'No Gender Discrimination': Delhi High Court Refuses To Pass Interim Order Granting Permanent Commission To Woman Naval Officer

The Delhi High Court on Thursday refused to issue an order granting Permanent Commission to a woman Naval Officer in the Indian Navy by observing that the grant of Permanent Commission as per the relevant statute is subject to vacancies and that there existed no gender discrimination in this regard.

A Bench comprising Justice Rajiv Sahai Endlaw and Justice Amit Bansal however ruled that the petitioner was free to challenge the non-existence of Permanent Commission posts in the ATC (Air Traffic Control) cadre of the Indian Navy.

In the instant case, the petitioner had been inducted as a Short Service Commission (SSC) officer in the Indian Navy and the stipulated tenure for the same is 14 years which is due to lapse on August 5, 2021. The petitioner has already been issued a release letter in this regard. Accordingly, the instant petition has been filed impugning the reasons for which the petitioner has been denied consideration for Permanent Commission by the Indian Navy. The grant of an interim order staying her release order has also been prayed for by the petitioner.

The counsel for the petitioner placed reliance on Regulation 203 of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963 (1963 Regulations) which stipulates directions for the issuance of Permanent Commission to officers. It was submitted that vide communication dated February 25, 1999, the Ministry of Defence to the Chief of the Naval Staff had proclaimed that the policy for grant of Permanent Commission to SSC Officer including women would be in accordance with the aforementioned 1963 Regulations.

On the contrary the respondent argued that there were no grounds for the grant of Permanent Commission to SSC women officers in ATC cadre, as neither men nor women SSC officers were considered for the grant of Permanent Commission in the ATC cadre of the Indian Navy. As a result when Permanent Commission in the ATC cadre does not exist, the question of the petitioner being eligible and being entitled to be considered for grant of Permanent Commission in ATC cadre does not arise.

Observations:

Opining on the petitioner's plea for the issuance of an interim order granting stay on her release order, the Court observed that such an interim order if granted would be akin to allowing the petitioner to occupy a public office even before any right of the petitioner to occupy the same has been adjudicated by the Court. It was further taken into consideration that on May 24, 2021 the Indian Navy had opposed even the issuance of notice on this plea on the ground that the jurisdiction to entertain such a plea lay solely with the Armed Forces Tribunal (AFT). The Court also placed reliance on the Supreme Court decision in State of Haryana v. Suman Dutta wherein it had been observed that if by an interim order an employee is allowed to continue in service and then ultimately the writ petition is dismissed, it would tantamount to usurpation of public office without any right to the same.

It was further observed that the Indian Navy had a credible challenge not only to the invocation of jurisdiction of the Court under Article 226 of the Constitution of India but even on merits. The Court further noted that the High Court as well as the Supreme Court in earlier cases wherein Permanent Commission had been granted, were concerned with discrimination on the basis of gender. However, the instant dispute is starkly different as no gender discrimination has been alleged.

"As far as the present case is concerned, it is not the case of the petitioner even that any other officer in the ATC cadre of the respondents Indian Navy, equally placed as the petitioner, has been granted or has been considered for grant of Permanent Commission. The petitioner thus cannot in our view, on the basis of the said earlier orders, claim interim relief. Certain other interim orders were granted by the Courts, finding the respondents to have not complied with the directions passed by the Supreme Court. That is not the case here", the Court opined.

The Court further opined that for the petitioner to get a favourable ruling, she has to first challenge the non-existence of Permanent Commission posts in the ATC cadre following which it has to be shown how the High Court can entertain such a plea since the concerned dispute lies strictly in the domain of the Indian Navy as employers and cadre controlling authorities.

"This Court cannot assess the manpower needs of the respondent Indian Navy and direct creation of a post for the petitioner in the ATC cadre", the order stated.

Referring to Regulation 203 of the 1963 Regulations, the Court noted that the grant of Permanent Commission is 'subject to the availability of vacancies in the stabilized cadre'. Further the Court noted the highest post in the ATC cadre is that of a Commander, which the petitioner is already occupying and that there are no permanent posts in the concerned cadre.

"Till her right to grant of Permanent Commission and / or to consideration therefor is determined, the petitioner cannot, by an interim order, be continued on a public post of Commander in the respondents Indian Navy", the Court concluded.

Accordingly, the petitioner's plea for grant of an interim order was rejected in the interest of justice.

Case Title: A. Swapna v. Union of India

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