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Cites 5 docs
The Army Act, 1950 1
Section 3 in The Army Act, 1950 1
The Consumer Protection Act, 1986
Section 2(1) in The Army Act, 1950 1
Indian Medical Association vs V.P. Shantha & Ors on 13 November, 1995

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Andhra High Court
Lt. R.S. Rebecamma, Ex.Mns vs Zilla Sainik Welfare Officer And ... on 20 September, 2004
Equivalent citations: 2004 (6) ALD 329, 2004 (6) ALT 649
Author: V Rao
Bench: V Rao

ORDER

V.V.S. Rao, J.

1. The petitioner is a qualified and registered Nurse. She joined Indian Army in Military Nursing Service (MNS) on 7.12.1976. She relinquished the position in MNS on 2.2.1983. She claims that she served in Udhampur in State of Jammu and Kashmir and therefore she has field service which makes her eligible for additional benefits given to Army ex-Servicemen. She also claims that she has preferential right in the matter of assignment of land on discharge from MNS.

2. The petitioner applied to the District Collector, Kurnool, third respondent herein on 16.10.1985 requesting for assignment of agricultural land. The same appears to have been processed by the Mandal Revenue Officer, Kurnool, who submitted assignment proposals in favour of the petitioner in respect of the land admeasuring Acs.3.50 in S.No. 128 of Mamidalapadu Village of Kurnool District. As the land was classified as Kurnool - Kadapa Canal (KC Canal), B-Class poramboke in revenue records, the District Collector by letter dated 17.5.2002 addressed the Superintending Engineer, fourth respondent herein, to issue necessary directions to assign/lease the land in S.No. 128/5B3 in favour of the petitioner. In response thereto, fourth respondent by letter dated 9.8.2003 informed the third respondent that there is no objection to Irrigation Department to assign land in S.No. 128/5B3 duly leaving a gap for a distance of ten meters toe of the KC Canal bund. However, third respondent by endorsement dated 6.2.2004 informed the petitioner that her request for assignment of Government land in Mamidalapadu Village is rejected as she is not eligible for assignment of Government land under ex-Servicemen quota as reported by the Director of Sainik Welfare, vide his letter dated 17.12.2003. Therefore, the petitioner filed the present Writ Petition seeking a Writ of Mandamus declaring the action of the respondents in not assigning the land Acs.3.50 in S.No. 128/5B3 of Mamidalapadu Village as illegal and arbitrary and for consequential direction to respondents to assign the said land to the petitioner.

3. First respondent; Zilla Sainik Welfare Officer, Kurnool, filed a counter-affidavit on behalf of the Respondents 1 to 3. The averments therein, in brief, are as follows. The petitioner served Army as MNS with effect from 7.12.1976 to 20.2.1983 and applied for assignment of agricultural land on 16.10.1985. As per Paragraph 7 of G.O. Ms. No. 743, dated 30.4.1963 ex-Servicemen have to apply for assignment of land within twelve months from the date of their release from service. But, the petitioner applied after lapse of two years eight months and therefore her application is in violation of guidelines in G.O. Ms. No. 743, dated 30.4.1963. First respondent is competent to verify the bona fides of ex-Servicemen and make recommendation to the District Collector. As per G.O. Ms. No. 743, dated 30.4.1963, read with Memo No. 423/RS & SD/88-1, dated 28.5.1988, Junior Commissioned Officers are not eligible for assignment of agricultural land. The pay scales of MNS Officers are higher than that of Junior Commissioned Officers though their pay scales are little less than the salaries of the Commissioned Officers. The petitioner worked as MNS Officer and therefore she is not eligible for assignment of agricultural land. The petitioner after retirement from MNS is working as Head Nurse in Government General Hospital, Kurnool and therefore she is not eligible under G.O. Ms. No. 743, dated 30.4.1963! The Director General, Resettlement in Ministry of Defence or the Director General, Kendriya Sainik Board has nothing to do with the assignment of land to ex-Servicemen and it is only the State Government to decide eligibility criteria for assignment of land to ex-Servicemen. Though rule nisi issued by this Court on 17.6.2004 is served on the fifth respondent, who is represented by learned Additional Central Government Standing Counsel, no counter-affidavit is filed on behalf of fifth respondent.

4. The petitioner has filed a reply affidavit denying various allegations made in the counter-affidavit filed on behalf of Respondents 1 to 3. She states that the District Collector is President of Zilla Sainik Welfare Board as well as assigning authority. He has already accepted the application of the petitioner for assignment and condoned the delay in making such application. The Government Orders in G.O. Ms. No. 743, dated 30.4.1963 and G.O. Ms. No. 681, dated 18.4.1964, which were issued pursuant to assignment policy of the Government of India as communicated in G.O. Ms. No. 1835, dated 24.11.1962, are redundant and obsolete as they were issued during national emergency owing to unprovoked Chinese Aggression. Zilla Sainik Welfare Officer is entrusted with the duty of verifying the bona fides of ex-Servicemen who claim benefit and he is not competent to decide the eligibility or otherwise of the ex-Servicemen. As per the definition of the ex-Servicemen, the eligibility of the person for the said status will be governed by definition in vogue at the time of discharge of a person and will not be affected by the changes from the definition subsequent to discharge of such ex-Servicemen. The petitioner was discharged in 1983 when she was treated as ex-Servicemen and the subsequent change in the policy of the Government of Andhra Pradesh in 1992 cannot deny the status of ex-Servicemen of the petitioner. The mere employment of the petitioner as Head Nurse does not disentitle her for the benefits given to ex-Servicemen. As per Kendriya Sainik Board, petitioner is eligible for status of ex-Serviceman and therefore she is entitled for all the benefits and her claim for assignment of land cannot be denied.

5. Lieutenant (Mrs.) R.S. Rebecamma appeared 'in-person' and made submissions to the following effect. The Collector initially agreed to assign Acs.3.50 of land to the petitioner and also obtained necessary permission from the Department of Irrigation. However, after receiving the letter dated 17.12.2003 of the third respondent addressed to the Government of Andhra Pradesh, the District Collector without applying mind illegally rejected the request of the petitioner for assignment of land in Mamidalapadu Village. It is her submission that though she joined MNS temporarily as Lieutenant, she has to be treated as ex-Serviceman and conferred with all benefits that are given to ex-Serviceman like Scholarship to the children of ex-Servicemen, provision of reservation in employment and education, and assignment of land by the Government. She strenuously contends that G.O. Ms. No. 743, dated 30.4.1964 and G.O. Ms. No. 681, dated 18.4.1964 have no application insofar as the ex-Servicemen, who did not participate in war during Chinese Aggression in 1962. The said G.Os are applicable only in respect of those Army Jawans who discharged heavy responsibilities during the unprovoked aggression by China. Secondly, she placed strong reliance on communication from the Director (S&R) in the office of the Director General Resettlement, Ministry of Defence dated 26.9.2003 addressed to second respondent, it is opined that prima facie the petitioner is eligible for ex-Serviceman status and resultant benefits provided by the Central Government and the State Governments and that her representation for allotment of land may be considered in accordance with the policy of the State Government. She also placed strong reliance on Chapter-II of the book entitled "Guide to Service Personnel, ex-Servicemen, Widows and Dependents on Benefits and Concessions provided by the Central Government and State Governments" 2001. The said compilation is published by Kendriya Sainik Board, fifth respondent herein. Chapter-II of the said compilation deals with definition of ex-Serviceman. It is her submission that as per the said definition, any person, who has served in any rank for a period of not less than six months has to be treated as ex-Serviceman and confer benefits.

6. Learned Government Pleader for Revenue (Assignment) submits that the Government of Andhra Pradesh formulated a general policy of assigning agricultural lands to discharged/retired Army Jawans domiciled in Andhra Pradesh and that under the said policy, an Officer of Army is not entitled for any assignment. She submits that as the petitioner served MNS as Lieutenant, the District Collector was justified in rejecting assignment.

7. From the pleadings and rival submissions, two questions would fall for consideration.

(i) Whether Lieutenant (Mrs.) R.S. Rebecamma, of MNS is not to be treated as ex-Serviceman ?

(ii) Whether a person in Army of the rank of Lieutenant serving in Nursing Services is entitled for all the benefits conferred by Central Government and State Governments including assignment of agricultural land ?

In Re Points (i) and (ii)

8. It would be convenient to consider both points together as some aspects are common. Military Nursing Services were raised pursuant to Military Nursing Services (India) Ordinance, 1943. In exercise of powers under Section 10 of the said Ordinance, the Central Government made Military Nursing Services (India) Rules, 1944 (MNS Rules). Rule 2(1)(b) defines "Nursing Services" means Military Nursing Services raised pursuant to the Ordinance. The expression "Commanding Officer" as per Sub-rule (2) of Rule 2 means military officer in command of the hospital or other unit in which such Commanding Officer of Nursing Services is working. As per Rule 3, the Army Act, as modified by Rules shall. apply to Officers of the Nursing Services. To what extent all the provisions of the Army Act would apply to Army Nursing Services depends on the fact situation. Nonetheless, Section 3 of the Army Act, 1950 is applicable. Therefore, it is necessary to refer the expressions "Junior Commissioned Officer", "Non-Commissioned Officer", "Officer", "Superior Officer", and "Warrant Officer" as defined as under:

3(xii) "Junior Commissioned Officer" means a person commissioned, gazetted or in pay as a Junior Commissioned Officer in the regular Army or the Indian Reserve Forces, and includes a person holding a junior commission in the Indian Supplementary Reserve Forces, or the Territorial Army who is for the time being subject to this Act;

3(xv) "Non-commissioned Officer" means a person holding a non-commissioned rank or an acting non-commissioned rank in the regular Army or the Indian Reserve Forces, and includes a Non-Commissioned Officer or Acting Non-Commissioned Officer of the Indian Supplementary Reserve Forces or the Territorial Army, who is for the time being subject to this Act;

3(xviii) "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 officer 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 Indian 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)...............

(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.

3(xxiii) "Superior Officer", when used in relation to a person subject to this Act, includes a Junior Commissioned Officer, warrant officer and a Non-Commissioned Officer, and, as regards persons placed under his orders, an Officer, Warrant Officer, Petty Officer and Non-Commissioned Officer of the Navy or Air Force;

3(xxiv) "Warrant Officer" means a person appointed, gazetted or in pay as a Warrant Officer of the regular Army or of the Indian Reserve Forces, and includes a Warrant Officer of the Indian Supplementary. Reserve Forces or of the Territorial Army who is for the time being subject to this Act;

9. A reading of the definition of the expression "Officer" would show that it contains exclusive clause and inclusive clause. Under inclusionary part, Commissioned and Gazetted Officer in regular Army including officer of Indian Reserve Forces, officer in Territorial Army are alone treated as Officers of the Army. The second part of the definition contains exclusionary clause as per which Junior Commissioned Officers, Warrant Officers and Petty Officers or Non-Commissioned Officers are not treated as officers of regular Army. The term "Regular Army" is defined in Section 3(xxi) to mean Officers, Junior Commissioned Officers, Warrant Officers, Non-Commissioned Officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise are liable to render military service to the Union. In this connection a reference may be made to decision of the Supreme Court in Indian Medical Association v. V.S. Santha, . In the said case, the question before the Supreme Court was whether a medical practitioner can be regarded as rendering 'service' under Section 2(1)(o) of the Consumer Act. It was inter alia contended on behalf of the IMA that the definition of 'service' does not take in its fold the medical service. The Supreme Court analysed the definition of service in Section 2(1)(o) of the Consumer Act as under:

The definition of 'service' in Section 2(1)(o) of the Consumer Act can be split up into three parts - the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.

10. Therefore, on a true construction, it must be held that though the Officers, Junior Commissioned Officers, Warrant Officers, Non-Commissioned Officers and other enrolled persons are treated as forming part of Indian Army, not all of them are treated as "Army Officers". Only Gazetted and Commissioned Officers are treated as "officers" for the purpose of the Army Act. The rank or grade of a person serving Indian Army is not a deciding factor. In the present case, it is not the case of the respondents that the petitioner falls within the inclusive part of the definition of officer as defined under Rule 3(xviii). Therefore, she certainly falls within exclusion part, as she is a Non-Commissioned Officer who joined the MNS in 1976 and relinquished her post in 1983. Therefore, though she was given rank of Lieutenant, she cannot be treated as an officer for the purpose of the Army Act. Further, as already seen, the 'commanding officer' in relation to MNS as defined in MNS Rules means Head Nurse having powers of the Commanding Officer in relation to Court-martial. The petitioner never held the position as a Commanding Officer and therefore by any stretch of imagination she cannot be treated as an 'officer'.

11. The Army Act does not define ex-Serviceman, service, or military service, in the regular Army and therefore in contradistinction, ex-Serviceman means an officer of regular Army who has either retired or discharged from regular Army. The Guide to Service Personnel published by Kendriya Sainik Board gives the definition of ex-Serviceman in relation to, Army persons released before 1.7.1968, released on or after 1.7.1968 but before 1.7.1979, and those released on or after 1.7.1979 but before 1.7.1987. According to the said compilation, the eligibility of the retired Defence Personnel to the status of ex-Serviceman is governed by the definition as laid down by the Department of Personnel and Training. The definition has undergone changes from time to time and broad categorization as mentioned in the said guide is as follows:

(a) Those released before 1 July, 1968. Any person who had served in any rank (whether as Combatant or not) in the Armed Forces of the Union and has been released therefrom otherwise than by way of dismissal or discharge on account of misconduct or inefficiency.

(b) Those leased on or after 1 July, 68 but before 1 July, 79. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Union for a continuous period of not less than six months after attestation and released therefrom otherwise than by way of dismissal or discharge on account of misconduct or inefficiency.

(c) Those released on or after 1 July, 79 but before 1 July, 87. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Union for a continuous period of not less than six months after attestation if discharged for reasons other than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency and not less than 5 years of service if discharged at own request.

(d) Those released on or after 1 July, 87. Any person who had served in any rank (whether as a Combatant or not) in the Armed Forces of the Indian Union and was released/retired with any kind of pension from Defence Budget or released on completion of specific terms of engagement with gratuity otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency.

12. Further, the eligibility of the person to the status of ex-Serviceman will be governed by the definition in vogue at the time of discharge of such serviceman and will not be affected by the changes in the definition subsequent to his discharge. The petitioner was discharged on 2.2.1983 and therefore the definition in paragraph (c) above will only apply to her. Going by the same, petitioner is certainly an 'ex-Serviceperson' entitled to the benefits as are conferred by Central Government and State Government. Indeed, it is not denied before this Court that the petitioner is being given all the benefits that are available to the ex-Servicemen in the State of Andhra Pradesh. But, the claim of the petitioner for assignment of land as ex-Serviceman is denied by Respondents 1 to 3 only on the ground that the said benefit is not extended to officers of the Army, Navy and Air Force, This aspect of the matter is required to be considered having regard to the Government Orders issued by State of Andhra Pradesh from time to time.

13. The Government of Andhra Pradesh issued G.O. Ms. No. 743 Revenue Department, dated 30.4.1963 conferring right to seek assignment of agricultural land. The said G.O. contains a "general policy in the matter of assignment of agricultural land to Jawans serving in Indian Army in various capacities". By the said G.O., special Rules (2) were also issued regarding assignment of land to Jawans after demobilization to the families of the Jawans who laid down their lives while defending boarders. The eligibility criteria is contained) in Paragraphs (1) and (2) of the G.O., which reads as under.

(1) All Jawans domiciled in Andhra Pradesh and serving in the defence forces of India, will, after demobilization, be eligible for the assignment of land in their own villages or elsewhere under these Rules.

Note: (i) In the case of death of a Jawan, who dies in active service during the present emergency, his family will be entitled for the grant of land, even during the period of emergency.

(ii) In the cases of death of a Jawan after demobilization and before grant of land, his family will also be entitled to the grant of land.

(iii) Family referred to in notes (i) and (ii) above means "wife, son, unmarried daughter or widowed mother in that order of preference, if there is more than one son or un-married daughter, the eldest will get preference.

(iv) Jawans who are dismissed or discharged from service due to inefficiency or misconduct or whose character is assessed as bad on demobilization are not eligible for grant of land under these rules.

(2) Each Jawan will be eligible for the grant of an extent of Ac.2.50 wet or Ac.5.00 dry land provided that the total extent of land already owned plus the land assigned to him, shall not exceed Ac.2.50 wet or Ac.5.00.

Note: (i) For the purposes of assignment under these rules one acre of wet land will be equal to 2 acres of dry.

(ii) Variations up to 10% of the extent noted above, may be allowed wherever necessary.

14. As per Paragraph-7 of the G.O. an application for assignment of land has to be sent to an Officer not belong the rank of Deputy Tahsildar through the Secretary, State Soldiers, Sailors and Airmen's Board (now second respondent) duly certified by Officer Commanding the Regiment in which the Jawans serve. As per Paragraph-9, Tahsildar and Deputy Tahsildar with independent charge shall be the authority competent to assign the land not exceeding Acs.2.50 wet or Acs.5.00 dry land in each case.

15. After issue of said G.O. Ms. No. 743, dated 30.4.1963, it appears the Board of Revenue by letter dated 4.2.1964 recommended to include non-commissioned ranks of all the three Armed Services also in the category of army personnel eligible for assignment of land. The Government accepted the said recommendation and issued G.O. Ms. No. 681, dated 18.4.1964 directing that the scope of the term "Jawan" used in G.O. Ms. No. 743, dated 30.4.1963 should include non-commissioned ranks of all the three armed services and also non-combatants/but should exclude officers. In the considered opinion of this Court the said clarification is in tune with the definition of "Officer" in Clause (xviii) of Section 3 of the Army Act.

16. The petitioner contends that G.O. Ms. No. 743, dated 30.4.1963 has no application to her case. The said submission is misconceived. A careful reading of G.O. Ms. No. 743, dated 30.4.1963 read with G.O. Ms. No. 681, dated 18.4.1964 would show that these orders contain general policy of the State in the matter of assignment of agricultural land to Jawans served in various capacities. When the G.O. uses the words like "general policy" and "Jawans served in various capacities", there is no necessity to read the Government Order in a restrictive manner. The word "Jawan" is used in a generic sense. In includes Army Personnel who are retired or discharged from the Armed Forces. The word "Jawan" does not mean that army person in the lowest rung or it does not mean that it is equivalent to 'orderly' or 'Soldier', which is the lowest rank in the Army. G.O. Ms. No. 681, dated 18.4.1964 farther clarified that all the officers of all ranks of three armed services excluding officers are treated as Jawans. As already seen, even by the very definition of "officer"; Junior Commissioned Officers, Warrant Officers, Petty Officers and/or Non-Commissioned Officers are excluded from the definition of officer. Therefore, this Court holds that the petitioner who worked as Non-Commissioned Officer, i.e., Lieutenant in MNS is also entitled for assignment of land as per G.O. Ms. No. 743, dated 30.4.1963 read with G.O. Ms. No. 681, dated 18.4.1964. Indeed, when she approached the Director General of Resettlement in Ministry of Defence, Government of India, it was clarified by communication dated 26.9.2003 addressed to second respondent that the petitioner is eligible for ex-Serviceman status. If she is ex-Serviceperson and does not fall within the definition of 'officer', she is also eligible for assignment of land.

17. Initially, the petitioner's application made in 1985 was processed by the Mandal Revenue Officer, Kurnool, who identified the land in S.No. 128 of Mamidalapadu Village for assignment to the petitioner. As the land was classified as canal Poramboke K.C.C B-class Poramboke, the District Collector wrote to Superintending Engineer, Irrigation Circle, who by letter dated 9.8.2003 gave no objection. When the land was about to assigned, it appears, the petitioner made a representation to the Minister for Home of State of Andhra Pradesh, which was forwarded to second respondent, who by letter dated 17.12.2003 addressed to the Secretary to Government in Revenue (Land Reforms) Department opined that though the petitioner is eligible for the status of ex-Serviceman, she is not eligible for assignment of land as per State Government Memo. A copy of the said communication was also marked to the District Collector who in turn informed the petitioner that her application for assignment is rejected. Second respondent failed to read the provisions of Army Act, MNS Rules and the two Government Orders in proper perspective. It must not be forgotten that Central Government and State Government are striving to give benefits in the matter of employment and also in the matter of education to ex-Servicemen in recognition of their services to the nation. If there is any ambiguity in interpreting the. various instructions issued by Central Government and State Government, the Court should favour such interpretation which helps the ex-Servicepersons to get the benefit. In that view of the matter, I am not able to agree with the submission of the learned Government Pleader for Revenue (Assgn.) that eligibility criteria is decided by the State Government and that opinion given by the Director General of Resettlement is not binding on them.

18. In the result, for the above reasons, the writ petition is allowed and third respondent is directed to take appropriate action on the application of the petitioner for assignment of land within a period of eight weeks from the date of receipt of this order. It is also made clear that it shall be open to third respondent to consider the application of petitioner for assignment of any other land other than the land identified for such assignment. There shall be no order as to costs.