UNION OF INDIA & ORS. versus LT. CDR. ANNIE NAGARAJA & ORS. on 17 March 2020

[2020] 10 S.C.R. 433

UNION OF INDIA & ORS.

v.

LT. CDR. ANNIE NAGARAJA & ORS.

(Civil Appeal No. 2182-87 of 2020)

MARCH 17, 2020

[DR. DHANANJAYA Y. CHANDRACHUD ANDAJAY RASTOGI, JJ.]

Navy Act, 1957 – s.9(2) – Women Short Service Commissioned(SSC) Officers – Grant of Permanent Commissions (PCs) – Right tobe considered for – Held: Statutory bar on the engagement orenrolment of women in the Indian Navy was lifted to the extentenvisaged in notifications dated 09.10.1991 and 06.11.1998 issuedby Union Government u/s.9(2), 1957 Act – Right to be consideredfor the grant of PCs arises from the policy letter dated 25.02.1999r/w Regulation 203, Chapter IX, Part III, 1963 Regulations – Further,policy decision dated 26.09.2008 granted PCs to SSC womenofficers in Army, Navy and Air Force – Stipulation therein making itprospective and restricting its application to specified cadres/branches of the Indian Navy not to be enforced – Implementationguidelines dated 03.12.2008, to the extent they are made prospectiveand restricted to specified cadres are quashed and set aside – AllSSC officers in Education, Law and Logistics cadres presently inservice to be considered for the grant of PCs – Women SSC officersof Air Traffic Controller (ATC) cadre in Annie Nagaraja’s case notentitled to consideration for the grant of PCs – As a one-timemeasure, SSC officers in ATC cadre are entitled to pensionarybenefits– Respondent nos.2 to 6, in addition to the grant ofpensionary benefits, entitled to compensation of Rs. 25 lakhs each– SSC officers in ATC cadre in Priya Khurana’s case inducted inpursuance of specific representation in the advertisements that theywould be considered for the grant of PCs, to be considered in termsas directed – Further directions issued – Naval Ceremonial,Conditions of Service and Miscellaneous Regulations 1963 –Regulations 122, 124, 126, 203 – Constitution of India – Arts. 33,142 – Ex turpi causa non oritur actio.

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ANaval Ceremonial, Conditions of Service and MiscellaneousRegulations 1963 – Regulation 203 (1) – Grant of PCs – Factors –Held: Regulation 203 (1) conditions the grant of PCs to three factors:availability of vacancies in the stabilised cadre, consideration ofsuitability, and a recommendation of the Chief of Naval Staff.BNaval Ceremonial, Conditions of Service and MiscellaneousRegulations 1963 – Regulations 122 (14) and 203 – Comparisonbetween – Discussed.

Notification dated 09.10.1991 was issued by Union of Indiamaking women eligible for appointment as officers of Indian Navyin three cadres/branches. On 1 July 1992, the intake of thirty-Cfive officers on SSCs was sanctioned in the ATC cadre stipulatingthat no PCs would be granted (for both men and women) in theATC cadre. In 1998, the stipulation on the tenure of seven yearswas extended to ten years and to fourteen years in 2002.Notification dated 06.11.1998 made women eligible forDappointment as officers of Indian Navy in all branches. The policydecision dated 25.02.1999 (referring to the two earlier lettersdated 20.12.1991) granted PCs to all SSC officers includingwomen in accordance with Regulation 203, 1963 Regulations.Further, another policy decision dated 26.09.2008 granted PCsto SSC officers in all three branches of Armed Forces. However,Eit was restricted to certain categories and operated prospectivelyfor future batches inducted on SSCs after January 2009.Implementation guidelines issued for selecting SSC officers forgrant of PCs in the Navy were also prospective and restricted tospecified cadres. In Annie Nagaraja’s case, seventeen womenSSC officers (inducted between 1992 and 2001) before the DelhiFHigh Court challenged not being considered for the grant of PCsdespite completing fourteen years of service. High Court interalia directed offering of PCs to SSC officers who had opted forbut were not granted PCs and had not retired at the time of thefiling of the writ petitions. Reinstatement was directed forGpetitioners who had attained the age of superannuation prior tothe filing of writ petitions, subject to the decision of SupremeCourt in Babita Puniya case which was pending. In Priya Khurana’scase, Armed Forces Tribunal (AFT) in a batch of six OriginalApplications (OAs) by seven SSC officers inter alia declared thepolicy letter dated 26.09.2008 as invalid and directedHreconsideration of the requests for the grant of PCs. Hence, thepresent appeals.

Disposing of the appeals, the Court

HELD: 1.1 Statutory and policy framework Section 9 of the Navy Act 1957 deals with the eligibility forappointment or enrolment in the Indian Navy. Sub-section (2) ofSection 9 conditions the eligibility of women to be appointed orenrolled in the Navy or the Indian Naval Reserve Forces. Theprovision commences with the expression “no woman shall beeligible” and follows it up with the expression “except in suchdepartment, branch or other body”. The prohibition on theappointment or enrolment of women is subject to the lifting ofthe restriction by the Union Government. The Union Governmenthas been conferred with the authority to stipulate the departments,branches or bodies forming a part of or attached to the Navy orthe Indian Naval Reserve Forces in which women can be appointedor enrolled. The Union Government is also vested with theauthority to define the conditions on which the appointment orenrolment may take place. [Paras 10, 11][452-F; 453-C-D]

1.2 Section 184 of the 1957 Act contemplates regulationsbeing made by the Central Government for governance,command, discipline, recruitment, conditions of service andregulation of the Naval Forces and, generally for the purpose ofeffectuating the provisions of the 1957 Act. The power to frameregulations includes those in relation to the rank, terms andconditions of service, pay, pension, allowances and other benefits.The Regulations are required to be laid before each House ofParliament under Section 185. Part III of Chapter I of theRegulations for the Indian Navy contain the 1963 Regulations.Section II deals with officers in the Executive branch inductedon SSCs. Regulation 122(1) makes provisions governing “theentry, training and promotion of officers granted SSCs in theExecutive branch of the Indian Navy”. Regulation 122(2) containsa stipulation that the candidate must be an “unmarried male”.Under Regulation 122(9), an officer is to be on probation for oneyear or until the completion of initial training, whichever is later.Regulation 122(14) provides for Permanent Commissions.Section IV of the Regulations deals with officers in theEngineering branch inducted on SSCs. Regulation 124(2) contains A

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Aa provision similar to Regulation 122(2) which restricts SSCs onlyto “unmarried males”. Section VI provides for SSCs in theElectrical branch. Regulation 126(2) contains a similar restrictionof eligibility to “unmarried males”. Regulations 124(14) and 126(14) contain provisions for the grant of PCs. [Paras 15-18][454-D-G; 455-B-D]B

1.3 Chapter IX of the Regulations is titled “Grant ofPermanent Commission to Short Service Commission Officers”.Regulation 203 contains the stipulation in regard to the grant ofPCs. Regulation 203 (1) conditions the grant of PCs to threefactors: (i) Availability of vacancies in the stabilised cadre; (ii)CConsideration of suitability; and (iii) A recommendation of theChief of Naval Staff. Regulation 203 applies to SSC officers of therank of Sub-lieutenant and above. A comparison may be made ofthe provisions of Regulation 122 (14) and Regulation 203.Regulation 122(14) stipulates that suitable officers may beDconsidered for the grant of PC in the Navy after the successfulcompletion of the period of probation, subject to the existence ofvacancies and the regulations current at the time. Regulation203 provides for the consideration of the grant of PCs from timeto time to SSC officers of the rank of Sub-lieutenant and abovesubject to their suitability, availability of vacancies in the stabilizedEcadre of the Navy and the recommendation of the Chief of NavalStaff. Regulation 122(14) applies to all officers in the Executivebranch of SSC officers. Regulation 203 applies to all officers ofthe rank of Sub-lieutenant and above. The AFT observed thatRegulation 203 would apply to the OAs before it since theFapplicants were recruited as SSC officers in the rank of Sub-lieutenant and were promoted thereafter. [Paras 19-21][455-E;456-A-E]

1.4 The Indian Navy consists of four branches – Executive,Electrical, Engineering and Education. On 9 October 1991, theGUnion Government, pursuant to the enabling power conferredby Section 9(2), issued a notification by which women were madeeligible for appointment as officers of the Indian Navy in threecadres/branches which were: Logistics; Law; and Education. TheLaw and Logistics cadres belong to the Executive branch of theIndian Navy. At the material time when the 1963 RegulationsH

were notified, no notification had been issued in pursuance of thepower conferred under Section 9(2) and no women werecommissioned as SSC officers. Consequently, the regulationswere restricted only to male officers. The notification which waspublished in the Gazette of India on 9 October 1991 was to be inforce for five years. The consequence of the issuance of thisnotification under Section 9(2) was that the restriction on theappointment or enrolment of women was lifted for specifiedcadres/branches of the Navy. Once the notification was issuedunder Section 9(2), the provisions in the 1963 Regulationsrestricting the grant of SSCs to males would stand lifted insofaras the cadres/branches where the entry of women was notified.[Paras 22, 23][456-E-H; 457-A-B]

2. Preliminary Objection

A preliminary objection was urged to the maintainability ofthe appeal filed by the Union of India in Priya Khurana’s case. Itwas urged that when the SSC women officers sought to challengethe judgment of the AFT, leave to appeal was separately soughtand was granted by the AFT to move this Court. This led to thefiling of six Civil Appeals by the officers. However, the Union ofIndia sought the leave of the AFT to file an appeal before thisCourt only in one OA. No leave was sought to appeal in the otherOAs. It was urged that the AFT rendered one common judgmentin six OAs. The Union of India having filed an appeal only in oneof the cases arising from the AFT, it was urged that the commonjudgment binds the Union Government and operates as res judicatain the other five OAs. The learned Counsel appearing beforethis Court have addressed arguments on the merits of the issuesraised in the judgments of the Delhi High Court and AFT. ThisCourt is nevertheless required to adjudicate upon the validityand effect of the policy letter dated 26 September 2008 in theappeals filed by the SSC women officers in Annie Nagaraja’s andPriya Khurana’s case. In order to render a final adjudication, thisCourt proposes to deal with the appeals on merits. The questionof law raised in the preliminary objection is left open to beconsidered in an appropriate case in future.[Paras 51, 56][470-E-G; 473-G-H; 474-A]

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ASri Gangai Vinayagar Temple v. Meenakshi Anmal(2015) 3 SCC 624 : [2014] 12 SCR 845; Union of Indiav. Brigadier PS Gill (2012) 4 SCC 463 : [2012] 2 SCR571 – referred to.

3.1 Validity of the policy letter dated 26 September 2008

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Article 33 of the Constitution entrusts to Parliament todetermine, by law, the extent to which any of the rights conferredby Part III of the Constitution can be restricted or abrogated intheir application to the members of the Armed Forces “so as toensure the proper discharge of their duties and the maintenanceCof discipline among them”. Besides the requirement that arestriction must be determined by law, Article 33 postulates anexus between the restriction or abrogation and the need for theproper discharge of duties and the maintenance of disciplineamong members of the Armed Forces. Acting in exercise ofauthority under Section 9(2), the Union Government initiallyDissued a notification on 9 October 1991 and thereafter on 6November 1998. The second notification dated 6 November 1998broadened the scope of the permissible areas for the entry ofwomen as officers in the Indian Navy by enabling their entry inall the four branches - Executive, Engineering, Electrical andEEducation. Significantly, neither of the notifications dated 9October 1991 nor 6 November 1998 restrict the appointment orenrolment of women only on SSCs. Both notifications stipulatethat women shall “be eligible for appointment as officers in theIndian Navy” in the branches specified. The consequence of thetwo notifications is to lift the bar envisaged in Section 9(2) and toFallow for the induction of women as officers in the Indian Navy inthe specified cadres/branches. [Paras 57, 60][474-B-C; 477-A- D]

R Viswan v. Union of India (1983) 3 SCC 401 : [1983]3 SCR 60 – followed.

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Lt. Col. Prithi Pal Singh Bedi v. Union of India (1982)3 SCC 140 : [1983] 1 SCR 393 – relied on.

Union of India v. LD Balam Singh (2002) 9 SCC 73 :[2002] 3 SCR 385; Mohd. Yunus Khan v. State of UP

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(2010) 10 SCC 539 : [2010] 12 SCR 448 – referredto.

3.2 Close on the heels of the first notification dated 9October 1991 issued under Section 9(2), the MoD issued twonotifications on 20 December 1991 with successive numbers ofreference providing for the terms and conditions of service ofSSC officers, including women. The first letter (bearing referenceNo. 1110) concerned SSC officers in the Education branch. Para4 of the notification specifically contemplated that the policy inregard to the grant of PCs would be promulgated in 1997. Thesecond letter (bearing reference No. 1111) concerned SSCofficers in the Law and Logistics cadres and adopted the termsof the earlier letter, save to the extent specified therein. As therewas no specific stipulation concerning the grant of PCs in thesecond letter, the stipulation in para 4 of the first notification(bearing reference No. 1110) applies to SSC officers inducted inthe Law and Logistics cadres. Hence from 20 December 1991, itwas within the contemplation of the Union Government that thepolicy for the induction of SSC officers, including women, on PCswould be notified within a period of six years. This was becauseofficers who were inducted on SSCs would have a tenure of sevenyears. The policy for the grant of PCs was hence envisaged to benotified before or around the expiry of the short service tenuresnotified in 1991. The stipulation on the tenure of seven yearswas subsequently extended to ten years in 1998 and to fourteenyears in 2002.[Paras 61, 62][477-D-H; 478-A]

3.3 The policy communication dated 25 February 1999 wasnot anticipatory in nature. What the communication spelt out wasthat the grant of PCs to SSC officers would be in terms ofRegulation 203. This would cover both men and women officersserving on SSCs. The expression “the policy for grant ofPermanent Commission will be” in accordance with Regulation203 cannot be construed to mean that the policy was yet to beframed 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 wasto bring the grant of PCs to all SSC officers including women inaccordance with Regulation 203. The course of the evolution of A

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Apolicy from 9 October 1991 clearly indicates a legitimateexpectation on part of the SSC officers (both men and women) ofbeing governed by the provisions of Regulation 203 beingconsidered for the grant of PCs. The Navy Regulations, whenthey were originally drafted in 1963, did not contemplate theinduction of women. For this reason, Regulations 122(2), 124(2)Band 126(2) spoke of only “unmarried males” being eligible forinduction on SSCs. The Regulations being subservient to statute,incorporated restrictions which comported with the provisionsof Section 9(2). However, what Section 9(2) envisages is that therestrictions on the enrolment or appointment of women inCbranches or departments of the Indian Navy would be lifted uponthe issuance of a notification by the Union Governmentsanctioning the entry of women officers, subject to the conditionswhich may be specified. Both in the notifications dated 9 October1991 and 6 November 1998, the Union Government lifted thestatutory bar in exercise of its enabling power under Section 9(2)Dby allowing for the entry for women as officers in the Indian Navyin stipulated branches. Once the statutory bar stood lifted, theappointment of SSC officers, both men and women on PCs wouldbe governed uniformly by the provisions of Regulation 203. Thiswas made abundantly clear by the policy letter dated 25 FebruaryE1999 which was issued in compliance with the legal regime. Thegrant of PCs to SSC men and women officers aligned with theprovisions of Regulation 203 which plainly is a matter of law. Thus,the contention that the communication dated 25 February 1999was merely anticipatory in nature and that the entitlement to beconsidered for the grant of PCs would have to await a furtherFpolicy, which came into being on 26 September 2008 cannot beaccepted. The communication dated 25 February 1999 of the MoDhad the sanction of the President and consequently cannot bedisregarded as suggested in the arguments urged by the Unionof India in these proceedings. In addition to the aboveGobservations, in Priya Khurana’s case which concerned womenofficers of the 2002 batch, an advertisement had been issued bythe authorities inviting applications from men and women forjoining as SSC officers in the ATC and Logistics cadres and theEducation branch. The advertisement clearly stipulated that basedon their performance and the requirements of service, deservingH

officers “may also be considered for Permanent Commission.”Subsequent employment notices did not contain such a stipulation.The employment notice of July 2002 was not in conflict with theprovisions contained in Regulations 203. [Paras 64-66][478-C-H; 479-A-E]

3.4 The policy decision of the MoD dated 26 September2008 governed the grant of PCs to SSC women officers in theArmy, Navy and Air Force. The communication, by stipulatingthat it would apply to SSC women officers “to be inducted”,purported to exclude women SSC officers in service from beingconsidered for the grant of PCs. It also sought to restrict thecadres/branches in which PCs could be granted to women SSCofficers. The AFT has noted after it had summoned the files, thatthe earlier policy decision of 25 February 1999 was not placedbefore the decision making authorities. Evidently, in the view ofthe AFT, the decision which was arrived at on 26 September 2008was not a conscious departure from the earlier policy of 25February 1999. It could not have been a conscious departure forthe simple reason that the earlier policy was not evaluated norwas there any basis formulated to justify a departure from it. Nosubmission was urged on behalf of the Union of India controvertingthe above findings of the AFT. The 1963 Regulations containspecific provisions in regard to the grant of SSCs and for thegrant of PCs. Regulations 122, 124 and 126 govern the grant ofSSCs, while Regulation 203 governs the grant of PCs. Regulation203, in its own terms, is not restricted in its application to onlymale officers. Once the appointment of women officers in theIndian Navy was permitted in terms of the statutory notificationsdated 9 October 1991 and 6 November 1998, the statutory barunder Section 9(2) stood lifted and women officers inducted onSSCs would be entitled to be governed by Regulation 203. Hence,the policy letter dated 26 September 2008 to the extent it seeksto restrict the grants of PCs to specified cadres/branches as wellas only to women officers “to be inducted” is contrary to thenotifications dated 9 October 1991 and 6 November 1998 andshall not be enforced. The policy letter dated 26 September 2008was not in supersession of the statutory notifications dated 9October 1991 and 6 November 1998. At the highest it may beconstrued as an administrative decision to implement the A

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Astatutory notifications. Hence, it cannot be construed to beprospective in character as any other view to the contrary wouldbe in violation of Section 9(2) of the Act. The conclusion whichwas arrived at by the High Court and by AFT is unimpeachable inits logical consistency and is in keeping with the legal regimeenvisaged by the 1957 Act, the 1963 Regulations and theBnotifications issued on 9 October 1991, 6 November 1998 and25 February 1999. [Para 67][479-G-H; 480-A, E-H; 481-A-D]

4.1 The stereotypical sailor

4.1 The stereotypical sailor

The battle for gender equality is about confronting theCbattles of the mind. History is replete with examples where womenhave been denied their just entitlements under law and the rightto fair and equal treatment in the workplace. In the context ofthe Armed Forces, specious reasons have been advanced bydecision makers and administrators. They range from physiology,motherhood and physical attributes to the male dominatedDhierarchies. A hundred and one excuses are no answer to theconstitutional entitlement to dignity, which attaches to everyindividual irrespective of gender, to fair and equal conditions ofwork and to a level playing field. A level playing field ensuresthat women have the opportunity to overcome their histories ofEdiscrimination with the surest of responses based on theircompetence, ability and performance. Women officers haveworked shoulder to shoulder with their men counterparts in everywalk of service. The supposed explanations based on duties atsea or Russian vessels (which are deployed by the Indian Navy,no provision has been made for women as sailors and there areFno bathrooms to accommodate them) are devices adopted tojustify an action which is not germane to the proper discharge ofduties and the maintenance of discipline among members of theArmed Forces. These submissions which have been made by theASG are plainly contrary to the policy letter dated 25 FebruaryG1999 issued by the MoD to the Chief of the Naval Staff. The policyletter emphatically stipulates that women officers of all branches/cadres could be directed to serve on board ships both duringtraining and subsequent employment in accordance with theexigencies of service. In the face of this communication, it isimpossible to countenance a submission that women cannot sailHalongside men sailors. [Paras 68, 73][481-E-G; 483-F-H]

4.2 Quite apart from the policy letter dated 25 February1999, the contention that certain sea-going duties are ill-suitedto women officers is premised on sex stereotypes that maleofficers are more suited to certain duties by virtue of thephysiological characteristics. In arguments founded on the physicalstrengths and weaknesses of men and women do not constitute aconstitutionally valid basis for denying equal opportunity to womenofficers. In the compilation of documents which forms a part ofthe record, there is documentary evidence of the accolades whichhave been bestowed on women officers in the Indian Navy.Performance at work and dedication to the cause of the nationare the surest answers to prevailing gender stereotypes. Todeprive serving women officers of the opportunity to work asequals with men on PCs in the Indian Navy is plainlydiscriminatory. [Paras 74-76][484-A-C, H; 485-A]

5.1 Ex turpi causa non oritur actio

5.1 Ex turpi causa non oritur actio

During the pendency of the appeal filed by the Union ofIndia arising from the judgment of the Delhi High Court in AnnieNagaraja’s case, an interim order was passed by this Court on 20November 2015 while issuing notice by which (i) those of thepetitioners before the High Court who were serving as SSCofficers in the Navy on 26 September 2008 were allowed tocontinue on the terms and conditions applicable to them; and (ii)those who had been released from service after 26 September2008 upon completion of SSC tenures would be allowed to rejoinin that capacity and to continue in service. By this order,protection was restricted only to those officers before this Courtwho were in service on 26 September 2008. Respondent Nos 2to 6 were commissioned as officers of the Indian Navy as SSCofficers between 13 July 1992 and 12 August 1994 and were amongthe first batch of women officers in the Navy. They were releasedfrom service between 12 July 2006 and 11 August 2008. Theseofficers were released before the issuance of the policy letterdated 26 September 2008. Consequently, the protection of theinterim order of this Court was not extended to these officers. Inthe appeals arising out of the judgment of the AFT in PriyaKhurana’s case, an interim order was passed by this Court on 28October 2016 directing the continuation in service of the SSC

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Awomen officers in that capacity until further orders. [Paras 79, 80and 83][485-H; 486-A-D; 487-D]

5.2 The present situation has arisen as a plain consequenceof the actions of the Naval authorities in: (i) The failure toimplement the statutory notifications under Section 9(2) dated 9BOctober 1991 and 6 November 1998; (ii) The failure to abide bythe policy letter dated 25 February 1999; and (iii) The breach ofthe obligation to implement the judgments of the Delhi High Courtand the AFT which had not been stayed and has resulted in thecreation of an impasse for the SSC women officers. Once thepolicy decision of the Union Government was communicated onC25 February 1999, the authorities were bound to consider theclaims of the SSC officers for the grant of PC in terms of Regulation203. The naval authorities and the Union Government failed todo so, depriving them of the entitlement to be considered for thegrant of PC. By the failure of the authorities to consider the SSCDofficers for PCs in terms of the policy communication of 25February 1999, SSC officers lost out on the opportunity to begranted PCs and all the responsibilities and benefits attached tothe grant of PC, including promotions and pensionable service.To deny substantive relief to the SSC officers would result in asituation where a breach of duty on the part of the authorities toEcomply with binding legal norms would go unattended. This wouldresult in a serious miscarriage of justice to the SSC officers whohave served the nation and is unsustainable in law. The secondto sixth respondents in Annie Nagaraja’s case had retired uponthe completion of fourteen years of service prior to the issuanceFof the policy letter dated 26 September 2008. Of these officers,three officers are from the Logistic cadre, one officer is from theEducation branch and one officer is from the ATC cadre. TheDelhi High Court had issued directions for the reinstatement ofthe second to sixth respondents. By virtue of the interim order of this Court dated 20 November 2015, protection was extendedGto only those SSC women officers who were in service on 26November 2008. This cut-off date was evidently adopted withreference to the policy communication dated 26 September 2008.The interim order of this Court was based on the policy dated 26September 2008 which envisaged the grant of PCs on aHprospective basis to officers “to be inducted” in the future. The

prospective application of the policy dated 26 September 2008has been held to be invalid. It cannot be ignored that it was becauseof a restricted interim order passed by this Court that the abovefive respondents were not reinstated during the pendency of theappeals. Where a situation which detrimentally affects the rightsof citizens arises as a result of an order of the Court, it is the dutyof the court to remedy the situation and to rectify the injustice tothe extent that is possible. [Paras 90-94][492-A-H; 493-A-F]

6. Directions: (i) The statutory bar on the engagement orenrolment of women in the Indian Navy has been lifted to theextent envisaged in the notifications issued by the UnionGovernment on 9 October 1991 and 6 November 1998 underSection 9(2) of the 1957 Act; (ii) By and as a result of the policydecision of the Union Government in the Ministry of Defencedated 25 February 1999, the terms and conditions of service ofSSC officers, including women in regard to the grant of PCs aregoverned by Regulation 203, Chapter IX, Part III of the 1963Regulations; (iii) The stipulation in the policy letter dated 26September 2008 making it prospective and restricting itsapplication to specified cadres/branches of the Indian Navy shallnot be enforced; (iv) The provisions of the implementationguidelines dated 3 December 2008, to the extent that they aremade prospective and restricted to specified cadres are quashedand set aside; (v) All SSC officers in the Education, Law andLogistics cadres who are presently in service shall be consideredfor the grant of PCs. The right to be considered for the grant ofPCs arises from the policy letter dated 25 February 1999 readwith Regulation 203 of Chapter IX Part III of the 1963Regulations. SSC women officers in the batch of cases before theHigh Court and the AFT, who are presently in service shall beconsidered for the grant of PCs on the basis of the vacancy positionas on the date of judgments of the Delhi High Court and the AFTor as it presently stands, whichever is higher; (vi) The period ofservice after which women SSC officers shall be entitled to submitapplications for the grant of PCs shall be the same as their malecounterparts; (vii) The applications of the serving officers forthe grant of PCs shall be considered on the basis of the normscontained in Regulation 203 namely: availability of vacancies in ABC

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Athe stabilised cadre at the material time; determination ofsuitability; and recommendation of the Chief of the Naval Staff.Their empanelment shall be based on inter se merit evaluated onthe ACRs of the officers under consideration, subject to theavailability of vacancies; (viii) SSC officers who are found suitablefor the grant of PC shall be entitled to all consequential benefitsBincluding arrears of pay, promotions and retiral benefits as andwhen due; (ix) Women SSC officers of the ATC cadre in AnnieNagaraja’s case are not entitled to consideration for the grant ofPCs since neither men nor women SSC officers are consideredfor the grant of PCs and there is no direct induction of men officersCto PCs. In exercise of the power conferred by Article 142 of theConstitution, it is directed that as a one-time measure, SSC officersin the ATC cadre in Annie Nagaraja’s case shall be entitled topensionary benefits. SSC officers in the ATC cadre in PriyaKhurana’s case, being inducted in pursuance of the specificrepresentation contained in the advertisements pursuant to whichDthey were inducted, shall be considered for the grant of PCs inaccordance with directions (v) and (vi) above; (x) All SSC womenofficers who were denied consideration for the grant of PCs onthe ground that they were inducted prior to the issuance of theletter dated 26 September 2008 and who are not presently inEservice shall be deemed, as a one-time measure, to havecompleted substantive pensionable service. Their pensionarybenefits shall be computed and released on this basis. No arrearsof salary shall be payable for the period after release from service;(xi) As a one-time measure, all SSC women officers who werebefore the High Court and the AFT who are not granted PCsFshall be deemed to have completed substantive qualifying servicefor the grant of pension and shall be entitled to all consequentialbenefits; and (xii) Respondents two to six in the Civil Appealsarising out of Special Leave Petition (C) Nos 30791-96 of 2015shall be entitled, in addition to the grant of pensionary benefits,Gas a one-time measure, to compensation quantified at 25 lakhseach. The clarification issued in sub-para (a) of paragraph 50 ofthe impugned judgment and order of the Delhi High Court isaffirmed. [Paras 96, 97][494-D-H; 495-A-H; 496-A-E]

The Secretary, Ministry of Defence v. Babita PuniyaH2020 (3) SCALE 712 : (2020) 7 SCC 469 – relied on.

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2182-2187 of 2020.

From the Judgment and Order dated 04.09.2015 of the High Courtof Delhi at New Delhi in Writ Petition (C) Nos. 7336 of 2010, 7056,5714, 7419 of 2012, 6818 of 2013, 7727 of 2014.

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Civil Appeal Nos. 10225-10230 of 2016, 3359 of 2017, 5392 of2019, 2181, 2177, 2178, 2179 of 2020.

Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian,Ms. Aishwarya Bhati, P.S. Narasimha, C.U. Singh, Sr. Advs., Ms. NeelaGokhale, Ms. Saniya Scott, Yuvraj Sharma, Padmesh Mishra, ArkajKumar, Ashray Behura, Ms. Shradha Agrawal, Ms. Shruti Dixit, IlamParidi, Chitrangda Rastravara, Ms. Kirti Khangarot, Ms. OorjasviGoswami, Celeste Agarwal, Nitin Pavuluri, Ms. Archana Pathak Dave,Ms. Aditi Tripathi, Ms. Sindoora VNL, Ms. Kanti, Sridhar Potaraju, Ms.Shweta Parihar, Ms. Shiwani Tushir, Ms. G. Ushari, Vishnu Tulasi Menon,Md. Ali, Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna, Vinay Mathew(for Santosh Krishnan), Ms. Arunima Dwivedi, Arvind Kumar Sharma,Harish Pandey, Mukesh Kumar Maroria, Sudhanshu Shekhar Pandey,Gaichangpou Gangmei, Abhishek R. Shukla, Arjun D. Singh, Anant VijayPalli, Ms. Garima Sachdeva, Nikhil Palli, Deepak Goel, Anil KumarBakshi, Ms. Meenakshi Lekhi, Harish Pandey, Jitender Kr. Tripathi, AlokKr. Pandey, Sanchar Anand, Anant K. Vatsya, Devendra Singh, DeepakGoel, Vivek Narayan Sharma, Jasdeep Singh, Pragyan Mishra, ShubhamAwasthi, Akash Sharma, Rajeev Kumar Jha, Ms. Suman Rani, SantoshKrishnan, B. V. Balaram Das, Ms. Pooja Dhar, Ms. Haripriya E

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APadmanabhan, Shurtanjaya Bharadwaj, Vishal Sinha, Ms. Sunieta Ojha,Mayank Tripathy, Ms. Monisha Handa, Mohit D. Ram, Sachin Kaushal,Ms. Liz Mathew, Navneet R., Ms. Sonali Jain, Anupam Raina, ManinderJit Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Beendu Singh,Advs. for the appearing parties.BThe 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

DD 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

1. The present batch of Civil Appeals comes up for adjudicationfrom two decisions, the first in point of time being that of the High CourtFof Delhi and the second, being that of the Armed Forces Tribunal[1].

A.1 Annie Nagaraja’s case

2. Six Writ Petitions under Article 226 of the Constitution wereinstituted before the Delhi High Court. The petitioners, seventeen innumber, were women officers who joined the Indian Navy as ShortGService Commissioned[2] Officers in the Logistics and Air TrafficController[3] cadres and the Education branch. Six of them were officers 1 “AFT”

2 “SSC”

3 “ATC”H

in the Logistics cadre, nine in the Education branch and two in the ATCcadre. Their grievance is that despite completing fourteen years of serviceas SSC officers, they were not considered for the grant of PermanentCommissions[4] and were discharged from service.

3. The case which was set up before the High Court was thatwomen SSC officers of the Indian Army and Air Force had been grantedPCs by the judgment of the Delhi High Court in Babita Puniya v Unionof India[5 ](“Babita Puniya”). The Air Force implemented the decisionof the Delhi High Court. The Indian Army was in appeal before thisCourt against the judgment in Babita Puniya.

4. The Union of India in the Ministry of Defence[6] issued a policyletter dated 26 September 2008 granting PCs to SSC officers in all thethree branches of the Armed Forces. However, the offer was restrictedto certain categories and was to operate prospectively for the benefit offuture batches inducted on SSCs after January 2009. The Delhi HighCourt expressly noted that the denial of combat roles to women was notin issue in the Writ Petitions. By its judgment dated 4 September 2015,the High Court issued the following directions:

“50. a) The claim of absorption in areas of operation not open forrecruitment of women officers cannot be sustained being a policydecision.

b) The Short Service Commissioned Officers of the Navy whohad opted for PC and were not granted PC but instead weregranted extension of SSC and were not retired at the time of filingof these Writ Petitions and had attained the age of retirementduring the pendency of the present petitions, they shall be offeredPC within a period of 6 weeks from the date of this order. Theyshall be entitled to all consequential benefits such as promotionand other financial benefits subject to their medical fitness.However, their appointment to the post of PC shall be subject tothe final outcome of the said SLP i.e. CC No. 10437/2010 titleSecr. Ministry of Defence v. Babita Puniya & Anr. pendingconsideration before the Hon’ble Supreme Court; 4 “PC”

5 Writ Petition (C) No. 1597 of 2013, delivered on 12 March 2010

6 “MoD”

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Ac) With respect to the petitioners who had attained the age ofsuperannuation prior to the filing of the Writ Petitions by them thefollowing directions are required to be issued:

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

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

3. The petitioners are entitled to no benefits;C

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

5. Since the earlier decision of the Delhi High Court in BabitaPuniya was the subject matter of proceedings before this Court, theDdirection in regard to offering PCs was made subject to the decision thatwould eventually emerge from this Court. The first petitioner in the WritPetition[7] before the High Court was Lieutenant Commander AnnieNagaraja. Hence, the decision of the Delhi High Court in that batch ofcases has, in the course of the submissions, been adverted to as thedecision in Annie Nagaraja v Union of India (“Annie Nagaraja’sEcase”). In the appeals arising out of the judgment of the Delhi HighCourt in Annie Nagaraja, an interim order was passed by this Court on20 November 2015 which directed:

“Pending further orders from this Court we direct that such of therespondents (petitions before the High Court) as were serving asFshort service commissioned officers in the Navy as on26[th] September 2008, shall be allowed to continue on the termsand conditions applicable to them in that capacity. We furtherdirect that such of the officers out of the respondents (petitionersbefore the High Court) as may have been released from serviceafter 26[th] September 2008, upon completion of the short serviceGcommission tenure, shall be permitted to join back in terms of theorder passed by the High Court and continue in service in thatcapacity.”

By this order, protection was restricted only to those womenofficers in service on 26 September 2008.

A.2 Priya Khurana’s case

6. The second batch of proceedings which has led to appealsbefore this Court arises from the decision of the AFT at the PrincipalBench in New Delhi in a batch of six Original Applications.[8] The leadOriginal Application[9] was instituted by Commander Priya Khurana. Theapplicants before the AFT in this batch of cases were seven SSC officersrecruited in 2002 in the Indian Navy in the Logistics and ATC cadresand the Education branch. They sought the grant of PCs and challengedthe policy document dated 26 September 2008 as unconstitutional to theextent that it operated prospectively and restricted the grant of PCs to afew cadres/branches. Consequently, there was also a challenge to theimplementation guidelines dated 3 December 2008 issued by theIntegrated Headquarters of the MoD. The officers challenged theirrelease from service on the completion of their tenure of SSCengagement.

7. The AFT, by a judgment dated 11 August 2016, came to theconclusion that on 25 February 1999, the Union Government in the MoDhad taken a policy decision for the grant of PCs to both men and womenofficers in terms of Regulation 203 of Chapter IX of the NavalCeremonial, Conditions of Service and Miscellaneous Regulations 1963[10],which is contained in Part III of the Regulations. The AFT held that thepolicy decision dated 25 February 1999 held the field and the subsequentpolicy decision of 26 September 2008 was arrived at without consideringthe earlier policy decision and as a matter of fact, even the Union DefenceMinister had been kept in the dark about the earlier decision. Whileaccepting the principle that it is open to government to review and alteran earlier policy decision, the AFT held that an alteration has to be basedon a reasonable exercise of power. The subsequent decision making thegrant of PCs only prospective and confining it to stipulated brancheswas held to be invalid. The AFT has placed a considerable degree ofreliance on the fact that the advertisements on the basis of which theSSC officers were inducted had held out a specific representation thatthe officers would be considered for the grant of PCs.

8 “CA”

9 “OA No. 143 of 2016”

10 “1963 Regulations”

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A8. The AFT accordingly directed the reconsideration of the requestfor the grant of PCs on the basis of Regulation 203 and the policy decisiondated 25 February 1999 within six months. Until this exercise wasundertaken, the applicants were directed to be continued as SSC officerson existing terms and conditions. The decision of the AFT was subsequentto the earlier judgment of the Delhi High Court in Annie Nagaraja,Bwhich is the subject matter of appeals instituted before this Court. TheAFT clarified that its direction to reconsider the case of the SSC womenofficers for the grant of PCs was subject to the decision of this Court inAnnie Nagaraja. While directing the consideration of the claim of SSCwomen officers to the grant of PCs by the Indian Navy, the AFT stoppedCshort of the direction which was issued by the Delhi High Court for thegrant of PCs. The AFT was of the view that the appropriate relief wasto direct that the applicants be considered by the authorities and to thisextent it disagreed with the absolute relief granted by the Delhi HighCourt for the grant of PCs.D9. The judgment of the AFT has been assailed by the UnionGovernment. The applicants before the AFT are in appeal to the extentthat the wider relief which was granted by the Delhi High Court wasdenied to them by the AFT. The first applicant in the OAs institutedbefore the AFT was Commander Priya Khurana. Hence, the decisionof the AFT in this batch of cases has, in the course of the submissions,Ebeen adverted to as the decision in Priya Khurana v Union of India(“Priya Khurana’s case”). In the appeals arising out of the judgment ofthe AFT in Priya Khurana, an interim order was passed by this Courton 28 October 2016 directing the continuation in service of the SSCofficers in that capacity until further orders.FB Statutory and policy framework

10. Section 9 of the Navy Act 1957[11] deals with the eligibility forappointment or enrolment in the Indian Navy. Section 9 reads thus:

“9. Eligibility for appointment or enrolment.—(1) No person whoGis not a citizen of India shall be eligible for appointment or enrolmentin the Indian Navy or the Indian Naval Reserve Forces exceptwith the consent of the Central Government:

Provided that nothing in this section shall render a person ineligiblefor appointment or enrolment in the Indian Navy or the IndianNaval Reserve Forces on the ground that he is a subject of Nepal.

(2) No woman shall be eligible for appointment or enrolment inthe Indian Navy or the Indian Naval Reserve Forces except insuch department, branch or other body forming part thereof orattached thereto and subject to such conditions as the CentralGovernment may, by notification in the Official Gazette specify inthis behalf.”

11. Sub-section (2) of Section 9 conditions the eligibility of womento be appointed or enrolled in the Navy or the Indian Naval ReserveForces. The provision commences with the expression “no woman shallbe eligible” and follows it up with the expression “except in suchdepartment, branch or other body”. The prohibition on the appointmentor enrolment of women is subject to the lifting of the restriction by theUnion Government. The Union Government has been conferred withthe authority to stipulate the departments, branches or bodies forming apart of or attached to the Navy or the Indian Naval Reserve Forces inwhich women can be appointed or enrolled. The Union Government isalso vested with the authority to define the conditions on which theappointment or enrolment may take place.

12. The provisions of the Bill which were to lead to the enactmentof the 1957 Act were deliberated upon in a report of the Joint Committeeof Parliament. A note of dissent was appended by four Members of theJoint Committee on the restriction which was proposed to be imposedon the appointment of women in the Indian Navy. While opposing therestriction proposed in the report of the Joint Committee, the dissentingmembers (TCN Menon, KK Warior, VK Dhage and V Prasad Rao)stated:

“An important provision of the Bill is the one which excludeswomen from the right of joining the Indian Navy. It will besuperfluous if we record in detail the courage and capacity shownby the women of India in the past and especially during our gloriousfreedom struggle. In almost all countries women have provedthemselves to be equal to men if not more and today there is nosphere of life nor is there any kind of work where women cannotcompete with men. Moreover we feel that the admission of women AB

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Ainto our armed services will, to a very large extent, have a salutaryand welcome effect upon the outlook and morale of our fightingmen. This injustice done to our women should be removed andwe recommend that the clause which prohibits women from joiningthe navy be removed.”

B13. The dissenting Members stated that restrictions on thefundamental rights of the members of the Armed Forces should be onlyto the extent strictly necessary for the maintenance of discipline and thedischarge of duties. In their view, “the law that Parliament enacts todayin respect of the Indian Navy should be a law which will facilitate thedevelopment of a Navy composed of contented men and women whoseCprimary allegiance shall be to the people of India”. The object, theystated, of achieving such a fighting forces should be “not to suppresstheir democratic rights as far as possible”.[12]

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

15. Section 184 of the 1957 Act contemplates regulations beingmade by the Central Government for governance, command, discipline,recruitment, conditions of service and regulation of the Naval Forcesand, generally for the purpose of effectuating the provisions of the 1957Act. The power to frame regulations includes those in relation to theErank, terms and conditions of service, pay, pension, allowances and otherbenefits. The Regulations are required to be laid before each House ofParliament under Section 185. Part III of Chapter I of the Regulationsfor the Indian Navy contain the 1963 Regulations. The AFT in its decisionnoted that in the absence of a counter to the stand taken by the applicantsFthat the 1963 Regulations are statutory in nature, it will have to be presumedthat the Regulations are referable to the provisions of Section 184.

16. Section II deals with officers in the Executive branch inductedon SSCs. Regulation 122(1) makes provisions governing “the entry, trainingand promotion of officers granted SSCs in the Executive branch of theGIndian Navy”. Regulation 122(2) contains a stipulation that the candidatemust be an “unmarried male”:

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

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

17. Under Regulation 122(9), an officer is to be on probation forone year or until the completion of initial training, whichever is later.Regulation 122(14) provides:

“(14) Permanent Commissions. – Suitable officers may beconsidered for the grant of Permanent Commission in the IndianNavy at any time after successful completion of the period ofprobation, subject to the existence of vacancies and the regulationscurrent at the time.”

18. Section IV of the Regulations deals with officers in theEngineering branch inducted on SSCs. Regulation 124(2) contains aprovision 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 “unmarriedmales”. Regulations 124(14) and 126 (14) contain provisions for thegrant of PCs.

19. Chapter IX of the Regulations is titled “Grant of PermanentCommission to Short Service Commission Officers”. Regulation 203contains the following stipulation in regard to the grant of PCs :

“203. Grant of Permanent Commission. – (1) Subject to theavailability of vacancies in the stabilized cadre of the Navy,Permanent Commission may be granted from time to time to ShortService Commission Officers of the rank of Sub-Lieutenant andabove who are considered suitable and are recommended by theChief of the Naval Staff.

(2) Officers granted Permanent Commission may be transferredwith their existing rank and seniority. The retention of any actingrank held by an officer at the time of transfer to a PermanentCommission shall be governed by Regulation 202.

(3) Short Service Commission Officers selected for the grant ofPermanent Commission in the Navy shall conform to the medicalstandard laid down by the Chief of the Naval Staff from time totime.”

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A20. 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.BRegulation 203 applies to SSC officers of the rank of Sub-lieutenantand above.

21. A comparison may be made of the provisions of Regulation122 (14) and Regulation 203. Regulation 122(14) stipulates that suitableofficers may be considered for the grant of PC in the Navy after theCsuccessful completion of the period of probation, subject to the existenceof vacancies and the regulations current at the time. Regulation 203provides for the consideration of the grant of PCs from time to time toSSC officers of the rank of Sub-lieutenant and above subject to theirsuitability, availability of vacancies in the stabilized cadre of the NavyDand the recommendation of the Chief of Naval Staff. Regulation 122(14)applies to all officers in the Executive branch of SSC officers. Regulation203 applies to all officers of the rank of Sub-lieutenant and above. TheAFT observed that Regulation 203 would apply to the OAs before itsince the applicants were recruited as SSC officers in the rank of Sub-lieutenant and were promoted thereafter.E

22. The Indian Navy consists of four branches – Executive,Electrical, Engineering and Education. On 9 October 1991, the UnionGovernment, pursuant to the enabling power conferred by Section 9(2),issued a notification by which women were made eligible for appointmentas 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 ofGthe Indian Navy.

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

notification which was published in the Gazette of India on 9 October1991 was to be in force for five years. The consequence of the issuanceof this notification under Section 9(2) was that the restriction on theappointment or enrolment of women was lifted for specified cadres/branches of the Navy. Once the notification was issued under Section9(2), the provisions in the 1963 Regulations restricting the grant of SSCsto males would stand lifted insofar as the cadres/branches where theentry of women was notified.

24. On 20 December 1991, the Union Government in the MoDaddressed a communication to the Chief of Naval Staff conveying thesanction of the President for the induction of SSC officers, includingwomen in the Education branch of the Indian Navy and stipulating theterms and conditions of service. Para 2 of the letter stipulated the eligibilityfor appointment on SSCs thus:

“Eligibility. A candidate must be an unmarried male orfemale and must fulfill conditions regarding the nationality as laiddown by the Government.”

(Emphasis supplied)

Para 3 stipulated that candidates would be inducted on SSC forseven years and that the period could be extended with the consent ofthe officer for two years at a time. Para 4 contemplated that the policyin regard to the grant of PCs would be promulgated in 1997:

“Grant of Permanent Commission.The policy in this regardwill be promulgated in 1997.”

Para 6 stipulated that the rules for entry and promotion would bethose prescribed in Part III of the 1963 Regulations of the Navy, assanctioned by the Union Government for the entry of male / PC officersin the Education branch except as specified therein. Para 15 stipulatedthat the induction of women under the scheme was to be initially for aperiod of five years, which would be reviewed thereafter.

25. The above notification dated 20 December 1991 had thefollowing reference number:

“MP/0417/NHQ/1110/DO/D(N-IV)”

On the same day – 20 December 1991 - the Union Governmentin the MoD addressed another communication to the Chief of Naval A

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AStaff conveying the sanction of the President for the induction of SSCofficers including women into the Law and Logistics cadres of theExecutive branch of the Indian Navy and stipulating the terms andconditions of service therein. The letter stipulated that the terms andconditions of service would be those prescribed in Regulation 122 of the1963 Regulations and in the Union Government’s letter dated 20BDecember 1991 regarding the entry of SSC officers in the Educationbranch, except as set out in the notification. The reference number ofthis notification was:

“MP/0417/NHQ/1111/DO/D(N-IV)”

C26. On 1 July 1992, the Union Government in the MoD sanctionedthe intake of thirty-five officers on SSCs for a period of five years in theATC cadre. Paragraph 11 specified the policy for the grant of PC in thefollowing terms:

“11. Grant of Permanent Commission. There will be noDprovision for the grant of Permanent Commission.”It was stipulated that no PCs would be granted (for both men andwomen) in the ATC cadre.

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

28. On 6 November 1998, the Union Government once againexercised its authority under Section 9(2) to make women eligible forFappointment as officers in all the branches of the Indian Navy:

(a) Executive;

(b) Engineering;

(c) Electrical; and

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(d) Education.

The earlier exercise of power under Section 9(2) had renderedwomen eligible for appointment as officers of the Indian Navy in theLogistics and Law cadres and the Education branch. The subsequent H

notification dated 6 November 1998[13] extended the field of eligibilityAunder Section 9(2) to all four branches in the Indian Navy.

29. On 25 February 1999, the Union Government in the MoDissued a communication to the Chief Naval Staff. The contents of thenotification have a substantive bearing in the present case and are henceextracted below:

B

“

No. MP/0417/1/NHQ/425D(N-II)Government of India,Ministry of Defence,New Delhi, the 25[th] February, 1999

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To

The Chief of the Naval Staff

(with 30 spare copies)

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Subject : TERMS AND CONDITIONS OF SERVICE OF SSCOFFICERS (INCLUDING WOMEN)

Sir,

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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 thePresident for the following:- F

(a) Grant of Permanent Commission. The policy for grant ofPermanent Commission will be in accordance with Article 203,Chapter IX of Regulations Navy Part III.

(b) Employment/Sea Service.Women officers of all Branches/Gcadres may also be directed to serve on board ships, duringtraining & subsequent employment should the exigencies ofService so require.

13 Published in the Gazette of India on 28 November 1998

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A2. 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 DelhiCThe DDADS, MumbaiThe CGDA, New Delhi – 2 copiesThe CDA (N), Mumbai – 2 copies (one signed in ink)The DFA (N), New Delhi – 2 copies”

30. The above communication contains a reference to the twoDearlier letters dated 20 December 1991, which we have noted abovebearing the reference numbers MP/0417/NHQ/1110/DO/D(N-IV) andMP/0417/NHQ/1111/DO/D(N-IV).

31. The two significant facets of the above communication dated25 February 1999 are: first, the policy for the grant of PCs to womenEofficers would be in accordance with the Regulation 203 of Chapter IXof the 1963 Regulations; and second, women officers of all branchesand cadres may be directed to serve on board ships, both during trainingand subsequent employment in accordance with the exigencies of service.

32. Subsequently, on 27 February 2002, the Union GovernmentFconveyed the sanction of the President to extend the tenure of SSCofficers in the Navy to fourteen years.

33. In July 2002, the Indian Navy issued an advertisement invitingapplications from men and women for appointment as SSC officers inthe ATC and Logistics cadres and the Education branch. While invitingGapplications, 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, officersare released with gratuity as admission under the rules. Based on H

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

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

35. It is necessary to note at this juncture that the women SSCofficers in Annie Nagaraja’s case were inducted between 1992 and2001 pursuant to the notifications dated 9 October 1991, 20 December1991 and 1 July 1992. On the other hand, the women SSC officers inPriya Khurana’s case were inducted as SSC officers pursuant to theadvertisement issued in July 2002.

36. On 26 September 2008, the MoD issued a communication tothe Chiefs of the Army, Naval and Air Staff regarding the grant of PCsto SSC women officers. The communication, which is the subject matterof the challenge in the present appeals, is extracted below:

“No. 12(1)/2004-D(AG). Pt II

Government of India,Ministry of DefenceNew Delhi, the 26[th] September, 2008

To

The Chief of the Army StaffThe Chief of the Naval StaffThe Chief of the Air Staff Subject: Permanent Commission to SSC Women Officers I am directed to convey the sanction of the President tooffer Permanent Commission prospectively to Short ServiceCommission (Women) Officers to be inducted in Judge AdvocateGeneral (JAG) Department and Army Education Corps (AEC)of Army and their corresponding Branch/Cadre in Navy and AirForce. Accounts Branch of the Air Force and Naval Constructorof the Navy in addition to current provision for Grant of PC toSSC (Men) Officers.

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A2. Suitable administrative instruction in this regard will be issuedby respective Service HQs.

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

B

(S.C. Barmma)Director (AG)

Copy to:- As per standard Distribution”

37. The two significant facets of the above communication are:Cfirst, the grant of PC was made prospective to SSC women officers “tobe inducted” in the specified cadres/branches. As a consequence, PCswere denied to women SSC officers who were already in service; andsecond, PCs were confined to specific cadres and branches in the caseof SSC women officers in the Army, Navy and Air Force. Insofar as theDNavy is concerned, PCs were to be granted in the cadres/branchescorresponding to the Judge Advocate General[14] and Education branchesof the Army in addition to the Naval Constructor cadre of the Navy. Thecommunication dated 26 September 2008 contains no reference to theearlier policy communication dated 25 February 1999.

E38. On 3 December 2008, the Integrated Headquarters of theMoD (Navy) issued implementation guidelines for selecting SSC officersfor the grant of PCs in the Navy from the following branches/cadres:

39. The tabulation above indicates that the grant of PCs wasGenvisaged only prospectively for batches inducted after January 2009and in only three cadres/branches as noted above. This was in terms ofthe earlier decision dated 26 September 2008. Para 4 of theimplementation guidelines provides for the constitution of a board for theselection of SSC officers for the grant of PCs:

H14 “JAG”

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

40. Para 5 which deals with selection provides as follows:

“5. Selection. The eligible officers are thereafter to be empaneledfor grant of PC. The Branch/Cadre-wise selection would be basedon inter-se merit based on ACRs held on the officers underconsideration and subject to availability of vacancies.”

41. Selection, in other words, of officers for the grant of PCs is tobe based on inter se merit determined on the basis of the AnnualConfidential Reports[15] of the officers under consideration and subject tothe availability of vacancies.

42. The judgment of the Delhi High Court in Babita Puniya hasbeen the subject matter of the recent decision rendered by this Court inThe Secretary, Ministry of Defence v Babita Puniya[16]. This Courtissued the following directions:

“69. We accordingly take on record the statement of policy placedon the record in these proceedings by the Union Government inthe form of the letter dated 25 February 2019 and issue the followingdirections:

(i) The policy decision which has been taken by the UnionGovernment allowing for the grant of PCs to SSC womenofficers in all the ten streams where women have been grantedSSC in the Indian Army is accepted subject to the following:

(a) All serving women officers on SSC shall be consideredfor the grant of PCs irrespective of any of them havingcrossed fourteen years or, as the case may be, twentyyears of service; (b) The option shall be granted to all women presently inservice as SSC officers; 15 “ACRs”16 2020 (3) SCALE 712

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(c) Women officers on SSC with more than fourteen years ofservice who do not opt for being considered for the grantof the PCs will be entitled to continue in service until theyattain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in serviceuntil the attainment of pensionable service shall also applyto all the existing SSC officers with more than fourteenyears of service who are not appointed on PC; B

(e) The expression “in various staff appointments only” in para5 and “on staff appointments only” in para 6 shall not beenforced; C

(f) SSC women officers with over twenty years of servicewho are not granted PC shall retire on pension in terms ofthe policy decision; and (g) At the stage of opting for the grant of PC, all the choicesDfor specialisation shall be available to women officers onthe same terms as for the male SSC officers. WomenSSC officers shall be entitled to exercise their options forbeing considered for the grant of PCs on the same termsas 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 ofthe Delhi High Court; and

(iii) SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequential benefitsFincluding promotion and financial benefits. However, thesebenefits would be made available to those officers in serviceor those who had moved the Delhi High Court by filing theWrit Petitions and those who had retired during the course ofthe pendency of the proceedings.”

GC Submissions

43. Mr Sanjay Jain, learned Additional Solicitor General for Indiaprefaced his submissions by urging:

(i) Sea-going duties in the Indian Navy unlike the Army or AirForce have a distinctive feature since there is no immediateHreturn to base;

(ii) The policy has been to exclude women from sea-goingAbranches with the exception of the Logistics cadre;

(iii) There are practical difficulties in allowing the induction ofwomen SSC officers on PCs: the Indian Navy substantiallyoperates on vessels of a Russian origin in which there is anabsence of toilet facilities for women; and B

(iv) There is a possibility of certain branches involving sea-goingduties being opened up for women officers on PCs in thenear future as new ships are introduced into the Naval fleet.

44. Mr Jain submitted that the Indian Navy does not discriminatebetween men and women. In 1991, SSCs were opened up in the Lawand Logistics cadres and the Education branch on a uniform basis. Tothese branches were added ATC (1991), Naval Constructor (2001), NavalArmament Inspectorate (2017) and Observer Specialization (2018). Asfor PCs, as a result of the policy decision taken on 26 September 2008,Law and Naval Constructor cadres and the Education branch wereopened up which was followed up in 2017 with the Naval ArmamentInspectorate. Mr Jain submitted that the size of the Indian Navy is muchsmaller than the other Armed Forces, as a consequence of which, thepyramidal structure is saturated comparatively quicker than in the Armyand the Air Force. Elaborating on his submissions, Mr Jain urged that:

E

(i) The decision of the Delhi High Court in Babita Puniya hasbeen recently upheld by this Court;

(ii) The provisions of Section 9(2) of the 1957 Act are not underchallenge;

(iii) The avenues for women which have opened up in the IndianFNavy stem from the exercise of power under Section 9(2);

(iv) Direct entry through PCs is not a matter in issue in thepresent appeals; and

(v) The grant of PCs is not automatic but on the assessment ofmerit inter se.

G

45. In defence of the policy decision taken by the UnionGovernment on 26 September 2008 making the grant of PCs to SSCwomen officers prospective and in stipulated cadres/branches, Mr Jainsubmitted that while envisaging the grant of SSCs to women on 20

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ADecember 1991, it was contemplated that the policy for the grant ofPCs would be promulgated in 1997. On 25 February 1999, the MoDwhile outlining the terms and conditions of service of SSC officersincluding women stipulated that the policy for the grant of PCs “will bein accordance with Regulation 203”. In his submission, the policy of1999 was indicative of the fact that the Union Government wanted toBframe a policy in the future. Such a policy, it was contended, was framedin 2008 on the basis of which the implementation guidelines were notified.Hence, he urged that in the case of the Indian Navy, no promise washeld out to women officers recruited on SSCs of being granted PCs inthe future. On this basis, it has been urged that no rights had accrued toCSSC women officers on the basis of the policy which was notified on 25February 1999. Hence, the Union Government was justified in notifyinga policy for the first time on 26 September 2008 making it prospectiveand confining its application to specified cadres/branches.

46. Resisting the above submissions, Mr CU Singh, learned SeniorDCounsel urged that:

(i) The restraint which is imposed on the eligibility of womenfor appointment or enrolment in the Indian Navy is liftedupon the issuance of a notification by the CentralGovernment 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 provisionscontained in the 1963 Regulations for the grant of PCs wouldapply proprio vigore;

(iii) As a consequence, upon the issuance of a notification underFSection 9(2), the restrictions imposed in Regulations 122(2),124(2) and 126(2) confining eligibility only to male officerswould not apply since the Regulations are subservient tothe parent statute;

(iv) Regulation 203 of Chapter IX of the 1963 RegulationsGcontains a specific provision for the grant of PCs subject tothe availability of vacancies, consideration of suitability andthe recommendation of the Chief of Naval Staff;

(v) On 20 December 1991, the Union Government whileopening up certain cadres/branches for the induction ofH

Short Service Commissioned officers including womencontemplated that the policy for the grant of PCs would bepromulgated in 1997. The policy which was issued on 25February 1999 contained a specific reference to the twoletters dated 20 December 1991 of the MoD and is hencereferable to the earlier commitment;

(vi) On 6 November 1998, a notification was issued underSection 9(2) opening up the appointment of women asofficers in the Executive, Engineering, Electrical andEducation branches. These four branches encompassnineteen sub-branches:

·Executive branch-13·Engineering branch-2·Electrical branch-2·Education branch-2

(vii) The policy communication dated 25 February 1999 stipulatedthat the policy for the grant of PCs will be in accordancewith Regulation 203 and specifically permitted sea-servicefor women;

(viii) The submission of the Union Government that the policydocument of 25 February 1999 is only an intent to frame apolicy in the future is belied by the express terms of thedocument as well as by the advertisement issued in July2002 for SSC officers, which contemplated theirconsideration for the grant of PCs; and

(ix) The policy issued on 26 September 2008 has justifiably beenheld to be arbitrary and invalid by the AFT. The policycontains no reference to the notifications issued in 1991 orto the Presidential sanction of 25 February 1999. On areview of the files, the AFT came to the conclusion that thesanction which was issued on 25 February 1999 was notplaced before the Board which gave its sanction to thesubsequent policy dated 26 September 2008. As a result ofthe policy document dated 26 September 2008, there wouldbe a complete denial of PCs to those women officersrecruited after 1991, including those recruited under the A

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On the above rationale, Mr CU Singh has urged that there is nomerit in the appeals filed by the Union of India. Mr CU Singh stressedthat according to a release of the Press Information Bureau, theBauthorised strength of the Navy as on 1 July 2018 was 11,352. The heldstrength was 9,746, resulting in a shortage of 1,606 officers. As on 1June 2019, the authorized strength is 11,567 while the held strength is10,012, thus resulting in a shortage of 1,555 officers.

47. Mr Santosh Krishnan, learned counsel has urged:

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(i) The policy letter dated 26 September 2008, in so far as it isprospective and has been restricted to certain cadres/branches, is liable to be set aside. In the Logistics cadreand the Education branch, male officers are inducted directlyas PC officers. The absolute denial of consideration for thegrant of PCs to SSC women officers is discriminatory innature; D

(ii) The policy letter dated 26 September 2008 is ultra viresthe policy letter dated 25 February 1999 and Regulation203 of the 1963 Regulation. The findings of the AFT in thisEregard are to be upheld. Regulation 203, as subordinatelegislation, outweighs executive instructions;

(iii) The Union Government has challenged before this Courtthe judgment of the AFT only in one OA. Consequently,the Union Government is deemed to have accepted theFjudgment of the AFT qua the other women SSC officerswho were inducted in pursuance of the advertisementsissued in July 2002; and

(iv) No stay was granted by this Court on the judgment of theAFT. It is the failure of the Union Government to implementthe judgment of the AFT which has led to cascading litigationGsince 2016 by officers seeking similar protection. Around160 men have been recruited as direct PC officers in thelast ten years. This belies the contention urged on behalf ofthe Union Government that there is a ‘personnel saturation’in the Logistics cadre. A saturation in the cadre, if any, is aHresult of the failure of the Union Government to implement the judgment of the AFT. Women SSC officers have beenkept out of the zone of consideration despite the bindingdirections in Annie Nagaraja’s case and Priya Khurana’scase.

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48. Ms Haripriya Padmanabhan, learned counsel appearing forthe respondent nos. two to six in Annie Nagaraja’s case urged:

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(i) SSC male officers have been granted PCs in variousdepartments of the Navy. The grant of PCs to SSC maleofficers in certain cadres was halted following the inductionof women on SSCs in those cadres. PCs, being granted tomale officers in these specified streams must also beCextended to women officers inducted on SSCs;

(ii) The notifications issued by the Union Government in 1991stipulated that the policy for the grant of PCs would bepromulgated in 1997. Women officers, inducted on SSCspursuant to these notifications, had a legitimate expectationthat they would be considered for the grants of PCs; D

(iii) The legitimate expectation of the women SSC officerscrystalised into a right upon the issuance of the policy letterdated 25 February 1999, which states that the grant of PCsshall be in accordance with Regulation 203 of the 1963Regulations; E

(iv) The advertisements issued in July 2002 contained an expressstipulation that deserving SSC officers may be consideredfor the grant of PCs; and F

(v) The second to sixth respondents were commissioned asSSC officers in the Indian Navy between 1992 and 1994and were among the first batches of women officers in theNavy. They completed their service and were releasedbetween 2006 and 2008 prior to the issuance of the policyletter dated 26 September 2008. Though the interim orderof this Court dated 20 November 2015 protected only thosewomen SSC officers in service on the date of the issuanceof the policy, their right of being considered for the grant ofPCs arose by virtue of the policy letter dated 25 February1999. Though out of service for over twelve years, this G

ACourt may consider their reinstatement and the grant ofPCs.

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ACourt may consider their reinstatement and the grant ofPCs.

49. Ms Aishwarya Bhati, learned Senior Counsel appearing onbehalf of Commander Seema Chaudhary (JAG SSC officer) hascanvassed submissions in line with those urged by Mr CU Singh, learnedBSenior Counsel and Mr Santosh Krishnan, learned counsel. In additionto these submissions, it was urged that facially neutral laws, as in thepresent case, have a discriminatory effect against women SSC officers.Male officers have, it was urged, always been afforded a choice betweenbeing inducted either as SSC officers or directly as PC officers. Despitethe non-consideration of the grant of PCs to male SSC officers, PCCavenues were in fact available to men. On the other hand, women SSCofficers are neither recruited directly as PC officers nor are SSC womenofficers considered for the grant of PCs. This, it was urged, belies thesubmission of the Union Government that the non-consideration of bothmale and women SSC officers for the grant of PC is gender neutral andDnot discriminatory.

50. The rival submissions fall for consideration.

D Preliminary Objection

51. Before we deal with the rival submissions on merits, it isEnecessary to advert to a preliminary objection which was urged byMr CU Singh, learned Senior Counsel to the maintainability of the appeal[17]filed by the Union of India in Priya Khurana’s case. Mr CU Singhurged that when the SSC women officers sought to challenge the judgmentof the AFT, leave to appeal was separately sought and was granted bythe AFT to move this Court. This led to the filing of six Civil Appeals byFthe officers[18]. However, the Union of India sought the leave of the AFTto file an appeal before this Court[19] only in one OA. No leave wassought to appeal in the other OAs. Mr CU Singh urged that the AFTrendered one common judgment in six OAs. The Union of India havingfiled an appeal only in one of the cases arising from the AFT, it wasGurged that the common judgment binds the Union Government andoperates as res judicata in the other five OAs. In this submission, thejudgment of the AFT which held that the policy communication dated 26

17 Civil Appeal 3359 of 201118 Civil Appeal No. 10225-30 of 2016H19 Civil Appeal No. 3359 of 2017

September 2008 is ultra vires binds the Union of India in the five caseswhere no appeal has been filed. Hence, it was submitted that it is notopen to the Union of India to file an appeal only in one of the six caseswhere a common judgment has been delivered on similar facts. In thiscontext, reliance was placed on the decision of this Court in Sri GangaiVinayagar Temple v Meenakshi Anmal[20].

52. Opposing the above submission, Mr Sanjay Jain, learned ASGsubmitted that the decision which was relied on by Mr CU Singh arosein the context of a civil suit while the scheme under the AFT Act 2007 isdistinct.

53. Section 30(1) of the AFT Act 2007 provides as follows:

“30. Appeal to the Supreme Court. – (1) Subject to theprovisions of Section 31, an appeal shall lie to the Supreme Courtagainst the final decision or order of the Tribunal (other than anorder passed under Section 19):

Provided that such appeal is preferred within a period of ninetydays of the said decision or order.

Provided further that there shall be no appeal against aninterlocutory order of the Tribunal.”

Section 31 is in the following terms:

“31. Leave to appeal.—(1) An appeal to the Supreme Courtshall lie with the leave of the Tribunal; and such leave shall not begranted unless it is certified by the Tribunal that a point of law ofgeneral public importance is involved in the decision, or it appearsto the Supreme Court that the point is one which ought to beconsidered by that Court.

(2) An application to the Tribunal for leave to appeal to the SupremeCourt shall be made within a period of thirty days beginning withthe date of the decision of the Tribunal and an application to theSupreme Court for leave shall be made within a period of thirtydays beginning with the date on which the application for leave isrefused by the Tribunal.

(3) An appeal shall be treated as pending until any application forleave to appeal is disposed of and if leave to appeal is granted, A

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The above provisions were interpreted by a Bench of two learnedBjudges of this Court in Union of India v Brigadier PS Gill[21].This Courtheld that there are two distinct routes for filing an appeal against a finalorder of the AFT (other than an order passed in the jurisdiction to punishfor contempt). The first route is the grant of leave by the Tribunal to filean appeal before the Supreme Court under Section 31(1). The secondroute empowers this Court to permit the filing of an appeal against aCfinal decision or order of the Tribunal if it appears to this Court that thepoint 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 providesfor an appeal to the Supreme Court but stipulates two distinctDroutes for such an appeal. The first route to this Court is sanctionedby the Tribunal granting leave to file such an appeal. Section 31(1)in no uncertain terms forbids grant of leave to appeal to this Courtunless the Tribunal certifies that a point of law of general publicimportance is involved in the decision. This implies that SectionE31 does not create a vested, indefeasible or absolute right of filingan appeal to this Court against a final order or decision of theTribunal to this Court. Such an appeal must be preceded by theleave of the Tribunal and such leave must in turn be preceded bya certificate by the Tribunal that a point of law of general publicimportance is involved in the appeal.F9. The second and the only other route to access this Court is alsofound in Section 31(1) itself. The expression “or it appears to theSupreme Court that the point is one which ought to be consideredby that Court” empowers this Court to permit the filing of anappeal against any such final decision or order of the Tribunal.G10. A conjoint reading of Sections 30 and 31 can lead to only oneconclusion viz. there is no vested right of appeal against a finalorder or decision of the Tribunal to this Court other than thosefalling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificateobtained from the Tribunal that decided the matter or by obtainingleave of this Court under Section 31 for filing an appeal dependingupon whether this Court considers the point involved in the caseto be one that ought to be considered by this Court.”

54. The Court also dealt with the question whether an applicationfor leave to appeal under Section 31 can be moved directly before theSupreme Court without first approaching the Tribunal for a certificate interms of the first part of Section 31(1). The Court held that an aggrievedparty cannot approach this Court directly for the grant of leave to file anappeal under Section 31(1) read with Section 31(2). The Court held:

“14. The scheme of Section 31 being that an application for grantof a certificate must first be moved before the Tribunal, beforethe aggrieved party can approach this Court for the grant of leaveto file an appeal. The purpose underlying the provision appears tobe that if the Tribunal itself grants a certificate of fitness for filingan appeal, it would be unnecessary for the aggrieved party toapproach this Court for a leave to file such an appeal. An appealby certificate would then be maintainable as a matter of right inview of Section 30 which uses the expression “an appeal shall lieto the Supreme Court”. That appears to us to be the true legalposition on a plain reading of the provisions of Sections 30 and31.”

55. The learned ASG has urged that though the Union Governmentdid not seek the grant of leave by the AFT for the companion five casesand as a matter of fact sought the grant of leave only in one case, theyshould not be foreclosed from challenging the judgment of the AFT.Mr Jain submitted that a common judgment has been delivered by theAFT dealing with issues of far-reaching importance bearing on legalquestions involved and hence it would be desirable for the Court toconsider the matter on merits.

56. The learned Counsel appearing before this Court haveaddressed arguments on the merits of the issues raised in the judgmentsof the Delhi High Court and AFT. We are nevertheless required toadjudicate upon the validity and effect of the policy letter dated 26September 2008 in the appeals filed by the SSC women officers in AnnieNagaraja’s and Priya Khurana’s case. In order to render a final A

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Aadjudication, we propose to deal with the appeals on merits. We leaveopen the question of law raised in the preliminary objection of Mr CUSingh to be considered in an appropriate case in future.

EValidity of the policy letter dated 26 September 2008

57. Article 33 of the Constitution entrusts to Parliament toBdetermine, by law, the extent to which any of the rights conferred byPart III of the Constitution can be restricted or abrogated in theirapplication to the members of the Armed Forces “so as to ensure theproper discharge of their duties and the maintenance of discipline amongthem”. Besides the requirement that a restriction must be determined byClaw, Article 33 postulates a nexus between the restriction or abrogationand the need for the proper discharge of duties and the maintenance ofdiscipline among members of the Armed Forces.

58. In Lt. Col. Prithi Pal Singh Bedi v Union of India,[22] thelegality of orders convening a General Court Martial and its compositionDwas questioned. It was contended that trial by a Court Martial wouldresult in the deprivation of personal liberty, which can only be done inconsonance with Article 21 of the Constitution. It was contended thatany restriction must be by procedure established by law and the lawprescribing such procedure must satisfy the test prescribed by Articles14 and 19 of the Constitution. Justice D A Desai, writing for a threeEjudge Bench of this Court noted the competing interests that must beconsidered in matters concerning the Armed Forces in the followingterms:

“14. While investigating and precisely ascertaining the limits ofinroads or encroachments made by legislation enacted in exerciseFof power conferred by Article 33, on the guaranteed fundamentalrights to all citizens of this country without distinction, in respectof armed personnel, the court should be vigilant to hold the balancebetween two conflicting public interests; namely necessity ofdiscipline in armed personnel to preserve national security at anyGcost, because that itself would ensure enjoyment of fundamentalrights by others, and the denial to those responsible for nationalsecurity of these very fundamental rights which are inseparableadjuncts of civilised life…”

The Court held that the public interest in the maintenance andpreparedness of the Armed Forces of the nation has to be weighed withan equally compelling public interest in balancing the abrogation orrestriction of fundamental rights of the officers in the Armed Forces.For this reason, Article 33 specifies that any restriction imposed must beby law and in order to ensure the proper discharge of their duties and themaintenance of discipline among them. The Court rejected the challengeand held:

“…Article 33 does not obligate that Parliament must specificallyadumbrate each fundamental right enshrined in Part III and tospecify in the law enacted in exercise of the power conferred byArticle 33 the degree of restriction or total abrogation of eachright. That would be reading into Article 33 a requirement whichit does not enjoin…it is not possible to accept the submission thatthe law prescribing procedure for trial of offences by court martialmust satisfy the requirement of Article 21 because to the extentthe procedure is prescribed by law and if it stands in derogation ofArticle 21, to that extent Article 21 in its application to the ArmedForces is modified by enactment of the procedure in the ArmyAct itself.”

59. In R Viswan v Union of India,[23] one of the issues concernedwhether Section 21 of the Army Act, 1950 read with Chapter IV of theArmy Rules, 1954 is within the scope and ambit of Article 33 of theConstitution. Section 21 empowers the Central Government by notificationto make rules restricting “to such extent and in such manner as may benecessary” certain fundamental rights in their application to personssubject to the 1950 Act. Justice P N Bhagwati (as the learned ChiefJustice then was), speaking for a Constitution Bench of this Court held:

“A plain reading thus would reveal that the extent of restrictionsnecessary to be imposed on any of the fundamental rights in theirapplication to the armed forces and the forces charged with themaintenance of public order for the purpose of ensuring properdischarge of their duties and maintenance of discipline amongthem would necessarily depend upon the prevailing situation at agiven point of time and it would be inadvisable to encase it in arigid statutory formula. The Constitution-makers were A

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Aobviously anxious that no more restrictions should beplaced than are absolutely necessary for ensuring properdischarge of duties and the maintenance of disciplineamongst the armed force personnel and therefore Article33 empowered Parliament to restrict or abridge withinpermissible extent, the rights conferred under Part III ofBthe Constitution insofar as the armed force personnel areconcerned.”

(Emphasis supplied)

The Court noted that restrictions imposed upon fundamental rightsCin exercise of the power conferred by Article 33 must be “absolutelynecessary for ensuring proper discharge of duties and the maintenanceof discipline”. The Court held:

“…Parliament was therefore within its power under Article 33 toenact Section 21 laying down to what extent the CentralDGovernment may restrict the Fundamental Rights under clauses(a), (b) and (c) of Article 19 (1), of any person subject to theArmy Act, 1950, every such person being clearly a member ofthe Armed Forces… The guideline for determining as to whichrestrictions should be considered necessary by the CentralGovernment within the permissible extent determined byEParliament is provided in Article 33 itself, namely, that therestrictions should be such as are necessary for ensuring the properdischarge of their duties by the members of the Armed Forcesand the maintenance of discipline among them. The CentralGovernment has to keep this guideline before it in exercising theFpower of imposing restrictions under Section 21 …”

This Court, in upholding Section 21 of the 1950 Act, held that theexercise of such power must necessarily conform to the restrictionsinherent in Article 33 of Constitution. The nexus requirement in Article33 was affirmed by this Court in Union of India v LD Balam Singh[24]and Mohd. Yunus Khan v State of UP.[25]G

60. Section 9(2) of the 1957 Act conditions the restriction on theappointment or enrolment of women in the Indian Navy by entrusting tothe Union Government the authority to issue notifications allowing for24 (2002) 9 SCC 7325 (2010) 10 SCC 539H

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

61. Close on the heels of the first notification dated 9 October1991 issued under Section 9(2), the MoD issued two notifications on 20December 1991 with successive numbers of reference providing for theterms and conditions of service of SSC officers, including women. Thefirst letter (bearing reference No. 1110) concerned SSC officers in theEducation branch. As we have noted, para 4 of the notification specificallycontemplated that the policy in regard to the grant of PCs would bepromulgated in 1997. The second letter (bearing reference No. 1111)concerned SSC officers in the Law and Logistics cadres and adoptedthe terms of the earlier letter, save to the extent specified therein. Asthere was no specific stipulation concerning the grant of PCs in thesecond letter, the stipulation in para 4 of the first notification (bearingreference No. 1110) applies to SSC officers inducted in the Law andLogistics cadres.

62. Hence from 20 December 1991, it was within the contemplationof 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 atenure of seven years. The policy for the grant of PCs was henceenvisaged to be notified before or around the expiry of the short servicetenures notified in 1991. The stipulation on the tenure of seven years AB

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Awas subsequently extended to ten years in 1998 and to fourteen years in2002.

63. It is in the above background, that the policy communicationof the Union Government dated 25 February 1999 has to be understood.Regulation 203 of the 1963 Rules lays down the norms for the grant ofBPCs. 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.

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64. The policy communication dated 25 February 1999 was notanticipatory in nature. What the communication spelt out was that thegrant of PCs to SSC officers would be in terms of Regulation 203. Thiswould cover both men and women officers serving on SSCs. Theexpression “the policy for grant of Permanent Commission will be” inDaccordance with Regulation 203 cannot be construed to mean that thepolicy was yet to be framed or that until a future date when a policywould be notified, there was no entitlement to be considered for thegrant of PCs. The import of the policy document dated 25 February1999 was to bring the grant of PCs to all SSC officers including womenin accordance with Regulation 203.E

65. The course of the evolution of policy from 9 October 1991clearly indicates a legitimate expectation on part of the SSC officers(both men and women) of being governed by the provisions of Regulation203 being considered for the grant of PCs. The Navy Regulations, whenthey were originally drafted in 1963, did not contemplate the induction ofFwomen. For this reason, Regulations 122(2), 124(2) and 126(2) spoke ofonly “unmarried males” being eligible for induction on SSCs. TheRegulations being subservient to statute, incorporated restrictions whichcomported with the provisions of Section 9(2). However, what Section9(2) envisages is that the restrictions on the enrolment or appointment ofwomen in branches or departments of the Indian Navy would be liftedGupon the issuance of a notification by the Union Government sanctioningthe entry of women officers, subject to the conditions which may bespecified. Both in the notifications dated 9 October 1991 and 6 November1998, the Union Government lifted the statutory bar in exercise of itsenabling power under Section 9(2) by allowing for the entry for womenHas officers in the Indian Navy in stipulated branches. Once the statutory bar stood lifted, the appointment of SSC officers, both men and womenon PCs would be governed uniformly by the provisions of Regulation203. This was made abundantly clear by the policy letter dated 25February 1999 which was issued in compliance with the legal regime.The grant of PCs to SSC men and women officers aligned with theprovisions of Regulation 203 which plainly is a matter of law. Thus, thecontention urged by Mr Sanjay Jain, learned Additional Solicitor Generalthat the communication dated 25 February 1999 was merely anticipatoryin nature and that the entitlement to be considered for the grant of PCswould have to await a further policy, which came into being on 26September 2008 cannot be accepted. The communication dated 25February 1999 of the MoD had the sanction of the President andconsequently cannot be disregarded as suggested in the arguments urgedby the Union of India in these proceedings.

66. In addition to the above observations, in Priya Khurana’scase which concerned women officers of the 2002 batch, anadvertisement had been issued by the authorities inviting applicationsfrom men and women for joining as SSC officers in the ATC and Logisticscadres and the Education branch. The advertisement clearly stipulatedthat 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 astipulation. The employment notice of July 2002 was not in conflict withthe provisions contained in Regulations 203. Regulation 203 uses thephrase “from time to time”, indicating thereby that it was open to thecompetent authority to determine the grant of PCs to the SSC officersbased on the availability of vacancies, suitably and the recommendationof the Chief of the Naval Staff. Hence, in July 2002, when the Navyinvited applications for SSCs in stipulated branches, it held out a clearrepresentation that deserving cases may be considered for the grant ofPCs.

67. The policy decision of the MoD dated 26 September 2008governed the grant of PCs to SSC women officers in the Army, Navyand Air Force. The communication, by stipulating that it would apply toSSC women officers “to be inducted”, purported to exclude womenSSC officers in service from being considered for the grant of PCs. Italso sought to restrict the cadres/branches in which PCs could be grantedto women SSC officers. The AFT has noted after it had summoned the AB

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Afiles, that the earlier policy decision of 25 February 1999 was not placedbefore the decision making authorities. The AFT concluded that while apolicy framed by the government is amenable to change or alteration,decision making by the government is subject to the norms ofreasonableness and a non-arbitrary exercise of power. The AFT noted:

B“…the said record reveals that the Chairman of the COSC neverrecommended that the policy should apply to persons who havesubsequently been recruited and shall not apply to in-service SSCOfficers…

The aforesaid record pertaining to the policy-decision dated 26[th]CSeptember 2008 does not reveal consideration of the existingpolicy-decision dated 25 February 1999. No deliberation, as itappears from the aforesaid record, was made as to why the existingpolicy relating to the grant of PC to SSC officers, irrespective ofthe gender, as well as the branches/cadres requires modification/change. The said record reveals that even the Raksha MantriDwas kept in the dark about the existing policy-decision dated 25February 1999. Though the respondent-authorities are free tochange their earlier policy, the reason for the change must bereflected on the record pertaining to such change, so also theconsideration as well as the deliberation on the existing policy,Ewhich as discussed above, are absent in the case at hand”

Evidently, in the view of the AFT, the decision which was arrivedat on 26 September 2008 was not a conscious departure from the earlierpolicy of 25 February 1999. It could not have been a conscious departurefor the simple reason that the earlier policy was not evaluated nor wasFthere any basis formulated to justify a departure from it.

We must note at this stage that no submission has been urged onbehalf of the Union of India by Mr Sanjay Jain, learned Additional SolicitorGeneral controverting the above findings of the AFT. Quite apart fromthis however, there is a more fundamental reason why a finding in regardGto the invalidity of the policy letter dated 26 September 2008 in relationto the Navy rests on a sure foundation. The 1963 Regulations containspecific provisions in regard to the grant of SSCs and for the grant ofPCs. As we have noted, Regulations 122, 124 and 126 govern the grantof SSCs, while Regulation 203 governs the grant of PCs. Regulation203, in its own terms, is not restricted in its application to only maleH

officers. Once the appointment of women officers in the Indian Navywas permitted in terms of the statutory notifications dated 9 October1991 and 6 November 1998, the statutory bar under Section 9(2) stoodlifted and women officers inducted on SSCs would be entitled to begoverned by Regulation 203. Hence, the policy letter dated 26 September2008 to the extent it seeks to restrict the grants of PCs to specifiedcadres/branches as well as only to women officers “to be inducted” iscontrary to the notifications dated 9 October 1991 and 6 November1998 and shall not be enforced. The policy letter dated 26 September2008 was not in supersession of the statutory notifications dated 9 October1991 and 6 November 1998. At the highest it may be construed as anadministrative decision to implement the statutory notifications. Hence,it cannot be construed to be prospective in character as any other viewto the contrary would be in violation of Section 9(2) of the Act. Theconclusion which was arrived at by the High Court and by AFT isunimpeachable in its logical consistency and is in keeping with the legalregime envisaged by the 1957 Act, the 1963 Regulations and thenotifications issued on 9 October 1991, 6 November 1998 and 25 February1999.

F The stereotypical sailor

68. The battle for gender equality is about confronting the battlesof the mind. History is replete with examples where women have beendenied their just entitlements under law and the right to fair and equaltreatment in the workplace. In the context of the Armed Forces, speciousreasons have been advanced by decision makers and administrators.They range from physiology, motherhood and physical attributes to themale dominated hierarchies. A hundred and one excuses are no answerto the constitutional entitlement to dignity, which attaches to everyindividual irrespective of gender, to fair and equal conditions of workand to a level playing field. A level playing field ensures that womenhave the opportunity to overcome their histories of discrimination withthe surest of responses based on their competence, ability andperformance.

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

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Aofficers, it was urged, would be averse to taking orders from women.Women, this Court was informed share an undue burden of maritalobligations and the responsibilities of motherhood and child bearing. Thesearguments, based upon the physiological attributes of women, wereemployed to justify the unequal treatment of men and women officers.

B70. These submissions which are based on deeply entrenchedstereotypes came to be rejected by this Court in emphatic terms:

“The submissions advanced in the note tendered to this Court arebased on sex stereotypes premised on assumptions about sociallyascribed roles of gender which discriminate against women.CUnderlying the statement that it is a “greater challenge” for womenofficers to meet the hazards of service “owing to their prolongedabsence during pregnancy, motherhood and domestic obligationstowards their children and families” is a strong stereotype whichassumes that domestic obligations rest solely on women. Relianceon the “inherent physiological differences between men andDwomen” rests in a deeply entrenched stereotypical andconstitutionally flawed notion that women are the “weaker” sexand may not undertake tasks that are “too arduous” for them.Arguments founded on the physical strengths and weaknesses ofmen and women and on assumptions about women in the socialEcontext of marriage and family do not constitute a constitutionallyvalid basis for denying equal opportunity to women officers…

Such a line of submission is disturbing as it ignores the solemnconstitutional values which every institution in the nation is boundto uphold and facilitate… To cast aspersion on their abilities onFthe ground of gender is an affront not only to their dignity aswomen but to the dignity of the members of the Indian Army –men and women – who serve as equal citizens in a commonmission.”

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

“There is also a strong contemporaneous rationale for notconsidering women as sailors in the Indian Navy as the Navyships of today are not structured nor have the infrastructure toaccommodate women sailors alongside men sailors. There is acommon barrack and a common bathroom, built as such that notemporary arrangement is possible to be made as they are built onof Russian models where there is no provision made for womenas sailors. Navy is endeavoring to create such infrastructure…itclearly emerges that women are kept away from sea-going dutiespurely on operational grounds and not on the grounds of genderdiscrimination.”

72. In the revised note of submissions which has been placed onthe record, the above paragraph does not find a reference. Significantlyhowever, the same submissions, though absent in the written note whichwas subsequently tendered before this Court, has been stressed at theforefront of the submissions which were made before this Court by thelearned ASG. The submission was that:

(i) Certain avenues such as sea-sailing duties are ill-suited forwomen officers as there is no return to the base, unlike inthe Army and the Air Force; and

(ii) In vessels of a Russian origin which are deployed by theIndian Navy, no provision has been made for women assailors and there are no bathrooms to accommodate them.

73. The above reasons are illusory and without any foundation.Women officers have worked shoulder to shoulder with their mencounterparts in every walk of service. The supposed explanations basedon duties at sea or Russian vessels are devices adopted to justify anaction which is not germane to the proper discharge of duties and themaintenance of discipline among members of the Armed Forces. Thesesubmissions which have been made by the ASG are plainly contrary tothe policy letter dated 25 February 1999 issued by the MoD to the Chiefof the Naval Staff. The policy letter emphatically stipulates that womenofficers of all branches/cadres could be directed to serve on board shipsboth during training and subsequent employment in accordance with theexigencies of service. In the face of this communication, it is impossibleto countenance a submission that women cannot sail alongside mensailors.

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A74. Quite apart from the policy letter dated 25 February 1999, thecontention that certain sea-going duties are ill-suited to women officersis premised on sex stereotypes that male officers are more suited tocertain duties by virtue of the physiological characteristics. As this Courthas noted in Babita Puniya, arguments founded on the physical strengthsand weaknesses of men and women do not constitute a constitutionallyBvalid basis for denying equal opportunity to women officers. To acceptthe contention urged by the ASG would be to approve the socially ascribedgender roles which a commitment to equal worth and dignity of everyindividual belies.

75. In the compilation of documents which forms a part of theCrecord, there is documentary evidence of the accolades which havebeen bestowed on women officers in the Indian Navy. In 1993,Commander Ruby Singh became the first Indian woman to lead a platoonin the contingent of the Indian Navy at Raj Path on Republic Day. INSVTarini which circumnavigated the globe comprised of an all women crew.DSub-lieutenant Shivangi became the first pilot for the Indian Navy. Theachievements of some of the women officers of the Indian Navy havebeen set down in the form of a tabulated chart which we considernecessary to extract:

76. Performance at work and dedication to the cause of the nationare the surest answers to prevailing gender stereotypes. To depriveserving women officers of the opportunity to work as equals with menH

on PCs in the Indian Navy is plainly discriminatory. Furthermore, tocontend that women officers are ill-suited to certain avocations whichinvolve them being aboard ships is contrary to the equal worth of thewomen officers who dedicate their lives to serving in the cause of thenation.

G Ex turpi causa non oritur actio

77. The Delhi High Court and the AFT have differed on the natureof the reliefs which have been granted in the separate batch of casesadjudicated by them. The Delhi High Court has held that SSC officersof the Navy who had opted for but were not granted PCs and wereinstead granted an extension on SSC but had not retired at the time ofthe institution of the Writ Petitions should be offered PCs within a periodof six weeks, though they had attained the age of retirement during thependency of the petitions. They were held to be entitled to all consequentialbenefits such as promotions and other financial benefits subject to medicalfitness. As regards those of the petitioners who had attained the age ofsuperannuation prior to the filing of Writ Petitions, the High Court directedtheir reinstatement within six weeks subject to the decision of this Courtin Babita Puniya.These petitioners, it was held, would be entitled to nobenefits.

78. The AFT disagreed with the direction of the High Court forthe grant of PCs and directed the authorities to consider the cases of theSSC officers for the grant of PCs. The AFT was of the view that as itdoes not possess the requisite expertise and necessary materials fordetermining whether PCs should be granted, such a decision must beleft to the relevant authorities. However, the AFT directed that untilsuch consideration was made and a decision was taken, the applicantsbefore it would be allowed to continue as SSC officers on existing termsand conditions as applicable to them. The ultimate direction that wasissued by the AFT is also the subject matter of the appeals by the SSCofficers before this Court. According to them, the wider direction issuedby the Delhi High Court for the grant of PCs should have been adoptedby the AFT and the mere direction for consideration will not provide anysubstantial relief to the officers.

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

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

80. By this order, protection was restricted only to those officersbefore this Court who were in service on 26 September 2008. RespondentNos 2 to 6 were commissioned as officers of the Indian Navy as SSCofficers between 13 July 1992 and 12 August 1994 and were among theCfirst batch of women officers in the Navy. They were released fromservice between 12 July 2006 and 11 August 2008[26]. These officerswere released before the issuance of the policy letter dated 26 September2008. Consequently, the protection of the interim order of this Court wasnot extended to these officers.D

81. The case of these officers is that the 1963 Regulations as wellas the policy letter dated 25 February 1999 existed when they were inservice which entitled them to be considered for the grant of PCs. Priorto their release from service, they had submitted several representationsto the concerned authority requesting that they be considered for theEgrant of PCs. The applications, it was urged, were forwarded by theircommanding officers recommending the grant of PCs which signifiestheir capabilities, merit and work to serve as PC officers in the IndianNavy. The grievance of these officers is that their request was notconsidered and that the Navy kept silent about the policy letter dated 25February 1999 which, according to the them, had come to light muchFlater.

82. It was urged that the Air Force accepted the decision of theDelhi High Court in Babita Puniya and reinstated women officers whohad retired. Similar steps, it was urged, ought to have been undertakenby the Army. However, as a result of the interim order of this Court,GRespondent 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 PujaChhabra (R3 – 31 July 2006, Commander Saroj Kumari (R4 – 8 August 2007),Commander Sumita Balooni (R5 – 8 August 2008) and Commander E Prasanna (11HAugust 2008).

seeking a modification of the order[27]. Respondent Nos 2 to 6 urged thatthey are entitled to be considered for the grant of PCs in view of thepolicy letter dated 25 February 1999. They claim to have been gravelyprejudiced by the conduct of the Navy and the interim order of thisCourt. The principle of actus curiae neminem gravabet – an act ofcourt should prejudice no one - has been pressed in aid of this submission.Though these respondents have been out of service for between twelveto fourteen years, it has been submitted that the work in their departmentsis of such a nature that being out of service should not stand in the wayof their being reinstated. In support of this, it was urged that fresh personsare inducted with six months’ training. Consequently, it was urged thatthe officers having served for fourteen years, there is no difficulty in theway of this Court passing an order for their reinstatement in service.

83. In the appeals arising out of the judgment of the AFT in PriyaKhurana’s case,an interim order was passed by this Court on 28 October2016 directing the continuation in service of the SSC women officers inthat capacity until further orders. There was no stay on the judgment ofthe 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 ofRegulation 203 read with the policy dated 25 February 1999. As a resultof the Navy not having implemented the judgment of the AFT since2016, there has been a cascading effect and nearly thirty officers (thisCourt was informed during hearing) have filed cases before the AFT,the outcome of which depends on the judgment of this Court in theseappeals.

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

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Arecruitment and retention practices of the Navy. This is sought to behighlighted by the following submissions:

(i) While serving women SSC officers are being deniedextensions in their SSC tenure or the grant of PCs on theground that the Logistics cadre is ‘overborne’, the Navy isBrecruiting fresh hands in the same cadre;

(ii) Nearly 160 men were recruited in the Logistics cadre overthe previous ten years directly on PCs, out of whom between25 and 30 officers were recruited over the previous fiveyears; C(iii)The Navy has defended this recruitment by claiming thatfresh recruits “maintain the youthful profile of the force”.This contention cannot be reconciled with the fact that theNavy is offering re-employment to superannuated maleofficers (aged 52 years and above) at the level ofDCommanders in the Logistics cadre on account of theshortage of personnel;

(iv) Re-employment of such special duty officers is permissibleonly where there is a shortage of personnel in the cadre inquestion, which is evident from a policy letter dated 24 JuneE2013;

(v) Though, there is no separate Logistics cadre for specialduty officers, yet, an informal quota has been carved outfor male officers to continue in service, even aftersuperannuation; 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 cantenant those billets as well as others, if required. They havebeen uniformly trained as officers and have passed variousqualifying examinations during employment. Yet ironically,Git is women officers who are required to exit as a result ofthe ‘cadre saturation’;

(vii) Despite the Navy being required to consider all servingwomen SSC personnel for the grant of PC, not a singleSSC woman officer in the Logistics cadre from any batchHhas been considered till date; and

(viii) If the Navy had considered the application of everyLogistics officer on their own merit, there would have beenno organizational difficulty of saturation faced in any cadre.Yet, the Navy had continued to insist that it is only the policyletter dated 26 September 2008 which will govern all casesfor the grant of PCs, though it was struck down by both theDelhi High Court as well as the AFT.

In other words, it has been submitted that SSC women officersfrom the Logistics cadre have been driven to pursue their remedies incourts and are now confronted with the plea that the cadre is overborne.This, it is urged, is a travesty of justice.

85. In order to present to this Court a complete picture of theimpact of the decision in these cases, the status of the cases has beendepicted as follows:

(i) Annie Nagaraja’s case involves seventeen officers. Fromthe 2002-03 batch (Priya Khurana’s case),there are sevenofficers before this Court who have secured protectionagainst release. Altogether before this Court, there aretwenty 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, mosthave rendered services in excess of twenty years. Officersin Priya Khurana’s case have rendered continuous serviceof eighteen years till date; and

(iii) About thirty officers are involved in pending litigation beforethe AFT from batches subsequent to the officers in PriyaKhurana’s case. Of them, a few officers are moving thecourts 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 mayconsider the issuance of directions pari materia to those which wereissued by this Court in sub-paragraphs (a), (b), (c), (d) and (f) of paragraph69 in Babita Puniya’s case. This, it has been urged, would be appropriatesince the same policy letter dated 26 September 2008 was the subjectmatter of the judgment of this Court in Babita Puniya.

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A86. Opposing the above submissions, Mr Sanjay Jain has placedon the record three charts. The first chart depicts the cadre strength inthe Indian Navy:

CADRE STRENGTH IN THE INDIAN NAVY

C87. The second chart presents a comparative analysis of inductionsand retirements in the past three years:

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88. The third chart deals with the status of re-employment ofESpecial Duty Commissioned Officers. These officers have beenpromoted from the other ranks (sailors) in the Indian Navy. They arebeing given re-employment in service because of a shortage againstsanctioned strength. The sanctioned strength, it has been submitted, isnot interchangeable with other Logistics officers. The third chart isreproduced below:F

89. While considering the defence of the Union of India, urged byGthe ASG, that the cadres are “overborne” and “saturated”, the assessmentof this Court must be based on the following position:

(i) Neither the judgment of the Delhi High Court nor thejudgment of the AFT was stayed during the pendency ofthese appeals. The Union Government and the NavalH

authorities could not have proceeded on the misconceivedbasis that the mere pendency of the present appeals was alicense to not comply with the directions contained in thejudgments of the High Court and the AFT. As a result ofthe failure of the authorities to consider the SSC officersfor the grant of PCs, their status continued in a state ofuncertainty, effectively depriving them not only of thebenefits which would accrue to them in terms of careeradvancement but also the ability to occupy progressivelyhigher positions in the hierarchy upon the grant of PCs;

(ii) While the Union Government and the Naval authorities didnot consider any SSC women officers for the grant of PCs,it has now claimed that the cadre is saturated. This positionhas transpired precisely as a result of the failure to implementthe directions of the Delhi High Court and of the AFT, whileat the same time continuing to make recruitments which isnow held up as a ground for the cadres being saturated;

(iii) The right to be considered for the grant of PCs arose underthe policy dated 25 February 1999. The policy letter dated26 September 2008 was issued oblivious to the earlier policydocument and had the effect of denying benefits to SSCofficers who were in saddle, besides restricting the cadres/branches in which SSC officers could be granted PCs.Though the policy letter dated 26 September 2008 wasdeclared to be invalid by the High Court and by the AFT,the authorities have relied upon either the absence ofvacancies or the prospective application of the policy letterdated 26 September 2008 to deny relief to SSC officers;and

(iv) If the Naval authorities had considered SSC officers forthe grant of PCs in terms of the policy letter dated 25February 1999, that would have obviated a situation ofsaturation of cadres with which the SSC officers are nowsought to be confronted as a ground to deny them relief towhich they were legitimately entitled in terms of the policydated 25 February 1999;

90. Taking into consideration the above, we find merit in thegrievance which has been urged on behalf of the SSC officers that the AB

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Apresent situation has arisen as a plain consequence of the actions of theNaval authorities in:

(i) The failure to implement the statutory notifications underSection 9(2) dated 9 October 1991 and 6 November 1998;

(ii) The failure to abide by the policy letter dated 25 FebruaryB1999; and

(iii) The breach of the obligation to implement the judgments ofthe Delhi High Court and the AFT which had not been stayedand has resulted in the creation of an impasse for the SSCwomen officers.C

91. Once the policy decision of the Union Government wascommunicated on 25 February 1999, the authorities were bound toconsider the claims of the SSC officers for the grant of PC in terms ofRegulation 203. The naval authorities and the Union Government failedto do so, depriving them of the entitlement to be considered for the grantDof PC. By the failure of the authorities to consider the SSC officers forPCs in terms of the policy communication of 25 February 1999, SSCofficers lost out on the opportunity to be granted PCs and all theresponsibilities and benefits attached to the grant of PC, includingpromotions and pensionable service. The situation which has come toEpass is due to the failure of the authorities to implement statutorynotifications issued under Section 9(2) the policy statement of 25 February1999 by which they were bound and as the decisions of the Delhi HighCourt and the AFT. These SSC officers cannot be left in the lurch andthe injustice meted to them by lost years of service and the deprivationof retiral entitlements must be rectified. The injustice is a directFconsequence of the authorities having breached their duties under law,as explained above. To deny substantive relief to the SSC officers wouldresult in a situation where a breach of duty on the part of the authoritiesto comply with binding legal norms would go unattended. This wouldresult in a serious miscarriage of justice to the SSC officers who haveserved the nation and is unsustainable in law.G

92. The second to sixth respondents in Annie Nagaraja’s casehad retired upon the completion of fourteen years of service prior to theissuance of the policy letter dated 26 September 2008. Of these officers,three officers are from the Logistic cadre, one officer is from theEducation branch and one officer is from the ATC cadre. The DelhiH

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

93. By virtue of the interim order of this Court dated 20 November2015, protection was extended to only those SSC women officers whowere in service on 26 November 2008. This cut-off date was evidentlyadopted with reference to the policy communication dated 26 September2008.

94. We have considered the case of these women officers whowere denied being considered for the grant of PCs. The interim order ofthis Court was based on the policy dated 26 September 2008 whichenvisaged the grant of PCs on a prospective basis to officers “to beinducted” in the future. The prospective application of the policy dated26 September 2008 has been held to be invalid. We cannot ignore thefact that it was because of a restricted interim order passed by thisCourt that the above five respondents were not reinstated during thependency of the appeals. Had they been reinstated, as directed by theHigh Court, they would have been in service in the interregnum andwould have been entitled to be considered for the grant of PCs togetherwith all other consequential benefits. These officers must be providedrestitution for the consequences suffered by them by the failure of theauthorities to have considered them for the grant of PC, and despite ofthe order of the Delhi High Court which had directed their reinstatement.Where a situation which detrimentally affects the rights of citizens arisesas a result of an order of the Court, it is the duty of the court to remedythe situation and to rectify the injustice to the extent that is possible.

95. As we have noted, the right of women SSC officers to beconsidered for the grant of PCs in the Logistics and Education cadresarose by virtue of the policy letter dated 25 February 1999. The non-consideration of the case of these five officers for the grant of PCsarose out of the actions of the Union Government in issuing a restrictedpolicy dated 26 September 2008 which has caused serious prejudice tothese women officers. These officers were among the first inducteebatches of women SSC officers in the Navy and committed themselvesto serving in the cause of the nation.

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Awith the exigencies of service, it would not be appropriate to direct theirreinstatement. However, following the logic of the directions of this Courtin Babita Puniya, we are of the view that a one-time measure shouldbe issued in exercise of the powers under Article 142 of the Constitution.These officers who were released prior to 2008 after completing theirengagement should be deemed to have completed substantiveBpensionable service and to have qualified for the grant of pension on thebasis that they have fulfilled the minimum qualifying service in asubstantive capacity. In addition to the grant of pensionary benefits, as aone-time measure, respondents two to six should be directed to be paida lump sum amount of 25 lakhs each as compensatory measure for lostCyears of service and the serious injustice which has been meted out tothem. We clarify that our decision to award compensation is not areflection of any malice on the part of the Naval authorities but a measureof compensation for the women officers who have been deprived of avaluable opportunity to render service and shoulder responsibilities.

DH Directions

96. We hold and direct that:

DH Directions

96. We hold and direct that:

(i) The statutory bar on the engagement or enrolment of womenin the Indian Navy has been lifted to the extent envisagedin the notifications issued by the Union Government on 9EOctober 1991 and 6 November 1998 under Section 9(2) ofthe 1957 Act;

(ii) By and as a result of the policy decision of the UnionGovernment in the Ministry of Defence dated 25 February1999, the terms and conditions of service of SSC officers,Fincluding women in regard to the grant of PCs are governedby Regulation 203, Chapter IX, Part III of the 1963Regulations;

(iii) The stipulation in the policy letter dated 26 September 2008making it prospective and restricting its application toGspecified cadres/branches of the Indian Navy shall not beenforced;

(iv) The provisions of the implementation guidelines dated 3December 2008, to the extent that they are made prospectiveand restricted to specified cadres are quashed and set aside; H

(v) All SSC officers in the Education, Law and Logistics cadresAwho are presently in service shall be considered for thegrant of PCs. The right to be considered for the grant ofPCs arises from the policy letter dated 25 February 1999read with Regulation 203 of Chapter IX Part III of the 1963Regulations. SSC women officers in the batch of casesBbefore the High Court and the AFT, who are presently inservice shall be considered for the grant of PCs on thebasis of the vacancy position as on the date of judgmentsof the Delhi High Court and the AFT or as it presentlystands, whichever is higher; C

(vi) The period of service after which women SSC officers shallbe entitled to submit applications for the grant of PCs shallbe the same as their male counterparts;

(vii) The applications of the serving officers for the grant ofPCs shall be considered on the basis of the norms containedDin Regulation 203 namely: (i) availability of vacancies in thestabilised cadre at the material time; (ii) determination ofsuitability; and (iii) recommendation of the Chief of theNaval Staff. Their empanelment shall be based on inter semerit evaluated on the ACRs of the officers underconsideration, subject to the availability of vacancies;E

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(viii) SSC officers who are found suitable for the grant of PCshall be entitled to all consequential benefits including arrearsof pay, promotions and retiral benefits as and when due;

(ix) Women SSC officers of the ATC cadre in Annie Nagaraja’scase are not entitled to consideration for the grant of PCsFsince neither men nor women SSC officers are consideredfor the grant of PCs and there is no direct induction of menofficers to PCs. In exercise of the power conferred byArticle 142 of the Constitution, we direct that as a one-timemeasure, SSC officers in the ATC cadre in AnnieGNagaraja’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 representationcontained in the advertisements pursuant to which they wereinducted, shall be considered for the grant of PCs inaccordance with directions (v) and (vi) above;H

A(x)All SSC women officers who were denied considerationfor the grant of PCs on the ground that they were inductedprior to the issuance of the letter dated 26 September 2008and who are not presently in service shall be deemed, as aone-time measure, to have completed substantivepensionable service. Their pensionary benefits shall beBcomputed and released on this basis. No arrears of salaryshall be payable for the period after release from service;

(xi) As a one-time measure, all SSC women officers who werebefore the High Court and the AFT who are not grantedPCs shall be deemed to have completed substantiveCqualifying service for the grant of pension and shall beentitled to all consequential benefits; and

(xii) Respondents two to six in the Civil Appeals arising out ofSpecial Leave Petition (C) Nos 30791-96 of 2015, namelyCommander R Prasanna, Commander Puja Chhabra,DCommander Saroj Kumar, Commander Sumita Balooni andCommander E Prasanna shall be entitled, in addition to thegrant of pensionary benefits, as a one-time measure, tocompensation quantified at 25 lakhs each.

97. We affirm the clarification which has been issued in sub-paraE(a) of paragraph 50 of the impugned judgment and order of the DelhiHigh Court.

98. Compliance with the above directions shall be effected withinthree months from the date of this judgment. We accordingly dispose ofthe appeals.F

99. There shall be no order as to costs. Pending application(s), ifany, stand disposed of.

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Appeals disposed of.

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