TaxTMI 
TaxTMI 
2022 (10) TMI 1230
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....f the selection proceedings when relevant material was disclosed only to the AFT in a sealed cover. The Facts 4. On 26 September 2008, the Ministry of Defence notified that women Short Service Commission "SSC" Officers would be eligible for grant of PC prospectively. In Union of India v. Lieutenant Commander Annie Nagaraj (2020) 13 SCC 1, the issue for consideration before this court was whether women who were inducted in various branches of the Indian Navy prior to 2008 were entitled to the grant of PC. By its judgment dated 17 March 2020, this Court observed, inter alia, that Paragraphs 109.5, 109.6 and 109.7 of the judgment in Annie Nagaraj : (i) As a result of the policy decision of the Union Government dated 25 February 1999, the terms and conditions of service of SSC Officers including women with regard to the grant of PC were governed by Regulation 203 of Chapter IV of Part III of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations 1963 "Regulations" ; (ii) The stipulation in the policy letter dated 26 September 2008 making it prospective and applicable only to specified branches/cadres of the Indian Navy (Education, Law and Nava....
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....ng the rejection of their claim for PC. In the alternative, they sought directions for the grant of pension. 7. By an order dated 24 August 2021, this Court dismissed the writ petitions on the ground that the Court had already laid down the principles for granting PC in Annie Nagaraj (supra) and Lt. Col. Nitisha v. Union of India (2021) SCC OnLine SC 261 . It was observed that the officers who were denied PC would assail the decision on the basis of individual facts and thus, it would be necessary for them to claim their reliefs before the AFT. The relevant observations are extracted below: "12 The petitioners who are considered for the grant of PC and were denied it would have to assail the decision not to grant them PC on the basis of the individual facts in each case. Bearing this in mind, it would be necessary for them to pursue their remedies before the AFT where the facts of each case can be scrutinized. If the petitioners were to succeed on their plea for the grant of PC, the alternative claim for invoking the jurisdiction under Article 142 would cease to have any practical significance. It is only if the denial of PC is upheld that the alternate plea can be pres....
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.... of Board and results; and (h) Analysis of the Selection Board Proceedings. 11. In paragraph 99 of the judgment, it is observed that the Board conducted its proceedings on 18 December 2020 according to the criteria approved in the Approach paper. Paragraph 37 of the impugned judgment extracts the selection procedure that was adopted by Indian Navy. Paragraph 37 of the judgment is extracted below: "37. The Counsel then took us through the criteria for selection and said that marks were apportioned as given below to work out inter-se merit. He added that there was no 'Value Judgment' mark as was applicable in promotion boards. He also stated that no one has been rejected based on medical criteria and all had been recommended by the CNS. He further added that the merit list was computer generated based on the criteria mentioned below; and that out of a total of 381 officers, 80 had been granted PC (41 women and 39 male officers). The counsel then elaborated on the factors and their weightage. Ser Factor Weightage Unsuitability Criteria (a) ACR Merit 90% (b) SLt Seniority 04% (c) War 02% Officer should n....
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....nd (xi) of the judgment 8 OA 2118/2018 WP 1478/2020 (TfrRajkumar) Cdr Mandip Kaur Exec/Lgd Batch -2005 Service- 16 Released 31.12.2020 Rel stayed in service PC 7/9 Low merit NR for PC in ACR 10/12 Low merit NR for PC ON acr Not eligible for PC Already Granted Pension 9 OA 816/2019 WP 1269/2020 (Tfr-Rajkumar) Cdr YK Singh Education/GS Batch- 2005 Service - 16 Released 31.12.2020 Rel stayed in service PC/Pension 15/20 Low merit 10/13 Low merit Not eligible for PC and not granted pension being inadmissible under Para 96(x) and (xi) of the judgment 10 OA 1361/2021 Fresh case Cdr Sarita Nagayach Exec/ Lgs Batch- 2007 Service -14 Released 05.08.2021 Retired PC/Pension 07/15 Low merit NR for PC in ACR 13/20 Low merit NR for PC in ACR Not eligible for PC and not grated pension being inadmissible under Para 96(x) and (xi) of the judgment 11 OA 1454/2021 WP 646/2021 Dismissed as withdrawn by applicant. Cdr Sandeep Singh Exec/Lgs Batch-2007 Service - 14 Rel Order 24.03.2021 Released 06.08.2021 PC/Pension 4/15 Low merit 8/20 Low merit Not eligible for PC and not grated pension being inadmissible und....
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....2020 Rel stayed In service PC 7/8 Low merit NR for PC in ACR 8/9 Low merit NR for PC in ACR Not eligible for PC Already granted pension 20 OA 2067/2021 WP 507/2021 (Tfr-Rajkumar) Cdr Puneet Pal Kaur Exec/Lgs Batch-2006 Service- 14 Released 12.05.2021 Rel stayed in service PC/Pension 5/12 Low merit 6/15 Low merit Not eligible for PC and not grated pension being inadmissible under Para 96(x) and (xi) of the judgment 21 OA 2068/2021 WP 1471/2020 (Tfr-Rajkumar) Cdr Shruti Dhawan Education/GS Batch- 1999 Service- 22 Released 31.12.2020 Rel stayed in service PC 6/8 NR for PC in ACR 7/9 NR for PC in ACR Not eligible for PC Already granted pension 22 OA 2069/2021 Fresh case Cdr Bhanu Pratap Singh Exec/Lgs Batch- 2007 Service- 14 Released 31.12.2020 Retired PC/ Pension 10/15 Low merit NR for PC in ACR 15/20 Low merit NR for PC in ACR Not eligible for PC and not grated pension being inadmissible under Para 96(x) and (xi) of the judgment 23 OA 2167/2021 (Tfr-RB Mumbai) WP No. 1269/2020 (Tfr-Rajkumar) Cdr Amit Kumar Sharma Education/GS Batch- 2003 Service- 18 Released 31.12.2020 Rel stay....
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....ore this Court in the Civil Appeals. Of these twenty six officers, thirteen are still in service pursuant to interim orders. The remaining thirteen officers are out of service since varying dates in 2020, 2021 and 2022. Apart from the twenty six officers who are appellants before this Court in the twelve civil appeals, eight officers have filed IAs for intervention. Seven out of eight officers are protected by interim orders while the tenure of the eighth officer (Commander Navneet Sharma) is to end in the month of December 2022. 15. Notice was issued in this batch of Civil Appeals on 31 January 2022. The grievance of the appellants is that the sealed cover procedure, which was followed by the AFT, has resulted in substantial prejudice. The Submissions 16. Mr Huzefa A Ahmadi and Mr C U Singh, senior counsel appearing on behalf of the appellants together with the other counsel - Ms Kamini Jaiswal, Ms Haripriya Padmanabhan and Ms Puja Dhar have submitted that the AFT, in the course of its decision, has extensively relied upon material which was submitted by the Naval Authorities in a sealed cover. It has been urged that this material was never disclosed to the appellants and....
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....and (viii) The grievances of individual officers have not been adjudicated. For instance, in the case of Commanders Annie Nagaraj and Amit Sharma, though they were recommended for the grant of PC and would fall within the existing vacancies, they have been denied PC on the ground that they were not recommended. 19. On the other hand, Mr R Balasubramaniam, senior counsel appearing on behalf of the respondents made the following submissions: (i) While computing the vacancies, the Naval Authorities have correctly borne in mind: (a) The overall cadre structure of the Indian Navy; (b) The policies which have been consistently followed; and (c) The pattern of future inductions and retirements; and the need to maintain a youthful profile in the Indian Navy and a balanced cadre structure. (ii) Grant of PC is governed by Regulation 203 according to which the availability of vacancies should be in the stabilised cadre; (iii)While the stabilised cadre normally comprises only of government sanctioned posts in the permanent cadre, in the spirit of the judgment of this Court, temporary vacancies and Training Drafting Leave Reserve....
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....icer would not be eligible for grant of PC, even if higher in merit. 20. The second respondent in the written submissions before this Court submitted that (i) it is a norm for the Board proceedings to only be provided to the AFT in a sealed cover; (ii) the AFT on a perusal of the proceedings of the Selection Board as well as confidential dossiers of the individual applicants found that the Navy had considered the claims of the officers for PC based upon the parameters laid down by this Court in Annie Nagaraja (supra). The Analysis 21. The AFT, inter alia, had to determine if (i) the Naval Authorities had correctly computed the vacancies against which the claims of the SSC Officers would be considered for the grant of PC; and (ii) the Selection Board considered the applications for the grant of PC fairly. The judgment of the AFT indicates that in assessing the validity of the exercise undertaken to determine vacancies and the fairness of the selection process, it placed extensive reliance on material drawn from the data emerging from the files which were submitted by the Union Government and the Naval Authorities in a sealed cover. The judgment of AFT sets out in paragraph ....
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....lic domain, there is no material on record to determine if the selection has been made in accordance with the criteria. The AFT has recorded that there are 'no mala fides' and 'no gender bias' in the selection process. However, there is no material available to the appellants to challenge these findings since the material was disclosed to the AFT in a sealed envelope. The orders granting PC to other officers also did not contain any reasoning on the inter-se merit of the applicants. The AFT on a perusal of the files submitted in a sealed cover recorded the status of the applicants in a tabular format that has been extracted in the earlier part of the judgment. However, the appellants were not privy to such information. 24. Material prejudice has been caused by the process which has been followed of disclosing the information of vacancies and the board proceedings to the AFT in a sealed cover. In Khudiram Das v. State of West Bengal (1975) 2 SCC 81, this Court held that the test for determining if material must be disclosed is whether in all 'reasonable probability', the material would influence the decision of the authority. Ruling in the context of preventive detention, a four-....
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....osed to the person to whom a notice to show cause is issued. SEBI had not disclosed the investigation report. It was the contention of SEBI that it had not relied on the investigation report to issue the show cause notice. The two Judge Bench observed that disclosure of information to the parties to the adjudication serves three purposes: (i) Reliability: The possession of information by both the parties can aid the courts in determining the truth of the contentions; (ii) Fair Trial: There is a legitimate expectation that parties are provided all the information for them to effectively participate in the proceedings; (iii) Transparency and accountability: It is necessary that the adjudication is not opaque but transparent. Transparency aids in establishing accountability. The observations on disclosure of information and its impact on transparency are extracted below: "22. [...] Keeping a party bereft of the information that influenced the decision of an authority undertaking an adjudicatory function also undermines the transparency of the judicial process. It denies the concerned party and the public at large the ability to effectively scruitinise the decisions of the aut....
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....ion bearing upon the stable and orderly functioning of the securities market. 52 The Board shall be duty-bound to provide copies of such parts of the report which concern the specific allegations which have been levelled against the appellant in the notice to show cause. However, this does not entitle the appellant to receive sensitive information regarding third parties and unrelated transactions that may form part of the investigation report." 27. The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with 'reasonable probability' influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence. 28. The non-disclosure of relevant material to the aff....
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.... for PC within the closed Board setting. While the AFT on a perusal of the records concluded that there was no gender bias or mala fides in the grant of PC, it must be borne in mind that the officers do not possess the material to challenge this observation. The respondents while protecting the confidentiality of the proceedings of the Board must disclose the position in merit of the appellants vis-à-vis the parameters and their weightage devised by the respondents. 30. We permitted counsel to address the Court briefly on the nature of objections which arise on the basis of the data as disclosed. Counsel for the appellants submitted that instead of a remand to AFT, this Court may carry out the exercise. We are not inclined to do so for two reasons. Firstly, a primary fact-finding role is entrusted to the AFT under the Armed Forces Tribunal Act 2007. While exercising its appellate jurisdiction, it would be appropriate if this Court has the benefit of a considered view of the AFT. To decide the issues for the first time in appeal, as a matter of first impression, would not be appropriate. Secondly, the issues which arise before the AFT primarily turn upon the determination ....