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Permanent Commission- Recourse to Article 32 Worrying Us: Supreme Court Relegates Individual Grievances To Armed Forces Tribunal
Mehal Jain
24 Aug 2021 6:24 PM IST
The Supreme Court on Tuesday relegated to the Armed Forces Tribunal (AFT) the individual male and female naval officers challenging the rejection of their claim for the grant of Permanent Commission, or in the alternative, seeking pensionary benefits in terms of the directions of this court in Annie Nagaraja's case."Since the petitioners have already have an efficacious remedy before the AFT,...
The Supreme Court on Tuesday relegated to the Armed Forces Tribunal (AFT) the individual male and female naval officers challenging the rejection of their claim for the grant of Permanent Commission, or in the alternative, seeking pensionary benefits in terms of the directions of this court in Annie Nagaraja's case.
"Since the petitioners have already have an efficacious remedy before the AFT, we relegate them to the pursuit of proceedings before the Tribunal", directed the bench of Justices D. Y. Chandrachud and M. R. Shah.
"This batch of cases arises after the decision of this court in Annie Nagaraja v. Union of India ((where the Navy was directed to consider women SSC officers for grant of PC). In addition, the petitioners have also sought to place reliance on the decision of this Court in Lt. Col. Nitisha (which struck down the evaluation criteria adopted by the Indian Army to grant permanent commission for women SSC officers as 'arbitrary and irrational). Without this court expressing any view on the merits of the claims made by the petitioners in these proceedings, we grant liberty to them to move the Armed Forces Tribunal", said the bench as regards some petitioners.
Since some of the petitioners have instituted proceedings before different benches of the Armed Forces Tribunal, the bench directed that all the OAs be consolidated and heard before the principal bench at New Delhi, together with all other similar matters raising the same issue. The AFT is requested to complete the disposal of the OAs within a period of two months of the date of receipt of the certified copy of the order; the bench directed that the AFT shall do so on or before October 31. The petitioners would be at liberty to amend the pending OAs or file OAs, as the case may be, so as to seek the relief which have been sought in their writ petitions under Article 32. The bench required the said to be carried out within two weeks.
The bench noted that during the pendency of these proceedings, this court by the interim order dated December 30, 2020 has protected the services of the petitioners. "The interim protection enuring to the benefit of the petitioners shall continue to hold the field until the OAs are disposed off. The AFT shall do so on or before October 31", ordered the bench.
Noting that the Court has relegated the petitioners to the Armed Forces Tribunal, the bench added that it is not expressing any view on the merits of the claims raised by the petitioners and that rights and contentions of the parties will be decided by the Tribunal.
The two submissions made by Senior Advocate C. U. Singh, for 3 male naval officers, were-
1. If the vacancies are more than the number of officers under consideration for the grant of PC, inter se merit fades into the background and only suitability is to adjudged; and
2. Originally, the grant of PC in the navy was governed by Navy Order (Special) 05/05 which was modified on October 28, 2009 to provide for the Initiating Officer to record suitability for PC, setting out the manner in which the recommendation was to be endorsed by the IO. The eligibility for the grant of PC in their cadre/department to be from 2009, the petitioners (having appointed in 2003, 2004 and 2005) suffered from the same vice of discrimination as was dealt with by the Supreme Court in Lt. Col. Nitisha's case in context of women officers, that either their PC recommendation was not filled in by their Initiating Officer or if filled in, the same was done casually.
"In the normal course, the Initiating Officer would give recommendation for PC only to those who were eligible, unlike those us appointed in 2003, 2004 and 2005. The eligibility for grant of PC came only in 2009. None of the petitioners fell under this category of 2009 onwards. But all officers appointed 2003 onwards were adjudged as a block, which also included those of 2009 and onwards. What the consequence of one having no recommendation or a casually endorsed recommendation was that when inter se merit is adjudged, if one has a recommendation and another does not, it weighs against the latter. But we have completed 18 years' service! And then in 2015, further instructions were given for the creation of the merit list based on a bell-curve which is deleterious and prejudicial towards us", explained Mr. Singh.
Senior Advocate Hufeza Ahmedi, for another set of petitioners, pointed out the discrimination meted out to male officers in so far as pension is concerned- "Navy adopted a policy of discrimination across the board- if women were denied PC in certain cadres/departments, men were also subject to the same discrimination...In Annie Nagaraja, Your Lordships, under Article 142, said that only women officers would have pensionary rights. But the same discrimination (of denial of PC) has been meted out to male officers and they are deprived of pension!"
Certain other petitioners, represented by Senior Advocate P. S. Patwalia, happened to be women officers who have been denied pension because they were neither petitioners before the court nor before the AFT in the original proceedings.
"It is not that we don't understand your grievance, not for a moment are we saying that your grievances are not weighty. But what is worrying us is this recourse to Article 32. Both in Babita Puniya's case (grant of PC to women in the army) and in Annie Nagaraja, the proceedings before us arose by civil appeals from the Delhi High Court. Lt. Col. Nitisha was also connected with the interpretation of our earlier order, where we looked into the issue that since women were not being considered for PC earlier, their ACRs were not written with that mindset. Our judgment deals with the whole gamut of law. But now should the Court open itself to 32 petitions at this stage when there is a remedy before the AFT?", observed Justice Chandrachud.
"We have the greatest respect towards you, believe you me, for your service to the nation of so many years! And we are not relegating you to the AFT on merit! But ultimately, we, as the Supreme Court, are also a national institution and we have to look at what would fall out for the future. Because once we open it (Article 32), we have to be consistent", continued the judge.
"We have the highest respect for you and sending you to the AFT is not the happiest thing for us, but we are also bound by the law. If you are granted the PC or the pension, then the case ends there. If you are not, you can come back to us. But the normal hierarchy has to be followed", said Justice Chandrachud.
Justice Shah also noted that once the principle of law has been laid down by the top court, the individual cases would be decided by the AFT.
"Every time, this court decides an issue, no other court can decide a matter arising from it because it is covered? We, as the Supreme Court, must also let go sometimes", added Justice Chandrachud.
Mr Singh pointed out that since in both Annie Nagaraja and Nitisha, the Court was primarily concerned with gender discrimination, the findings of the Court are confined to women officers. Mr Ahmedi also pleaded, "As per Annie Nagaraja, if women officers don't get PC, they automatically get pension. That is the same order I want. The AFT would say Annie Nagaraja is on the gender discrimination principle. So my female officer colleague in the same cadre will get pension but I will not?"
"What we have said in context of women officers also applies to these petitioners also as in their branches, they were also originally not considered for PC and so their ACRs were not written as they should have been. Our findings as regards women officers are ex-facie for these petitioners also", remarked Justice Chandrachud orally.
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