Grant of Permanent Commission is not an entitlement : Delhi High Court

 9 10 11 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 28th December 2020 W.P.(C) 11230 2020 CDR RAVINDRA PAL SINGH UNION OF INDIA AND ORS. Through: Mr. Jaideep Singh Advocate Petitioner Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate W.P.(C) 11231 2020 CDR AMIT KHAJURIA UNION OF INDIA AND ORS. Petitioner Through: Mr. Jaideep Singh Advocate Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate W.P.(C) 11232 2020 CDR MANIKSH KUMAR SINGH UNION OF INDIA AND ORS. Petitioner Through: Mr. Jaideep Singh Advocate Through: Mr. Harish Vaidyanathaan Shankar Respondents Advocate HON BLE MS. JUSTICE PRATHIBA M. SINGH HON BLE MR. JUSTICE SUBRAMONIUM PRASAD Prathiba M. Singh J.(Oral) 1. This hearing has been done by video conferencing. CM.APPL 35027 2020in W.P.(C) 11230 2020 CM.APPL 35029 2020in W.P.(C) 11231 2020 CM.APPL 35031 2020in W.P.(C) 11232 2020 Allowed subject to all just exceptions. Applications are disposed of. W.P.(C) Nos.11230 11232 2020 W.P.(C) 11230 2020 & CM.APPL 35026 2020W.P.(C) 11231 2020 & CM.APPL 35028 2020W.P.(C) 11232 2020 & CM.APPL 35030 2020The present three writ petitions have been filed challenging the impugned order dated 24th December 2020 passed by the learned Armed Forces Tribunal by which the applications moved by the Petitioners seeking stay of discharge as per order dated 18.12.2020 passed by the Ministry of Defence have been dismissed by the ld. AFT. The Petitioners had originally filed petitions before the AFT seeking directions against non consideration for grant of Permanent Commission. In the said petitions filed before the AFT an interim order was passed on 21st December 2018 to the following effect: “ This is an application by virtue of which interim directions are sought with regard to the orders dated 28th September 2018 having been passed by the respondents in respect of Mr. Amit Khajuria Mr. M.K. Singh Mr. R.P. Singh and Mr. Varun Sharma who are the applicants in these cases and whose names are appearing at Sr. No.26 28 31 and 38 respectively. 2. With regard to the letter dated 28th September 2018 ordering the release of the applicants against the respective dates in the month of August 2019 the contention of the learned counsel for the applicant is that similarly placed officers are already enjoying the effect of interim directions against the discharge on account of the fact that they have been arbitrarily denied the grant of consideration for Permanent Commission and the said matters are listed now for 10th January 2019. 3. It has also been pointed out that similar issue with regard to the grant of Permanent Commission to Naval Officers in certain special branches is under the W.P.(C) Nos.11230 11232 2020 consideration of the Hon’ble Supreme Court and no final view has been taken by it. 4. It is accordingly prayed that till the time the Hon’ble Apex Court takes a final view in the matter the release from service of the aforesaid officers be also stayed. The respondents were represented through Mr. Bhati Senior Central Government Standing Counsel in response to the advance copy having been served. Learned counsel has made a statement on instructions that they do not intend to file any reply and have not disputed the submissions made by learned counsel for the applicant. 5. We have carefully considered the averments made in the application as well as the documents placed on record. We are satisfied that the applicants are having a prima facie good case and are likely to succeed on account of the fact that similarly placed persons are already enjoying interim directions against their release till the time the Hon’ble Apex Court takes a final view and therefore there is no reason to take different view than the one which has already been taken by the Bench in other cases when the balance of convenience is also in favour of the applicants. Further the applicants will suffer irreparable loss in case the benefits of the said order are not extended to 6. Accordingly the operation of the impugned order dated 28th September 2016 in respect of the applicants is stayed till further orders. A copy of the order shall be given ‘dasti’ to the learned counsel for the parties for compliance. 7. Expression of any opinion hereinbefore may not be treated as an expression on the merits of the main matter and is tentative keeping in view the fact that the matter is still under the consideration of the Hon’ble Apex Court. 8. Accordingly MAs are disposed of.” W.P.(C) Nos.11230 11232 2020 As can be seen from the above interim order the case of the Petitioners before the AFT was that the question as to grant of Permanent Commission was pending before the Supreme Court and there were other similarly placed persons in whose favour certain interim directions had been passed. In view of the said position the ld. AFT had granted interim relief to the petitioners. It is the admitted position not disputed by either parties that the Supreme Court has by a detailed judgment dated 17th March 2020 titled Union of India & Ors.. v. Lt. Cdr Annie Nagaraja & Ors. passed the following directions: “96. 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 W.P.(C) Nos.11230 11232 2020 prospective and restricted to specified cadres are quashed and set aside v) All SSC officers in 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 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 andrecommendation 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 officer of the ATC cadre in Annie Nagraja’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 W.P.(C) Nos.11230 11232 2020 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 advertisements pursuant to which they were inducted shall be considered for the grant of PCs in accordance with directionsandabove 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 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 It is the case of the Petitioners that direction nos.(iv) and viii) are applicable to the Petitioners herein. As per the Respondents pursuant to the above directions passed by the Supreme Court the W.P.(C) Nos.11230 11232 2020 Petitioners were shortlisted and the Selection Board was constituted for consideration of grant of Permanent Commission. The Selection Board after a detailed consideration of the matter decided to grant discharge to eight Officers including the three Petitioners herein. A notice of discharge was served upon the Petitioners on 18th December 2020 pursuant to which the Petitioners moved before the AFT and sought stay of the discharge order. In the said application the ld. AFT observed that the case of the Petitioners was that they were entitled to interim relief till the matter was pending in the Supreme Court. The question as to whether the judgment of the Supreme Court has been followed and what was the policy which was applied by the Respondents was left open. The ld. AFT was however of the view that in view of the directions of the Supreme Court having been carried out and a Selection Committee having taken a final decision in the matter the Petitioners are not entitled to any interim relief. 8. Mr. Jaideep Singh ld. counsel appearing for the Petitioners submits that since the Petitioners were protected by the interim order passed by the AFT on 21st December 2018 the discharge order would in effect be violative of the said interim order. Moreover it is the case of the Petitioners that consideration has not been given in accordance with the principles laid down by the Supreme Court. 9. Mr. Harish Vaidyanathan Shankar learned counsel appearing for the Respondents submits that the directions of the Supreme Court have been carried out in letter and in spirit. In any event the non filing of an application before the AFT could at best be a procedural irregularity on part of the Respondents. The Petitioners themselves having sought interim orders initially on the strength of the pendency of the matter before the W.P.(C) Nos.11230 11232 2020 Supreme Court now cannot resile from their own earlier position. Mr. Harish Vaidyanathan submits that due to the fact that the Petitioners participated in the selection process and the Selection Board considered the matter comprehensively and took a final decision accordingly the judgment of the Supreme Court in Lt. Cdr Annie Nagaraja & Ors. has clearly been 10. Heard ld. Counsels for the parties. After considering the record this Court is of the view that the ideal course of action for the Respondents during the operation of an interim order was to move before the AFT. However in the present writ petitions this Court is only concerned as to whether the Respondents have implemented the directions given by the Supreme Court. It is clear from a reading of the directions of the Supreme Court as also the decision taken by the Respondents on 18th December 2020 and the impugned order of the AFT that the case of the Petitioners for grant of Permanent Commission has been duly considered. 11. Under these circumstances no interference is called in the present petitions under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not would have to be decided on merits by the Tribunal either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners. 12. Accordingly the writ petitions are dismissed. However considering the fact that the Petitioners have served for several years in the Navy and that they would be required to look for fresh accommodation as also on humanitarian grounds during a global pandemic they are permitted three months time to vacate their official accommodations. It is made clear that W.P.(C) Nos.11230 11232 2020 the Respondent authorities would cooperate with the Petitioners during this period for their smooth transition. 13. Finally it is submitted by Mr. Jaideep Singh ld. counsel that usually Short Service Commission officers are given eight to ten months release time in order to enable them to seek alternate employment. If that is the usual practice the Petitioners are permitted to make a representation to that effect to the Respondent authority which shall be considered in a compassionate manner considering the prevalent situation of a pandemic. The Petitioners are permitted to approach the Ld. AFT for any further directions in this regard. 14. Needless to add that the observations made in the present petitions would not affect the final determination by the ld. AFT. 15. The petitions and all pending applications are disposed of in the above DECEMBER 28 2020 pst Ak PRATHIBA M. SINGH VACATION JUDGE) SUBRAMONIUM PRASAD VACATION JUDGE) W.P.(C) Nos.11230 11232 2020 

Summary: The non-filing of an application before the AFT, could best be a procedural irregularity. The High Court bench consisting of J. Prathiba M Singh and  J. Subramonium Prasad decided upon the matter of CDR Ravindra Pal Singh &amp; Ors v. Union of India &amp; Ors. [W.P. (C) 11230/2020], dismissed three writ petitions seeking grant of Permanent Commission, stating that the same was not an entitlement. The Petitioner had filed before the AFT an application seeking direction against non-consideration for  grant of Permanent Commission to which the AFT had granted interim relief to the petitioners. The petitioner filed the present petition challenging the impugned order passed by the learned Armed Forces Tribunal (AFT) previously. As per the respondents, the petitioners were shortlisted and the Selection Board was constituted for consideration of grant and later decided that the petitioners were not entitled to any relief. The counsel for petitioner submitted that the petitioners were protected by the interim order passed by the AFT and the discharge order would in effect be violative of the said interim order. The counsel for the respondents submitted that the directions of the Supreme Court  had been carried out in letter  and in spirit. In any event, the non-filing of an application before the AFT could best be a procedural irregularity on part of the respondents.   The court held that the ideal course of action for the Respondents, during the operation of an interim order, was to move before the AFT. However, since the court in the present petition was only concerned as to whether the respondents had implemented the directions given by the SC. The court found that the grant of Permanent Commission was duly considered. Further the court stated “Under these circumstances, no interference is called in the present petitions, under Article 227 of the Constitution. The question as to whether the policy applied and whether the rejection of Permanent Commission to the Petitioners is valid or not, would have to be decided on merits by the Tribunal, either in the pending petitions or in any fresh challenge which may be mounted by the Petitioners”. The petitions were dismissed, however, the court, considering,  that the petitioners had served for several years in the Navy and that they would be required to look for fresh accommodation, as also on humanitarian grounds during the global pandemic, they were permitted 3 months to vacate their official accommodations.