Supreme Court of India
Suprita Chandel vs Union Of India on 9 December, 2024
Author: B.R. Gavai
Bench: B.R. Gavai
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:
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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.
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(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
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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.
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“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 for5
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.
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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.
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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.
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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
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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)
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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
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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
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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
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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
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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
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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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