REQUEST A BRIEF
In a historic judgment, the Supreme Court has ordered the Centre to ensure that women officers are given permanent commission (PC) in the Army, while adding that the officers will be now eligible for command posting.
CASE BRIEF: Union of India & Ors Versus Lt Cdr Annie Nagaraja & Ors.
Case name: Union of India & Ors Versus Lt Cdr Annie Nagaraja & Ors
Case number: Civil Appeal Nos 2182-87 of 2020
@ SLP (C) Nos. 30791-96 of 2015
Court: In the Supreme Court of India
Civil Appellate Jurisdiction
Bench: HON'BLE Justice Dr Dhananjaya Y Chandrachud
HON'BLE Justice Ajay Rastogi
Decided on: MARCH 17, 2020
• BRIEF FACTS AND PROCEDURAL HISTORY:
1. Six Writ Petitions under Article 226 of the Constitution were instituted before the Delhi High Court. The petitioners, seventeen in number, were women Officers who joined the Indian Navy as Short Service Commissioned Officers in the Logistics and Air Traffic Controller cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions and were discharged from service.
2. The second batch of proceedings which has led to appeals before this Court arises from the decision of the AFT at the Principal Bench in New Delhi in a Writ Petition (C) No. 7336 of 2010 batch of six Original Applications. The lead Original Application9 was instituted by Commander Priya Khurana.
3. The applicants before the AFT in this batch of cases were seven SSC officers recruited in 2002 in the Indian Navy in the Logistics and ATC cadres and the Education branch. They sought the grant of PCs and challenged the policy document dated 26 September 2008 as unconstitutional to the extent that it operated prospectively and restricted the grant of PCs to a few cadres/branches. Consequently, there was also a challenge to the implementation guidelines dated 3 December 2008 issued by the
4. Integrated Headquarters of the MoD. The officers challenged their release from service on the completion of their tenure of SSC engagement. The AFT held that an alteration has to be based on a reasonable exercise of power. The subsequent decision making the grant of PCs only prospective and confining it to stipulated branches was held to be invalid. The AFT has placed a considerable degree of reliance on the fact that the advertisements on the basis of which the SSC officers were inducted had held out a specific representation that the officers would be considered for the grant of PCs.
5. The decision of the AFT was subsequent to the earlier judgment of the Delhi High Court in Annie Nagaraja, which is the subject matter of appeals instituted before this Court. The AFT clarified that its direction to reconsider the case of the SSC women officers for the grant of PCs was subject to the decision of this Court in Annie Nagaraja. While directing the consideration of the claim of SSC women officers to the grant of PCs by the Indian Navy, the AFT stopped short of the direction which was issued by the Delhi High Court for the grant of PCs.
6. The AFT was of the view that the appropriate relief was to direct that the applicants be considered by the authorities and to this extent it disagreed with the absolute relief granted by the Delhi High Court for the grant of PCs.
7. The AFT accordingly directed the reconsideration of the request for the grant of PCs on the basis of Regulation 203 and the policy decision dated 25 February 1999 within six months.
8. The decision of the AFT in this batch of cases has, in the course of the submissions, been adverted to as the decision in Priya Khurana v Union of India, In the appeals arising out of the judgment of the AFT in Priya Khurana, an interim order was passed by this Court on 28 October 2016 directing the continuation in service of the SSC officers in that capacity until further orders.
9. The present batch of Civil Appeals comes up for adjudication from two decisions, the first in point of time being that of the High Court of Delhi and the second, being that of the Armed Forces Tribunal.
• ISSUE BEFORE THE COURT:
1. Whether women officers in armed forces should be allowed with permanent commission or not?
• RATIO OF THE COURT:
1. Mr Sanjay Jain, learned Additional Solicitor General for India submitted that the Indian Navy does not discriminate between men and women. the size of the Indian Navy is much smaller than the other Armed Forces, as a consequence of which, the pyramidal structure is saturated comparatively quicker than in the Army and the Air Force.
2. Ms Haripriya Padmanabhan, learned counsel appearing for the respondent nos. two to six in Annie Nagaraja’s case urged SSC male officers have been granted PCs in various departments of the Navy. The grant of PCs to SSC male officers in certain cadres was halted following the induction of women on SSCs in those cadres. PCs, being granted to male officers in these specified streams must also be extended to women officers inducted on SSCs.
3. Mr CU Singh urged that the AFT rendered one common judgment in six OAs. The Union of India having filed an appeal only in one of the cases arising from the AFT, it was urged that the common judgment binds the Union Government and operates as res judicata in the other five OAs. Hence, it was submitted that it is not open to the Union of India to file an appeal only in one of the six cases where a common judgment has been delivered on similar facts.
4. This Court, in upholding Section 21 of the 1950 Act, held that the exercise of such power must necessarily conform to the restrictions inherent in Article 33 of Constitution. The nexus requirement in Article 33 was affirmed by this Court in Union of India v LD Balam Singh and Mohd. Yunus Khan v State of UP.
5. The court held that Hence from 20 December 1991, it was within the contemplation of the Union Government that the policy for the induction of SSC officers, including women, on PCs would be notified within a period of six years. This was because officers who were inducted on SSCs would have a tenure of seven years.
6. Regulation 203, in its own terms, is not restricted in its application to only male officers. Once the appointment of women officers in the Indian Navy was permitted in terms of the statutory notifications dated 9 October 1991 and 6 November 1998, the statutory bar under Section 9(2) stood lifted and women officers inducted on SSCs would be entitled to be governed by Regulation 203.
7. The court also held that to deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are illsuited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.
8. By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service.
9. The court further held that These SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retiral entitlements must be rectified.
10. Following the logic of the directions of this Court in Babita Puniya, the court was of the view that a one-time measure should be issued in exercise of the powers under Article 142 of the Constitution. These officers who were released prior to 2008 after completing their engagement should be deemed to have completed substantive pensionable service and to have qualified for the grant of pension on the basis that they have fulfilled the minimum qualifying service in a substantive capacity.
• DECISION HELD BY COURT
The court held and direct that:
1. The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act;
2. By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, Regulation 203, Chapter IX,
3. The stipulation in the policy letter dated 26 September 2008 making it prospective shall not be enforced;
4. The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside
5. All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs.
6. The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts
7. Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs.
8. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits.
9. All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008,s shall be deemeed as a one-time measure, to have completed substantive pensionable service.
10. As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and
11. Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ₹ 25 lakhs each