# UNION OF INDIA & ORS v. LT. CDR. ANNIE NAGARAJA & ORS

- **Citation:** [2020] 10 S.C.R. 433
- **Court:** Supreme Court of India
- **Decided:** 2020-03-17
- **Case number:** Civil Appeal No. 2182-87 of 2020
- **Bench:** Dr. Dhananjaya Y. Chandrachud, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-lt-cdr-annie-nagaraja-ors-34470
- **Pages:** 64

## Headnote

Navy Act, 1957 - s.9(2) - Women Short Service Commissioned
(SSC) Officers - Grant of Permanent Commissions (PCs) - Right to
be considered for - Held: Statutory bar on the engagement or
enrolment of women in the Indian Navy was lifted to the extent
envisaged in notifications dated 09.10.1991 and 06.11.1998 issued
by Union Government u/s.9(2), 1957 Act - Right to be considered
for the grant of PCs arises from the policy letter dated 25.02.1999
r/w Regulation 203, Chapter IX, Part III, 1963 Regulations - Further,
policy decision dated 26.09.2008 granted PCs to SSC women
officers in Army, Navy and Air Force - Stipulation therein making it
prospective and restricting its application to specified cadres/
branches of the Indian Navy not to be enforced - Implementation
guidelines dated 03.12.2008, to the extent they are made prospective
and restricted to specified cadres are quashed and set aside - All
SSC officers in Education, Law and Logistics cadres presently in
service to be considered for the grant of PCs - Women SSC officers
of Air Traffic Controller (ATC) cadre in Annie Nagaraja's case not
entitled to consideration for the grant of PCs - As a one-time
measure, SSC officers in ATC cadre are entitled to pensionary
benefits- Respondent nos.2 to 6, in addition to the grant of
pensionary benefits, entitled to compensation of Rs. 25 lakhs each
- SSC officers in ATC cadre in Priya Khurana's case inducted in
pursuance of specific representation in the advertisements that they
would be considered for the grant of PCs, to be considered in terms
as directed - Further directions issued - Naval Ceremonial,
Conditions of Service and Miscellaneous Regulations 1963 -
Regulations 122, 124, 126, 203 - Constitution of India - Arts. 33,
142 - Ex turpi causa non oritur actio.
[2020] 10 S.C.R. 433
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Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 1963 - Regulation 203 (1) - Grant of PCs - Factors -
Held: Regulation 203 (1) conditions the grant of PCs to three factors:
availability of vacancies in the stabilised cadre, consideration of
suitability, and a recommendation of the Chief of Naval Staff.
Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 1963 - Regulations 122 (14) and 203 - Comparison
between - Discussed.
Notification dated 09.10.1991 was issued by Union of India
making women eligible for appointment as officers of Indian Navy
in three cadres/branches. On 1 July 1992, the intake of thirtyfive officers on SSCs was sanctioned in the ATC cadre stipulating
that no PCs would be granted (for both men and women) in the
ATC cadre. In 1998, the stipulation on the tenure of seven years
was extended to ten years and to fourteen years in 2002.
Notification dated 06.11.1998 made women eligible for
appointment as officers of Indian Navy in all branches. The policy
decision dated 25.02.1999 (referring to the two earlier letters
dated 20.12.1991) granted PCs to all SSC officers including
women in accordance with Regulation 203, 1963 Regulations.
Further, another policy decision dated 26.09.2008 granted PCs
to SSC officers in all three branches of Armed Forces. However,
it was restricted to certain categories and operated prospectively
for future batches inducted on SSCs after January 2009.
Implementation guidelines issued for selecting SSC officers for
grant of PCs in the Navy were also prospective and restricted to
specified cadres. In Annie Nagaraja's case, seventeen women
SSC officers (inducted between 1992 and 2001) before the Delhi
High Court challenged not being considered for the grant of PCs
despite completing fourteen years of service. High Court inter
alia directed offering of PCs to SSC officers who had opted for
but were not granted PCs and had not retired at the time of the
filing of the writ petitions. Reinstatement was directed for
petitioners who had attained the age of superannuation prior to
the filing of writ petitions, subject to the

## Text

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UNION OF INDIA & ORS.
v.
LT. CDR. ANNIE NAGARAJA & ORS.
(Civil Appeal No. 2182-87 of 2020)
MARCH 17, 2020
[DR. DHANANJAYA Y. CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Navy Act, 1957 - s.9(2) - Women Short Service Commissioned
(SSC) Officers - Grant of Permanent Commissions (PCs) - Right to
be considered for - Held: Statutory bar on the engagement or
enrolment of women in the Indian Navy was lifted to the extent
envisaged in notifications dated 09.10.1991 and 06.11.1998 issued
by Union Government u/s.9(2), 1957 Act - Right to be considered
for the grant of PCs arises from the policy letter dated 25.02.1999
r/w Regulation 203, Chapter IX, Part III, 1963 Regulations - Further,
policy decision dated 26.09.2008 granted PCs to SSC women
officers in Army, Navy and Air Force - Stipulation therein making it
prospective and restricting its application to specified cadres/
branches of the Indian Navy not to be enforced - Implementation
guidelines dated 03.12.2008, to the extent they are made prospective
and restricted to specified cadres are quashed and set aside - All
SSC officers in Education, Law and Logistics cadres presently in
service to be considered for the grant of PCs - Women SSC officers
of Air Traffic Controller (ATC) cadre in Annie Nagaraja's case not
entitled to consideration for the grant of PCs - As a one-time
measure, SSC officers in ATC cadre are entitled to pensionary
benefits- Respondent nos.2 to 6, in addition to the grant of
pensionary benefits, entitled to compensation of Rs. 25 lakhs each
- SSC officers in ATC cadre in Priya Khurana's case inducted in
pursuance of specific representation in the advertisements that they
would be considered for the grant of PCs, to be considered in terms
as directed - Further directions issued - Naval Ceremonial,
Conditions of Service and Miscellaneous Regulations 1963 -
Regulations 122, 124, 126, 203 - Constitution of India - Arts. 33,
142 - Ex turpi causa non oritur actio.
[2020] 10 S.C.R. 433
433
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 1963 - Regulation 203 (1) - Grant of PCs - Factors -
Held: Regulation 203 (1) conditions the grant of PCs to three factors:
availability of vacancies in the stabilised cadre, consideration of
suitability, and a recommendation of the Chief of Naval Staff.
Naval Ceremonial, Conditions of Service and Miscellaneous
Regulations 1963 - Regulations 122 (14) and 203 - Comparison
between - Discussed.
Notification dated 09.10.1991 was issued by Union of India
making women eligible for appointment as officers of Indian Navy
in three cadres/branches. On 1 July 1992, the intake of thirtyfive officers on SSCs was sanctioned in the ATC cadre stipulating
that no PCs would be granted (for both men and women) in the
ATC cadre. In 1998, the stipulation on the tenure of seven years
was extended to ten years and to fourteen years in 2002.
Notification dated 06.11.1998 made women eligible for
appointment as officers of Indian Navy in all branches. The policy
decision dated 25.02.1999 (referring to the two earlier letters
dated 20.12.1991) granted PCs to all SSC officers including
women in accordance with Regulation 203, 1963 Regulations.
Further, another policy decision dated 26.09.2008 granted PCs
to SSC officers in all three branches of Armed Forces. However,
it was restricted to certain categories and operated prospectively
for future batches inducted on SSCs after January 2009.
Implementation guidelines issued for selecting SSC officers for
grant of PCs in the Navy were also prospective and restricted to
specified cadres. In Annie Nagaraja's case, seventeen women
SSC officers (inducted between 1992 and 2001) before the Delhi
High Court challenged not being considered for the grant of PCs
despite completing fourteen years of service. High Court inter
alia directed offering of PCs to SSC officers who had opted for
but were not granted PCs and had not retired at the time of the
filing of the writ petitions. Reinstatement was directed for
petitioners who had attained the age of superannuation prior to
the filing of writ petitions, subject to the decision of Supreme
Court in Babita Puniya case which was pending. In Priya Khurana's
case, Armed Forces Tribunal (AFT) in a batch of six Original
Applications (OAs) by seven SSC officers inter alia declared the
policy letter dated 26.09.2008 as invalid and directed
reconsideration of the requests for the grant of PCs. Hence, the
present appeals.
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Disposing of the appeals, the Court
HELD: 1.1 Statutory and policy framework
Section 9 of the Navy Act 1957 deals with the eligibility for
appointment or enrolment in the Indian Navy. 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 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. [Paras 10, 11][452-F; 453-C-D]
1.2 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.
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".
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 for Permanent Commissions.
Section IV of the Regulations deals with officers in the
Engineering branch inducted on SSCs. Regulation 124(2) contains
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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. [Paras 15-18][454D-G; 455-B-D]
1.3 Chapter IX of the Regulations is titled "Grant of
Permanent Commission to Short Service Commission Officers".
Regulation 203 contains the stipulation in regard to the grant of
PCs. 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. 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 Sublieutenant and were promoted thereafter. [Paras 19-21][455-E;
456-A-E]
1.4 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: Logistics; Law; and Education. The
Law and Logistics cadres belong to the Executive branch of the
Indian Navy. At the material time when the 1963 Regulations
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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.
[Paras 22, 23][456-E-H; 457-A-B]
2. Preliminary Objection
A preliminary objection was urged to the maintainability of
the appeal filed by the Union of India in Priya Khurana's case. It
was 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. However, the Union of
India sought the leave of the AFT to file an appeal before this
Court only in one OA. No leave was sought to appeal in the other
OAs. It was 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. 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. This
Court is 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, this
Court proposes to deal with the appeals on merits. The question
of law raised in the preliminary objection is left open to be
considered in an appropriate case in future.[Paras 51, 56][470E-G; 473-G-H; 474-A]
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Sri Gangai Vinayagar Temple v. Meenakshi Anmal
(2015) 3 SCC 624 : [2014] 12 SCR 845; Union of India
v. Brigadier PS Gill (2012) 4 SCC 463 : [2012] 2 SCR
571 - referred to.
3.1 Validity of the policy letter dated 26 September 2008
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. Acting in exercise of
authority under Section 9(2), the Union Government initially
issued a notification on 9 October 1991 and thereafter on 6
November 1998. 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. [Paras 57, 60][474-B-C; 477-AD]
R Viswan v. Union of India (1983) 3 SCC 401 : [1983]
3 SCR 60 - followed.
Lt. Col. Prithi Pal Singh Bedi v. Union of India (1982)
3 SCC 140 : [1983] 1 SCR 393 - relied on.
Union of India v. LD Balam Singh (2002) 9 SCC 73 :
[2002] 3 SCR 385; Mohd. Yunus Khan v. State of UP
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(2010) 10 SCC 539 : [2010] 12 SCR 448 - referred
to.
3.2 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. 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. 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.[Paras 61, 62][477-D-H; 478-A]
3.3 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. The course of the evolution of
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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) 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 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. 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 advertisement clearly stipulated that based
on their performance and the requirements of service, deserving
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officers "may also be considered for Permanent Commission."
Subsequent employment notices did not contain such a stipulation.
The employment notice of July 2002 was not in conflict with the
provisions contained in Regulations 203. [Paras 64-66][478-CH; 479-A-E]
3.4 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. 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. No
submission was urged on behalf of the Union of India controverting
the above findings of the AFT. The 1963 Regulations contain
specific provisions in regard to the grant of SSCs and for the
grant of PCs. 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 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
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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. [Para 67][479-G-H; 480-A, E-H; 481-A-D]
4.1 The stereotypical sailor
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 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. 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 (which are deployed by the Indian Navy,
no provision has been made for women as sailors and there are
no bathrooms to accommodate them) 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. [Paras 68, 73][481-E-G; 483-F-H]
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4.2 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. In arguments founded on the physical
strengths and weaknesses of men and women do not constitute a
constitutionally valid basis for denying equal opportunity to women
officers. 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.
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. [Paras 74-76][484-A-C, H; 485-A]
5.1 Ex turpi causa non oritur actio
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. 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. 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. 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
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women officers in that capacity until further orders. [Paras 79, 80
and 83][485-H; 486-A-D; 487-D]
5.2 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. 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 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.
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. 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. 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.
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
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prospective application of the policy dated 26 September 2008
has been held to be invalid. It cannot be ignored 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. 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. [Paras 90-94][492-A-H; 493-A-F]
6.Directions: (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 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: availability of vacancies in
UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA
AND ORS.
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
the stabilised cadre at the material time; determination of
suitability; and 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, it is directed 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 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
shall be entitled, in addition to the grant of pensionary benefits,
as a one-time measure, to compensation quantified at 25 lakhs
each. The clarification issued in sub-para (a) of paragraph 50 of
the impugned judgment and order of the Delhi High Court is
affirmed. [Paras 96, 97][494-D-H; 495-A-H; 496-A-E]
The Secretary, Ministry of Defence v. Babita Puniya
2020 (3) SCALE 712 : (2020) 7 SCC 469 - relied on.
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Case Law Reference
(2020) 7 SCC 469
relied on
Para 42
[2014] 12 SCR 845
referred to
Para 51
[2012] 2 SCR 571
referred to
Para 53
[1983] 1 SCR 393
relied on
Para 58
[1983] 3 SCR 60
followed
Para 59
[2002] 3 SCR 385
referred to
Para 59
[2010] 12 SCR 448
referred to
Para 59
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 21822187 of 2020.
From the Judgment and Order dated 04.09.2015 of the High Court
of Delhi at New Delhi in Writ Petition (C) Nos. 7336 of 2010, 7056,
5714, 7419 of 2012, 6818 of 2013, 7727 of 2014.
With
Civil Appeal Nos. 10225-10230 of 2016, 3359 of 2017, 5392 of
2019, 2181, 2177, 2178, 2179 of 2020.
Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian,
Ms. Aishwarya Bhati, P.S. Narasimha, C.U. Singh, Sr. Advs., Ms. Neela
Gokhale, Ms. Saniya Scott, Yuvraj Sharma, Padmesh Mishra, Arkaj
Kumar, Ashray Behura, Ms. Shradha Agrawal, Ms. Shruti Dixit, Ilam
Paridi, Chitrangda Rastravara, Ms. Kirti Khangarot, Ms. Oorjasvi
Goswami, Celeste Agarwal, Nitin Pavuluri, Ms. Archana Pathak Dave,
Ms. Aditi Tripathi, Ms. Sindoora VNL, Ms. Kanti, Sridhar Potaraju, Ms.
Shweta Parihar, Ms. Shiwani Tushir, Ms. G. Ushari, Vishnu Tulasi Menon,
Md. Ali, Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna, Vinay Mathew
(for Santosh Krishnan), Ms. Arunima Dwivedi, Arvind Kumar Sharma,
Harish Pandey, Mukesh Kumar Maroria, Sudhanshu Shekhar Pandey,
Gaichangpou Gangmei, Abhishek R. Shukla, Arjun D. Singh, Anant Vijay
Palli, Ms. Garima Sachdeva, Nikhil Palli, Deepak Goel, Anil Kumar
Bakshi, Ms. Meenakshi Lekhi, Harish Pandey, Jitender Kr. Tripathi, Alok
Kr. Pandey, Sanchar Anand, Anant K. Vatsya, Devendra Singh, Deepak
Goel, Vivek Narayan Sharma, Jasdeep Singh, Pragyan Mishra, Shubham
Awasthi, Akash Sharma, Rajeev Kumar Jha, Ms. Suman Rani, Santosh
Krishnan, B. V. Balaram Das, Ms. Pooja Dhar, Ms. Haripriya
UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA
AND ORS.
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Padmanabhan, Shurtanjaya Bharadwaj, Vishal Sinha, Ms. Sunieta Ojha,
Mayank Tripathy, Ms. Monisha Handa, Mohit D. Ram, Sachin Kaushal,
Ms. Liz Mathew, Navneet R., Ms. Sonali Jain, Anupam Raina, Maninder
Jit Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Beendu Singh,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
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
A Background of the dispute
1. The present batch of Civil Appeals comes up for adjudication
from two decisions, the first in point of time being that of the High Court
of Delhi and the second, being that of the Armed Forces Tribunal1.
A.1 Annie Nagaraja's case
2. Six Writ Petitions under Article 226 of the Constitution were
instituted before the Delhi High Court. The petitioners, seventeen in
number, were women officers who joined the Indian Navy as Short
Service Commissioned2 Officers in the Logistics and Air Traffic
Controller3 cadres and the Education branch. Six of them were officers
1 "AFT"
2 "SSC"
3 "ATC"
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in the Logistics cadre, nine in the Education branch and two in the ATC
cadre. Their grievance is that despite completing fourteen years of service
as SSC officers, they were not considered for the grant of Permanent
Commissions4 and were discharged from service.
3. The case which was set up before the High Court was that
women SSC officers of the Indian Army and Air Force had been granted
PCs by the judgment of the Delhi High Court in Babita Puniya v Union
of India5 ("Babita Puniya"). The Air Force implemented the decision
of the Delhi High Court. The Indian Army was in appeal before this
Court against the judgment in Babita Puniya.
4. The Union of India in the Ministry of Defence6 issued a policy
letter dated 26 September 2008 granting PCs to SSC officers in all the
three branches of the Armed Forces. However, the offer was restricted
to certain categories and was to operate prospectively for the benefit of
future batches inducted on SSCs after January 2009. The Delhi High
Court expressly noted that the denial of combat roles to women was not
in issue in the Writ Petitions. By its judgment dated 4 September 2015,
the High Court issued the following directions:
"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;
4 "PC"
5 Writ Petition (C) No. 1597 of 2013, delivered on 12 March 2010
6 "MoD"
UNION OF INDIA & ORS. v. LT. CDR. ANNIE NAGARAJA
AND ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]
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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."
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
Petition7 before the High Court was Lieutenant Commander Annie
Nagaraja.