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Permanent commission: SC asks women Navy officers to pursue case before tribunal
The court made the observations while considering an application by Navy women officers who claimed to be qualified for permanent commission.
The Supreme Court in a recent order has refused to monitor claims of women short service commission (SSC) officers who were denied permanent commission in the defence forces, directing them to approach the Armed Forces Tribunal (AFT) where such matters requiring an “in-depth consideration” can be effectively considered.
Directing a batch of women Indian Navy SSC officers to pursue their remedies before the tribunal, a bench headed by justice Surya Kant further directed the tribunal to accord an out-of-turn hearing to the lady officers, considering their two decade-long fight for parity with their male counterparts.
The bench in its order of December 4 said, “Having regard to the fact that the applicants are asserting their claims, especially towards parity with their male counterparts for the last more than two decades, we request the tribunal to accord out of turn hearing and make an endeavour to decide the Original Application (OA) as early as possible, and preferably within four months from the date of filing of the same.”
The court made the observations while considering an application by Navy women officers who claimed to be qualified for permanent commission and sought implementation of the top court’s March 17, 2020, judgment directing the Navy to consider them at par with male officers in matters of grant of permanent commission (PC) and other consequential benefits.
The officers, represented by advocates Rakesh Kumar and Pooja Dhar, argued the application seeking intervention of the court to implement its own decision. By the March 2020 decision, the court directed the Indian Navy to treat women short service commission (SSC) officers at par with their male counterparts. Additionally, the same order said, “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.”
The Navy, represented by Attorney General R Venkataramani, informed the bench that the Navy had considered the representation submitted by the applicants before the court and passed an order on January 6, 2023. He said that the issues cannot be re-agitated before the top court as similar pleas are pending before the AFT.
The bench observed, “This order of January 6, 2023, is a fresh cause of action that needs to be challenged in the AFT. How can an application be maintained before this court. In these matters, we cannot invoke even Article 142 of the Constitution (Supreme Court’s extraordinary power to issue any direction to achieve complete justice).”
Kumar said, “Similar matters filed by women permanent commission officers from the Army have been entertained by this court. It is a question of comparing benchmarks vis-a-vis male officers.” The court reasoned that if the matter was about the Navy not following the benchmarks laid down by the top court, a contempt petition was maintainable and not an application.
“It goes without saying that the questions like the benchmark for promotion, the cut-off date for such a benchmark, the mode of evaluation of service record, evaluation of overall suitability, inter-se placement in seniority and disparity, if any, between male and female officers are various factors or issues that would require in-depth consideration by the tribunal. There are, thus, mixed questions of law and fact involved and for effective determination thereof, the appropriate remedy would be to approach the AFT,” the court held.
Noting the time which had already elapsed for the women officers to now approach the AFT, the court directed the tribunal that in the event the applicants file the OA within four weeks, “no objection regarding expiry of limitation shall be entertained” and their applications will be decided on merits.
Venkataramani informed the bench that several women officers had qualified for PC and the set of applicants who had approached the court did not achieve that benchmark. The bench observed, “Suppose there is a benchmark and you dont achieve that benchmark, in that case, you will have to challenge that too in the AFT.”
The issue of gender discrimination in the defence forces has been flagged by the judiciary on several occasions in the past, The first move in this regard was made by one Babita Puniya in 2002 who filed a writ petition in the Delhi high court challenging the Army’s discriminatory policy. Later in 2010, 17 Navy SSC officers led by Annie Nagaraja filed petitions in the Delhi HC. This led to the first order on gender equality with the Delhi high court decision in Babita Puniya (2010) and Annie Nagaraja (2015) paving the way for women SSC officers to be treated at par with male counterparts in grant of PC. These decisions were separately challenged by the Army and Navy before the top court which upheld the HC rulings.
A year later, the top court passed yet another significant decision in this regard in Lt Col Nitisha case (2021), holding the Army’s criteria to grant PC to women SSC officers to be biased and discriminatory following which benchmarks were revised and the women officers got a fair and equal opportunity to be granted PC and rise to higher ranks in the Army.
