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SUPREMECOURTOFINDIA
CaseStatus Status:PENDING

Statusof:WritPetition(Civil)259OF2017

MNSCORPSASSOCIATION.Vs.UNIONOFINDIA

Pet.Adv.:MR.SATYAMITRA

SubjectCategory:MATTERSPERTAININGTOARMEDFORCES&PARAMILITARYFORCES

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 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. ____________ OF 2017

(Under Article 32 of the Constitution of India)

In the matter of

MNS Corps Association ...Petitioner

Versus

Union of India ...Respondent

PAPER BOOK

(FOR INDEX PLEASE SEE INSIDE)

I. A. No. ______of 2017: Application to file synopsis and list of dates

ADVOCATE FOR THE PETITIONER: Mr. Satya Mitra

 IN THE SUPREME COURT OF INDIA

(EXTRA ORDINARY CIVIL WRIT JURISDICTION)

WP (C) No.__________ of 2017.

In the matter of

MNS Corps Association ...Petitioner

Versus

Union of India ...Respondent

INDEX

Sl. No. Particulars Page

01. Listing Porforma

02. Synopsis and list of dates

03. Writ Petition with Affidavit in support

04. Annexure P-1

True copy of The Indian Military Nursing

Ordinance, 1943 dated 15.09.1943

promulgated by the Governor General.

05. Annexure P-2

 True copy of the Army Instruction 274/50

dated 12.08.1950 issued by the

respondent.

06. 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.

07. Annexure P-4

True copy of the Army Instruction 4/59

dated 03.01.1959 issued by the

respondent.

08. Annexure P-5

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.

09. Annexure P-6

True copy of the Army Order 353/73

issued by the Chief of Army Staff dated

nil.
10. Annexure P-7

True copy of the Army Order 11/82

issued by the Chief of Army Staff dated

nil.

11. Annexure P-8

True copy of the Defence Services

Regulations (Regulations for the Army),

1987 dated 05.12.1986.

12. Annexure P-9

True copy of the relevant provision of the

5th Central Pay Commission, 1997 dated

nil.

13. Annexure P-10

True copy of the false version of the

Ordinance circulated within the Army

dated nil

14. Annexure P-11

True copy of the judgment dated

13.11.2003 delivered by this Honble

Court in Transfer Case (c) 38 of 2002.

15. Annexure P-12

True copy of the army headquarters

AG/CW-1flying of car flags and display of

 star plates by nursing officers dated

30.04.04

16. Annexure P-13

True copy of the order passed by the

Armed Forces tribunal, Principal bench at

New Delhi in T.A. No. 211/2010, dated

30.03.2010

17. Annexure P-14

True copy of the article appeared in the

Sainik Samachar dated nil

18. Annexure P-15

True copy of posting cum attachment

order to 456 Field Hospital of MNS

Officers issued by Army HQs dated nil

19. Annexure P-16

Attachment plan for MNS Officers made

by HQs Uttarbharat Area to 2009 Field

Hospital dated nil

20. Annexure P-17

Movement order routing MNS officer on

temporary duty issued by 167 MH to 329

Field Hospital dated nil

21. Annexure P-18

True typed copy of the relevant portion

of the 6th Central Pay Commission Report

dated nil

22. Annexure P-19

True copy of the extract of the relevant

Paras of the 7th Pay Commission dated

nil

23. Annexure P-20

True copy of the order of the Honble

Delhi High Court dated 27.05.2016

24. Annexure P-21

True copy of the Ministry of Defence

Resolution, No. 01(E) including

Annexure I, dated 05.09.2016

25. Annexure P-22

True copy of the Annexure - II, Ministry

of Defence Resolution, No. 01(E), dated

05.09.2016

26. Annexure P-23

 True copy of the Annexure - II, Ministry

of Defence Resolution, No. 01(E), dated

05.09.2016

27. Annexure P-24

True copy of the resolution of the

Executive Committee of the Society

dated 17.02.2017
 SYNOPSIS

1. This petition is similar to Writ Petition (Civil) 806 of 2015 and

Writ Petition (Civil) 744 of 2016 and Civil Appeal 7417 of 2010

where notices have been issued by this Honble Court. The Writ

Petition 806 of 2015 has been filed by the retired women officers

of the regular Indian army working in the Military Nursing

Service (MNS) branch and the Writ Petition 744 of 2016 has

been filed by serving officers of the MNS branch of the Indian

Army. Both these petitions set out in considerable detail how the

women officers of the MNS have been discriminated against as

compared to the other officers in the Indian Army holding the

same rank. They seek, in these petitions, the end of

discrimination and a new era of equality and parity with the

other branches of the Indian Army. In Civil Appeal 7417 of 2010

a Major General of the MNS was unceremoniously denied the

use of stars and flag befitting the rank of Major General. She

litigated before the Armed Forces Tribunal, succeeded and the

Union has filed the Civil Appeal against the order of the Tribunal.

This Civil Appeal also is directly related to the issue of

discrimination against the women officers of the MNS which is

part of the regular army.

2. In Civil Appeal 7417 of 2010 this Court has made the following

order, dated 15.02.2013:

 Appellant has filed the statement of cases.Respondent ha

s not filed the statement of cases which has been noted

by the

Hon'ble Judgeinchamber by order dated 31.1.2013.

The learned Counsel for the appellant submits

that no further steps are required.

List the matter before the Hon'ble Court as per the Rules

with

an appropriate office report order

3. In Writ Petition 806 of 2015 this Court has made the following

order, dated 04.12.2015:

Issue notice on the SLP as well as on the application for

interim relief returnable in four weeks

4. In Writ Petition 744 of 2016 this Court has made the following

order, dated 28.09.2016:

Issue notice, Tag along with W.P. (Civil) No. 806 of

2015.

5. This petition also follows in the same trend but deals with

discrimination against the officers of the MNS in respect of Pay

Levels, Military Service Pay and Status commensurate to rank.

The difference in pay between officers of the same rank in the

 MNS and the other cadres of the Indian Army is, according to

the petitioner, is unconstitutional and discriminatory, and

violative of Article 14 of the Constitution of India. The record

shows that the officers of the MNS have always been treated as

officers of the regular Indian Army and have always been

treated on par with officers of the same rank in the other

branches. However, discriminatory practices began and a gap

was introduced between the pay of the officers of the MNS and

officers of the other branches. This gap increased dramatically

with the 7th Central Pay Commission which made a departure

from the earlier recommendations to the effect that there ought

to be parity. Opposition from the Army resulted in the pay

differences widening to such an extent that it ranges now

between Rs. 4,700 for the lower ranks upto Rs. 25,100 for the

higher ranks.

6. The other grievance set out in this petition relates to the time

scale promotions where the officers of the MNS have a longer

time scale as compared to the officers of the other branches.

Resultantly, they take a much longer period in the time scale to

reach the rank of Lt. Colonel. For example, in the Army Medical

Corps the officers would reach the rank of Lt. Colonel in 11 years

whereas, in the MNS this would take 16 years.

7. The third grievance in this petition relates to discrimination in

the non treatment of the MNS as a distinct branch and service of

 the regular army. For example, officers of the Army Medical

Corps, the Army Dental Corps, the Army Military Farms, the

Army Postal Service, Remounts and Veterinary Corps, the Judge

Advocate Generals Branch, the Army Supply Corps and the Army

Education Corps are treated on par in every respect with the

officers of the same rank in all the other branches of the regular

army. The principle is absolute: parity for the same rank in every

respect. However, for the officers of the Military Nursing Services

there is discrimination in every respect.

8. Para 8 of the petition onwards establishes that officers in the

MNS are the officers of the regular army. Para 37 onwards deal

with how officers in the MNS have always been treated on par

with the other officers of the regular army of the same rank.

Para 41 onwards deals with the distortion that set in and

particularly the wrong notion that the IMNS Ordinance of 1943

continues to the operative and in force notwithstanding the

enactment of the Army Act 1950 and the Regulations and orders

made thereunder. According to the petitioner the Ordinance is

impliedly repealed by the Act and Orders. Once this is

understood then the notion that the MNS is an auxiliary force

as mentioned in the Ordinance but not in the Act that followed

nor in any of the regulations and orders made thereafter, has no

legal basis. Para 48 onwards deals with the discriminatory

practices increasingly introduced by the Army. The chart at para

55 demonstrates how the officers of the MNS are exactly like the
 officers of the regular army in every respect. Para 59 onwards

deals with the international situation and demonstrates that MNS

officers in the UK, USA, Nepal, Afghanistan, Bhutan, the whole

of Europe and Canada treat MNS officers on par with all the

other officers. Para 64 onwards deals with posting of MNS

officers in combat and conflict zones. Para 70 onwards deals

with arms training to MNS officers. Para 78 onwards deals with

discrimination in the Central Pay Commission Recommendations.

Para 91 onwards deals with discrimination in the pay band. Para

94 onwards deals with discrimination in time bound promotions.

Para 95 onwards deals with the 7th Central Pay Commission pay

structure. Para 110 onwards demonstrates that the Pay

Commissions originally treated MNS officers on par on the basis

of rank. Finally the prayers are set out at para 131.

9. This Writ Petition deals with two issues namely discrimination in

pay and the non treatment of the MNS as a distinct and separate

corps.

15.09.1943 The Central Government constituted a force called

the 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 (A.L.O.), 1950 amended the Indian Military

Nursing Service Ordinance, 1943 on the Country

becoming a Republic.

22.07.1950 The Indian Army Act, 1911 stood repealed; and the

Army Act, 1950came in to 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

ceased to exist in the Army. The Indian Military

Nursing Service Ordinance, 1943 stood impliedly

repealed.

12.08.1950 The Government of India issued the Army

Instruction 274/50, to set the terms and conditions

of service for the grant of regular commissions in the

MNS forming part of the regular Army, subject to the

Army Act, 1950, and the members of the erstwhile

IMNS stood absorbed as officers in the MNS. There

was no IMNS after this at all.

24.11.1954 The Central Government made the Army Rules, 1954

and brought the corps/service called MNS 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.

This mere change of designation cannot raise 1943

ordinance which stood already repealed impliedly.

03.01.1959 Through the Army Instruction 4/59, 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

Regulations, Regulations for the Army, 1962 for the

administration of the regular Army. The said

regulations address 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 After having re-designated the rank in the MNS by

the Government, the Chief of Army Staff through

Army Order 501/63 laid down that the MNS Officers

are required to salute and are entitled to salutes in

 the manner as other Commissioned Officers of the

Army.

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.

24.03.1973 The Chief of Army Staff through Army Order 353/73

cancelled the Army Order 501/63 and laid down that

the MNS Officers are required to salute and are

entitled to salutes in the same manner as other

Commissioned Officers.

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.

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.

05.12.1986 The Government of India issued the Regulations for

the Army, 1987 superseding the 1962 Regulations.

 The said regulations also address 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.

1986 The Army proposed to the 4th Central pay

Commission to grant the same pay to officers in the

MNS as available for other service officers.

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.

2008 The 6th Central Pay Commission recommended the

same pay band and grade pay to officers in the MNS

as for the other service officers.

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 6th Central

Pay Commission.

30.08.2008 The Government of India through the Gazette of

India, dated 30 August 2008, Part-I, Section 3, Para

 1(xi), laid down that the Grade pay to determine

seniority of posts only within a cadres hierarchy and

not between various cadres.

19.11.2015 The 7th Central Pay Commission submitted its report.

27.05.2016 The High Court of Delhi at New Delhi in W.P.(C)

5005/2016 granted leave to the petitioner to

approach the Supreme Court regarding the

discriminatory pay structure of the 7th Pay

Commission.

05.09.2016 The accepted the recommended pay structure of the

7th Central Pay Commission through resolution.

 1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. __________ OF 2017

(Under Article 32 of the Constitution of India)

IN THE MATTER OF:

MNS Corps Association

Through its Vice President,

Major General Jasbir Kaur Grewal (Retd.)

W/O Shri. DS Grewal,

House No. 81, D Block, Ranjith Avenue,

Amritsar, Punjab ... Petitioner

VERSUS

Union of India

Through its Secretary,

Ministry of Defence,

Government of India,

101 A, South Block,

New Delhi 110011 ... Respondent

 2

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 RESPECTFULLY SHOWETH:

1. This petition is similar to Writ Petition (Civil) 806/2015 and

744/2016, where notices have been issued and the petitions

are pending in this Honble Court.

2. That the petitioner is a representative body of the veteran

officers of the Indian Army served in the Military Nursing

Service (MNS) and is a registered society under the Indian

Societies Registration Act, 1860.

3. The petitioner is filing this writ petition under Article 32 of the

Constitution of India, seeking urgent intervention of this

Honble Court to direct the respondent to do away with all

discriminations as regards to pay and allowances or pay levels

 3

of the officers of the regular Army serving in the Military

Nursing Service.

4. That the present petition is being filed to end the

discrimination in the Indian Army faced by the officers of the

regular Army serving in the Military Nursing Service due to the

notion that nurses are somewhat inferior due the work they

do. They number around 4600 and are being treated unfairly

by the Indian Army.

5. That the petitioner is a Society formed by the veterans officers

of the Army served in the MNS who all have dedicated their

lives in the service of the Army but concerned about the

discrimination against the Military Nursing Service; which has

given their identity in the society. Any reduction in pay and

allowances or pay levels consequent to the acceptance of the

7th Central Pay Commission recommendations as regards to

the officers serving in the MNS will adversely affect the

retirement pension of the veterans who are members of this

Society; who dedicated their long years of services to the

Nation through the MNS.

6. That the present Petition is being filed through the Vice

President of the Petitioner Society. The Petitioner had earlier

 4

filed a Writ Petition in this Court for protecting the rank and

status of the officers serving in the MNS and is pending as

W.P.(C) 806/2015; and the petitioner is not involved in any

other pending civil, criminal or revenue litigation, which has or

could have a legal nexus with the issues involved in this Writ

Petition. No Government Authority has been moved for relief

sought in this petition.

7. Respondent 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 regular Army serving in MNS.

Officers in the MNS are officers of the regular Army

8. The present Military Nursing Service (hereinafter called MNS for

short) has its origin from the Indian Military Nursing Service

(hereinafter called IMNS) 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 origins of the

Nursing Services can be traced to the year 1888 when a small

batch of fully qualified nurses from United Kingdom arrived in

India. These nurses in due course laid the foundation for the

nursing services in the then British Indian Army. During the

Second World War the Indian Military Nursing Service, 1943

 5

Ordinance constituted the 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 Central Government framed the Military

Nursing Services (India) Rules, 1944.

9. The Indian Military Nursing Service Ordinance, 1943 was a

permanent law, having made when the Indian and Burma

(Emergency Provision) Act, 1940 was in operation; and was an

Act of the Parliament having adopted through Adaptation of

Laws Order (A.L.O.), 1950 dated 26.01.1950. According to the

title, preamble and elsewhere in the Indian Military Nursing

Service Ordinance, 1943, the name of the organization

constituted by the Ordinance remains Indian Military Nursing

Service (IMNS). The Preamble and Section 1 of the Ordinance,

as amended by A.L.O. 1950 and Commander-in-Chief (Change in

Designation) Act, 1955, dated 07.05.1955, reads as under:

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);

 6

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.

Further, according to Section 4(1) of the Ordinance the service

liability of the members of the IMNS is restricted to the forces

and persons subject to the Indian Army Act, 1911. The said

Section 4 was amended by A.L.O. 1950 (w.e.f. 26-1-1950) and

reads as on date as given under:

4. Liability of service of members of 1(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.

2
(2) [***]

True copy of the Indian Military Nursing Service Ordinance, 1943

is annexed as Annexure P-1 (pages ... to ...).

10. The Parliament repealed the Indian Army Act, 1911 and enacted

the Army Act, 1950, which came in to force on 22.07.1950. The

Indian Military Nursing Service Ordinance, 1943 flows from the

 7

Indian Army Act, 1911, which was repealed on the enactment of

the Army Act, 1950; and by this repeal the Indian Military

Nursing Service, 1943 was also impliedly repealed. Thereafter on

12.08.1950 the Respondent issued the Army Instruction 274/50,

which laid down the Terms and Conditions of Service for the

Grant of Regular Commission in the Military Nursing Service. On

which the IMNS cease to exist in the Indian Army as the

members of the IMNS stood absorbed in the MNS. According to

Para 2 (C) of Annexure 'A' to Army Instruction No. 274 of 1950,

Rank, Seniority and Promotions (in the MNS) will be with

retrospective effect from 15th August 1947; the relevant portion

of the said instructions reads as under:

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.

11. Therefore, the 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 having given due recognition for

their existing Rank, Seniority and Promotions (received in IMNS

before 12th August 1950). In other words IMNS physically

ceased to exist as it got subsumed in the MNS. The officer

status granted under the Army Act, 1950 in the regular Army
 8

had removed the restrictions on the erstwhile members of IMNS

imposed by the Section 4(1) of the Indian Military Nursing

Service Ordinance, 1943 (limiting the liability of service only with

the Army). The officers serving in the MNS due to their

commission in the regular Army are liable for service in any part

of the world along with Army, Navy or Air Force. Para 1 of

Annexure A to Army Instruction 274/50 which reads as under:

1. Liability for service Personnel 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.

12. With the coming into force of the Army Act, 1950 and issuance

of Army Instruction 274/50, the members of the IMNS previously

governed by the IMNS Ordinance, 1943, became officers of the

regular Army serving in the MNS subject to provisions of the

Army Act, 1950 under Section 2(1)(a) of the Act. The service

liability in the MNS as stated above is clearly different from that

of the erstwhile IMNS, but in conformity with the definition of

the regular Army as given in Section 3 (xxi) of the Army Act,

1950 which reads as under:

Regular Army means officers, junior commissioned

officers, warrant officers, non-commissioned officers

and other enrolled persons who, by their commission,

 9

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;

13. This Army Instruction 274/50 categorically speaks of regular

commissions in what is now called 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 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.
 10

True copy of the Army Instruction 274/50 is annexed as

Annexure P-2 (pages ... to ...).

14. Since the creation of the MNS through Army Instruction 274/50;

like other officers of the regular Army serving in other Arms and

Services; the MNS officers were also granted commission under

Section 10 of the Army Act, 1950, and the Act applies to them

under Section 2 (1)(a) as officers. The Section 10 reads as:

10. Commission and appointment. -The President may

grant, to such person as he thinks fit a commission as an

officer, or as a junior commissioned officer or appoint any

person as a warrant officer of the regular Army.

15. Further, on grant of such commission every officer of the

regular Army is required to make and subscribe an oath or

affirmation as mandated by the Section 16 of the Army Act,

1950 in the manner provided in Section 17 (1) of the Act. This

oath or affirmation 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 Section 17 (2) of the Army Act,

1950, reads as under:

(2) The form of oath or affirmation prescribed under this

section shall contain a promise that the person to be

attested will bear true allegiance to the Constitution of

 11

India as by law established, and that he will serve in the

regular Army and go wherever he is ordered by land, sea

or air, and that he will obey all commands of any officer

set over him, even to the peril of his life.

16. The aforesaid oath or affirmation being administrated to all

officers of the regular Army including those in the MNS, were

according to the Army Act, Rules 1950 (superseded by the Army

Rules, 1954), which was reproduced in Army Order 127/50.

Thereafter the said oath or affirmation being administered is

under the Army Rules, 1954; the Rule 9 reads as under:

9. Oath or affirmation to be taken on attestation.

(1) Every person required to be attested under

section 16 shall make and subscribe an oath or

affirmation in one of the following forms or in such

other form to the same purport as the attesting

officer ascertains to be in accordance with the

religion of the person to be attested, or otherwise

binding on his conscience.

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

 12

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.

Form of Affirmation

True copy of the oath or affirmation being administrated to all

officers of the regular Army including those in MNS is annexed

as Annexure P-3 (pages ... to ...).

17. That officers serving in all Arms and Services of the regular Army

including those in the MNS are combatants. According to Rule 8

of the Army Rules, 1954, all combatants are required to be

attested in the manner provided in Section 17 of the Army Act,

1950. The said Rule 8 reads as under:

8. Persons to be attested.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.

18. Further, the Army Rules, 1954 are Statutory Rules made by the

Central Government under Section 191 of the Army Act 1950.

 13

The Section 193 of the Army Act, 1950 speaks about Publication

of rules and regulations in Gazette, which reads as under:

193. Publication of rules and regulations in Gazette. -All

rules and regulations made under this Act shall be

published in the official Gazette and on such publication,

shall have effect as if enacted in this Act.

19. Neither the Army Act, 1950 nor the Army Rules, 1954 mention

the name of IMNS anywhere in it (as it became redundant after

the creation of the MNS). To change the name of any

organization or force or even a change in the designation of a

post mentioned in an Act of the Parliament, an amendment Act

shall be passed in the Parliament. For example, the Commander-

in-Chief (Change in Designation) Act of 1955 was passed by the

Parliament to change the designation of the Army Chief from

Commander-in-Chief, Indian Army to Chief of the Army Staff.

Similarly, Article 312 (2) of the Constitution of India shall be

amended through an amendment Act to change the name of the

Indian Administrative Service or the Indian Police Service. On

the risk of repetition it is reiterated that, the name of the force

constituted by the IMNS Ordinance, 1943 as given in the

preamble, Section 1 and elsewhere in the Act remains IMNS

even today. According to Section 1(2) of the said Ordinance, it

applies only to members of the IMNS wherever they may be.

There exists no provision in this Act, to apply it to any other

 14

force raised and maintained in India under the authority of the

Government. The Parliament did not make any amendment to

this Act, to change the name of the force constituted by the

Ordinance from IMNS to MNS. Therefore, the IMNS

Ordinance, 1943 remains a special Act, which applied only to the

members of the IMNS. Hence, the IMNS Ordinance, 1943

cannot be applied to the MNS.

20. The Section 2 of the Army Act, 1950 describes the person

subject to the Act. The officers in the MNS becomes subject to

the Army Act, 1950 through their commission as officers, which

is under Sub- Section (1) clause (a); and cannot be under any

other clause listed at (b) to (i). The Section 2 reads as under:

2. 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;

(b) Persons enrolled under this Act;

(c) Persons belonging to the Indian Reserve Forces;

(d) Persons belonging to the Indian Supplementary

Reserve Forces when called out for service or when

carrying out the annual test:

(e) Officers of the Territorial Army, when doing duty as

such officers, and enrolled persons of the said Army when

 15

called out or embodied or attached to any regular forces,

subject to such adaptations and modification as may be

made in the application of 'this Act to such persons under

sub-section (1) of S. 9 of the Territorial Army Act, 1948 (56

of 1948);

(f) Persons holding commissions in the Army in India

Reserve of Officers, when ordered on any duty or service

for which they are liable as members of such reserve

forces;

(g) Officers appointed to the Indian Regular Reserve of

Officers, when ordered on any duty or service for which

they are liable as members of such reserve forces;

1
[* * *]

(i) Persons not otherwise subject to 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 the service of, or

are followers of, or accompany any portion of the regular

Army.

(2) Every person subject to this Act under Cls. (a) to 2[(g)] of

sub-section (1) Shall remain so subject until duly retired,

discharged, released, removed, dismissed or cashiered from the

service.
 16

21. According to the above stated Section 2(2) of the Army Act,

1950, the Persons subject to the Act under Section 2 (1) clause

(a) to (i) shall remains so subject until duly retired, discharged,

released, removed, dismissed or cashiered from the service.

The Rule 16A of the Army Rules, 1954 had laid down the

provision for retirement of officers; to free them from being

subject to the Army Act, 1950 under Section 2(1)(a) in the

manner provided in Section 2 (2) of the Act. The said Rules have

listed the MNS among the Specialist Cadres or Services of the

Regular Army. The persons subject to the Army Act, 1950 under

Section 2(1)(a) of the Act can only be retired from the regular

Army under Rule 16A of the Army Rules, 1954 as provided in

Section 2(2) of the Act. This leaves no manner of doubt that the

officers serving in the MNS are officers of the regular Army. The

relevant parts of Rule 16A of Army Rules, 1954 reads 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) (ii) and sub-rule (6),

whichever is earlier.
 17

(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;

(b) The Additional Director-General, Remount and

Veterinary Corps in respect of Officers of that Corps

below the rank of Colonel;

(c) The Deputy Director-General of Military Farms

in respect of Officers of the Military Farms below the

rank of Colonel;

(d) The Military Secretary, Army Headquarters in

respect of all other officers.

22. The Rule 2(f) of the Army Rules, 1954, reads as under:

(f) All words and expressions used in these rules

and not defined, but defined in the Act, shall have

the same meanings as in the Act.

Thus under the Rule 2(f) of the Army Rules the Officers in

the MNS comes under the definition of the Officer as

defined in the Army Act, 1950, Section 3 (xviii), which

reads as under:
 18

(xviii) Officer means a person commissioned,

gazetted or in pay as an officer in the regular Army,

and includes- ... ...

Further, no specific mention is made to any Arms and Services

of the regular Army including MNS in this Section [Section

3(xviii) of Army Act 1950]; confirms the status of MNS forming

part of the regular Army.

23. Further, the Army Rules, 1954 being Statutory Rules shall

preside over all other regulations, orders and instructions be it

from the Government of India or the Army Authorities issued for

the administration of the regular Army.

24. That the subsuming of IMNS in the MNS through Army

Instruction 274/50 and subsequent fulfilment of procedures for

commission in the regular Army like officers serving in other

Arms and Services of the regular Army, the members of the

IMNS absorbed in the MNS became the officers of the regular

Army. The subsequent action of the Respondent through the

issuance of Army Instruction 4/59 bestowing the same rank

designations as for the officers of the Army confirms the status

of the officers of the MNS as officers of the regular Army, the

relevant part of which is as under:

 19

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.

(ii) The rank in the MNS will be as under-

Lieut.

Captain

Major

Lt. Colonel

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.

True copy of the Army Instruction 4/59 is annexed as Annexure

P-4 (pages ... to ...).

 20

25. However, the Section 12 of the Army Act, 1950 puts restrictions

on the enrolment or employment of females in the regular Army;

the relevant portion of which reads as under:

12. 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 Gazette a notification was not required in the case of

female officers serving in the MNS; as immediately before

commencement (22nd July 1950) of the Army Act, 1950 they

were serving in IMNS as part of the Indian Army. Consequently,

on subsuming the IMNS in the MNS through the Army

Instruction 274/50; the Rank, Seniority and Promotions (in the

MNS) were granted with retrospective effect from 15th August

1947 (Para 2 of Annexure 'A' to Army Instruction No. 274 of

1950). This Section limits only the subsequent entry of females

in to corps, departments, branches of the regular Army which

had no females employed on the commencement of the Army

Act, 1950.
 21

26. It is stated at the risk of repetition that women officers serving

in the MNS are commissioned under Section 10 subject to the

provisions of the Section 16 and 17 of the Army Act 1950.

Further, the Army Act, 1950 applies to them under Section 2(1)

(a) of the Act. Further, the persons subject to the Army Act,

1950 under Section 2(1)(a) of the Act can only be retired from

the regular Army under Rule 16A of the Army Rules, 1954 as

provided in Section 2(2) of the Act. This leaves no manner of

doubt that the officers serving in the MNS are officers of the

regular Army. The officers in the MNS by their commission, are

liable to render continuously for a term military service to the

Union in any part of the world, hence is part of the regular Army

under Section 3 (xxi). Additionally, they are officers of the

regular Army as defined in Section 3 (xviii) of the Act.

27. After the re-designation of ranks in commensurate with the

status of officers in the MNS as officers of the regular Army, the

year 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 in conformity with

status of officers in the MNS as officers of the regular Army, the

said regulations stated that they will rank equally with male

officers of the same titular rank. The relevant parts of the 1962

regulations are as under:

 22

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.

28. Subsequent to the Respondents action of re-designation of rank

in the MNS equating them with other officers of the Regular

Army and re-affirming the same through Regulations for the

Army, 1962; the Chief of Army Staff clarified the issue of saluting

the MNS officers through Army Order 501/63. The relevant parts

of which are as under:

1. Military Nursing Service Off icers 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.

29. That in the year 1973, the AO 501/63 was cancelled through

Army Order 353/73 and the Chief of the Army Staff again
 23

reiterated that the 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. 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. True copy of the Army Order 353/73

is annexed as Annexure P-5 (pages ... to ...).

30. Subsequently in 1964, the Government introduced a bond for

the Nursing Cadets admitted for training in College of Nursing

under the Armed Forces Medical Services 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. Before this date, there was no

College of Nursing in the Armed Forces and the qualified

registered nurses used to be inducted in to the Army. The said

bond executed on behalf of the President of India offers

commission in the regular Army on the successful completion of

the course. The relevant part of the bond is as follows:

whereashas been selected by government for

admission towith a view to her being granted

 24

permanent commission/short service commission as a

nursing officer in the regular army

True copy of the Nursing Cadets Training Bond is annexed as

Annexure P-6 (pages ... to ...).

31. That in the year 1977 the Government issued the Army

Instruction 61/77 in supersession of Army Instruction 274/50. In

which similar 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

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 by personnel serving in the Regular

Army, under Section 42 of the Army Act, 1950.

32. That with the creation of the MNS forming part of the Regular

Army; several instructions, notifications were issued to define

 25

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

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

(c) ADC

True copy of the Army Order 11/82 is annexed as Annexure P-

7 (pages ... to ...).

33. The Government of India issued Regulations for the Army, 1987

superseding the earlier regulations of 1962. At Para 2 of the

Preface of this regulations it is stated that, the Regulations for

the Army is a comprehensive compilation covering the salient

aspects of administration of the Regular Army. The regular Army

includes the Army Reserve and the Territorial Army, when called
 26

out on permanent service along with the Arms and all Services

including MNS which are permanently part of the regular Army.

The Para 1 of these regulations says that Army comprises of (i)

the regular Army, (ii) the Army Reserve, and (iii) the Territorial

Army. The said Para 1 reads as under:

1. Composition. (a) The Army is composed of those

who have undertaken a definite liability for military

service, viz., combatant troops, administrative

services/departments and enrolled non-combatant.

(b) The Army comprises-

(i) the regular Army,

(ii) the Army Reserve, and

(iii) the Territorial Army.

34. The persons subject to the Army Act, 1950 under Section 2(1)(a)

of the Act can only be retired from the regular Army under Rule

16A of the Army Rules, 1954 as provided in Section 2(2) of the

Act; leaves no manner of doubt that the officers serving in the

MNS are officers of the regular Army. Hence the Regulations for

the Army apply to them as being part of a administrative

service/department forming part of the regular Army. The MNS

finds mention alongside the Arms/Corps/Services of the Army in

every relevant portion in these regulations also. The Paras 32,

58, 65, 66, 67, 75, 76, 77, 81, 105, 109, 255, 341, 618, 619,

621, 733 and 1394 of this Regulations and the corresponding

 27

Paras in the superseded 1962 Regulations irrefutably established

the status of the women officers serving in the MNS as officers

of the regular Army. Both 1962 and 1987 Regulations laid down

that officers in the MNS would rank equally with male officers of

the same titular rank. The relevant portion of which common to

both the Regulations read 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 Regulations for the

Army, 1987 is annexed as Annexure P-8 (pages ... to ...).

35. 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. That the MNS is not

attached to any of the corps or departments as listed in Rule 187

(a) to (x); therefore the MNS is a Corps under Rule 187(1)(y),

Army Rules, 1954, which reads as under:

 28

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

any service and NOT attached to any of the above corps or

to any department.

36. Thus officers in the MNS are officers as defined in Section

3(xviii) of the Army Act, 1950 and MNS is a Corps of the Regular Army.

Differences among the officer Cadres

regardless of the Commonalities.

37. The report of the 5th 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 MNS is a specialist cadre of the Indian Army

in the following terms:

Officer Cadre of Army Para 147.3 In the Army,

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

 29

and Military Farms comprise the specialist

cadres.

True copy of the relevant portions of the 5th Pay Commission

report is annexed as Annexure P-9 (pages ... to ...).

38. Officers in the MNS have always been treated on par with the

other officers of the regular Army belonging to the various other

Services as above stated. Some of the features of this common

treatment or features are as under:

i. Same method of commissioning

ii. Same rank, insignia and designation

iii. Identical conditions of service

iv. Same uniform

v. Same service privileges and entitlements

vi. Same retirement conditions and benefits

vii. Same identity cards

viii. Same Form on which Record of Service and Health

Record Card and personal documents are maintained

ix. Same Form on which medical category is maintained

x. No services selection board interview like the doctors

and dentists of the Army

xi. No promotion examination like the doctors and

dentists of the Army

 30

xii. Same promotion board for the nursing, medical and

dental officers of the Army

xiii. Liability to serve in the Army, Navy and Air Force like

the doctors and dentists of the Army

xiv. Same manner of issue of personal numbers

xv. Same Controller of Defence Accounts disburses the

pay and allowances

xvi. Same scale of rations

xvii. Identical accommodation according to rank

xviii. Required to render the same certificate under the

Indian Official Secrets Act, 1923 on commissioning.

xix. Issued with a certificate signed by the President on

commissioning like other Services officers of Army

xx. There are different Army Instructions issued for

every specialist cadre or Services of Army

xxi. Officers in the MNS are listed under the Medical

Services in the Army List.

xxii. Method of selection, training, terms and conditions

of service and employability of officers in the MNS,

AMC and ADC are similar.

xxiii. Eligible for and also awarded with the same awards

and commendations, mention in despatches etc. like

rest of the officers of the regular Army.

 31

39. That in the Army the status of an officer is decided by the

substantive rank held the officer. The Army in general does not

differentiate its officers based upon the job performed by the

officers. This is true in the case of Arms and Services of the

Army, even in the case of women officers who may be employed

in jobs which are primarily non-combatant in nature. For

example the job of the following Service streams of the Army

namely, that of the Army Education Corps officers is teaching

and conducting training classes in the training institutions of the

Army; the General Service cadre officers of the Army are drawn

from the clerical staff and are employed in the clerical and

related supervisory jobs in the different personnel record offices;

the Army Medical Corps officers are the doctors who are

employed in the health care; the Army Dental Corps officers are

the dentists of the Army entrusted with the dental hygiene and

care; the Army Intelligence Corps officers are responsible for the

intelligence gathering and dissemination; the Corps of Engineers

are responsible for the repairs and maintenance of the motor

vehicles; the Military Farms officers are the ones who are

incharge of the dairy farms which supplies milks; the Army

Postal Service officers handles the postal mails; and the Judge

Advocates branch officers are the law officers of the Army

handles legal issues; the Remounts and Veterinary officers takes

care of the animals dogs, horses etc. in the Army. None of these

officers serving in the mentioned Service streams are required to

 32

go to the battle field and fight the enemy like the officers of the

Arms like Infantry, Mechanised Infantry, Armoured, Artillery and

Signals etc., but are granted the same status as the fighting

Arms officers.

40. It is an accepted fact that the officers of the Army do not form a

homogeneous cadre. The officers serving in the Services 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. The

officers in the Arms and Services of the Army do not form a

homogeneous cadre, but consists of different cadres.

Deliberate and Wilful Distortions of Law

41. 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 that binds officers of the MNS

even today.
 33

42. 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 this book

the name of the force (Indian Military Nursing Service)

constituted by the IMNS Ordinance, 1943 was changed to

Military 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

IMNS Ordinance is being circulated / taught in all the Training

Establishments of the Army. Typed true copy of the said false

version of the Ordinance circulated within the Army is being filed

herewith as Annexure P-10 (Pages ... to ...).

43. 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 worn by the nursing officers an observation crept in

namely:
 34

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.

True copy of the judgment dated 13.11.2003 delivered by this

Honble Court in Transfer Case (c) 38 of 2002 annexed herewith

and marked as Annexure P-11 (Page ... to ...).

44. 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.

45. 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 Honble 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.

 35

46. 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

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;

 36

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.

47. Therefore, in the petitioners 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.

48. 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:

 37

Para 3. The Indian Military Nursing Service 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 authorised to fly flags or

display star plates.

True copy of the army headquarters AG/CW-1flying of car flags

and display of star plates nursing officers annexed herewith and

marked as Annexure P-12 (Pages ... to ...).

49. 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.

 38

211/2010 annexed herewith and marked as Annexure P-13

(Pages ... to ...).

50. 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(XVlll) Army Act, 1950.

51. 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

 39

till date. Section 3 lays down the Constitution of

the Indian Military Nursing Service which reads as

under

52. 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

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

53. 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

 40

appointed and was governed by the Ordinance of 1943 is based

on the UoI making wrong submissions before the Tribunal.

54. The wrong submissions made by UoI 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.

55. 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 applies to the officers of the MNS. The

 41

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:

Sl 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

Rules made thereunder. the Rules made thereunder.

2. Are Persons subject to the Were officers of the IMNS

Army Act, 1950 under subject to Indian Army Act,

Section 2(1)(a) of the Act 1911

3. Are retired under Rule 16A Not applicable

of the Army Rules 1954 as

provided in Section 2(2) of

the Army Act, 1950

4. MNS/other Services/ Arms IMNS was an auxiliary force

forms part of the regular part of the armed forces.

Army.

5. Officers of the MNS and Members of the IMNS were

other Services/ Arms are auxiliary forces supporting the

officers of the regular regular Army.

Army.

6. Officers of the MNS like all Not applicable

 42

other officers of regular

army are to be Attested as

provided in Section 16 of

the Army Act, 1950 on

commissioning.

7. Officers of the MNS like all Not applicable

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.

8. Officers of the MNS like all Appointed by the Central

other officers of regular Government under Section 5

army commissioned by the of the Indian Military Nursing

President of India in Service Ordinance, 1943.

accordance with Section

10, 16 and 17 of The Army

Act, 1950 read with Rule 8

and 9 of the Army Rules

1954.

9. Officers of the MNS and Not applicable

other Services/ Arms are

combatants according to

the Rule 8 of the Army

 43

Rules, 1954.

10. 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 22nd July 1950.

Instructions issued after

the commencement of The

Army Act, 1950 (22nd July

1950).

11. All the Sections of the Only clause (d) of section 30

Army Act, 1950 applies and clause (i) of section 39 of

without any adaptations The Indian Army Act, 1911

and modifications to applied to offences committed

officers of the MNS/ Other by the members of the IMNS.

Services/ Arms.

12. Any Indian national, According to Section 6(1) of

subject of Nepal or any the Indian Military Nursing

individual in whose favour Service Ordinance, 1943 only

a declaration of eligibility Indian Citizens are eligible for

has been issued by the appointment in the IMNS.

Govt. of India is eligible for

commission in MNS like all

other branch of regular

army.
 44

13. Officers of the MNS like all Liable to serve only with the

other officers of regular forces and persons subject to

Army are liable to serve The Indian Army Act, 1911.

with Army, Navy and Air

Force in any part of the

world.

14. Officers of the MNS use Members of the IMNS were

same rank designations as ranked as Ward Sister, Senior

in other Services/Arms of Sister, Matron etc.

the Army.

15. MNS officers minimum age According to Section 6(1) of

for grant commission in the the IMNS Ordinance, 1943

regular Army is only 20 age shall be above 21 years.

years.

16. According to Para 733 (b) Not applicable being an

of the Regulations for the auxiliary force.

Army, 1987 officers in the

MNS ranks equally with

male officers.

17. MNS is currently a Corps/ IMNS cease to exist on the

Service of the regular repeal of The Indian Army

Army. Act, 1911 (22nd July 1950).

18. Only the persons subject to Rule 16A of the Army Rules,

the Army Act, 1950 under 1954 was not applicable to the

Section 2(1)(a) of the Act members of the IMNS.

 45

can be retired from the

regular Army under Rule

16A of the Army Rules,

1954 as provided in

Section 2(2) of the Act;

and officers in the MNS are

being retired from the

regular Army accordingly.

56. That the Army is trying to rewrite the military law to down grade

the 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 Courts order of 2003 in Jasbir Kaurs case, to

differentiate the MNS officers.

58. The Army authorities have unleashed a sustained propaganda

campaign 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 Army authorities have influenced various

agencies like Ministry of Defence, Pay Commissions and Law

Commission etc. to bring out reports and recommendations

detrimental to the status of the officers in the MNS as officers

 46

of the regular Army. This institutionalised apartheid encourages

ill treat of these hapless women who choose to serve the

Country through the MNS.

International Position of Nursing Officers

and their Commissioned Officer Status

59. In the UK there is no segregation of discrimination against the

army nurses. They are called the Queen Alexandrias Royal

Army Nursing Corps and they form an integral part of the Royal

Army. They wear the same uniforms, bear the same insignias

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. The Nursing Services

in the Indian Army was modelled on UK.

60. 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.

61. 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. This is also the situation in
 47

most of Europe and in other developed countries such Australia,

New Zealand and Canada.

62. 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 judgments 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.

63. That the women officers of the MNS are also routinely required

to lead a team of male personnel 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
 48

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 centers 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.

Posting of MNS officers in Combat/ Conflict Zones

64. The Nursing Services rendered glorious service to the fighting

elements of the Army during its 129 years of existence. 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 sinking of SS

Kuala by the Japanese dive bombers of the Coast of Pom Pong

Island.

65. The officers of the MNS have served on the fringes of the battle

fields in the five major bloody wars we have fought after

 49

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 stones 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.

66. 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:

 50

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

67. Further, 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. As on

date a total of 20 MNS Officers are serving abroad with the

combat forces of the Indian Army, the places are namely,

Tajikistan, Sudan, Lebanon and Congo. No women officer from

other services in the Indian Armed Forces serves in such combat

zones except the women officers of the medical services.

68. 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.
 51

69. 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.

Arms Training to MNS Officers

70. To deprive the officers of the MNS of arms training was an

arbitrary act which renders the officers of the MNS vulnerable,

and the said instruction or orders issued orally are for the sole

purpose of showing them as engaged in non-combatant duties.

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:

 52

(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.

71. 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 personnel must be provided with small arms,

to prevent patients from leaving the premises without permission

or from committing hostile acts, and to ensure that the Nurses

enjoy the respect to which they are entitled.

72. 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

 53

Convention. However still there are international shooters who

are serving officers of the MNS. Indias first gold medal in a

womens event at the Common Wealth Games 2006 was won by

Lt. Col. (then Major) Saroja Kumari Jhuthu an officer in the MNS.

73. Lt. Col. Jhithus 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. She joined the

Indian Armys shooting team on 10th July 1993 and participated

in 13 national events, 4 national games, 17 world cups, 01 Asian

shooting championship, 1 world shooting championship, 2

common wealth championship, 2 SAF games and 1 common

wealth games. She won 13 gold medals 51 silver medal and 35

bronze medals for the Indian Army and made the Nation proud.

She was the countrys flag bearer in commonwealth games

2006. Typed true copy of the article appeared in the Sainik

Samachar dated 16 30, 2006 is annexed herewith as

Annexure P-14 (page ...).

74. Lt.Col (Mrs) Birmati is another woman officer in the MNS who

made the Nation proud. In her illustrious career spread over a

decade beginning in 1992, she has participated in national and

international shooting championships and won a total of 03 gold

medals, 09 silver medals and 11 bronze medals in 50 m standard

rifle, 10 m air rifle and big bore events for the Indian Army. She
 54

also became a shooter through the regular arms training in

vogue for the MNS officers. However, the Indian Army trying

erase its own past by denying the contribution made by the MNS

officers in shooting.

75. 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. The Army have been

claiming that, it is posting MNS officers in Field Hospitals to deny

them the full rate of Military Service Pay as applicable to the

officers from other Services. But it is at the same time sending

to MNS officers field duty on a regular basis.

76. The Army found a novel way around by sending the officers in

the MNS to the Field Hospitals on attachments and temporary

duties on a permanent basis round the year. True copy of

posting cum attachment order to 456 Field Hospital of MNS

Officers issued by Army HQs is annexed as Annexure P-15

(pages ... to ...); attachment plan for year 2016 MNS Officers

made by HQs Uttarbharat Area to 2009 Field Hospital is annexed

as Annexure P-16 (pages ... to ...); and movement order

routing MNS officer on temporary duty issued by 167 MH to 329

Field Hospital is annexed as Annexure P-17 (pages ... to ...).

 55

77. 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

them. Not only are they required to serve in such places, but

also they have agreed in writing to do so. The Honble 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,

.......the 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".

 56

Discriminatory treatment Regarding

MNS Cadres Pay Scales 4th and 5th Pay Commission

78. That 5th CPC Report mentioned that the Army proposed to

grant the same pay scales to the MNS officers as for other

service officers in its proposal to the 4th CPC (Para 147.39 of

5th CPC Report), reads as:

The Fourth Pay Commission had not accepted Armed

Forces proposal for granting the same pay scales to the

MNS officers as for other service officers,

79. This clearly establishes the fact that the Army intended to

treat the women officers in the MNS at par with the officers

from other cadres of the Army at least till the year 1986 (4th

CPC); and wanted them to have the same pay scales as other

officers of the Army. However this recommendation was not

accepted and the 4th CPC recommended a starting pay scale to

MNS cadre at the level of the Group A civilian pay scale.

80. That Armys proposal to the 5th CPC for MNS (Para 147.40 of

5th CPC Report) reads as:

 57

(a) There should be two integrated pay scales one upto

rank of Col. and other from Brig to Maj Gen.

(b) The start of scale of Lt to Lt Col should be one

increment below the start of general list cadre.

(c) BSc (Nursing) entrants to MNS should continue to

have one year ante-date seniority over Diploma

entrants.

(d) To compensate for merit and responsibility of higher

rank pay should be introduced.

81. This shows that in the year 1996 the Army proposed the same

rank pay for all the officers serving in the MNS as applicable to

other officer cadres, and it wanted them be at the same pay

scales as other cadre officers from Colonel to Major General

ranked officers.

6th Pay Commission

82. That in the year 2008, the 6th Central Pay Commission had

made recommendations regarding pay of the officers in the

MNS. At Para 2.3.20 of its report, the Commission

recommendations reads as:

 58

The Commission, however, is of the view that that no

differential in the salary belonging to the officers in the

MNS and other Services is justified and the pay band

and grade pay of similarly designated posts in the MNS

and other Service cadre should be the same.

True copy of the relevant portions of the 6th Pay Commission

Report is annexed as Annexure P-18 (pages ... to ...)

83. That on the publication of the 6th CPC report, the Chief of

Army Staff vide letter no. C/7021/VI-PCC(Army) dated 20 June

2008 wrote to the Cabinet Secretary pertaining to the Pay and

Grade Pay of MNS vis-a-vis AMC officers. In that he had

requested for lowering the Pay and Grade Pay of MNS officers.

The letter reads as,

1. Please refer to Chiefs of Staff Committee letter No.

COSC/1940 dated 15 Apr 08 addressed to Honble

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

 59

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 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.

This shows the changed stance of Army regarding the MNS

cadre officers which is diametrically opposite to its own

proposals made to the 4th Pay Commission. The Nurses in the

Army could have had the same basic pay as for the Doctors
 60

and other officers way back in 1986 had the 4th CPC accepted

the Indian Armys then proposal.

84. That the officers in the MNS had slightly lower Pay, than the

other service officers, is a fact; however the Pay Scales

recommended for MNS by the 4th and 5th CPCs were

equivalent to the Group A Civilian starting pay scales, who also

hitherto had no Rank Pay like the MNS officers. Para 147.41 of

the 5th CPC reads as,

In the case of MNS officers, we therefore suggest that

the parities evolved by Fourth CPC may be maintained

and MNS officers may continue to be paid at a starting

pay scale equal to the Gp A civilian starting scale.

85. The 6th CPC had considered the proposals of the Army the

recommendations of the earlier pay commissions and placed

the MNS officers on the same Pay Band and Grade Pay, as

recommended for the corresponding Group A Civilian Pay

Scales to which they were equated by the previous two Pay

Commissions. Para 2.3.20 of the 6th CPC reads as,

 61

2.3.20 Officers belonging to Military Nursing Service

(MNS) have a starting pay equal to the Group A civilian

starting scale

Hence the 6th CPC recommended the same Group A Civilian

Pay Bands and Grade Pay to the officers in the MNS. However

discrimination continued by way of lower rate of military

service pay of Rs 4200/- for MNS cadre as against Rs 6000 for

other officers.

86. That in the letter dated 20 June 2008 addressed to the

Cabinet Secretary pertaining to the Pay and Grade Pay of MNS

vis-a-vis AMC officers, the Chief of the Army Staff had alleged

that the Pay Commission is attempting the selective

upgradation of Basic Pay, Grade Pay and the hence the status

of Nurses only in the Armed Forces to equate them with

Doctors.

87. That, the doctors working in the Central Health Scheme has a

starting Grade Pay of Rs 5400/- whereas for the same

qualifications the doctors in the AMC are appointed on the

rank of Captain with a higher Grade Pay (Rs 5700/- as

recommended by the 6th CPC). Further, the 6th CPC had

recommended for placing such Captains on 10% higher

 62

starting pay on the minimum of the pay band than Captains of

MNS and other Arms and Services of the Army. The doctors in

the AMC gets Non Practicing Allowance as available to the

doctors working in the Central Health Scheme and their

promotions are also much faster than the Nursing Officers.

Most of the Medical Officers in the AMC are promoted to the

rank of Colonel in just 14 years of service; whereas only few

Nursing Officers in the MNS become Colonel, that too after

more than 28 years of service. Further, the Nurses in the

Central Health Scheme is starting at a Grade Pay of Rs 4,600/-

Their maximum grade of Rs 7,600/- was at least two steps

higher than the Doctors starting Grade Pay of Rs 5,400/- in

the same service. However, the Director General Health

Services or any authority from Central Health Scheme had

never objected to the same.

88. That the Government under pressure from the Army had

slightly increased Grade Pay of other Service Officers from

Captain to Lieutenant General and equivalent rank at the time

of implementation of the 6th CPC Report. However, that on 30th

August 2008, The Government of India through the Gazette of

India, dated 30 August 2008, Part-I, Section 3, Para 1(E) (xi),

laid down that,

 63

the Grade pay to determine seniority of posts only

within a cadres hierarchy and not between various

cadres;

Hence the officers in the MNS continued to rank equally with

male or women officers of the same titular rank including the

Doctors in the AMC, regardless of their slightly lower grade

pay. True copy of the relevant portion of the gazette

notification is being filed herewith as Annexure P-18

89. That the provision made by the Government notification dated

30th August 2008 that, Grade pay to determine seniority of

posts only within a cadres hierarchy and not between various

cadres; had negated any effect of the slightly lower grade

pay to the Nursing Officers than the Doctors and other branch

officers and maintained their commissioned rank status in the

Army. It however, made the Nursing Officers financially looser

as comparing to other service officers.

90. That, the Command and Control in the Army always flowed

from the Army Act, 1950 and the Rules made thereunder; not

from the Pay band and Grade of its Officers. There are

adequate safe guards existing in the Regulations for the Army;

according to the Para 52 (c) of the Regulations for the Army,

 64

1987, officers of AMC have power command over officers of

MNS when such officers are engaged in the nursing of

patients under his professional care or when serving in a unit

of which he is in command. This is job specific power of

command is not unique to Nurse vs. Doctor functional

relationship. There are other provisions like the Section 64 of

the Air Force Act, 1950 that is disobedience of lawful

command of captain of aircraft, which grants job specific

power of command to officers, even over officers senior in

rank for the performance of his duties.

Pay Band 4, Discrimination

91. That the Minister of Defence at Para 3 of letter no. DO

No.22(2)/2009/D(Pay/Ser.)/4231-F/RM/09 dated 26 August

2009 when replying about non-implementation Pay Band 4

for Lt Colonels in MNS had alleged that the officers in the MNS

are non-combatants against the provisions of the Rule 8 of the

Army Rules, 1954. In which the Honble Minister wrongly

stated that,

the MNS cadre has already been taken as non-

combatants by the Pay Commission

 65

However, the Pay Commission only observed that, MNS

Officers are not primarily meant for combat duties , so were

all other women officers then serving in various other

Services of the Army.

92. The Honble 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 made several

observations that women officers in the Army were only in

jobs which were primarily non-combatant, in nature;

At Para 34 the Honble Court observed that,

.......The increase in the strength of women officers

was also the direct result of the 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".
 66

At Para 35 of the same order the Honble Court had observed

that the Honble Defence Minister in the Parliament gave an

assurance in the Parliament regarding grant of PC to women,

.......The Hon'ble Defence Minister, in fact, gave an

assurance in the Parliament that the Ministry would look

into aspects of non-combat streams to begin with,......

At Para 48 of the same order the Honble Court had observed

that,

..............the nature of training which was imparted to

these women officers which was at par with the male PC

officers while the male SSC officers were granted

training for a lesser period of time. If these officers have

performed equally well in their task which are non-

combat in nature.

At Para 56 of the same Order the Honble Court had further

observed that,

We have taken note of the fact that Army women

officers are placed on a different footing as there was no

such direct assurance of grant of PC held out to them.

 67

These officers were, however, aware of such a promise

held out to the women Air Force officers. The branches

in which SSC was granted were also similar, if not,

identical. These branches are non-combatant in nature.

93. That since the officers in the MNS are granted commissioned

rank they fall under the term combatants under this Rule

(Rule 8 of Army Rules 1954). Hence the women officers in the

MNS are combatants just like all other officers of the regular

Army; though like other women officers in the Army they are

also employed in jobs which are primarily non-combatant in

nature. Hence discriminating only the women officers of MNS

serving in the same Army, stating that their job is primarily

non-combatant in nature, and denying them the Pay Band,

Grade Pay and Military Service Pay as applicable to other

women officers in the Army is job based discrimination.

The following table gives the actual job performed by the

various officer cadres of the Army where women are

employed and their entry level educational qualifications:

Sl Officers Cadre Direct Entry: Profession Remarks

No. Educational

Qualification
 68

01 Army Service Any Degree Supplying the stores, Support

Corps spares, food etc. Service

02 Army Ordnance Any Degree Supplying arms, Support

Corps ammunitions etc. Service

03 Corps of BE/ B Tech Maintenance of Support

Electrical and equipments, vehicles Service

Mechanical etc.

Engineers,

04 Intelligence Any Degree Intelligence Support

Corps gathering & Service

dissemination

05 Army Education Any Degree Teaching in training Support

Corps institutes Service

06 Judge Advocate LLB Handling legal affairs Specialist

General's Service

Branch

07 Army Medical MBBS Providing medical Specialist

Corps care service

08 Army Dental BDS Providing dental care Specialist

Corps Service

Time Bound Promotions Discriminations

 69

94. The 6th CPC in its report at Para 2.3.21 had recommended for

implementation of the time bound promotions for the officers

in the MNS, which read 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.

The same was accepted by the Government and was notified

through the Gazette of India, dated 30 August 2008, Part-I,

Section 3, Sl No. 9. The Gazette of India notification dated 30

August 2008 is still valid and the said time bound promotions

upto Lieutenant Colonel in MNS is yet to be implemented. The

following table gives the differences in time bound promotions

between MNS and other officer cadres exists today.

Rank MNS All other Officers AMC/ADC

(except AMC & ADC)

Lieutenant on on commission Internship/on

commission commission

Captain 3 years 2 years on

commission/

1 year

Major 8 years 6 years 4 years/

 70

5 years

Lt Col 16 years 13 years 11 years

Discriminatory Pay Structure of the

7th CPC Regarding MNS Cadres Pay

95. That the 7th CPC at Para 4.2.9 of its report mentioned about

how it has arrived at the minimum fitment factor of 2.57 times

the basic pay (pay in the pay band + grade pay) for the

employees. The relevant portion of the Para 4.2.9 reads as,

.........Accordingly, basic pay at any level on 01 .01.2016

(pay in the pay band + grade pay) would need to be

multiplied by 2.57 to fix the pay of an employee in the

new pay structure. Of this multiple, 2.25 provides for

merging of basic pay with DA, assumed at 125 percent

on 01.01.2016, while the balance is the real increase

being recommended by the Commission. The real

increase works out to 14.2 percent (2.57/2.25 =

1.1429)......

96. That the 7th CPC recommended a fitment factor of 2.57 times

of basic pay of what was prevailing on 01.01.2006 to all the

 71

Civilian employees. The relevant portion of the Para 5.1.27,

reads as,

Hence the starting point now proposed is 2.57

times of what was prevailing on 01.01.2006. This

fitment factor of 2.57 is being proposed to be applied

uniformly for all employees. It includes a factor of 2.25

on account of DA neutralization, assuming that the rate

of Dearness Allowance would be 125 percent at the time

of implementation of the new pay. Accordingly, the

actual raise/fitment being recommended is 14.29

percent.

97. The Commission at Para5.1.28 had given the pay fixation in

the new pay structure to the civilian employees, it reads as,

Pay Fixation in the New Pay Structure

5.1.28 The fitment of each employee in the new pay

matrix is proposed to be done by multiplying his/her

basic pay on the date of implementation by a factor of

2.57. The figure so arrived at is to be located in the new

pay matrix, in the level that corresponds to the

employee's grade pay on the date of implementation,

except in cases where the Commission has

 72

recommended a change in the existing grade pay. If the

identical figure is not available in the given level, the

next higher figure closest to it would be the new pay of

the concerned employee.

98. The Commission at Para5.1.47 had listed the benefits of

migrating to the new system. The relevant portion reads as,

c. The fixation of revised pay has been greatly

simplified in the new pay matrix and will not involve

further calculations. The basic pay being drawn by any

person on the date of implementation is to be multiplied

by a factor of 2.57 and the figure so obtained will be

matched for the closest figure in the level pertaining to

his/her existing grade pay and fixed there.

99. That the 7th CPC at Para 5.2.7 had given the fitment factor of

2.57 times of the basic pay as for the civilian employees. The

relevant portions of the of the Para reads as,

..The fitment in the new matrix is essentially a

multiple factor of 2.57. This multiple is the ratio of the

new minimum pay arrived at by the Commission (Rs

18,000) and the existing minimum pay (7,000). The

 73

fitment factor is being applied uniformly to all

employees. It includes a factor of 2.25 to account for DA

neutralisation, assuming that the rate of Dearness

Allowance would be 125 percent at the time of

implementation of the new pay as on 01.01.2016. The

actual raise/fitment being recommended by the

Commission is 14.29 percent. An identical fitment of

2.57 has also been applied to the existing rates of

Military Service Pay (MSP), applicable to defence forces

personnel only.

100. That it is an undisputable factor that the 7th CPC had

recommended the minimum fitment factor of 2.57 times of

the basic pay or the actual raise/fitment of 14.29 percent to all

the central government employees including the personnel of

the defence forces. The methodology used by the Commission

to arrive at the entry pay for the total Central Government

manpower of around 47 lakh (Para 6.2.3) including the civilian

employees and the defence personnel (excluding the around

4600 MNS officers) is the same. Para 5.2.5 of the Report reads

as,

5.2.5 Entry Pay: The entry pay for various ranks of

defence forces personnel, other than MNS Offices, has

 74

been arrived at on the same premise, as has been done

in the case of civilian. As an illustration, entry pay for a

Captain has been arrived at as follows:

Entry pay in existing pay band + (Residency Period for

promotion to Captain from Lieutenant x annual

increment) + grade pay of the rank of Captain = 15,600

+ (2 x 630) + Rs 6,100 = 22,960.

101. The Commission at Para 5.2.20 had given the methodology

applied for arriving at the entry pay for the MNS officers. The

relevant portion of the report reads as,

the Commission has adopted a formulation as under:

Minimum Pay for a Rank in MNS (Minimum Pay for that

Rank in Defence Pay Matrix) x (Grade Pay of the Rank in

MNS)/(Grade Pay of that Rank in the Services)

102. However, the 7th CPC had assured a minimum fitment factor of

2.57 (multiple factor of 2.57) to be applied uniformly to all

employees. It includes a factor of 2.25 to account for DA

neutralization, assuming that the rate of Dearness Allowance

would be 125 percent at the time of implementation of the

new pay as on 01.01.2016. The actual raise/fitment being

 75

recommended by the Commission is 14.29 percent. Due to

the discriminatory fitment formula based separate Pay Matrix

for the Military Nursing Service as given at Para 5.2.18, page

91 of the report; the grade pay of Rs 5700, 6100, 7600, 8400

and 9000 (Captain, Major, Colonel, Brigadier, and Major

General ranked officers) not got the minimum assured fitment

factor of 2.57 or 14.29 percent while calculating their Pay

Levels. The following table shows the effects of the

discriminatory formula on the fitment factor of MNS Cadre

officers of the Regular Army.

 76

Rank MNS Officers Other Women

Officers

Minimum Grade As per MNS Fitmen As per Fitment

Residenc Pay Commo Specific t Commo Factor

y Period n Formula Factor n

Formula Formula

1 2 3 4 5 6 7 8

Lt Nil (pay 5400 56100 56100 2.67 56100 2.67

band 3)

Capt 3 years 5700 61900 59000 2.54 61300 2.67

Major 8 years 6100 71400 64100 2.39 69400 2.67

Lt Col 16 years 6600 86200 96300 2.98 116700 2.57

Col Nil (pay 7600 115650 109800 2.44 125700 2.57

band 4)

Brig 2 years 8400 132098 119700 2.32 134400 2.57

after Col

Maj 3 years 9000 149056 129800 2.36 144200 2.72

Gen after Col

103. As seen from the above table, all ranks in the MNS except Lt

and Lt Col gets only less than the minimum assured 2.57

times or 14.29% increase, which has been assured to the rest

of the 47 lakhs Central Government Employees. [The column 4

shows the figures arrived for the MNS officers of various ranks

calculated based on the common formula of the 7th CPC used

 77

to determine the pay level of the entire 47 lakh Central

Government manpower except the MNS, as given in Para

5.2.5 of its report. The column 5 shows what is recommended

by the Commission using a discriminatory MNS specific

formula, and column 6 shows the multiplication factor or

actual the raise for the MNS based on the recommendations.

The column 7 and 8 shows what has been recommended for

other women officers regardless of the non-combatant jobs

in which they are employed.]

104. That the recommendations of the 7th CPC may appear

benefitting the Lt Col ranked officers in the MNS; however in

reality the situation is not so. According to Para 2.3.20 of the

6th CPC report, all Lt Colonels of the MNS were to be in the

same pay band as other service officers. However,

subsequent to the implementation of the 6th CPC report all

other Lt Colonels including women officers who are primarily

meant for non-combat duties were also elevated to the Pay

Band 4 based on the order dated 21 April 2009. The same

was confirmed by the Minister of Defence vide letter no. DO

No.22(2)/2009/D(Pay/Ser.)/4231-F/RM/09 dated 26 August

2009. However, like all other women officers who are also

primarily meant for non-combat duties the women officers in

the MNS are also commissioned in to the regular Army and are
 78

attested in the manner provided in Section 17 of the Army Act,

1950 as laid down by Rule 8 of the Army Rules, 1954. Hence

the decision of not including only the women Lt Colonels

serving in the MNS in the order dated 21 April 2009 is highly

discriminatory. Therefore the 7th CPC ought to have considered

the women Lt Colonels of MNS after elevating them to the

pre-revised Pay Band 4 as applicable to the rest of the non-

combatant women Lt Colonels.

105. That the 7th CPC at Para 5.1.18 had recommended that the

pay level would be the status determiner among the Central

Government manpower. The relevant Para read as,

5.1.18 Prior to VI CPC, there were Pay Scales. The VI

CPC had recommended running Pay Bands with Grade

Pay as status determiner. The Seventh CPC is

recommending a Pay matrix with distinct Pay Levels. The

Level would henceforth be the status determiner.

106. As the 7th CPC had placed the women officers in the MNS on a

lower Pay Level the women officers in the MNS will not rank

equally with other women and male officers of the same

titular rank. This recommendation is contrary to the provisions

of the Para 733 of the regulations which laid down the order
 79

of precedence and the corresponding ranks of commissioned

officers of the Army, Indian Navy and Indian Air Force. The

relevant portion reads as,

(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.

107. The lower Pay Levels also contradicts the provisions of the

Ministry of Defence Resolution published in the Gazette of

India, dated 30 August 2008, Part-I, Section 3, Para 1(E) (xi)

protecting/ upholding the provisions of the Para 733 of the

regulations for the Army, 1987. The relevant portion reads as,

(xi) Grade pay to determine seniority of posts only

within a cadres hierarchy and not between various

cadres;

108. Hence, the lower Pay Levels as recommended by the 7th CPC

to the MNS Cadre; the women officers of the regular Army

serving in the MNS would be lower status comparing to the

 80

other male and other women officers of the Army of the same

titular rank performing other non-combatant jobs. All the

previous pay commissions had recommended a rank based

pay to the officers of the Army. However, there is a deliberate

omission of reference to the rank in the Recommendations of

the 7th CPC and the Commission had considered only the

existing Grade Pay and Pay Band of the officers and had made

no mention about military ranks in its Pay Matrixes given at

Para 5.2.16 and 5.2.18 of its Report; hereby created the

anomalous situation for the women officers in the MNS.

Hence the same Pay Levels as applicable to the corresponding

ranked officers (officers of same titular rank) as given in the

Pay Matrix for Defence Forces Personnel at Page 89 of the 7th

Central Pay Commission Report to be extended to the women

officers serving in the MNS.

109. That the 7th CPC at Para 5.2.22 had made recommendations

regards to the Military Service Pay, which reads as,

The defence forces personnel, in addition to their pay

as per the Matrices above, will be entitled to payment of

Military Service Pay for all ranks up to and inclusive of

Brigadiers and their equivalents. The Commission

recommends an MSP for the four categories of Defence

 81

forces personnel at Rs 15,500 for the Service Officers,

Rs 10,800 for Nursing Officers ...

The 7th 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

6th Central Pay Commission recommendations.

Previous Pay Commissions treated MNS

as Part of the Officer Cadres of the Army

110. That, the Army and 4th CPC had included the MNS officers as

part of the officers cadres of the Army. Para 147.39 of 5th CPC

Report), reads as:

The Fourth Pay Commission had not accepted Armed

Forces proposal for granting the same pay scales to the

MNS officers as for other service officers,

111. The 5th CPC at Para 147.3 listed the MNS among the Cadre

Configuration of the Army, which reads as:

Officer Cadre of Army

 82

147.3 In the Army, the Artillery, Mechanised Infantry,

Infantry, Engineers, 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.

112. The 6th CPC also included MNS among the officers cadres of

the Army, the Para 2.3.20 of its report, reads as:

The Commission, however, is of the view that that no

differential in the salary belonging to the officers in the

MNS and other Services is justified and the pay band

and grade pay of similarly designated posts in the MNS

and other Service cadre should be the same.

113. That at the 7th CPC had considered the MNS as separate from

the Defence Forces, the Para 1.20 of its report reads as,
 83

1.20 Separate pay matrices for Civilian employees,

Defence Forces personnel and those of the Military

Nursing Service (MNS) have been prepared,

114. The Para 5.1.48 of the report reads as,

5.1.48 Similar pay matrices have been designed for the

personnel of defence forces and the MNS so as to

ensure uniformity in pay structures.

115. Further, there is no mention of MNS among the Cadres of the

Army at Para 6.2.7 and 6.2.65 of the Commissions Report. All

the previous Pay Commissions had considered the MNS as one

among the Specialist Cadres or Services of the Army; however

the 7th CPC had deviated from that established position and

unfairly treated the MNS cadre different from the personnel of

the Defence Forces and not included MNS as part of the

officers cadres of the Army. This step motherly treatment is

highly irregular and is a blatant violation of the law of the land

namely; Section 10, 16 and 17 of The Army Act, 1950; Rule 8,

9 and 16A of the Army Rules 1954; Army Instructions 274/50,

4/59, 3/98; Regulations for the Army, 1987; Army Orders

353/73, 48/78 and 11/82; and various other orders and

 84

instructions of the Government of India issued from time to

time.

Pay in the Army is decided by the Rank

116. That in the Army the status and pay of an officer is decided by

the substantive rank held the officer. The Army does not

differentiate its officers based upon the job performed by the

officers. This is true in the case of every arms/services and

branches of the Army. Even in the case of women officers who

may be employed in jobs which are primarily non-combatant

in nature like teaching, clerical, medical, dental, intelligence

gathering, repairs and maintenance (engineering) etc. are

paid equally with male officers who are employed in combat

duties. Hence in the case of the Army the pay is related to the

substantive or acting paid rank held by the officer, not based

on what is the actual day to day job performed by the officers.

Hence in the Army the job is synonymous with the rank held

by the officer, and he or she is paid according the rank held,

not what he or she does. Therefore in the Army equal job is

synonymous with equal rank. For this reason depriving the

women officers serving in the MNS the equal pay for equal

rank is not justified. The Army had tried to set the records

correct by proposing to the 4th CPC, the same pay to the MNS
 85

officers as for other service officers. However the same was

not accepted, the 5th pay commission also did not grant the

equal pay to the MNS officers as for other service officers. But

by the time of the 6th CPC the Army also started discriminating

the women officers in the MNS and demanded to lower the

equal pay as granted by the 6th CPC. The 6th CPC also was

wrong in recommending a military service pay for the MNS

officers stating that they are not primarily employed for

combat duties, when the stated position of the Government is

against employing women in combat duties. The 7th CPC was

all together discriminatory and did not even consider the

women officers in the MNS as part of the Army.

117. In the Army there is a 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. 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, that is Arms and Services,

they are not discriminated based upon their profession and

are paid equally. All women officers in the Army employed in

the non-combatant duties are paid equally with their male

 86

counter parts performing combat duties, except the women

officers in the MNS. The following table gives the actual job

performed by the various officer cadres of the Army and their

entry level educational qualifications:

Sl Officers Cadre Direct Entry: Profession Remarks

No. Educational

Qualification

01 Artillery Any Degree Controlling/leading Fighting

artillery guns Arms

02 Mechanised Any Degree Controlling/ leading Fighting

Infantry battle tanks Arms

03 Infantry Any Degree Controlling/ leading Fighting

foot soldiers Arms

04 Army Aviation Any Degree Piloting army aviation Fighting

helicopters Arms

05 Engineers BE/ B Tech Mine clearance, Fighting

temporary bridge Arms

making etc.

06 Signals BE/ B Tech Handling / providing Fighting

communication Arms

equipments

07 Army Service Any Degree Supplying the stores, Support

Corps spares, food etc. Service

 87

08 Army Ordnance Any Degree Supplying arms, Support

Corps ammunitions etc. Service

09 Corps of BE/ B Tech Maintenance of Support

Electrical and equipments, vehicles Service

Mechanical 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 for Service

battle

12 Intelligence Any Degree Intelligence Support

Corps gathering & Service

dissemination

13 Army Education Any Degree Teaching in training Support

Corps institutes Service

14 Army Physical Any Degree Physical training of Support

Training Corps troops Service

15 Corps of Military Any Degree Policing of the Army Support

Police Service

16 Military Farms Any Degree Running dairy farms Support

Service

17 Judge Advocate LLB Handling legal affairs Specialist

General's Service
 88

Branch

18 Army Medical MBBS Providing medical Specialist

Corps care service

19 Army Dental BDS Providing dental care Specialist

Corps Service

20 Military Nursing BSc (N) Providing Nursing Specialist

Service Care Service

21 Remount and BVSc Providing care to Specialist

Veterinary Corps pack animals, Service

canines etc.

22 Regimental 10th Pass Same job as fighting Part of his

Commission (for Serving arms/ support parent Arm/

personnel service officer Support

only) Service

23 General Service 10th Pass Clerical Jobs Any Arm /

or Special List (for Serving Service

personnel

only)

24 Army Medical 10th Pass Handling of medical Support

Corps (Non- (for stores & Service

technical) personnel of management of

AMC) personnel
 89

118. 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 rank has

been denied by the Government on the basis of the COAS

letter to the women officers of the MNS commissioned in the

regular Army; like rest of the women officers of other

Services of the Army employed in non-combatant duties, the

MNS officers are also similarly employed.

119. That the equal pay for equal rank has been denied by

successive pay commissions only in the case of the women

officers in the MNS even though they are officers of the

regular Army. This discrimination 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

 90

deciding the pay in the case of the women officers in 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.

120. The officers in the Arms/Services of the Army do not form a

homogeneous cadre, but consists of different cadres. The

Honble Supreme Court of India in Civil Appeal No. 3208 of

2015 held 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...

121. 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 serving in all these cadres are paid equally depending

 91

upon their rank. The criterion which decides the pay band and

grade pay (now Pay Levels) 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; accordingly 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 rank has been denied to

the women officers serving in the MNS and this job based

discrimination is not justified.

122. That the true typed copies of the extracts of the 7th Pay

Commission relevant for the decision of the present writ

petition are being filed, the petitioner has downloaded the

same from 7th Central Pay Commission website and relies on

them.

True typed copy of the extract of the relevant Paras of the 7th

Pay Commission is being filed herewith as Annexure P-19

123. That the petitioner has filed a petition in the High Court of

Delhi at New Delhi as W.P.(C) 5005/2016 on the subject

matter of the present petition. The petition was withdrawn by

the petitioner while reserving the right of the petitioner to

 92

approach the Supreme Court for seeking appropriate relief and

the Leave as prayed for was granted. The subject petition was

dismissed as withdrawn. and the order or the Honble Delhi

High Court dated 27 May 2016 is being filed as Annexure P-

20

124. That the Government through Gazette of India Ministry of

Defence Resolution dated 5th September 2016 had accepted

the recommendations of the 7th Central Pay Commission.

The true typed copy of the Ministry of Defence Resolution, No.

01(E), dated 5th September 2016 including Annexure - I is

being filed herewith as Annexure P-21

The true typed copy of the Annexure II to Ministry of

Defence Resolution, No. 01(E), dated 5th September 2016 is

being filed herewith as Annexure P-22

The true typed copy of the Annexure III to the Ministry of

Defence Resolution, No. 01(E), dated 5th September 2016 is

being filed herewith as Annexure P-23

125. That the petitioner has not filed any other writ petition before

this court or any other High Court or before the Honble

 93

Supreme Court of India seeking the identical relief. The

Petitioner has however filed a Writ Petition under Article 32 of

the Constitution of India before the Supreme Court of India

bearing NO. WP ( C ) 806/2015 on which notices has been

issued against the Union of India by the Honble Court, the

same is pending till date as the Union of India has not filed

their counter affidavit in the same.

126. That the Annexures filed along with the Writ Petition are true

copies of their respective originals.

127. That the petitioner did not have any alternate and efficacious

remedy except the present Writ Petition. The relief sought

under the present petition cannot be sought before AFT as

there is no provision of any society or association of persons

approaching the AFT except for the serving officers.

128. That the present Petition is being filed through the Vice

President of the Petitioner society who has been specifically

authorized to file the present petition on behalf of the society,

the copy of the resolution of the Executive Committee of the

society is being filed herewith as Annexure P-24 (Pages

____to____).
 94

129. That the present petitioners have not filed any other petition

in any High Court or the Supreme Court of India on the

subject matter of the present petition.

130. That the petitioners have not filed any other writ petition

before this court or any other High Court or before the Honble

Supreme Court of India seeking the identical relief.

GROUNDS

A. Because 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 profession.

B. Because 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.

 95

C. Because the respondent 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 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.

D. Because the MNS officers including the petitioners were

commissioned by the President of India and had taken

oath to serve in the regular Army and hence cannot be

treated as members of an auxiliary force as they are

officers of the regular Army as defined under the Army

Act, 1950.

E. Because the MNS officers are entitled to be treated at

par with other officers of the regular Army as the MNS

officers are commissioned into the regular army under

the Army Act, 1950 and Rules made there under like

other regularly commissioned officers of the army for

their services to the nation.

 96

F. Because the MNS officers are also given a similar

appointment letter like the other officers granted

commission in other Services of the regular Army.

G. Because 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.

H. Because in many situations officers of the MNS are

required to work in insurgency areas, disturbed areas

and possibly very close to combat zones.

I. Because the wrong submissions made by UoI 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 as mentioned in the petition is probably

not accidental but intentional.

J. Because the Government had inserted the clause, the

Grade pay to determine seniority of posts only within a

cadres hierarchy and not between various cadres, at

Para 1(E) (xi), Part-I, Section 3, the Gazette of India

notification dated 30 August 2008, thereby maintaining

the equal status of the Nursing Officers with respect to

the Medical Officers of the same titular rank, and hence

disregarded the Command and Control issues as raised

by the Chief of the Army Staff in the letter dated

20.6.08.
 97

K. Because the grade pay (6th CPC) of the officers of the

same titular rank belonging to the various officer cadres

of the Army performing different jobs is the same and is

not based the actual job performed by these officers.

L. Because the Command and Control in the Army is not

enforced through the grade pay of the officers but

through the Army Act, 1950 and the Rules made there

under.

M. Because the provisions of the Para 52 (c) of the

Regulations for the Army, 1987 had granted power

command to the officers in the AMC over officers in the

MNS when such officers are engaged in the nursing of

patients under his professional care or when serving in a

unit of which he is in command; and is a sufficient safe

guard against any possible Command and Control issues

between the medical officers and nursing officers.

N. Because there is a deliberate and sustained propaganda

or misinformation being spread in the Army against the

women officers in the MNS which is now being

purposefully circulated to the agencies like Law

Commissions of India and Central Pay Commissions and

various Ministries and Government Departments.

O. Because the proposed move on behalf of the

respondents not granting same pay levels to MNS

 98

officers are available to other women officers employed

in non-combatant jobs is illegal, hostile and

discriminatory towards the officers in the MNS who are

officers of the regular army by virtue of the provisions of

the Army Act, 1950 and Rules made thereunder.

Because the discrimination is also based on an obsolete

and backward notion that nurses are somehow inferior

to other professionals.

P. Because, 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 like in

the case of the rest of women officers belong to other

cadres of the Army.

Q. Because, the officers serving in the Service stream of

the Army do not constitute a single cadre with officers

serving in Arms and Arms Support, though holding the

same rank, wearing the same uniform as observed by

the Honble Supreme Court of India in Civil Appeal No.

3208 of 2015, still all Service stream officers are placed

at the same Pay Levels; except the Officers in the

Nursing Services, this is not justified.

R. Because, the officers of the Army do not form a

homogeneous cadre and still placed at the same Pay

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Levels and denying the same only to the Officers of the

Army serving in the MNS is highly discriminatory.

S. Because, the 7th Central Pay Commission assured the

minimum increase in pay of 14.29% or a fitment factor of

2.57 times to the existing pay to the 47 lakhs Central

Government employees including the Defence personnel

and denying the same only to the MNS officers, is the

mockery of the principles of natural justice.

T. Because, at Para 5.1.18 of its report the Seventh CPC had

stated that the Level would henceforth be the status

determiner. Thereby undermining provisions of the

Regulations for the Army, 1987 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.

U. Because, the Government through Gazette of India

Ministry of Defence Resolution dated 5th September 2016

had accepted the recommendations of the 7th Central Pay

Commission undermining the existing status of the

women officers serving in the MNS.

PRAYER
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131. In view of the facts and circumstances of this petition, the

Petitioner prays before this Honble Court, inter alia, as under:

(a) For a writ of mandamus or any other appropriate writ

order or direction to the Union of India and the Indian

Army to forthwith do away with all the discriminatory

practices set out in this petition regarding pay and

allowances of the women officers serving in the Military

Nursing Service (MNS).

(b) For an order granting the same Military Service Pay and

Pay Levels to the women officers serving in the MNS as

available to the women officers of other Service streams as

given in Annexure-I and Annexure II (respectively) to the

Ministry of Defence Resolution, No. 01(E), Gazette of India

dated 05 September 2016.

(c) For an order quashing the discriminatory treatment

meted out by the 7th Central Pay Commission regarding

(i) calculation of Pay Levels, (ii) determination of Status

based on Pay Levels, and (iii) Military Service Pay in

respect of MNS officers thereby restoring the status of

the women officers serving in the MNS.

(d) For an order quashing the Pay Matrix of Military Nursing

Service as given in Annexure - III to Ministry of Defence

Resolution, No. 01(E), Gazette of India dated 05

September 2016.
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(e) For an order directing the Respondent to ensure equal

Pay for equal rank between the officers of the regular

Army serving in the MNS and officers in other

Arms/Services.

(f) For an order directing the Respondent to treat the MNS

as an independent Corps of the regular Army and grant

all appropriate powers to the Additional Director General

Military Nursing Service accordingly.

(g) For any other order/s and/ or direction/s that this

Honble Court may deem fit and proper under the

circumstances of the case and in the interest of justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE PETITIONER

AS IN DUTY BOUND SHALL EVER BE GRATEFUL.

Filed By

(Advocate for the Petitioner)

Drawn By:

Place: New Delhi

Drawn on:

Filed on: