TMI Blog2022 (10) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation would affect third party rights. Once a prima facie case of sensitivity is established, the onus would then shift to the appellant to prove that the information is necessary to defend his case appropriately. 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. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue is whether the AFT could have adjudicated on the validity of 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 specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons before this Court challenging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for PC Already Granted Pension 5 OA 838/2018 WP 1471/2020 (Tfr-Rajkumar) Cdr Swati Bhatia Education/ GS Batch -2004 Service- 17 Released 31.12.2020 Rel stayed In service PC 12/14 Low merit 18/20 Low merit Not eligible for PC Already Granted Pension 6 OA 840/2018 WP 1478/2020 (TfrRajkumar) Cdr Vijayeta Education GS Batch-2004 Service 17 Released 31.12.2020 Rel stayed In service PC 8/14 Low merit 14/20 Low merit Not eligible for PC Already Granted Pension 7 OA 1959/2018 Old matter Cdr Kumar Dhiraj Batch- 2007 Service- 14 Released 9.01.2019 Retired PC Not considered since not in service on date of judgment Not considered since not in service on date of judgment Not eligible for PC and not granted pension being inadmissible under Para 96(x) and (xi) of the judgment 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 Joint with Ser 13 Cdr Shweta Kapoor Education/ GS Batch- 2007 Service- 14 Rel Order 5.8.2020 Released 05.08.2021 PC/Pension / Permit to service till 20 yrs (Ref BP/ N case) 11/11 Low merit 09/09 Low merit Not eligible for PC and not grated pension being inadmissible under Para 96(x) and (xi) of the judgment 15 Joint with Ser 13 Cdr Sapna C Lanjewar Education/GS Batch- 2007 Service- 14 Rel Order 05.08.2020 Released 05.08.2021 PC/Pension / Permit to service till 20 yrs (Ref BP/ N case) 7/11 Low merit 05/09 Low merit Not eligible for PC and not grated pension being inadmissible under Para 96(x) and (xi) of the judgment 16 Joint with Ser 13 Cdr SS Naik Education/GS Batch- 2007 Service-14 Rel Order 05.08.2020 Released 05.08.2021 PC/Pension / Permit to service till 20 yrs (Ref BP/ N case) 8/11 Low merit 06/09 Low merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stayed in service PC/Pension 2/3 NR for PC in ACR 9/14 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 24 OA 2168/2021 (Tfr-RB Mumbai) Old matter, transferred from AFT (RB0 Mumbai Lt Cdr Yogita Rani Education/GS Batch- 2003 Service- 18 Released 31.12.2020 PC/ Pension 3/3 Low merit 14/14 Low merit Not eligible for PC Already granted pension 25 OA 2169/2021 (OA 105/2017 RB Mumbai) WP 1269/2020 (Tfr-Rajkumar) Cdr PS Soodan Education/ GS Batch- 2004 Service- 17 Released 31.12.2020 Rel stayed In service PC/ Pension Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. 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 if the material had been disclosed to them, they would have been in a position to demonstrate that much of the data which has been relied upon is seriously in dispute and is not reflective of the correct position. Mr. R. Balasubramaniam, senior counsel appearing on behalf of the respondent, submitted that it is not as if the respondents voluntarily chose to place the data in a sealed cover and the files which were produced were on the directions of the AFT. 17. During the course of hearing, three principal submissions have been urged by Mr. Huzefa A Ahmadi, senior counsel: (i) In its decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (TDLR) vacancies were also added to the stabilised cadre; (iv)The vacancies of the stabilised cadre were worked out with reference to August 2015, September 2016 and March 2020; (v) The ratio of 60:40 (PC:SSC) has been approved by the Government of India on 3 November 2008 based on the AV Singh Committee report; (vi)Based on the above, the deficiencies in each stream were divided by a 15 year cycle which is the difference between the life of a PC Officer and SSC Officer in service; (vii) The deficiencies in manning strength cannot be given to any particular batch or a few batches because of the policy of the Navy to have a bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 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 92, a summary of the cadre-wise strength and vacancies to be considered for granting PC to the affected SSC officers. In paragraphs 93 and 94, the AFT has set out, in a similar manner, tabulated statements in regard to the utilisation of vacancies. This data did not form the subject matter of deliberations before the AFT. In fact, the counter affidavits in Commander Barsha Agrawal (supra) and Commander AK Sharma (supra) indicate that the data was submitted in the form of a sealed note. 22. Similarly, the Board proceedings were not disclosed to the appellants. The written submissions before this court and the submissions in Commander AK Sharma (supra) before the AFT indicate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants 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-Judge Bench of this Court observed: 15. Now, the proposition can hardly be disputed that if there is before the District Magistrate material against the detenu which is of a highly damaging character and having nexus and relevancy with the object of detention, and proximity with the time when the subjective satisfaction forming the basis of the detention order was arrived at, it would be legitimate for the Court to infer that such material must have influenced the District Magistrate in arriving at his subjective satisfaction and in such a case the Court would refuse to accept the bald statement of the District Magistrate that he did not take such material into account and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 authority since it creates an information asymmetry. 23. The purpose of disclosure of information is not merely individualistic, that is to prevent errors in the verdict but is also towards fulfilling the larger institutional purpose of fair trial and transparency. Since the purpose of disclosure of information targets both the outcome (reliability) and the process (fair trial and transparency), it would be insufficient if only the material relied on is disclosed. Such a rule of disclosure, only holds nexus to the outcome and not the process. Therefore, as a default rule, all relevant material must be disclosed. 26. This court observed that the right to disclosure is not absolute. Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of vacancies, the manner of utilising them and the fairness of the selection process. This is an exercise which had to be carried out by the Naval Authorities while implementing the judgment of this Court. The correctness of that determination fell for consideration before the AFT. In arriving at its conclusion upholding the determination, the AFT has not had the benefit of considering the objections of the appellants to the manner in which the exercise was carried out by the authorities. The objections of the appellants noted above would have been set out before the AFT if the material was disclosed to the appellants. The failure to disclose relevant material has caused substantial prejudice to the appellants. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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