UNION OF INDIA Vs. LIEUT MRS E IACATS

JUDGEMENT

(1.) Pursuant to an advertisement the respondent applied for the post of a Nursing Sister (Lieutenant) in the Military Nursing Service for local service. She was selected and joined the post on 6/2/1959. On attaining the age of 55 years she was superannuated with effect from 30/11/1981. The respondent filed a writ petition in the Gauhati High court challenging her retirement at the age of 55 years on the ground that in other nursing services under the Military Establishment the age of retirement was 58 years. It was discriminatory to retire the nurses who were appointed for local service only at the age of 55 years. She also claimed pensionary benefits on retirement. This petition has been allowed. Hence the appellants have filed the present appeal.

(2.) There are three different types of Military Nursing Services governed by their own different rules. These are (/) Military Nursing Service (Regular) , (2 Military Nursing Service (Civilian) , and (3 Military Nursing Service (Local). The terms and conditions of service in the three services are separate. Under Army Instruction No. 14 issued on 12/3/1977 terms and conditions of service for employment of Nursing Officers for local duties are set out. Clause I provides that married nurses or nurses who are widows with encumbrances or are separated or divorced including those whose marriage has been dissolved and who have encumbrances, may be granted temporary commission, if otherwise suitable, in the military nursing service for local service only. The service so constituted is to be known as the Military Nursing Service (Local). Clause 6 provides that candidates will be appointed in the rank of Lieutenant and will not be eligible for further promotion. Clause 10 provides that they will normally be liable for service at one station only. Benefits available on superannuation are also set out. Clause 11 provides for terminal gratuity. It states that on final termination of service members of the Military Nursing Service (Local) will be eligible, subject to their service being satisfactory, to gratuity of one month's basic pay for each completed year of service at the scale drawn at the time of termination of service. There is a provision under clause 12 for disability pension and under clause 13 for dependants' pension in the case of death of a local member of the Military Nursing Service on account of an attributable cause. Since all appointees under the Military Nursing Service (Local) are appointed in the rank of Lieutenant and they are not eligible for promotion, they retire as Lieutenants. It is an accepted position that the retirement age for Lieutenants is 55 years. This is the reason why the respondent was retired at the age of 55 years. The terms and conditions of service as spelt out in Army Instruction No. 14 do not provide for payment of any pension on retirement. There is a provision 'for payment of gratuity as already set out. However, the appellants appointed a study team to recommend improvements in service conditions of Military Nursing Service (Local) ,including their pensionary benefits. Pursuant to the recommendations of this committee certain pensionary benefits were extended to Military Nursing Service (Local) from 1/10/1983 to those persons who retire after 1/10/1983.

(3.) The respondent contended that the denial of the benefit of pension to the respondent was discriminatory and that although she retired in 1981, she should also be given pensionary benefits in the same manner as those who had retired after 1/10/1983. On the question of the age of retirement, though the respondent contended that Army Instruction No. 14 does not contain the age of retirement, the position relating to the age of retirement is unambiguous. All appointees in this service hold the rank of Lieutenant with no eligibility for further promotion. Therefore, they must retire at the same age as a Lieutenant, which is at 55. The contention of the respondent that it is discriminatory not to have prescribed the same age of retirement for her as is prescribed for other military nursing services cannot be accepted. The terms and conditions attaching to the other two military nursing services are different from the terms and conditions attaching to Military Nursing Service (Local). One major difference lies in the fact that those who are appointed to Military Nursing Service (Local) are not liable to transfer and that married women or widows with children can avail of this service without any problem. We are told that under the terms and conditions of service of the other two military nursing services the person appointed is liable to be transferred from one place to another and that there are also restrictions on married women or women with children being appointed to the other two services. If different nursing services are constituted under separate army instructions carrying their own separate terms and conditions of service, one cannot complain of discrimination if the ages of retirement prescribed under these different services are different. Each will be governed by its own rules and regulations. The respondent is, therefore, not justified in claiming that she has been discriminated against because she has retired at the age of 55.