In continuation of the convincing, courageous and commendable judgment delivered by the same Division Bench of Apex Court comprising of Justice Dr DF Chandrachud and Justice Ajay Rastogi on February 17, 2020 that favoured the extension of permanent commission for women in the armed forces so that gender equality is implemented in reality in the case titled The Secretary, Ministry of Defence vs Babita Puniya and others in Civil Appeal Nos 9367-9369 of 2011 with Civil Appeal Nos 1127-1128 of 2013 and with Civil Appeal No 1210 of 2020, we see once again that these same Judges have now in yet another case titled Union of India & Ors vs Lt Cdr Annie Nagaraja & Ors in Civil Appeal Nos 2182-87 of 2020 @ SLP (C) Nos. 30791-96 of 2015 along with others very clearly, convincingly and commendably held that serving women Short Service Commission Officers in Indian Navy were entitled to Permanent Commission at par with their male counterparts. We thus see that the Apex Court Bench thus upheld the 2015 Delhi High Court verdict which had upheld women officer’s claim in this regard! Very rightly so!
To be sure, 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. Regulation 203 of Chapter IX of the Indian Navy Act, 1957 puts no restriction to the grant of permanent commission either gender wise or category wise. 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 cadre of logistics and ATC which were opened to women for SSC in 1991 were excluded.
Before proceeding ahead, it would be instructive to now mention that the Delhi High Court Division Bench comprising of Justice Kailash Gambhir and Justice Najmi Wazri in Annie Nagaraja and others vs Union of India and others in W.P. (C) 7336/2010, CM Nos. 9348/2012 & 6859/2014 along with others have held the denial of permanent commission to women Short Service Commission (SSC) officers in the Indian Navy in different branches which includes the cadres of Education, ATC and logistics to be discriminatory. It is very rightly held in para 32 of this notable judgment while ordering that permanent commission should be offered to the petitioners that, “We fail to comprehend that when these petitioners along with the male officers had undertaken the same kind of training but nevertheless were denied permanent commission although the men were granted the permanent commission with no special merit except for the fact that they belong to the male sex. If this does not tantamount to gender discrimination then what else does?”
Needless to say, in this present case we see that the Apex Court was considering the appeals filed by the Union Ministry against a judgment delivered by the Delhi High Court on September 4, 2015 allowing the claim of women officers for permanent commission. While rejecting the appeals of the Union Government and upholding the Delhi High Court judgment, the Apex Court held that both male and female officers are to be treated equally in granting permanent commission in Indian Navy, once the statutory bar for inducting women in Navy was lifted. Discrimination on the ground of sex as we see here or on the ground of religion or on the ground of region or on any other ground can never be justified under any circumstances!
For the sake of brevity, let us now deal starightaway with the directions passed by the Apex Court in this landmark, latest and extremely laudable judgment. It is held in para 96 that, “We hold and direct that:
(i) The statutory bar on the engagement or enrolment of women in the Indian Navy has been lifted to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 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 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;
(iii) 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;
(iv) 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;
(v) 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;
(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: (i) availability of vacancies in the stabilised cadre at the material time; (ii) determination of suitability; and (iii) 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 are 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;
(ix) 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 (v) and (vi) above;
(x) 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;
(xi) 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; and
(xii) 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 Rs 25 lakhs each.”
Going forward, it is then held in para 97 that, “We affirm the clarification which has been issued in sub-para (a) of paragraph 50 of the impugned judgment and order of the Delhi High Court.”
Furthermore, it is then held in para 98 that, “Compliance with the above directions shall be effected within three months from the date of this judgment. We accordingly dispose of the appeals.”
Most significantly, it is very rightly and remarkably held in para 91 that, “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.”
Most remarkably, it is then further commendably held in this same para 91 ahead that, “These SSC officers cannot 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, 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.”
Equally heartening to note is that the Apex Court rejected the Centre’s objections based on physiological features of women as “gender stereotypes”! Justice Dr DY Chandrachud while reading the operative part of the judgment minced no words to state commendably that, “Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are ill-suited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”
Words are short to commend these two Judges of the Apex Court – Justice Dr DY Chandrachud and Justice Ajay Rastogi who have delivered this extremely commendable judgment which has opened the door for permanent commission of women in the Navy just like earlier they by their order had similarly opened the doors of permanent commission of women in the Army! They rightly rejected the specious submission that women are not suited for sea sailing duties. It was laudably observed that, “It is impossible to countenance a submission that women cannot sail alongside men sailors.”