IMPORTANT POINTS
1. 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, as each will be governed by its own rules and regulations.
2. Fresh financial benefits conferred on service employees based on proper estimates 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 or unreasonable.

Headnote:(i) Military Service-Army Instruction No. 14 issued on 12.3.1977-Military Nursing Service (Local)-Terms and conditions-Age of superannuation-Candidates are appointed in rank of lieutenant-No eligibility for further promotion-Liability for service at one station only-Retirement age of 55 years-Challenged as discriminatory-Terms and conditions attached to other two military nursing services being different-When ages of retirement prescribed under these different services being different-Plea of discrimination in prescribing age of 50 years in Military Nursing Service (Local) liable to be dismissed.
       Held : 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 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. (Para 3)
       (ii) Military Service-Pension-Army Instruction No. 14 issued on 12.3.1977-Military Nursing Service (Local)-Pensionary benefits conferred for first time to all those who retired on or after 1.10.1983-Respondent retired in 1981-Whether she is entitled to pension?-(No), respondent had not challenged cut off date as arbitrary-Held, on facts that cut off date had a logical nexus with decision to grant these benefits on basis of report of study team.
       Held : The respondent 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 pensionary 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 estimates 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 data cannot be considered as arbitrary or unreasonable. (Para 5)
       (iii) Service Law-Pension Scheme-Fresh financial benefits-Based on proper estimates of financial outlay-Benefit conferred from a given date-Not arbitrary or unreasonable-Choice of a date as basis of classification cannot be dubbed as arbitrary unless it is capricious or whimsical. (Paras 4 & 5)

JUDGMENT

Mrs. Sujata V. Manohar, J.-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 6th or February, 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 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, it 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 to 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 retried 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 for gratuity and already set out. However, the appellants appointed a study team to recommend improvements in service condition of Military Nursing Service (Local), including their pensionary 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.

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 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 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

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1997 Supreme(SC) 1073

Cases Referred (5)