Point of Law: Service Law - Grant of Permanent Commission - The government has not sanctioned Permanent Commission posts in ATC cadre and officers in ATC cadre are appointed on SSC.

ORDER :

1. Counter affidavit has been filed on behalf of respondents Indian Navy.

2. The counsel for the petitioner states that he is ready to argue the petition.

3. The issues entailed in the petition are required to be heard at length and which is not possible, owing to the impending superannuation of one of us (Rajiv Sahai Endlaw, J.).

4. The counsel for the petitioner expresses urgency. It is contended that the petitioner was inducted as a Short Service Commission (SSC) officer in the respondents Indian Navy and her maximum tenure of SSC of 14 years, is due to lapse on 5th August, 2021 and the petitioner has already been issued a release letter; this petition has been filed impugning her non-consideration for grant of Permanent Commission and also impugning the reasons for which she has been denied consideration for Permanent Commission. It is stated that the application of the petitioner for interim relief is also pending consideration.

5. We have heard the counsel for the petitioner and the counsel for the respondents Indian Navy on the aspect of interim relief.

6. We have enquired from the counsel for the petitioner, how, by an interim order, pending consideration of this petition, the petitioner can be granted stay of her release from the respondents Indian Navy, as is sought by way of interim relief. It is further enquired, whether not the same would tantamount to this Court, by an interim order, permitting the petitioner to occupy a public office, even before any right of the petitioner to occupy the same has been adjudicated by this Court. It has yet further been enquired, whether not in the event of the petition being dismissed, the petitioner, by way of an interim order, would have usurped a public office, without authorization of law. We may mention, that the respondents Indian Navy, on 24th May, 2021 when this petition had come up first for admission, opposed even issuance of the notice of the petition, on the ground of the jurisdiction to entertain the same being of the Armed Forces Tribunal (AFT). The said question is also still at large, for adjudication in this petition, and if it were to be held that this Court, in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India would not entertain this petition, owing to the statute having vested jurisdiction with respect thereto in AFT, this Court would have by an interim order allowed the petitioner to continue in employment, when as per the terms of her employment, she was not entitled to so continue after 5th August, 2021.

7. Attention of the counsel for the petitioner has been drawn to the decision of Supreme Court in State of Haryana vs. Suman Dutta, (2000) 10 SCC 311, wherein it has been observed that by an interim order, if an employee is allowed to continue in service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the same. Similarly, in State of U.P. vs. Sandeep Kumar Balmiki, (2009) 17 SCC 555, it was held that by an interim order, termination of employment could not be stayed, as giving such a relief amounted to allowing the writ petition itself. In Bhankra Byas Managing Board vs. Suresh, (2009) 7 SCC 515 also, while setting aside an interim order of the High Court granting compassionate employment, the Supreme Court observed that the High Court was not justified in granting such interim order at the admission stage and although a decree had been passed against the appellant directing the appellant to make compassionate appointment, but at the interim stage of the second appeal, the appellant could not be directed to appoint the respondent, on the statement of the respondent that he was ready to forego the past benefit if he was taken in service. Reference in this regard may also be made to the dicta of this Court in Rohit Sharma vs. Union of India, MANU/DE/0971/2021, Air India Ltd. vs. Aditya Beri, MANU/DE/2781/2012 and The Co-operative Store Lt