Rejection Of Permanent Commission Has To Be Challenged In Armed Forces Tribunal, Centre Tells SC
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Once an application seeking permanent commission has been duly considered on merit as per the verdict in the Annie Nagaraja case and has been rejected after that, such officer has to challenge the rejection in the Armed Forces Tribunal and not directly before the Supreme Court under Article 32, submitted the Centre before the top court on Monday. A vacation bench headed by Justice Indira...
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Once an application seeking permanent commission has been duly considered on merit as per the verdict in the Annie Nagaraja case and has been rejected after that, such officer has to challenge the rejection in the Armed Forces Tribunal and not directly before the Supreme Court under Article 32, submitted the Centre before the top court on Monday.
A vacation bench headed by Justice Indira Banerjee had on December 30 last year stayed the impending release of 10 women short service commission officers on December 31 from Indian Navy, post the denial of PC to them.
"We will direct that the matter be listed on January 19 along with pending writ petitions (for similar relief for army officers). In the meanwhile, there will be a stay on order of December 18 (on release/retirement of women officers)," the bench had said.
On Monday, the bench headed by Justice D. Y. Chandrachud was hearing the petitions by Lt. CDR. Shibu Devasia and others, a male naval SSC officers who have been denied PC and on which notice was issued on November 16, 2020. The vacation bench had on December 30 restrained the authorities from discharging three officers on December 31 in this case as well, and had required this writ petition to be listed on the date of re-opening i.e. 04.01.2021 before the regular Bench.
On Monday, Senior Advocate R. Balasubramanian, for the Union of India, argued before the bench, "Lady officers had asked for PC first. Your Lordships said that the 2008 policy does not apply prospectively and that they have to be considered for PC as per the 1991 circular. Between 2001 and 2005, they were not considered, but then neither were the male SSC officers. After Your Lordships' judgement, the Navy carried out the exercise. These officers have not made it on merit. Now this cannot be challenged in a 32 petition and they should be asked to go before the tribunal. Records have to be seen, facts have to be looked into. Initially, they had only wanted to be considered at par with the male officers, which has been done"
"Your Lordships said that they should be considered as per the vacancies of 2008 or the ones which exist now, whichever is higher. The Navy has considered them as per the highest vacancy. Now there can be no 32 challenge to the consideration on merit", he advanced.
"The vacation bench has stayed the release for all 22 officers. Out of these, 9 are women. And only a total of 10 officers have approached the court, but the discharge has been stayed for all 22! All of them have not even moved the Court!", he pressed
Senior Advocate C. U. Singh, for the male naval officers, advanced that after the Court had issued notice on the plea on November 16, on December 18 it was notified that pursuant to the March 17, 2020 judgment, the selection process for granting PC to SSC officers has been completed. He told the bench that of the 10 petitioners before the Court, barring the 3 petitioners, the remaining 7 had received PC and sought to withdraw their plea.
"Your Lordships had issued notice on November 16, even though you said that the law has been laid down. The question was whether in Annie Nagaraj, the consideration is only of the lady officers. Your Lordships said that the case before you was only of the lady officers, so the phraseology was used in that respect. Hence, the notice was issued on November 16. We have shown that we are officers of outstanding record! The vacancy positions have not been considered! There is an extreme shortage in the education branch! We request that you continue the interim relief...", prayed Senior Advocate C. U. Singh for the male naval officers.
"We will hear this on 19th as to whether you should go back to the tribunal. We will see whether, since now you have been considered for PC, the matter before us is over. We will keep an open mind as to that. But in the meantime, the ad-interim protection of December 30 granted by the vacation bench (for the male SSC naval officers) shall be continued till January 19 on the same terms and conditions", ordered Justice Chandrachud.
Women were not commissioned in the Navy till the issuance of notification dated 9th October, 1991 whereby for the first time, the power under the enabling provision under Section 9(2) of the Navy Act, was exercised to lay down that women would also be eligible for appointment as officers in the Indian Navy. But the induction of women was confined to four branches namely Logistics, Law, ATC and Education. It was also stated by the Ministry then that policy guidelines regarding permanent commission for women will be laid down in 1997. But such guidelines were not laid down until 2008. On 26th September, 2008, the Ministry for the first time took a decision to grant Permanent Commission to SSC women Officers in all the three Forces. But this offer was restricted to certain categories and was also to operate prospectively. As per this policy, only women officers inducted after January 2009 were eligible for Permanent Commission, that too only in the branches of education, law and naval architecture. The cadres of logistics and ATC, which were opened to women for SSC in 1991, were excluded.
The officers had challenged this primarily on two reasons; firstly, the same being prospective in nature giving no benefit to those who had already completed 14 years of service and secondly, the exclusion of their cadres from PC despite the 1991 notification.
On March 17, 2020, a bench headed by Justice D Y Chandrachud held in the case Union of India vs Ld Cdr Annie Nagaraja and others that women officers are also entitled to permanent commission in the Navy at par with their male counter-parts. This verdict followed the February 2020 verdict in the case The Secretary, Ministry of Defence vs Babita Puniya and others which upheld the right of women officers in Army to seek permanent commission.