1    

REPORTABLE  

        IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION      

Civil Appeal Nos 2182-87 of 2020  @ SLP (C) Nos. 30791-96  of 2015   

Union of India & Ors.                                               ...Appellants              

 Versus  

Lt Cdr Annie Nagaraja & Ors.             ...Respondents       

 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  

@ Diary No 27060 of 2019  

And With   

C.A. No. 2179 of 2020  

@ Diary No 27061 of 2019

2    

J U D G M E N T         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    

PART A   

3    

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 Tribunal 1 .   

 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 Commissioned 2  Officers in  

the Logistics and Air Traffic Controller 3  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  

Commissions 4  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 India 5  (―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

PART A   

4    

4. The Union of India in the Ministry of Defence 6  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:  

 ―50.a) The claim of absorption in areas of operation not open  

for recruitment of women officers cannot be sustained being a  

policy decision.   

b) The Short Service Commissioned Officers of the Navy  

who had opted for PC and were not granted PC but instead  

were granted extension of SSC and were not retired at the  

time of filing of these Writ Petitions and had attained the age  

of retirement during the pendency of the present petitions,  

they shall be offered PC within a period of 6 weeks from the  

date of this order. They shall be entitled to all consequential  

benefits such as promotion and other financial benefits  

subject to their medical fitness. However, their appointment to  

the post of PC shall be subject to the final outcome of the said  

SLP i.e. CC No. 10437/2010 title Secr. Ministry of Defence v.  

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:  

1. The respondents shall reinstate these  

petitioners within a period of six weeks from today on  

their respective posts;  

2. Such reinstatement shall be subject to the  

final outcome of the said SLP i.e. CC No. 10437/2010  

titled Secr. Ministry of Defence vs. Babita Puniya &  

Anr. pending consideration before the Hon‘ble  

Supreme Court;  

3. The petitioners are entitled to no benefits;  

4. The reinstatement of the petitioners shall be  

subject to their medical fitness.‖   

                                                      6  ―MoD‖

PART A   

5    

5. Since the earlier decision of the Delhi High Court in Babita Puniya was  

the subject matter of proceedings before this Court, the direction in regard to  

offering PCs was made subject to the decision that would eventually emerge from  

this Court. The first petitioner in the Writ Petition 7  before the High Court was  

Lieutenant Commander Annie Nagaraja. Hence, the decision of the Delhi High  

Court in that batch of cases has, in the course of the submissions, been adverted  

to as the decision in Annie Nagaraja v Union of India (―Annie Nagaraja’s  

case‖). In the appeals arising out of the judgment of the Delhi High Court in  

Annie Nagaraja, an interim order was passed by this Court on 20 November  

2015 which directed:  

―Pending further orders from this Court we direct that such of  

the respondents (petitions before the High Court) as were  

serving as short service commissioned officers in the Navy as  

on 26 th  September 2008, shall be allowed to continue on the  

terms and conditions applicable to them in that capacity. We  

further direct that such of the officers out of the respondents  

(petitioners before the High Court) as may have been  

released from service after 26 th  September 2008, upon  

completion of the short service commission tenure, shall be  

permitted to join back in terms of the order passed by the  

High Court and continue in service in that capacity.‖  

By this order, protection was restricted only to those women officers in service on  

26 September 2008.  

 A.2 Priya Khurana’s case  

 6. The second batch of proceedings which has led to appeals before this  

Court arises from the decision of the AFT at the Principal Bench in New Delhi in a  

                                                      7  Writ Petition (C) No. 7336 of 2010

PART A   

6    

batch of six Original Applications. 8  The lead Original Application

9  was instituted  

by Commander Priya Khurana. The applicants before the AFT in this batch of  

cases were seven SSC officers recruited in 2002 in the Indian Navy in the  

Logistics and ATC cadres and the Education branch. They sought the grant of  

PCs and challenged the policy document dated 26 September 2008 as  

unconstitutional to the extent that it operated prospectively and restricted the  

grant of PCs to a few cadres/branches. Consequently, there was also a challenge  

to the implementation guidelines dated 3 December 2008 issued by the  

Integrated Headquarters of the MoD. The officers challenged their release from  

service on the completion of their tenure of SSC engagement.   

 7. The AFT, by a judgment dated 11 August 2016, came to the conclusion  

that on 25 February 1999, the Union Government in the MoD had taken a policy  

decision for the grant of PCs to both men and women officers in terms of  

Regulation 203 of Chapter IX of the Naval Ceremonial, Conditions of Service and  

Miscellaneous Regulations 1963 10

, which is contained in Part III of the  

Regulations. The AFT held that the policy decision dated 25 February 1999 held  

the field and the subsequent policy decision of 26 September 2008 was arrived at  

without considering the earlier policy decision and as a matter of fact, even the  

Union Defence Minister had been kept in the dark about the earlier decision.  

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‖

PART A   

7    

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

PART B   

8    

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 1957 11

deals with the eligibility for appointment  

or enrolment in the Indian Navy. Section 9 reads thus:  

―9. Eligibility for appointment or enrolment.—(1) No person  

who is not a citizen of India shall be eligible for appointment  

or enrolment in the Indian Navy or the Indian Naval Reserve  

Forces except with the consent of the Central Government:  

Provided that nothing in this section shall render a person  

ineligible for appointment or enrolment in the Indian Navy or  

the Indian Naval Reserve Forces on the ground that he is a  

subject of Nepal.  

(2) No woman shall be eligible for appointment or enrolment  

in the Indian Navy or the Indian Naval Reserve Forces except  

in such department, branch or other body forming part thereof  

or attached thereto and subject to such conditions as the  

Central Government may, by notification in the Official  

Gazette specify in this behalf.‖  

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‖

PART B   

9    

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:  

―An important provision of the Bill is the one which excludes  

women from the right of joining the Indian Navy. It will be  

superfluous if we record in detail the courage and capacity  

shown by the women of India in the past and especially  

during our glorious freedom struggle. In almost all countries  

women have proved themselves to be equal to men if not  

more and today there is no sphere of life nor is there any kind  

of work where women cannot compete with men. Moreover  

we feel that the admission of women into our armed services  

will, to a very large extent, have a salutary and welcome  

effect upon the outlook and morale of our fighting men. This  

injustice done to our women should be removed and we  

recommend that the clause which prohibits women from  

joining the navy be removed.‖   

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

PART B   

10    

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

We acknowledge the research into this aspect made by Ms Liz Mathew, learned Counsel who has drawn it to  the attention of the Court during the course of the hearing.

PART B   

11    

―(2) Nationality. – A candidate must be an unmarried male  

and must fulfil the conditions regarding the nationality as laid  

down by the Government.‖  

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:  

―(14) Permanent Commissions. – Suitable officers may be  

considered for the grant of Permanent Commission in the  

Indian Navy at any time after successful completion of the  

period of probation, subject to the existence of vacancies and  

the regulations current at the time.‖  

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 :  

―203. Grant of Permanent Commission. – (1) Subject to  

the availability of vacancies in the stabilized cadre of the  

Navy, Permanent Commission may be granted from time  

to time to Short Service Commission Officers of the rank  

of Sub-Lieutenant and above who are considered suitable  

and are recommended by the Chief of the Naval Staff.  

(2) Officers granted Permanent Commission may be  

transferred with their existing rank and seniority. The  

retention of any acting rank held by an officer at the time  

of transfer to a Permanent Commission shall be governed  

by Regulation 202.

PART B   

12    

(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:  

(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.  

 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.   

PART B   

13    

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:  

(i) Logistics;   

(ii) Law; and  

(iii) Education.  

 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

PART B   

14    

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:  

―Eligibility.  A candidate must be an unmarried male  or female and must fulfill conditions regarding the  nationality as laid down by the Government.‖    

(Emphasis supplied)   

          Para 3 stipulated that candidates would be inducted on SSC for seven years and  

that the period could be extended with the consent of the officer for two years at a  

time. Para 4 contemplated that the policy in regard to the grant of PCs would be  

promulgated in 1997:  

―Grant of Permanent Commission. The policy in this  

regard will be promulgated in 1997.‖   

Para 6 stipulated that the rules for entry and promotion would be those  

prescribed in Part III of the 1963 Regulations of the Navy, as sanctioned by the  

Union Government for the entry of male / PC officers in the Education branch  

except as specified therein. Para 15 stipulated that the induction of women under  

the scheme was to be initially for a period of five years, which would be reviewed  

thereafter.   

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

reference number:   

―MP/0417/NHQ/1110/DO/D(N-IV)‖  

On the same day – 20 December 1991 - the Union Government in the MoD  

addressed another communication to the Chief of Naval Staff conveying the  

sanction of the President for the induction of SSC officers including women into

PART B   

15    

the Law and Logistics cadres of the Executive branch of the Indian Navy and  

stipulating the terms and conditions of service therein. The letter stipulated that  

the terms and conditions of service would be those prescribed in Regulation 122  

of the 1963 Regulations and in the Union Government‘s letter dated 20  

December 1991 regarding the entry of SSC officers in the Education branch,  

except as set out in the notification. The reference number of this notification  

was:  

 ―MP/0417/NHQ/1111/DO/D(N-IV)‖  

  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:   

―11. Grant of Permanent Commission. There will be no  

provision for the grant of Permanent Commission.‖  

It was stipulated that no PCs would be granted (for both men and women) in the  

ATC cadre.  

 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:

PART B   

16    

(a) Executive;  

(b) Engineering;  

(c) Electrical; and  

(d) Education.   

 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:  

―  No. MP/0417/1/NHQ/425D(N-II)  

Government of India,  Ministry of Defence,  

New Delhi, the 25 th  February, 1999  

     To    The Chief of the Naval Staff  (with 30 spare copies)          Subject : TERMS AND CONDITIONS OF SERVICE OF  SSC OFFICERS (INCLUDING WOMEN)    Sir,       I am directed to refer to GOI, MOD letters No  MP/0417/NHQ/1110/DO/D(N-IV) dated 20 Dec 1991 and  

                                                      13

Published in the Gazette of India on 28 November 1998

PART B   

17    

MP/0417/1/NHQ/1111/DO/D(N-IV) dated 20 Dec 1991  and convey the sanction of the President for the  following:-    (a) Grant of Permanent Commission.  The policy for grant  

of Permanent Commission will be in accordance with  

Article 203, Chapter IX of Regulations Navy Part III.  

(b) Employment/Sea Service. Women officers of all  

Branches/cadres may also be directed to serve on  

board ships, during training & subsequent  

employment should the exigencies of Service so  

require.  

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 :-    The DA DS, New Delhi   The DDADS, Mumbai   The CGDA, New Delhi – 2 copies   The CDA (N), Mumbai – 2 copies (one signed in ink)  The DFA (N), New Delhi – 2 copies‖   

30. The above communication contains a reference to the two earlier letters  

dated 20 December 1991, which we have noted above bearing the reference  

numbers MP/0417/NHQ/1110/DO/D(N-IV) and MP/0417/NHQ/1111/DO/D(N-IV).  

 31. The two significant facets of the above communication dated 25 February  

1999 are: first, the policy for the grant of PCs to women officers would be in  

accordance with the Regulation 203 of Chapter IX of the 1963 Regulations; and  

second, women officers of all branches and cadres may be directed to serve on  

board ships, both during training and subsequent employment in accordance with  

the exigencies of service.  

PART B   

18    

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:

PART B   

19    

 ―  No. 12(1)/2004-D(AG). Pt II       Government of  India,       Ministry of Defence   

New Delhi, the 26 th  September, 2008  

 To  The Chief of the Army Staff  The Chief of the Naval Staff  The Chief of the Air Staff    Subject: Permanent Commission to SSC Women Officers        I am directed to convey the sanction of the  President to offer Permanent Commission prospectively to  Short Service Commission (Women) Officers to be  inducted in Judge Advocate General (JAG) Department  and Army Education Corps (AEC) of Army and their  corresponding Branch/Cadre in Navy and Air Force.  Accounts Branch of the Air Force and Naval Constructor  of the Navy in addition to current provision for Grant of PC  to SSC (Men) Officers.    2. Suitable administrative instruction in this regard  will be issued by respective Service HQs.    3. This issues with the concurrence of the MoD(Fin)  vide their UO No. 552/AG/PA dated 26.9.2008.    

 (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 General 14

and Education  

branches of the Army in addition to the Naval Constructor cadre of the Navy. The  

                                                      14

―JAG‖

PART B   

20    

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:  

Srl  Branch/Cadre Batch Commencing Remarks  

(a) Education  Jun 09 Men and Women  

officers  (b) X/Law  When scheduled   

(c) E/Naval Architecture  Jul 09  

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:  

―4. Constitution of Board. A Board will be constituted  

under the chairmanship of COP for selecting SSC officers  

of Branches/Cadres mentioned at Para 2 above for the  

grant of PC. The Board will be guided by Regulation 203  

of Regulations for the Indian Navy Part III (Statutory).‖  

40. Para 5 which deals with selection provides as follows:  

―5. Selection. The eligible officers are thereafter to be  

empaneled for grant of PC. The Branch/Cadre-wise  

selection would be based on inter-se merit based on  

ACRs held on the officers under consideration and subject  

to availability of vacancies.‖  

PART B   

21    

41. Selection, in other words, of officers for the grant of PCs is to be based on  

inter se merit determined on the basis of the Annual Confidential Reports 15

of the  

officers under consideration and subject to the availability of vacancies.   

 42. The judgment of the Delhi High Court in Babita Puniya has been the  

subject matter of the recent decision rendered by this Court in The Secretary,  

Ministry of Defence v Babita Puniya 16

. This Court issued the following  

directions:  

 ―69. We accordingly take on record the statement of policy  placed on the record in these proceedings by the Union  Government in the form of the letter dated 25 February 2019  and issue the following directions:  (i) The policy decision which has been taken by the  

Union Government allowing for the grant of PCs to  SSC women officers in all the ten streams where  women have been granted SSC in the Indian Army is  accepted subject to the following:  

(a) All serving women officers on SSC shall be  considered for the grant of PCs irrespective of any  of them having crossed fourteen years or, as the  case may be, twenty years of service;  

(b) The option shall be granted to all women  presently in service as SSC officers;  

(c) Women officers on SSC with more than fourteen  years of service who do not opt for being  considered for the grant of the PCs will be entitled  to continue in service until they attain twenty  years of pensionable service;  

(d) As a one-time measure, the benefit of continuing  in service until the attainment of pensionable  service shall also apply to all the existing SSC  officers with more than fourteen years of service  who are not appointed on PC;  

(e) The expression ―in various staff appointments  only‖ in para 5 and ―on staff appointments only‖ in  para 6 shall not be enforced;  

(f) SSC women officers with over twenty years of  service who are not granted PC shall retire on  pension in terms of the policy decision; and  

(g) At the stage of opting for the grant of PC, all the  choices for specialisation shall be available to  women officers on the same terms as for the male  SSC officers. Women SSC officers shall be

                                                      15

―ACRs‖  16

2020 (3) SCALE 712

PART C   

22    

entitled to exercise their options for being  considered for the grant of PCs on the same  terms as their male counterparts.  

(ii) We affirm the clarification which has been issued in  sub-para (i) of paragraph 61 of the impugned  judgment and order of the Delhi High Court; and  

(iii) SSC women officers who are granted PC in  pursuance of the above directions will be entitled to all  consequential benefits including promotion and  financial benefits. However, these benefits would be  made available to those officers in service or those  who had moved the Delhi High Court by filing the Writ  Petitions and those who had retired during the course  of the pendency of the proceedings.‖  

C Submissions   

 43. Mr Sanjay Jain, learned Additional Solicitor General for India prefaced his  

submissions by urging:  

(i) Sea-going duties in the Indian Navy unlike the Army or Air Force have a  

distinctive feature since there is no immediate return to base;  

(ii) The policy has been to exclude women from sea-going branches with  

the exception of the Logistics cadre;  

(iii) There are practical difficulties in allowing the induction of women SSC  

officers on PCs: the Indian Navy substantially operates on vessels of a  

Russian origin in which there is an absence of toilet facilities for  

women; and  

(iv) There is a possibility of certain branches involving sea-going duties  

being opened up for women officers on PCs in the near future as new  

ships are introduced into the Naval fleet.  

 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

PART C   

23    

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:  

(i) The decision of the Delhi High Court in Babita Puniya has been  

recently upheld by this Court;  

(ii) The provisions of Section 9(2) of the 1957 Act are not under challenge;  

(iii) The avenues for women which have opened up in the Indian Navy stem  

from the exercise of power under Section 9(2);  

(iv) Direct entry through PCs is not a matter in issue in the present appeals;  

and  

(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

PART C   

24    

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:  

(i) The restraint which is imposed on the eligibility of women for  

appointment or enrolment in the Indian Navy is lifted upon the issuance  

of a notification by the Central Government under Section 9(2) of the  

1957 Act;  

(ii) Upon the issuance of the notifications under Section 9(2) on 9 October  

1991 and 6 November 1998, the provisions contained in the 1963  

Regulations for the grant of PCs would apply proprio vigore;  

(iii) As a consequence, upon the issuance of a notification under Section  

9(2), the restrictions imposed in Regulations 122(2), 124(2) and 126(2)  

confining eligibility only to male officers would not apply since the  

Regulations are subservient to the parent statute;

PART C   

25    

(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:  

 Executive branch  - 13  

 Engineering branch  - 2  

 Electrical branch   - 2  

 Education branch   - 2  

(vii) The policy communication dated 25 February 1999 stipulated that the  

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

PART C   

26    

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:  

(i) The policy letter dated 26 September 2008, in so far as it is prospective  

and has been restricted to certain cadres/branches, is liable to be set

PART C   

27    

aside. In the Logistics cadre and the Education branch, male officers  

are inducted directly as PC officers. The absolute denial of  

consideration for the grant of PCs to SSC women officers is  

discriminatory in nature;  

(ii) The policy letter dated 26 September 2008 is ultra vires the policy letter  

dated 25 February 1999 and Regulation 203 of the 1963 Regulation.  

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.

PART C   

28    

48. Ms Haripriya Padmanabhan, learned counsel appearing for the respondent  

nos. two to six in Annie Nagaraja’s case urged:  

(i) SSC male officers have been granted PCs in various departments of  

the Navy. The grant of PCs to SSC male officers in certain cadres was  

halted following the induction of women on SSCs in those cadres. PCs,  

being granted to male officers in these specified streams must also be  

extended to women officers inducted on SSCs;  

(ii) The notifications issued by the Union Government in 1991 stipulated  

that the policy for the grant of PCs would be promulgated in 1997.  

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

PART C   

29    

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.  

PART D   

30    

D Preliminary Objection  

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 appeal 17

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 officers 18

. However, the Union of India sought the leave of  

the AFT to file an appeal before this Court 19

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 Anmal 20

.   

                                                      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

PART D   

31    

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:  

―30. Appeal to the Supreme Court. – (1) Subject to the  provisions of Section 31, an appeal shall lie to the Supreme  Court against the final decision or order of the Tribunal (other  than an order passed under Section 19):  Provided that such appeal is preferred within a period of  ninety days of the said decision or order.  Provided further that there shall be no appeal against an  interlocutory order of the Tribunal.‖     

Section 31 is in the following terms:  

―31. Leave to appeal.—(1) An appeal to the Supreme Court  shall lie with the leave of the Tribunal; and such leave shall  not be granted unless it is certified by the Tribunal that a point  of law of general public importance is involved in the decision,  or it appears to the Supreme Court that the point is one which  ought to be considered by that Court.     (2) An application to the Tribunal for leave to appeal to the  Supreme Court shall be made within a period of thirty days  beginning with the date of the decision of the Tribunal and an  application to the Supreme Court for leave shall be made  within a period of thirty days beginning with the date on which  the application for leave is refused by the Tribunal.    (3) An appeal shall be treated as pending until any application  for leave to appeal is disposed of and if leave to appeal is  granted, until the appeal is disposed of; and an application for  leave to appeal shall be treated as disposed of at the  expiration of the time within which it might have been made,  but it is not made within that time.‖  

The above provisions were interpreted by a Bench of two learned judges of this  

Court in Union of India v Brigadier PS Gill 21

. This Court held that there are two  

distinct routes for filing an appeal against a final order of the AFT (other than an  

order passed in the jurisdiction to punish for contempt). The first route is the grant  

                                                      21

(2012) 4 SCC 463

PART D   

32    

of leave by the Tribunal to file an appeal before the Supreme Court under Section  

31(1). The second route empowers this Court to permit the filing of an appeal  

against a final decision or order of the Tribunal if it appears to this Court that the  

point is one which ought to be considered by that Court. In this context, the Court  

held:  

―8. Section 31 of the Act extracted above specifically provides  for an appeal to the Supreme Court but stipulates two distinct  routes for such an appeal. The first route to this Court is  sanctioned by the Tribunal granting leave to file such an  appeal. Section 31(1) in no uncertain terms forbids grant of  leave to appeal to this Court unless the Tribunal certifies that a  point of law of general public importance is involved in the  decision. This implies that Section 31 does not create a  vested, indefeasible or absolute right of filing an appeal to this  Court against a final order or decision of the Tribunal to this  Court. Such an appeal must be preceded by the leave of the  Tribunal and such leave must in turn be preceded by a  certificate by the Tribunal that a point of law of general public  importance is involved in the appeal.    9. The second and the only other route to access this Court is  also found in Section 31(1) itself. The expression ―or it appears  to the Supreme Court that the point is one which ought to be  considered by that Court‖ empowers this Court to permit the  filing of an appeal against any such final decision or order of  the Tribunal.    10. A conjoint reading of Sections 30 and 31 can lead to only  one conclusion viz. there is no vested right of appeal against a  final order or decision of the Tribunal to this Court other than  those falling under Section 30(2) of the Act. The only mode to  bring up the matter to this Court in appeal is either by way of  certificate obtained from the Tribunal that decided the matter  or by obtaining leave of this Court under Section 31 for filing  an appeal depending upon whether this Court considers the  point involved in the case to be one that ought to be  considered by this Court.‖  

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

PART D   

33    

directly for the grant of leave to file an appeal under Section 31(1) read with  

Section 31(2). The Court held:  

―14. The scheme of Section 31 being that an application for  grant of a certificate must first be moved before the Tribunal,  before the aggrieved party can approach this Court for the  grant of leave to file an appeal. The purpose underlying the  provision appears to be that if the Tribunal itself grants a  certificate of fitness for filing an appeal, it would be  unnecessary for the aggrieved party to approach this Court  for a leave to file such an appeal. An appeal by certificate  would then be maintainable as a matter of right in view of  Section 30 which uses the expression ―an appeal shall lie to  the Supreme Court‖. That appears to us to be the true legal  position on a plain reading of the provisions of Sections 30  and 31.‖    

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.

PART E   

34    

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:  

―14. While investigating and precisely ascertaining the limits  

of inroads or encroachments made by legislation enacted in  

exercise of power conferred by Article 33, on the guaranteed  

fundamental rights to all citizens of this country without  

distinction, in respect of armed personnel, the court should be  

vigilant to hold the balance between two conflicting public  

interests; namely necessity of discipline in armed personnel  

to preserve national security at any cost, because that itself  

would ensure enjoyment of fundamental rights by others, and  

                                                      22

(1982) 3 SCC 140

PART E   

35    

the denial to those responsible for national security of these  

very fundamental rights which are inseparable adjuncts of  

civilised life…‖  

   The Court held that the public interest in the maintenance and preparedness of  

the Armed Forces of the nation has to be weighed with an equally compelling  

public interest in balancing the abrogation or restriction of fundamental rights of  

the officers in the Armed Forces. For this reason, Article 33 specifies that any  

restriction imposed must be by law and in order to ensure the proper discharge of  

their duties and the maintenance of discipline among them. The Court rejected  

the challenge and held:  

―…Article 33 does not obligate that Parliament must  

specifically adumbrate each fundamental right enshrined in  

Part III and to specify in the law enacted in exercise of the  

power conferred by Article 33 the degree of restriction or total  

abrogation of each right. That would be reading into Article 33  

a requirement which it does not enjoin…it is not possible to  

accept the submission that the law prescribing procedure for  

trial of offences by court martial must satisfy the requirement  

of Article 21 because to the extent the procedure is  

prescribed by law and if it stands in derogation of Article 21,  

to that extent Article 21 in its application to the Armed Forces  

is modified by enactment of the procedure in the Army Act  

itself.‖  

 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

PART E   

36    

learned Chief Justice then was), speaking for a Constitution Bench of this Court  

held:  

―A plain reading thus would reveal that the extent of  

restrictions necessary to be imposed on any of the  

fundamental rights in their application to the armed forces and  

the forces charged with the maintenance of public order for  

the purpose of ensuring proper discharge of their duties and  

maintenance of discipline among them would necessarily  

depend upon the prevailing situation at a given point of time  

and it would be inadvisable to encase it in a rigid statutory  

formula. The Constitution-makers were obviously anxious  

that no more restrictions should be placed than are  

absolutely necessary for ensuring proper discharge of  

duties and the maintenance of discipline amongst the  

armed force personnel and therefore Article 33  

empowered Parliament to restrict or abridge within  

permissible extent, the rights conferred under Part III of  

the Constitution insofar as the armed force personnel are  

concerned.‖  

(Emphasis supplied)  

   The Court noted that restrictions imposed upon fundamental rights in exercise of  

the power conferred by Article 33 must be ―absolutely necessary for ensuring  

proper discharge of duties and the maintenance of discipline‖. The Court held:  

―…Parliament was therefore within its power under Article 33  

to enact Section 21 laying down to what extent the Central  

Government may restrict the Fundamental Rights under  

clauses (a), (b) and (c) of Article 19 (1), of any person subject  

to the Army Act, 1950, every such person being clearly a  

member of the Armed Forces… The guideline for determining  

as to which restrictions should be considered necessary by  

the Central Government within the permissible extent  

determined by Parliament is provided in Article 33 itself,  

namely, that the restrictions should be such as are necessary  

for ensuring the proper discharge of their duties by the  

members of the Armed Forces and the maintenance of  

discipline among them. The Central Government has to keep  

this guideline before it in exercising the power of imposing  

restrictions under Section 21 …‖  

PART E   

37    

This Court, in upholding Section 21 of the 1950 Act, held that the exercise of  

such power must necessarily conform to the restrictions inherent in Article 33 of  

Constitution. The nexus requirement in Article 33 was affirmed by this Court in  

Union of India v LD Balam Singh 24

and Mohd. Yunus Khan v State of UP. 25

 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.   

                                                      24

(2002) 9 SCC 73  25

(2010) 10 SCC 539

PART E   

38    

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

PART E   

39    

the 1963 Rules lays down the norms for the grant of PCs. The grant of PCs is  

made subject to:  

(i) The availability of vacancies in the stabilised cadre;  

(ii) Suitability of the candidate; and  

(iii) A recommendation by the Chief of Naval Staff.  

 64. 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.   

 65. 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)

PART E   

40    

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 urged by Mr Sanjay Jain, learned Additional  

Solicitor General 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.  

 66. 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

PART E   

41    

advertisement clearly stipulated that based on their performance and the  

requirements of service, deserving officers ―may also be considered for  

Permanent Commission.‖ Subsequent employment notices issued in 2003-4 did  

not contain such a stipulation. The employment notice of July 2002 was not in  

conflict with the provisions contained in Regulations 203. Regulation 203 uses  

the phrase ―from time to time‖, indicating thereby that it was open to the  

competent authority to determine the grant of PCs to the SSC officers based on  

the availability of vacancies, suitably and the recommendation of the Chief of the  

Naval Staff. Hence, in July 2002, when the Navy invited applications for SSCs in  

stipulated branches, it held out a clear representation that deserving cases may  

be considered for the grant of PCs.  

 67. 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. The AFT concluded that while  

a policy framed by the government is amenable to change or alteration, decision  

making by the government is subject to the norms of reasonableness and a non-

arbitrary exercise of power. The AFT noted:  

―…the said record reveals that the Chairman of the COSC  never recommended that the policy should apply to  persons who have subsequently been recruited and shall  not apply to in-service SSC Officers…

PART E   

42    

 The aforesaid record pertaining to the policy-decision  

dated 26 th  September 2008 does not reveal consideration  

of the existing policy-decision dated 25 February 1999. No  

deliberation, as it appears from the aforesaid record, was  

made as to why the existing policy relating to the grant of  

PC to SSC officers, irrespective of the gender, as well as  

the branches/cadres requires modification/change. The  

said record reveals that even the Raksha Mantri was kept  

in the dark about the existing policy-decision dated 25  

February 1999. Though the respondent-authorities are  

free to change their earlier policy, the reason for the  

change must be reflected on the record pertaining to such  

change, so also the consideration as well as the  

deliberation on the existing policy, which as discussed  

above, are absent in the case at hand‖  

   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.   

 We must note at this stage that no submission has been urged on behalf of the  

Union of India by Mr Sanjay Jain, learned Additional Solicitor General  

controverting the above findings of the AFT. Quite apart from this however, there  

is a more fundamental reason why a finding in regard to the invalidity of the policy  

letter dated 26 September 2008 in relation to the Navy rests on a sure  

foundation. The 1963 Regulations contain specific provisions in regard to the  

grant of SSCs and for the grant of PCs. As we have noted, 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

PART F   

43    

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.   

 F The stereotypical sailor  

 68. 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

PART F   

44    

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:   

―The submissions advanced in the note tendered to this  

Court are based on sex stereotypes premised on  

assumptions about socially ascribed roles of gender which  

discriminate against women. Underlying the statement  

that it is a ―greater challenge‖ for women officers to meet  

the hazards of service ―owing to their prolonged absence  

during pregnancy, motherhood and domestic obligations  

towards their children and families‖ is a strong stereotype  

which assumes that domestic obligations rest solely on  

women. Reliance on the ―inherent physiological  

differences between men and women‖ rests in a deeply  

entrenched stereotypical and constitutionally flawed  

notion that women are the ―weaker‖ sex and may not  

undertake tasks that are ―too arduous‖ for them.  

Arguments founded on the physical strengths and  

weaknesses of men and women and on assumptions  

about women in the social context of marriage and family

PART F   

45    

do not constitute a constitutionally valid basis for denying  

equal opportunity to women officers…  

Such a line of submission is disturbing as it ignores the  

solemn constitutional values which every institution in the  

nation is bound to uphold and facilitate… To cast  

aspersion on their abilities on the ground of gender is an  

affront not only to their dignity as women but to the dignity  

of the members of the Indian Army – men and women –  

who serve as equal citizens in a common mission.‖  

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:  

―There is also a strong contemporaneous rationale for not  

considering women as sailors in the Indian Navy as the  

Navy ships of today are not structured nor have the  

infrastructure to accommodate women sailors alongside  

men sailors. There is a common barrack and a common  

bathroom, built as such that no temporary arrangement is  

possible to be made as they are built on of Russian  

models where there is no provision made for women as  

sailors. Navy is endeavoring to create such  

infrastructure…it clearly emerges that women are kept  

away from sea-going duties purely on operational grounds  

and not on the grounds of gender discrimination.‖  

 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:

PART F   

46    

(i) Certain avenues such as sea-sailing duties are ill-suited for women  

officers as there is no return to the base, unlike in the Army and the Air  

Force; and  

(ii) In vessels of a Russian origin which are deployed by the Indian Navy,  

no provision has been made for women as sailors and there are no  

bathrooms to accommodate them.   

 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

PART F   

47    

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:  

1 Lieutenant Sandhya Suri Served on board the warship INS  

Jyoti   

2 Commander Reena  

Magdalene   

Served onboard INS Sujatha  

(2002); She received the Chief of  

Naval Staff commendation and  

was awarded the Best Instructor  

award at INS Valsura (1998)   

3 Commander Suhas  

Patankar  

Received CinC Commendation as  

well as the Best Instructor Award  

(INS Shivaji)  

4 Commander Anuradha  

Kanchi and Commander  

Babita Rawat  

Received the Chief of Naval Staff  

commendation.  

5 Commanders Shivani,  

Rajeshwari Kori and  

Received the Vice-Chief of Naval  

Staff commendation.

PART G   

48    

Bhawna Salaria  

Naval officers Anuradha Chauhan, Anupama Chauhan, Pawan  

Preet Maan, Shilpa, Prabha Lal, Savitri Panwar, Pushpa Pandey  

and Rupali Rohatgi were all awarded the CinC Commendation.    

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

PART G   

49    

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.  

PART G   

50    

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  

2008 26

. 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).

PART G   

51    

reinstated and have filed an application seeking a modification of the order 27

.  

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

PART G   

52    

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:  

(i) While serving women SSC officers are being denied extensions in their  

SSC tenure or the grant of PCs on the ground that the Logistics cadre  

is ‗overborne‘, the Navy is recruiting fresh hands in the same cadre;  

(ii) Nearly 160 men were recruited in the Logistics cadre over the previous  

ten years directly on PCs, out of whom between 25 and 30 officers  

were recruited over the previous five years;  

(iii) The Navy has defended this recruitment by claiming that fresh recruits  

―maintain the youthful profile of the force‖. This contention cannot be  

reconciled with the fact that the Navy is offering re-employment to  

superannuated male officers (aged 52 years and above) at the level of

PART G   

53    

Commanders in the Logistics cadre on account of the shortage of  

personnel;  

(iv) Re-employment of such special duty officers is permissible only where  

there is a shortage of personnel in the cadre in question, which is  

evident from a policy letter dated 24 June 2013;  

(v) Though, there is no separate Logistics cadre for special duty officers,  

yet, an informal quota has been carved out for male officers to continue  

in service, even after superannuation;  

(vi) Since the special duty officers have risen from the ranks, they can  

tenant only certain billets within the Logistics cadre. In contrast, women   

officers in the Logistics cadre can tenant those billets as well as others,  

if required. They have been uniformly trained as officers and have  

passed various qualifying examinations during employment. Yet  

ironically, it is women officers who are required to exit as a result of the  

‗cadre saturation‘;  

(vii) Despite the Navy being required to consider all serving women SSC  

personnel for the grant of PC, not a single SSC woman officer in the  

Logistics cadre  from any batch has been considered till date; and  

(viii) If the Navy had considered the application of every Logistics officer on  

their own merit, there would have been no organizational difficulty of  

saturation faced in any cadre. Yet, the Navy had continued to insist that  

it is only the policy letter dated 26 September 2008 which will govern all  

cases for the grant of PCs, though it was struck down by both the Delhi  

High Court as well as the AFT.

PART G   

54    

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:  

(i) Annie Nagaraja’s case involves seventeen officers. From the 2002-03  

batch (Priya Khurana’s case), there are seven officers before this  

Court who have secured protection against release. Altogether before  

this Court, there are twenty one serving officers including ten retired  

officers (including a few men) who are seeking relief;  

(ii) Of the serving officers in Annie Nagaraja’s case, most have rendered  

services in excess of twenty years. Officers in Priya Khurana’s case  

have rendered continuous service of eighteen years till date; and  

(iii) About thirty officers are involved in pending litigation before the AFT  

from batches subsequent to the officers in Priya Khurana’s case. Of  

them, a few officers are moving the courts agitating their grievance in  

regard to the non-consideration of their entitlement for the grant of PCs.  

 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

PART G   

55    

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:  

CADRE STRENGTH IN THE INDIAN NAVY  

Cadre/  Branch  

Stabilised  Cadre (a)  

Temp  Sanction  (b)  

Total Sanction   (a) +(b)  

Officers  in- service   

Cadre  Status   

Officers  - Court  Order      

Logistics  485 42 527 574 + 57 31  

Education  343 5 348 345 Minus 03 31  

Naval  Constructor   

279 108 387 399 +11 11  

ATC  88 0 88 110 +22 04  

   87. The second chart presents a comparative analysis of inductions and  

retirements in the past three years:  

Year  Inductions  Retirements   

2017 15 20 (13 PC + 07 SSC)  

2018 12 24 (08 PC + 16 SSC)  

2019 26 27 (05 PC + 22 SSC)  

Total  53 71  

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:  

Cadre   Govt. Sanction  Held Strength    

SD (Stores) 28 27  

SD (Writer)  44 38

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56    

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:  

(i) Neither the judgment of the Delhi High Court nor the judgment of the  

AFT was stayed during the pendency of these appeals. The Union  

Government and the Naval authorities could not have proceeded on the  

misconceived basis that the mere pendency of the present appeals was  

a license to not comply with the directions contained in the judgments  

of the High Court and the AFT. As a result of the failure of the  

authorities to consider the SSC officers for the grant of PCs, their status  

continued in a state of uncertainty, effectively depriving them not only of  

the benefits which would accrue to them in terms of career  

advancement but also the ability to occupy progressively higher  

positions in the hierarchy upon the grant of PCs;  

(ii) While the Union Government and the Naval authorities did not consider  

any SSC women officers for the grant of PCs, it has now claimed that  

the cadre is saturated. This position has transpired precisely as a result  

of the failure to implement the directions of the Delhi High Court and of  

the AFT, while at the same time continuing to make recruitments which  

is now held up as a ground for the cadres being saturated;  

(iii) The right to be considered for the grant of PCs arose under the policy  

dated 25 February 1999. The policy letter dated 26 September 2008  

was issued oblivious to the earlier policy document and had the effect  

of denying benefits to SSC officers who were in saddle, besides

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restricting the cadres/branches in which SSC officers could be granted  

PCs. Though the policy letter dated 26 September 2008 was declared  

to be invalid by the High Court and by the AFT, the authorities have  

relied upon either the absence of vacancies or the prospective  

application of the policy letter dated 26 September 2008 to deny relief  

to SSC officers; and   

(iv) If the Naval authorities had considered SSC officers for the grant of  

PCs in terms of the policy letter dated 25 February 1999, that would  

have obviated a situation of saturation of cadres with which the SSC  

officers are now sought to be confronted as a ground to deny them  

relief to which they were legitimately entitled in terms of the policy dated  

25 February 1999;  

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:  

(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.  

 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

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58    

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:

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59    

Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar,  

Commander Sumita Balooni and Commander E Prasanna.  

 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.  

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60    

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.

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61    

H 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 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

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62    

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

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63    

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.

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64    

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.