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TMI Blog2022 (10) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Naval Construction) was not enforceable; (iii) All SSC Officers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pressed and this can be pursued after the decision of the AFT, by following the remedies available under the statute. Hence, on a considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not have been recommended G and below any time in the last five CR cycles held on record (d) Peer 02% Officer should not have been recommended G and below any time in the last five CR cycles held on record (e) Recommendation for PC 02% Officer should not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 under Para 96(x) and (xi) of the judgment 12 OA 1964/2021 WP 1471/2020 (Tfr-Rajkuamr) Cdr Pooja Rajput Exec/Lgs Batch- 2002 Service- 19 Released 31.12.2020 Rel stayed in service PC 5/7 Low merit 7/14 Low merit Not eligible for PC Already granted pension 13 OA 2008/2021 WP 703/2021 (Tfr-Rajkumar) Cdr Barsha Agarwal & 03 Ors 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) 9/11 Low meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 Permit to serve till 20 yrs (Ref BP/N case) 13/14 Low meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 decision in Annie Nagaraj (supra), this Court directed that the highest number of vacancies were to be considered in determining the claims of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. (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 balanced cadre structure, a youthful profile and a proper induction/retirement pattern in the long run; (viii) The vacancies assigned to each batch worked out in terms of the above model provided the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 that the Board proceedings were not disclosed to the officers and were submitted to the AFT in a sealed cover. The AFT on a perusal of the Board proceedings has observed that the second respondent had adopted proper procedure and suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 excluded it from consideration. It is elementary that the human mind does not function in compartments. When it receives impressions from different sources, it is the totality of the impressions which goes into the making of the decision a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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. Portions that involve information on third-parties or confidential information on the securities market may be withheld by SEBI. The court directed that the Board is duty bound to disclose parts of the investigative report that concern the specific all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. This case exposes the danger of following a sealed cover procedure. 31. For the above reasons we are of the view that a remand to the AFT would be necessitated. We are conscious of the fact that the AFT carried out a painstaking exercise while disposing of the O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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