V. H. BHAIRAVIA, J. ( 1 ) IN this petition under Article 226 of the Constitution of India the petitioner has prayed for issuing writ of mandamus or any other appropriate writ directing the respondents to grant and pay pension and other death-cum-retirement benefits gratuity etc. to the petitioner admissible under Military Service Rules. ( 2 ) THE petitioner was selected and appointed in the rank of Lieutenant in the Military Nursing Service (Local) vide order dated 24-2-1966 issued by the Director General Armed Forces Medical Services New Delhi (Annex. A ). Pursuant to this order the petitioner had joined services as Lieutenant Military Nursing Service at Military Hospital Baroda on 21-3-1966. Thereafter appreciating her services President of India was pleased to issue Presidents Commission on 9 and her services were confirmed from the date of her appointment i. e. 21 (Annex B ). That on attaining the superannuation age she has retired on 31-2-1982 from the services. According to the petitioner she has rendered services during the period from 21-3-1966 to 31 Thus in all she has rendered 17 years and 9 months total service in the respondent department. However she has not been paid any pensionary benefits available to a retired military personnel under the Rules. Her claim for pension has been rejected by the Govt. of India Department of Pension and Pensioners Welfare by a letter dated 24-2-1990 (Annex. F ). Hence this petition. ( 3 ) IT has been submitted by Mr. G. I. Desai learned Advocate for the petitioner that the Govt. of India has introduced Pension Scheme in place of Contributory Provident Fund Scheme and the said scheme was also made applicable to the Central Government Services including Military Services. It has been further submitted that the pensioners are one class if they form one class their computation cannot be by different formula affording unequal treatment solely on the ground that some retired early and some retired later. He has further submitted that the Govt. of India has accepted recommendations of 4th Pay Commission Report regarding grant of benefits like pension death-cum-retirement benefits to those temporary and quasi-permanent employees retiring at the age of superannuation after rendering 10 years total service on the same scale as admissible to the permanent employees. To substantiate his arguments Mr. Desai learned Advocate for the petitioner has placed reliance on the case of D. S. Nakars and Ors. To substantiate his arguments Mr. Desai learned Advocate for the petitioner has placed reliance on the case of D. S. Nakars and Ors. v. Union of India AIR 1983 SC 130 . ( 4 ) LASTLY the learned Advocate for the petitioner Mr. Desai vehemently submitted that though the petitioner has not completed qualified service of 20 years she is entitled to the proportionate pension. In support of this argument learned Advocate relied on the provisions of Chapter-IV (Heading Retirement Benefits) of the Book A Guide to Resettlement of Ex-Serviceman published by the Govt. of India Ministry of Defence Director ate General Resettlement New Delhi. The extract or relevant Clause (A) of the said Chapter is produced at page 129 of the said Book (Annex. C) which reads as under:"a service pensioner gets relief service pension death-cum-retirement gratuity and commuted value of pension (if applied for) Service pension is admissible to officers and personnel below officer rank who retire or are discharged after completing qualifying service of 20 years and 15 years respectively. In the case of NCs (E) the qualifying service is 20 years A period of less than six months is ignored while assessing the total qualifying service for pension and gratuity. In case an officer is retired on attaining the prescribed limit for retirement but has commissioned service of more than 15 years but less than 20 years a proportionate pension be paid". ( 5 ) IT has been submitted by the learned Advocate for the petitioner that the petitioner has rendered 17 years and 9 months continuous service on the date of her retirement i. e. from 21-3-1966 to 31-12-1983. It has been submitted that the petitioner has retired as Military Officer in the rank of Lieutenant and therefore she is entitled to the proportionate pension as provided under the said Clause No doubt her total service is less than 20 years but her commissioned service is more than 15 years and in view of above provisions extending pensionary benefits to the Military Officers who have retired on attaining prescribed limit for superannuation but has commissioned service of more than 15 years the petitioner is entitled to the proportionate pension. ( 6 ) AS against that Mr. B. B. Naik learned Addl. Standing Counsel appearing for the respondents has submitted that the services of the petitioner are governed under Army Instructions and Rules. ( 6 ) AS against that Mr. B. B. Naik learned Addl. Standing Counsel appearing for the respondents has submitted that the services of the petitioner are governed under Army Instructions and Rules. It has been contended that under Section 12 of the Army Act 1950 female cannot be enrolled in Regular Army and that the petitioner being female her services could not be treated as regular service in Army and therefore she is not entitled to any pensionary benefits available to the Army Personnel Further it has been submitted that the services attached to regular Army are required to be notified by the Central Government in the Official Gazette. In the case of the petitioner no such notification has been issued. It has been vehemently submitted by the learned Standing Counsel Mr. Naik that the status of the services of the petitioner could not be treated as Lieutenant since retirement age of Lieutenant is 50 years and the petitioner retired from the services at the age of 55 years. It has also been submitted that the provisions of Chapter-IV of Book A Guide to Resettlement of Ex-Serviceman has no legal force and no benefits could be given under the said provisions. ( 7 ) I am not impressed by the submissions canvassed by Mr. Naik. There is no substance in the first contention regarding ineligibility of the petitioner under Section 12 of the Army Act 1950 Section 12 of the said Act reads as under:"ineligibility of females for enrolement or employment:- No female shall be eligible for enrolment or employment in the Regular Army except in such corps department branch or other body forming part of or attached to any portion of the Regular Army as the Central Government may by notification in the Official Gazette specify in this behalf:provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular army or any branch thereof in which females are eligible for enrolment or employment. SINCE the nursing service attached to Military Hospital is a Regular Army Service within the meaning of Section 12 of the Army Act 1950 the Military Hospital Baroda is auxiliary service to regular Army and therefore the Nursing Staff engaged in Military Hospital are eligible to the enrolment or employment under Section 12 of the Act. Of course no notification to that effect has been brought on record but if we see Presidents Commission issued by the President of India there is legal presumption that her services were regularised and notified as confirmed as services attached to the Regular Army. The contention referring retirement age of Lieutenant and the status of the petitioner not to be treated as Lieutenant is without any substance. ( 8 ) THE learned Addl. Standing Counsel referred Army Instruction: 35 recording terms and conditions of service for employment of nursing for local duties. It reads as under:35 Army Instructions 14/77 regarding terms and conditions of service for employment of nursing officers for local duties as amended by Govt. of India Min. of Defence letter No. 28980/dg AFMS/mns/687/d (MED) dated 08 December 80 is further amended as under: (I) Under para-5-Tenure of Service Delete the existing instructions and substitute the same with the following:"the officers of MNS (local) will continue to serve the MNS till they attain the age of superannuation i. e. 55 years. They would however be permitted to resign their commission if the exigencies of service permit. at the discretion of the Govt. of India". (II) After para 11 INSERT the following as Para 11 Retirement benefits. "the officers of MNS (Local) on retirement from service on attaining the age of superannuation after rendering temporary service of not less than 20 years will be eligible to pensionary benefits as admissible to temporary civilian Govt. servants in accordance with the orders issued on the civil side from time to time. The amount of pension will be worked out in the same manner as for the civilians. This will take effect from 1-10-1983". This issue has been considered by the Supreme Court in the case of R. K. A eland V. Union of India AIR 1992 SC 763 . The amount of pension will be worked out in the same manner as for the civilians. This will take effect from 1-10-1983". This issue has been considered by the Supreme Court in the case of R. K. A eland V. Union of India AIR 1992 SC 763 . It has been observed by the Supreme Court as under:"the appellant contends that notwithstanding the letter of 9/09/1986 the letter of 9/05/1985 held the field and he was therefore entitled to continue in service till he attained the age of 58 years and was wrongly superannuated on his completing 57 years of age. According to him the letter of 9/05/1985 was issued under the signature of Joint Secretary in the Ministry of Defence Central Government and was therefore in the nature of executive instructions even if it did not have statutory flavour and hence the authorities were bound by the terms thereof and could not have superannuated him before he completed 58 years of age. On the other hand the respondents contend that after the two streams concept was introduced by the letter of 9/09/1986 superannuation was regulated as per the terms thereof and accordingly the appellant who was an Infantryman and belonged to Staff only stream had to retire one year before an officer of equivalent rank belonging to the Command and Staff stream became liable to be superannuated. If the contention of the respondents is right there can be no doubt that the applicant was rightly superannuated on his completing the age of 57 years". In view of the ratio laid down by the Supreme Court in the aforesaid case the contention regarding age of superannuation has no force. ( 9 ) IN my view the services of the petitioner in the rank of Lieutenant was main service as observed above and as per the guidelines in case an officer is retired on attaining the prescribed limit for retirement but has commissioned service of more than 15 years but less than 20 years a proportionate pension; is required to be paid to him. Since the petitioner has rendered service of more than 17 years and 9 months she is entitled to the proportionate pension as per above provisions has no legal force and therefore said provisions are not acceptable since the Book is published by Govt. Since the petitioner has rendered service of more than 17 years and 9 months she is entitled to the proportionate pension as per above provisions has no legal force and therefore said provisions are not acceptable since the Book is published by Govt. of India Ministry of Defence Directorate General Resettlement and therefore it could not be said that it has no legal force. ( 10 ) IN the result the petition is allowed. The petitioner is held to be entitled to the proportionate pension and other consequential benefits. The respondents are directed to finalise the case of the petitioner for pension fix the pension and pay the same to the petitioner from the date of her retirement and onwards. Respondents are directed to pay at rears of the amount within 8 weeks from the date of receipt of writ of this Court. Rule made absolute. No order as to costs. ( 11 ) IT has been submitted by the learned Addl. Standing Counsel that operation of this order may be stayed for a period of 6 weeks so as to enable the respondents to approach higher forum. In view of the facts and circumstances of the case request of the learned Addl. Standing Counsel is reasonable. Hence operation of this order is stayed for a period of 6 weeks from the date of receipt of writ of this Court. (NSS) Petition allowed. .