Union of India & Ors Vs. Lieut (Mrs.)
E.Iacats  INSC 650 (6 August 1997)
V. MANOHAR, G.B. PATTANAIK
6TH DAY OF AUGUST, 1997 Present:
Mrs.Justice Sujata V.Manohar Hon'ble Mr.Justice M.Jagannadha Rao N.N.Goswami, Sr.Adv.,
Ms. Binu Tamta and Mrs. Anil Katiyar, Advs. With him for the appellants.
Adv. for Abhijat P. Medh, Adv. for the Respondent.
following Judgment of the Court was delivered:
V. Manohar. J.
to an advertisement the respondent applied for the post of a Nursing Sister (Lioutenant)
in the Military Nursing Service for local service. She was selected and joined
the post on 6th of February. 1959. On attaining the ago 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 pensionery
benefits on retirement. This petition has been allowed. Hence the appellants
have filed the present appeal.
are three different types of Military Nursing Service governed by their own
different rules. These are -- (1) Military Nursing Service (Regular) (2)
Military Nursing Service (Civilian) and (3) Military Nursing Service (Local).
terms and conditions of service in the three services are separate. Under Army
Instruction No. 14 issued on 12th of March. 1977 terms and conditions of
service for employment of Nursing Officers for local duties are set out.
1 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 for rank of Lieutenant and will not
be eligible for further promotion.
10 provides that they will normally be liable for service at one station only.
Benefits available on superannuation are also set out. Clause it provides for
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 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 and 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.
is a provision for payment of gratuity as already set out. However. the appellant
appointed a study team to recommend improvements in service condition of
Military Nursing Service (Local), including their pensionery benefits. Pursuant
to the recommendations of this committee certain pensionery benefits were
extended to Military Nursing Service (Local) from 1st October, 1983 to those persons who retire after 1st of October, 1983.
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 pensionery benefits in the same manner as those who had retired
after 1st of October, 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 unambiguous.
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,
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 transfer 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 saparate
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 service 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
next question relates to payment of pension. Under Army Instruction No. 14
which was in force at the material time, the respondent, either on the date of
her appointment or on the date of her retirement, or at any time during her
service, did not have the benefit of pension on retirement.
terms and conditions of service were known to her at the time when she joined
the service. At the time of joining service she has signed an agreement to
abide by the Rules and Regulations governing Military Nursing Service (Local)
from time to time. She has claimed that pensionery benefits which were
conferred for the first time to all those who retired on or after 1st October 1983 should be given to her although she
retired much prior to that date. Although she has not challenged the cut off
date as arbitrary, reliance in this connections is placed by her on the
decision in the 305). This decision has been subsequently explained and
distinguished in a number of cases. In the case Dr. (Mrs.) Sushma Sharma etc.
etc. v. State of Rajasthan & Ors. (AIR 1985 SC 1367 at 1379) this Court
cited with approval the observations of this Court in Union of India & Anr.
Etc. V. Parameswaran Match Works Ltd. (AIR 1974 SC 2349) to the effect that the
choice of date as a basis of classification cannot always be dubbed as
arbitrary unless it is capricious or whimsical. In the case of State of West
Bengal & Ors. v. Ratan Behari Dey & Ors. (1993 (4) SCC 62) this court
considered the pension scheme introduced by the Calcutta Municipal Corporation
from 1.4.1977. It upheld the validity of the cut-off date. Nakara's case
(supra) was distinguished on the ground that in Nakara's case by an artificial
cut-off date, distinction was sought by the same rules. However, when a pension
schema is introduced from a given date. there are two sets of employees who are
governed by two different sets of rules. They cannot be treated as similarly
cut-off date was retrospective. this Court also examined the reasonableness of
this retrospective operation.
found the cut-off date to be reasonable, it being based upon the date of
appointment of the pay Commission. In a recent decision in the case of
Commander, Head Quarter, Calcutta & Ors. V. Capt. Biplabendra Chanda (1997
(1) SCC 208) new rules reducing the minimum qualifying service for pension came
into affect from 1.1.1986. The respondent who had retired prior to this date
was not granted pension under the old rules as he did not qualify for pension
under those rules. This Court, distinguishing Nakara's case (supra), held that
he cannot be retrospectively made eligible under the new rules. Pensioners
under the old rules and pensioners under the new rules are not similarly
situated. Each set of retiring employees will be governed by their own rules in
force when they retire.
respondent, therefore, cannot claim the benefit of a scheme which came into
operation from a date subsequent to the date of her retirement. The respondent
also did not contend either before the High Court or in the grounds of appeal
before us that a cut-off date for grant of pensionery benefits is arbitrary or
unreasonable. Even otherwise in view of the fact that a study team was first
appointed and pursuant to its report certain benefits were given after
considering the report of the study group would show that the cut-off date had
a logical nexus with the decision to grant these benefits on the basis of the
report of the study team. fresh financial benefits which are conferred also
have to be based on proper astimates of financial outlay required. Bearing in
mind all relevant factors, if such a benefit is conferred from a given date,
such conferment of benefits from a given date cannot be considered as arbitrary
appeal is, therefore, allowed. The judgment and order of the High Court is set
aside and the writ petition filed before the High Court is dismissed. There
will, however, be no order as to costs.