Permanent Commission- Recourse to Article 32 Worrying Us: Supreme Court Relegates Individual Grievances To Armed Forces Tribunal

The Supreme Court on Tuesday relegated to the Armed Forces Tribunal (AFT) the individual male and female naval officers challenging the rejection of their claim for the grant of Permanent Commission, or in the alternative, seeking pensionary benefits in terms of the directions of this court in Annie Nagaraja's case."Since the petitioners have already have an efficacious remedy before the AFT, we relegate them to the pursuit of proceedings before the Tribunal", directed the bench of Justices D. Y. Chandrachud and M. R. Shah."This batch of cases arises after the decision of this court in Annie Nagaraja v. Union of India ((where the Navy was directed to consider women SSC officers for grant of PC). In addition, the petitioners have also sought to place reliance on the decision of this Court in Lt. Col. Nitisha (which struck down the evaluation criteria adopted by the Indian Army to grant permanent commission for women SSC officers as 'arbitrary and irrational). Without this court expressing any view on the merits of the claims made by the petitioners in these proceedings, we grant liberty to them to move the Armed Forces Tribunal", said the bench as regards some petitioners.Since some of the petitioners have instituted proceedings before different benches of the Armed Forces Tribunal, the bench directed that all the OAs be consolidated and heard before the principal bench at New Delhi, together with all other similar matters raising the same issue. The AFT is requested to complete the disposal of the OAs within a period of two months of the date of receipt of the certified copy of the order; the bench directed that the AFT shall do so on or before October 31. The petitioners would be at liberty to amend the pending OAs or file OAs, as the case may be, so as to seek the relief which have been sought in their writ petitions under Article 32. The bench required the said to be carried out within two weeks.The bench noted that during the pendency of these proceedings, this court by the interim order dated December 30, 2020 has protected the services of the petitioners. "The interim protection enuring to the benefit of the petitioners shall continue to hold the field until the OAs are disposed off. The AFT shall do so on or before October 31", ordered the bench.Noting that the Court has relegated the petitioners to the Armed Forces Tribunal, the bench added that it is not expressing any view on the merits of the claims raised by the petitioners and that rights and contentions of the parties will be decided by the Tribunal.The two submissions made by Senior Advocate C. U. Singh, for 3 male naval officers, were-1. If the vacancies are more than the number of officers under consideration for the grant of PC, inter se merit fades into the background and only suitability is to adjudged; and 2. Originally, the grant of PC in the navy was governed by Navy Order (Special) 05/05 which was modified on October 28, 2009 to provide for the Initiating Officer to record suitability for PC, setting out the manner in which the recommendation was to be endorsed by the IO. The eligibility for the grant of PC in their cadre/department to be from 2009, the petitioners (having appointed in 2003, 2004 and 2005) suffered from the same vice of discrimination as was dealt with by the Supreme Court in Lt. Col. Nitisha's case in context of women officers, that either their PC recommendation was not filled in by their Initiating Officer or if filled in, the same was done casually. "In the normal course, the Initiating Officer would give recommendation for PC only to those who were eligible, unlike those us appointed in 2003, 2004 and 2005. The eligibility for grant of PC came only in 2009. None of the petitioners fell under this category of 2009 onwards. But all officers appointed 2003 onwards were adjudged as a block, which also included those of 2009 and onwards. What the consequence of one having no recommendation or a casually endorsed recommendation was that when inter se merit is adjudged, if one has a recommendation and another does not, it weighs against the latter. But we have completed 18 years' service! And then in 2015, further instructions were given for the creation of the merit list based on a bell-curve which is deleterious and prejudicial towards us", explained Mr. Singh.Senior Advocate Hufeza Ahmedi, for another set of petitioners, pointed out the discrimination meted out to male officers in so far as pension is concerned- "Navy adopted a policy of discrimination across the board- if women were denied PC in certain cadres/departments, men were also subject to the same discrimination...In Annie Nagaraja, Your Lordships, under Article 142, said that only women officers would have pensionary rights. But the same discrimination (of denial of PC) has been meted out to male officers and they are deprived of pension!"Certain other petitioners, represented by Senior Advocate P. S. Patwalia, happened to be women officers who have been...

Permanent Commission- Recourse to Article 32 Worrying Us: Supreme Court Relegates Individual Grievances To Armed Forces Tribunal

Mehal Jain

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