Union of India & Ors. vs Lt. Cdr. Annie Nagaraja & Ors.

Notification dated 09.10.1991 was issued by Union of India making women eligible for appointment as officers of Indian Navy in three cadres/branches. On 1 July 1992, the intake of thirtyfive officers on SSCs was sanctioned in the ATC cadre stipulating that no PCs would be granted (for both men and women) in the ATC cadre. In 1998, the stipulation on the tenure of seven years was extended to ten years and to fourteen years in 2002. Notification dated 06.11.1998 made women eligible for appointment as officers of Indian Navy in all branches. The policy decision dated 25.02.1999 (referring to the two earlier letters dated 20.12.1991) granted PCs to all SSC officers including women in accordance with Regulation 203, 1963 Regulations. Further, another policy decision dated 26.09.2008 granted PCs to SSC officers in all three branches of Armed Forces. However, it was restricted to certain categories and operated prospectively for future batches inducted on SSCs after January 2009. Implementation guidelines issued for selecting SSC officers for grant of PCs in the Navy were also prospective and restricted to specified cadres. In Annie Nagaraja’s case, seventeen women SSC officers (inducted between 1992 and 2001) before the Delhi High Court challenged not being considered for the grant of PCs despite completing fourteen years of service. High Court inter alia directed offering of PCs to SSC officers who had opted for but were not granted PCs and had not retired at the time of the filing of the writ petitions. Reinstatement was directed for petitioners who had attained the age of superannuation prior to the filing of writ petitions, subject to the decision of Supreme Court in Babita Puniya case which was pending. In Priya Khurana’s case, Armed Forces Tribunal (AFT) in a batch of six Original Applications (OAs) by seven SSC officers inter alia declared the policy letter dated 26.09.2008 as invalid and directed reconsideration of the requests for the grant of PCs. Hence, the present appeals.

AND ORS.

Disposing of the appeals, the Court

HELD: 1.1 Statutory and policy framework

Section 9 of the Navy Act 1957 deals with the eligibility for appointment or enrolment in the Indian Navy. Sub-section (2) of Section 9 conditions the eligibility of women to be appointed or enrolled in the Navy or the Indian Naval Reserve Forces. The provision commences with the expression “no woman shall be eligible” and follows it up with the expression “except in such department, branch or other body”. The prohibition on the appointment or enrolment of women is subject to the lifting of the restriction by the Union Government. The Union Government has been conferred with the authority to stipulate the departments, branches or bodies forming a part of or attached to the Navy or the Indian Naval Reserve Forces in which women can be appointed or enrolled. The Union Government is also vested with the authority to define the conditions on which the appointment or enrolment may take place. [Paras 10, 11][452-F; 453-C-D]

1.2 Section 184 of the 1957 Act contemplates regulations being made by the Central Government for governance, command, discipline, recruitment, conditions of service and regulation of the Naval Forces and, generally for the purpose of effectuating the provisions of the 1957 Act. The power to frame regulations includes those in relation to the rank, terms and conditions of service, pay, pension, allowances and other benefits. The Regulations are required to be laid before each House of Parliament under Section 185. Part III of Chapter I of the Regulations for the Indian Navy contain the 1963 Regulations. Section II deals with officers in the Executive branch inducted on SSCs. Regulation 122(1) makes provisions governing “the entry, training and promotion of officers granted SSCs in the Executive branch of the Indian Navy”. Regulation 122(2) contains a stipulation that the candidate must be an “unmarried male”. Under Regulation 122(9), an officer is to be on probation for one year or until the completion of initial training, whichever is later. Regulation 122(14) provides for Permanent Commissions. Section IV of the Regulations deals with officers in the Engineering branch inducted on SSCs. Regulation 124(2) contains a provision similar to Regulation 122(2) which restricts SSCs only to “unmarried males”. Section VI provides for SSCs in the Electrical branch. Regulation 126(2) contains a similar restriction of eligibility to “unmarried males”. Regulations 124(14) and 126

(14) contain provisions for the grant of PCs. [Paras 15-18][454D-G; 455-B-D]

1.3 Chapter IX of the Regulations is titled “Grant of Permanent Commission to Short Service Commission Officers”. Regulation 203 contains the stipulation in regard to the grant of PCs. Regulation 203 (1) conditions the grant of PCs to three factors: (i) Availability of vacancies in the stabilised cadre; (ii) Consideration of suitability; and (iii) A recommendation of the Chief of Naval Staff. Regulation 203 applies to SSC officers of the rank of Sub-lieutenant and above. A comparison may be made of the provisions of Regulation 122 (14) and Regulation 203. Regulation 122(14) stipulates that suitable officers may be considered for the grant of PC in the Navy after the successful completion of the period of probation, subject to the existence of vacancies and the regulations current at the time. Regulation

203 provides for the consideration of the grant of PCs from time to time to SSC officers of the rank of Sub-lieutenant and above subject to their suitability, availability of vacancies in the stabilized cadre of the Navy and the recommendation of the Chief of Naval Staff. Regulation 122(14) applies to all officers in the Executive branch of SSC officers. Regulation 203 applies to all officers of the rank of Sub-lieutenant and above. The AFT observed that Regulation 203 would apply to the OAs before it since the applicants were recruited as SSC officers in the rank of Sublieutenant and were promoted thereafter. [Paras 19-21][455-E; 456-A-E]

1.4 The Indian Navy consists of four branches – Executive, Electrical, Engineering and Education. On 9 October 1991, the Union Government, pursuant to the enabling power conferred by Section 9(2), issued a notification by which women were made eligible for appointment as officers of the Indian Navy in three cadres/branches which were: Logistics; Law; and Education. The Law and Logistics cadres belong to the Executive branch of the Indian Navy. At the material time when the 1963 Regulations AND ORS.

were notified, no notification had been issued in pursuance of the power conferred under Section 9(2) and no women were commissioned as SSC officers. Consequently, the regulations were restricted only to male officers. The notification which was published in the Gazette of India on 9 October 1991 was to be in force for five years. The consequence of the issuance of this notification under Section 9(2) was that the restriction on the appointment or enrolment of women was lifted for specified cadres/branches of the Navy. Once the notification was issued under Section 9(2), the provisions in the 1963 Regulations restricting the grant of SSCs to males would stand lifted insofar as the cadres/branches where the entry of women was notified. [Paras 22, 23][456-E-H; 457-A-B]

2. Preliminary Objection

A preliminary objection was urged to the maintainability of the appeal filed by the Union of India in Priya Khurana’s case. It was urged that when the SSC women officers sought to challenge the judgment of the AFT, leave to appeal was separately sought and was granted by the AFT to move this Court. This led to the filing of six Civil Appeals by the officers. However, the Union of India sought the leave of the AFT to file an appeal before this Court only in one OA. No leave was sought to appeal in the other OAs. It was urged that the AFT rendered one common judgment in six OAs. The Union of India having filed an appeal only in one of the cases arising from the AFT, it was urged that the common judgment binds the Union Government and operates as res judicata in the other five OAs. The learned Counsel appearing before this Court have addressed arguments on the merits of the issues raised in the judgments of the Delhi High Court and AFT. This Court is nevertheless required to adjudicate upon the validity and effect of the policy letter dated 26 September 2008 in the appeals filed by the SSC women officers in Annie Nagaraja’s and Priya Khurana’s case. In order to render a final adjudication, this Court proposes to deal with the appeals on merits. The question of law raised in the preliminary objection is left open to be considered in an appropriate case in future.[Paras 51, 56][470E-G; 473-G-H; 474-A] Sri Gangai Vinayagar Temple v. Meenakshi Anmal (2015) 3 SCC 624 : [2014] 12 SCR 845; Union of India v. Brigadier PS Gill (2012) 4 SCC 463 : [2012] 2 SCR

571 – referred to.

3.1 Validity of the policy letter dated 26 September 2008

Article 33 of the Constitution entrusts to Parliament to determine, by law, the extent to which any of the rights conferred by Part III of the Constitution can be restricted or abrogated in their application to the members of the Armed Forces “so as to ensure the proper discharge of their duties and the maintenance of discipline among them”. Besides the requirement that a restriction must be determined by law, Article 33 postulates a nexus between the restriction or abrogation and the need for the proper discharge of duties and the maintenance of discipline among members of the Armed Forces. Acting in exercise of authority under Section 9(2), the Union Government initially issued a notification on 9 October 1991 and thereafter on 6 November 1998. The second notification dated 6 November 1998 broadened the scope of the permissible areas for the entry of women as officers in the Indian Navy by enabling their entry in all the four branches - Executive, Engineering, Electrical and Education. Significantly, neither of the notifications dated 9 October 1991 nor 6 November 1998 restrict the appointment or enrolment of women only on SSCs. Both notifications stipulate that women shall “be eligible for appointment as officers in the Indian Navy” in the branches specified. The consequence of the two notifications is to lift the bar envisaged in Section 9(2) and to allow for the induction of women as officers in the Indian Navy in the specified cadres/branches. [Paras 57, 60][474-B-C; 477-AD] R Viswan v. Union of India (1983) 3 SCC 401 : [1983]

3 SCR 60 – followed.

Lt. Col. Prithi Pal Singh Bedi v. Union of India (1982)

3 SCC 140 : [1983] 1 SCR 393 – relied on.

Union of India v. LD Balam Singh (2002) 9 SCC 73 : [2002] 3 SCR 385; Mohd. Yunus Khan v. State of UP AND ORS.

(2010) 10 SCC 539 : [2010] 12 SCR 448 – referred to.

3.2 Close on the heels of the first notification dated 9 October 1991 issued under Section 9(2), the MoD issued two notifications on 20 December 1991 with successive numbers of reference providing for the terms and conditions of service of SSC officers, including women. The first letter (bearing reference No. 1110) concerned SSC officers in the Education branch. Para

4 of the notification specifically contemplated that the policy in regard to the grant of PCs would be promulgated in 1997. The second letter (bearing reference No. 1111) concerned SSC officers in the Law and Logistics cadres and adopted the terms of the earlier letter, save to the extent specified therein. As there was no specific stipulation concerning the grant of PCs in the second letter, the stipulation in para 4 of the first notification (bearing reference No. 1110) applies to SSC officers inducted in the Law and Logistics cadres. Hence from 20 December 1991, it was within the contemplation of the Union Government that the policy for the induction of SSC officers, including women, on PCs would be notified within a period of six years. This was because officers who were inducted on SSCs would have a tenure of seven years. The policy for the grant of PCs was hence envisaged to be notified before or around the expiry of the short service tenures notified in 1991. The stipulation on the tenure of seven years was subsequently extended to ten years in 1998 and to fourteen years in 2002.[Paras 61, 62][477-D-H; 478-A]

3.3 The policy communication dated 25 February 1999 was not anticipatory in nature. What the communication spelt out was that the grant of PCs to SSC officers would be in terms of Regulation 203. This would cover both men and women officers serving on SSCs. The expression “the policy for grant of Permanent Commission will be” in accordance with Regulation

203 cannot be construed to mean that the policy was yet to be framed or that until a future date when a policy would be notified, there was no entitlement to be considered for the grant of PCs. The import of the policy document dated 25 February 1999 was to bring the grant of PCs to all SSC officers including women in accordance with Regulation 203. The course of the evolution of policy from 9 October 1991 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 dated 9 October 1991 and 6 November 1998, 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 dated 25 February 1999 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 that the communication dated 25 February 1999 was merely anticipatory in nature and that the entitlement to be considered for the grant of PCs would have to await a further policy, which came into being on 26 September 2008 cannot be accepted. The communication dated 25 February 1999 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. In addition to the above observations, in Priya Khurana’s case which concerned women officers of the 2002 batch, an advertisement had been issued by the authorities inviting applications from men and women for joining as SSC officers in the ATC and Logistics cadres and the Education branch. The advertisement clearly stipulated that based on their performance and the requirements of service, deserving AND ORS.

officers “may also be considered for Permanent Commission.” Subsequent employment notices did not contain such a stipulation. The employment notice of July 2002 was not in conflict with the provisions contained in Regulations 203. [Paras 64-66][478-CH; 479-A-E]

3.4 The policy decision of the MoD dated 26 September 2008 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 has noted after it had summoned the files, that the earlier policy decision of 25 February 1999 was not placed before the decision making authorities. Evidently, in the view of the AFT, the decision which was arrived at on 26 September 2008 was not a conscious departure from the earlier policy of 25 February 1999. 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. No submission was urged on behalf of the Union of India controverting the above findings of the AFT. 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 dated 9 October 1991 and 6 November 1998, 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 dated 26 September 2008 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” is contrary to the notifications dated 9 October 1991 and 6 November 1998 and shall not be enforced. The policy letter dated 26 September 2008 was not in supersession of the statutory notifications dated 9 October 1991 and 6 November 1998. At the highest it may be construed as an administrative decision to implement the statutory notifications. Hence, it cannot 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 is 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 on 9 October 1991, 6 November 1998 and

25 February 1999. [Para 67][479-G-H; 480-A, E-H; 481-A-D]

4.1 The stereotypical sailor

The battle for gender equality is about confronting the battles of the mind. History is replete with examples where women have been denied their just entitlements under law and the right to fair and equal treatment in the workplace. In the context of the Armed Forces, specious reasons have been advanced by decision makers and administrators. They range from physiology, motherhood and physical attributes to the male dominated hierarchies. A hundred and one excuses are no answer to the constitutional entitlement to dignity, which attaches to every individual irrespective of gender, to fair and equal conditions of work and to a level playing field. A level playing field ensures that women have the opportunity to overcome their histories of discrimination with the surest of responses based on their competence, ability and performance. Women officers have worked shoulder to shoulder with their men counterparts in every walk of service. The supposed explanations based on duties at sea or Russian vessels (which are deployed by the Indian Navy, no provision has been made for women as sailors and there are no bathrooms to accommodate them) are devices adopted to justify an action which is not germane to the proper discharge of duties and the maintenance of discipline among members of the Armed Forces. These submissions which have been made by the ASG are plainly contrary to the policy letter dated 25 February 1999 issued by the MoD to the Chief of the Naval Staff. The policy letter emphatically stipulates that women officers of all branches/cadres could be directed to serve on board ships both during training and subsequent employment in accordance with the exigencies of service. In the face of this communication, it is impossible to countenance a submission that women cannot sail alongside men sailors. [Paras 68, 73][481-E-G; 483-F-H] AND ORS.

4.2 Quite apart from the policy letter dated 25 February 1999, the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics. In arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. In the compilation of documents which forms a part of the record, there is documentary evidence of the accolades which have been bestowed on women officers in the Indian Navy. 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. [Paras 74-76][484-A-C, H; 485-A]

5.1 Ex turpi causa non oritur actio

During the pendency of the appeal filed by the Union of India arising from the judgment of the Delhi High Court in Annie Nagaraja’s case, an interim order was passed by this Court on 20 November 2015 while issuing notice by which (i) those of the petitioners before the High Court who were serving as SSC officers in the Navy on 26 September 2008 were allowed to continue on the terms and conditions applicable to them; and (ii) those who had been released from service after 26 September 2008 upon completion of SSC tenures would be allowed to rejoin in that capacity and to continue in service. By this order, protection was restricted only to those officers before this Court who were in service on 26 September 2008. Respondent Nos 2 to 6 were commissioned as officers of the Indian Navy as SSC officers between 13 July 1992 and 12 August 1994 and were among the first batch of women officers in the Navy. They were released from service between 12 July 2006 and 11 August 2008. These officers were released before the issuance of the policy letter dated 26 September 2008. Consequently, the protection of the interim order of this Court was not extended to these officers. In the appeals arising out of the judgment of the AFT in Priya Khurana’s case, an interim order was passed by this Court on 28 October 2016 directing the continuation in service of the SSC women officers in that capacity until further orders. [Paras 79, 80 and 83][485-H; 486-A-D; 487-D]

5.2 The present situation has arisen as a plain consequence of the actions of the Naval authorities in: (i) The failure to implement the statutory notifications under Section 9(2) dated 9 October 1991 and 6 November 1998; (ii) The failure to abide by the policy letter dated 25 February 1999; and (iii) The breach of the obligation to implement the judgments of the Delhi High Court and the AFT which had not been stayed and has resulted in the creation of an impasse for the SSC women officers. 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. 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. The second to sixth respondents in Annie Nagaraja’s case had retired upon the completion of fourteen years of service prior to the issuance of the policy letter dated 26 September 2008. Of these officers, three officers are from the Logistic cadre, one officer is from the Education branch and one officer is from the ATC cadre. The Delhi High Court had issued directions for the reinstatement of the second to sixth respondents. By virtue of the interim order of this Court dated 20 November 2015, protection was extended to only those SSC women officers who were in service on 26 November 2008. This cut-off date was evidently adopted with reference to the policy communication dated 26 September 2008. The interim order of this Court was based on the policy dated 26 September 2008 which envisaged the grant of PCs on a prospective basis to officers “to be inducted” in the future. The AND ORS.

prospective application of the policy dated 26 September 2008 has been held to be invalid. It cannot be ignored that it was because of a restricted interim order passed by this Court that the above five respondents were not reinstated during the pendency of the appeals. Where a situation which detrimentally affects the rights of citizens arises as a result of an order of the Court, it is the duty of the court to remedy the situation and to rectify the injustice to the extent that is possible. [Paras 90-94][492-A-H; 493-A-F]

6.Directions: (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: 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 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, it is directed 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 shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at 25 lakhs each. The clarification issued in sub-para (a) of paragraph 50 of the impugned judgment and order of the Delhi High Court is affirmed. [Paras 96, 97][494-D-H; 495-A-H; 496-A-E] The Secretary, Ministry of Defence v. Babita Puniya 2020 (3) SCALE 712 : (2020) 7 SCC 469 – relied on. AND ORS.