LT. COL. SUPRITA CHANDELversusUNION OF INDIA AND ORS.

                 [2024] 12 S.C.R. 381 : 2024 INSC 942

                         Lt. Col. Suprita Chandel
                                     v.
                         Union of India and Ors.
                       (Civil Appeal No. 1943 of 2022)
                              09 December 2024
              [B.R. Gavai and K.V. Viswanathan,* JJ.]


                            Issue for Consideration
       Matter pertains to the correctness of the order passed by the
       Armed Forces Tribunal, dismissing the application of the Appellant
       seeking relief of Permanent Commissioning, granted by the AFT,
       Principal Bench to the applicants therein, who were identically
       situated officers.

                                  Headnotes†
       Armed Forces – Permanent Commissioning – Benefit of –
       Extension of benefit to similarly situated persons – Appellant-
       Short Commissioned Officer in Army Dental Crops, denied
       third opportunity for permanent Commission in view of
       amendment in 2013 – However, the Principle Bench of the
       AFT holding that the applicants (identically situated officers)
       were denied the third chance directed consideration of their
       cases for permanent absorption by granting one-time age
       relaxation by considering them under the unamended policy –
       Appellant not considered because she was not part of the
       application – Appellant filed Original Application before the
       AFT, Regional Bench seeking the relief granted to the batch
       of similarly situated ones by AFT, Principal Bench, which
       attained finality– Said application dismissed – Correctness:
       Held: Where a citizen 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 – 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
* Author
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       the extension of the benefit of the said judgment – While the AFT
       Principal Bench granted relief to the applicants, it did not prohibit
       the department from considering similarly situated persons –
       Appellant is entitled to parity with those applicants who succeeded
       before the AFT, Principal Bench – Union of India not been able
       to point out any valid justification as to how the applicants who
       obtained the benefit from the AFT, Principal Bench and batch are
       not identically situated with the Appellant – Accepting the stand of
       the Union of India would result in this Court putting its imprimatur
       on an unreasonable stand adopted by the authorities – If the
       applicants who 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, no reason why the
       appellant should not be treated alike – No delay in the appellant
       approaching the tribunal – Appellant wrongly excluded from
       consideration when other similarly situated officers were considered
       and granted permanent commission – Since nothing adverse placed
       on record with regard to performance of the Appellant, in exercise
       of powers u/Art. 142 of the Constitution, the Appellant ought to be
       given Permanent Commission – Appellant’s case be taken up for
       grant of Permanent Commission and be extended the benefit of
       Permanent Commission along with the all consequential benefits
       with effect from the same date the similarly situated persons who
       obtained benefits pursuant to the judgment of the AFT, Principal
       Bench – Order of the AFT, Regional Bench quashed and set
       aside – Constitution of India – Art. 142. [Paras 10, 13, 14, 16, 17,
       18, 19, 21, 23-25]

                                Case Law Cited
       Amrit Lal Berry v. Collector of Central Excise, New Delhi and Others
       [1975] 2 SCR 960 : (1975) 4 SCC 714; K.I. Shephard and Others v.
       Union of India and Others [1988] 1 SCR 188 : (1987) 4 SCC 431;
       State of Maharashtra and Another v. Chandrakant Anant Kulkarni
       and Others [1982] 1 SCR 665 : (1981) 4 SCC 130 – referred to.

                                List of Keywords
       Armed Forces Tribunal; Permanent Commissioning; Identically
       situated officers; Extension of benefit to similarly situated persons;
       Short Commissioned Officer; Army Dental Crops; Third opportunity
       for permanent Commission; Permanent absorption; One-time age
       relaxation; Delay; Non-suited.
[2024] 12 S.C.R.                                                        383

           Lt. Col. Suprita Chandel v. Union of India and Ors.


                           Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1943 of 2022
     From the Judgment and Order dated 05.01.2022 of the Armed
     Forces Tribunal in OA No. 241 of 2021

                        Appearances for Parties
     Ms. Vibha Datta Makhija, Sr. Adv., Rakesh Kumar, Advs. for the
     Appellant.
     R Bala, Sr. Adv., Mukesh Kumar Maroria, Vatsal Joshi, Sanjay
     Kumar Tyagi, S S Rebello, Anuj Srinivas Udupa, Akshay Amritanshu,
     Siddhant Kohli, Advs. for the Respondents.

                Judgment / Order of the Supreme Court

                               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.
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
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            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.
            (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
            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
[2024] 12 S.C.R.                                                         385

           Lt. Col. Suprita Chandel v. Union of India and Ors.


          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.
          “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
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            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 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.
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.
[2024] 12 S.C.R.                                                           387

           Lt. Col. Suprita Chandel v. Union of India and Ors.


           2. As per directions of MoD communicated vide DGAFMS
           letter No.12252/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.
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. 1761 of 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.
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
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          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 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.
[2024] 12 S.C.R.                                                          389

           Lt. Col. Suprita Chandel v. Union of India and Ors.


           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)
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 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 is founded on
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       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 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 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.
[2024] 12 S.C.R.                                                       391

              Lt. Col. Suprita Chandel v. Union of India and Ors.


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 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. 241 of 2021 is quashed
    and set aside. No costs.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain