Top Court directs constitution of Selection Board to consider plea of ex-Short Service Commissioned Officer in JAG Branch of Indian Navy seeking grant of permanent commission
Chief Justice D.Y. Chandrachud & Justice Hima Kohli [26-02-2024]

Read Order: Cdr Seema Chaudhary v. Union of India and Others [SC- Review Petition (Civil) No 1036 of 2023]

Tulip Kanth

New Delhi, February 28, 2024:Exercising jurisdiction under Article 142 of the Constitution, the Supreme Court has asked the Authorities to constitute a selection board to consider the petition of an ex-Short Service Commissioned Officer in the JAG Branch of Indian Navy seeking grant of permanent commission.

As per the facts of the case, the petitioner was commissioned in the Indian Navy as a Short Service Commissioned Officer (SSCO) in the Judge Advocate Generals’ (JAG) Branch of the Indian Navy in 2007. In 2009, she was promoted as a Lieutenant and in 2012 as a Lieutenant Commander. During the course of her service, she was granted an extension in November 2016 for a period of two years and, thereafter, for an equivalent duration in August 2018. On August 5,2020, the petitioner was informed that she would stand released from service on August 5, 2021.

The judgment of this Court in Union of India vs Lieutenant Commander Annie Nagaraja [LQ/SC/2020/376]was rendered by this Court on March 17, 2020 wherein as a one-time measure, all SSC women officers who were before the High Court and AFT who are not granted PCs were deemed to have completed substantive qualifying service for the grant of pension and were held entitled to all consequential benefits

The petitioner was an officer who was recruited before the Policy Letter (PL) of  September 26, 2008 was issued. The PL stipulated that while women SSCOs would be considered for grant of PC in stipulated branches (JAG, Education and Naval Architecture), the letter would have prospective effect. It was as a result of the application of the PL that the petitioner was initially not considered to be eligible for the grant of PC. The Top Court had noted that the statutory bar on the enrolment of women in the Indian Navy was lifted in terms of the notifications issued by the Union Government. Moreover, the Apex Court had specifically directed that the PL making it prospective and restricting it to specified cadres, would stand quashed. It was directed that all SSCOs in the Education, Law and Logistic Cadres who were “presently in service”, would be considered for the grant of PC.

The petitioner was considered for the grant of PC after the judgment of this Court, but had been denied the same on the ground that there were no vacancies.The petitioner had earlier moved the Top Court under Article 32 of the Constitution, but was relegated to the Armed Forces Tribunal (AFT). The batch of civil appeals including the above civil appeal by the petitioner came to be disposed of by this Court by its order dated October 20, 2022. From the judgment of this Court, it had emerged that the principal submission was that the AFT had relied on certain information which had been placed in a sealed cover to which the officers before it were not privy. Based on the submission, this Court restored the proceedings back to the AFT.

The senior counsel appearing on behalf of the petitioner submitted that inadvertently the specific facts of the case of the petitioner were not drawn to the attention of the Court. It was submitted that the issue pertaining to the breach of the principles of natural justice did not arise in the case of the review petitioner since her case stood on a distinct foundation.

The counsel appearing for the Naval authorities and the Union of India did not dispute the factual position that the issue which was dealt with in the judgment of this Court did not arise in the appeal which was filed by the petitioner against the judgment of the AFT.

“That being the position, we are of the view that the ends of justice would require that the order which was passed by this Court on 20 October 2022 in Civil Appeal No 2216 of 2022 pertaining to the petitioner, should be recalled. We order accordingly. We have accordingly heard the civil appeal on merits in order to ensure that a final resolution is brought to the matter”, the Division Bench of Chief Justice D.Y. Chandrachud & Justice Hima Kohli held.

The Top Court found merit in the challenge to the direction which had been issued by the AFT requiring that the candidature of the petitioner for the grant of PC should be dealt with the batches of 2011 and 2014.

“To do so would amount to introducing a condition which was not a part of the judgment of this Court in Lieutenant Commander Annie Nagaraja. The binding judgment, which has to be enforced is the decision of this Court in Lieutenant Commander Annie Nagaraja. Any directions de-hors the judgment of the Court could not obviously be issued. Though the case of the petitioner has been considered after the decision in Lieutenant Commander Annie Nagaraja, there is a serious element of prejudice which has been caused to the petitioner which must be rectified so as to enforce the final directions of this Court”, it held.

The Bench directed that the case of the petitioner for the grant of PC should be considered afresh by reconvening a Selection Board. The Selection Board would consider the case of the petitioner on a stand-alone basis since it is common ground that she was the only serving JAG Branch officer of the 2007 batch whose case for the grant of PC was required to be considered. The consideration by the Selection Board shall take place uninfluenced by any previous consideration of her case for PC and uninfluenced by any observations contained in the order of the AFT, the Top Court ordered.

It was clarified by the Bench that in the event that pursuant to the directions of the AFT, if a proportional increase in the vacancies is required to be created to accommodate the petitioner, this shall be carried out without creating any precedent for the future. “We have issued this direction under Article 142 of the Constitution so as to ensure that while no other officer is displaced, a long standing injustice to the petitioner is duly rectified”, the Bench held while further holding that the exercise of considering the petitioner afresh for PC shall be carried out on or beforeApril 15, 2024.