Suprita Chandel vs Union Of India

2024 INSC 942 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1943 of 2022

LT. COL. SUPRITA CHANDEL APPELLANT(s) VERSUS UNION OF INDIA AND ORS. RESPONDENT(s)

JUDGMENT

K.V. Viswanathan, J.

1. This appeal challenges the order of the Armed Forces

Tribunal (AFT) Regional Bench, Lucknow dated 05.01.2022 in

Original Application No. 241 of 2021. By the said order, the AFT

dismissed the application of the appellant and declined her prayer

for reliefs similar to the ones granted by the judgment dated

22.01.2014 of the AFT Principal Bench in O.A. No. 111 of 2013

and batch, to the applicants therein. The appellant claims that those

applicants were identically situated with her. Signature Not Verified Digitally signed by NARENDRA PRASAD Date: 2024.12.09 12:21:27 IST Reason: 1

2. The appellant on 10.03.2008 was commissioned as a Short

Service Commissioned Officer in the Army Dental Corps (AD

Corps). She was at that time 27 years 11 months and 28 days of age.

The regulation, as it then stood, entitled her to three chances for

taking up the departmental examination for permanent commission.

It also provided extension of age limit. The relevant clauses,

namely, Para 12 of Army Instruction 15 of 79 and Para 4(a) and

4(b) of AI 37 of 78 read as under:

“…Officers granted Short Service Commission will be given three chances for taking up the departmental examination for permanent commission. Two chances will be given after completion of 2 years of service and before completion of 4 years of service and third chance in extended tenure after completion of 5 years of service and before completion of 8 years of service provided they fulfill the conditions of eligibility as laid down in AI 37/78, as amended.” Paras 4(a) and 4(b) of Annexure ‘A’ to the AI 37/78 “(a) Candidates must not have attained 28 years of age on 31st December of the year of receipt of application from them. This age limit may be extended upto 30 years by the Government of India on the recommendation of the AD Corps Selection Board in the case of candidates with additional Post- Graduate qualifications.

2 (b) A candidate with previous commissioned service in the Army Dental Corps will be entitled to extension of the above age limits as given below:-

Full period of previous reckonable service if such service was rendered while in possession of dental qualification recognized by the Dental Council of India (vide para 3 above).” (Emphasis supplied)

3. It is undisputed that the appellant could not qualify in the first

two chances on completion of two years of service and four years

of service respectively. On 15.11.2012, her services were extended

for another five years. By 9th of March 2013 the appellant had

completed five years of service and was eligible to avail of her third

chance, subject to age relaxation up to the full period of reckonable

service.

4. However, on 20th of March, 2013, amendments were carried

out to clause 4(a) and 4(b) of AI 37 of 78 as amended in AI 15 of

79, inasmuch as, while Para 4(a) was amended, Para 4(b) came to

be deleted. The amended Para 4(a) of AI 37 of 78 introduced on

20.03.2013, reads as under:

“(a) Para 4(a) of Annexure ‘A’ to AI 37/78 3 Candidates must not have attained 30 years of age on 31st December of the year of receipt of application form from them for Departmental Permanent Commission. The age limit may be extended up to 35 years in respect of those candidates who are in receipt of PG qualification of Masters in Dental Surgery duly recognized by Dental Council of India, at the time of initial commission to Army Dental Corps.”

5. The net result was the appellant was deprived of her third

chance since the extension was capped at 35 years and was confined

to those who were in receipt of PG qualification of Masters in

Dental Surgery on and from 20.03.2013.

6. According to the appellant, Officers similarly situated with

the appellant who were also not given an opportunity to appear for

the clinical test and interview, in view of the amendment, quickly

moved applications before the AFT, Principal Bench in O.A. No.

111 of 2013 and batch of matters raising various contentions and

contended that they have been wrongly deprived of availing the

third chance for no fault of theirs. Though the amendments to the

policy were upheld, the Principal Bench of the AFT granted relief

in the following terms in the said batch of matters.

4 “35. The other contention of the learned counsel for the petitioners is that the Government can grant age relaxation in the given facts and circumstances of the case. It is trite that the Government has the power to relax the upper age limit if it is found that operation of the rule or policy has hardship on the persons working in the Corps. Nothing has been shown that the Government has no power to relax the upper age limit. Now coming to the question as to whether the operation of the policy has hardship, it would be seen that an exception was provided for SSC Officers for giving the benefit by extending the upper age limit. It is also admitted by the respondents in para-41 of their counter that one time age relaxation in the upper age limit has been granted in the case of an AMC officer who had joined as SSC Officer prior to the issuance of the impugned amendment. By deletion of para-4(b) some of the SSC Officers became ineligible for permanent absorption. The petitioners, who were working in the Corps continuously, expected to be given three chances to seek their permanent absorption. However, due to impugned amendment, they have been denied these chances. Therefore, as one time exception, the Government can relax the upper age limit in respect of those petitioners who have become ineligible on account of the impugned amendment.

36. In view of the above discussions, all the four petitions stand partly allowed with following directions:-

(1) The impugned policy of 2013 is held to be intra vires.

(2) A direction is issued to the respondents to consider the case of the petitioners, who were eligible in the year 2012 but became ineligible in the year 2013 for

5 grant of permanent absorption on account of amendment of policy after clubbing the selection of 2012 with 2013. Their case shall be considered in terms of the previous policy.

(3) A further direction is issued to the respondents to grant one time age relaxation in favour of the petitioners for seeking permanent absorption as has been done in the case of AMC officers who had joined as SSC Officer prior to the issuance of the impugned amendment. The entire exercise for consideration of the petitioners for grant of permanent commission shall be completed within a period of two months from the date of receipt of a copy of this order. The petitioners’ case thereafter shall be considered by the ensuing Board for their permanent absorption in the Corps.”

7. According to the appellant, she could not join the applicants

therein in the litigation as she was in her advance stage of

pregnancy and while posted at Bareilly, she proceeded on maternity

leave on 16.05.2013. The appellant delivered a child on 01.07.2013.

8. Consequent to the order of the Principal Bench, permanent

commissions were granted to officers who were eligible prior to the

amendment to avail a third chance but could not avail in view of

the amendment of 20.03.2013. The appellant was not considered

because she was not part of the Original Application.

6 9. A representation submitted by the appellant on 06.09.2014 did

not yield any favorable result and was rejected with the following

endorsement on 15.09.2014:-

“1. Ref advance copy of your application No DS- 12301/05/2004 dated 06 Sep 2014.

2. As per directions of MoD communicated vide DGAFMS letter No12252/CC/AKJ/DGAFMS/LC dated 12 Aug 2014, hon'ble Armed Forces Tribunal (Principal Bench). New Delhi has granted ‘one time' age relaxation in the eligibility criteria 'only to the petitioners'. Hon'ble AFT has further clarified that this order will not form a precedence.

3. For your info please.” (Emphasis Supplied)

10. At the outset itself, we may say that the phrase “Only to the

Petitioners” in the order rejecting the representation is patently

erroneous. While the AFT Principal Bench granted relief to the

petitioners, it did not prohibit the department from considering

similarly situated persons. Another representation was disposed of

on 9th November 2017, inter alia, on the primary ground that she

did not meet the criterion. In the meantime, the appellant’s services

were further extended for a period of 4 years on 31.10.2017.

7 11. The appellant thereafter filed Original Application No. 241 of

2021 before the AFT, Regional Bench, Lucknow seeking relief

similar to the ones granted to the batch of petitioners in O.A. 111

of 2013 by AFT, Principal Bench, New Delhi which attained

finality. For the sake of completion of record, it should be

mentioned that the appellant had in 2014 itself moved to the Armed

Forces Tribunal by filing an application in Diary No. 1761of 2014.

However, the said application was withdrawn with liberty to move

afresh. Thereafter, again she filed O.A. 70 of 2017 before the

Principal Bench which was again withdrawn with liberty to move

the appropriate Tribunal. It was thereafter that after making the

representation on 4th October 2017 which was rejected on

09.11.2017 and after returning from the Arunachal Pradesh posting

and further after the Covid-19 ordeal had reasonably subsided in

January, 2021, she moved the AFT, Regional Bench, Lucknow by

filing O.A. No. 241 of 2021, which has been dismissed by the

impugned order.

8

12. The only reasoning given in the impugned order is in the

following terms.

“(d) The applicant was not a petitioner in those petitions filed before AFT (PB), New Delhi, therefore, applicant cannot be granted any relief with regard to relaxation of age limit which is clarified by AFT (PB) in its judgment dated 22.01.2014 that ‘an officer is not entitled to be absorbed permanent, if he/she has crossed the upper age limits’. The benefit of age relaxation was granted to the petitioners of Original Applications who were eligible in the year 2012 but became ineligible in the year 2013 for grant of permanent absorption on account of amendment of policy after clubbing the selection of 2012 with 2013 considering the terms of the previous policy and were granted one time age relaxation.”

13. We have heard Ms. Vibha Datta Makhija, learned senior

counsel for the appellant and Mr. R Balasubramanian, learned

senior counsel for the respondents. Having considered the

submissions of the learned counsels and perused the records, we are

of the opinion that the appellant is entitled to parity with those

applicants who succeeded before the AFT, Principal Bench in O.A.

No. 111 of 2013. We say so for the following reasons.

14. It is a well settled principle of law that where a citizen

9 aggrieved by an action of the government department has

approached the court and obtained a declaration of law in his/her

favour, others similarly situated ought to be extended the benefit

without the need for them to go to court. [See Amrit Lal Berry vs.

Collector of Central Excise, New Delhi and Others, (1975) 4 SCC

714]

15. In K.I. Shephard and Others vs. Union of India and Others,

(1987) 4 SCC 431, this Court while reinforcing the above principle

held as under:-

“19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. ….” (Emphasis Supplied) 10

16. No doubt, in exceptional cases where the court has expressly

prohibited the extension of the benefit to those who have not

approached the court till then or in cases where a grievance in

personam is redressed, the matter may acquire a different

dimension, and the department may be justified in denying the

relief to an individual who claims the extension of the benefit of the

said judgment.

17. That is not the situation here. In the submissions too, the

respondents have not been able to point out any valid justification

as to how the applicants who obtained the benefit from the AFT,

Principal Bench in OA No. 111 of 2013 and batch are not

identically situated with the appellant. Like the applicants who

succeeded, the appellant was also ripe for the third chance before

the amended para 4(a) of AI No. 37 of 1978 was introduced on

20.03.2013. The Principal Bench of the AFT in OA No. 111 of

2013 after clearly holding that the applicants therein were denied

the third chance directed consideration of their cases for permanent

absorption by granting one-time age relaxation by considering them

11 under the unamended policy.

18. The respondent authorities on their own should have extended

the benefit of the judgment of AFT, Principal Bench in OA No.111

of 2013 and batch to the appellant. To illustrate, take the case of

the valiant Indian soldiers bravely guarding the frontiers at Siachen

or in other difficult terrain. Thoughts on conditions of service and

job perquisites will be last in their mind. Will it be fair to tell them

that they will not be given relief even if they are similarly situated,

since the judgment they seek to rely on, was passed in the case of

certain applicants alone who moved the court? We think that would

be a very unfair scenario. Accepting the stand of the respondents in

this case would result in this Court putting its imprimatur on an

unreasonable stand adopted by the authorities.

19. The stand of the Department relying on the judgment of this

Court in State of Maharashtra and Another vs. Chandrakant

Anant Kulkarni and Others, (1981) 4 SCC 130 to contend that

mere reduction in chance of consideration did not result in

deprivation of any right does not appeal to us. The appellant’s case

12 is founded on the principle of discrimination. What is sauce for the

goose ought to be sauce for the gander. If the applicants in O.A.

No. 111 of 2013 whom we find are identically situated to the

appellant were found to be eligible to be given a third chance for

promotion, because they acquired eligibility before the amendment

to AI No. 37 of 1978 on 20.03.2013, we find no reason why the

appellant should not be treated alike.

20. The order dated 13.03.2014 in the application for clarification

of the AFT, Principal Bench, order of 22.01.2014 and the order

dated 19.05.2014 in the review relied upon in the counter affidavit

do not in any manner dilute the case of the appellant herein. In fact,

the order dated 13.03.2014 fully supports the appellant since it

extended the benefit to those persons who acquired the eligibility

in 2013. As far as the order in review dated 19.05.2014 directing

that there would be no dilution in the laid down criterion and the

further direction that the order in review shall not form a precedent

does not imply that the main order of 22.01.2014 of the Principal

Bench, AFT, should not be extended to similarly situated

13 individuals like the appellant, who has been knocking the doors for

relief since September, 2014.

21. We see no delay in the appellant approaching the Tribunal.

The appellant has been seeking justice from 2014 and the only

delay between 2017 to 2021 after the withdrawal of the earlier

applications with liberty, was due to the fact that between August,

2017 and 2019 she was posted in Arunachal Pradesh and it was

during this time that the appellant made a second representation.

Thereafter, the period between March, 2020 and January, 2021 was

on account of Covid-19 pandemic. In any event, since a clear case

of discrimination has been made out, we do not want to non-suit the

appellant on the ground of delay. We say so on the special facts of

this case.

22. We also find that the appellant - a woman officer has

continuously worked since 2007 and even as late as on 31.10.2017,

she was granted extension of another four years of service, and she

continues to be in service thereafter also on account of the status

quo granted by this Court on 08.03.2022. Not only this, the

14 appellant was awarded Commendation Card by the Chief of Army

Staff on 14.01.2019. It is also undisputed that the appellant has had

a distinguished service and is now posted as Lieutenant Colonel in

the Army Dental Corps at Agra.

23. We hold that the appellant was wrongly excluded from

consideration when other similarly situated officers were

considered and granted permanent commission. Today, eleven

years have elapsed. It will not be fair to subject her to the rigors of

the 2013 parameters as she is now nearly 45 years of age. There

has been no fault on the part of the appellant.

24. On the peculiar facts of this case and since nothing adverse

has been placed on record with regard to performance of the

appellant, in exercise of powers under Article 142 of the

Constitution, we direct that the appellant ought to be given

Permanent Commission. We direct that the appellant’s case be

taken up for grant of Permanent Commission and she be extended

the benefit of Permanent Commission with effect from the same

date the similarly situated persons who obtained benefits pursuant

15 to the judgment dated 22.01.2014 in O.A. No. 111 of 2013 of the

Principal Bench of the AFT. All consequential benefits like

seniority, promotion and monetary benefits, including arrears shall

be extended to the appellant. The above directions shall be

implemented within a period of four weeks from today.

25. The appeal is allowed and the order of the AFT, Regional

Bench, Lucknow, dated 05.01.2022 in O. A. No. 241of 2021 is

quashed and set aside. No costs.

………........................J. [B.R. GAVAI]

……….........................J. [K. V. VISWANATHAN]

New Delhi December 09, 2024.

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