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CASE NO.: Transfer Case (civil)  38 of 2002

PETITIONER: Jasbir Kaur & Ors.                                               

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 13/11/2003

BENCH: K.G.Balakrishnan & B.N.Srikrishna

JUDGMENT: J U D G M E N T With

Transfer Case (C) Nos.39-42 of 2002 Transfer Case (C) No.46 of 2002, Transfer Case(C) Nos.54-56 of 2002, Transfer Case(C) No.70 of 2002, Special Leave Petition (Civil) Nos.12904-12909 of 2002, Special Leave Petition (Civil) No.14275 of 2002 and Special Leave Petition (Civil) Nos.14487 of 2002,

SRIKRISHNA, J.

The only issue thrown up by this group of ca    ses is : ’What should be the uniform to be worn by members  of the Military Nursing Services?’  Persistence of parties and  ingenuity  of counsel  have succeeded in giving a constitutional  moment to an issue which is but an one of administration of an  auxiliary  branch of the Armed Services.   

A force called Indian Military Nursing Service was  constituted as part of the armed forces of the Union of India by  Ordinance No.XXX of 1943 titled The Indian Military Nursing  Service Ordinance, 1943, which was brought into force on 15th  September, 1943. Section 3 of the said Ordinance declares that  there shall be raised and maintained in the manner provided in the  Ordinance "as part of the armed forces of the Union and for service  with the Indian Military forces" an auxiliary force which shall be  designated as Indian Military Nursing Service. The Ordinance  prescribes the conditions of eligibility for appointment in section 6.  Section 9  of the Ordinance provides that 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.  

Section 10 of the said Ordinance empowers the Central  Government to make Rules to carry out  the purposes of the  ordinance and section 11 vests in The Chief of the Army Staff the  power to make regulations providing for all matters to be laid  down  and generally for all detail  connected with the organisation,  pay allowances, duties, discipline, training, clothing, equipment  and leave of members of the Indian Military Nursing Service.

In exercise of the powers vested in him The Chief of Army  Staff prescribed the appropriate uniform to be worn by the

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members of the Indian Military Nursing  Service.  The prescribed  uniforms were changed from time to time taking into account the  advice of special committees appointed by The Chief of the Army  Staff to periodically review the issue.  

Despite the fact that the Indian Military Nursing Service  (hereinafter called as ’IMNS’) has been made an auxiliary force,  the members of this service are not subject to all the provisions of  the Army Act and have been treated separately while being part of       the Indian Army. By an order dated 25.1.2000 the Additional Director General  of Military Nursing Service  issued a Dress Code for members of  IMNS prescribing the Dress Code for different purposes.  We are  not concerned with the details of the prescribed uniforms for that  in no way affects the legal issue sought to be canvassed before the  Court. Nor are we really concerned with the reasons which  impelled the appropriate authority to prescribe any particular dress  as the uniform to be worn by the members of the IMNS. However,  it appears that a number of problems were faced in the hospital  environment in the wake of the dress code issued by the letter   dated 25.1.2000. These problems were brought to the notice  of  Medical Services Advisory Committee. With an intent to solve  these problems, which pertained to patient care related issues, a  decision was taken to modify the dress code by an order issued on  11.9.2001.  The said order was challenged by members of IMNS  by different writ petitions before several High Courts, inter alia, on  grounds of violation of the Fundamental Rights under Articles 14  and 21 of the Constitution.  The Bombay, Allahabad and  Karnataka High Courts dismissed such writ petitions on the ground  that no  issue pertaining to Fundamental Rights arose and  observing that the issue of prescribing uniform for the IMNS was a  matter well within the competence of the military authorities.  Some other High Courts in the meanwhile admitted similar writ  petitions and issued interim orders.  Special leave petitions were  moved against the decisions of the Allahabad, Bombay and  Karnataka High Courts in this Court. To avoid inconsistency in  judicial decisions, this Court admitted the special leave petitions  and also transferred all the pending writ petitions to itself by an  order made on 28.1.2002 in Transfer Petition (C) Nos.851-857 of  2001, which reads as follows: "We have heard learned counsel for the parties. The writ petitions mentioned  in prayer  column of these  petitions, in our opinion,  involves substantial question of law. Therefore,  it is just necessary this issue should be decided  by a single court. Taking into consideration the  importance of the issue, we think it appropriate  that these petitions should stand transferred to  this court for disposal in accordance with law. It  is so transferred.

It is pointed out that some of the High  Courts have issued interim orders in favour of  the petitioners.  If it is so, those interim orders  will continue until further orders of this Court.

Accordingly, these petitions are allowed.  The writ petitions stand transferred to this  Court.

Liberty to file additional documents."

When these petitions came up for hearing on 6th May, 2002  it was represented to this Court that the Union of India  wanted to  appoint a Review Committee to consider the question of uniform

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to be worn by the nurses in the Army.  This Court made the  following order: "Upon hearing counsels the Court  made the following order:

There shall be an interim order  maintaining status quo in regard to the  uniform of Nurses concerned in these  petitions.  Uniform they are wearing as on  today shall be continued to be worn.  If by  virtue of interim orders of the High Court or  otherwise at different places different  uniforms are being worn, same shall  continue till the disposal of these petitions.

List these matters for final disposal in  the month of September 2002. In the mean  time if the Union of India wants to appoint a  review committee to consider the question  of uniform to be worn by the Nurses in the  Army, they are free to do so and report to  this Court."

       The Union of India thereafter constituted a Committee  known as ’Military Nursing Service Dress Review Committee’  which was composed of the Director General of Medical Services  (Army), as the Chairman, and representatives from the Director  General of Armed Forces Medical Service, representative from  DGMS (Army), representative from DGMS (Navy), representative  from DGMS (Air Force), Dy. Judge Advocate General and ADG  Military Nursing service as members.  The terms of reference of  this Committee were the following: "Terms of Reference 1.      To carry out a comprehensive review of the  MNS  Dress Code from its inception to the  present dress code as promulgated vide army HQ  letter Nos:

(a)     B/70001/DGMS-4A dt. 25 Jan 2000

(b)    B/42706/AGREEMENT/CW-1 dated 11  September 2001 as amended vide our letter No.  B/42706/AGREEMENT/CW-1 dated 25 October   2001

2.      To Ascertain and deliberate upon various  issues raised by MNS against the existing dress  code so promulgated and analyse the cause of  objection to the same including the issue of  dress violations.

3.      To go into all the issues involved and  suggest a dress code, whether it be the existing  dress duly modified, or a new dress code.  The  dress code so recommended should be befitting,  serve functional requirement and be in keeping  with the ethos and requirement of the Medical  Services.

4.      To ensure that the dress code so  recommended facilitates the efficient discharge  of the primary duty of the MNS staff which is  of patient care and efficient management of

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patient wards.

5.      In consonance with the directions of the  Court it is to be ensured that there is a clear   difference and distinction in terms of dress  between the doctors and the nurses.

6.      To go into the universality of dresses as  worn by nursing staff in other major civil  hospitals, para military hospitals and where  possible nursing staff of foreign armies to draw  suitable parallels to help evolve a befitting  dress code.

7.      While making its recommendations on the  dress code the issue of any expenditure and its   financial implications thereto should be borne  in mind and recommendations made thereto.

8.      The Committee will also lay down the  channel of promulgation of the new dress code  including the recommended time frame  for its  implementation."

                The Dress Review Committee held its deliberations on 8th  and 9th July 2002 and made a report.  Though Major General P.K.  Sethi, Addl DGMNS and Brig.(Mrs.) Usha Sikdar, DDMNS  Central Command,   were members of the Committee, they  expressed their reservations with regard to the report and gave  dissenting notes.    The Dress Review Committee went into the historical  background of the constitution of the Military Nursing Service as a  separate cadre, the applicable dress regulations for the different  services and  the problems faced in the hospital environment,  which were brought to its notice.  It also took into account a  number of objections made by the IMNS questioning the  rationality and validity of the 11th September 2000 order.  The  Dress Review Committee meticulously considered the objections  and having considered various options found in favour of the  Safari Suit of soothing colour  (Beige colour) in suitable fabric  with badges of rank on shoulders to meet the seasonable  requirements of summer and winter, as the best available option.  It  also recommended that the change over should be effected within a  time frame of three months and that the cost of the recommended  dress should be borne by the Government as one time measure in  the form of an ’outfit allowance’ by obtaining necessary sanction  from the competent authority.   A copy of the Dress Review Committee report has been  placed on the record before us and learned counsel have taken us  through it.

       Learned counsel, Mr. R. Venkataramani and Mr.  M.N.Krishnamani, appearing for petitioners in different cases,  basically urge two contentions.  They contend that the prescribed  uniform violates  Articles 14 and 21 of the Constitution.   When it  was pointed out to the learned counsel that there was no question  of Article 21 being considered unless they were able to  demonstrate that the prescribed uniform was outrageous of  modesty and dignity of womanhood or that it was so inconvenient  as not to bear the onslaughts of nature, both learned counsel did  not press the contentions based on Article 21.  They however,  contended that Article 14 was violated as the uniform was intended  to discriminate against the members of the IMNS by making them

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out to be a separate class.

       In our view, the contention is entirely misconceived and  unfounded. 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.  The historical background in which  this force was established and the legal provisions applicable to it  leave no manner of doubt that notwithstanding that it is a part of  the Indian Army, IMNS  is a distinct but separate class by itself.  In  any event, whether any part of the military services should have  any uniform, and, if so, what should be the uniform, is an issue  entirely within the province of The Chief of Army Staff by reason  of Army Act, the Indian Military Nursing Act and the Regulations  made by the Chief of Army Staff by the powers derivable  therefrom.  We see no scope for application of Article 14 in such  matters, nor is any case made out therefor.

A major  grievance made on behalf of the petitioners was  that no heed was paid to their objections before the Dress Code  was finally decided.  Even if true, the contention has lost its force  presently.  When taken through the Dress Review Committee’s  Report by the learned Additional Solicitor General, we noticed that  the said Committee has meticulously applied its mind to several  objections raised by the representatives of the IMNS. Each  objection has been carefully examined and appropriate  recommendation has been made by the review committee.   

Apart from affording an opportunity of putting forth their  views in the matter, the members of IMNS could not have asked  for anything higher.  Each grievance has been carefully considered  and addressed by the Dress Review Committee, and it is for the  army authorities  to take appropriate decision. A decision such as  the one challenged before us can hardly be faulted unless on the  ground of Wednesbury principle of rationality.  In our view there is  no such irrationality in the decision of the Army Act which  requires us to interfere in exercise of our constitutional powers.  The petitions have no merit and are liable to fail.

The members of the IMNS have the glorious role model of  the ’Lady  with the Lamp’, Florence Nightingale,  who went  around on the battle field,  caring more for the patients than for her  own life. We hope that the shining example of the Lady with the  Lamp shall continue to be emulated by the members of the Indian  Military Nursing Service.   

All the petitions dismissed.   Interim orders vacated. The  respondents are at liberty to take any appropriate decision.          There shall be no order as to costs.