Q: Describe the citation of Union Of India vs Ld. Cdr. Annie Nagaraja on 17 March, 2020 ?

Ans: 

Union Of India vs Ld. Cdr. Annie Nagaraja on 17 March, 2020

The Union of India in the Ministry of Defence issued a policy letter granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs. The High Court held that the claim of absorption in areas of operation not open for recruitment of women officers could not be sustained being a policy decision. It was further held that the Short Service Commissioned Officers of the Navy who had opted for PC and were not granted PC but instead were granted extension of SSC and were not retired at the time of filing of these Writ Petitions and had attained the age of retirement during the pendency of the present petitions, they shall be offered PC. In similar matters, the Armed Forces Tribunal (AFT) disagreed with the direction of the High Court for the grant of PCs and directed the authorities to consider the cases of the SSC officers for the grant of PCs. The AFT was of the view that as it did not possess the requisite expertise and necessary materials for determining whether PCs should be granted, such a decision must be left to the relevant authorities. However, the AFT directed that until such consideration was made and a decision was taken, the applicants before it would be allowed to continue as SSC officers on existing terms and conditions as applicable to them.

The honourable Supreme Court held, while disposing off the appeal:

(i) The course of the evolution of policy clearly indicates a legitimate expectation on part of the SSC officers (both men and women) of being governed by the provisions of Regulation 203 being considered for the grant of PCs. The Navy Regulations, when they were originally drafted in 1963, did not contemplate the induction of women. For this reason, Regulations 122(2), 124(2) and 126(2) spoke of only unmarried males being eligible for induction on SSCs. The Regulations being subservient to statute, incorporated restrictions which comported with the provisions of Section 9(2). However, what Section 9(2) envisages is that the restrictions on the enrolment or appointment of women in branches or departments of the Indian Navy would be lifted upon the issuance of a notification by the Union Government sanctioning the entry of women officers, subject to the conditions which may be specified. Both in the notifications, the Union Government lifted the statutory bar in exercise of its enabling power under Section 9(2) by allowing for the entry for women as officers in the Indian Navy in stipulated branches. Once the statutory bar stood lifted, the appointment of SSC officers, both men and women on PCs would be governed uniformly by the provisions of Regulation 203. This was made abundantly clear by the policy letter which was issued in compliance with the legal regime. The grant of PCs to SSC men and women officers aligned with the provisions of Regulation 203 which plainly is a matter of law. Thus, the contention urged that the communication was merely anticipatory in nature and that the entitlement to be considered for the grant of PCs would have to await a further policy, could not be accepted. The communication of the MOD had the sanction of the President and consequently cannot be disregarded as suggested in the arguments urged by the Union of India in these proceedings.

ii) The policy decision of the MoD governed the grant of PCs to SSC women officers in the Army, Navy and Air Force. The communication, by stipulating that it would apply to SSC women officers to be inducted, purported to exclude women SSC officers in service from being considered for the grant of PCs. It also sought to restrict the cadres/branches in which PCs could be granted to women SSC officers. The AFT had noted after it had summoned the files, that the earlier policy decision was not placed before the decision making authorities. The AFT concluded that while a policy framed by the government was amenable to change or alteration, decision making by the government is subject to the norms of reasonableness and a non-arbitrary exercise of power. Evidently, in the view of the AFT, the decision was not a conscious departure from the earlier policy. It could not have been a conscious departure for the simple reason that the earlier policy was not evaluated nor was there any basis formulated to justify a departure from it. Quite apart from this however, there was a more fundamental reason why a finding in regard to the invalidity of the policy letter in relation to the Navy rests on a sure foundation. The 1963 Regulations contain specific provisions in regard to the grant of SSCs and for the grant of PCs. Regulations 122, 124 and 126 govern the grant of SSCS, while Regulation 203 governs the grant of PCs. Regulation 203, in its own terms, is not restricted in its application to only male officers. Once the appointment of women officers in the Indian Navy was permitted in terms of the statutory notifications, the statutory bar under Section 9(2) stood lifted and women officers inducted on SSCS would be entitled to be governed by Regulation 203. Hence, the policy letter to the extent it seeks to restrict the grants of PCs to specified cadres/ branches as well as only to women officers to be inducted was contrary to the notifications and shall not be enforced. The policy letter was not in supersession of the statutory notifications. At the highest it may be construed as an administrative decision to implement the statutory notifications. Hence, it could not be construed to be prospective in character as any other view to the contrary would be in violation of Section 9(2) of the Act. The conclusion which was arrived at by the High Court and by AFT was unimpeachable in its logical consistency and is in keeping with the legal regime envisaged by the 1957 Act, the 1963 Regulations and the notifications issued.

iii) Once the policy decision of the Union Government was communicated, 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, 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 had come to pass is due to the failure of the authorities to implement statutory notifications issued under Section 9(2) the policy statement by which they were bound and as the decisions of the High Court and the AFT. These SSC officers could not be left in the lurch and the injustice meted to them by lost years of service and the deprivation of retiral entitlements must be rectified. The injustice is a direct consequence of the authorities having breached their duties under law. 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 had served the nation and was unsustainable in law. [91]

(iv) The right of women SSC officers to be considered for the grant of PCs in the Logistics and Education cadres arose by virtue of the policy letter. The non-consideration of the case of these five officers for the grant of PCs arose out of the actions of the Union Government in issuing a restricted policy which had caused serious prejudice to these women officers. These officers were among the first inductee batches of women SSC officers in the Navy and committed themselves to serving in the cause of the nation. The second to sixth Respondents who had been released had been out of service for twelve years and more. Consistent with the exigencies of service, it would not be appropriate to direct their reinstatement. However, following the logic of the directions of this Court in Babita Puniya, a one-time measure should be issued in exercise of the powers under Article 142 of the Constitution. These officers who were released after completing their engagement should be deemed to have completed substantive pensionable service and to have qualified for the grant of pension on the basis that they had fulfilled the minimum qualifying service in a substantive capacity. In addition to the grant of pensionary benefits, as a one-time measure, Respondents two to six should be directed to be paid a lump sum amount as compensatory measure for lost years of service and the serious injustice which has been meted out to them. The decision to award compensation was not a reflection of any malice on the part of the Naval authorities but a measure of compensation for the women officers who had been deprived of a valuable opportunity to render service and shoulder responsibilities.

(v) Therefore, it was direct that:

(i) The statutory bar on the engagement or enrolment of women in the Indian Navy had been lifted to the extent envisaged in the notifications issued by the Union Government under Section 9(2) of the 1957 Act.

(ii) By and as a result of the policy decision of the Union Government in the Ministry of Defence, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs were governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations.

(iii) The stipulation in the policy letter making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced.

(iv) The provisions of the implementation guidelines, to the extent that they were made prospective and restricted to specified cadres were quashed and set aside.

(v) All SSC officers in the Education, Law and Logistics cadres who were 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 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 were 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 High Court and the AFT or as it presently stands, whichever is higher.

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

(vii) The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely availability of vacancies in the stabilised cadre at the material time, determination of suitability and recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRS of the officers under consideration, subject to the availability of vacancies.

(viii) SSC officers who were found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due.