UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA & ORS.

B The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. Index A Background of the dispute C A.1 Annie Nagaraja’s case A.2 Priya Khurana’s case B Statutory and Policy framework C Submissions D D Preliminary Objection E Validity of the policy letter dated 26 September 2008 F The stereotypical sailor G Ex turpi causa non oritur actio E H Directions A Background of the dispute

1Copy pinpoint1. 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 F of Delhi and the second, being that of the Armed Forces Tribunal 1. A.1 Annie Nagaraja’s case

2Copy pinpoint2. 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 G Service Commissioned 2 Officers in the Logistics and Air Traffic Controller3 cadres and the Education branch. Six of them were officers

1 “AFT” 2 “SSC” 3 “ATC” H

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 449 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

in the Logistics cadre, nine in the Education branch and two in the ATC A cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions4 and were discharged from service.

3Copy pinpoint3. The case which was set up before the High Court was that women SSC officers of the Indian Army and Air Force had been granted B PCs by the judgment of the Delhi High Court in Babita Puniya v Union of India5 (“Babita Puniya”). The Air Force implemented the decision of the Delhi High Court. The Indian Army was in appeal before this Court against the judgment in Babita Puniya.

4Copy pinpoint4. The Union of India in the Ministry of Defence6 issued a policy C letter dated 26 September 2008 granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs after January 2009. The Delhi High Court expressly noted that the denial of combat roles to women was not in issue in the Writ Petitions. By its judgment dated 4 September 2015, D the High Court issued the following directions: “50. a) The claim of absorption in areas of operation not open for recruitment of women officers cannot be sustained being a policy decision. E b) The Short Service Commissioned Officers of the Navy who had opted for PC and were not granted PC but instead were granted extension of SSC and were not retired at the time of filing of these Writ Petitions and had attained the age of retirement during the pendency of the present petitions, they shall be offered PC within a period of 6 weeks from the date of this order. They F shall be entitled to all consequential benefits such as promotion and other financial benefits subject to their medical fitness. However, their appointment to the post of PC shall be subject to the final outcome of the said SLP i.e. CC No. 10437/2010 title Secr. Ministry of Defence v. Babita Puniya & Anr. pending G consideration before the Hon’ble Supreme Court;

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A c) With respect to the petitioners who had attained the age of superannuation prior to the filing of the Writ Petitions by them the following directions are required to be issued:

1. The respondents shall reinstate these petitioners within a period of six weeks from today on their respective posts;

B 2. Such reinstatement shall be subject to the final outcome of the said SLP i.e. CC No. 10437/2010 titled Secr. Ministry of Defence vs. Babita Puniya & Anr. pending consideration before the Hon’ble Supreme Court;

3. The petitioners are entitled to no benefits; C

4. The reinstatement of the petitioners shall be subject to their medical fitness.”

5Copy pinpoint5. Since the earlier decision of the Delhi High Court in Babita Puniya was the subject matter of proceedings before this Court, the D direction in regard to offering PCs was made subject to the decision that would eventually emerge from this Court. The first petitioner in the Writ Petition7 before the High Court was Lieutenant Commander Annie Nagaraja. Hence, the decision of the Delhi High Court in that batch of cases has, in the course of the submissions, been adverted to as the decision in Annie Nagaraja v Union of India (“Annie Nagaraja’s E case”). In the appeals arising out of the judgment of the Delhi High Court in Annie Nagaraja, an interim order was passed by this Court on 20 November 2015 which directed: “Pending further orders from this Court we direct that such of the respondents (petitions before the High Court) as were serving as short service commissioned officers in the Navy as on 26th September 2008, shall be allowed to continue on the terms and conditions applicable to them in that capacity. We further direct that such of the officers out of the respondents (petitioners before the High Court) as may have been released from service after 26th September 2008, upon completion of the short service commission tenure, shall be permitted to join back in terms of the order passed by the High Court and continue in service in that capacity.”

7 H Writ Petition (C) No. 7336 of 2010

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 451 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

By this order, protection was restricted only to those women A officers in service on 26 September 2008. A.2 Priya Khurana’s case

6Copy pinpoint6. 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 batch of six Original Applications.8 The lead B Original Application9 was instituted by Commander Priya Khurana. 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 C 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 Integrated Headquarters of the MoD. The officers challenged their release from service on the completion of their tenure of SSC engagement. D

7Copy pinpoint7. The AFT, by a judgment dated 11 August 2016, came to the conclusion that on 25 February 1999, the Union Government in the MoD had taken a policy decision for the grant of PCs to both men and women officers in terms of Regulation 203 of Chapter IX of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations 196310, E which is contained in Part III of the Regulations. The AFT held that the policy decision dated 25 February 1999 held the field and the subsequent policy decision of 26 September 2008 was arrived at without considering the earlier policy decision and as a matter of fact, even the Union Defence Minister had been kept in the dark about the earlier decision. While F accepting the principle that it is open to government to review and alter an earlier policy decision, 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 G SSC officers were inducted had held out a specific representation that the officers would be considered for the grant of PCs. 8 “CA” 9 “OA No. 143 of 2016” 10 “1963 Regulations” H

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8Copy pinpoint8. 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. Until this exercise was undertaken, the applicants were directed to be continued as SSC officers on existing terms and conditions. The decision of the AFT was subsequent to the earlier judgment of the Delhi High Court in Annie Nagaraja, B 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 C short of the direction which was issued by the Delhi High Court for the grant of PCs. 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.

9Copy pinpoint9. The judgment of the AFT has been assailed by the Union Government. The applicants before the AFT are in appeal to the extent that the wider relief which was granted by the Delhi High Court was denied to them by the AFT. The first applicant in the OAs instituted before the AFT was Commander Priya Khurana. Hence, the decision of the AFT in this batch of cases has, in the course of the submissions, E been adverted to as the decision in Priya Khurana v Union of India (“Priya Khurana’s case”). 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. F B Statutory and policy framework

10Copy pinpoint10. Section 9 of the Navy Act 195711 deals with the eligibility for appointment or enrolment in the Indian Navy. Section 9 reads thus: “9. Eligibility for appointment or enrolment.—(1) No person who G is not a citizen of India shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except with the consent of the Central Government:

11 H “1957 Act”

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 453 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

Provided that nothing in this section shall render a person ineligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces on the ground that he is a subject of Nepal. (2) No woman shall be eligible for appointment or enrolment in the Indian Navy or the Indian Naval Reserve Forces except in such department, branch or other body forming part thereof or attached thereto and subject to such conditions as the Central Government may, by notification in the Official Gazette specify in this behalf.”

11Copy pinpoint11. Sub-section (2) of Section 9 conditions the eligibility of women to be appointed or enrolled in the Navy or the Indian Naval Reserve C Forces. The provision commences with the expression “no woman shall be eligible” and follows it up with the expression “except in such department, branch or other body”. The prohibition on the appointment or enrolment of women is subject to the lifting of the restriction by the Union Government. The Union Government has been conferred with the authority to stipulate the departments, branches or bodies forming a D part of or attached to the Navy or the Indian Naval Reserve Forces in which women can be appointed or enrolled. The Union Government is also vested with the authority to define the conditions on which the appointment or enrolment may take place.

12Copy pinpoint12. The provisions of the Bill which were to lead to the enactment of the 1957 Act were deliberated upon in a report of the Joint Committee of Parliament. A note of dissent was appended by four Members of the Joint Committee on the restriction which was proposed to be imposed on the appointment of women in the Indian Navy. While opposing the restriction proposed in the report of the Joint Committee, the dissenting members (TCN Menon, KK Warior, VK Dhage and V Prasad Rao) stated: “An important provision of the Bill is the one which excludes women from the right of joining the Indian Navy. It will be superfluous if we record in detail the courage and capacity shown by the women of India in the past and especially during our glorious freedom struggle. In almost all countries women have proved themselves to be equal to men if not more and today there is no sphere of life nor is there any kind of work where women cannot compete with men. Moreover we feel that the admission of women H

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A into our armed services will, to a very large extent, have a salutary and welcome effect upon the outlook and morale of our fighting men. This injustice done to our women should be removed and we recommend that the clause which prohibits women from joining the navy be removed.”

13Copy pinpoint13. The dissenting Members stated that restrictions on the fundamental rights of the members of the Armed Forces should be only to the extent strictly necessary for the maintenance of discipline and the discharge of duties. In their view, “the law that Parliament enacts today in respect of the Indian Navy should be a law which will facilitate the development of a Navy composed of contented men and women whose C primary allegiance shall be to the people of India”. The object, they stated, of achieving such a fighting forces should be “not to suppress their democratic rights as far as possible”.12

14Copy pinpoint14. The dissent has remained a note in history. The task of the Court is to construe the provisions of Section 9 as they stand. D

15Copy pinpoint15. Section 184 of the 1957 Act contemplates regulations being made by the Central Government for governance, command, discipline, recruitment, conditions of service and regulation of the Naval Forces and, generally for the purpose of effectuating the provisions of the 1957 Act. The power to frame regulations includes those in relation to the rank, terms and conditions of service, pay, pension, allowances and other benefits. The Regulations are required to be laid before each House of Parliament under Section 185. Part III of Chapter I of the Regulations for the Indian Navy contain the 1963 Regulations. The AFT in its decision noted that in the absence of a counter to the stand taken by the applicants that the 1963 Regulations are statutory in nature, it will have to be presumed that the Regulations are referable to the provisions of Section 184.

16Copy pinpoint16. Section II deals with officers in the Executive branch inducted on SSCs. Regulation 122(1) makes provisions governing “the entry, training and promotion of officers granted SSCs in the Executive branch of the G Indian Navy”. Regulation 122(2) contains a stipulation that the candidate must be an “unmarried male”:

12 We acknowledge the research into this aspect made by ms Liz Mathew, learned Counsel who has drawn it to the attention of the Court during the course of the hearing. H

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 455 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

“(2) Nationality. – A candidate must be an unmarried male and A must fulfil the conditions regarding the nationality as laid down by the Government.”

17Copy pinpoint17. Under Regulation 122(9), an officer is to be on probation for one year or until the completion of initial training, whichever is later. Regulation 122(14) provides: B “(14) Permanent Commissions. – Suitable officers may be considered for the grant of Permanent Commission in the Indian Navy at any time after successful completion of the period of probation, subject to the existence of vacancies and the regulations current at the time.” C

18Copy pinpoint18. Section IV of the Regulations deals with officers in the Engineering branch inducted on SSCs. Regulation 124(2) contains a provision similar to Regulation 122(2) which restricts SSCs only to “unmarried males”. Section VI provides for SSCs in the Electrical branch. Regulation 126(2) contains a similar restriction of eligibility to “unmarried D males”. Regulations 124(14) and 126 (14) contain provisions for the grant of PCs.

19Copy pinpoint19. Chapter IX of the Regulations is titled “Grant of Permanent Commission to Short Service Commission Officers”. Regulation 203 contains the following stipulation in regard to the grant of PCs : E “203. Grant of Permanent Commission. – (1) Subject to the availability of vacancies in the stabilized cadre of the Navy, Permanent Commission may be granted from time to time to Short Service Commission Officers of the rank of Sub-Lieutenant and above who are considered suitable and are recommended by the F Chief of the Naval Staff. (2) Officers granted Permanent Commission may be transferred with their existing rank and seniority. The retention of any acting rank held by an officer at the time of transfer to a Permanent Commission shall be governed by Regulation 202. G (3) Short Service Commission Officers selected for the grant of Permanent Commission in the Navy shall conform to the medical standard laid down by the Chief of the Naval Staff from time to time.” H

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20Copy pinpoint20. Regulation 203 (1) conditions the grant of PCs to three factors: (i) Availability of vacancies in the stabilised cadre; (ii) Consideration of suitability; and (iii) A recommendation of the Chief of Naval Staff. B Regulation 203 applies to SSC officers of the rank of Sub-lieutenant and above.

21Copy pinpoint21. A comparison may be made of the provisions of Regulation 122 (14) and Regulation 203. Regulation 122(14) stipulates that suitable officers may be considered for the grant of PC in the Navy after the C successful completion of the period of probation, subject to the existence of vacancies and the regulations current at the time. Regulation 203 provides for the consideration of the grant of PCs from time to time to SSC officers of the rank of Sub-lieutenant and above subject to their suitability, availability of vacancies in the stabilized cadre of the Navy D and the recommendation of the Chief of Naval Staff. Regulation 122(14) applies to all officers in the Executive branch of SSC officers. Regulation 203 applies to all officers of the rank of Sub-lieutenant and above. The AFT observed that Regulation 203 would apply to the OAs before it since the applicants were recruited as SSC officers in the rank of Sub- lieutenant and were promoted thereafter. E

22Copy pinpoint22. The Indian Navy consists of four branches – Executive, Electrical, Engineering and Education. On 9 October 1991, the Union Government, pursuant to the enabling power conferred by Section 9(2), issued a notification by which women were made eligible for appointment as officers of the Indian Navy in three cadres/branches which were: F (i) Logistics; (ii) Law; and (iii) Education. The Law and Logistics cadres belong to the Executive branch of G the Indian Navy.

23Copy pinpoint23. At the material time when the 1963 Regulations were notified, no notification had been issued in pursuance of the power conferred under Section 9(2) and no women were commissioned as SSC officers. Consequently, the regulations were restricted only to male officers. The H

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 457 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

notification which was published in the Gazette of India on 9 October A 1991 was to be in force for five years. The consequence of the issuance of this notification under Section 9(2) was that the restriction on the appointment or enrolment of women was lifted for specified cadres/ branches of the Navy. Once the notification was issued under Section 9(2), the provisions in the 1963 Regulations restricting the grant of SSCs B to males would stand lifted insofar as the cadres/branches where the entry of women was notified.

24Copy pinpoint24. On 20 December 1991, the Union Government in the MoD addressed a communication to the Chief of Naval Staff conveying the sanction of the President for the induction of SSC officers, including women in the Education branch of the Indian Navy and stipulating the C terms and conditions of service. Para 2 of the letter stipulated the eligibility for appointment on SSCs thus: “Eligibility. A candidate must be an unmarried male or female and must fulfill conditions regarding the nationality as laid down by the Government.” D

(Emphasis supplied) Para 3 stipulated that candidates would be inducted on SSC for seven years and that the period could be extended with the consent of the officer for two years at a time. Para 4 contemplated that the policy in regard to the grant of PCs would be promulgated in 1997: “Grant of Permanent Commission. The policy in this regard will be promulgated in 1997.” Para 6 stipulated that the rules for entry and promotion would be those prescribed in Part III of the 1963 Regulations of the Navy, as sanctioned by the Union Government for the entry of male / PC officers in the Education branch except as specified therein. Para 15 stipulated that the induction of women under the scheme was to be initially for a period of five years, which would be reviewed thereafter.

25Copy pinpoint25. The above notification dated 20 December 1991 had the following reference number: “MP/0417/NHQ/1110/DO/D(N-IV)” On the same day – 20 December 1991 - the Union Government in the MoD addressed another communication to the Chief of Naval H

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A Staff conveying the sanction of the President for the induction of SSC officers including women into the Law and Logistics cadres of the Executive branch of the Indian Navy and stipulating the terms and conditions of service therein. The letter stipulated that the terms and conditions of service would be those prescribed in Regulation 122 of the 1963 Regulations and in the Union Government’s letter dated 20 B December 1991 regarding the entry of SSC officers in the Education branch, except as set out in the notification. The reference number of this notification was: “MP/0417/NHQ/1111/DO/D(N-IV)”

26Copy pinpoint26. On 1 July 1992, the Union Government in the MoD sanctioned the intake of thirty-five officers on SSCs for a period of five years in the ATC cadre. Paragraph 11 specified the policy for the grant of PC in the following terms: “11. Grant of Permanent Commission. There will be no D provision for the grant of Permanent Commission.” It was stipulated that no PCs would be granted (for both men and women) in the ATC cadre.

27Copy pinpoint27. The Southern Naval Command, by a letter dated 15 May 1998 made a reference to an earlier letter dated 20 April 1998 of the Naval E Headquarters clarifying that the services of women SSC officers were extendable for a period of upto ten years with the consent of the officers, with each extension being of not more than two years.

28Copy pinpoint28. On 6 November 1998, the Union Government once again exercised its authority under Section 9(2) to make women eligible for F appointment as officers in all the branches of the Indian Navy: (a) Executive; (b) Engineering; (c) Electrical; and G (d) Education. The earlier exercise of power under Section 9(2) had rendered women eligible for appointment as officers of the Indian Navy in the Logistics and Law cadres and the Education branch. The subsequent

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 459 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

notification dated 6 November 199813 extended the field of eligibility A under Section 9(2) to all four branches in the Indian Navy.

29Copy pinpoint29. On 25 February 1999, the Union Government in the MoD issued a communication to the Chief Naval Staff. The contents of the notification have a substantive bearing in the present case and are hence extracted below: B “ No. MP/0417/1/NHQ/425D(N-II) Government of India, Ministry of Defence, New Delhi, the 25th February, 1999 C

To The Chief of the Naval Staff (with 30 spare copies) D

Subject : TERMS AND CONDITIONS OF SERVICE OF SSC OFFICERS (INCLUDING WOMEN) Sir, E

I am directed to refer to GOI, MOD letters No MP/0417/NHQ/ 1110/DO/D(N-IV) dated 20 Dec 1991 and MP/0417/1/NHQ/1111/ DO/D(N-IV) dated 20 Dec 1991 and convey the sanction of the President for the following:- F (a) Grant of Permanent Commission. The policy for grant of Permanent Commission will be in accordance with Article 203, Chapter IX of Regulations Navy Part III. (b) Employment/Sea Service. Women officers of all Branches/ G cadres may also be directed to serve on board ships, during training & subsequent employment should the exigencies of Service so require.

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A 2. This issues with the concurrence of the Ministry of Defence (Finance/Navy) vide their ID No. 22/NA/S of 1999.

Yours faithfully, B (SN Gupta) Under Secretary to the Government of India Copy to :- The DA DS, New Delhi C The DDADS, Mumbai The CGDA, New Delhi – 2 copies The CDA (N), Mumbai – 2 copies (one signed in ink) The DFA (N), New Delhi – 2 copies”

30Copy pinpoint30. The above communication contains a reference to the two earlier letters dated 20 December 1991, which we have noted above bearing the reference numbers MP/0417/NHQ/1110/DO/D(N-IV) and MP/0417/NHQ/1111/DO/D(N-IV).

31Copy pinpoint31. The two significant facets of the above communication dated 25 February 1999 are: first, the policy for the grant of PCs to women officers would be in accordance with the Regulation 203 of Chapter IX of the 1963 Regulations; and second, women officers of all branches and cadres may be directed to serve on board ships, both during training and subsequent employment in accordance with the exigencies of service.

32Copy pinpoint32. Subsequently, on 27 February 2002, the Union Government F conveyed the sanction of the President to extend the tenure of SSC officers in the Navy to fourteen years.

33Copy pinpoint33. In July 2002, the Indian Navy issued an advertisement inviting applications from men and women for appointment as SSC officers in the ATC and Logistics cadres and the Education branch. While inviting G applications, the advertisement specified that: “ SHORT SERVICE COMMISSION

5. Short Service Commission is granted for a term of 07 years, extendable to 10 years. On completion of tenure of SSC, officers are released with gratuity as admission under the rules. Based on H

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 461 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

their performance and requirements of service, the deserving A officers may also be considered for Permanent Commission.”

34Copy pinpoint34. There was a specific representation that ‘deserving officers’ may be considered for PCs based on their performance and the requirements of service.

35Copy pinpoint35. It is necessary to note at this juncture that the women SSC B officers in Annie Nagaraja’s case were inducted between 1992 and 2001 pursuant to the notifications dated 9 October 1991, 20 December 1991 and 1 July 1992. On the other hand, the women SSC officers in Priya Khurana’s case were inducted as SSC officers pursuant to the advertisement issued in July 2002. C

36Copy pinpoint36. On 26 September 2008, the MoD issued a communication to the Chiefs of the Army, Naval and Air Staff regarding the grant of PCs to SSC women officers. The communication, which is the subject matter of the challenge in the present appeals, is extracted below: “ No. 12(1)/2004-D(AG). Pt II D Government of India, Ministry of Defence New Delhi, the 26th September, 2008 To E

The Chief of the Army Staff The Chief of the Naval Staff The Chief of the Air Staff F

Subject: Permanent Commission to SSC Women Officers I am directed to convey the sanction of the President to offer Permanent Commission prospectively to Short Service Commission (Women) Officers to be inducted in Judge Advocate G General (JAG) Department and Army Education Corps (AEC) of Army and their corresponding Branch/Cadre in Navy and Air Force. Accounts Branch of the Air Force and Naval Constructor of the Navy in addition to current provision for Grant of PC to SSC (Men) Officers. H

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A 2. Suitable administrative instruction in this regard will be issued by respective Service HQs.

3. This issues with the concurrence of the MoD(Fin) vide their UO No. 552/AG/PA dated 26.9.2008.

B (S.C. Barmma) Director (AG) Copy to :- As per standard Distribution”

37Copy pinpoint37. The two significant facets of the above communication are: C first, the grant of PC was made prospective to SSC women officers “to be inducted” in the specified cadres/branches. As a consequence, PCs were denied to women SSC officers who were already in service; and second, PCs were confined to specific cadres and branches in the case of SSC women officers in the Army, Navy and Air Force. Insofar as the D Navy is concerned, PCs were to be granted in the cadres/branches corresponding to the Judge Advocate General14 and Education branches of the Army in addition to the Naval Constructor cadre of the Navy. The communication dated 26 September 2008 contains no reference to the earlier policy communication dated 25 February 1999.

38Copy pinpoint38. On 3 December 2008, the Integrated Headquarters of the MoD (Navy) issued implementation guidelines for selecting SSC officers for the grant of PCs in the Navy from the following branches/cadres: Srl Branch/Cadre Batch Commencing Remarks (a) Education Jun 09 Men and F Women officers (b) X/Law When scheduled (c) E/Naval Architecture Jul 09

39Copy pinpoint39. The tabulation above indicates that the grant of PCs was G envisaged only prospectively for batches inducted after January 2009 and in only three cadres/branches as noted above. This was in terms of the earlier decision dated 26 September 2008. Para 4 of the implementation guidelines provides for the constitution of a board for the selection of SSC officers for the grant of PCs: 14 H “JAG”

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“4. Constitution of Board. A Board will be constituted under the A chairmanship of COP for selecting SSC officers of Branches/ Cadres mentioned at Para 2 above for the grant of PC. The Board will be guided by Regulation 203 of Regulations for the Indian Navy Part III (Statutory).”

40Copy pinpoint40. Para 5 which deals with selection provides as follows: B “5. Selection. The eligible officers are thereafter to be empaneled for grant of PC. The Branch/Cadre-wise selection would be based on inter-se merit based on ACRs held on the officers under consideration and subject to availability of vacancies.”

41Copy pinpoint41. Selection, in other words, of officers for the grant of PCs is to C be based on inter se merit determined on the basis of the Annual Confidential Reports15 of the officers under consideration and subject to the availability of vacancies.

42Copy pinpoint42. The judgment of the Delhi High Court in Babita Puniya has been the subject matter of the recent decision rendered by this Court in D The Secretary, Ministry of Defence v Babita Puniya16. This Court issued the following directions: “69. We accordingly take on record the statement of policy placed on the record in these proceedings by the Union Government in the form of the letter dated 25 February 2019 and issue the following E directions: (i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following: F (a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in G service as SSC officers;

15 “ACRs” 16 2020 (3) SCALE 712 H

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A (c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; (e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced; (f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and (g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts. E (ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and (iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits F including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.” G C Submissions

43Copy pinpoint43. Mr Sanjay Jain, learned Additional Solicitor General for India prefaced his submissions by urging: (i) Sea-going duties in the Indian Navy unlike the Army or Air Force have a distinctive feature since there is no immediate return to base;

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(ii) The policy has been to exclude women from sea-going branches with the exception of the Logistics cadre; (iii) There are practical difficulties in allowing the induction of women SSC officers on PCs: the Indian Navy substantially operates on vessels of a Russian origin in which there is an absence of toilet facilities for women; and B (iv) There is a possibility of certain branches involving sea-going duties being opened up for women officers on PCs in the near future as new ships are introduced into the Naval fleet.

44Copy pinpoint44. Mr Jain submitted that the Indian Navy does not discriminate between men and women. In 1991, SSCs were opened up in the Law C and Logistics cadres and the Education branch on a uniform basis. To these branches were added ATC (1991), Naval Constructor (2001), Naval Armament Inspectorate (2017) and Observer Specialization (2018). As for PCs, as a result of the policy decision taken on 26 September 2008, Law and Naval Constructor cadres and the Education branch were D opened up which was followed up in 2017 with the Naval Armament Inspectorate. Mr Jain submitted that 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. Elaborating on his submissions, Mr Jain urged that: E (i) The decision of the Delhi High Court in Babita Puniya has been recently upheld by this Court; (ii) The provisions of Section 9(2) of the 1957 Act are not under challenge; (iii) The avenues for women which have opened up in the Indian F Navy stem from the exercise of power under Section 9(2); (iv) Direct entry through PCs is not a matter in issue in the present appeals; and (v) The grant of PCs is not automatic but on the assessment of merit inter se. G

45Copy pinpoint45. In defence of the policy decision taken by the Union Government on 26 September 2008 making the grant of PCs to SSC women officers prospective and in stipulated cadres/branches, Mr Jain submitted that while envisaging the grant of SSCs to women on 20 H

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A December 1991, it was contemplated that the policy for the grant of PCs would be promulgated in 1997. On 25 February 1999, the MoD while outlining the terms and conditions of service of SSC officers including women stipulated that the policy for the grant of PCs “will be in accordance with Regulation 203”. In his submission, the policy of 1999 was indicative of the fact that the Union Government wanted to B frame a policy in the future. Such a policy, it was contended, was framed in 2008 on the basis of which the implementation guidelines were notified. Hence, he urged that in the case of the Indian Navy, no promise was held out to women officers recruited on SSCs of being granted PCs in the future. On this basis, it has been urged that no rights had accrued to C SSC women officers on the basis of the policy which was notified on 25 February 1999. Hence, the Union Government was justified in notifying a policy for the first time on 26 September 2008 making it prospective and confining its application to specified cadres/branches.

46Copy pinpoint46. Resisting the above submissions, Mr CU Singh, learned Senior D Counsel urged that: (i) The restraint which is imposed on the eligibility of women for appointment or enrolment in the Indian Navy is lifted upon the issuance of a notification by the Central Government under Section 9(2) of the 1957 Act; E (ii) Upon the issuance of the notifications under Section 9(2) on 9 October 1991 and 6 November 1998, the provisions contained in the 1963 Regulations for the grant of PCs would apply proprio vigore; (iii) As a consequence, upon the issuance of a notification under F Section 9(2), the restrictions imposed in Regulations 122(2), 124(2) and 126(2) confining eligibility only to male officers would not apply since the Regulations are subservient to the parent statute; (iv) Regulation 203 of Chapter IX of the 1963 Regulations G contains a specific provision for the grant of PCs subject to the availability of vacancies, consideration of suitability and the recommendation of the Chief of Naval Staff; (v) On 20 December 1991, the Union Government while opening up certain cadres/branches for the induction of H

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Short Service Commissioned officers including women A contemplated that the policy for the grant of PCs would be promulgated in 1997. The policy which was issued on 25 February 1999 contained a specific reference to the two letters dated 20 December 1991 of the MoD and is hence referable to the earlier commitment; B (vi) On 6 November 1998, a notification was issued under Section 9(2) opening up the appointment of women as officers in the Executive, Engineering, Electrical and Education branches. These four branches encompass nineteen sub-branches: C · Executive branch - 13 · Engineering branch - 2 · Electrical branch - 2 · Education branch - 2 D (vii) The policy communication dated 25 February 1999 stipulated that the policy for the grant of PCs will be in accordance with Regulation 203 and specifically permitted sea-service for women; (viii) The submission of the Union Government that the policy E document of 25 February 1999 is only an intent to frame a policy in the future is belied by the express terms of the document as well as by the advertisement issued in July 2002 for SSC officers, which contemplated their consideration for the grant of PCs; and F (ix) The policy issued on 26 September 2008 has justifiably been held to be arbitrary and invalid by the AFT. The policy contains no reference to the notifications issued in 1991 or to the Presidential sanction of 25 February 1999. On a review of the files, the AFT came to the conclusion that the sanction which was issued on 25 February 1999 was not G placed before the Board which gave its sanction to the subsequent policy dated 26 September 2008. As a result of the policy document dated 26 September 2008, there would be a complete denial of PCs to those women officers recruited after 1991, including those recruited under the H

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A advertisement issued in July 2002 which expressly stipulated that PCs may be granted in deserving cases. On the above rationale, Mr CU Singh has urged that there is no merit in the appeals filed by the Union of India. Mr CU Singh stressed that according to a release of the Press Information Bureau, the B authorised strength of the Navy as on 1 July 2018 was 11,352. The held strength was 9,746, resulting in a shortage of 1,606 officers. As on 1 June 2019, the authorized strength is 11,567 while the held strength is 10,012, thus resulting in a shortage of 1,555 officers.

47Copy pinpoint47. Mr Santosh Krishnan, learned counsel has urged: C (i) The policy letter dated 26 September 2008, in so far as it is prospective and has been restricted to certain cadres/ branches, is liable to be set aside. In the Logistics cadre and the Education branch, male officers are inducted directly as PC officers. The absolute denial of consideration for the grant of PCs to SSC women officers is discriminatory in nature; (ii) The policy letter dated 26 September 2008 is ultra vires the policy letter dated 25 February 1999 and Regulation 203 of the 1963 Regulation. The findings of the AFT in this regard are to be upheld. Regulation 203, as subordinate legislation, outweighs executive instructions; (iii) The Union Government has challenged before this Court the judgment of the AFT only in one OA. Consequently, the Union Government is deemed to have accepted the judgment of the AFT qua the other women SSC officers who were inducted in pursuance of the advertisements issued in July 2002; and (iv) No stay was granted by this Court on the judgment of the AFT. It is the failure of the Union Government to implement the judgment of the AFT which has led to cascading litigation since 2016 by officers seeking similar protection. Around 160 men have been recruited as direct PC officers in the last ten years. This belies the contention urged on behalf of the Union Government that there is a ‘personnel saturation’ in the Logistics cadre. A saturation in the cadre, if any, is a H result of the failure of the Union Government to implement

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the judgment of the AFT. Women SSC officers have been A kept out of the zone of consideration despite the binding directions in Annie Nagaraja’s case and Priya Khurana’s case.

48Copy pinpoint48. Ms Haripriya Padmanabhan, learned counsel appearing for the respondent nos. two to six in Annie Nagaraja’s case urged: B (i) 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; (ii) The notifications issued by the Union Government in 1991 stipulated that the policy for the grant of PCs would be promulgated in 1997. Women officers, inducted on SSCs pursuant to these notifications, had a legitimate expectation that they would be considered for the grants of PCs; (iii) The legitimate expectation of the women SSC officers crystalised into a right upon the issuance of the policy letter dated 25 February 1999, which states that the grant of PCs shall be in accordance with Regulation 203 of the 1963 E Regulations; (iv) The advertisements issued in July 2002 contained an express stipulation that deserving SSC officers may be considered for the grant of PCs; and (v) The second to sixth respondents were commissioned as F SSC officers in the Indian Navy between 1992 and 1994 and were among the first batches of women officers in the Navy. They completed their service and were released between 2006 and 2008 prior to the issuance of the policy letter dated 26 September 2008. Though the interim order G of this Court dated 20 November 2015 protected only those women SSC officers in service on the date of the issuance of the policy, their right of being considered for the grant of PCs arose by virtue of the policy letter dated 25 February

1999. Though out of service for over twelve years, this H

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A Court may consider their reinstatement and the grant of PCs.

49Copy pinpoint49. Ms Aishwarya Bhati, learned Senior Counsel appearing on behalf of Commander Seema Chaudhary (JAG SSC officer) has canvassed submissions in line with those urged by Mr CU Singh, learned B Senior Counsel and Mr Santosh Krishnan, learned counsel. In addition to these submissions, it was urged that facially neutral laws, as in the present case, have a discriminatory effect against women SSC officers. Male officers have, it was urged, always been afforded a choice between being inducted either as SSC officers or directly as PC officers. Despite the non-consideration of the grant of PCs to male SSC officers, PC C avenues were in fact available to men. On the other hand, women SSC officers are neither recruited directly as PC officers nor are SSC women officers considered for the grant of PCs. This, it was urged, belies the submission of the Union Government that the non-consideration of both male and women SSC officers for the grant of PC is gender neutral and not discriminatory.

50Copy pinpoint50. The rival submissions fall for consideration. D Preliminary Objection

51Copy pinpoint51. Before we deal with the rival submissions on merits, it is necessary to advert to a preliminary objection which was urged by Mr CU Singh, learned Senior Counsel to the maintainability of the appeal17 filed by the Union of India in Priya Khurana’s case. Mr CU Singh urged that when the SSC women officers sought to challenge the judgment of the AFT, leave to appeal was separately sought and was granted by the AFT to move this Court. This led to the filing of six Civil Appeals by the officers18. However, the Union of India sought the leave of the AFT to file an appeal before this Court19 only in one OA. No leave was sought to appeal in the other OAs. 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. In this submission, the judgment of the AFT which held that the policy communication dated 26

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 471 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

September 2008 is ultra vires binds the Union of India in the five cases A where no appeal has been filed. 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. In this context, reliance was placed on the decision of this Court in Sri Gangai Vinayagar Temple v Meenakshi Anmal20. B

52Copy pinpoint52. Opposing the above submission, Mr Sanjay Jain, learned ASG submitted that the decision which was relied on by Mr CU Singh arose in the context of a civil suit while the scheme under the AFT Act 2007 is distinct.

53Copy pinpoint53. Section 30(1) of the AFT Act 2007 provides as follows: C “30. Appeal to the Supreme Court. – (1) Subject to the provisions of Section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under Section 19): Provided that such appeal is preferred within a period of ninety D days of the said decision or order. Provided further that there shall be no appeal against an interlocutory order of the Tribunal.” Section 31 is in the following terms: E “31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court. (2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal. (3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, 20 (2015) 3 SCC 624 H

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A until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time.” The above provisions were interpreted by a Bench of two learned B judges of this Court in Union of India v Brigadier PS Gill21.This Court held that there are two distinct routes for filing an appeal against a final order of the AFT (other than an order passed in the jurisdiction to punish for contempt). The first route is the grant of leave by the Tribunal to file an appeal before the Supreme Court under Section 31(1). The second route empowers this Court to permit the filing of an appeal against a C final decision or order of the Tribunal if it appears to this Court that the point is one which ought to be considered by that Court. In this context, the Court held: “8. Section 31 of the Act extracted above specifically provides for an appeal to the Supreme Court but stipulates two distinct D routes for such an appeal. The first route to this Court is sanctioned by the Tribunal granting leave to file such an appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court unless the Tribunal certifies that a point of law of general public importance is involved in the decision. This implies that Section E 31 does not create a vested, indefeasible or absolute right of filing an appeal to this Court against a final order or decision of the Tribunal to this Court. Such an appeal must be preceded by the leave of the Tribunal and such leave must in turn be preceded by a certificate by the Tribunal that a point of law of general public importance is involved in the appeal. F

9. The second and the only other route to access this Court is also found in Section 31(1) itself. The expression “or it appears to the Supreme Court that the point is one which ought to be considered by that Court” empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal. G

10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up 21 H (2012) 4 SCC 463

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 473 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court.”

54Copy pinpoint54. The Court also dealt with the question whether an application for leave to appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1). The Court held that an aggrieved party cannot approach this Court directly for the grant of leave to file an appeal under Section 31(1) read with Section 31(2). The Court held: C “14. The scheme of Section 31 being that an application for grant of a certificate must first be moved before the Tribunal, before the aggrieved party can approach this Court for the grant of leave to file an appeal. The purpose underlying the provision appears to be that if the Tribunal itself grants a certificate of fitness for filing an appeal, it would be unnecessary for the aggrieved party to D approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression “an appeal shall lie to the Supreme Court”. That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and E 31.”

55Copy pinpoint55. The learned ASG has urged that though the Union Government did not seek the grant of leave by the AFT for the companion five cases and as a matter of fact sought the grant of leave only in one case, they should not be foreclosed from challenging the judgment of the AFT. F Mr Jain submitted that a common judgment has been delivered by the AFT dealing with issues of far-reaching importance bearing on legal questions involved and hence it would be desirable for the Court to consider the matter on merits.

56Copy pinpoint56. The learned Counsel appearing before this Court have G addressed arguments on the merits of the issues raised in the judgments of the Delhi High Court and AFT. We are nevertheless required to adjudicate upon the validity and effect of the policy letter dated 26 September 2008 in the appeals filed by the SSC women officers in Annie Nagaraja’s and Priya Khurana’s case. In order to render a final H

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A adjudication, we propose to deal with the appeals on merits. We leave open the question of law raised in the preliminary objection of Mr CU Singh to be considered in an appropriate case in future. EValidity of the policy letter dated 26 September 2008

57Copy pinpoint57. Article 33 of the Constitution entrusts to Parliament to determine, by law, the extent to which any of the rights conferred by Part III of the Constitution can be restricted or abrogated in their application to the members of the Armed Forces “so as to ensure the proper discharge of their duties and the maintenance of discipline among them”. Besides the requirement that a restriction must be determined by law, Article 33 postulates a nexus between the restriction or abrogation and the need for the proper discharge of duties and the maintenance of discipline among members of the Armed Forces.

58Copy pinpoint58. In Lt. Col. Prithi Pal Singh Bedi v Union of India,22 the legality of orders convening a General Court Martial and its composition was questioned. It was contended that trial by a Court Martial would result in the deprivation of personal liberty, which can only be done in consonance with Article 21 of the Constitution. It was contended that any restriction must be by procedure established by law and the law prescribing such procedure must satisfy the test prescribed by Articles 14 and 19 of the Constitution. Justice D A Desai, writing for a three judge Bench of this Court noted the competing interests that must be considered in matters concerning the Armed Forces in the following terms: “14. While investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power conferred by Article 33, on the guaranteed fundamental rights to all citizens of this country without distinction, in respect of armed personnel, the court should be vigilant to hold the balance between two conflicting public interests; namely necessity of discipline in armed personnel to preserve national security at any cost, because that itself would ensure enjoyment of fundamental rights by others, and the denial to those responsible for national security of these very fundamental rights which are inseparable adjuncts of civilised life…”

22 H (1982) 3 SCC 140

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The Court held that the public interest in the maintenance and preparedness of the Armed Forces of the nation has to be weighed with an equally compelling public interest in balancing the abrogation or restriction of fundamental rights of the officers in the Armed Forces. For this reason, Article 33 specifies that any restriction imposed must be by law and in order to ensure the proper discharge of their duties and the maintenance of discipline among them. The Court rejected the challenge and held: “…Article 33 does not obligate that Parliament must specifically adumbrate each fundamental right enshrined in Part III and to specify in the law enacted in exercise of the power conferred by Article 33 the degree of restriction or total abrogation of each right. That would be reading into Article 33 a requirement which it does not enjoin…it is not possible to accept the submission that the law prescribing procedure for trial of offences by court martial must satisfy the requirement of Article 21 because to the extent the procedure is prescribed by law and if it stands in derogation of D Article 21, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself.”

59Copy pinpoint59. In R Viswan v Union of India,23 one of the issues concerned whether Section 21 of the Army Act, 1950 read with Chapter IV of the E Army Rules, 1954 is within the scope and ambit of Article 33 of the Constitution. Section 21 empowers the Central Government by notification to make rules restricting “to such extent and in such manner as may be necessary” certain fundamental rights in their application to persons subject to the 1950 Act. Justice P N Bhagwati (as the learned Chief Justice then was), speaking for a Constitution Bench of this Court held: F

“A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among G them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution-makers were

23 (1983) 3 SCC 401 H

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A obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the armed force personnel and therefore Article 33 empowered Parliament to restrict or abridge within permissible extent, the rights conferred under Part III of the Constitution insofar as the armed force personnel are concerned.” (Emphasis supplied) The Court noted that restrictions imposed upon fundamental rights in exercise of the power conferred by Article 33 must be “absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline”. The Court held: “…Parliament was therefore within its power under Article 33 to enact Section 21 laying down to what extent the Central D Government may restrict the Fundamental Rights under clauses (a), (b) and (c) of Article 19 (1), of any person subject to the Army Act, 1950, every such person being clearly a member of the Armed Forces… The guideline for determining as to which restrictions should be considered necessary by the Central Government within the permissible extent determined by E Parliament is provided in Article 33 itself, namely, that the restrictions should be such as are necessary for ensuring the proper discharge of their duties by the members of the Armed Forces and the maintenance of discipline among them. The Central Government has to keep this guideline before it in exercising the F power of imposing restrictions under Section 21 …” 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 Singh24 G and Mohd. Yunus Khan v State of UP.25

60Copy pinpoint60. Section 9(2) of the 1957 Act conditions the restriction on the appointment or enrolment of women in the Indian Navy by entrusting to the Union Government the authority to issue notifications allowing for 24 (2002) 9 SCC 73 25 (2010) 10 SCC 539 H

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the engagement of women in departments, branches or bodies forming A a part of or attached to the Navy or the Indian Naval Reserve Forces. Acting in exercise of this authority, the Union Government initially issued a notification on 9 October 1991 and thereafter on 6 November 1998. By the first of those notifications, women were made eligible for appointment as officers in the Indian Navy in the Law and Logistics B cadres and the Education branch. The second notification dated 6 November 1998 broadened the scope of the permissible areas for the entry of women as officers in the Indian Navy by enabling their entry in all the four branches - Executive, Engineering, Electrical and Education. Significantly, neither of the notifications dated 9 October 1991 nor 6 November 1998 restrict the appointment or enrolment of women only C on SSCs. Both notifications stipulate that women shall “be eligible for appointment as officers in the Indian Navy” in the branches specified. The consequence of the two notifications is to lift the bar envisaged in Section 9(2) and to allow for the induction of women as officers in the Indian Navy in the specified cadres/branches. D

61Copy pinpoint61. Close on the heels of the first notification dated 9 October 1991 issued under Section 9(2), the MoD issued two notifications on 20 December 1991 with successive numbers of reference providing for the terms and conditions of service of SSC officers, including women. The first letter (bearing reference No. 1110) concerned SSC officers in the Education branch. As we have noted, para 4 of the notification specifically contemplated that the policy in regard to the grant of PCs would be promulgated in 1997. The second letter (bearing reference No. 1111) concerned SSC officers in the Law and Logistics cadres and adopted the terms of the earlier letter, save to the extent specified therein. As there was no specific stipulation concerning the grant of PCs in the second letter, the stipulation in para 4 of the first notification (bearing reference No. 1110) applies to SSC officers inducted in the Law and Logistics cadres.

62Copy pinpoint62. 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. The policy for the grant of PCs was hence envisaged to be notified before or around the expiry of the short service tenures notified in 1991. The stipulation on the tenure of seven years H

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