Delhi High Court
Wg Cdr Punita Aswal vs Union Of India & Ors. on 5 October, 2020
Equivalent citations: AIRONLINE 2020 DEL 1838
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th October, 2020
+ W.P.(C) No.4133/2020
WG. CDR. PUNITA ASWAL .... PETITIONER
Through: Mr. Nikhil Palli, Adv.
Versus
UNION OF INDIA & ORS. ...RESPONDENTS
Through: Mr. Harish Vaidyanathan Shankar,
CGSC with Ms. Kinjal Shrivastava &
Mr. Varun Kishore, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the common order dated 20 th February, 2020 of
the Armed Forces Tribunal (AFT), Principal Bench, New Delhi in OA
No.1500/2019 preferred by the petitioner as well as in OAs preferred by six
others, upholding the preliminary objection of the respondents Indian Air
Force (IAF) to the OA No.1500/2019 preferred by the petitioner as well as in
OAs preferred by six others.
2. This petition came up first before this Court on 13th July, 2020 when it
was adjourned to 31st July, 2020. However on 31st July, 2020, the petition
could not be listed and was listed only on 22nd September, 2020, when after
hearing the counsels, it was adjourned to today.
3. It is the case of the petitioner, that (i) the petitioner joined the
respondents IAF, after being selected as a Short Service Commissioned
W.P.(C) No.4133/2020 Page 1 of 10
(SSC) officer, in the AE(L) branch, pursuant to the advertisements issued in
October, 2005; (ii) the petitioner was finally commissioned on 3rd July, 2006,
under the Rationalized Scheme of 10+4 years; (iii) initially, women were not
recruited in IAF; IAF started commissioning women in different branches, in
the years 1991 and 1992 and that too, on Short Service Commission, but did
not consider them for permanent commission; (iv) various other women SSC
officers approached this Court, seeking a direction to the respondents IAF to
consider their case for grant of permanent commission, without any gender
bias; (v) the aforesaid batch of petitions were allowed by this Court vide
judgment dated 12th March, 2010 reported as Babita Puniya Vs. Secretary
(2010) 168 DLT 115 (DB), holding that women SSC officers are entitled to
permanent commission at par with male SSC officers, with all consequential
benefits; (vi) the said judgment was upheld by the Supreme Court in
judgment reported as The Secretary, Ministry of Defence Vs. Babita Puniya
AIR 2020 SC 1000; (vii) after the aforesaid judgments, the petitioner, whose
selection process had commissioned in October, 2005, was hopeful that she
will be granted permanent commission on the same parameters on which
male SSC officers in other branches had all along been granted permanent
commission; (viii) the respondents IAF also issued a Policy dated 19 th
November, 2010, to grant permanent commission to all SSC women officers;
(ix) the respondents IAF however, instead of considering the petitioner for
permanent commission, after the petitioner had completed ten years as a SSC
officer, vide signal dated 11th March, 2016 granted extension of four years to
the petitioner even though the petitioner even then was willing for grant of
permanent commission and was entitled thereto; (x) aggrieved therefrom the
petitioner made a representation dated 20th January, 2017, but to no avail and
W.P.(C) No.4133/2020 Page 2 of 10
therefore the petitioner preferred OA No.990/2017 before the AFT, assailing
the action of the respondents IAF, of not considering the petitioner for
permanent commission, on the premise that the petitioner had been
commissioned prior to 26th September, 2008; (xi) the aforesaid reasoning of
the respondents IAF was erroneous as the petitioner had been recruited prior
to 25th May, 2006 and was entitled to be considered for permanent
commission in terms of judgment of this Court in Babita Puniya supra; (xii)
during the pendency of OA No.990/2017, the respondents IAF issued a new
Policy dated 16th January, 2019, and in view whereof the petitioner withdrew
OA No.990/2017 with liberty to challenge the action of the respondents IAF
by filing a fresh OA; (xiii) the petitioner thereafter preferred OA
No.1500/2019, from which this petition arises, challenging the Policy dated
16th January, 2019 and seeking direction for her consideration for permanent
commission; (xiv) the AFT, vide impugned interim order dated 20th
February, 2020 in the OA No.1500/2019 preferred by the petitioner as well
as in certain other OAs pending before the AFT, upheld the preliminary
objection of the respondents IAF to the effect that the petitioner and others
could only challenge the consideration as per Policy dated 16 th January,
2019; (xv) the AFT, while passing the impugned order dated 20th February,
2020, did not notice that the petitioner, while withdrawing OA No.990/2017
had not given up her claim for being considered by the old Policy and the
order dated 27th May, 2019 of the AFT permitting withdrawal of OA
No.990/2017 itself recorded that the petitioner would be entitled to challenge
the action of the respondents IAF; (xvi) it thus cannot be said that the
petitioner had waived her right; (xvii) though OA No.1500/2019 is still
pending before the AFT but since the petitioner was being released on
W.P.(C) No.4133/2020 Page 3 of 10
completion of 10+4 years of her SCC, with effect from 2nd July, 2020,
without being granted the consideration for permanent commission, the
petitioner approached the AFT vide MA No.756/2020 seeking stay of release
of the petitioner; and, (xviii) the AFT however vide order dated 26 th June,
2020 rejected the petitioners MA No.756/2020, holding that the petitioner
cannot now claim to be entitled to be considered by the old Policy.
4. The impugned order dated 20th February, 2020 records / finds /
reasons / holds (a) that it was the contention of the applicant / petitioner that
in all the OAs, order wherein was being passed, that this Court vide Babita
Puniya supra had directed permanent commission to be granted to all
women officers who were recruited prior to 2006 and were in service on the
date of passing of the judgment i.e. 12 th March, 2010 and in accordance with
the Policy that was existing prior to 25th May, 2006; (b) that the grievance of
the applicants in the OAs before the AFT was that having been appointed
prior to 25th May, 2006, they were entitled to the benefit of the law laid down
in Babita Puniya supra and to grant of permanent commission in accordance
with the Policy contemplated on 10th September, 2004 and amended on 19th
November, 2010; it was their grievance that they were being considered for
permanent commission, not in accordance with the Policy of 10th September,
2004 amended on 19th November, 2010 but under the Policy of 16th January,
2019; (c) per contra, it was the contention on behalf of the respondents IAF
that the applicants had earlier approached the AFT by filing various OAs and
during the pendency of which OAs, Policy of 2019 came into force and the
OAs earlier preferred were withdrawn with liberty to seek consideration
under the Policy of 16th January, 2019; (d) that the applicants were
considered under the Policy of 16th January, 2019 and the applicants not
W.P.(C) No.4133/2020 Page 4 of 10
selected, because they did not meet the criteria laid down in the Policy dated
16th January, 2019; accordingly, the respondents raised a preliminary
objection with regard to the maintainability of the OAs filed by the
applicants because once the applicants had shown willingness to have their
cases considered as per the Policy of 16th January, 2019, after being found
unsuitable thereunder, could not again claim consideration under the earlier
Policy; (e) the applicants were thus not entitled to consideration under the
earlier Policy, after having been unsuccessful in the consideration under the
16th January, 2019 Policy; and, (f) that the applicants were very well aware
that there were two policies and the differences between the two policies;
however the applicants on 14th March, 2019, willingly withdrew the OAs
preferred by them, seeking a direction to the respondents to consider the
claim of the applicants as per new Policy; thus the preliminary objection of
the respondents IAF was upheld and the OAs directed to be listed for any
other consideration.
5. On 22nd September, 2020, it was the contention of the counsel for the
petitioner that though the petitioner was commissioned on 3 rd July, 2006 but
had applied in pursuance to advertisement of October, 2005 and the
recruitment process was completed in May, 2006 and the petitioner was thus
entitled to be considered at par with those recruited prior to 25 th May, 2006
and who had been considered for grant of permanent commission under the
Policy dated 19th November, 2010.
6. During the course of hearing, the counsel for the respondents IAF
drew attention to the order dated 27th May, 2019 of the AFT in OA
W.P.(C) No.4133/2020 Page 5 of 10
No.990/2017 earlier preferred by the petitioner and which order reads as
under:
"1. The Counsel for the Respondents has stated that the
applicant has given consideration on the strength of her consent
and in terms of Policy 01 of 2019 and she was not found to be up
to the mark by the Board concerned. Accordingly, she has not
been granted permanent commission.
2. The applicant who is appearing in person states that the
policy on the strength of which she was given consideration was
not fairly implemented inasmuch as she did not get three chances
for consideration. Accordingly, she states that she may be
permitted to withdraw this application with liberty to challenge
the action of the respondents by way of a fresh application. The
counsel for the respondents does not have any objection.
3. In view of the statement made by both the parties in the
Tribunal, the OA is dismissed as withdrawn with liberty to the
applicant as prayed for."
7. On a reading of the aforesaid order, it appeared on 22nd September,
2020 that it was the contention of the petitioner, appearing in person before
the AFT on 27th May, 2019, that the Policy was not fairly implemented
inasmuch as the petitioner did not get three chances for consideration and be
permitted to withdraw OA No.990/2017 with liberty to challenge the action
of the respondents IAF by way of a fresh application and the counsel for the
respondents IAF had no objection thereto and in pursuance whereto the OA
No.990/2017 was dismissed as withdrawn with liberty to the applicant as
sought.
8. As distinct from the order dated 27th May, 2019 reproduced above in
the earlier OA No.990/2017 filed by the petitioner, the order passed in the
earlier OAs preferred by others, who had also filed fresh OAs and wherewith
the fresh OA No.1500/2019 filed by the petitioner was clubbed and common
W.P.(C) No.4133/2020 Page 6 of 10
impugned order dated 20th February, 2020 passed, the order withdrawing the
earlier OAs as set out by the AFT in the impugned order, was as under:
"1. Learned counsel for the applicants have in all fairness
admitted that a new policy dated 16th January, 2019 has already
been promulgated by the respondents and received by them for
consideration of grant of Permanent Commission to serving
Short Service Commissioned Officers of ground duty branches
other than medical and dental officers.
2. It has been further stated by them that the Board is likely to
meet in the month of March and they would like to be considered
on the basis of a new policy for grant of Permanent Commission
subject to their meeting the other conditions envisaged in the
policy.
3. The respondents are directed to consider each of the
individual applicant for grant of Permanent Commission, who
has given his willingness to be considered on the strength of the
policy dated 16th January, 2019 and if he is able to qualify the
same, issue necessary orders to that effect.
4. List the matter for further proceedings on 11th April, 2019.
(emphasis supplied)"
and the subsequent order dated 27th May, 2019 in the earlier OAs filed by
others was as under:
"1. Learned Counsel for the Applicants submit that since they
get instruction from the respective applicants, they do not want to
press the OAs and, therefore, request for permission to withdraw
the OA with liberty to take legal remedy.
2. In view of the statement made by the learned counsels in the
Tribunal, these Original Applications are dismissed as
withdrawn with liberty as prayed for."
9. On the basis of the aforesaid two orders in the earlier OAs filed by
others, the AFT in the common impugned order concluded (i) that each of
the applicants approached AFT in the year 2018 with the same prayer as
W.P.(C) No.4133/2020 Page 7 of 10
made in the new OAs filed by them; (ii) however during the pendency of the
earlier OAs, new Policy for grant of permanent commission was issued on
16th January, 2019; (iii) the applicants made a statement before the AFT that
their cases be considered as per the new Policy and the AFT so directed; (iv)
the applicants were considered under the new Policy and the result was
brought to the notice of the AFT; (v) the applicants then withdrew earlier
OAs with liberty to take legal remedy; (vi) the question for consideration in
the preliminary objection taken by the IAF to the new OAs was, whether the
applicants in the new OAs were entitled to the benefit of law laid down in
Babita Puniya supra and relief in which respect though claimed in the earlier
OAs was given up; (vii) the contention of the applicants was that it was only
an alternate submission, to take a chance to see if the applicants could be
granted permanent commission under the new Policy and when they were
not granted the benefit, they withdrew the earlier OAs to take recourse to the
legal remedy which they were seeking in the new OA; (viii) this argument
could not be accepted because the applicants, at the time of filing the earlier
OAs were aware that certain legal rights had accrued to them by virtue of
law laid down in Babita Puniya supra - they knew that their cases have to be
considered as per the Policy which was existing prior to 25 th May, 2006; this
right was claimed in the earlier OAs; however during the pendency of the
earlier OAs, the applicants on 14th March, 2019 made a statement that they
would be satisfied if their cases are considered as per the new Policy; there
was no mention that consideration under the new Policy was without
surrendering the right to be considered as per the Policy prior to 2006; the
rights thereunder were not kept intact and on the contrary the applicants
willingly submitted to consideration under the new Policy; and, (ix) after
W.P.(C) No.4133/2020 Page 8 of 10
having failed in that consideration, they cannot turn around and say that their
claim has not been considered as per the requirement of law.
10. As would immediately become clear, the order dated 27 th May, 2019
in the earlier OA filed by the petitioner is different from the order dated 27 th
May, 2019 in the earlier OAs filed by others, clubbing the new OA filed by
the petitioner wherewith, the common impugned order has been passed.
11. It was the contention of the counsel for the petitioner on 22nd
September, 2020 that as per the statement made and liberty granted in the
order in the earlier OA filed by the petitioner, the rights of the petitioner for
consideration in terms of Babita Puniya supra remained intact.
12. We, on 22nd September, 2020 found merit in the aforesaid contention.
It appeared that the AFT at the time of passing the impugned order dated 20th
February, 2020 was swayed by the orders in the OAs of others along
wherewith the impugned order in the OA No.1500/2019 preferred by the
petitioner was made and did not have occasion to look into the order passed
in the case of the petitioner and under which the petitioner had reserved her
liberty to challenge her consideration under the old Policy.
13. However, since the aforesaid ground had not emerged in any of the
earlier hearings, it was deemed apposite on 22nd September, 2020 to direct
this petition to be listed today to enable the counsels to consider whether the
petition should be allowed, setting aside the common impugned order dated
20th February, 2020 to the extent in OA No.1500/2019 preferred by the
petitioner and by remanding the matter to the AFT for consideration afresh.
14. The counsel for the respondents IAF has today been unable to
controvert what was found prima facie by us during the hearing on 22nd
September, 2020. The counsel for the petitioner of course supports the same.
W.P.(C) No.4133/2020 Page 9 of 10
15. The petition is accordingly disposed of, by setting aside the order
dated 20th February, 2020 of the AFT, Principal Bench, New Delhi insofar as
in OA No.1500/2019 of the petitioner and the AFT is requested to consider
OA No.1500/2019 of the petitioner afresh qua the preliminary objection of
the respondents IAF, particularly in the light of the order dated 27 th May,
2019 of withdrawal of earlier OA No.990/2017 as pointed out by us above
and to pass appropriate order.
16. Needless to state that if the petitioner remains aggrieved, shall have
her remedies.
17. The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. OCTOBER 05, 2020 'gsr'..
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