Former Military Nurses Considered 'Ex-Servicemen' For Govt Employment: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that a former military nursing officer will be covered within the definition of 'ex-serviceman' in terms of Punjab Recruitment of Ex-servicemen Rules, 1982.

A military nursing officer who was governed under the Military Nursing Service Ordinance, 1943, was appointed for short service commission for a period of five years. Later, when she applied for a post in Punjab State Civil Services Combined Competitive Exam, 2020 under 'Ex-Servicemen' category, her candidature was declined.

Perusing the Clause 2(c)(iv) of 1982 Rules, a division bench of former Acting Chief Justice Ritu Bahri and Justice Aman Chaudhary said, "Bare reading of the aforesaid provision expressis verbis reveals that, the sole criterion to fall within the definition being in receipt of gratuity upon release from service, which the appellant did, a fact that remained incontrovertible."

This coupled with her appointment having been made under the Ordinance, service being governed by the Army Act, 1950 and the Gazette Notification depicting 'Military Nursing Service under the heading of Regular Army' "leaves no manner of doubt that she would be covered under the category of "ex-serviceman' and thus, entitled to be considered in the said recruitment," the bench added.

The Court was hearing Letters Patent Appeal against its single bench order wherein the Court held that the military nursing officer will not fall within the definition of 'ex-serviceman' in terms of Punjab Recruitment of Ex-servicemen Rules, 1982.

The appellant's candidature was rejected after she applied for a post in Punjab State Civil Services Combined Competitive Exam, 2020 under 'Ex-Servicemen' category.

The Court considered the question, whether the appellant, who was a Commissioned Officer of the Military Nursing Service, governed by the Military Nursing Service Ordinance, 1943, fell within the definition of 'ex-serviceman' in terms of Punjab Recruitment of Ex-servicemen Rules, 1982.

Justice Chaudhary speaking for the bench noted that, "Indian Military Nursing Service", was constituted in 1943 and raised and maintained as a part of the Armed Forces of the Union and for service with Military Forces.

The members of the service shall be commissioned rank, appointed by the Central Government and liable for service only with forces and persons subject to the Army Act, 1950. They shall be bound to undergo training and in such a manner, so as to perform the duties in connection with Indian Military Forces, as laid down by the Regulations, the Court added.

It rejected the State's argument that the eligibility conditions and the benefits to be granted regarding reservations etc. is the prerogative of the employer.

"The submission raised by the learned State counsel as regards reliance on a communication received from Kendriya Sainik Board, Ministry of Defence, Government of India, New Delhi to Director, Rajya Sainik Board, Punjab, Chandigarh is concerned, cannot be countenanced by us, for the sole reason that pertinently, the eligibility conditions and the benefits to be granted regarding reservations etc. is the prerogative of the employer, which in the present case is not the Central Government but the Government of Punjab, which has notified its own 1982 Rules framed in exercise of powers conferred under proviso to Article 309 read with Articles 234 and 318 of the Constitution of India," the Court said.

The same cannot, as per settled law, be overridden by way of administrative instructions of Punjab Government, much less by those of the Central Government, it added.

In the light of the above, the Court allowed the plea stating that, "The candidature of the appellant, if found to be in merit, appointment be granted to her forthwith. However, she will be entitled only to the notional benefits of service."

Advocates Navdeep Singh and Roopan Atwal appeared for the appellant.

Saurav Verma, Additional Advocate General, Punjab, for respondents No. 1 and 2.

 Shivoy Dhir, Senior Panel Counsel, for respondent No. 3-Union of India.

 M.S. Doabia, Advocate, for respondent No. 4.

Citation: 2024 LiveLaw (PH) 34

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