ITEM NO.1 COURT NO.1 SECTION X SUBREME COURT OF INDIA RECORD OF PROCEEDINGS Writ Pet: 7144/2016 Lf. COL. UMA KAUSHIK AND ANR. Petitioner (s) ‘VERSUS UNION OF INDIA : Respondent (s) (with appln. (s) for permission to file synopsis and list of dates and office report) Date : 28/09/2016 This petition was called on for hearing today. ‘CORAM HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE DR. JUSTICE D.¥. CHANDRACHUD For Petitioner (s) Mr. Colin Gonsalves, Sr. Adv. Mr. Madhur Bhartiya, Adv. Mr. Satya Mitra, Adv. Yor Respondent (s) UPON hearing the counsel the Court made the following ORDER Issue notice. Tag along with W.P. (Civil) No.806 of 2015. (Ashok Raj Singh) (Veena Khera) Court Master Court MasterI_N.D'E:X RECORD: “OF PROCEEDINGS: “oR No. Date of record of Proceedings : Pages “pl. | Courts order.dated Gourts ordei dated ... Courts ordev Gated ..., Courts order dated , ‘| Courts order dated . 5. 6. | Courts order dated . Courts orcter dated « Cqurts order dated... Counts order dated ., 12; | Courts order dated ... 113; | Courtd order datea a Gouirts order dated! . | Courts orderdated «., M17. | Courts ordér dated:INDEX SI. No. Particulars Page Listing Porforma A-M ‘Synopsis and list of dates K-27 ‘Writ Petition with Affidavit LaF Appendix i, Relevant provisions of Army Act, 1950 Section 3 (xxi) , section 27. ji. Relevant provisions of Army Rules, 1954: Rule 9 we )47 Annexure P-1 True copy of The Indian Military Nursing Ordinance, 1943 dated 15.09.1943 promulgated by the Governor General. jgo783 Annexure P-2 True copy of the Army Instruction 274/50 dated 12.08.1950 issued by the respondent. [suc [ase Annexure P-3. True copy of sample oath or affirmation made by the MNS officers on being granted commission in the regular army dated nil. be [UF Annexure P-4 True copy of the sample certificate underIndian Official Secrets Act, 1923 as per Indian Army Form ‘IAFZ 2033A’ executed on being granted commission in the 148 regular army dated nil. 9. Annexure P-5 True copy of the Army Instruction 4/59 dated 03.01.1959 issued by the respondent. (91>) 10. | Annexure P-6 True copy of the Defence Service Regulation (Regulations for the Army), 1962 dated 06.12.1962. [EX-ISF 11. | Annexure P-7 True copy of the Army Order 501/63 issued by the Chief of Army Staff dated nil. Ike 12. | Annexure P-8 True copy of the sample bond to be signed by the father or guardian of a minor girl admitted for the B.Sc (Nursing) Course at the colleges of nursing armed forces medical services and the surety dated nil tie [68 13. | Annexure P-9 True copy of the Army Order 353/73 issued by the Chief of Army Staff dated I bY nil.14. Annexure P-10 True copy of the Annexure ‘D’ to Army Instruction 61/77 form of agreement of service of regular nursing officer in the Military Nursing Service dated nil. (68-167 45. Annexure P-11 True copy of the Army Order 11/82 issued by the Chief of Army Staff dated nil. 168 16. Annexure P-12 True copy of the Defence Services Regulations (Regulations for the Army), 1987 dated 05.12.1986. 168 SH 17. Annexure P-13 True copy of the sample appointment letter in military nursing service dated nil. 18. Annexure P-14 True copy of the relevant provision of the 5" Central Pay Commission, 1997 dated nil. 19. Annexure P 15 True copy of the Military Nursing Service Ordinance 1943 circulated within the Army dated nil. (17-17920. Annexure P-16 True copy of the judgment dated 13.11.2003 delivered by this Hon'ble Court in Transfer Case (c) 38 of 2002. 186-7190 21. Annexure P-17 True copy of the army headquarters AG/CW-1 dated 30.04.2004 on flying of car flags and display of star plates nursing officers 19) 22. Annexure P-18 True copy of the relevant portions of the 6" Central Pay Commission dated nil. AL 23. Annexure P-19 True copy of the letter bearing reference number G/7021/VI-PCC (Army) dated 20.06.2008 written by General Deepak Kapoor. 17ZA74 24. Annexure P-20 True copy of the office Gazette of India notification dated 30.08.2008 on implementation of sixth central pay commission recommendations. asayh 25. Annexure P 21 True copy of the order dated 30.03.2010 passed by the Armed Forces tribunal,Principal bench at New Delhi in T.A. No. 211/2010 197-210 26. Annexure P 22 True Copy of the Dte Gen/LWE/Policy (Qtr) bearing reference no. B/37614/Policy/(Qtr) on accommodation for nursing officers of MNS dated 20.01.2015 2H ?48 27. Annexure P-23 True copy of the personal application dated 02.09.2015 by the petitioner no.1 under Section 27 of the Army Act, 1950. Ally 2287) 28. Annexure P-24 True copy of the personal application dated 17.09.2015 by the petitioner no.2 under Section 27 of the Army Act, 1950. rb-28 29. Annexure P-25 True copy of note titled “The glorious history of Military Nursing Service” prepared by the petitioners dated August 2016. 2 Ve23L 30. C.M. A. No.. of 2016 Application for permission to file lengthy synopsis and list of dates Zar r*yA PROFORMA FOR LISTING SECTION, fe The case pertains to (Please tick/check the correct box): [5 Central Act: Army Act, 1950, Constitution of India,1950 [29 Section: Section 3 (xxi), section 27 of the Army Act, 1950 Article 14, 15 (1) of the Constitution of India,1950 [) Central rule: (Title) Army Rules, 1954 [ Rule No(s): Rule 9 [State Act (Title) _NA (Section: —NA (5) State Rule (Title) _NA [1 Rule No(s): NA [) Impugned Interim Order Date: ___NA [—_Impugned Final Order/Decree Date: 4), ([) High Court Name: die [= Name of Judges: oar ([)_Tribunal/ Authority (Name): Hn 1, Nature of matter: waten Criminal 2.(a) Petitioner/Appellant No.1:Lt. Col. Uma Kaushik #4#& (b) E-mail ID: NA _ (c) Mobile Phone Number: __NA 3. (a) Respondent No.: Union of India (b) e-mail ID: (©) Mobile Phone Number: NA, 4, (a) Main category classification: pig (b) Sub classification: = 5. Not to be listed before: Nift 6. Similar/Pending matter; #77 @? A/0° bes /> us 7. Criminal Matters: a.Whether accused/ convict has surrendered: Yes/No] [7] b. FIR No. Date: c. Police Station: d. Sentence Awarded: _NA e. Sentence Undergone: 8. Land Acquisition Matters: (a) Date of Section 4 notificatio (b) Date of Section 6 Notificatior (c) Date of Section 17 notification: __NA 9. Tax Matters: State the tax effect: NA. 10. Special Category (first petitioner/appellant only): (Senior citizen > 65 years }[SC/ST [—Woman/Child CDisabled [1 Legal Aid casf_] —_—In custody 11. Vehicle Number (in case of Motor Accident Claim matters): NA. 12. Decided case with citation: NA. Datesy4 /a/2o1L (Satya Mitra) AOR for Petitioner(s)/Appellant(s) Registration No. 1852 Email id: satyamitra2003@yahoo.co.inSYNOPSIS & This writ petition is identical to Writ Petition (C) 806 of 2015 MNS Corps Association vs. Union of India, the only difference being that whereas the aforesaid petition was filed by retired officers of the Military Nursing Service, the Present petition is being filed by two serving officers of the Military Nursing Service. The orders passed by this Court in the earlier case abovementioned are as under: “Date: 04/12/2015 This petition was called on for hearing today. CORAM: HON'BLE MR. JUSTICE J. CHELAMESWAR HONBLE MR. JUSTICE ABHAY MPNOHAR SAPRE For Petitioner(s) Mr. M.N. Krishnamani, SrAdv. Mr. Umesh Sharma, Adv. Mr. Satish Kuinar, Adv. For Respondent (s) UPON hearing the counsel the Court made the following ORDERc Issue notice on the SLP as well as on the application for interim relief returnable in four weeks.” Officers of the Military Nursing Service stand on par in every respect with the officers of the other Arms/Services of the regular Army The current Military Nursing Service has its origin in the Indian Military Nursing Service which came into being with the Indian Military Nursing Service Ordinance, 1943. Even Prior to this Ordinance Indian nurses were part of the war efforts as part of the Allied Forces in the British Indian Army. The Ordinance constituted the Indian Military Nursing Service (IMNS) “as part of the armed forces of the Union”, The members of the IMNS were to “be of commissioned rank and shall be appointed as officers of the IMNS, The Indian Army Act, 1911 applied to them.” With the coming into force of the Army Act, 1950, the commissioned officers of the IMNS previously governed by the IMNS Ordinance, 1943 came to be governed by the provisions of the Army Act, 1950, Section’3 (xxi) of the Army Act, 1950 defined the term “Regular Army” as under:D “Regular Army” means officers; junior commissioned officers, warrant officers, non- commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to render continuously for a term military service to the Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service;” Army Instructions 274/50 relating to “Terms and Conditions of Service for the Grant of Regular Commission in the Military Nursing Service” were made by the Central Government in accordance with the provisions of the Army Act, 1950. These instructions categorically speak of regular commissions in what is now called the Military Nursing Service (MNS). Accordingly, all the commissioned officers of the erstwhile IMNS became commissioned officers of the MNS. Annexure A to the said Instruction contains clause 2 (A) which is as under: “2. Rank, Seniority and Promotions.- (A) Rank.—All members of the MNS are granted commissions on appointment in the rank of Sister. The rank will be antedated in accordance with6 clause (B) below for the purposes of seniority and promotion. They rank as follows:- Sister . - Lieutenant, Senior Sister - Captain: *Matron - Major Principal Matron - Lt. Col. Chief Principal Matron - Colonel, *Those employed on staff will be called Staff Matrons.” Thus by this Instruction the commissioned officers in the MNS were treated. as officers of the regular Army. This was made clearer by Army Instruction 4/59, the relevant part of which is as under: 2, Rank, Seniority and Promotions- (A) (i) Rank- Commissions will be granted in the rank of Lieut. On first appointment. This rank will be antedated in accordance with Clause (B) below for the purposes of seniority and promotion. (ji) The rank in the MNS will be as under- Lieut. Captain Major Lt, Colonelp Colonel (iii) The present ranks of serving Nursing Officers will be redesignated to confirm to the nomenclature given in sub-clause (Ii) above. (iv) The rank of Nursing Officers when seconded to the Navy or the Air Force will correspond to equivalent ranks in those Services.” Thus the officers of the MNS were officers of the regular army. Army Rules, 1954 require every person mentioned in Section 16 of the Act to take an oath which is as under: “Rule 9: Form of Oath I. do swear in name of God that I will bear true faith and allegiance to the Constitution of India as by the law established and that I will, as in duty bound, honestly and faithfully serve in the regular Army of the Union of India and go wherever ordered by land, sea or air, and that I will observe and obey all commands of the President of the Union of India and the commands10. ii. of any officer set over me even to the peril of my life.” Accordingly, all officers commissioned in the regular Army including the officers of the MNS were required and were administered the oath of allegiance to faithfully serve in the regular Army of the Union of India. Prior to training the petitioner no.1 (and over 3500 officers similarly situated) concerned with this Petition executed a bond titled “Bond to be Signed by the Father or Guardian of a Minor Girl Admitted for the B.Sc (Nursing) Course at the Colleges of Nursing Armed Forces Medical Services and the Surety” and the relevant part of the bond is as follows: “whereas...has been selected by government for admission to...with a view to her being granted permanent commission/short service commission as a nursing officer in the regular army...” It is now pertinent refer to the Defence Service Regulation (Regulations for the Army), 1962 the relevant parts of which are as under: “Para 733(b) Women Officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with the male officers of the same titular rank, e.g. a captain (womanofficer) in the Army Medical Corps will rank equally with a captain in the Artillery or Engineers.” 12. It is now pertinent to refer to Army Order 501/63, the relevant parts of which are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.” 13. It is also necessary to refer to Army Order 353/73 the relevant parts of which are as under: “1. Military Nursing Service Officers are required to salute and are entitled to salutes in the same manner as other commissioned officers.” 14. The abovementioned Army Orders 501/63 and 353/73 clearly demonstrate that officers in the MNS of the regular Army are required to salute and be saluted in the same manner as other officers of the regular Army. 15. Army Order 11/82 lays down the Order of Precedence where the MNS officers of the regular Army were placed first among the Medical Services. The relevant part of the Order of Precedence is as under:“7. Medical Services (a) MNS (b) AMC (c) ADC” 16. Government of India issued Regulations for the Army, 1987 superseding the earlier regulations of 1962 where the MNS is mentioned alongside the Arms/Corps/Services of the Army in every relevant portion. The duties and responsibilities of the Director of Nursing Services (now ADG MNS) is given in Para 32 alongside the similarly placed heads such as the Director of Medical Services, Director of Dental Services, Judge Advocate General and Provost Marshal. The Director of Nursing Services had duties and responsibilities similar to any other head of any other Corps/Services of the Army. The relevant parts of the Regulations for the Army, 1987 laid down that officers in the MNS would rank equally with male officers of the same titular rank. These regulations are as under: “Para 733 (b) : ...Women officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with male officers of the same titular rank, e.g., a captain (woman officer) in.the Army Medical Corps, will rank equally with a captain in the Artillery or Engineers”7 J On 6.12.93 by SRO 17E Government of India amended the Army Rule 1954 inserting Rule 16A, which is referred to by the petitioners herein to demonstrate that even upto the end of 1993 the officers of the MNS were treated on par with the officers from other Corps/Services of the regular army. The relevant part of the said order is.as under: “16A. Retirement of officers. — (1) Officers shall be retired from service under the orders of the Central Government, or the authorities specified in sub-rule (2), with effect from the afternoon of the last date of the month in which they— (a) Attain the age limits specified in sub-rule (5); or (b) Complete the tenures of appointment specified in sub-rule 5 (f) (ii) and (g) (li) and sub-rule (6), whichever is earlier. (2) The authorities referred to in sub-rule (1) shall be— (a) The Director-General, Armed Forces Medical Services in respect of officers of the Army Medical Corps, Army Dental Corps and Military Nursing Service;”18. The report of the 5" Central Pay Commission 1997, accepted by the Government of India, made certain vital determination in respect of the Indian Army Officers Cadre Configuration and commented that the Military Nursing Service was a specialist cadre of the Indian Army in the following terms: “Officer Cadre of Army 147.3 In the Army, the Artillery, Mechanised Infantry, Infantry, Engineers, of Signals and Army Aviation Corps comprise the arms or the fighting elements. The Army Service Corps, Army Ordnance Corps, Corps of Electrical and Mechanical Engineers, Army Postal Service Corps and the Pioneer Corps comprise the logistic support and maintenance clement, — while Intelligence Corps, Army Medical Corps, Army Dental Corps, Military Nursing Service, Remount and Veterinary Corps, Army Education Corps, Judge Advocate General's Branch, Army Physical Training Corps, Corps of Military Police and Military Farms comprise the specialist cadres”, 19. Officers of the MNS have always been treated on par with the officers of the regular Army belonging to the various other Arms/Services as above stated. Some of the features of this common treatment is as under:vie vii. viii. xi. xi. xiii. xiv. xvi. xvii. Same method of commissioning Same rank, insignia and designation Identical conditions of service Same uniform Same service privileges and entitlements Same retirement conditions and benefits Same identity cards Same Form on which personal documents are maintained Same Form on which medical category is maintained No services selection board interview like the doctors and dentists of the Army No promotion examination like the doctors and dentists of the Army Same promotion board for the nursing, medical and dental officers of the Army Liability to serve in the Army, Navy and Air Force like the doctors and dentists of the Army Same manner of issue of personal numbers Same Controller of Defence Accounts disburses the pay and allowances Same scale of rations Identical accommodation according to rank” 20. There is therefore no doubt that the officers of the MNS stand on par in every respect with the officers of all other Arms/Services of the regular Army. The officers of the MNS. are also given a similar appointment letter like the other officers granted commission in a particular Service of the regular Army. A sample appointment letter issued to an officer of the MNS and the relevant part is as under: “I, reposing special trust and confidence in your fidelity, courage and good conduct, do by these Presents Constitute and Appoint you to be Lieutenant in the Military Nursing Service from the...day of... I, therefore, charge and command you carefully and diligently to discharge your Duty in the Rank or in any higher Rank to which you may from time to time hereafter be promoted or appointed, of which a notification will be made in the Gazette of India and to obey such directions as from time to time you shall receive from me or any of your superior Officers and to observe and execute the Rules Regulations and Orders for the Governance of the Military Nursing Service. And I do hereby charge and command the Officers and Others subordinate to you to conduct themselves withN due Respect and Obedience to you as their Superior Officer.” 21. In 2014 the Law Commission of India in report no. 249 relating to obsolete law warranting immediate repeal recommended that the IMNS Ordinance of 1943 be repealed and suitable amendments brought in the Army Act of 1950 to incorporate provisions pertaining to the erstwhile members of the IMNS. While doing so the Law Commission failed to notice an elementary and obvious fact namely that after the Ordinance of 1943 many statutory developments had been taken place and that extensive statutory provisions relating to the erstwhile members of the IMNS as well as subsequent joining members of the MNS of the regular Army had been enacted. There was therefore no need for the Law Commission to recommend that suitable amendments be done as extensive amendments had already been enacted and were being implemented. The stand of the petitioner is that with the subsequent statutory developments and amendments made from time to time starting with the Army Act, 1950 and all the statutory developments thereafter as set out above, the IMNS Ordinance of 1943 ceased to have any effect or force and was impliedly repealed. Moreover, the IMNS Ordinance of 1943 flows from the Indian Army Act, 1911 which was repealed by the Army Act, 1950 and by this repeal the IMNS Ordinance, 1943 is also impliedly repealed.The beginning of Discrimination The glorious history of Military Nursing Service 22. The history of Military Nursing Service in India came into 23. existence in 1888, It was called the Indian Army Nursing Service. It went through several changes they were active in World War I and II. Many nurses lost their lives when the ship SS Kuala was sunk by Japenese bombers in 1942. Petitioner has prepared a note titled “The glorious history of Military Nursing Service” is annexed at Annexure P-25 where it is stated inter alia, that about 350 Indian Army nurses either died or were taken prisoner or declared missing in action during the two world wars. a. The Discontinuation of Arms Training In 1996 or thereabouts the Army discontinued weapon and arms training for the officers of the MNS. Every officer of every branch of the Army gets weapon and arms training. This is true of all the doctors, all the lawyers, dentists, veterinarians, education branches, postal service, military farming personnel and so on. None of these personnel from these branches except the doctors are required to go the battle front. The officers of the MNS are required to go the battle front whenever the situation demands it. In fact in the24, 25. 26. agreement for service entered into between the Government of India and the officers of the MNS it is specifically stated as under: “If appointed to service I agree.... to proceed on field service and to any station in or out of India to which I may be ordered” Thus the officers of the MNS may be ordered to go abroad and have been so ordered to operate in Sudan, Congo, Sierra Leone, Lebanon, Tajikistan, Afghanistan, Srilanka, Somalia and elsewhere. In some of these places such as Sudan, Congo, Somalia, Sierra Leone, Afghanistan and Srilanka the officers of the MNS were posted in war zones and conflict zones. In India the officers of the MNS have been posted at J&K where it is impossible to distinguish which part of the state is a conflict zone and which is not. They are posted at “border static hospitals” and elsewhere. These border static hospitals are often close to the border with Pakistan (Line of Control). In Kargil it is about 2 kms. In Tangdhar it is about 1.5 kms. In Assam and other parts of the North East the officers of the MNS have been posted to counter insurgency areas. In Manipur areas have been declared as disturbed areas under27. 28. 29, AFSPA and the officers of the MNS are posted in these disturbed areas. Not only are the officers of the MNS required to work in the’ hospitals but they are also required to accompany the patients in ambulances when they are being transferred in the conflict zones and insurgency areas. The officers of the MNS often travel with other persons of the regular Army in convoys through conflict zones. and insurgency areas thus facing the same level of threat to their lives as other army personnel. To deprive the officers of the MNS of arms training was therefore an arbitrary act which render the officers of the MNS vulnerable, and the said instruction or orders issued orally or in writing ought to be set aside by this Court. The written orders are not available hence this Court may direct their production. In this regard one ought to take note of Article 22 of the “Geneva Convention for the Amelioration of the Condition of ‘the Wounded and Sick in Armed Forces in the Field” which is as under: “ARTICLE 22 The following conditions shall not be considered as depriving a medical unit or establishment of the protection guaranteed by Article 19:(1) That the personnel of the unit or establishment are armed, and that they use the arms in their own defence, or in that of the wounded and sick in their charge.” 30. The distinction between combat and non combat officers 31. of the Army is not to be found in any statute or any Army Order or Army Instruction. This is because in many situations officers of the MNS are required to work in insurgency areas, disturbed areas and possibly very close to combat zones. Not only are they required to do so they have agreed in writing to do so. b. Change in Uniform After the year 2000 an issue arose relating to medical Officers and nursing officers of the regular army wearing the same uniform as it was said that it was difficult for the patients to distinguish between the doctors and the nurses. Accordingly steps were taken by the army to change the uniform of the nursing officers. This controversy reached the Supreme Court and judgment was delivered on 13.11.2003 in Transfer Case (c) 38 of 2002. In that decision relating to the nature of the uniform to be32. 33. 34. gS worn by the nursing officers an observation crept in namely: “That the Indian Military Nursing Service is a separate class, sui generis even though an auxiliary force of the Indian Military, is an undeniable fact.” Based on this observation the central government and the Chief of Army staff began introducing a series of changes in the service condition and status of the officers of the MNS of the regular army designed to downgrade their status and change their service conditions to their detriment. A perusal of the above decision shows that, on the basis of wrong submissions relating to the statutes in question, certain errors were committed by this Hon’ble Court in that decision, as a result of which, the submission is now being made by the petitioner, that the said decision is per incurium as the changes in the statutes were not brought to the notice of the Court and the fact that the Ordinance relied upon had been impliedly repealed was also not brought to the notice of the Court. Secondly, the extensive statutory and ground level changes as stated in the earlier paragraphs integrating the officers of the MNS as officers of the regular Army in everyT respects, the observation of the Supreme Court abovementioned which might have been correct prior to the Army Act, 1950 can no longer is said to be a correct statement on law or facts. What has been stated in the judgment as an “undeniable fact” is completely contrary to all the statutory and ground level and statutory changes that have taken place and have been set out in detail in the aforesaid paragraphs. So misleading was the presentation of the statutory scenario and facts presented to the Supreme Court, that the Supreme Court was not informed: i) That the Ordinance of 1943 on which the entire judgment rests was impliedly repealed by the enactment of the Army Act, 1950 and. various statutory instruments made thereafter. ii) That the IMNS, (which term is used repeatedly in the judgment) ceased to exist in 1950 and was replaced by the Military Nursing Service. which was a substantially different force even though the nomenclature may sound similar, because the MNS was integrated into the regular Army in every respect through a series of statutoryinstruments and ceased to be a separate class or an auxiliary force; iii) | The numerous statutory instruments in the form of Army Rules, Army Instructions and Army Orders integrating the Military Nursing Services completely into the regular Army were not brought to the notice of the Supreme Court. 35. Therefore, in the petitioner's submission, this decision ought not to be treated as binding and the issues of law and the determinations on facts ought to be reconsidered. At the very minimum the observation in the decision “that The Indian Military Nursing Services is a separate class sui generis, even though an auxiliary force of the Indian Military, is an undeniable fact” should not be taken to be correct and binding and ought to be held to be an observation made per incurium and on the basis of wrong factual submissions made to the Court by the parties. c. Stripping of the stars and flags from the vehicles 36. By order dated 30.04.04 the army made an order stripping the car flags and star plates from the official cars used by the senior MNS officers of the General officer rank in the following terms:“2. Regulations for Army para 773 only Wy down the shape/colour of Car Flags and Star Plates to be displayed according to appoint of the officer AO 46/87, para 1 gives out the entitlement to fly a car flag by officers of the Army AO 46/87, para 10 and also RA Para 774 gives out star plates to be displayed in accordance with the rank of the officer. 3. The Indian Military Nursing Officers are not ‘covered under the definition of “Officer” as given in AA 3 (XVIII) Army Act 1950. The Military Nursing Service was raised vide Indian Military Nursing Ordinance 1943, in that MNS officers are appointed as officers of Indian Military Nursing Service. 4. In view of the above, under the provisions of existing Army Orders/ Regulations for the Army, Nursing Officers are not authorized to fly flags or display star plates.” 37. In the case of Major General Mrs. Usha Sikdar (Retd.) versus Union of India & Ors., this order came to be challenged and the decision of the Armed Forces Tribunal dated 30.03.10 was delivered in her favour.38. This case was also wrongly pleaded before the Tribunal by the Army that stated: “Para 4: A reply was filed by the respondents and respondents took the position that petitioner was not recruited under Army Act and Rules and she has been recruited under Indian Military Nursing Ordinance 1943 and she cannot be treated to be part of Regular Army. As such she cannot be considered at par with officers who are regularly recruited under Army Act. Specially learned counsel for respondents has drawn our attention to definition of ‘officers' given in Section of Army Act 3(XVIII) Army Act, 1950.” 39. This was wrongly accepted by the Tribunal which observed as under: iv) “Para 6: Petitioner was recruited under the Indian Military Nursing Ordinance, 1943. The Ordinance was issued in exercise of power conferred by section 72 of the Government of India Act, 1935 and this Ordinance still holds field till date. Section 3 lays down theConstitution of the Indian Military Nursing Service which reads as under......” 40. A perusal of this decision shows that from para 6 onwards a substantial part of the judgment is based on the IMNS Ordinance 1943 in respect of an officer who was commissioned in 1967 when the ordinance was no longer in force and the petitioner in that case was governed by a totally different statutory regime starting with the Army Act, 1950 and various Army Instructions and Army Orders made thereafter. Even in para 21 it is stated: v) “Para 21: It is true that the petitioner was not recruited under the Army Act, 1950 but she was recruited under Military Nursing Ordinance, 1943 and as per the provisions of the Ordinance as well as the rules, she has been fictionally treated as regular member of the Indian Armed Forces, though she was not recruited directly under the Army Act, 1950 and rules framed thereunder... 41. Although the ultimate decision was in favour of the petitioner in that case, and the reasoning in the latter part of para 21 is correct, the earlier observations to the effect that she wasappointed and was governed by the Ordinance of 1943 is based on the Uol making wrong submissions before the Tribunal. d. Creation of a Training Manual with Distorted Information 42. The wrong submissions made by Uol to the Supreme Court in Transfer Case ( C ) 38 of 2002 mentioned earlier as well as the decision of the Tribunal dated 30.03.10 mentioned above is probably not accidental but intentional. Evidence of this is a book published by the Army titled “Military Law Officer Training School AMC Centre & School Lucknow PSR May 2003”. This publication makes out as if the Ordinance 1943 is still in place and effective and wilful distortions are made in the 1943 ordinance to give the impression that it is this ordinance which binds officers of the MNS even today. A chart showing the fabrications made while preparing the book is set out in the petition. This book is used as.a training manual and is repeatedly used to point out to the MNS officers and others that they do not have the rank and status of officers of the regular Army. e@. Verbal instructions issued to stop saluting MNS officersZ 43. Post 2003, post the decision of the Supreme Court in Jasbir Kaur’s case, where an unfortunate one line observation has been made which according to the petitioner is ter incuriam, a series of discriminatory practices against MNS officers were introduced by the Army. All these practices relied on that crucial one line which read as follows: vi) “That the Indian Military Nursing Service is a separate class, sui generis even though an auxiliary force of the Indian Military, is an undeniable fact.” 44, Prior to this observation as explained by the petitioner in detail above MNS officers were treated as officers of regular army on par with the officers of the other Arms/Corps/services. The abovementioned observation was of the Supreme Court was wrongly treated by the Army as a license to discriminate thus the following discriminatory practices were introduced: i. Verbal orders were issued to stop salutingiti. vi. vii. Z-4 The flag and stars of the general officers rank were ordered to be taken away from the official vehicles When seconded to other branches of armed forces such as Navy or the Air Force the wearing of the ranks of that particular service was discontinued while for doctors and dentists the practice continues Membership. to exclusive institutes and clubs for officers of the armed forces were denied by Verbal orders Officer mess’ and command mess’ which used to provide accommodation to MNS officers were directed by a verbal command not to provide accommodation; Although the 6 Pay Commission recommended parity between the MNS officers and the officers of the regular army, on the persuasion of the army government kept the pay of the MNS officers at a lower level; Though the central government has accepted the recommendations of the 6” Pay Commission to bring the time scaleviii. 2 Promotions of the MNS officers upto the rank of Lt. Colonel, on par with the officers of the other arms/services, a notification has been issued but not implemented; By order dated 20.01.2015 the army Proposed to separate MNS officers’ accommodation from other officers of the regular army; In the case of ACRs (Annual Confidential Reports), upto 2005 they were initiated by the head of the nursing services in the hospitals/ establishments. After 2005 the ACRs were directed to be initiated by medical officers who are outside the cadre of MNS. Thus the head of the MNS. in the hospitals/establishments loses control over her officers and the doctors take control. The Form ‘G’, an exclusive form meant for the officers of the MNS for concessional travel in the Indian Railways had been discontinued in 2005 and they were granted concessional travel in trains on ‘Concession Voucher’ (CV) earlierxi, xii. xiii. xiv. Zs meant only for the personnel below officers ranks in the armed forces. The Army stopped using the term officer when referring to officers of the MNS in 2004 and started using the term “members of MNS” in all official correspondence and in public gathering of its personnel. The Director General Resettlement (DGR) of the Army totally excluded the officers of the MNS while introducing courses for the resettlement of officers of all other Arms/Services of the Army who are retiring. The officers of the MNS are not being given even a single seat for the junior level management course at Defence Services Staff College at Wellington or middle level management course at College of Defence Management at Secunderabad, whereas all other Arms/Services of the Army has certain reserved seats decided on pro rata basis or otherwise. The General Officers (Brigadiers and Major Generals) of the MNS were2-4 instructed to wear the shoulder badges with the name of the service (MNS) along with the officer rank insignias since 2004, whereas similarly ranked Officers from all other Arms/Services of the Army need not to wear the name of their parent Arm/Service. xv. Steps are being taken to separate the MNS officers from the regular army, to reconstitute the MNS as an auxiliary force and to take away the army commissioned officers ranks and status. f. Verbal Orders issued to Stop Saluting 45. Sometime in 2004 particularly after the observation of the Supreme Court in the abovementioned case verbal orders seem to have been issued for MNS officers not to be saluted. Thus, without any written order made available to the MNS officers, all junior officers and jawans in the army stopped saluting the MNS officers. This was a huge insult to the MNS officers. Though an MNS officer may be a Major General in uniform, a jawan will not salute. g. Membership to Exclusive Institutes and Clubs46. 47. Zs After 2004, MNS officers were denied access to Institutes and clubs for armed forces officers. No written orders were ever issued or made public. Thus all of a sudden access to these institutes and clubs were suddenly denied. The children of MNS officers use these clubs for sporting facilities. From 2004 onwards children of the MNS officers were turned away from these places. All army officers’ children may study in the same school and sit on the same bench but when it comes to utilising the sport and recreation facilities of the institutes and clubs they are turned away saying that they cannot enter because they are children of MNS officers. This has a psychological bearing on the child who feels that his mother is a somewhat inferior officer. h. Accommodation In the Army Battle Honours Mess (ABHM) and Command Officers’ Mess, the officers posted in the administrative vacancies used to be given accommodation which was discontinued from post 2004 by a verbal order. Many MNS officers who were originally eligible applied for accommodation and were denied. i, 6 Pay Commission Parity2-6 48. The 6" Pay Commission made a recommendation as under: “The Commission, however, is of the view that no differential in salary of officers belonging to the services or MNS is justified and that the pay band and grade pay of similarly designated posts in service officers cadre and MNS cadre should be the same."(2.3.20 of the 6 Pay Commission Report). 49, Despite this, the MNS officers are kept on a lower basic and grade pay than other officers of equal rank in the army. This discrimination was done due to a letter dated 20.6.08 by the then Chief of Army Staff opposing the recommendation made by the 6" Pay Commission in the following terms: “1. Please refer to Chiefs of Staff Committee letter No. COSC/1940 dated 15 Apr 08 addressed to Hon'ble Raksha Mantri, expressing Armed Forces concerns over the VI CPC Report and the anomalies therein. 2. While forwarding the above, an important issue which inadvertently missed out is being brought to your notice. This is pertaining to the Pay and Grade Pay of MNS vis-a-vis AMC officers which had not been highlighted earlier. The issue50. 51. 2-7 pertains to grant of pay scale and grade pay at par with AMC Officers to MNS Officers who hitherto had lower pay scales and no rank pay. Efforts of the VI CPC to meet the just aspirations of Nurses with regard to Pay, Grade Pay and status be it in civil or in the Armed Forces Medical Services is well appreciated. However selective upgradation of Basic Pay, Grade Pay and the hence the status of Nurses only in the Armed Forces to equate them with Doctors will seriously impact the command and control in the Military Hospitals, which would adversely affect patient care in the long run. 3. Hence, there is a need for reconsidering these aspects and keeping the Pay and Grade Pay of MNS Officers distinct from Service Officers, The detalled case is attached.” As a result of this letter, parity was not done. The 7 Pay Commission Recommendations is proposed to be separately challenged by way of another petition. j. Parity in Time Scale Promotions The 6'" Pay Commission recommended parity in time scale promotions as under:52. 53. 54. ZB “The Scheme of time bound promotions upto the level of Lieutenant Colonel, already available to the service officers, should be extended to MNS officers as well."(2.3.21 6 Pay Commission report) Pursuant to this notification dated 30.8.08 was issued by Government of India accepting the abovementioned recommendation. Notwithstanding this notification the recommendation has not been implemented till date. k. Segregated Accommodation Whereas earlier MNS officers and other officers of the regular army were accommodated in the same areas. Now by order dated 20.1.15 the MNS officers are to be no longer accommodated in the same areas as other officers of the same rank of the army. |, Attempt to take away the Commissioned Rank The discrimination against the MNS officers has now become acute. From 1943 when the nursing officers were given commissioned ranks, to the 1950s when they were fully integrated in the Army, to 1959 where there ranks were55. changed from Sister, Matron etc. to the. regular army ane the history of the MNS is that of transition to full integration with the regular army. However from 2003 onwards there is a deliberate attempt to go backwards and thereby to ignore the mandate of the Article 14 of the Constitution which prevents discrimination on the grounds of sex. m. Plans by the Army for future Discrimination The discrimination is also based on an obsolete and backward notion that nurses are somehow inferior to other professionals. This is a core consideration in this case and it is this mental makeup that forms the silent substratum of the moves that are afoot to reduce the status and undermine the dignity of the nursing officers. The heart of the matter is that doctors and male officers find it unpalatable that they are required to treat nursing officers in accordance with their status and rank. Why should a nursing officer who deals with the body fluids of a patient and with their cleanliness and hygiene on a dally basis (apart from the other professional medical duties) be saluted, be given a regular uniform and rank, and over years with experience even be a given a rank higher than the newly recruited doctors? The core issue is one of dignified treatment of the nursing officers in keeping with their nursing qualifications , their years of experience and their dedication to their patients, the army and the