The case analysis is written by Nikhilesh Koundinya, a student of Symbiosis Law School, Pune.
The case that the article refers to are Lt. Cdr. Annie Nagaraj v Union of India. This was a case instituted in the Delhi high court in the form of six writ petitions under article 226 of the constitution. The case was initiated by 17 women and because the first petitioner under the present case was Lt. Annie hence the case was named as Annie Nagaraj v Union of India. The relief the petitioners sought was for permanent commission in the Indian Navy. The move was instated after the judgement by the Delhi High court in Babita Punya v Union of India where the judge had granted a permanent commission to the women in the Indian army and Indian air force. The air force did not challenge the petition whereas the Indian army went in appeal. The 17 women who had instituted the suit included 6 logistics officers, 9 education officers and 2 Air Traffic Control (ATC) officers. Their grievance was that despite spending 14 years of their career in the Indian navy they weren’t eligible for permanent commission and were discharged from service.
The Ministry of Defense (MOD) issued a policy letter dated 2008 where they directed permanent commissions to women in all three armed forces in particular sections/departments. This law was to be applied prospectively which meant that the women who had joined after the letter were to avail this rule. The court in the case of Lt. Annie directed that the women who were serving in the armed forces under Short-Service Commission (SSC) on 26th September 2008 will not be discharged from duty until the court order arrives on the present issue of permanent commission.
The second petition with regards to the permanent commission was instituted by Priya Khurana with the Armed forces Tribunal (AFT). She contended that the benefit of the permanent commission was prospectively applied and this was a clear violation of the right to equality. The AFT also passed an order similar to the Delhi high court stating that the women officers under SSC category will continue under normal circumstances until the court order arrives.
The Delhi high court ruled in the favor of Lt. Annie and granted a permanent commission to the lady officers. This decision has hence been challenged under special leave petition (SLP) to the Supreme court dated 2020.
DOCUMENTS INVOLVED IN THE CASE
For a better assessment of the circumstances judged by the Supreme court we must make an observation of the documents with relation to the appointment of women in the armed forces:
When the navy bill was being drafted in 1957 there were four members in the drafting committee who spoke about the importance of women in the armed forces. The members also put forward a contention explaining the importance of democratic rights over achieving fighting forces. But in the bill of 1957, there was no provision for including women as part of defence forces. In fact, under section 2 of the bill which speaks about the executive branch of the navy, it has been held that the man being recruited must be single/ unmarried. This has also been reiterated under rule 122(2), 124(2) and 126(2) for engineering and electrical departments of the navy. This embodies the thought process of the people back then and what they thought about the role of women in a man’s life.
On October 9, 1991 the union government issued a notification in which women were eligible for short service commission under 3 categories and the period for serving in these categories was 5 years. The areas which were allowed included law, logistics and education.
Pursuant to this notification on July 1, 1992 short service commission was granted for 7 years which was to be increased by 2 years at a time. This meant that when the officer completed 5 years her tenure was increased by another 2 years which totalled to 7 years. The government had also sanctioned the intake of 35 officers into the Indian navy for a period of 5 years under the garb of short service commission. The notification also stated that no permanent commission would be granted to women under the ATC cadre.
On 15th May 1998 the southern naval command stated that the SSC could be extended to 10 years which included 2 years extension at a time. This was followed by a notification by the government dated 6th November 1998 which stated that a short service commission will be granted under all branches of the Indian navy which included executive, engineering, electrical and education.
The next notification came in on 25th February 1999 where the government held that grant of permanent commissions will be in accordance with regulation 203 of chapter IX of the 1963 regulations. Regulation 203 of the said provision states:
Subject to the availability of vacancies in the stabilized cadre of the Navy, Permanent Commission may be granted from time to time to Short Service Commission Officers of the rank of Sub-Lieutenant and above who are considered suitable and are recommended by the Chief of the Naval Staff.
The notification also recognized the fact that women can serve onboard ships during training as well as deployment. This notification was followed by an important one on 27th February 2002 where the government along with the president increased the short service commission to 14 years.
Then comes an advertisement which was the main contention in the Priya Khurana case. This advertisement was published by the Indian Navy in 2002, July to induct SSC men and women officers for the period of 10 years. The advertisement also stated that if the officers performed, they will be considered for permanent commission. This was followed by a letter which was sent by the government to the three chiefs of the armed forces (navy, army and air force) on 26th September 2008. The essence of the letter can be put together in two points:
- The letter directed the three chiefs to give permanent commission in only specific branches of the forces. With reference to the navy permanent commission was to be given only in the Judge advocate general branch, education branch and naval constructor branch.
- The rule was to apply prospectively and hence the women who were already in force were denied the opportunity of permanent commission.
There was no mention of the notification dated 25th February 1999 in the present notification. On 3rd December 2008, the court held that permanent commission was only envisaged to be granted to women who had been inducted after 2009 under education, law and naval architecture. The court held that for the grant of permanent commission to women aboard will be constituted under the chairmanship of the Chief of Personnel (COP). The permanent commission will depend upon the vacancies available and the Annual Confidential Report (ACR) of the officers which indicates their performance in that particular year. The Delhi high court in the case of Babita Punya v UOI made the following submissions in its judgement:
- All serving women officers will be granted the option for permanent commission irrespective of whether they have completed 14 years or 20 years.
- The women who have completed 14 years in service but do not want to opt for the permanent commission will be allowed to finish 20 years so that they attain pension.
- The court also noticed that in one of the notifications there was a point made which stated that women will only be placed in “staff appointments”. This was omitted/removed by the court.
- SSC women who are granted permanent commission with the above notification will be eligible for consequential benefits (financial and promotion). But these will only be made available to those women who are in service, who instituted the case or retired during the pendency of these proceedings.
DELHI HIGH COURT AND AFT JUDGEMENT
The judgement of the Delhi high court held that SSC officers of the navy who had opted for but were not granted permanent commission should be granted permanent commission within a period of six weeks though they had attained the age of retirement during the pendency of the petitions. The AFT differed from the decision of the high court and stated that since it does not have enough materials to decide the grant of permanent commission this decision will be left to the relevant authorities. But the AFT held that until a decision came about the women were allowed to continue as SSC officers on existing terms and conditions as applicable.
In the interim pending this order there was a notification passed on 20th November 2015 which made 2 points:
- Those officers who were present in the navy on 26th September 2008 were allowed to continue their tenure.
- Those officers who were discharged after 26th September 2008 due to completion of SSC were reinstated.
Respondents 2-6 appealed against this order by stating that they were released from service in July and August of 2008. The case put forward by the officers in the Annie case is that they were in service when the policy letter dated 25th February was introduced which spoke about the permanent commission. They also stated that they wrote several letters to the authorities which was backed by letters written by their commanding officers showing their dedication, hard work and merit displayed in their job. Their grievance is that their requests weren’t heard and that the navy kept quiet about the policy letter for a long time before it attracted limelight.
Thus, the officers claimed that they were entitled to permanent commission due to a policy letter dated 25th February 1999. They invoked the principle of actus curiae neminem gravabet by stating that the court while granting relief to one cannot be prejudiced against the other and hence even though they were out of service for many years they asked for being re-instated and undergo fresh 6 months training.
SUPREME COURT FINDINGS
The court took grievance of the issue and stated that SSC women officers have been aggrieved in the present case due to the naval authorities:
- Failure to abide by the policy letter of February 25th 1999.
- Failure to implement the judgements of the Delhi high court and the AFT which had not been stayed.
Once the policy decision of the Union Government was communicated on 25 February 1999, the authorities were bound to consider the claims of the SSC officers for the grant of PC in terms of Regulation 203. The naval authorities and the Union Government failed to do so, depriving them of the entitlement to be considered for the grant of PC. By the failure of the authorities to consider the SSC officers for PCs in terms of the policy communication of 25 February 1999, SSC officers lost out on the opportunity to be granted PCs and all the responsibilities and benefits attached to the grant of PC, including promotions and pensionable service.
The situation which has come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement of 25 February 1999 by which they were bound and as the decisions of the Delhi High Court and the AFT. These SSC officers cannot be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retrial entitlements must be rectified. The injustice is a direct consequence of the authorities having breached their duties under law, as explained above. To deny substantive relief to the SSC officers would result in a situation where a breach of duty on the part of the authorities to comply with binding legal norms would go unattended. This would result in a serious miscarriage of justice to the SSC officers who have served the nation and is unsustainable in law.
The court also made a reference to respondents 2-6 in the present case who were discharged from service before the notification in 2008. Thus, due to the failure of the naval authorities to implement the regulations these women lost the opportunity to continue in service. Thus, the court directed a lump sum payment of 25 lakhs to these women who lost out service and to make up for the injustice meted out to them.
DIRECTIONS ISSUED BY THE SUPREME COURT
By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations.
The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced.
The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside.
All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher.
The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts.
The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
- availability of vacancies in the stabilised cadre at the material time;
- determination of suitability; and
- recommendation of the Chief of the Naval Staff.
Women SSC officers of the ATC cadre in Annie Nagaraja’s case are not entitled to consideration for the grant of PCs since neither men nor women SSC officers are considered for the grant of PCs and there is no direct induction of men officers to PCs. In exercise of the power conferred by Article 142 of the Constitution, we direct that as a one-time measure, SSC officers in the ATC cadre in Annie Nagaraja’s case shall be entitled to pensionary benefits. SSC officers in the ATC cadre in Priya Khurana’s case, being inducted in pursuance of the specific representation contained in the advertisements pursuant to which they were inducted, shall be considered for the grant of PCs in accordance with directions.
All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits.
Respondents two to six in the Civil Appeals arising out of Special Leave Petition (C) Nos 30791-96 of 2015, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ₹ 25 lakhs each.
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