TA No.

211/2010
1

IN THE ARMED FORCES TRIBUNAL, PRINCIPAL BENCH AT

NEW DELHI

T.A. No. 211/2010

[W.P. (C) No. 4485/05 of Delhi High Court]

Maj Gen Mrs. Usha Sikdar .........Petitioner

Versus

Union of India & Ors. .......Respondents

For petitioner: Sh.P.D.P. Deo, Advocate.

For respondents: Col. (Retd.) R. Balasubramanian, Advocate.

CORAM:

HON’BLE MR. JUSTICE A.K. MATHUR, CHAIRPERSON.

HON’BLE LT. GEN. M.L. NAIDU, MEMBER.

ORDER
30.03.2010

1. The present petition has been transferred from

Hon‟ble Delhi High Court to this Tribunal on its formation.

2. Petitioner by this petition has prayed that respondents

may be directed to withdraw their letter dated 30th April, 2004 and

restore her status and other Nursing Officers at par with all other

officers of the Indian Army as per laid down orders, rules and
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regulations of the Indian Armed Forces. She also prayed that

respondents may be directed to restore all the privileges

enshrined in the Army Act, Army Rules, and Army

Order/Regulation for the Army as applicable to various rank. It is

also prayed that respondents may be directed to allow her and all

Brigadiers of the Military Nursing Services to use star plates and

flag on their official vehicle corresponding to their ranks when

using the official staff car while in service which is authorised to

them as per the rules and regulations of the Indian Armed Forces.

3. Brief facts which are relevant for the disposal of

present petition are that petitioner was commissioned/appointed

as Lieutenant in the Military Nursing Services (in short MNS) on

21.09.1967. She was appointed under the authority of President

of India and same was presented in the Gazette of India dated

24.07.1968. She continued to serve in Armed Forces and with

passage of time she reached to the position of Major General on

01.07.2003 and she was appointed as Additional Director General

of Military Nursing Services (in short ADGMNS). On her

promotion as Major General and appointed as ADGMNS, she

made her official tour to Indian Naval Hospital Ship (in short
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INHS), Asvini, Mumbai. The visit was carried out on 17th and 18th

August, 2003. During visit to INHS, Asvini, Mumbai, she was

humiliated and insulted by the Commanding Officer of the

hospital, Rear Admiral V.K. Singh by unceremoniously denying

her authorised staff car i.e. a car with star plate signifying her rank

and a flag signifying her appointment. The matter was reported

to the DGAFMS and DGMS(Army) immediately after the

conclusion of her visit and representation was put up to the

DGAFMS and senior Colonel Commandant, Army Headquarters

vide letter dated 05.09.2003 but no reply has been given to her

representation. The Adjutant General‟s Branch, Army

Headquarters issued a letter dated 28.04.2004, labelling

unfounded and baseless allegations made by her, in addition to

that she was warned without any statutory authority, not to display

stars and fly flag on her official vehicle which is entitled to her

being a commissioned officer. She had no other option than to

implement the directions of Adjutant General‟s Branch and she

had to discontinue displaying star plates and flag on her official

vehicle. As a sequel to this harassment, Adjutant General‟s

Branch again issued a letter on 30.04.2004 and disseminated the

same to all concerned unit. The highlights of the order issued by

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the Adjutant General‟s Branch are that Indian Military Nursing

Officers are not covered under the definition of „Officer‟ as given in

Section of Army Act 3(XVIII) Army Act, 1950 and it is also

mentioned that MNS was raised vide Indian Military Nursing

Ordinance 1943, in that, MNS officers are appointed as „officers of

Indian Military Nursing Service‟ implying that officers of MNS are

not part of the Armed Forces/Regular Army and therefore, not at

par with rest of the officers of the Indian Army and it was finally

ordered that under the provisions of existing Army

orders/Regulations for the Army, Nursing officers are not

authorized to fly flags or display star plates. Aggrieved by this

discrimination and denying the status of officers of Indian Army

she sought personal interview with the Chief of Army Staff and the

Chief of Army Staff assured her that all grievances of the MNS

officers would be looked into and all the privileges which had been

arbitrarily withdrawn would be restored. However, the assurance

given by the Chief of Army Staff was not adhered to. Petitioner

again filed representation to the Chief of Army Staff on 30.06.2004

drawing his attention to his assurances. Ultimately, having failed

at all levels, she was driven to file the present writ petition before
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the Hon'ble Delhi High Court with aforesaid reliefs and the same

was transferred to this Tribunal on its formation.

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.

5. We have heard learned counsel for the parties and

bestowed our best of consideration.

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
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down the Constitution of the Indian Military Nursing Service which

reads as under :-

“3. Constitution of Indian Military Nursing

Service.-- (1) there shall be raised and maintained, in
the manner hereinafter provided, as part of the armed
forces of the $$ (Union) and for service with @@@
(the Indian) Military forces an auxiliary force which
shall be designated the Military Nursing Services
(India).”

7. As per Section 3 the force recruited under the Military

Nursing Service shall be part of the Armed Forces and it is an

auxiliary force, which shall be designated the Military Nursing

Services (India).

8. Section 5 says about the members of commissioned

rank which reads as under :-

“5. Members to be of commissioned rank—All

members of the $ (Indian Military Nursing Service)
shall be of commissioned rank and shall be appointed
as officers of the $ (Indian Military Nursing Service)
by the Central Government by notification in the
Official Gazette.”

9. Section 9 says about application of Indian Army Act,

1911 to members of Indian Military Nursing Service which reads

as under:-
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“9. Application of Army Act and Indian Army

Act, 1911, to members of Indian Military Nursing, to
members of Indian Military Nursing Service.—(1)
The provisions of the Indian Army Act, 1911, shall, to
such extent and subject to such adaptations and
modifications as may be prescribed, apply to members
of the Indian Military Nursing Service as they apply to
Indian commissioned officers, unless they are clearly
inapplicable to women.”

10. Section 10 provides empowers the Central

Government to frame rules to carry out the purposes of this

Ordinance and Section 11 further empowers the Chief of Army

Staff to make regulations consistent with this Ordinance and the

rules made thereunder, providing for all matters to be laid down by

regulations, and generally for all details connected with the

organisation, pay, allowances, duties, discipline, training, clothing,

equipment and leave of members of the Indian Military Nursing

Service.

11. In exercise of power under section 10, Military Nursing

Service (India) Rules, 1944 were framed. In that the definition

given in Rule 2 (c) says “the appropriate Act” means in relation to

an officer of the Nursing Services the Act, whether the Army Act

(44 & 45 Vict. C. 58) or the Indian Army Act, 1911 (VIII of 1911),

as applicable to her by virtue of section 9 of the Ordinance and

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these Rules. The expression “Commanding Officer” in the

provisions of the appropriate Act relating to courts-martial and to

the powers of a Commanding Officer and in these Rules means

the military officer in command of the hospital or other unit in

which she is serving or to which she is attached. The expression

“regimental” in the Army Act and in these Rules means connected

with the Nursing Services or any corps or other sub-division

thereof.

12. Rule 3 reads „application of appropriate Acts‟. It is

relevant for all purposes which read as under:-

“3. Application of appropriate Act.—In so far as

they are capable of such application but subject
to the provisions of these Rules—
(a) the provisions of the Indian Army Act, 1911, shall
apply to officers of the Nursing Services
mentioned in Sub-section (1) of section 9 of the
Ordinance, as if they were Indian commissioned
officers, and
(b) the provisions of the Army Act shall apply to
officers of the Nursing Services mentioned in
Sub-section (2) of the said section, as if they
were officers of the Regular Forces;
and reference in the said Acts to military ranks shall, in
relation to the Nursing Services, be construed as
references to the corresponding ranks laid down in the
Regulations made under the Ordinance for officers of
the Nursing Services.”
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13. So far as application of appropriate Act is concerned,

the provisions of the Indian Army Act, 1911 shall apply to the

officers of the Nursing Services mentioned in sub-section (1) of

Section 9 of the Ordinance, as if they were Indian commissioned

officers and the provisions of the Army Act shall apply to officers

of the Nursing Services mentioned in Sub-section (2) of the said

section, as if they were officers of the Regular Forces.

14. Rule 5 says about modification of the Army Act. It

says the provisions of sections 4 to 41 of the Army Act, only

sections 15 and 40 shall apply to offences committed by officers

of the Nursing Services referred to in sub-section (2) of section 9

of the Ordinance and those sections shall have effect in relation to

such offences as if they were modified as follows:-

(i) Section 15—“An officer who absents herself

without leave commits an offence against this
Act”.

15. Further procedure has been given how the

punishment can be awarded and about summary of punishment

and courts martial.

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16. In this background the recruitment of the nursing staff

is undertaken and by virtue of provisions of the Ordinance, 1943

and rules framed thereunder. One important aspect emerges is

that Military Nursing Services are part of the Indian Armed Forces

and has to be construed as an “auxiliary force” of the Indian

Armed Forces and they are fictionally treated as an Indian

commissioned officers and they are also treated as part of the

regular forces. From this, what emerges is that they will have the

same status and same entitlements as is applicable to the officers

of the Indian Armed Forces. Now, this is amply clear by the

various orders issued from time to time i.e. with regard to relative

Rank mentioned in clause (b) of para 733 of Chapter XVII of

Regulations for the Army and same reads as under :-

“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.”

17. Similarly is the Army Order 353/73 under the heading

of „Saluting MNS Officers‟. The relevant portion reads as under :-

“AO 353/73 Saluting—MNS Officers

Military Nursing Service Officers are required to salute
and are entitled to salutes in the same manner as
other commissioned officers.”
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18. Similarly with regard to the use of National Flag, this

has been given as per the ranks of the officers and same will be

applicable to the petitioner also who has equivalent rank to the

members of the Indian Army.

19. From these provisions of the Acts, Rules and the

Military Orders issued from time to time leave no manner of doubt.

Though petitioner was recruited as per Indian Military Nursing

Ordinance, 1943, she is members of the Military Nursing Service

which is an “auxiliary force” and part of the Indian Armed Forces

and she has also been equated with the same rank and as per the

rank she is authorised to all entitlements which are admissible to

regularly recruited commissioned officers of the Armed Forces.

20. Learned counsel for the respondents has seriously

contested the position and submitted that despite all this,

petitioner was not recruited under the Army Act, 1950 and she

cannot be treated to be an officer as defined under Section of

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Army Act 3 (XVIII). Section of Army Act 3 (XVIII) defines officers

which reads as under :-

“Officer means a person commissioned, gazetted or in

pay as an officer in the Regular Army, and includes:-
(a) an officer of the Indian Reserve forces.
(b) an office holding a commission in the Territorial
Army granted by the President with designation
of rank corresponding to that of an officer of the
Regular Army who is for the time being subject
to this Act.
(c) an officer of the Army in India Reserve of
Officers who is for the time being subject to this
Act.
(d) an officer of the Indian Regular Reserve of
Officers who is for the time being subject to this
Act.
(e) (Omitted)
(f) in relation to a person subject to this Act when
serving under such conditions as may be
prescribed an officer of the Navy or Air Force.”

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. But for all purposes she will be treated as a regular

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member of the Indian Armed Forces and she will be authorised to

the entitlements which are commensurate to the concerned rank.

Simply by a technical objection as per Section of Army Act 3

(XVIII), she cannot be treated not to be a part of Indian Armed

Forces or commissioned officer under the Army Act, that will not

distract from the fact that for all purposes she will be treated at par

with the officers of the Indian Armed Forces. The objection that

she does not fall in Section of Army Act 3 (XVIII) makes no

difference. Once she has been given a status of regularly

recruited officers of Indian Army and she has been specifically as

per Rule 3 given the status of Indian commissioned officer and

officers of the regular force, practically she falls under the

extended definition of an officer of the Indian Armed Forces also.

Simply because she has not been recruited under the Army Act,

that will not in any way reduce her status from commissioned

officer of regular Indian Army. Technically she may not be given

status under the definition of Section of Army Act 3 (XVIII), but

notionally she will be treated to be officer of Indian Armed Forces

and commissioned officer of the Indian Armed Forces. Hence, it

is clear that she is a regular commissioned officer of the Indian

Armed Forces and she is authorised to all entitlements and

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benefits which a regular officer entitled under the Army Act, 1950

and rules framed thereunder and regulations issued from time to

time. Therefore, we have no hesitation to declare that the

petitioner is entitled to be treated as a commissioned officer and

as a part of the regular force, and she is authorised to all

entitlements which are authorised to the regular recruited army

officers of the Indian Army. In this background, order issued on

30th April, 2004 is quashed and respondents are directed to treat

all the commissioned officers of Military Nursing Service as a part

of the regular force of the Indian Armed Forces and extend all

entitlements which are commensurate with the rank as equal to

commissioned officers of Indian Army to her.

22. Petition is accordingly allowed. No order as to costs.

A.K. MATHUR
(Chairperson)

M.L. NAIDU
(Member)
New Delhi
March 30, 2010.