With C.A. No. 2181 of 2020 @ SLP (C) No 30337 of 2016 With C.A. Nos. 10225-10230 of 2016 With C.A. No. 3359 of 2017 With C.A. No. 5392 of 2019 With C.A. No. 2177 of 2020 @ Diary No. 26406 of 2017 With C.A. No. 2178 of 2020 Signature Not Verified @ Diary No 27060 of 2019 Digitally signed by CHETAN KUMAR Date: 2020.03.17 13:18:38 IST And With Reason: C.A. No. 2179 of 2020 @ Diary No 27061 of 2019 1 JUDGMENT Dr Dhananjaya Y Chandrachud, J Index A Background of the dispute A.1 Annie Nagaraja‘s case A.2 Priya Khurana‘s case B Statutory and Policy framework C Submissions D Preliminary Objection E Validity of the policy letter dated 26 September 2008 F The stereotypical sailor G Ex turpi causa non oritur actio H Directions 2 PART A A Background of the dispute

1. The present batch of Civil Appeals comes up for adjudication from two decisions, the first in point of time being that of the High Court of Delhi and the second, being that of the Armed Forces Tribunal1.

A.1 Annie Nagaraja’s case

2. Six Writ Petitions under Article 226 of the Constitution were instituted before the Delhi High Court. The petitioners, seventeen in number, were women officers who joined the Indian Navy as Short Service Commissioned2 Officers in the Logistics and Air Traffic Controller3 cadres and the Education branch. Six of them were officers in the Logistics cadre, nine in the Education branch and two in the ATC cadre. Their grievance is that despite completing fourteen years of service as SSC officers, they were not considered for the grant of Permanent Commissions4 and were discharged from service.

3. The case which was set up before the High Court was that women SSC officers of the Indian Army and Air Force had been granted PCs by the judgment of the Delhi High Court in Babita Puniya v Union of India5 (―Babita Puniya‖). The Air Force implemented the decision of the Delhi High Court. The Indian Army was in appeal before this Court against the judgment in Babita Puniya. 1 ―AFT‖ 2 ―SSC‖ 3 ―ATC‖ 4 ―PC‖ 5 Writ Petition (C) No. 1597 of 2013, delivered on 12 March 2010 3 PART A

4. The Union of India in the Ministry of Defence6 issued a policy letter dated 26 September 2008 granting PCs to SSC officers in all the three branches of the Armed Forces. However, the offer was restricted to certain categories and was to operate prospectively for the benefit of future batches inducted on SSCs after January 2009. The Delhi High Court expressly noted that the denial of combat roles to women was not in issue in the Writ Petitions. By its judgment dated 4 September 2015, the High Court issued the following directions:

Babita Puniya & Anr. pending consideration before the Hon‘ble Supreme Court;

c) With respect to the petitioners who had attained the age of superannuation prior to the filing of the Writ Petitions by them the following directions are required to be issued:

While accepting the principle that it is open to government to review and alter an earlier policy decision, the AFT held that an alteration has to be based on a reasonable exercise of power. The subsequent decision making the grant of PCs 8 ―OA‖ 9 OA No. 143 of 2016 10 ―1963 Regulations‖ 6 PART A only prospective and confining it to stipulated branches was held to be invalid. The AFT has placed a considerable degree of reliance on the fact that the advertisements on the basis of which the SSC officers were inducted had held out a specific representation that the officers would be considered for the grant of PCs.

8. The AFT accordingly directed the reconsideration of the request for the grant of PCs on the basis of Regulation 203 and the policy decision dated 25 February 1999 within six months. Until this exercise was undertaken, the applicants were directed to be continued as SSC officers on existing terms and conditions. The decision of the AFT was subsequent to the earlier judgment of the Delhi High Court in Annie Nagaraja, which is the subject matter of appeals instituted before this Court. The AFT clarified that its direction to reconsider the case of the SSC women officers for the grant of PCs was subject to the decision of this Court in Annie Nagaraja. While directing the consideration of the claim of SSC women officers to the grant of PCs by the Indian Navy, the AFT stopped short of the direction which was issued by the Delhi High Court for the grant of PCs. The AFT was of the view that the appropriate relief was to direct that the applicants be considered by the authorities and to this extent it disagreed with the absolute relief granted by the Delhi High Court for the grant of PCs.

9. The judgment of the AFT has been assailed by the Union Government. The applicants before the AFT are in appeal to the extent that the wider relief which was granted by the Delhi High Court was denied to them by the AFT. The first applicant in the OAs instituted before the AFT was Commander Priya 7 PART B Khurana. Hence, the decision of the AFT in this batch of cases has, in the course of the submissions, been adverted to as the decision in Priya Khurana v Union of India (―Priya Khurana’s case‖). In the appeals arising out of the judgment of the AFT in Priya Khurana, an interim order was passed by this Court on 28 October 2016 directing the continuation in service of the SSC officers in that capacity until further orders.

B Statutory and policy framework

10. Section 9 of the Navy Act 195711 deals with the eligibility for appointment or enrolment in the Indian Navy. Section 9 reads thus:

11. 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 11 ―1957 Act‖ 8 PART B 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.

12. The provisions of the Bill which were to lead to the enactment of the 1957 Act were deliberated upon in a report of the Joint Committee of Parliament. A note of dissent was appended by four Members of the Joint Committee on the restriction which was proposed to be imposed on the appointment of women in the Indian Navy. While opposing the restriction proposed in the report of the Joint Committee, the dissenting members (TCN Menon, KK Warior, VK Dhage and V Prasad Rao) stated:

13. The dissenting Members stated that restrictions on the fundamental rights of the members of the Armed Forces should be only to the extent strictly necessary for the maintenance of discipline and the discharge of duties. In their 9 PART B view, ―the law that Parliament enacts today in respect of the Indian Navy should be a law which will facilitate the development of a Navy composed of contented men and women whose primary allegiance shall be to the people of India‖. The object, they stated, of achieving such a fighting forces should be ―not to suppress their democratic rights as far as possible‖.12

14. The dissent has remained a note in history. The task of the Court is to construe the provisions of Section 9 as they stand.

15. 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. The AFT in its decision noted that in the absence of a counter to the stand taken by the applicants that the 1963 Regulations are statutory in nature, it will have to be presumed that the Regulations are referable to the provisions of Section 184 .

16. 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‖: 12

17. 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:

18. 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.

19. Chapter IX of the Regulations is titled ―Grant of Permanent Commission to Short Service Commission Officers‖. Regulation 203 contains the following stipulation in regard to the grant of PCs :

PART B (3) Short Service Commission Officers selected for the grant of Permanent Commission in the Navy shall conform to the medical standard laid down by the Chief of the Naval Staff from time to time.‖

20. Regulation 203 (1) conditions the grant of PCs to three factors:

21. 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 Sub-lieutenant and were promoted thereafter.

22. 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:

The Law and Logistics cadres belong to the Executive branch of the Indian Navy.

23. At the material time when the 1963 Regulations 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.

24. On 20 December 1991, the Union Government in the MoD addressed a communication to the Chief of Naval Staff conveying the sanction of the President for the induction of SSC officers, including women in the Education 13 PART B branch of the Indian Navy and stipulating the terms and conditions of service. Para 2 of the letter stipulated the eligibility for appointment on SSCs thus:

25. The above notification dated 20 December 1991 had the following reference number:

26. On 1 July 1992, the Union Government in the MoD sanctioned the intake of thirty-five officers on SSCs for a period of five years in the ATC cadre. Paragraph 11 specified the policy for the grant of PC in the following terms:

27. The Southern Naval Command, by a letter dated 15 May 1998 made a reference to an earlier letter dated 20 April 1998 of the Naval Headquarters clarifying that the services of women SSC officers were extendable for a period of upto ten years with the consent of the officers, with each extension being of not more than two years.

28. On 6 November 1998, the Union Government once again exercised its authority under Section 9(2) to make women eligible for appointment as officers in all the branches of the Indian Navy:

The earlier exercise of power under Section 9(2) had rendered women eligible for appointment as officers of the Indian Navy in the Logistics and Law cadres and the Education branch. The subsequent notification dated 6 November 1998 13 extended the field of eligibility under Section 9(2) to all four branches in the Indian Navy.

29. On 25 February 1999, the Union Government in the MoD issued a communication to the Chief Naval Staff. The contents of the notification have a substantive bearing in the present case and are hence extracted below:

2. This issues with the concurrence of the Ministry of Defence (Finance/Navy) vide their ID No. 22/NA/S of 1999.

Yours faithfully, (SN Gupta) Under Secretary to the Government of India Copy to :-

32. Subsequently, on 27 February 2002, the Union Government conveyed the sanction of the President to extend the tenure of SSC officers in the Navy to fourteen years.

33. In July 2002, the Indian Navy issued an advertisement inviting applications from men and women for appointment as SSC officers in the ATC and Logistics cadres and the Education branch. While inviting applications, the advertisement specified that:

― SHORT SERVICE COMMISSION

5. Short Service Commission is granted for a term of 07 years, extendable to 10 years. On completion of tenure of SSC, officers are released with gratuity as admission under the rules. Based on their performance and requirements of service, the deserving officers may also be considered for Permanent Commission.‖

34. There was a specific representation that ‗deserving officers‘ may be considered for PCs based on their performance and the requirements of service.

35. It is necessary to note at this juncture that the women SSC officers in Annie Nagaraja’s case were inducted between 1992 and 2001 pursuant to the notifications dated 9 October 1991, 20 December 1991 and 1 July 1992. On the other hand, the women SSC officers in Priya Khurana’s case were inducted as SSC officers pursuant to the advertisement issued in July 2002.

36. On 26 September 2008, the MoD issued a communication to the Chiefs of the Army, Naval and Air Staff regarding the grant of PCs to SSC women officers. The communication, which is the subject matter of the challenge in the present appeals, is extracted below:

(S.C. Barmma) Director (AG) Copy to :- As per standard Distribution"

37. The two significant facets of the above communication are: first, the grant of PC was made prospective to SSC women officers ―to be inducted‖ in the specified cadres/branches. As a consequence, PCs were denied to women SSC officers who were already in service; and second, PCs were confined to specific cadres and branches in the case of SSC women officers in the Army, Navy and Air Force. Insofar as the Navy is concerned, PCs were to be granted in the cadres/branches corresponding to the Judge Advocate General14 and Education branches of the Army in addition to the Naval Constructor cadre of the Navy. The 14 ―JAG‖ 19 PART B communication dated 26 September 2008 contains no reference to the earlier policy communication dated 25 February 1999.

38. On 3 December 2008, the Integrated Headquarters of the MoD (Navy) issued implementation guidelines for selecting SSC officers for the grant of PCs in the Navy from the following branches/cadres:

39. The tabulation above indicates that the grant of PCs was envisaged only prospectively for batches inducted after January 2009 and in only three cadres/branches as noted above. This was in terms of the earlier decision dated 26 September 2008. Para 4 of the implementation guidelines provides for the constitution of a board for the selection of SSC officers for the grant of PCs:

44. Mr Jain submitted that the Indian Navy does not discriminate between men and women. In 1991, SSCs were opened up in the Law and Logistics cadres and 22 PART C the Education branch on a uniform basis. To these branches were added ATC (1991), Naval Constructor (2001), Naval Armament Inspectorate (2017) and Observer Specialization (2018). As for PCs, as a result of the policy decision taken on 26 September 2008, Law and Naval Constructor cadres and the Education branch were opened up which was followed up in 2017 with the Naval Armament Inspectorate. Mr Jain submitted that the size of the Indian Navy is much smaller than the other Armed Forces, as a consequence of which, the pyramidal structure is saturated comparatively quicker than in the Army and the Air Force. Elaborating on his submissions, Mr Jain urged that:

(v) The grant of PCs is not automatic but on the assessment of merit inter se.

45. In defence of the policy decision taken by the Union Government on 26 September 2008 making the grant of PCs to SSC women officers prospective and in stipulated cadres/branches, Mr Jain submitted that while envisaging the grant of SSCs to women on 20 December 1991, it was contemplated that the policy for the grant of PCs would be promulgated in 1997. On 25 February 1999, the MoD while outlining the terms and conditions of service of SSC officers 23 PART C including women stipulated that the policy for the grant of PCs ―will be in accordance with Regulation 203‖. In his submission, the policy of 1999 was indicative of the fact that the Union Government wanted to frame a policy in the future. Such a policy, it was contended, was framed in 2008 on the basis of which the implementation guidelines were notified. Hence, he urged that in the case of the Indian Navy, no promise was held out to women officers recruited on SSCs of being granted PCs in the future. On this basis, it has been urged that no rights had accrued to SSC women officers on the basis of the policy which was notified on 25 February 1999. Hence, the Union Government was justified in notifying a policy for the first time on 26 September 2008 making it prospective and confining its application to specified cadres/branches.

46. Resisting the above submissions, Mr CU Singh, learned Senior Counsel urged that:

(iv) Regulation 203 of Chapter IX of the 1963 Regulations contains a specific provision for the grant of PCs subject to the availability of vacancies, consideration of suitability and the recommendation of the Chief of Naval Staff;

(v) On 20 December 1991, the Union Government while opening up certain cadres/branches for the induction of Short Service Commissioned officers including women contemplated that the policy for the grant of PCs would be promulgated in 1997. The policy which was issued on 25 February 1999 contained a specific reference to the two letters dated 20 December 1991 of the MoD and is hence referable to the earlier commitment;

(vi) On 6 November 1998, a notification was issued under Section 9(2) opening up the appointment of women as officers in the Executive, Engineering, Electrical and Education branches. These four branches encompass nineteen sub-branches:

policy for the grant of PCs will be in accordance with Regulation 203 and specifically permitted sea-service for women;

(viii) The submission of the Union Government that the policy document of 25 February 1999 is only an intent to frame a policy in the future is 25 PART C belied by the express terms of the document as well as by the advertisement issued in July 2002 for SSC officers, which contemplated their consideration for the grant of PCs; and

(ix) The policy issued on 26 September 2008 has justifiably been held to be arbitrary and invalid by the AFT. The policy contains no reference to the notifications issued in 1991 or to the Presidential sanction of 25 February 1999. On a review of the files, the AFT came to the conclusion that the sanction which was issued on 25 February 1999 was not placed before the Board which gave its sanction to the subsequent policy dated 26 September 2008. As a result of the policy document dated 26 September 2008, there would be a complete denial of PCs to those women officers recruited after 1991, including those recruited under the advertisement issued in July 2002 which expressly stipulated that PCs may be granted in deserving cases. On the above rationale, Mr CU Singh has urged that there is no merit in the appeals filed by the Union of India. Mr CU Singh stressed that according to a release of the Press Information Bureau, the authorised strength of the Navy as on 1 July 2018 was 11,352. The held strength was 9,746, resulting in a shortage of 1,606 officers. As on 1 June 2019, the authorized strength is 11,567 while the held strength is 10,012, thus resulting in a shortage of 1,555 officers.

47. Mr Santosh Krishnan, learned counsel has urged:

The findings of the AFT in this regard are to be upheld. Regulation 203, as subordinate legislation, outweighs executive instructions;

(iii) The Union Government has challenged before this Court the judgment of the AFT only in one OA. Consequently, the Union Government is deemed to have accepted the judgment of the AFT qua the other women SSC officers who were inducted in pursuance of the advertisements issued in July 2002; and

(iv) No stay was granted by this Court on the judgment of the AFT. It is the failure of the Union Government to implement the judgment of the AFT which has led to cascading litigation since 2016 by officers seeking similar protection. Around 160 men have been recruited as direct PC officers in the last ten years. This belies the contention urged on behalf of the Union Government that there is a ‗personnel saturation‘ in the Logistics cadre. A saturation in the cadre, if any, is a result of the failure of the Union Government to implement the judgment of the AFT. Women SSC officers have been kept out of the zone of consideration despite the binding directions in Annie Nagaraja’s case and Priya Khurana’s case.

48. Ms Haripriya Padmanabhan, learned counsel appearing for the respondent nos. two to six in Annie Nagaraja’s case urged:

Women officers, inducted on SSCs pursuant to these notifications, had a legitimate expectation that they would be considered for the grants of PCs;

(iii) The legitimate expectation of the women SSC officers crystalised into a right upon the issuance of the policy letter dated 25 February 1999, which states that the grant of PCs shall be in accordance with Regulation 203 of the 1963 Regulations;

(iv) The advertisements issued in July 2002 contained an express stipulation that deserving SSC officers may be considered for the grant of PCs; and

(v) The second to sixth respondents were commissioned as SSC officers in the Indian Navy between 1992 and 1994 and were among the first batches of women officers in the Navy. They completed their service and were released between 2006 and 2008 prior to the issuance of the policy letter dated 26 September 2008. Though the interim order of this 28 PART C Court dated 20 November 2015 protected only those women SSC officers in service on the date of the issuance of the policy, their right of being considered for the grant of PCs arose by virtue of the policy letter dated 25 February 1999. Though out of service for over twelve years, this Court may consider their reinstatement and the grant of PCs.

49. Ms Aishwarya Bhati, learned Senior Counsel appearing on behalf of Commander Seema Chaudhary (JAG SSC officer) has canvassed submissions in line with those urged by Mr CU Singh, learned Senior Counsel and Mr Santosh Krishnan, learned counsel. In addition to these submissions, it was urged that facially neutral laws, as in the present case, have a discriminatory effect against women SSC officers. Male officers have, it was urged, always been afforded a choice between being inducted either as SSC officers or directly as PC officers. Despite the non-consideration of the grant of PCs to male SSC officers, PC avenues were in fact available to men. On the other hand, women SSC officers are neither recruited directly as PC officers nor are SSC women officers considered for the grant of PCs. This, it was urged, belies the submission of the Union Government that the non-consideration of both male and women SSC officers for the grant of PC is gender neutral and not discriminatory.

50. The rival submissions fall for consideration.

51. Before we deal with the rival submissions on merits, it is necessary to advert to a preliminary objection which was urged by Mr CU Singh, learned Senior Counsel to the maintainability of the appeal17 filed by the Union of India in Priya Khurana’s case. Mr CU Singh 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 officers18. However, the Union of India sought the leave of the AFT to file an appeal before this Court19 only in one OA. No leave was sought to appeal in the other OAs. Mr CU Singh 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. In this submission, the judgment of the AFT which held that the policy communication dated 26 September 2008 is ultra vires binds the Union of India in the five cases where no appeal has been filed. Hence, it was submitted that it is not open to the Union of India to file an appeal only in one of the six cases where a common judgment has been delivered on similar facts. In this context, reliance was placed on the decision of this Court in Sri Gangai Vinayagar Temple v Meenakshi Anmal20 .

17 Civil Appeal 3359 of 2011 18 Civil Appeal No. 10225-30 of 2016 19 Civil Appeal No 3359 of 2017 20 (2015) 3 SCC 624 30 PART D

52. Opposing the above submission, Mr Sanjay Jain, learned ASG submitted that the decision which was relied on by Mr CU Singh arose in the context of a civil suit while the scheme under the AFT Act 2007 is distinct.

53. Section 30(1) of the AFT Act 2007 provides as follows:

54. The Court also dealt with the question whether an application for leave to appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) . The Court held that an aggrieved party cannot approach this Court 32 PART D directly for the grant of leave to file an appeal under Section 31(1) read with Section 31(2) . The Court held:

55. The learned ASG has urged that though the Union Government did not seek the grant of leave by the AFT for the companion five cases and as a matter of fact sought the grant of leave only in one case, they should not be foreclosed from challenging the judgment of the AFT. Mr Jain submitted that a common judgment has been delivered by the AFT dealing with issues of far-reaching importance bearing on legal questions involved and hence it would be desirable for the Court to consider the matter on merits.

56. 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. We are 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, we propose to deal with the appeals on merits. We leave open the question of law raised in the preliminary objection of Mr CU Singh to be considered in an appropriate case in future.

33 PART E E Validity of the policy letter dated 26 September 2008

57. 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.

58. In Lt. Col. Prithi Pal Singh Bedi v Union of India,22 the legality of orders convening a General Court Martial and its composition was questioned. It was contended that trial by a Court Martial would result in the deprivation of personal liberty, which can only be done in consonance with Article 21 of the Constitution. It was contended that any restriction must be by procedure established by law and the law prescribing such procedure must satisfy the test prescribed by Articles 14 and 19 of the Constitution. Justice D A Desai, writing for a three judge Bench of this Court noted the competing interests that must be considered in matters concerning the Armed Forces in the following terms:

59. In R Viswan v Union of India,23 one of the issues concerned whether Section 21 of the Army Act, 1950 read with Chapter IV of the Army Rules, 1954 is within the scope and ambit of Article 33 of the Constitution. Section 21 empowers the Central Government by notification to make rules restricting ―to such extent and in such manner as may be necessary‖ certain fundamental rights in their application to persons subject to the 1950 Act. Justice P N Bhagwati (as the 23 (1983) 3 SCC 401 35 PART E learned Chief Justice then was), speaking for a Constitution Bench of this Court held:

60. Section 9(2) of the 1957 Act conditions the restriction on the appointment or enrolment of women in the Indian Navy by entrusting to the Union Government the authority to issue notifications allowing for the engagement of women in departments, branches or bodies forming a part of or attached to the Navy or the Indian Naval Reserve Forces. Acting in exercise of this authority, the Union Government initially issued a notification on 9 October 1991 and thereafter on 6 November 1998. By the first of those notifications, women were made eligible for appointment as officers in the Indian Navy in the Law and Logistics cadres and the Education branch. 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.

(2002) 9 SCC 73 25 (2010) 10 SCC 539 37 PART E

61. 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. As we have noted, 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.

62. 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.

63. It is in the above background, that the policy communication of the Union Government dated 25 February 1999 has to be understood. Regulation 203 of 38 PART E the 1963 Rules lays down the norms for the grant of PCs. The grant of PCs is made subject to:

arbitrary exercise of power. The AFT noted:

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 43 PART F 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.

69. In the decision of this Court by the present Bench in Babita Puniya, this Court has dwelt on the need to change mind sets if equality for women is to be achieved in the Armed Forces. In Babita Puniya, this Court dealt with the submissions of the Union Government that women are ill-suited to assume command roles in the Indian Army. Male officers, it was urged, would be averse to taking orders from women. Women, this Court was informed share an undue burden of marital obligations and the responsibilities of motherhood and child bearing. These arguments, based upon the physiological attributes of women, were employed to justify the unequal treatment of men and women officers.

70. These submissions which are based on deeply entrenched stereotypes came to be rejected by this Court in emphatic terms:

71. The submissions which were urged before this Court on behalf of the Union of India in Babita Puniya which dealt with women SSC officers in the Army have found an echo in the present appeals which deal with SSC women officers in the Indian Navy. Originally, in the written submissions which were filed in these proceedings (‗Brief note on behalf of the appellants‘), it was urged that sailing in the Indian Navy is not a proper avocation for women. The written submissions contain the following statement:

72. In the revised note of submissions which has been placed on the record, the above paragraph does not find a reference. Significantly however, the same submissions, though absent in the written note which was subsequently tendered before this Court, has been stressed at the forefront of the submissions which were made before this Court by the learned ASG. The submission was that: 45

73. The above reasons are illusory and without any foundation. 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 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.

74. 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. As this Court has noted in Babita Puniya, arguments founded on the physical strengths and weaknesses of men and 46 PART F women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies.

75. 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. In 1993, Commander Ruby Singh became the first Indian woman to lead a platoon in the contingent of the Indian Navy at Raj Path on Republic Day. INSV Tarini which circumnavigated the globe comprised of an all women crew. Sub-lieutenant Shivangi became the first pilot for the Indian Navy. The achievements of some of the women officers of the Indian Navy have been set down in the form of a tabulated chart which we consider necessary to extract:

76. 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.

G Ex turpi causa non oritur actio

77. The Delhi High Court and the AFT have differed on the nature of the reliefs which have been granted in the separate batch of cases adjudicated by them. The Delhi High Court has held that SSC officers of the Navy who had opted for but were not granted PCs and were instead granted an extension on SSC but had not retired at the time of the institution of the Writ Petitions should be offered PCs within a period of six weeks, though they had attained the age of retirement during the pendency of the petitions. They were held to be entitled to all consequential benefits such as promotions and other financial benefits subject to medical fitness. As regards those of the petitioners who had attained the age of superannuation prior to the filing of Writ Petitions, the High Court directed their 48 PART G reinstatement within six weeks subject to the decision of this Court in Babita Puniya. These petitioners, it was held, would be entitled to no benefits.

78. The AFT disagreed with the direction of the High Court for the grant of PCs and directed the authorities to consider the cases of the SSC officers for the grant of PCs. The AFT was of the view that as it does not possess the requisite expertise and necessary materials for determining whether PCs should be granted, such a decision must be left to the relevant authorities. However, the AFT directed that until such consideration was made and a decision was taken, the applicants before it would be allowed to continue as SSC officers on existing terms and conditions as applicable to them. The ultimate direction that was issued by the AFT is also the subject matter of the appeals by the SSC officers before this Court. According to them, the wider direction issued by the Delhi High Court for the grant of PCs should have been adopted by the AFT and the mere direction for consideration will not provide any substantial relief to the officers.

79. At this stage, it would be material to note that 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.

80. 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 200826. 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.

81. The case of these officers is that the 1963 Regulations as well as the policy letter dated 25 February 1999 existed when they were in service which entitled them to be considered for the grant of PCs. Prior to their release from service, they had submitted several representations to the concerned authority requesting that they be considered for the grant of PCs. The applications, it was urged, were forwarded by their commanding officers recommending the grant of PCs which signifies their capabilities, merit and work to serve as PC officers in the Indian Navy. The grievance of these officers is that their request was not considered and that the Navy kept silent about the policy letter dated 25 February 1999 which, according to the them, had come to light much later.

82. It was urged that the Air Force accepted the decision of the Delhi High Court in Babita Puniya and reinstated women officers who had retired. Similar steps, it was urged, ought to have been undertaken by the Army. However, as a result of the interim order of this Court, Respondent Nos 2 to 6 were not 26 Date of release are – Commander R Prasanna (R2 – 12 July 2006), Commander Puja Chhabra (R3 – 31 July 2006, Commander Saroj Kumari (R4 – 8 August 2007), Commander Sumita Balooni (R5 – 8 August 2008) and Commander E Prasanna (11 August 2008).

50 PART G reinstated and have filed an application seeking a modification of the order27. Respondent Nos 2 to 6 urged that they are entitled to be considered for the grant of PCs in view of the policy letter dated 25 February 1999. They claim to have been gravely prejudiced by the conduct of the Navy and the interim order of this Court. The principle of actus curiae neminem gravabet – an act of court should prejudice no one - has been pressed in aid of this submission. Though these respondents have been out of service for between twelve to fourteen years, it has been submitted that the work in their departments is of such a nature that being out of service should not stand in the way of their being reinstated. In support of this, it was urged that fresh persons are inducted with six months‘ training. Consequently, it was urged that the officers having served for fourteen years, there is no difficulty in the way of this Court passing an order for their reinstatement in service.

83. 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. There was no stay on the judgment of the AFT in Priya Khurana’s case by this Court. In terms of the judgment, the Navy was required to consider the case of every officer in terms of Regulation 203 read with the policy dated 25 February 1999. As a result of the Navy not having implemented the judgment of the AFT since 2016, there has been a cascading effect and nearly thirty officers (this Court was informed during hearing) have filed cases before the AFT, the outcome of which depends on the judgment of this Court in these appeals. 27

IA No 71158 of 2017 51 PART G

84. Mr Santosh Krishnan, learned counsel submitted that if this Court were to accept the view of the AFT and direct the ‗mere‘ consideration of the representations for the grant of PCs, a piquant situation would arise since any such consideration would be rendered futile at least in respect of one cadre, namely Logistics. The Logistics cadre is stated to be saturated or overborne as a result of the staffing practices which have been followed by the Navy in the interregnum. Furthermore, two Lieutenant Commanders (Lt. Commander Kaberi Kasturi and Lt. Commander Vijeta Yadav) were ordered to be released from service on the ground that the cadre is saturated. The submission which has been urged is that this excuse of the cadre being saturated has been improvised to prevent a judicial review of the systemic gender discrimination in the recruitment and retention practices of the Navy. This is sought to be highlighted by the following submissions:

PART G In other words, it has been submitted that SSC women officers from the Logistics cadre have been driven to pursue their remedies in courts and are now confronted with the plea that the cadre is overborne. This, it is urged, is a travesty of justice.

85. In order to present to this Court a complete picture of the impact of the decision in these cases, the status of the cases has been depicted as follows:

In these circumstances, it has been submitted that the Court may consider the issuance of directions pari materia to those which were issued by this Court in sub-paragraphs (a), (b), (c), (d) and (f) of paragraph 69 in Babita Puniya’s case. This, it has been urged, would be appropriate since the same policy letter dated 54 PART G 26 September 2008 was the subject matter of the judgment of this Court in Babita Puniya.

86. Opposing the above submissions, Mr Sanjay Jain has placed on the record three charts. The first chart depicts the cadre strength in the Indian Navy:

87. The second chart presents a comparative analysis of inductions and retirements in the past three years:

88. The third chart deals with the status of re-employment of Special Duty Commissioned Officers. These officers have been promoted from the other ranks (sailors) in the Indian Navy. They are being given re-employment in service because of a shortage against sanctioned strength. The sanctioned strength, it has been submitted, is not interchangeable with other Logistics officers. The third chart is reproduced below:

89. While considering the defence of the Union of India, urged by the ASG, that the cadres are ―overborne‖ and ―saturated‖, the assessment of this Court must be based on the following position:

90. Taking into consideration the above, we find merit in the grievance which has been urged on behalf of the SSC officers that the present situation has arisen as a plain consequence of the actions of the Naval authorities in:

91. 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 57 PART G 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. 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.

92. 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. These officers are: 58

93. 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.

94. We have considered the case of these women officers who were denied being considered for the grant of PCs. 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 prospective application of the policy dated 26 September 2008 has been held to be invalid. We cannot ignore the fact 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. Had they been reinstated, as directed by the High Court, they would have been in service in the interregnum and would have been entitled to be considered for the grant of PCs together with all other consequential benefits. These officers must be provided restitution for the consequences suffered by them by the failure of the authorities to have considered them for the grant of PC, and despite of the order of the Delhi High Court which had directed their reinstatement. 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.

95. As we have noted, the right of women SSC officers to be considered for the grant of PCs in the Logistics and Education cadres arose by virtue of the policy letter dated 25 February 1999. The non-consideration of the case of these five officers for the grant of PCs arose out of the actions of the Union Government in issuing a restricted policy dated 26 September 2008 which has caused serious prejudice to these women officers. These officers were among the first inductee batches of women SSC officers in the Navy and committed themselves to serving in the cause of the nation.

The second to sixth respondents who had been released prior to 2008 have been out of service for twelve years and more. Consistent with the exigencies of service, it would not be appropriate to direct their reinstatement. However, following the logic of the directions of this Court in Babita Puniya, we are of the view that a one-time measure should be issued in exercise of the powers under Article 142 of the Constitution. These officers who were released prior to 2008 after completing their engagement should be deemed to have completed substantive pensionable service and to have qualified for the grant of pension on the basis that they have fulfilled the minimum qualifying service in a substantive capacity. In addition to the grant of pensionary benefits, as a one-time measure, respondents two to six should be directed to be paid a lump sum amount of ₹ 25 lakhs each as compensatory measure for lost years of service and the serious injustice which has been meted out to them. We clarify that our decision to award compensation is not a reflection of any malice on the part of the Naval authorities but a measure of compensation for the women officers who have been deprived of a valuable opportunity to render service and shoulder responsibilities.

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 61 PART H 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 62 PART H 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 ₹ 25 lakhs each.

97. 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.

98. Compliance with the above directions shall be effected within three months from the date of this judgment. We accordingly dispose of the appeals. 63 PART H

99. There shall be no order as to costs. Pending application(s), if any, stand disposed of.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [Ajay Rastogi] New Delhi;

March 17, 2020.