regular Army, and that they are commissioned under the provisions of the Army Act, 1950 and the Rules made thereunder. They have made and subscribed to the same oath as other officers of the regular Army to duty bound, honestly and faithfully serve in the regular Army of the Union as given in Rule 9 of Army Rules, 1954. Their appointments and promotions are notified in the gazette of India like other commissioned officers under the title Regular Army. The President of India after granting commission in the regular Army gave them a certificate as per the Regulations for the Army, 1962; and revised edition 1987 issued by the Government of India, which ‘stated that, “appoint you to be Lieutenant in the regular Army” or suitably modified to include the name of the parent Service like in the case of officers in the other Services of the regular Army. The MNS is one of the three constituents of the Armed Forces Medical Services (herein after referred as AFMS), the other two are Army Medical Corps (herein after referred as AMC) and Army Dental Corps (herein after referred as ADC). The method of selection, training, terms and conditions “of service and employability of officers in the MNS, AMC and ADC (herein after referred as AFMS officers) are similar. However the AFMS59. officers though being officers of the regular Army are not employed in any other duty other than healthcare and related administrative jobs. The Petitioners and other AFMS officers are not primarily meant for combat duties and are employed only on jobs which are non-combatant in nature. However the officers from the fighting arms like Infantry, Artillery etc. does not suffer - from such limitations; the method of selection, training, terms and conditions of service and employability of officers from the fighting arms are distinctly different from that of the AFMS officers, however under the military law all officers of the regular Army have the same status regardless of their parent Arms/ Service. The terms and conditions of service AFMS officers are somewhat comparable to that of the support services like Remounts and Veterinary Corps (herein after referred as RVC), Military Farms (herein after referred as MF), Judge Advocates Generals Branch (herein after referred as JAG) etc; however are very much different from that of the fighting arms like Infantry, Artillery, Signals etc. The officers of AFMS; that is officers in the MNS, AMC and ADC, though are officers of the regular ‘Army are primarily selected for their professional capabilities. The comparative table showing the differences between the AFMS officers and officers of other Arms/ Services are being givenhereunder which is self explanatory and explicit in all terms and removes all doubts: S| AFMS Officers (officers] Officers in the Infantry, No. |in the MNS, AMC and| Armoured, Artillery, ASC, ADC) Ordinance etc. T. |No Services Selection| Passing Services Selection Board Board Interview _ for} Interview is mandatory Selection 2. |Not tested for the|Mandatorily tested for the officer officer like qualities like qualities 3, |Selection based on| Selection based on officer like potential for | qualities professional training 4. | Undergoes ‘only| Undergoes intensive —_ military professional training as/ training as Cadets Cadets 5. Undergoes basic] Military training of 1-4 years military training of 4 -| duration is a pre-requisite for 6 weeks duration after | commissioning commissioning 6. | Employability is limited| No such limitation exists can be to hospitals, medical| posted in any capacity in the establishments and | Army commensurate with related administrative | qualifications appointments 7. |The Cadre is managed | Under the Military Secretary Armyby the Director General Armed Forces Medical Service Head Quarters 8. | No Basic Young|Young officers course after officers course after| commissioning is mandatory commissioning in the|under Para 77 (b) of the MNS/AMC/ADC Regulations for the Army, 1987 9. | Exempted from| Promotion examinations are Promotion mandatory under Para 79 of the examinations —_ under | Regulations for the Army, 1987 Para 81 of the Regulations for the Army, 1987 10. | Separate entrance] National Defence © Academy examination for| Examination conducted by the Nursing and Medical | Union Public Service Commission aspirants after 10+2| for the 10+2 candidates. for training in the armed forces to be commissioned as officers 11. | Direct Commission for] Combined Defence —_ Services Nursing, Medical and Dental graduates without any Services Selection Board Examination, followed by Services. Selection Board Interview37 Interview 12. Transfer from MNS, AMC and ADC to other regiments/ Corps is not permitted Transfer from one regiment or Corps to another regiment or Corps is permitted according to the provisions of the Regulations for the Army, 1987 14. |Age of superannuation| Lower for the Brigadiers and is higher for Brigadiers | below in the fighting Arms, than and below, compared | the AFMS officers to the fighting Arms 13. | Promotion boards are| Promotion boards are constituted constituted under the| under the orders of the Chief of orders of the Director] the Amy Staff : General Armed Forces Medical Services 15. |Trained at Armed|Trained at National Defence Forces Medical College, | Academy, Indian Military Command Hospitals} Academy, = Officers ~— Training and other ~—_—large | Academy etc. hospitals etc. 16. | Personal Number | Personal Number Allotted by the Allotted by the Director | Military Secretary Army Head General Armed Forces | Quarters Medical Services 17. | Change of name of the] Change name approved by the AFMS __ officers are Military Secretary Army Headapproved by the Director General Armed Forces Medical Services Quarters 18. Tri-Services in character, Nursing, Medical and Dental Officers from the Army are Seconded to the Navy and the Air Force; and when Seconded to the Navy or Air Force their ranks will correspond to equivalent ranks in those Services. Not applicable 19. There is separate establishment of Nursing, Medical and Dental Officers for the Army, the Navy and the Air Force; though every Nursing Officer, Medical Officer and Dental Officer is originally Not applicable60. commissioned in the MNS, AMC and ADC respectively 20. | Nursing, Medical and Dental Officers have special rights to be armed and use. the arms in their own defence, or in that of the wounded and sick in their charge under Article 22(1) of the, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. . Geneva, 12 August 1949. No such special rights exist for any other Arms/ Services/ Branches of the regular Army under any international law; making the Medical Services of every Countries Armed Forces unique from the rest ‘of their Armed Forces. The officers in the MNS, AMC and ADC are officers of the regular Army under the military law, even though the method of selection, training, terms and conditions of service, employability, promotion boards, age of retirement etc. are different from that of the officers of the fighting Arms. There are such differences exists in the Army between the various officer61. 4o cadres, It is an accepted fact that the|officers of the Army do not form a homogeneous cadre. The offi¢ers serving in the Services of the Army do not constitute a singl¢ cadre with officers serving in Arms and Arms Support, no matter they may all be drawing the same salary, holding the same rank, wearing the same uniform and serving the same employer with similar service benefits. Hence the Petitioner officers and other officers of the MNS though belong to the cadre of the nursing officers serving in the MNS, are officers of the regular Army. International position on commissioned officer status to the nursing officers The Nursing Services rendered glorious service to the fighting elements of the Army during its 128 years of existence. The officers of the MNS have done wonderful services as a regular cadre of the Army and have created a distinct identity in the defence services through time and the officers of the MNS have been promoted to the rank of Major General by the dent of their merit and achievements. The women officers serving In the MNS are the most combat exposed women in Indian Army. They have served through two World Wars. According to the historical records, around 350 Indian Army Nurses either died or taken prisoner or missing in action during the two World Wars. On a single day on 14 February 1942, fifteen IMNS Nurses died in the62. 63. u) sinking of ‘SS Kuala’ by the Japanese dive bombers of the Coast of Pom Pong Island. The officers of the MNS have served on the fringes of the battle fields in the five major bloody wars we have fought after independence. The officers in the MNS are still caring for the sick and wounded soldiers in the terrorist torn North and North East to the field area bunkers just a stone's throw away from the international borders. The officers in MNS over the years have supported our combat forces in UN Missions at Korea, Gaza, Vietnam, Somalia, Rwanda, Angola, Ethiopia, Sudan, Lebanon, Cambodia, and Sierra Leone etc. and with IPKF in Sri Lanka, also in war ravaged Afghanistan, earth quake struck Nepal etc. No women officer from other services in the Indian Armed Forces ever got killed in action, or taken POWs or endured so many hardships in the service of our great Country. That the women officers serving of the MNS are required to work, in the male dominated world of the Army and the Armed Forces. There are around 6000 Doctors in the Armed Forces Medical Services (AFMS), against around 4600 Nurses. The Planning Commission (now NITI Aayog) recommended Doctor to Nurse Ratio as 1: 3; whereas in the Armed Forces, it is only 1: 0.76 The huge shortfall in the Nurses is partly made up by the extended duty hours of the women officers of MNS. The Medical Services also employs around 23000 Nursing Assistant65. yo tradesmen of the Army Medical Corps in the patient care, under the direct supervision of officers of the MNS to make up the shortfall. Any attempt to remove the officers of the MNS from _ the regular Army cadre and make them auxiliary force would seriously affect not only the status of the officers of the MNS but also functioning of the medical services of Army. That the women officers of the MNS are also routinely required to lead a team of male personne! consisting of ambulance assistants, nursing assistants, nursing technicians, emergency care and trauma technicians, housekeeping staff and civilian staff who are placed under them. She handles combatant male patients like Officers, Junior Commissioned Officers and other ranks from all services including Para Military forces in insurgency prone areas, in her day to day patient care. Some of the women officers in the MNS perform instructional duties in the training centres for the male nursing assistants, teaching them the basic nursing skills, All these different roles, they have performed in the extremely hierarchical, rank, status and class conscious environment of the Army with the strength of their commissioned ranks. That once the outwardly symbols of Army Officers Ranks is removed from their shoulders, some of those women officers of the MNS will be sitting ducks for sexual assaults. When her own67. 68. My That, India routinely trains the Army Officer Nurses from Afghanistan, Bhutan, Nepal, etc. in the Nursing Colleges in the Army. One thing which is common from the Middle Eastern country like Yemen or a South East Asian country like Thailand or a Western country like USA is the existence of commissioned officer nurses in their Army. This includes our neighbours Afghanistan, Bangladesh, Bhutan, China, Myanmar, Nepal, Pakistan and western countries like Australia, Canada, France, Germany, UK, USA etc. Some of them like USA and UK got separate branches for Army, Navy and Air Force. And in the Western Countries like USA the Commissioned Nursing Officers are given the Command of Military Hospitals and Medical Commands. So many countries could not have gone wrong in their judgement by granting commissioned officer rank to the Nurses in their Armies and treating them equal with other branches of the regular Army or defence forces. Flaws in the recommendations of Law Commission Report In 2014 the Law Commission of India in report no. 249 relating to obsolete law warranting immediate repeal recommended that the IMNS Ordinance of 1943 be repealed and suitable amendments brought in the Army Act of 1950 to incorporate provisions pertaining to the erstwhile members of the IMNS. While doing so the Law Commission failed to notice an elementary and obvious fact namely that after the Ordinance ofYs safety, honour and dignity are under threat, the women serving in the MNS will be only fighting for her own. day to day survival. The authorities in the past have been successful in suppressing the cases of atrocities committed against the women officers serving of the MNS. Hence not many cases come to light outside the Army and so many such cases are going unreported. The Army is taking advantage of its decision making process which is cleverly wrapped in the immunity and freedom granted to defence forces to manage their. 66. That most of the countries after the Second World War have made changes to the Nursing Services of their Army by making the Nurses commissioned officers of the regular Army. They all have Army Officer Nurses for the same reason, that their soldiers can go to war with the firm belief that if they get Injured these women will do everything in their powers to care them back to good health. For that, she has to have the necessary resources including personnel like ambulance assistants, nursing assistants, nursing technicians, emergency care and trauma technicians, housekeeping staff and civilian staff under her command. In the Army, only the commissioned officers rank vests that kind of authority on her. That is why so many countries including some of the smallest ones like Bhutan and Nepal also made their Nurses in the Army, the regularly commissioned officers of the Army.69. us 1943 many statutory developments had taken place and that extensive statutory provisions relating to the erstwhile members of the IMNS as well as subsequent joining members of the MNS. of the regular Army had been enacted. There was therefore no need for the Law Commission to recommend that suitable amendments be done as extensive amendments had already been enacted and were being implemented. The stand of the petitioner is that with the subsequent statutory developments and amendments made from time to time starting with the Army Act, 1950 and all the statutory developments thereafter as set ‘out above, the IMNS Ordinance of 1943 ceased to have any effect or force and was impliedly repealed. Moreover, the IMNS Ordinance of 1943 flows from the Indian Army Act, 1911 which was repealed by the Army Act, 1950 and by this repeal the IMNS Ordinance, 1943 is also impliedly repealed. That the above stated Law Commission report recommended for repeal of the Ordinance of 1943 with amendments to the existing law in the form of suitable amendments to the Army Act,.1950 to incorporate provisions pertaining to members of the IMNS. The said Report reads as, “Military Nursing Service Ordinance, Ordinance 30 of 1943 Category: Defence of India and Armed Forces46 Recommendation: Repeal with amendments to the existing law. The Ordinance constituted a force called the Indian Military Nursing Service (IMNS) as part of the armed forces of the Union. This Ordinance provides for matters such as eligibility for appointment to the IMNS, procedure for dismissal and constitution of the IMNS. The IMNS is now an integral part of the Armed Forces Medical Services (AFMS). Post-independence, through a special Gazette of India notification, the Army Act, 1950 was subsequently made applicable to the Officers of the IMNS with suitable modification and adaptation. These adaptations and modifications are contained in Army Order (AO) 197/59. However, while amendments were made to the Ordinance so as to make the Army Act, 1950 applicable to the IMNS, corresponding amendments have not been made to the Army Act. Consequently, provisions of the Ordinance are still being used in adjudication of disputes relating to the terms and conditions of service of members of the IMNS. While this Ordinance cannot be simply repealed, suitable amendments should be brought to the Army Act, 1950 to incorporate provisions pertaining to members of the IMNS.”70. 71. 72. uy That the Report of the Law Commission of India’s Recommendation of “suitable. amendments to the Army Act, 1950 to incorporate provisions pertaining to members of the IMNS” on the repeal of the Indian Military Nursing Service Ordinance, 1943 is totally unjustifiable and devoid of any merit as the force called IMNS had become extinct in the Indian Army ‘on the repeal of the Indian Army Act, 1911, on 22" July 1950. This recommendation has been made under the influence of the Army authorities which wants to re-constitute the MNS as an auxiliary. force under the guise of the repeal of the IMNS Ordinance, 1943; thereby affecting the status of the Petitioners officers as officers of the regular Army. That the force called IMNS under the Indian Military Nursing Service Ordinance, 1943, is not in existence as on date; and the Ordinance is not applicable to the separate legal entity forming part of the regular Army known as the MNS. According to Section 4(1) of the Ordinance which reads as, “Liability of service of members of (Indian Military Nursing Service).-- (1) The members of the Indian Military Nursing Service shall be liable for service only with forces and persons subject to the Indian Army Act, 1911” The Section 4(1) of the Ordinance limits the service liability of the members of the IMNS only with the personnel of the regular73. 74. ud Army. However after having named to MNS and bought under the Army Act, 1950; the Government of India had set the terms and conditions of service of the officers in the MNS through Army Instruction 274/50 dated 12.08.1950; Para (1) of which reads as, “Liability for Service- Persons granted regular commissions in the MNS will be liable for service in any part of the world and in any branch of the Armed Forces i.e. Army, Navy or Air Force”. : That the Petitioners officers and other nursing officers had entered in to an agreement with the Government on being granted commission in the regular Army. As per Annexure ‘D’ to Army Instruction 61/77, that is the “Form of agreement for service of a regular Nursing Officers in the Military Nursing Service”, at Para 4 the Petitioners and other nursing officers were made to agree to serve where ever ordered in any of the three Armed Forces i.e. Army. Navy and Air Force. Had the Petitioner officers were subject to the IMNS Ordinance, 1943 as alleged by the Law Commission of India the Government could not have made such an Agreement violating the provisions of the Section 4(1) of the Ordinance. Section 6(1) of the Ordinance reads as,U9 “Eligibility for appointment.—(1) (Any citizen of India) if a woman and above the age of twenty one, shall be eligible for appointment as an officer in the Indian Military Nursing Services) and, if she satisfles the prescribed conditions, may be appointed thereto in the manner laid down in section 5”. 75. According to Army: Instruction 274/50, “Terms and conditions of service for grant of the regular commissions in MNS”, Para 2, reads as: “Eligibility- the following will be eligible to apply for regular ‘commissions:- --------------B._ Civilians: —~- (i) Nationality: (c) be a Gurhka subject of Nepal. (d) be an individual in whose favour a declaration of eligibility has been issued by the Govt. Of India” 76. The eligibility for grant of commission in the MNS is in conformity with the Section 11 of the Army Act, 1950, reads as, “Ineligibility of aliens for enrolment. -No person who is not a citizen of India shall, except with the consent of the Central Government signified in writing, be enrolled in the regular Army. Provided that nothing contained in this section shall bar the enrolment of the subjects of Nepal in the regular Army”.78. 79. oO Presently the age limit for grant of commission in the MNS is 20 years set vide Army Instruction 3/98. That the Central Government did not issue any Gazette of India notification under Section 4(1) of the Army Act, 1950; to apply the Act to the Officers of the IMNS, as it appears in the Law Commission Report. The Section 4(1) of the Army Act, 1950; reads as: “Application of Act to certain forces under central Government.-(1) The Central Government may, by notification, apply, with or without modifications, all or any of the provisions of this Act to any force raised and maintained in India under the authority of that Government, and suspend the operation of any other enactment for the time being applicable to the said force”. That no other provision exists under the Army Act, 1950 to bring the ‘IMNS’ under the Act through such a gazette notification; as the Officers of the IMNS were clearly not ‘persons not otherwise: subject to military law’ under Section 2(1)(i) of the Act, reads as “persons not otherwise subject to the military law who, ‘on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in81. G7 the service of, or are followers of, or accompany any portion of the regular Army” That members of the erstwhile ‘IMNS’ stood absorbed as officers of the MNS on the issuance of the Army Instruction 274/50, with retrospective effect for their Rank, Seniority and Promotions from 15" August 1947. The ‘officers of MNS’ were brought under the Army Act, 1950 as Nursing Officers granted commission in the regular Army by the President of India, according to the terms and conditions of service set by the Army Instruction 274/50. The relevant finer details regarding the creation of the MNS part of the regular Army is inaccessible to the Petitioners as the same is under the custody of the Respondents. Hence the ‘MNS’ is a separate legal entity forming part of the regular army; different from the ‘IMNS’. That according to Section 9(1) of the IMNS Ordinance 1943; which reads as: “Application of Army Act and Indian Army Act 1911, 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”.82. 83. ke That the Section 9(1) of the IMNS Ordinance modified the provisions of the Indian Army Act, 1911. According to Military Nursing Service (India) Rules, 1944, Rule 4, which reads as:- “Modification of Indian Army Act, 1911.—Of the provisions of sections 25 to 41 of the Indian Army Act, 1911, only clause (d) of section 30 and clause (i) of section 39 shall apply to offences committed by officers of the Nursing Services referred to in sub-section (1) of section 9 of the Ordinance, and those provisions shall have effect in relation to such offences as if they were modified as follows:- Clause (d) of section 30- ‘An officer who absents herself without leave commits an offence against this Act". Clause (i) Of section 39 "An officer who is guilty of any act or omission prejudicial to good order and discipline commits an offence against this Act.” That the corresponding provisions of the Indian Army Act, 1911 as modified by the Military Nursing Service (India) Rules, 1944 for application to the members of the IMNS, with respect to the ‘Army Act, 1950 are given in Section 39, “absence without leave” and Section 63, “Violation of good order and discipline” of the Army Act 1950. Hence the members of the IMNS could have been subjected to only under Section 39 and 63 of the Army Act, 1950, had the Act been made applicable to them.85. 86. & That the officers in the MNS including the Petitioners are subject only to the Army Act, 1950 and Rules made thereunder they can be tried for any offence under the Army Act, 1950 including “insubordination” under Section 42 of the Army Act, 1950 like other officers of the regular Army. According to Annexure ‘D’ to Army Instruction 61/77, Form of agreement for service of a regular Nursing Officers in the Military Nursing Service, Para 1 (b) (iv), executed by the Petitioners officers and other nursing officers, the Government shall have the right to terminate their service at any time without previous notice if, they are found “guilty of insubordination”. ‘That the provisions of the Army Act, 1950 applies to the officers of the MNS including the Petitioners is an undeniable fact as seen from Rule 16A of the Army Rules, 1954. Therefore the Army Act, 1950 applies to the women officers serving in MNS as officers of the regular Army; under Section 2(1) (a), reads as, “Persons subject to this Act. - (1) The following persons shall be subject to this Act wherever they may be, namely: (a) Officers, junior commissioned officers and warrant officers of the regular Army;” That according to Section 5 of the Indian Military Nursing Service Ordinance, 1943, as on 21.07.1950 the Officers of the IMNS were of commissioned rank; reads as,87. 88. 89. “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”. That Section 9 of the IMNS Ordinance, 1943 laid down that, “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”. Hence on 22™ July 1950 onwards (on the commencement of the Army Act, 1950); without any adaptations and modifications, the Act applies to the Officers of the MNS as ‘Officers of the regular ‘Army’. Further the ‘IMNS' cease to exist in the Army, though the Indian Military Nursing Service Ordinance, 1943 was not expressly repealed, as the members of the force were subsumed in a legal entity forming part of the regular Army named the ‘MNS’. The Section 12 of the Army Act, 1950; reads as,90. 91. SS “Ineligibility of females for enrolment or employment. -No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the official Gazette, specify in this behalf”. Such a notification was not necessary in the case of women officers serving in the MNS, as immediately before commencement of the Act (22™ July 1950) they were existing in the Army as the IMNS. Further the officers in the MNS come under the definition of regular Army. The Section 3 (xxi) of the Army Act, 1950; reads: as, “Regular Army’ means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;”92. 93. 94, S6 It is brought out that women officers serving in the MNS are officers under Section 3(xvili) of the Army Act 1950; and provisions of the Act, applies to them under Section 2(1)(a) of the Act, and they are part of the regular Army. They are by their commission, liable to render continuously for a term military service to the Union in any part of the world. Further the Government of India in the year 1950 had amended the ‘terms and conditions of servicé of the officers of the MNS through Army Instruction 274/50; Para (1), reads as, “Liability for Service- Persons granted regular commissions in the MNS will be liable for service in any part of the world and in any branch of the Armed Forces i.e. Army, Navy or Air Force”. That the IMNS (India) Rules, 1944 also became redundant thereafter as the rank, status and all other aspects of the officers in the MNS came under the exclusive purview of the Army Act, 1950. That the IMNS Ordinance, 1943 was amended by the Parliament only twice during its. existence. Firstly, on 26" January 1950 through the adaptation of Laws Order, 1950; and secondly on the May 1955 through the Commander-in-Chief (Change in Designation) Act, 1955; which substituted the words ‘Commander-in-Chief, Indian Army’ with ‘Chief of the Army Staff” in the Sections 7 and Section 11 of the IMNS, 1943; however no95. 96. SH specific amendment was made to bring the members of the IMNS or its successors under the Army Act, 1950. Further, the name of the force constituted by the Ordinance remains even today as the “Indian Military Nursing Service” (IMNS). Whereas, the Army is trying to resurrect the erstwhile IMNS which exists ‘only on paper by hoodwinking the Law Commission of India and the Government, thereby violating the terms and conditions of service on the Petitioner officers. Violations of terms and conditions of service of the MNS officers That the oath or affirmation under Section 16 of the Army Act 1950, Rule 16A Army Rule 1954, provisions of Army Instructions 274/50, 4/59, 30/69, 61/77 and 3/98; and Army Orders 127/50, 501/63, 120/73, 353/73 and 11/82; Regulations for the Army 1962, and revised edition 1987, Paras 32, 58, 65, 66, 67, 75, 76, 77, 81, 105, 109, 255, 341, 618, 619, 621, 733 and 1394; scales of accommodation for defence service, 1983 and revised edition, 2009, and the surety bond to be executed by the nursing cadets before commencement of the training etc. had. laid down conditions of service and status of Officers of the MNS as officers of the regular Army. The AFMS officers are not meant for combat duties, there are differences in the entry level educational qualifications, method of training and employability between the AFMS (MNS, AMC and97. 98. S52 ADC) officers and officers in the other Arms/ Services. However, due to the discriminatory policies of the Army being pursued for more than a decade; they are able to highlight the differences that exists between the officers in the other Arms/ Services with that in the MNS; at the same time covering up such similar differences existing in the officers in AMC/ADC. That the officers of MNS including the Petitioners were granted commission in the Regular Army by the President of India; under the Army Act, 1950 and the Army Rules, 1954. Hence their service conditions, methods of dealing with delinquency etc are required to be carried in the similar manner as for the officers in other Arms/Services of the regular Army. However, there are attempts by the Army to violate the same. That the Army is trying to bring in differences between officers of the MNS and other AFMS officers of the regular Army. They have suspended the issue of the certificate of commission from the President of India, changed the uniform of the officers in the MNS to a different colour and style from the other officers, stopped giving them firearms training, reduced their pay scales and grade pay, changed their travel entitlements including discontinuing the Form G for concessional travels in trains and clubbed it with Concession Voucher meant for personnel below officer ranks. They are trying to change the surety bond for99. training, segregate their family accommodations from other officers, change their rank insignias and rank designations. In 1996 or thereabouts the Army discontinued weapon and arms training for the officers of the MNS. Every officer of every branch of the Army gets weapon and arms training. This is true of all the doctors, all the lawyers, dentists, veterinarians, education branches, postal service, military farming personnel and so on. None of these personnel from these branches except the doctors are required to go near the battle front. The officers of the MNS are required to go near the battle front whenever the situation demands it. In fact in the agreement for service entered into between the Government of India and the officers of the MNS it is specifically stated as under: “If appointed to service I agree... to proceed on field service and to any station in or out of India to which I may be ordered” 100. Thus the officers of the MNS may be ordered to go abroad and have been so ordered to operate in Sudan, Congo, Slerra Leone, Lebanon, Tajikistan, Afghanistan, Srilanka, Somalia and elsewhere. In some of these places such as Sudan, Congo, ‘Somalia, Sierra Leone, Afghanistan and Srilanka the officers of the MNS were posted in war zones and conflict zones.101. 102. 103. 104. be In India the officers of the MNS have been posted at J&K where it is impossible to distinguish which part of the state is a conflict zone and which is not. They are posted at “border static hospitals” and elsewhere. These border static hospitals are often close to the Line of Control (LOC) with Pakistan. Such hospitals near LOC at Tangdhar in Kupwara Dist and at Kargil are within the reach of small arms fire from across the border. The Tangdar and Badami Bagh camp at Srinagar are frequently targeted by the militants. In Assam and other parts of the North East the officers of the MNS have been posted to counter insurgency areas. In Manipur areas have been declared as disturbed areas under AFSPA and the officers of the MNS are posted in these disturbed areas. Not only are the officers of the MNS required to work in the hospitals but they are also required to accompany the .patients in ambulances when they are being transferred in the conflict zones and insurgency prone areas. The officers in the MNS often travel with persons, from other Arms/Services of the regular Army in convoys through conflict zones and insurgency areas thus facing the same level of threat to their lives as other army personnel. To deprive the officers of the MNS of arms training was therefore an arbitrary act which render the officers of the MNS vulnerable, and the said instruction or orders issued orally or in105. 106. 67 writing ought to be set aside by this Court. The written orders are not available hence this Court may direct their production. In this regard one ought to take note of Article 22 of the “Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces. in the Field” which is as under: “ARTICLE 22 The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed, and that they use the arms in their own defence, or in that of the wounded and sick in their charge.” That the Medical personnel have the right to bear arms and may in case.of need, use them in their own defence or in that of the wounded and sick in their charge. The purpose of the provision is undoubtedly to make it possible for the medical personnel to ensure the maintenance of order and discipline in a hospital or sick-bay on land, in a hospital ship and protect it against individual hostile acts. A medical establishment is under military discipline, and its personne! must be provided with small arms, to prevent patients from leaving the premises without permission107. 108. EL or from committing hostile acts, and to ensure that the Nurses enjoy the respect to which they are entitled. That the Army in order to discriminate the officers in the MNS from officers in the other Arms/Services of the regular Army and has stopped giving them the arms training, thereby deprived them of the right to bear arms and use them in their own defence as provided under the Article 22 of the afore said Geneva Convention. This most important provision for the medical personnel is being conveniently ignored by the Indian Army regardless of the fact that India is a signatory to the said Convention. However still there are international shooters who are serving officers of the MNS. India’s first gold medal in a women’s event at the Common Wealth Games 2006 was won by then Major Saroja Kumari Jhuthu an officer in the MNS. Her illustrious career started with her being adjudged the Best Shot during the Initial Nursing Officers Course in 1991 after her commissioning in the regular Army. The distinction between combat and non combat officers of the Army is not to be found in any statute or any Army Order or Army Instruction. This is because in many situations officers of the MNS are required to work in insurgency prone areas, disturbed areas and possibly very close to combat zones. In those circumstances they will be required to protect themselves, which is not possible as the arms training is presently denied to63 them. Not only are they required to serve in such places, but also they have agreed in writing to do so. The Hon'ble High Court of Delhi in its order dated 12.03.2010 in WP (C) No. 1597 of 2003, regarding grant of permanent commission to women in Army and Air Force at Para 34 had observed that, ™sethe traditional distinctions between combat and non-combat. or combat support roles having become blurred with the introduction of deep battlefield and over-the-horizon weaponry as observed by Dr. Jakkie Cilliers, Co-Director, Institute for Defence Policy in an article published in the South African Defence Review Issue No.9, 1993 "Feminism and the Military, Developments in the United States of America".” Deliberate and Wilful Distortions of law 109. That the Indian Army is guilty of deliberate distortions of law regarding the MNS. Evidence of this is a book published by the Army titled “Military Law Officer Training School AMC Centre & School Lucknow PSR May 2003”, This publication makes out as if the Ordinance 1943 is still in place and effective. Wilful distortions are made in the 1943 ordinance to give the impression ‘that it is this ordinance binds officers of the MNS even today.410. This book is used as a training manual and is repeatedly see point out to the MNS officers and others that they do not have the rank and status of officers of the regular Army. In this book the name of the force (“Indian Military Nursing Service”) constituted by the IMNS Ordinance, 1943 was changed to ’ilitary Nursing Service” all throughout (preamble and Sections) and; at Section 4, replaced the part of the sentence “Indian ‘Army Act, 1911” with “Army Act 1950”. Similar version of the MNS Ordinance is being circulated / taught in all the Training Establishments of the Army. 411. That the following comparative table gives the Section wise comparison of the IMNS Ordinance, 1943 as it exists in the statute books and the false version being circulated in the Army. It Is self explanatory and explicit in all terms and removes all doubts regarding the deliberate and wilful acts by the Army to downgrade the status of the Petitioners and other officers of the MNS granted commission in the regular Army by the President of India. Part/ Section |IMNS Ordinance, Indian Army's Officially 1943, Statutory | Circulated False Version Version Title (THE INDIAN) | MILITARY NURSING MILITARY _NURSING| SERVICE _ ORDINANCE6S” ‘SERVICE ORDINANCE, 1943 [30 of 1943] 1943 [ORDINANCE XXX of 1943] Preamble An Ordinance ~— to constitute a force to be called the (Indian Military Nursing Service) as part of the armed forces of the (Union). Whereas: An emergency has arisen which makes it necessary to provide for the constitution of a force to be called the (Indian Military Nursing Service) as a part of the armed forces of the (Union); Now, THEREFORE, in exercise of the powers conferred by section 72 of the Government of India Act, as set out in the Ninth Schedule to the Government_of WHEREAS: an emergency has arisen which makes it necessary to provide for the constitution of a force to be called the Military Nursing Service as a part of the armed forces of the Union. NOW, therefore, in exercise of the powers conferred by section 72 of the Government of India Act. As set out in the Ninth Schedule to the Government of India Act, 1935. The Governor& India Act., 1935, The Governor-General is pleased to make and promulgate the following Ordinance:- General is pleased to make end promulgate the following Ordinance:- Section 1 1 ‘Short title application and commencement.—(1) This ordinance may be called The (Indian Military Nursing Service) Ordinance, 1943. (2) It applies to members of the Indian Military Nursing Services wherever they may be. (3) It shall come into force at once. 1. Short Title Application and __Commencement:- This ordinance may be called THE INDIAN MILITARY NURSING SERVICE ORDINANCE, 1943. It applies to members of the Military Nursing Services wherever. they may be. It shall come. into force at once. Section 2 2. Definitions. - In this Ordinance, unless there is anything repugnant in the subject or context.— (a) "prescribed' means 2. Definition:- In this Ordinance, unless there is anything repugnant in the subject or context:- (a) "Prescribed' means prescribed by __ rules67 prescribed by rules made under this Ordinance (b)"regulations" means regulations made under this Ordinance. made under this Ordinance. (b)"Regulations" means regulations made under this Ordinance. Section 3 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 auxiliaty force which shall be designed the Military Nursing Services (india). 3. stitution _of Service:- 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 Military forces an auxiliary force which shall be designed the Military Nursing Service. Section 4 4. Liability of service of members of (Indian Military Nursing Service).- 4. Liability of service of members of Military Nursing Service:- The members of the Military63 (1) The members of the Indian Military Nursing Service shall be liable for service only with forces and persons subject to the Indian Army” Act, 1911, Nursing Service shall be liable for service only with forces and persons subject to the Army Act. 1950. Section S 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. 5. Members to be_of commissioned _rank:- All members of the Military Nursing Service shall be of commissioned rank and shall be appointed as officers of the Military Nursing Service by the Central Government by notification in the Official Gazette. Section 6 6. Eligibility for appointment.—(1) (Any citizen of India) if a_woman_and_above 6. Biigibility for appointment:- Any citizen of India if a woman _and_ above theZa the age of twenty-one. shall be eligible for appointment as an officer in the Indian Military Nursing Services) and, if she satisfies the prescribed conditions may be appointed thereto in the manner laid down in section 5. (2) Every person so appointed shall be subject to this Ordinance and to the rules and regulations made thereunder. age of twenty one, shall be eligible for appointment as an officer in the Military Nursing Services and, if she satisfies the prescribed — conditions, may be — appointed thereto in the manner laid down In Sec 5, Every person so appointed shall be subject to __ this Ordinance and to the rules and regulations made thereunder. Section 7 7. . Dismissal from Indian Military Nursing Service.—The Central Government, or an authority empowered by the Central Government in this behalf, or the (Chief of 7. Dismissal from Military Nursing Service:- The Central Government, or an authority empowered by the Central Government in this behalf, or the Chief _of the Army StaffPo the Army Staff) may dismiss any officer from the — (Indian| Service, Military Nursing Service). may dismiss any officer from the Military Nursing Section 8 8. Liability to undergo training and perform duties.—Subject to the provisions of this Ordinance, a member of the (Indian Military Nursing Service) shall be bound to undergo such training and in such manner and to perform such duties in connection with (Indian) military forces as may be laid down by regulations. 8. Liability_to undergo ant rm duties:- Subject to the provisions of this Ordinance, a member of the Military = Nursing Service shall be bound to undergo such training and in such manner and to perform such duties in connection —_ with Military Forces as may be laid down by regulations. Section 9 9. Application of Army Act and Indian Army Act 1911, to members of Indian Military Nursing Service.—(1) The provisions of the 9. Application of Army Act_and Indian Army Act, 1911:- Provision of the Army Act 1911, shall to such extent and subject___to__such7/ ‘Indian Army Act, 19114 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. adaptations and modifications as may be prescribed, apply to members of the Military Nursing Service as they apply to Indian commissioned officers unless they are clearly inapplicable to women. Section 10 10. Power to make rules.—(1) The Central Government may, by notification in the Official Gazette make rules to carry out the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power, rules may be _made_under 10. Power to make rules:- (a) The Central Government may by notification in the Official Gazette make rules to carry out the purposes of. this Ordinance. (b) In particular and without prejudice to the generality of the foregoing power, rules may be made under thisYE this section— section:- (a) providing for the| (i) Providing for the medical examination | medical examination of of persons offering | persons offering themselves for | themselves for appointment in the] appointment — in the (indian Military | Military Nursing Service. Nursing Service); (b) Providing for any (b) providing for any| matter which under this matter which under| Ordinance is to be or this Ordinance is to be | may be prescribed. or may be prescribed. 112. True copy of the Military Nursing Service Ordinance 1943 circulated within the Army dated nil annexed herewith and marked as Annexure P-15 (Pages /7 2 to / 29). After the year 2000 an issue arose relating to medical officers and nursing officers of the regular army wearing the same uniform as it was said that it was difficult for the patients to distinguish between the doctors and the nurses. Accordingly steps were taken by the army to change the uniform of the nursing officers. This controversy reached the Supreme Court and judgment was delivered on 13.11.2003 in Transfer Case (c) 38 of 2002. In that decision relating to the nature of the uniform73 to be worn by the nursing officers an observation crept in namely: “That the Indian Military Nursing Service Is a separate class, sui generis even though an éuxiliary force of the Indian Military, is an undeniable fact.” True copy of the judgment dated 13.11.2003 delivered by this Hon’ble Court in Transfer Case (c) 38 of 2002 annexed herewith and marked as Annexure P-16 (Pages _! 80 to \70_). 113. Based on this observation the central government and the Chief of Army staff began introducing a series of changes in the service condition and status of the officers of the MNS of the regular army designed to downgrade their status and change their service conditions to their detriment. 114. A perusal of the above decision shows that, on the basis ‘of wrong submissions relating to the statutes in question, certain errors were committed by this Hon’ble Court in that decision, as a result of which, the submission is now being made by the petitioner, that the said decision is per incurium as the changes in the statutes were not brought to the notice of the Court and the fact that the Ordinance relied upon had been impliedly repealed was also not brought to the notice of the Court.115. Secondly, the extensive statutory and ground level changes as stated in the earlier paragraphs integrating the officers in the MNS as officers of the regular Army in every respects, the observation of the Supreme Court abovementioned which might have been correct prior to the Army Act, 1950 can no longer is said to be a correct statement on law or facts. What has been stated in the judgment as an “undeniable fact” Is completely contrary to all the statutory and ground level and statutory changes that have taken place and have been set out in detail in the aforesaid paragraphs. So misleading was the presentation of the statutory scenario and facts presented to, the Supreme Court, that the Supreme Court was not informed: i) That the Ordinance of 1943 on which the entire judgment rests was impliedly repealed by the enactment of the Army Act, 1950 and various statutory instruments made thereafter. li) That the IMNS, (which term is used repeatedly in the judgment) ceased to exist in 1950 and was replaced by the Military Nursing Service which was a substantially different force even though the nomenclature may sound similar, because the MNS was integrated into the regular Army in every respect through a series of statutory instruments and ceased to be a separate class or an auxiliary force;116. 117. 7S ili) The numerous statutory instruments in the form of Army Rules, Army Instructions and Army Orders: integrating the Military Nursing Services completely into the regular Army were not brought to the notice of the Supreme Court. Therefore, in the petitioner's submission, this decision ought not to be treated as binding and the issues of law and the determinations on facts ought to be reconsidered. At the very minimum the observation in the decision “that The Indian Military Nursing Services is a separate class sui generis, even though an auxiliary force of the Indian Military, is an undeniable fact” should not be taken to be correct and binding and ought to be held to be an observation made per incurium and on the basis of wrong factual submissions made to the Court by the parties, After the above observation by the Supreme Court, the Army started introducing a series of changes. By order dated 30.04.04 the Army made an order stripping the car flags and star plates from the official cars used by the senior MNS officers of the General officer rank in the following terms: “para 3. The Indian Military Nursing Service Officers are not covered under the definition of “Officer” as76 given in AA 3(xvili) Army Act 1950. The Military Nursing Service was raised vide Indian Military Nursing Ordinance, 1943 in that, MNS officers are appointed as “officers of Indian Military Nursing Service” 4. Inview of the above, under the provisions of existing Army Orders/ Regulations for the Army, Nursing Officers are not authorised to fly flags or display star platés.” True copy of the army headquarters AG/CW-1 dated 30.04.2004 on flying of car flags and display of star plates nursing officers annexed herewith and marked as Annexure P-17 (Pages _1 GM to_s_). 118. The 6" Central Pay Commission in its report had made a recommendation regarding the MNS cadre officers as under: “The Commission, however, is of the view that no differential in salary of officers belonging to the services or MNS is justified and that the pay band and grade pay of similarly designated posts in service officers cadre and MNS cadre should be the same."(2.3.20 of the 6" Pay Commission Report).119, 7 True copy of the relevant portions of the 6” Central Pay Commission dated nil annexed herewith and marked as Annexure P-18 (Pages _J7?2- to__— ), Despite this, the MNS officers are kept on a lower basic and grade pay than other officers of equal rank in the army. This discrimination was done due to a letter dated 20.6.08 by the then Chief of Army Staff opposing the recommendation made by the 6" Pay Commission in the following terms: “1. Please refer to Chiefs of Staff Committee letter No. COSC/1940 dated 15 Apr 08 addressed to Hon’ble Raksha Mantri, expressing Armed Forces concerns over the VI CPC Report and the anomalies therein. 2. While forwarding the above, an important issue which inadvertently missed out is being brought to your notice. This is pertaining to the Pay and Grade Pay of MNS vis-a-vis AMC officers which had not been highlighted earlier. The issue pertains to grant of pay scale and grade pay at par with AMC Officers to MNS Officers who hitherto had lower pay scales and no rank pay. Efforts of the VI CPC to meet the just aspirations of Nurses with regard to Pay, Grade Pay and status be it in civil or in the Armed Forces Medical78 Services is well appreciated. However selective upgradation of Basic Pay, Grade Pay and the hence the status of Nurses only in the Armed Forces to equate them with Doctors will seriously impact the command and control in the Military Hospitals, which would adversely affect patient care in the long run. 3. Hence, there is a need for reconsidering these aspects and keeping the Pay and Grade Pay of MNS Officers distinct from Service Officers. The detailed case is attached.” True copy of the letter bearing reference number G/7021/VI-PCC (Army) dated 20.06.2008 written by General Deepak Kapoor annexed herewith and marked as Annexure P-19 (Pages 198 to l74_). 120. However regardless of the differences in the entry level educational qualifications, method of selection and the actual job performed by the officers from the various cadres; they are not discriminated based upon their profession and are paid equally, except for the officers of the MNS. In the Army there is a clear distinction between fighting arms, support services and specialist services. There is limited mobility of officers exist between fighting arms and support. services. However there is nil mobility exists between the specialist services and other cadres. The following table gives the actual jobvp performed by the various officer cadres of the Army and their entry level educational qualifications: Sl. Officers Direct Entry: Profession Remarks No.| Cadre Educational Qualification . 01 | Artillery Any Degree Controlling/leadin | Fighting Arms g artillery guns 02 | Mechanised Any Degree | Controlling/ Fighting Arms Infantry leading battle tanks 03 _ | Infantry ‘Any Degree _| Controlling/ Fighting Arms leading foot soldiers 04 | Army Aviation | Any Degree Piloting army | Fighting Arms aviation helicopters 0S | Engineers BE/ B Tech Mine — clearance, Fighting Arms temporary bridge making etc. 06 | Signals BE/ B Tech Handling 7| Fighting Arms providing communication equipments 07 | Army Service | Any Degree Supplying the | Support Corps stores, spares, | Service food etc. 08 | Army Any Degree Supplying arms, | Support Ordnance ammunitions etc. | Service Corps 09 | Corps of | BE/ B Tech Maintenance of | SupportElectrical and equipments, Service Mechanical vehicles etc. Engineers, 10 |Army Postal | Any Degree Handling of mail | Support Service Corps Service 11 [Pioneer Corps | Any — Degree/| Civil Engineering | Support BE/ B Tech & related works | Service for battle 12 |Intelligence | Any Degree Intelligence Support Corps gathering &| Service dissemination 13° | Army Any Degree Teaching in| Support Education training institutes | Service Corps 14 | Army Physical | Any Degree Physical _ training | Support: Training of troops Service Corps 15 | Corps of | Any Degree Policing of the} Support Military Police Army Service 16 | Military Farms|Any Degree | Running —_dairy| Support farms Service 17 | Judge ULB Handling legal | Specialist Advocate affairs Service General's Branch 18 | Army Medical | MBBS Providing medical | Specialist Corps care service 19 | Army Dental | BDS Providing dental | Specialist Corps care Service 20 | Military BSc (N) Providing Nursing | Specialist Nursing Care Service Service8/ 21 | Remount and | BVSc Providing care to| Specialist Veterinary pack animals, | Service Corps canines etc. 22 | Regimental 10" Pass (for|Same job as|Part of his Commission | Serving fighting arms/| parent Arm/ personnel only) | support —_ service | Support officer Service 23 | General 10" Pass (for| Clerical Jobs Any Arm / Service or | Serving Service Special List personnel only) 24 =| Army Medical] 10" Pass (for| Handling of | Support Corps (Non-| personnel of | medical stores &| Service technical) AMC) management of personnel 121. It clear from the above the basic educational qualifications, the training imparted and the actual job performed by the officers from the Services stream and Arms/ support Arms are different. However officers belong every cadre are paid equally depending upon their rank. The criterion which decides the pay band and grade pay of an officer in the Indian Army is his / her rank not his / her profession. The holding of certain rank in the Army has been treated as the ‘work’ and equal pay has been extended to equal work and all the officers in the different Arms and Services of the Army has been paid the same rank based pay, except for the women officers in the MNS. That the equal pay for equal job has been denied by the Government on the basis of the COAS letter to the women officers of the MNS commissioned in the122. 123. 124, 82 regular Army. Though like rest of the women officers from the other Services of the Army, the MNS officers are also primarily employed on jobs which are non-combatant in nature. The 6" Central Pay Commission also had recommended for parity in time scale promotions as under: “The Scheme of time bound promotions upto the level of Lieutenant Colonel, already available to the service officers, should be extended to MNS officers as well."(2.3.21 6" Pay Commission report) Pursuant to this notification dated 30.8.08 was issued by Government of India accepting the abovementioned recommendation. Notwithstanding this notification the recommendation has not been implemented till date. True copy of the office Gazette of India notification dated 30.08.2008 on implementation of sixth central pay commission recommendations annexed herewith and marked as Annexure P- 20 (Pages 19 to 174). When the Government had lowered the length of service for the time scale promotions up to the rank of Lt Col in all other ‘Arms/Services of the Army, the samme was denied to the MNS cadre. Even after due notification the time scale promotion as available to the officers in other Services of the Army the same has not been implemented. This discrimination based on125. es profession should end and they should be paid at the same Pay Levels like the other women officers of different branches and services of the Army. The criteria for deciding the pay in the case of the women officers of the MNS shall only be the substantive or acting paid rank held by the officers. They shall also be paid the same rate of Military Service Pay like the women officers serving in other branches or services of the Army. The officers in the Arms/Services of the Army do not form a homogeneous cadre, whereas It consists of different cadres. The Supreme Court of India held in Civil Appeal No. 3208 of 2015 that: "32. Applying the above test to the case at hand we have no hesitation in holding that officers serving in the Service stream of the Army do not constitute a single cadre with officers serving in Arms and Arms Support, no matter they may all be drawing the same salary, holding the same rank, wearing the same uniform and serving the same employer with similar service benefits...” Hence the job based discrimination done only to the MNS cadre officers of the Indian Army regarding their pay is not justified. The 7 Central Pay Commission report had widened the differences forced upon by the Chief of Army Staff on the pay scales of the MNS officers; during the implementation of the 6"126. 127. e4 Central Pay Commission recommendations. The 7” Central Pay Commission Recommendations is proposed to be separately challenged by way of another petition. That the order dated 30.04.04 by the Army stripping the car flags and star plates from the official cars used by the senior MNS officers was challenged by the then ADGMNS, through the case Major General Mrs. Usha Sikdar (Retd.) versus Union of India & Ors., and the decision of the Armed Forces Tribunal dated 30.03.10 was delivered in her favour. True copy of the order dated 30.03.2010 passed by the Armed Forces tribunal, Principal bench at New Delhi in T.A. No. 211/2010 annexed herewith and marked as Annexure P-21 (Pages [97 to 240 ). This case was also wrongly pleaded before the Tribunal by the Army that stated: “Para 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eS” learned counsel for respondents has drawn our attention to definition of ‘officers' given in Section of Army Act 3(XVIIl) Army Act, 1950.”” 128. This was wrongly accepted by the Tribunal which observed as under: “Para 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 down the Constitution of the Indian Military Nursing Service which reads as under......” 129. A perusal of this decision shows that from Para 6 onwards a substantial part of the judgment is based on the IMNS Ordinance 1943 in respect of an officer who was commissioned in 1967 when the ordinance was no longer in force and the petitioner in that case was governed by a totally different statutory regime starting with the Army Act, 1950 and various Army Instructions and Army Orders made thereafter. Even in Para 21 it is stated: “Para 21: It is true that the petitioner was not recruited under the Army Act, 1950 but she was recruited under Military Nursing Ordinance, 1943130. 131. gE 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......” Although the ultimate decision was in favour of the petitioner in that case, and the reasoning in the latter part of Para 21 is correct, the earlier observations to the effect that she was appointed and was governed by the Ordinance of 1943 is based ‘on the Uol making wrong submissions before the Tribunal. In the above cases [Supreme Court - Transfer Case (c) 38 of 2002 and Armed Forces Tribunal - T.A. No. 211/2010] the respondents have wrongly presented that the MNS and the erstwhile IMNS are nothing but the same organisation and the IMNS Ordinance, 1943 applied to the officers of the MNS. The comparative table showing the difference between the members of IMNS and officers of MNS is being given hereunder which is self explanatory and explicit in all terms and removes the cloud created around the same: st MNS IMNS No. 1. | Officers of the MNS/ Other| Subject to the IMNS Services/ Arms are subject] Ordinance, 1943, and the to the Army Act, 1950 and | Indian Army Act, 1911 and theoF Rules made thereunder. Rules made thereunder. MNS/other Services/ Arms forms part of the regular Army. IMNS was an auxiliary force part of the armed forces. Officers of the MNS and other Services/ Arms are officers of the regular Army. Members of the IMNS were auxiliary forces supporting the regular Army. Officers of the MNS like all other officers of regular army are to be Attested as provided in Section 16 of the Army Act, 1950 on commissioning. Not applicable Officers of the MNS like all other officers of regular army subscribe to the Oath/ Affirmation to serve in the regular Army as given in Rule 9 of the Army Rules, 1954. Not applicable Officers of the MNS like all other officers of regular army commissioned by the President India of in accordance with _ Section Appointed by the Central Government under Section 5 of the Indian Military Nursing Service Ordinance, 1943.10, 16 and 17 of The Army Act, 1950 read with Rule 8 and 9 of the Army Rules 1954. 7. | Officers of the MNS and | Not applicable other Services/ Arms are combatants according to the Rule 8 of the Army Rules, 1954. 8, |Terms and conditions of |Terms and conditions of service of the officers of | service in IMNS were set by the MNS, like all other|the Ordinance and the Rules officers of regular army are| made thereunder _ issued set by the relevant Army | before 22" July 1950. Instructions issued after the commencement of The Army Act, 1950 (22™ July 1950). 9. |All the Sections of the| Only clause (d) of section 30 Army Act, 1950 applies} and clause (i) of section 39 without any adaptations | ofThe Indian Army Act, 1911 and = modifications —_to| applied to offences committed officers of the MNS/ Other | by the members of the IMNS. Services/ Arms. 10..|Any Indian national, | According to Section 6(1) of subject_of Nepal_or_any the Indian Military Nursing7 individual in whose favour a declaration of eligibility has been issued by the Govt. of India is eligible for commission in MNS like all other branch of regular army. Service Ordinance, 1943 only Indian Citizens are eligible for appointment in the IMNS. 1. Officers of the MNS like all other officers of regular Army liable to serve with Army, Navy and Air Force in any part of the world, Liable to serve only with the forces and persons subject to The Indian Army Act, 1911. 12. Officers of the MNS use same rank designations as in other Services/Arms of the Army, Members of the IMNS were ranked as Ward Sister, Senior Sister, Matron etc, 13. MNS officer’s minimum age for grant commission in the regular Army is only 20 years. ‘According to Section 6(1) of the IMNS Ordinance, 1943 age shall be above 21 years. 14. According to Para 733 (b) of the Regulations for the Army, 1987 officers in the MNS ranks equally with male officers, Not applicable being an auxiliary force. 15. MNS is currently a Corps/ IMNS cease to exist on the90 Service of the regular| repeal of The Indian Army Act, Army. 1911 (22 July 1950). 132. 133. The wrong submissions made by Uol to the Supreme Court in Transfer Case ( C ) 38 of 2002 mentioned earlier as well as the decision of the Tribunal dated 30.03.10 mentioned above is probably not accidental but intentional. Evidence of this is the training booklet published by the Army mentioned earlier. This publication makes out as if the Ordinance 1943 is still in place, and effective and wilful distortions are made in the 1943 ordinance to give the impression that it is this ordinance which binds officers of the MNS even today. This book is used as a training manual and is repeatedly used to point out to the MNS officers and others that they do not have the rank and status of officers of the regular Army. In line with this many official publications in the armed forces including Indian Air Publication (IAP) dealing with medical services issued by the Chief of the Air Staff have been amended to downgrade the status of the officers in the MNS. That the Army is trying to rewrite the military law to down grade the Petitioner officers and other officers of the MNS from being officers of the regular Army to mere Nurses and members of an auxiliary force . They have successfully introduced many changes over the years since the Supreme Court’s order of 2003134. 9 in Jasbir Kaurs case, to make the officers of the MNS ae from the other officers of the regular Army. They are trying illegally to separate the MNS from the regular Army and reconstitute it as an auxiliary force in the garb of repeal of the IMNS Ordinance, 1943. By the sustained propaganda using false version of the IMNS Ordinance in training booklets and issuance of official publications, letters and orders stating that the officers of the MNS are not officers of the regular Army, the authorities was able to cover up the truth and had made the Armed Forces personnel believe that Petitioners and the other officers of the MNS are not officers of the regular Army. That the current generation of the Armed Forces personne! have been led to believe that the MNS is an auxiliary force under the IMNS Ordinance, 1943; by using a false version of the Ordinance and other similar bogus information in the training booklets and official publications in the Armed Forces. They are able to change the majority opinion against the officers of the MNS that now almost everyone in the Armed Forces looks down upon them. The institutional apartheid encourages even the personnel below officer rank to ill treat the women officers of the MNS. Because of the sustained propaganda campaign over the years other officers now feels belittled over the fact that the Nurses are also are been given Commissioned Ranks. This is nothing but135. 136. Po the most severe form of discrimination found in any organisation. Institutionalized discrimination against the MNS officers Post the decision of the Supreme Court in Jasbir Kaur’s case in 2003, where the stated unfortunate one line observation has been made which according to the petitioner is per incuriam, a series of discriminatory practices against MNS officers were introduced by the Army. All these practices relied on that crucial one line which read as follows: “That the Indian’ Military Nursing Service is a separate class, sui generis even though an auxiliary force of the Indian Military, is an undeniable fact.” Prior to this observation as explained by the petitioner in detail above MNS officers were treated as officers of regular army on par with the officers of the other Arms/Corps/services. The abovementioned observation was of the Supreme Court was wrongly treated by the Army as a license to discriminate thus the following discriminatory practices were introduced: i, Verbal orders were issued to stop saluting; ji, The uniform of the MNS officers was changed and made it distinct from other officers of the Army; iii. The flag and stars of the general officers rank were ordered to be taken away from the official vehicles;vi. vil. vill. o8 The General Officers (Brigadiers and Major Generals) of the MNS were instructed to wear the shoulder badges with the name of the service (MNS) along with the officer rank insignias since 2004, whereas similarly ranked Officers from all other Arms/Services of the Army need not to wear the name of their parent Arm/Service; When seconded to other branches of armed forces such as Navy or the Air Force the wearing of the ranks of that particular service was discontinued while for doctors and dentists the practice continues; . Officers in the MNS were being described by the Army as non-combatants regardless of the fact they have been attested in the manner provide in Section 17 of the Army Act, 1950; Membership to exclusive institutes and clubs for Officers of the armed forces were denied by verbal orders; Army Battle Honours Mess’ and Command Messes’ which used to provide accommodation to MNS officers were directed by a verbal command not to provide accommodation;xi. xii. oe Although the 6" Pay Commission recommended parity between the MNS officers and other officers of the regular army, on the persuasion of the army government kept the pay of the MNS officers at a lower level; Though the central government has accepted the recommendations of the 6" Pay Commission to bring the time scale promotions of the MNS officers upto the rank of Lt. Colonel, on par with the officers of the other arms/services, a notification has been issued but not implemented; In the case of ACRs (Annual Confidential Reports), upto 2005 they were initiated by the head of the nursing services in the hospitals/ establishments. After 2005 the ACRs were directed to be initiated by medical officers who are outside the cadre of MNS. Thus the head of the MNS in the hospitals/establishments loses control over her officers and the doctors take control; The Form ‘G’, an exclusive form meant for the Officers of the MNS for concessional travel in the Indian Railways had been discontinued in 2005 and they were granted concessional travel in trains on ‘Concession Voucher’ (CV) earlier meant only for