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

A was subsequently extended to ten years in 1998 and to fourteen years in 2002.

63Copy pinpoint63. It is in the above background, that the policy communication of the Union Government dated 25 February 1999 has to be understood. Regulation 203 of the 1963 Rules lays down the norms for the grant of B PCs. The grant of PCs is made subject to: (i) The availability of vacancies in the stabilised cadre; (ii) Suitability of the candidate; and (iii) A recommendation by the Chief of Naval Staff.

64Copy pinpoint64. The policy communication dated 25 February 1999 was not anticipatory in nature. What the communication spelt out was that the grant of PCs to SSC officers would be in terms of Regulation 203. This would cover both men and women officers serving on SSCs. The expression “the policy for grant of Permanent Commission will be” in D accordance with Regulation 203 cannot be construed to mean that the policy was yet to be framed or that until a future date when a policy would be notified, there was no entitlement to be considered for the grant of PCs. The import of the policy document dated 25 February 1999 was to bring the grant of PCs to all SSC officers including women in accordance with Regulation 203. E

65Copy pinpoint65. The course of the evolution of policy from 9 October 1991 clearly indicates a legitimate expectation on part of the SSC officers (both men and women) of being governed by the provisions of Regulation 203 being considered for the grant of PCs. The Navy Regulations, when they were originally drafted in 1963, did not contemplate the induction of women. For this reason, Regulations 122(2), 124(2) and 126(2) spoke of only “unmarried males” being eligible for induction on SSCs. The Regulations being subservient to statute, incorporated restrictions which comported with the provisions of Section 9(2). However, what Section 9(2) envisages is that the restrictions on the enrolment or appointment of women in branches or departments of the Indian Navy would be lifted upon the issuance of a notification by the Union Government sanctioning the entry of women officers, subject to the conditions which may be specified. Both in the notifications dated 9 October 1991 and 6 November 1998, the Union Government lifted the statutory bar in exercise of its enabling power under Section 9(2) by allowing for the entry for women as officers in the Indian Navy in stipulated branches. Once the statutory

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bar stood lifted, the appointment of SSC officers, both men and women on PCs would be governed uniformly by the provisions of Regulation

203. This was made abundantly clear by the policy letter dated 25 February 1999 which was issued in compliance with the legal regime. The grant of PCs to SSC men and women officers aligned with the provisions of Regulation 203 which plainly is a matter of law. Thus, the contention urged by Mr Sanjay Jain, learned Additional Solicitor General that the communication dated 25 February 1999 was merely anticipatory in nature and that the entitlement to be considered for the grant of PCs would have to await a further policy, which came into being on 26 September 2008 cannot be accepted. The communication dated 25 February 1999 of the MoD had the sanction of the President and consequently cannot be disregarded as suggested in the arguments urged by the Union of India in these proceedings.

66Copy pinpoint66. In addition to the above observations, in Priya Khurana’s case which concerned women officers of the 2002 batch, an advertisement had been issued by the authorities inviting applications from men and women for joining as SSC officers in the ATC and Logistics cadres and the Education branch. The advertisement clearly stipulated that based on their performance and the requirements of service, deserving officers “may also be considered for Permanent Commission.” Subsequent employment notices issued in 2003-4 did not contain such a stipulation. The employment notice of July 2002 was not in conflict with the provisions contained in Regulations 203. Regulation 203 uses the phrase “from time to time”, indicating thereby that it was open to the competent authority to determine the grant of PCs to the SSC officers based on the availability of vacancies, suitably and the recommendation of the Chief of the Naval Staff. Hence, in July 2002, when the Navy F invited applications for SSCs in stipulated branches, it held out a clear representation that deserving cases may be considered for the grant of PCs.

67Copy pinpoint67. The policy decision of the MoD dated 26 September 2008 governed the grant of PCs to SSC women officers in the Army, Navy G and Air Force. The communication, by stipulating that it would apply to SSC women officers “to be inducted”, purported to exclude women SSC officers in service from being considered for the grant of PCs. It also sought to restrict the cadres/branches in which PCs could be granted to women SSC officers. The AFT has noted after it had summoned the H

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A files, that the earlier policy decision of 25 February 1999 was not placed before the decision making authorities. The AFT concluded that while a policy framed by the government is amenable to change or alteration, decision making by the government is subject to the norms of reasonableness and a non-arbitrary exercise of power. The AFT noted: B “…the said record reveals that the Chairman of the COSC never recommended that the policy should apply to persons who have subsequently been recruited and shall not apply to in-service SSC Officers… The aforesaid record pertaining to the policy-decision dated 26th C September 2008 does not reveal consideration of the existing policy-decision dated 25 February 1999. No deliberation, as it appears from the aforesaid record, was made as to why the existing policy relating to the grant of PC to SSC officers, irrespective of the gender, as well as the branches/cadres requires modification/ change. The said record reveals that even the Raksha Mantri D was kept in the dark about the existing policy-decision dated 25 February 1999. Though the respondent-authorities are free to change their earlier policy, the reason for the change must be reflected on the record pertaining to such change, so also the consideration as well as the deliberation on the existing policy, which as discussed above, are absent in the case at hand” Evidently, in the view of the AFT, the decision which was arrived at on 26 September 2008 was not a conscious departure from the earlier policy of 25 February 1999. It could not have been a conscious departure for the simple reason that the earlier policy was not evaluated nor was there any basis formulated to justify a departure from it. We must note at this stage that no submission has been urged on behalf of the Union of India by Mr Sanjay Jain, learned Additional Solicitor General controverting the above findings of the AFT. Quite apart from this however, there is a more fundamental reason why a finding in regard to the invalidity of the policy letter dated 26 September 2008 in relation to the Navy rests on a sure foundation. The 1963 Regulations contain specific provisions in regard to the grant of SSCs and for the grant of PCs. As we have noted, Regulations 122, 124 and 126 govern the grant of SSCs, while Regulation 203 governs the grant of PCs. Regulation 203, in its own terms, is not restricted in its application to only male H

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officers. Once the appointment of women officers in the Indian Navy A 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. Hence, the policy letter dated 26 September 2008 to the extent it seeks to restrict the grants of PCs to specified B cadres/branches as well as only to women officers “to be inducted” is contrary to the notifications dated 9 October 1991 and 6 November 1998 and shall not be enforced. The policy letter dated 26 September 2008 was not in supersession of the statutory notifications dated 9 October 1991 and 6 November 1998. At the highest it may be construed as an administrative decision to implement the statutory notifications. Hence, C it cannot be construed to be prospective in character as any other view to the contrary would be in violation of Section 9(2) of the Act. The conclusion which was arrived at by the High Court and by AFT is unimpeachable in its logical consistency and is in keeping with the legal regime envisaged by the 1957 Act, the 1963 Regulations and the notifications issued on 9 October 1991, 6 November 1998 and 25 February 1999. F The stereotypical sailor

68Copy pinpoint68. The battle for gender equality is about confronting the battles of the mind. History is replete with examples where women have been denied their just entitlements under law and the right to fair and equal treatment in the workplace. In the context of the Armed Forces, specious reasons have been advanced by decision makers and administrators. They range from physiology, motherhood and physical attributes to the male dominated hierarchies. A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field. A level playing field ensures that women have the opportunity to overcome their histories of discrimination with the surest of responses based on their competence, ability and performance. G

69Copy pinpoint69. In the decision of this Court by the present Bench in Babita Puniya, this Court has dwelt on the need to change mind sets if equality for women is to be achieved in the Armed Forces. In Babita Puniya, this Court dealt with the submissions of the Union Government that women are ill-suited to assume command roles in the Indian Army. Male H

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A officers, it was urged, would be averse to taking orders from women. Women, this Court was informed share an undue burden of marital obligations and the responsibilities of motherhood and child bearing. These arguments, based upon the physiological attributes of women, were employed to justify the unequal treatment of men and women officers.

70Copy pinpoint70. These submissions which are based on deeply entrenched stereotypes came to be rejected by this Court in emphatic terms: “The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. C Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker” sex and may not undertake tasks that are “too arduous” for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers… Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate… To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.”

71Copy pinpoint71. The submissions which were urged before this Court on behalf of the Union of India in Babita Puniya which dealt with women SSC officers in the Army have found an echo in the present appeals which deal with SSC women officers in the Indian Navy. Originally, in the written submissions which were filed in these proceedings (‘Brief note on behalf of the appellants’), it was urged that sailing in the Indian Navy is not a proper avocation for women. The written submissions contain the following statement:

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 483 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

“There is also a strong contemporaneous rationale for not considering women as sailors in the Indian Navy as the Navy ships of today are not structured nor have the infrastructure to accommodate women sailors alongside men sailors. There is a common barrack and a common bathroom, built as such that no temporary arrangement is possible to be made as they are built on of Russian models where there is no provision made for women as sailors. Navy is endeavoring to create such infrastructure…it clearly emerges that women are kept away from sea-going duties purely on operational grounds and not on the grounds of gender discrimination.”

72Copy pinpoint72. In the revised note of submissions which has been placed on the record, the above paragraph does not find a reference. Significantly however, the same submissions, though absent in the written note which was subsequently tendered before this Court, has been stressed at the forefront of the submissions which were made before this Court by the learned ASG. The submission was that: D (i) Certain avenues such as sea-sailing duties are ill-suited for women officers as there is no return to the base, unlike in the Army and the Air Force; and (ii) In vessels of a Russian origin which are deployed by the Indian Navy, no provision has been made for women as sailors and there are no bathrooms to accommodate them.

73Copy pinpoint73. The above reasons are illusory and without any foundation. Women officers have worked shoulder to shoulder with their men counterparts in every walk of service. The supposed explanations based on duties at sea or Russian vessels are devices adopted to justify an action which is not germane to the proper discharge of duties and the maintenance of discipline among members of the Armed Forces. These submissions which have been made by the ASG are plainly contrary to the policy letter dated 25 February 1999 issued by the MoD to the Chief of the Naval Staff. The policy letter emphatically stipulates that women officers of all branches/cadres could be directed to serve on board ships both during training and subsequent employment in accordance with the exigencies of service. In the face of this communication, it is impossible to countenance a submission that women cannot sail alongside men sailors. H

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74Copy pinpoint74. Quite apart from the policy letter dated 25 February 1999, the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics. As this Court has noted in Babita Puniya, arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies.

75Copy pinpoint75. In the compilation of documents which forms a part of the record, there is documentary evidence of the accolades which have been bestowed on women officers in the Indian Navy. In 1993, Commander Ruby Singh became the first Indian woman to lead a platoon in the contingent of the Indian Navy at Raj Path on Republic Day. INSV Tarini which circumnavigated the globe comprised of an all women crew. D Sub-lieutenant Shivangi became the first pilot for the Indian Navy. The achievements of some of the women officers of the Indian Navy have been set down in the form of a tabulated chart which we consider necessary to extract: 1 Lieutenant Sandhya Suri Served on board the warship INS Jyoti 2 Commander Reena Served onboard INS Sujatha (2002); E Magdalene She received the Chief of Naval Staff commendation and was awarded the Best Instructor award at INS Valsura (1998) 3 Commander Suhas Patankar Received CinC Commendation as well as the Best Instructor Award (INS Shiva ji) F 4 Commander Anuradha Received the Chief of Naval Staff Kanchi and Commander commendation. Babita Rawat 5 Commanders Shivani, Received the Vice-Chief of Naval Staff Rajeshwari Kori and Bhawna commendation. Salaria Naval officers Anuradha Chauhan, Anupama Chauhan, Pawan Preet Maan, Shilpa, Prabha Lal, Savitri Panwar, Pushpa Pandey and Rupali Rohatgi were G all awarded the CinC Commendation.

76Copy pinpoint76. Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men H

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on PCs in the Indian Navy is plainly discriminatory. Furthermore, to A contend that women officers are ill-suited 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. G Ex turpi causa non oritur actio B

77Copy pinpoint77. The Delhi High Court and the AFT have differed on the nature of the reliefs which have been granted in the separate batch of cases adjudicated by them. The Delhi High Court has held that SSC officers of the Navy who had opted for but were not granted PCs and were instead granted an extension on SSC but had not retired at the time of the institution of the Writ Petitions should be offered PCs within a period of six weeks, though they had attained the age of retirement during the pendency of the petitions. They were held to be entitled to all consequential benefits such as promotions and other financial benefits subject to medical fitness. As regards those of the petitioners who had attained the age of superannuation prior to the filing of Writ Petitions, the High Court directed their reinstatement within six weeks subject to the decision of this Court in Babita Puniya.These petitioners, it was held, would be entitled to no benefits.

78Copy pinpoint78. The AFT disagreed with the direction of the High Court for the grant of PCs and directed the authorities to consider the cases of the E SSC officers for the grant of PCs. The AFT was of the view that as it does not possess the requisite expertise and necessary materials for determining whether PCs should be granted, such a decision must be left to the relevant authorities. However, the AFT directed that until such consideration was made and a decision was taken, the applicants before it would be allowed to continue as SSC officers on existing terms and conditions as applicable to them. The ultimate direction that was issued by the AFT is also the subject matter of the appeals by the SSC officers before this Court. According to them, the wider direction issued by the Delhi High Court for the grant of PCs should have been adopted by the AFT and the mere direction for consideration will not provide any substantial relief to the officers.

79Copy pinpoint79. At this stage, it would be material to note that during the pendency of the appeal filed by the Union of India arising from the judgment of the Delhi High Court in Annie Nagaraja’s case, an interim H

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A order was passed by this Court on 20 November 2015 while issuing notice by which (i) those of the petitioners before the High Court who were serving as SSC officers in the Navy on 26 September 2008 were allowed to continue on the terms and conditions applicable to them; and (ii) those who had been released from service after 26 September 2008 upon completion of SSC tenures would be allowed to rejoin in that capacity and to continue in service.

80Copy pinpoint80. By this order, protection was restricted only to those officers before this Court who were in service on 26 September 2008. Respondent Nos 2 to 6 were commissioned as officers of the Indian Navy as SSC officers between 13 July 1992 and 12 August 1994 and were among the first batch of women officers in the Navy. They were released from service between 12 July 2006 and 11 August 200826. These officers were released before the issuance of the policy letter dated 26 September

2008. Consequently, the protection of the interim order of this Court was not extended to these officers.

81Copy pinpoint81. The case of these officers is that the 1963 Regulations as well as the policy letter dated 25 February 1999 existed when they were in service which entitled them to be considered for the grant of PCs. Prior to their release from service, they had submitted several representations to the concerned authority requesting that they be considered for the grant of PCs. The applications, it was urged, were forwarded by their commanding officers recommending the grant of PCs which signifies their capabilities, merit and work to serve as PC officers in the Indian Navy. The grievance of these officers is that their request was not considered and that the Navy kept silent about the policy letter dated 25 February 1999 which, according to the them, had come to light much later.

82Copy pinpoint82. It was urged that the Air Force accepted the decision of the Delhi High Court in Babita Puniya and reinstated women officers who had retired. Similar steps, it was urged, ought to have been undertaken by the Army. However, as a result of the interim order of this Court, G Respondent Nos 2 to 6 were not reinstated and have filed an application

26 Date of release are – Commander R Prasanna (R2 – 12 July 2006), Commander Puja Chhabra (R3 – 31 July 2006, Commander Saroj Kumari (R4 – 8 August 2007), Commander Sumita Balooni (R5 – 8 August 2008) and Commander E Prasanna (11 H August 2008).

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seeking a modification of the order27. Respondent Nos 2 to 6 urged that A they are entitled to be considered for the grant of PCs in view of the policy letter dated 25 February 1999. They claim to have been gravely prejudiced by the conduct of the Navy and the interim order of this Court. The principle of actus curiae neminem gravabet – an act of court should prejudice no one - has been pressed in aid of this submission. B Though these respondents have been out of service for between twelve to fourteen years, it has been submitted that the work in their departments is of such a nature that being out of service should not stand in the way of their being reinstated. In support of this, it was urged that fresh persons are inducted with six months’ training. Consequently, it was urged that the officers having served for fourteen years, there is no difficulty in the way of this Court passing an order for their reinstatement in service.

83Copy pinpoint83. In the appeals arising out of the judgment of the AFT in Priya Khurana’s case,an interim order was passed by this Court on 28 October 2016 directing the continuation in service of the SSC women officers in that capacity until further orders. There was no stay on the judgment of the AFT in Priya Khurana’s case by this Court. In terms of the judgment, the Navy was required to consider the case of every officer in terms of Regulation 203 read with the policy dated 25 February 1999. As a result of the Navy not having implemented the judgment of the AFT since 2016, there has been a cascading effect and nearly thirty officers (this Court was informed during hearing) have filed cases before the AFT, E the outcome of which depends on the judgment of this Court in these appeals.

84Copy pinpoint84. Mr Santosh Krishnan, learned counsel submitted that if this Court were to accept the view of the AFT and direct the ‘mere’ consideration of the representations for the grant of PCs, a piquant situation F would arise since any such consideration would be rendered futile at least in respect of one cadre, namely Logistics. The Logistics cadre is stated to be saturated or overborne as a result of the staffing practices which have been followed by the Navy in the interregnum. Furthermore, two Lieutenant Commanders (Lt. Commander Kaberi Kasturi and Lt. G Commander Vijeta Yadav) were ordered to be released from service on the ground that the cadre is saturated. The submission which has been urged is that this excuse of the cadre being saturated has been improvised to prevent a judicial review of the systemic gender discrimination in the 27 IA No 71158 of 2017 H

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A recruitment and retention practices of the Navy. This is sought to be highlighted by the following submissions: (i) While serving women SSC officers are being denied extensions in their SSC tenure or the grant of PCs on the ground that the Logistics cadre is ‘overborne’, the Navy is B recruiting fresh hands in the same cadre; (ii) Nearly 160 men were recruited in the Logistics cadre over the previous ten years directly on PCs, out of whom between 25 and 30 officers were recruited over the previous five years; C (iii) The Navy has defended this recruitment by claiming that fresh recruits “maintain the youthful profile of the force”. This contention cannot be reconciled with the fact that the Navy is offering re-employment to superannuated male officers (aged 52 years and above) at the level of D Commanders in the Logistics cadre on account of the shortage of personnel; (iv) Re-employment of such special duty officers is permissible only where there is a shortage of personnel in the cadre in question, which is evident from a policy letter dated 24 June E 2013; (v) Though, there is no separate Logistics cadre for special duty officers, yet, an informal quota has been carved out for male officers to continue in service, even after superannuation; F (vi) Since the special duty officers have risen from the ranks, they can tenant only certain billets within the Logistics cadre. In contrast, women officers in the Logistics cadre can tenant those billets as well as others, if required. They have been uniformly trained as officers and have passed various qualifying examinations during employment. Yet ironically, it is women officers who are required to exit as a result of the ‘cadre saturation’; (vii) Despite the Navy being required to consider all serving women SSC personnel for the grant of PC, not a single SSC woman officer in the Logistics cadre from any batch has been considered till date; and

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(viii) If the Navy had considered the application of every A Logistics officer on their own merit, there would have been no organizational difficulty of saturation faced in any cadre. Yet, the Navy had continued to insist that it is only the policy letter dated 26 September 2008 which will govern all cases for the grant of PCs, though it was struck down by both the B Delhi High Court as well as the AFT. In other words, it has been submitted that SSC women officers from the Logistics cadre have been driven to pursue their remedies in courts and are now confronted with the plea that the cadre is overborne. This, it is urged, is a travesty of justice. C

85Copy pinpoint85. In order to present to this Court a complete picture of the impact of the decision in these cases, the status of the cases has been depicted as follows: (i) Annie Nagaraja’s case involves seventeen officers. From the 2002-03 batch (Priya Khurana’s case),there are seven officers before this Court who have secured protection against release. Altogether before this Court, there are twenty one serving officers including ten retired officers (including a few men) who are seeking relief; (ii) Of the serving officers in Annie Nagaraja’s case, most have rendered services in excess of twenty years. Officers in Priya Khurana’s case have rendered continuous service of eighteen years till date; and (iii) About thirty officers are involved in pending litigation before the AFT from batches subsequent to the officers in Priya F Khurana’s case. Of them, a few officers are moving the courts agitating their grievance in regard to the non- consideration of their entitlement for the grant of PCs. In these circumstances, it has been submitted that the Court may consider the issuance of directions pari materia to those which were G issued by this Court in sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 69 in Babita Puniya’s case. This, it has been urged, would be appropriate since the same policy letter dated 26 September 2008 was the subject matter of the judgment of this Court in Babita Puniya. H

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86Copy pinpoint86. Opposing the above submissions, Mr Sanjay Jain has placed on the record three charts. The first chart depicts the cadre strength in the Indian Navy: CADRE STRENGTH IN THE INDIAN NAVY Cadre/ Stabilise d Temp Total Sanction Officers Cadre Officers - B Branch Cadre (a) Sanction (a) +(b) in-service Status Court (b) Orde r

Logistics 485 42 527 574 + 57 31 Education 343 5 348 345 Minus 03 31 Naval 279 108 387 399 +11 11 Constructor ATC 88 0 88 110 +22 04

87Copy pinpoint87. The second chart presents a comparative analysis of inductions and retirements in the past three years: Year Inductions Retirements 2017 15 20 (13 PC + 07 SSC) D 2018 12 24 (08 PC + 16 SSC) 2019 26 27 (05 PC + 22 SSC) Total 53 71

88Copy pinpoint88. The third chart deals with the status of re-employment of E Special Duty Commissioned Officers. These officers have been promoted from the other ranks (sailors) in the Indian Navy. They are being given re-employment in service because of a shortage against sanctioned strength. The sanctioned strength, it has been submitted, is not interchangeable with other Logistics officers. The third chart is reproduced below: F Cadre Govt. Sanction Held Strength SD (Stores) 28 27 SD (Writer) 44 38

89Copy pinpoint89. While considering the defence of the Union of India, urged by G the ASG, that the cadres are “overborne” and “saturated”, the assessment of this Court must be based on the following position: (i) Neither the judgment of the Delhi High Court nor the judgment of the AFT was stayed during the pendency of these appeals. The Union Government and the Naval H

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authorities could not have proceeded on the misconceived basis that the mere pendency of the present appeals was a license to not comply with the directions contained in the judgments of the High Court and the AFT. As a result of the failure of the authorities to consider the SSC officers for the grant of PCs, their status continued in a state of uncertainty, effectively depriving them not only of the benefits which would accrue to them in terms of career advancement but also the ability to occupy progressively higher positions in the hierarchy upon the grant of PCs; (ii) While the Union Government and the Naval authorities did not consider any SSC women officers for the grant of PCs, C it has now claimed that the cadre is saturated. This position has transpired precisely as a result of the failure to implement the directions of the Delhi High Court and of the AFT, while at the same time continuing to make recruitments which is now held up as a ground for the cadres being saturated; D (iii) The right to be considered for the grant of PCs arose under the policy dated 25 February 1999. The policy letter dated 26 September 2008 was issued oblivious to the earlier policy document and had the effect of denying benefits to SSC officers who were in saddle, besides restricting the cadres/ E branches in which SSC officers could be granted PCs. Though the policy letter dated 26 September 2008 was declared to be invalid by the High Court and by the AFT, the authorities have relied upon either the absence of vacancies or the prospective application of the policy letter dated 26 September 2008 to deny relief to SSC officers; and (iv) If the Naval authorities had considered SSC officers for the grant of PCs in terms of the policy letter dated 25 February 1999, that would have obviated a situation of saturation of cadres with which the SSC officers are now sought to be confronted as a ground to deny them relief to which they were legitimately entitled in terms of the policy dated 25 February 1999;

90Copy pinpoint90. Taking into consideration the above, we find merit in the grievance which has been urged on behalf of the SSC officers that the H

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A present situation has arisen as a plain consequence of the actions of the Naval authorities in: (i) The failure to implement the statutory notifications under Section 9(2) dated 9 October 1991 and 6 November 1998; (ii) The failure to abide by the policy letter dated 25 February B 1999; and (iii) The breach of the obligation to implement the judgments of the Delhi High Court and the AFT which had not been stayed and has resulted in the creation of an impasse for the SSC women officers. C

91Copy pinpoint91. Once the policy decision of the Union Government was communicated on 25 February 1999, the authorities were bound to consider the claims of the SSC officers for the grant of PC in terms of Regulation 203. The naval authorities and the Union Government failed to do so, depriving them of the entitlement to be considered for the grant of PC. 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. The situation which has come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement of 25 February 1999 by which they were bound and as the decisions of the Delhi High Court and the AFT. 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. The injustice is a direct consequence of the authorities having breached their duties under law, as explained above. To deny substantive relief to the SSC officers would result in a situation where a breach of duty on the part of the authorities to comply with binding legal norms would go unattended. This would result in a serious miscarriage of justice to the SSC officers who have served the nation and is unsustainable in law.

92Copy pinpoint92. The second to sixth respondents in Annie Nagaraja’s case had retired upon the completion of fourteen years of service prior to the issuance of the policy letter dated 26 September 2008. Of these officers, three officers are from the Logistic cadre, one officer is from the Education branch and one officer is from the ATC cadre. The Delhi H

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High Court had issued directions for the reinstatement of the second to sixth respondents. These officers are: Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna.

93Copy pinpoint93. By virtue of the interim order of this Court dated 20 November 2015, protection was extended to only those SSC women officers who were in service on 26 November 2008. This cut-off date was evidently adopted with reference to the policy communication dated 26 September 2008.

94Copy pinpoint94. We have considered the case of these women officers who were denied being considered for the grant of PCs. The interim order of this Court was based on the policy dated 26 September 2008 which envisaged the grant of PCs on a prospective basis to officers “to be inducted” in the future. The prospective application of the policy dated 26 September 2008 has been held to be invalid. We cannot ignore the fact that it was because of a restricted interim order passed by this Court that the above five respondents were not reinstated during the pendency of the appeals. Had they been reinstated, as directed by the High Court, they would have been in service in the interregnum and would have been entitled to be considered for the grant of PCs together with all other consequential benefits. These officers must be provided restitution for the consequences suffered by them by the failure of the authorities to have considered them for the grant of PC, and despite of the order of the Delhi High Court which had directed their reinstatement. Where a situation which detrimentally affects the rights of citizens arises as a result of an order of the Court, it is the duty of the court to remedy the situation and to rectify the injustice to the extent that is possible. F

95Copy pinpoint95. As we have noted, the right of women SSC officers to be considered for the grant of PCs in the Logistics and Education cadres arose by virtue of the policy letter dated 25 February 1999. The non- consideration of the case of these five officers for the grant of PCs arose out of the actions of the Union Government in issuing a restricted policy dated 26 September 2008 which has caused serious prejudice to G these women officers. These officers were among the first inductee batches of women SSC officers in the Navy and committed themselves to serving in the cause of the nation. The second to sixth respondents who had been released prior to 2008 have been out of service for twelve years and more. Consistent H

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A with the exigencies of service, it would not be appropriate to direct their reinstatement. However, following the logic of the directions of this Court in Babita Puniya, we are 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. In addition to the grant of pensionary benefits, as a one-time measure, respondents two to six should be directed to be paid a lump sum amount of 25 lakhs each as compensatory measure for lost years of service and the serious injustice which has been meted out to them. We clarify that our decision to award compensation is not a reflection of any malice on the part of the Naval authorities but a measure of compensation for the women officers who have been deprived of a valuable opportunity to render service and shoulder responsibilities. D H Directions 96.We hold and direct that: (i) 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 E October 1991 and 6 November 1998 under Section 9(2) of the 1957 Act; (ii) 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, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations; (iii) The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced; (iv) 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; H

UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA 495 AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

(v) All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher; (vi) 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; (vii) The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely: (i) availability of vacancies in the stabilised cadre at the material time; (ii) determination of suitability; and (iii) recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies; E (viii) SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due; (ix) Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs F since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. 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 G Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions (v) and (vi) above; H

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A (x) 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 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service; (xi) 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 (xii) Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, D Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at 25 lakhs each.

97Copy pinpoint97. We affirm the clarification which has been issued in sub-para E (a) of paragraph 50 of the impugned judgment and order of the Delhi High Court.

98Copy pinpoint98. Compliance with the above directions shall be effected within three months from the date of this judgment. We accordingly dispose of the appeals. F

99Copy pinpoint99. There shall be no order as to costs. Pending application(s), if any, stand disposed of.

Divya Pandey Appeals disposed of.