Lt. Mrs.C.Reethama Joseph vs Union Of India & Ors.
2012 Latest Caselaw 86 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          WP(C) No.4132/1999

%                       Date of Decision: 05.01.2012

Lt. Mrs.C.Reethama Joseph                                .... Petitioner

                     Through Mr.E.J.Varghese, Advocate


                               Versus

Union of India & Ors.                               .... Respondents

                     Through Mr.Ankur Chhibber, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has sought the issuance of an appropriate writ

for quashing the order of releasing the petitioner from the Military

Nursing Service on the alleged ground of her marriage and also for

declaring that the Rule/Order which provides for the release of the

female commissioned officers of the Military Nursing Service on the

ground of their marriage as unconstitutional, invalid and void. The

petitioner has also sought for directions to the respondents to

reinstate her in the Military Nursing Service without any break in

service and to pay her the arrears of salary and allowances from the

date of her release till the date of her reinstatement.

2. The brief facts to comprehend the dispute between the parties

are that the petitioner was selected for probationer Nurses Course in

the year 1979 and on completion of three years training, she was

granted commission w.e.f. 28th December, 1982. The petitioner was

posted at the Military Hospital, Jalandhar on 28th December, 1982

where she worked for 3 years and thereafter, she was transferred to

the Military Hospital, Ranikhet.

3. On 17th August, 1986, the petitioner got married to Sh.

M.K.Joy which, according to the petitioner, was duly informed by her

to the concerned authorities. The petitioner alleged that she was

allowed to continue in the service for two years and thereafter, after

the expiry of the extended period from 17th August, 1986 to 16th

August, 1988, she was released from the Military Nursing Service, on

the ground of her marriage, on 3rd October, 1988. A certificate dated

17th November, 1988 was also issued to her and in that certificate

her services were shown to be satisfactory.

4. The movement order releasing the petitioner from the service is

reproduced as under:-

"1. NR-17600 Y Lieut (Mrs.) Reethama Joseph, MNS of this hospital, has been relieved from Military duties w.e.f 03 October, 1988 (03 Oct, 88 (AN) for release from service.

2. She will leave this hospital on 03 Oct. 88 (AN) and will be SOS/SORS w.e.f. 04 Oct. 88 (FN).

3. Provision of AI 2/S/74 regarding acceptance of Civil employment after release have been explained to her.

4. In case of change of address after release, she will inform the same to Army HQ. Med Date/MPRS (O) DGHS-4 CDA (O) Phe and this office also.]

5. Her address after release will be as under:-

REETA JOY C/O.MRS.C.D.JOSEPH CHITTETHAZHATHU HOUSE S.AMBALLOOR P.O.

ERNAKULAM (DIST) KERALA-682 315

Auth: RAKSHA MANTRALAYA KARYALAYAM MAHA NIDESHAK, SASSTHRA SENAL CHIKITSA SEVA, NEW DELHI-110001.

Letter No.17600/DGAFMS/MNS Dated 05 Sep.88.

Sd/-

(P.M.Velankar) Lt.Col.

Offg.Commanding Officer"

5. According to the petitioner, her release from the service was on

account of her marriage. She contended that there was no Court

Martial or any other proceedings initiated against her and she had

an excellent service record. She further asserted that neither was any

warning given to her nor was any adverse report made in the Annual

Confidential Reports. The petitioner asserted that the age of

retirement in respect of officers of the Military Nursing Officers is 55

years up to the rank of Lieutenant Colonel and thereafter, the age of

retirement varies depending on the rank.

6. The Military Nursing Service was constituted under the

provisions of the Military Nursing Service Ordinance, 1949. Under

Section 5 & 6 of the said Ordinance, any citizen of India, any woman

above the age of 21 years is eligible for appointment as an officer in

the said service. The provisions of the said Ordinance also

contemplate that all the members of India Military Nursing Service

shall be commissioned and shall be appointed as officers of the

Indian Nursing Service by the Central Government by Notification in

the Official Gazette. The provisions of the Indian Army are applicable

to the Military Nursing Service by virtue of Section 9 of the said

Ordinance.

7. The plea of the petitioner is that after her marriage, she had

applied for extension of the service by two years which was granted.

After expiry of the two years extension period granted to her, she

applied again in July, 1988 but further extension was rejected and

she was discharged from the service on the ground of marriage.

8. The petitioner contended that the Rules/Orders issued by the

Director General of Armed Forces contemplating the termination or

release of a female officer from the Medical Nursing Service on the

ground of marriage has no rationale, as marriage does not

incapacitate an officer from discharging her duty. According to the

petitioner, releasing her from the Military Nursing Service on the

ground of her marriage is unconstitutional and offend her

fundamental rights under Article 14, 15, 19 and 21 of the

Constitution of India.

9. The petitioner also alleged discrimination on the ground that a

number of other Military Nursing Officers who got married and had

children after their marriage have been retained in the service. The

petitioner gave the instances of Capt. Sathi Kumari; Capt. Pareira;

Maj. Leelavathi; Capt. B.Bhattacharya and Capt. S. Chakravarty. The

petitioner asserted that she has been discriminated in the facts and

circumstances. The petitioner also referred to the Defence Services

Regulations (Revised Edition), 1962. Regulations No.102

contemplates as follows:-

"An Officer will not be permitted to remain in the service, if at any time during the first three years form the date of his commission, his retention is considered to be undesirable."

10. The petitioner further asserted that she could not have been

released after having served for almost six years after her

commission under Regulation No.102 of the Defence Service

Regulations. Reliance was also placed on Rule 14 & 15 of the Army

Act, 1950.

11. The petitioner contended that she was never informed of any

adverse entry made against her in her ACR and that the reason given

in her discharge-release order is marriage and also that no entry

regarding the same was ever communicated to her, nor was any

warning given to her informing her regarding areas in which she was

required to improve. The petitioner also referred to an un-starred

question No.1408 raised in the Parliament on 21st November, 1988 in

answer to which it was stated that out of 45 married nurses whose

tenure was not extended due to their unsatisfactory record, 16 of

them had continued on account of stay orders granted by the Court.

12. According to the petitioner, even though marriage was not

given as reason for her release, there could have been no other

reason for the petitioner‟s release except her marriage, since the

Army Service Certificate issued on 17th November, 1988 categorically

stipulated that the service of the petitioner which included the two

years of extension period was satisfactory. She pleaded that she had

married in the year 1986 and that the concerned authorities were

duly intimated about it and even Part-II orders were published by the

Military Authorities. It is urged that there is no justifiable ground to

release the petitioner after two years of her marriage. The petitioner

also relied on the decision of the Supreme Court in the case of

Lt.(Mrs.) Indra Kumari Kartiayani v. The Maha Nideshak, Raksha

Mantralaya, Civil Appeal No.5025 of 1990, decided by order dated

30th October, 1990. The petitioner further disclosed that she had also

filed a writ petition being W.P.(C) 416 of 1989, titled as

Lt.Mrs.C.Reethama Joseph v. Union of India & Ors., in the Supreme

Court of India, which was dismissed by order dated 1st April, 1997,

however, the petitioner was given the right to challenge the order of

release before the appropriate authority in accordance with the law.

The order passed by the Supreme Court on the writ petition of the

petitioner is as under:-

"The petitioner, in this writ petition challenges the impugned order of release from service of the respondent on October, 1988. This writ petition was filed under Article 32 of the Constitution of India challenging the vires of rules which enable the respondent to release the petitioner from service after marriage in accordance with the order of the President of India dated January 16, 1968. Clause III of the said order of President reads as follows:-

"The MNS (Regular) officers may be permitted to remain in service even after marriage at the discretion of

the DG AFMS for a period of 2 years at a time. The cases of such married officers as are retained will also be reviewed by the DG AFMS periodically after every two years. This relaxation of the normal rules will be a temporary measure and the position will be reviewed by 1st January, 1970."

Though the constitutional validity of this rule/order is challenged, we do not think that argument can be accepted in the light of the earlier order of this Court under identical circumstances in C.A No.5025/90 Lt. (Mrs.) Indira Kumari Kartiayoni vs. The Maha Nideshak, Raksha Mantralaya, Shastra Sena Chikitsa Seva, New Delhi dated October 30, 1990.

However, the learned counsel seeks permission to challenge the order of release in accordance with the law before the appropriate authority.

Accordingly, we are dismissing the writ petition and we reserve the right of the petitioner to challenge the order of release dated October 1988 before the appropriate authority in accordance with law.

The writ petition is dismissed with no costs."

13. After the writ petition of the petitioner was dismissed by the

Supreme Court by order dated 1st April, 1997, the petitioner filed the

present writ petition on 2th July, 1999. The respondents have

contested the writ petition contending, inter-alia that the writ

petition should be dismissed on the ground of delay and latches as

the petitioner was released from the service in the year 1988,

whereas the present writ petition was filed in July, 1999. The

respondents asserted that no explanation has been given for the

delay of two years even after the dismissal of her writ petition by the

Supreme Court, granting her right to challenge her release before the

appropriate authority.

14. The respondents categorically asserted that the petitioner was

employed after her marriage on a contractual basis and that her

contract was for two years. The respondents were at liberty to renew

or enter into a fresh contract with the petitioner based on their

requirement and her past performance. The contractual service of

the petitioner came to an end in the year 1988. It was noticed that

the performance of the petitioner was below average and that the

petitioner had not satisfied the stipulated criteria. Therefore, her

contract was not renewed and she was released from service on 3rd

October, 1988. On 17th August, 1986, the petitioner had submitted

her willingness for retention in the service for a period of two years

on contractual basis. The petitioner had been graded as below

average by her superior officers, and therefore, she was released from

the service on expiry of her contract in October, 1988. Since the

petitioner had acquiesced to the terms and conditions stipulated

during the period of initial engagement and also during her extension

period after August, 1986, therefore, the petitioner is estopped from

challenging the validity of the Rules/Clauses permitting the said

termination.

15. The respondents also relied on the criteria for

retention/further retention of the officers of the Military Nursing

Service. The relevant criteria as stipulated in the notification dated

6th March, 1987 is as under:-

"(a) Should have put in a minimum of two years‟ service after commission at the time of marriage (applicable only for cases of initial retention).

(b) Should have had a consistent high average (6) performance as reflected in the ACRs for the three years preceding the year in which the officer gets married or due for review for further retention in service on marriage ground.

(c) Should have been graded average or above in all the following essential qualities in the ACRs rendered on the officer during the three years preceding the year in which the officer gets married or due for review for further retention in service on marriage ground:-

             (i)      Integrity
             (ii)     Sense of duty
             (iii)    Discipline
             (iv)     Patient care
             (v)      Administrative ability
             (vi)     Loyalty
             (vii)    Professional ethics
             (viii)   Professional knowledge
             (ix)     Initiative
             (x)      Self-confidence
             (xi)     Delegation of responsibility

(d) Should have been recommended by all the officers in the chain of reporting for retention/further retention. Provided that where an officer fulfils all other criteria except under this sub para, such a negative recommendation must be accompanied by detailed reasons for the same supported by solid evidence like repeated written warning etc.

(e) Should not have been placed on „Adverse Report‟ in accordance with the provisions of Paras 15 to 19 of AO 121/78.

(f) Should be in Med Category not lower than S1H2A2P2E2.

(g) Should not be undergoing a course of instruction at the time of getting married.

5. The above may kindly be brought to the notice of all nursing officers and be given wide publicity.

6. The above provision will become effective with immediate effect.

7. Kindly acknowledge."

16. The respondents had filed the counter affidavit dated 1st

December, 1999 of Maj. Uma, raising the pleas and contentions as

stipulated hereinabove. The petitioner did not file any rejoinder to the

counter affidavit filed on behalf of the respondents and did not refute

the plea of delay and latches and some other pleas which has been

raised in the counter affidavit and which had not been dealt with in

the petition. The petitioner had, however, filed the copy of the

counter affidavit filed by the respondents dated September, 1994 to

her writ petition being W.P.(C) No.416/1990 before the Supreme

Court and a copy of the representation dated 22nd February, 1998

made by the petitioner to the Secretary, Ministry of Defense, South

Block.

17. This Court has heard the learned counsel for the parties in

detail and has also perused the writ petition and the counter affidavit

filed on behalf of the respondents before this Court and the copy of

the counter affidavit filed by the respondents before the Supreme

Court to the writ petition of the petitioner which was dismissed by

order dated 1st April, 1997.

18. The Supreme Court while dismissing the writ petition of the

petitioner had held that the constitutional validity of the Rule and

Order challenged by the petitioner cannot be accepted in the light of

the order of the Supreme Court in the case of Lt.(Mrs.) Indra Kumari

Kartiayani. From the order dated 1st April, 1997 dismissing the writ

petition of the petitioner before the Supreme Court, it is apparent

that the validity of the order of the President of India dated 16th

January, 1968 was upheld which entailed that as per Clauses III of

the said President‟s order, the Military Nursing Service (Regular

Officers) could be permitted to remain in service even after marriage

at the discretion of the Director General, Armed Force Medical

Service for a period of two years at a time. The said order also

contemplated that the cases of married officers would be reviewed by

the Director General periodically after every two years.

19. In Indra Kumari Kartiayani (supra) the Nursing officer was

relieved on account of her marriage. After taking into consideration

her record of performance, it was held that her performance was

sufficiently good and she was entitled to be retained in the service.

The Supreme Court had, therefore, directed that the respondents

should have given the said Nursing officer the chance to prove her

ability in the two years following the marriage and in case, if she

succeeded in proving that she was good enough to remain in service,

notwithstanding the marriage, she was entitled to be retained in the

service in terms of the President‟s order. As no opportunity was given

to the Nursing Officer Indra Kumari, her petition was allowed and

the respondents were directed to reinstate her for a period of two

years and at the end of two years or during that period if the

respondents were to find, that she was qualified, then she was to be

retained permanently and she would have been entitled to the benefit

of continuity of service. However, the arrears of salary from 7th

October, 1988 till her reinstatement were not granted. The case of

the petitioner is apparently distinguishable as the petitioner got

married on 17th August, 1986 and after considering her case in

accordance with the criteria for further extension in service after

marriage, she was granted extension for the period of two years from

17th August, 1986 to 16th August, 1988. After the expiry of the

extension period of two years, since her performance was found to be

below average, she was released from 3rd October, 1988 which is

inconsonance with the ratio of the Supreme Court judgment relied

on by the petitioner.

20. The petitioner pleaded that she has been released solely on the

ground of her marriage, therefore, the release order cannot be

sustained. However, since the performance of the petitioner was

found to be below average during the period of extension of two years

from 17th August, 1986 to 16th August, 1988, the respondents were

justified in not extending her extension any further. Consequently,

the order of the respondents releasing the petitioner from the service

is not liable to be set aside as has been prayed for by the petitioner.

It cannot be inferred from the facts and circumstances that she has

been released from the service solely on the ground of her marriage,

nor can it be held that the Presidential order and other orders

referred to the petitioner are unconstitutional, invalid or illegal. The

petitioner is not entitled to be reinstated in the Military Nursing

Service nor is she entitled for payment of salary and allowances as

has been claimed by her.

21. The plea of the respondents that the petition is liable to be

dismissed on account of delay and latches, also has merit. The

petitioner was released in the year 1988 and she had filed the writ

petition before the Supreme Court in the year 1989 which was

disposed of by order dated 1st April, 1997. The petitioner had

thereafter, filed a representation dated 22nd February, 1998,

however, the petitioner has not disclosed as to why she had to wait

for almost 10 months for making a representation on 22nd February,

1998 and for another 17 months to file the present writ petition. The

petitioner has not given any satisfactory reason for the delay in filing

the present writ petition after she was permitted to challenge her

release order on dismissal of the writ petition by order dated 1st

April, 1997.

22. It has been held in a number of cases by the Supreme Court as

also this Court that stale claims should not be entertained by the

Courts and failure to make out grounds to condone the delay in

seeking remedy in law is sufficient in itself to oust the petitioner. In

this connection, reference can be made to the following precedents:

(i) Rajalakshmiah v. State of Mysore AIR 1967 SC 993

(ii) J.N. Maltiar v. State of Bihar MANU/SC/0382/1973

(iii) C.B.S.E. v. B.R. Uppal and Ors. MANU/DE/8142/2006

(iv) Savitri Sahni v. Lt. Governor, NCT of Delhi and Ors.

MANU/DE/8673/2006

The writ petition is therefore, also liable to be dismissed on the

ground of delay and latches.

23. In the facts and circumstances the writ petition, is, therefore,

without any merit, and it is dismissed. The parties are, however, left

to bear their own costs.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 05, 2012 vk