Supreme Court - Daily Orders
Lt. Col. (Retd.) Priyamvada A Mardikar . vs Union Of India Secretary on 11 February, 2022
Bench: D.Y. Chandrachud, Surya Kant
1
ITEM NO.14 Court 4 (Video Conferencing) SECTION XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Miscellaneous Application No.211/2022 in C.A. No. 1210/2020
LT. COL. (RETD.) PRIYAMVADA A MARDIKAR & ORS. Appellant(s)
VERSUS
UNION OF INDIA SECRETARY & ORS. Respondent(s)
(FOR ADMISSION and IA No.15134/2022-EXEMPTION FROM FILING AFFIDAVIT
and IA No.15132/2022-CLARIFICATION/DIRECTION)
Date : 11-02-2022 This application was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE SURYA KANT
For Petitioner(s) Ms. V. Mohana, Sr. Adv.
Mr. Rakesh Kumar, AOR
Mr. Deepak Goel, AOR
For Respondent(s) Mr. R. Balasubramanian, Sr. Adv.
Ms. Neela Kedar Gokhale, Adv.
Ms. Praveena Gautam, Adv.
Mr. B. V. Balaram Das, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 The Miscellaneous Application has been filed by two officers, namely, Lt Col Priyamvada A Mardikar and Lt Col Asha Kale. The applicants were parties in Civil Appeal No 1210 of 2020, which was a part of a batch of cases, which was disposed of by the judgment of this Court dated 17 February 2020 in Secretary, Ministry of Defence v Babita Punia1.
Signature Not VerifiedDigitally signed by Sanjay Kumar Date: 2022.02.12 2 10:30:51 IST Reason: Applicant No 1 – Lt Col Priyamvada A Mardikar was released from service after completing fourteen years on 5 March 2008. The officer moved the High Court 1 Civil Appeal Nos 9367-9369 of 2011 2 of Delhi in Writ Petition No 8630 of 2009 in April 2009 and an order of reinstatement was passed on 1 December 2014. She was reinstated on 30 April 2015.
3 Applicant No 2 – Lt Col Asha Kale was released from service after completing fourteen years on 19 August 2008. She was party to Writ Petition No 8630 of 2009 in which an order of reinstatement was passed on 1 December 2014 and the officer was reinstated on 30 April 2015.
4 Both the officers have been granted Permanent Commission 2. 5 The issue which remains to be resolved is as regards the manner in which the period when they were out of service, until they were reinstated by the High Court of Delhi, should be treated. In this context, an order was passed by this Court on 24 February 2021 in Miscellaneous Application No 325 of 2021 in Civil Appeal No 1210 of 2020, by which the applicants were permitted to submit a representation to the Army authorities. A representation was submitted on 22 March 2021. On 11 October 2021, an order has been passed by the Ministry of Defence declining to accede to the representation of Lt Col Priyamvada A Mardikar.
6 Though an OA has been filed before the Armed Forces Tribunal 3, Ms V Mohana, senior counsel appearing on behalf of the applicants, states that the applicants undertake to withdraw the OA since the relief which has been sought cannot be sought before the AFT.
7 On 7 January 2022, an order was passed by this Court in the case of similarly placed Naval officers in Cdr Supriya Sethu (Retd) v Union of India4. The 2 “PC” 3 “AFT” 4 Miscellaneous Application No.1315/2021 in C.A. No.2181/2020 3 order is extracted below:
1 The application for clarification has been filed by two officers of the Indian Navy, namely, (i) Commander Supriya Sethu – Applicant No 1 (“A-1”) and Commander Pawan Preet Mann – Applicant No 2 (“A-2”).
2 The facts insofar as they are material to the cases of the above two officers are set out below, in terms as agreed to by Counsel :
(I) Commander Supriya Sethu – Applicant No 1
5 August 1996 - Date of Commissioning 7 August 2010 - Original date of release after completing 14 years’ service 13 June 2016 - Reinstatement in service following the order of the Supreme Court 20 November 2020 - Release on completion of 20 years’ service.
The above officer belonged to the ATC cadre and in terms of the judgment of this Court was not entitled to Permanent Commission.
(II) Commander Pawan Preet Mann – Applicant No 2 7 August 1995 - Date of Commissioning 7 August 2009 - Date of release after completing 14 years’ service 13 June 2016 - Reinstatement in service following the order of Supreme Court The above officer was entitled to be considered for and has been granted Permanent Commission.
3 The issue in dispute pertains to the manner in which the period when they were out of service should be treated. The relief, which has been sought in the application, is in the following terms:
“…clarify that Para 96(xi) of the judgment of this Hon'ble Court dated 17.03.2020 covers the case of the Appellants to the extent that they are entitled to all consequential benefits for the period they were wrongly released from service till the date of their 4 reinstatement.”
4 Mr R Balasubramanian, learned senior counsel appearing on behalf of the respondents submits that the benefit of the period when the applicants were out of service should not be granted to them.
5 On a considered view of the matter, and having regard to the letter and spirit of the decision of this Court, we are of the view that the applicants should be granted the benefit of the period when they were out of service prior to their being reinstated following the order of this Court. This period shall be treated for the purpose of continuity of service without a break and shall be reckoned for all purposes. However, no salary will be payable for the period when the officers were out of service. All the benefits to which officers are eligible would be computed on the basis that there was no break in service. 6 Consequently, (i) the pensionary payments due to A-1 shall be computed on the basis of the entire length of service including the above period; and (ii) as regards A-2, the period shall be taken into account for all purposes including for computing time scale promotions in accordance with the applicable rules and regulations as well as in computing the ultimate pensionary benefits to which the officer would be entitled in future.
7 In the counter affidavit, which has been filed on behalf of the Indian Navy, it has been stated that A-2 was considered for promotion to the rank of Captain (Select Rank) by PP2 held in August 2021. It has been stated that the competent authority has given approval to promote the officer to the rank of Captain (Time Scale) with effect from 7 August 2021. However, the benefit of the time scale promotion will be given only in 2027.
8 Ms Pooja Dhar, Counsel for A-2 submits that since the Competent Authority has fairly decided to grant A-2 promotion as Captain (Time Scale) from 7 August 2021, there is no reason to defer this until 2027. Mr Balasubramaniam urged that A-2 will be eligible only after she has exhausted 3 chances for promotion and since she has been considered once the next dates for considering her will fall in 2022 and 2023, after which she will be granted Time Scale promotion. Counsel for the applicants on the other hand states that the ACRs for the relevant period were not available since A-2 was out of service before being reinstated by the orders of this court. 9 A-2 is stated to be the senior most woman officer of the Indian Navy and her juniors have already ready received Time Scale promotions due after 26 years of service, but this has not been granted to A-2. Since A-2 has been granted the benefit of continuity of service for the period when she was out of service, her entitlement to promotion to the rank of Captain (Time Scale) shall be re-evaluated having due regard to the date of 7 August 2021, which has been set out in the affidavit. 5
The officer shall be entitled to compute the period when she was out of service for the said purpose. A-2 would be at liberty to make a further representation to the Competent Authority so that after reckoning the entire length of service, her case for time scale promotion as Captain (Time Scale) may be considered by the Competent Authority.
10 The Miscellaneous Application is accordingly disposed of. 11 Pending applications, if any, stand disposed of.” 8 The two applicants were admittedly reinstated in service, pursuant to the order of the High Court of Delhi. The manner in which the period when they were out of service would have to be treated consistent with both the text and spirit of the judgment of this Court in Babita Punia (supra). The officers would not be entitled to the grant of any arrears of salary for the period when they were out of service. However, the period must count for the purpose of continuity, seniority and promotion.
9 Consequently, in view of the order dated 7 January 2022 in the case of Cdr Supriya Sethu (Retd) (supra), we direct as follows:
(i) The applicants shall not be entitled to any arrears of salary for the period between the date of the release and the date of their reinstatement in service following the order of the High Court of Delhi;
(ii) The applicants shall be entitled to continuity of service and, as a consequence, the above period shall count for the purposes of seniority and promotion to which they may be found to be eligible in accordance with law; and
(iii) The period during which the applicants were out of service between the date of release and the date of reinstatement shall also be taken into account in computing the retiral dues that may be payable to the 6 applicants who are to retire from service on 31 May 2023 and 31 October 2023, respectively.
10 In terms of the statement which has been made on behalf of the applicants, the OA before the AFT shall not survive and shall accordingly be disposed of. 11 The Miscellaneous Application shall accordingly stand disposed of in the above terms.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER