WG CDR SUCHETA EDN vs. UNION OF INDIA

Permission to file the Miscellaneous Applications is granted.

The instant Applications have been filed by 10 Short Service Commission Women Officers (SSCWOs), who were Appellants and Intervenor- Applicants before this Court in Civil Appeal Nos. 192 – 196/2012. They

To adduce the facts in a nutshell, the Applicants were inducted into the Indian Air Force on Short Service Commission (SSC) between 1993 and 1998. However, due to the erstwhile policies of the Respondent- Authorities, whereby SSCWOs were not considered eligible for the grant of Permanent Commission (PC), they were consequently released from service without being considered for the same.

Meanwhile, in a Public Interest Litigation (PIL) instituted before it, the High Court of Delhi (High Court), by its judgement dated 12.03.2010 in Babita Puniya v. Secretary,2 struck down such policies as being unfair and directed reinstatement of the affected SSCWOs, along with reconsideration of their cases for the grant of PC. Significantly, Paragraph 61(iii) of the said judgement limited this benefit to those SSCWOs who were: (i) either still in service; or (ii) had filed independent petitions before the High Court and had retired or been released from service during the pendency of such proceedings.

Admittedly, the Applicants did not fall within the ambit of the said categories. Thus, in an effort to challenge their removal from service, the Applicants lodged fresh Writ Petitions before the High Court, seeking relief pari materia to that granted in Babita Puniya (supra). The High

A 3-Judge Bench of this Court, vide judgement dated 16.11.2022 in AU Tayyaba (supra), allowed the Civil Appeals and held the Applicants, along with other Appellants, eligible to be considered in accordance with the Air Force’s Human Resource Policy 04/10 dated 19.11.2010 (HRP 04/10). It was further directed that if they were found eligible for the grant of PC, such SSCWOs would be entitled to “pensionary benefits on the basis that they have completed the minimum qualifying service required for pension.” A material consideration which weighed with this Court was that the original proceedings before the High Court in Babita Puniya (supra) arose from a PIL filed by an advocate, and the Applicants had moved the High Court for appropriate reliefs within a reasonable period of time following the pronouncement of that judgement.

Pursuant thereto, the Respondent-Authorities considered the cases of the Applicants, as well as other Appellants, to determine their eligibility for the pensionary benefits granted by this Court to other such SSCWOs.

Out of the ten Applicants before us, three Applicants, namely, Appellant Nos. 9, 13, and 15 in Civil Appeal Nos. 192 – 196/2012, were found ineligible for the grant of PC under HRP 04/10 on the ground that they did not meet the minimum eligibility criterion of an average Annual

However, the remaining seven Applicants, i.e. Appellant Nos. 1, 2, 4, 5, 6, and 16 as well as Respondent No. 6 in Civil Appeal Nos. 192 – 196/2012, were found eligible as per HRP 04/10 and were accordingly granted pension computed on the basis of their actual last drawn salary.

On account of this, the instant Applications have been filed seeking different reliefs. The former set of Applicants seek directions that their cases be considered sympathetically and that they, too, be extended the benefits of the deemed fiction of completion of minimum pensionable service.

The latter set of Applicants is aggrieved by the manner of implementation of AU Tayyaba (supra) and seeks clarification that the pension payable, being founded upon a deemed completion of minimum pensionable service, ought to be computed on the basis of a notional last-drawn salary as if they had continued in service for that period and obtained a Time-Scale promotion to the rank of Wing Commander. They further seek consequential status and privileges commensurate with such an enhanced, notional rank.

We have heard Mr. Huzefa A. Ahmadi, learned Senior Counsel, on behalf of the Applicants, as well as Ms. Aishwarya Bhati, learned Additional

The two distinct issues arising for consideration in these Applications are addressed separately hereafter. A. NON-GRANT OF PENSION TO APPELLANT NOS. 9, 13, AND 15

One of the minimum qualifying criteria for the grant of PC under HRP 04/10 is that the officer under consideration must have secured an average ACR grading of not less than 6.5, without rounding off, in each of the ACRs for the preceding 3 years. In the case of Appellant Nos. 9, 13, and 15, who have been held to be ineligible for the grant of pension and ancillary benefits, it is undisputed that they have been unable to achieve this prescribed benchmark as they have obtained average ACR gradings of 5.7, 6.24, and 6.49, respectively.

This concern of the SSCWOs was also noted by this Court in AU Tayyaba (supra) at Paragraph 34(v). While directing that eligible SSCWOs be considered for a notional grant of PC, which would in turn entail pensionary benefits, this Court observed that some SSCWOs had average ACR gradings below 6.5 and directed the Respondent-Authorities to consider their cases sympathetically.

It emerges from the record that, upon reconsideration, the Air Force declined to extend pensionary benefits to these Applicants solely on the ground that they did not meet the minimum benchmark prescribed under HRP 04/10. Page 6 of 10

The Applicants have firstly canvassed an argument that two Short Service Commission Officers (SSCOs) having average ACR gradings lower than their own were nevertheless granted pensionary benefits. However, the Respondents have clarified that all cases, including the Applicants’, were assessed on the basis of the three ACRs preceding the year 2006 and that, in this framework, the said two SSCOs had, in fact, obtained higher average gradings than the Applicants herein. It further appears that only four SSCWOs, including the three Applicants, failed to achieve the requisite average of 6.5. 18. The Applicants have not been able to demonstrate any specific mitigating circumstances explaining their inability to meet the prescribed threshold. On the contrary, 28 other similarly-placed SSCWOs successfully satisfied the same criteria. Moreover, the entire assessment relied upon ACRs from a period prior to the imposition of any bar on the grant of PC, and thus, did not suffer from the same concerns as those identified in the judgement of even date, being Wg. Cdr. Sucheta EDN v. Union of India and Ors.3 In these circumstances, we find no infirmity in the decision of the Air Force to deny pensionary benefits to the SSCWOs who did not meet the minimum qualifying benchmark for the grant of PC.

Accordingly, the prayers made herein qua Appellant Nos. 9, 13, and 15 are liable to be rejected.

Turning to the second issue concerning the computation of pension payable and ancillary privileges, it is pertinent to note at the outset that a similar claim had been considered by this Court in Miscellaneous Application Nos. 781 – 784/2024 in Civil Appeal Nos. 79 – 82/2012. In those proceedings, other SSCWOs who were also covered by the judgement in AU Tayyaba (supra) had challenged the decision of the Respondents to compute pension solely on the basis of the last-drawn salary at the time of their premature release from service.

Vide an order dated 15.04.2024,4 a 3-Judge Bench of this Court clarified the directions in AU Tayyaba (supra) and directed that pension shall be computed on the basis of the notional salary payable upon completion of the minimum pensionable service of 20 years. This necessarily entitled such SSCWOs to increments that would have accrued during the period between their release from service and the completion of minimum pensionable service.

Apart from the above clarification, it was also ordered that: (i) commutation of pension would be governed by the policy prevailing at the time of notional completion of 20 years of service; (ii) the SSCWOs shall be entitled to encashment of all their leaves, subject to the statutory ceiling of 300 days; (iii) the SSCWOs shall be entitled to the same Ex-

The present Application, which only seeks directions for notional time- scale promotion and corresponding revision of pension and other privileges, was filed prior to the pronouncement of the aforesaid clarificatory order dated 15.04.2024. By way of their Rejoinder Affidavit, the Applicants have brought the said order on record and seek directions in parity therewith.

There can be no doubt that the order dated 15.04.2024, being in the nature of an elucidation of the operative directions in AU Tayyaba (supra), applies equally to all the SSCWOs covered by it. To that extent, we accept the prayers of the Applicants and direct that the various clarifications made by this Court in Paragraphs 8, 12, 13, 14, and 15 of the order dated 15.04.2024 shall apply to the instant Applicants as well as all other Appellants/Intervenors who are covered by Paragraph 34(i) of AU Tayyaba (supra).

However, we are unable to accede to the further contention that the Applicants are entitled to notional time-scale promotion to the higher rank of Wing Commander.

This is primarily for the reason that the SSCWOs, admittedly, did not serve in that rank at any stage during their tenure. Apart from the financial benefits, a promotion in the Armed Forces carries a level of

Granting notional promotion would create an artificial equivalence between those officers who actually served as Wing Commanders in the Air Force and those who, notwithstanding their curtailed tenure of service, never held that rank. Such recourse would not only be conceptually untenable but may also have adverse implications for the hierarchical structure of the service.

This limb of the Applicants’ claim must therefore fail. The Applicants shall only be entitled to the pension on the basis of the pay applicable to their own rank at the notional date of completion of minimum pensionable service.

Ordered accordingly. The instant Miscellaneous Applications are disposed of in the above terms.

It is further directed that the clarifications issued in this order, as also through the order dated 15.04.2024 passed in Miscellaneous Application(s) No. 781 – 784/2024, shall apply to the pension and other consequential benefits granted by us through even dated judgements in

We have heard Ms. Vibha Datta Makhija, learned Senior Counsel, and Ms. Pooja Dhar, learned Advocate-on-Record, on behalf of the Appellants, as well as Ms. Aishwarya Bhati, learned Additional Solicitor General of India, for the Respondents and have carefully perused the records.

Having gone through the judgements relied upon by the Appellants, it becomes amply clear that the discretionary reliefs granted in Lalit Kumar Tandon (supra) and AU Tayyaba (supra) were premised upon the fact that the SSCOs concerned had acted promptly in challenging their release from service and had approached the relevant forum for relief within reasonable time after the High Court of Delhi (High Court) pronounced its judgement dated 12.03.2010 in Babita Puniya v. Secretary.3

In the instant case, however, the Appellants have not demonstrated comparable diligence. They were initially inducted into the Air Force on Short Service Commission in 1998. Although they were considered for the grant of PC in 2002, i.e. in their 5th year of service, the same was 1 2011 SCCOnLine AFT 191. 2 (2023) 5 SCC 688. 3 2010 SCC OnLine Del 1116. Page 3 of 4

At that juncture, instead of seeking a further extension of 4 years, as would have been available to them, the Appellants themselves sought to be released from service. Their request was accepted, and they were formally released on 25.06.2009. It is stated that they have since secured gainful employment in the private sector.

Owing to the High Court’s decision in Babita Puniya (supra), the Appellants sought to assail their release from service and their non- consideration for PC by filing OA No. 379/2011 before the AFT on 06.09.2011. This application was moved approximately 18 months after the pronouncement of Babita Puniya (supra), 7 months after the decision in Lalit Kumar Tandon (supra), and more than two years after their release from service, which had been effected at their own request.

This Court has, on previous occasions, dismissed similar cases wherein released and employed officers approached judicial fora belatedly, particularly in situations where they voluntarily left service and secured alternate employment. We find no reason to depart from that approach in the instant case.

For the foregoing reasons, the instant appeal is hereby dismissed.