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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: LIEUT (MRS.) E.IACATS

DATE OF JUDGMENT:       06/08/1997

BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                 THE 6TH DAY OF AUGUST, 1997 Present:             Hon’ble 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. Aseem Mehrotra,  Adv. for  Abhijat P.  Medh,  Adv.  for  the Respondent.                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T Mrs. Sujata V. Manohar. J.      Pursuant 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.      There 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). The 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. Clause 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

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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. Clause 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. There 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.      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 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. 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,  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 55.      The next  question relates to payment of pension. Under

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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. The 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 case of  D.S. Nakara and Ors. Vs. Union of India (1983 1 SCC 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 situated. As the  cut-off date  was  retrospective.  this  Court  also examined the reasonableness of this retrospective operation. It 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.      The 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

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or unreasonable.      The 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.