THE SECRETARY, MINISTRY OF DEFENCE versus BABITA PUNIYA & ORS. on 17 February 2020

[2020] 3 S.C.R. 833

THE SECRETARY, MINISTRY OF DEFENCE

v.

BABITA PUNIYA & ORS.

(Civil Appeal Nos. 9367-9369 of 2011)

FEBRUARY 17, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDAJAY RASTOGI, JJ.]

Constitution of India:

Arts. 14, 15 (1) and 16(1) – Induction of women in Army underWomen Special Entry Scheme (Officers) [WSES] for a period of 5years – The initial process under WSES replaced by Short ServiceCommission (SSC) with outer period of fourteen years – Writ petitionseeking direction for grant of Permanent Commission (PC) to womenSSC officers – High Court held that SSC women officers who hadopted for PC and were not granted PC but granted extension ofSSC, were entitled to PC at par with male SSC officers – Appeal toSupreme Court – During pendency of the appeal Union Governmentby its communication dated 25 February 2019 granted PC to SSCwomen officers in ten arms of services of the Army – Held: Thepolicy decision of Union dated 25 February 2019 must be construedas a decision which enforces the fundamental right of women toseek access to public appointment and to equality of opportunity inpublic employment as envisaged in Articles 15(1) and 16(1) of theConstitution respectively – However, the distinction sought to bedrawn between women officers with less than fourteen years ofservice, with those having service between fourteen and twenty yearsand above twenty years, is fallacious – There is no reason to deprivewomen SSC officers of grant of PC on the ground that they havecrossed fourteen years of service because such situation arose onlydue to delay on part of the Union Government in implementing theorder of the High Court – Therefore, women SSC officers both withinthe period of 14 years of service and beyond, should equally beentitled to consideration for grant of PCs – Also the absolute baron women seeking criteria or command appointments is notsustainable being against the provisions under Article 14.

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Art. 33 – Scope of – Held: Limitation or abrogation offundamental rights in their application to members of Armed Forcesu/Art. 33, must be by law enacted to ensure proper discharge ofduties and maintenance of discipline.

Disposing of the appeals, the Court

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HELD: 1. Article 33 of the Constitution empowersParliament to determine by law the extent to which the rightsconferred by Part III of the Constitution shall be restricted/abrogated in their application inter alia to the members of theArmed Forces so as to ensure the proper discharge of their dutiesCand the maintenance of discipline among them. The impact ofArticle 33 is to enable Parliament to limit or abrogate thefundamental rights in their application to the members of theArmed forces. But such a restriction or abrogation must be bylaw. Moreover, the restriction or abrogation must be enacted toensure the proper discharge of duties and the maintenance ofDdiscipline. [Para 44] [865-E-G]

Ram Sarup v. Union of India [1964] 5 SCR 931; Lt.Col. Prithi Pal Singh Bedi v. Union of India (1982) 3SCC 140 : [1983] 1 SCR 393; R Viswan v. Union ofIndia (1983) 3 SCC 401 : [1983] (3) SCR 60 – referredEto.

2. Section 12 of the Army Act, 1950 embodies the principlethat a woman would be eligible for enrolment or employment onlyin such corps, departments, branches or bodies forming part ofor attached to the regular Army upon and to the extent notifiedFby the Central Government. In other words, the eligibility ofwomen for enrollment or engagement in the regular Army isconditional on a provision being made by the Central Governmentin terms of the enabling provision of Section 12. [Para 49][869-D-F]G3. Following the judgment of the impugned order, the Union

G3. Following the judgment of the impugned order, the UnionGovernment was under a mandate to grant PermanentCommissions (PCs) to women officers, to the exclusion of theCombat Arms, and at par with the grant of PCs to their malecounterparts. Significantly, the impugned judgment was not stayedby this Court at any stage, though there was a direction that noH

coercive steps would be initiated on the basis of the judgment inappeal. A direction by this Court not to initiate coercive steps isdistinct from a stay on the operation of the judgment. There wasno reason or justification for the Union Government not to actupon the directions that were issued by the High Court in theimpugned judgment, particularly, in the absence of a stay on theoperation and enforcement of the judgment. The UnionGovernment continued to thwart implementation despite theorder of this Court dated 2 September 2011 clarifying that “theoperation of the impugned judgment is not stayed at all.” Scantregard has been paid to the High Court and to this Court as well.Eventually, nearly nine years after the judgment, the UnionGovernment has communicated a policy circular dated 25February 2019 by which a decision has been taken to grant womenofficers PC in eight Arms/Services, in addition to the existingstreams of JAG and AEC. Thus, as a matter of policy, the UnionGovernment has taken a decision to allow for the grant of PCs inall the ten streams in which women officers were currently beingcommissioned as Short Service Commission (SSC) officers.[Para 50] [869-G-H; 870-A-D]

4. The decision of the Union Government to allow PCs towomen officers in all the ten streams where they are beinginducted as SSC officers substantially renders redundant thesubmission based on the provisions of Section 12 of the ArmyAct. Even on a textual interpretation of Section 12 as it stands, itis evident that the policy decision dated 25 February 2019 of theUnion Government has allowed for the grant of consideration ofPCs to commissioned women officers in all the ten streams whichhave been notified. [Para 51] [870-D-G]

5. The policy decision of the Union Government is arecognition of the right of women officers to equality ofopportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article15(1) of the Constitution. The second facet of the right is equalityof opportunity for all citizens in matters of public employmentunder Article 16(1). The policy statement of the UnionGovernment must therefore be construed as a decision whichenforces the fundamental right of women to seek access to public AB

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Aappointment and to equality of opportunity in matters ofengagement relating to the Army. The fundamental right isrecognised in the specified streams where women are permittedto seek engagement as equal members of the Armed force thatthe Indian Army represents. The decision of the UnionGovernment to extend the grant of PC to other corps in theBsupport arms and services recognizes that the physiologicalfeatures of a woman have no significance to her equal entitlementsunder the Constitution. Reliance on the “inherent physiologicaldifferences between men and women” rests in a deeplyentrenched stereotypical and constitutionally flawed notion thatCwomen are the ‘weaker’ sex and may not undertake tasksthat are ‘too arduous’ for them. [Paras 52 and 54] [870-F-H;871-A-C; 872-B-C]

6. The counter affidavit contains a detailed elaboration ofthe service which has been rendered by women SSC officers toDthe cause of the nation, working shoulder to shoulder with theirmale counterparts. Yet, that role is sought to be diluted by therepeated pleas made before this Court that women, by the natureof their biological composition and social milieu have a lessimportant role to play than their male counterparts. Such a line ofsubmission is disturbing as it ignores the solemn constitutionalEvalues which every institution in the nation is bound to upholdand facilitate. [Para 56] [873-A-B]

7. Women officers of the Indian Army have brought laurelsto the force. These are documented in the course of proceedingsand have not been controverted. To cast aspersion on the abilitiesFof the women officers on the ground of gender is an affront notonly to their dignity as women but to the dignity of the membersof the Indian Army – men and women – who serve as equal citizensin a common mission. [Para 56] [873-A-B; 874-G; 875-A]

8.1 Courts are indeed conscious of the limitations whichGissues of national security and policy impose on the judicialevolution of doctrine in matters relating to the Armed forces. Forthis reason the engagement of women in the Combat Arms hasbeen specifically held to be a matter of policy by the High Courtand which is not in question in the present appeals. TheHsubmissions by Union of India detract from the significant role which has been played by women SSC commissioned officers sincetheir induction in 1992. The time has come for a realization thatwomen officers in the Army are not adjuncts to a male dominatedestablishment whose presence must be “tolerated” within narrowconfines. The salient decision of the Union Government to extendPCs to women SSC officers in all ten streams in which they arecommissioned is a step forward in recognising and realising theright of women to equality of opportunity in the Army. This marksa step towards realising the fundamental constitutionalcommitment to the equality and dignity of women.[Para 57][875-A-E]

8.2. Courts are conscious of the limitations which questionsof policy impose on judicial intervention in matters relating tothe Armed Forces. At the same time, faced with a salient decisionof the Union Government to extend to all women SSC officersthe option for the grant of PCs as well as the situation which hascome to pass due to the non-implementation of the bindingdirections of the Delhi High Court as well as this Court, non-intervention in the present matter would be nothing short of atravesty of justice. [Para 66] [878-G-H; 879-A-B]

-Union of India v. P K Chaudhary [2016] 2 SCR 426 distinguished.

9.1. The proposal which has been submitted before thisCourt by the Union Government involves a three-stageassessment of women SSC officers for the grant of PCs. Adistinction has been made in the proposal between women officerswho have been in service for a period of less than fourteen yearsand those beyond. The proposal envisages that only those womenofficers with less than fourteen years of service would beconsidered for the grant of PCs. Under the terms of this proposal,women officers with more than fourteen years of service but lessthan twenty years of service would continue until they attainpensionable service of twenty years, without the grant of PCs.Women officers who have crossed twenty years’ service wouldbe discharged from service immediately subject to receipt ofpension. The proposal has been commended for acceptance tothis Court on the ground that it allows women officers who havecrossed fourteen years of service to receive pensionary benefits, AB

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Awhere such benefit would otherwise not be available to them.[Para 58] [875-E-H]

9.2. There is fundamental fallacy in the distinction whichhas been sought to be drawn between women officers with lessthan fourteen years of service with those with service betweenBfourteen and twenty years and above twenty years. Nearly adecade has elapsed since the date of the decision of the HighCourt. The Union Government was duty bound to enforce thejudgment of the Delhi High Court, the judgment not having beenstayed during the pendency of these appeals. Having failed toenforce the judgment, the Union Government has now informedCthe Court that it would not consider women officers who havecrossed the age of fourteen years in service as SSC officers forthe grant of PCs. This situation of women officers with serviceabove fourteen years has come to pass plainly as a consequenceof the failure of the Union Government to comply not only withDthe directions of the High Court but also those which were issuedby this Court on 2 September 2011. In this view of the matter,there is no reason or justification to deprive SSC women officersof the grant of PCs on the ground that they have crossed fourteenyears of service. The failure of the government to implement thejudgment of the High Court has caused irreparable prejudice toEthe women officers. To turn around now and inform them thatthey will lose the entitlement of being considered for the grant ofPCs would be a travesty of justice. Therefore, SSC womenofficers, both within the period of fourteen years’ service andbeyond, should equally be entitled to consideration for the grantFof PCs. [Paras 59 and 60] [876-A-G]

10. The policy decision which has been taken by the UnionGovernment on 25 February 2019 indicates that it is to applyprospectively. It is necessary for this Court to clarify that theprospective application of the decision does not mean that it wouldGapply to women officers who have been appointed as SSCs officersafter the date of the decision. The Union Government has notapplied it in such a manner, which is evident from the fact thatthe decision contemplates that women officers already in servicebut with less than fourteen years would be entitled to beconsidered. Therefore it is clarified that the policy decision willH

apply to all women SSC officers who are currently in serviceirrespective of the length of service which has been rendered bythem. [Para 61] [876-F-H; 877-A-B]

11. The next aspect of the policy decision relates to therestriction which has been imposed on women officers beinggranted PCs save and except for staff appointments. Such arestriction was not imposed when the JAG and AEC brancheswere opened up for the grants of PCs for women SSC officers inthe past. The consequence of this, is an implicit acceptance bythe Army that women can, in certain situations, receive criteriaor command appointments. An absolute bar on women seekingcriteria or command appointments would not comport with theguarantee of equality under Article 14. Implicit in the guaranteeof equality is that where the action of the State does differentiatebetween two classes of persons, it does not differentiate them inan unreasonable or irrational manner. In this sense, even at itsbare minimum, the right to equality is a right to rationality. Wherethe State, and in this case the Army as an instrumentality of theState, differentiates between women and men, the burden fallssquarely on the Army to justify such differentiation with reason.An absolute prohibition of women SSC officers to obtain anythingbut staff appointments evidently does not fulfill the purpose ofgranting PCs as a means of career advancement in the Army.Whether a particular candidate should or should not be granted acriteria or command assignment is a matter for the competentauthority to consider having regard to all the exigencies ofservice, performance and organisational requirements. In thepresent case the Army has provided no justification in dischargingits burden as to why women across the board should not beconsidered for any criteria or command appointments. Commandassignments are not automatic for men SSC officers who aregranted PC and would not be automatic for women either. Theabsolute exclusion of women from all others except staffassignments in indefensible. If the army has cogent reasons forexcluding women from a particular criteria or commandappointment, it may provide them to the relevant authoritiesand if necessary, to future courts. However, such a justificationmust take place on a case-to-case basis, in light of therequirements and exigencies of a particular appointment. The AB

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Ablanket non-consideration of women for criteria or commandappointments absent an individuated justification by the Armycannot be sustained in law. Therefore, the expression “in variousstaff appointments only” in paragraph 5 and that “on staffappointments only” in paragraph 6 of the communication dated25 February 2019 shall not be enforced. [Paras 67 and 68]B[879-B-H; 880-A-B]

12. The policy decision which has been taken by the UnionGovernment allowing for the grant of PCs to SSC women officersin all the ten streams where women have been granted SSC inthe Indian Army is accepted, subject to: (a)All serving womenCofficers on SSC shall be considered for the grant of PCsirrespective of any of them having crossed fourteen years or, asthe case may be, twenty years of service; (b) The option shall begranted to all women presently in service as SSC officers; (c)Women officers on SSC with more than fourteen years of service Dwho do not opt for being considered for the grant of the PCs willbe entitled to continue in service until they attain twenty years ofpensionable service; (d) As a one-time measure, the benefit ofcontinuing in service until the attainment of pensionable serviceshall also apply to all the existing SSC officers with more thanfourteen years of service who are not appointed on PC; (e) TheEexpression “in various staff appointments only” in para 5 and“on staff appointments only” in para 6 of communication dated25 February, 2019 shall not be enforced; (f) SSC women officerswith over twenty years of service who are not granted PC shallretire on pension in terms of the policy decision; and (g) At the

Fstage of opting for the grant of PC, all the choices for specialisationshall be available to women officers on the same terms as for themale SSC officers. Women SSC officers shall be entitled to exercisetheir options for being considered for the grant of PCs on thesame terms as their male counterparts. SSC women officers who are granted PC in pursuance of the above directions will beGentitled to all consequential benefits including promotion andfinancial benefits. However, these benefits would be madeavailable to those officers in service or those who had moved theHigh Court by filing the Writ Petitions and those who had retiredduring the course of the pendency of the proceedings. [Para 69]H[880-D-H; 881-A-E]

THE SECRETARY, MINISTRY OF DEFENCE v.BABITA PUNIYA

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9367-9369 of 2011.

From the Judgment and Order dated 12.03.2010 of the High Courtof Delhi at New Delhi in W.P.(C) Nos. 1597 of 2003, 16010 of 2006 and9028 of 2008.

With

Civil Appeal Nos. 1127-1128 of 2013, 1210 of 2020.

Tushar Mehta, SG, Sanjay Jain, ASG, R. Balasubramanian,Ms. Aishwarya Bhati, P.S. Narasimha, C.U. Singh, Sr. Advs., Ms. NeelaGokhale, Ms. Saniya Scott, Yuvraj Sharma, Padmesh Mishra, ArkajKumar, Ashray Behura, Ms. Shradha Agrawal, Ms. Shruti Dixit, IlamParidi, Chitrangda Rastravara, Ms. Kirti Khangarot, Ms. OorjasviGoswami, Celeste Agarwal, Nitin Pavuluri, Ms. Archana Pathak Dave,Ms. Aditi Tripathi, Ms. Sindoora VNL, Ms. Kanti, Sridhar Potaraju, Ms.Shweta Parihar, Ms. Shiwani Tushir, Ms. G. Ushari, Vishnu Tulasi Menon,Md. Ali, Nikhil Goel, Ms. Naveen Goel, Dushyant Sarna, Vinay Mathew(for Santosh Krishnan), Ms. Arunima Dwivedi, Arvind Kumar Sharma,Harish Pandey, Mukesh Kumar Maroria, Sudhanshu Shekhar Pandey,Gaichangpou Gangmei, Abhishek R. Shukla, Arjun D. Singh, Anant VijayPalli, Ms. Garima Sachdeva, Nikhil Palli, Deepak Goel, Anil KumarBakshi, Ms. Meenakshi Lekhi, Harish Pandey, Jitender Kr. Tripathi, AlokKr. Pandey, Sanchar Anand, Anant K. Vatsya, Devendra Singh, DeepakGoel, Vivek Narayan Sharma, Jasdeep Singh, Pragyan Mishra, ShubhamAwasthi, Akash Sharma, Rajeev Kumar Jha, Ms. Suman Rani, SantoshKrishnan, B. V. Balaram Das, Ms. Pooja Dhar, Ms. HaripriyaPadmanabhan, Shurtanjaya Bharadwaj, Vishal Sinha, Ms. Sunieta Ojha,Mayank Tripathy, Ms. Monisha Handa, Mohit D. Ram, Sachin Kaushal,Ms. Liz Mathew, Navneet R., Ms. Sonali Jain, Anupam Raina, ManinderJit Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Beendu Singh,Advs. for the appearing parties.

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[2020] 3 S.C.R.

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.Index A Background of the dispute BB Proposal of the Union of India C Submissions D Consequence of the policy letter dated 25 February 2019

E Stereotypes and women in the Armed Forces CF Consequence of non-compliance G Blanket restriction on criteria appointments H Directions A Background of the disputeD

1. A quest for equality of opportunity for women seeking PermanentCommissions[1] in the Indian Army forms the basis of these appeals. Thelead appeal originated in a batch of Writ Petitions which were institutedbefore the High Court of Delhi in 2003 and 2006.

2. A decade and more spent in litigation, women engaged on ShortEService Commissions[2] in the Army seek parity with their malecounterparts in obtaining PCs. The entry of women in the Army has achequered history. Section 12 of the Army Act 1950[3] contains, in so faras it is material, the following provisions:

“12. Ineligibility of females for enrolment or employment.- NoFfemale shall be eligible for enrolment or employment in the regularArmy, except in such corps, department, branch or other bodyforming part of, or attached to any portion of, the regular Army asthe Central Government may, by notification in the Official Gazette,specify in this behalf.”G3. Pursuant to the power conferred by Section 12, the UnionGovernment issued a notification[4] dated 30 January 1992 making women 1 “PC”

2 “SSCs”

3 “1950 Act”H4 SRO-11

eligible for appointment as officers in the specific branches/cadres ofAthe Army. These were:

“(i) Army Postal Service;

(ii) Judge Advocate General’s Department;

(iii) Army Education Corps;

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(iv) Army Ordnance Corps (Central Ammunition Depots and Material Management); and

(v) Army Service Corps (Food Scientists and Catering Officers).”

This notification was to remain in force for a period of five yearsfrom the date on which it was published in the official Gazette. SRO-11was published in the Gazette on 15 February 1992.

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4. By a notification[5] dated 31 December 1992, women becameeligible for enrollment in the following corps/departments of the regularArmy:

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“(i) Corps of Signals,

(ii) Intelligence Corps,

(iii) Corps of Engineers,

(iv) Corps of Electrical and Mechanical Engineering, E

(v) Regiment of Artillery.”

5. The provision for the induction of women for an initial period offive years was extended by a notification[6] dated 12 December 1996issued by the Ministry of Defence[7]. The notification deleted paragraph2 of SRO-11 under which enrollment was to be for a period of fiveyears.

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6. On 28 October 2005, a notification[8] was issued by the MoD bywhich the Union Government extended the validity “of the scheme ofappointment of women as officers in the Indian Army”. To facilitatethis, four amendments were made to the earlier notification dated 15GFebruary 1992:

5 SRO-1, published in the Gazette on 23 January 19936 SRO-10(E)

7 “MoD”

8 SRO-121, published in the Gazette on 19 November 2005

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A(i)The tenure of women officers inducted under the WomenSpecial Entry Scheme (Officers)[9] under the notificationsdated 15 February 1992, 23 January 1993 and 12 December1996 was extended by five years from 1997;

(ii) The tenure of SSC male officers and WSES officers wasBextended up to fourteen years;

(iii) The WSES was to cease to apply as a consequence ofwhich women officers were to be inducted through SSC inthe corps/services notified by the notification dated 15February 1992, 23 January 1993 and 12 December 1996;and C

(iv) Substantive promotions were to be extended both to menand women SSC officers “as applicable to PC officers”.

7. Initially, when the WSES was notified under an Armyinstruction[10], it was governed by the Terms of Engagement.[11] Para 1 ofDthe ToE stipulated that commission would be for a period of five years inthe Army Service Corps, Army Ordnance Corps, Army Education Corps[12]and Judge Advocate General Department[13]. Para 12 contemplated thaton the successful completion of pre-commission training, ‘lady cadets’would be granted PCs in the rank of second Lieutenant, but they wouldbe placed junior to other candidates passing out from the Indian MilitaryEAcademy and would be granted regular commission from the same date.Para 19 contemplated that:

“19. Disposal on Expiry of Commission: On expiry of contractualperiod of commission i.e. five years commissioned service fromthe date of grant of commission, they will be released from theFservice. The officers granted commission under this ArmyInstruction will not be granted permanent commission or anyextension beyond five years of commissioned service.”

8. The original ToE provided for a contractual period of five yearsafter which the officers were to be released from service. The officerswho were granted commission under the Army instruction were notGentitled to PC or to any extension beyond five years of commissionedservice.9 “WSES”10 SAI NO/1/5/9211 “ToE”12 “AEC”H13 “JAG”

9. On 1 August 1996, an amendment was issued to the WSES,under which the commission for an initial period of five years was madefurther extendable by five years in the Regiment of Artillery, Corps ofEngineers, Corps of Signals, Army Service Corps, Army Ordnance Corps,Corps of Electrical and Mechanical engineers, AEC, Intelligence Corpsand JAG department. Women who had been granted commission for aninitial period of five years were required to furnish an option for extensionby five years or for release. A provision was made for promotion on asubstantive basis to the rank of a Lieutenant after two years and to therank of Captain after five years. The provision contained in para 19 ofthe earlier Army instruction[14] for the release from service on thecompletion of the contractual period of five years was substituted by thefollowing provision:

“19. Disposal on Expiry of Commission. On expiry of contractualperiod of commission i.e. five years/ ten years from the date ofgrant of commission as the case may be, they will be releasedfrom the service. The officers granted commission under theseArmy Instruction will not be granted permanent commission.”

10. The position that emerges from the above narration is thatwhen the induction of women in the Army was envisaged with effectfrom 15 February 1992 in stipulated branches and cadres, the tenure ofengagement was five years. The above stipulation of five years wasdeleted on 12 December 1996. On 19 November 2005, the MoD providedthat the tenure of WSES officers would be extended up to fourteenyears. The Army instruction broadly followed the same course, as aconsequence of which a cap on the length of service was introduced.The initial process of induction under the WSES was replaced by SSCswith an outer period of fourteen years.

11. The contesting respondents (other than the first respondent,who is not an Army officer) were selected in the Army as SSC officerscommencing from 1995-96.

12. In February 2003, Babita Puniya, an advocate instituted aWrit Petition[15] in the nature of a Public Interest Litigation[16] before theDelhi High Court for the grant of PC to women SSC officers in theArmy.

14 SAI NO 1/5/9215 WP (C) 1597 of 200316 “PIL”

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A13. During the course of the proceedings, two circulars were issuedon 20 July 2006, conveying the sanction of the President of India regardingthe grant of SSCs both on the technical and non-technical side to womenofficers. The period of training was stipulated at fourty-nine weeks atpar with male SSC officers. The circulars had comprehensive provisionspertaining among other things, tenure, substantive promotions andBadjustment of seniority. Serving WSES officers were given an option tomove to the new SSC scheme or to continue under the erstwhile WSES.The first batch of women officers under the new scheme entered theArmy in 2008. Among the terms and conditions, para 1(a) provided fortenure in the following terms:C“(a) Tenure of Short Service Commission: Short ServiceCommission (SSC) Technical in the Regular Army will be grantedfor 14 years i.e. for an initial period of ten years extendable by afurther of four years.”

14. Para 1(c) enabled newly inducted women officers other thanDthose with a specialised course to leave service after completing fiveyears of service. Substantive promotions were provided in Para (e) inthe following terms:

“(e) Substantive Promotion: Women granted Short ServiceCommission under these rules will be eligible for substantiveEpromotion as under:-

(i) To the rank of Capt - On completion of 2 years reckonablecommissioned service.

(ii) To the rank of Maj - On completion of 6 years reckonablecommissioned service.F(iii) To the rank of LT Col - On completion of 13 years reckonablecommissioned service.”

Para 1(g) provided for the adjustment of seniority:

“(g) Adjustment of Seniority: To make adjustment for shorterGtraining of SSC Women Officers vis-à-vis PC officers, the seniorityof SSC Women Officers will be depressed by the periodcorresponding to the difference in training period between theSSC course under consideration and the training period of itsequivalent PC Course. This adjustment of seniority will be carriedHout at the time of grant of first substantive rank of Captain. The revised seniority will have no effect on the pay and allowancegranted in the rank of Capt. Major and Lt Col.”

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Para 2-A allowed serving officers under the WSES to exercisean option to opt for the SSC scheme within six months failing which,they would be treated to have exercised the option to continue under theerstwhile scheme. Para 4 contained the following stipulation:

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“4. All other provisions of AI 1/93 except Para 18 and SAI 1/S/92as amended will be applicable, mutatis mutandis, to women grantedSSC subject to issue of separate AI for SSC (Women) (Tech).”

Consequently, all other provisions contained in SAI-1/S/1992 wereto apply mutatis mutandis to women who were granted SSCs.

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15. Apart from the PIL which was instituted before the High Courtof Delhi, a Writ Petition[17] was filed by Major Leena Gurav on 16 October2006 primarily to challenge the terms and conditions of service imposedby the circulars dated 20 July 2006 and for seeking the grant of PCs forwomen officers.

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16. On 26 September 2008, the MoD issued a circular envisagingthe grant of PCs prospectively to SSC women officers in the JAGdepartment and the AEC. The circular was challenged before the DelhiHigh Court by Major Sandhya Yadav and others on the ground that itgranted PCs only prospectively and only to certain specified cadres.

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17. The Writ Petitions were heard together by the Division Benchof the Delhi High Court. By a judgment dated 12 March 2010, the HighCourt issued the following directions:

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i.The claim of absorption in areas of operation not open forrecruitment of women officers cannot be sustained being apolicy decision.

ii.The policy decision not to offer PC to Short ServiceCommissioned officers across the board for men and womenGbeing on parity and as part of manpower managementexercises is a policy decision which is not required to beinterfered with.

Aiii.The Short Service Commissioned women officers of the AirForce who had opted for PC and were not granted PC butgranted extension of SSCs and of the Army are entitled toPC at par with male Short Service Commissioned officerswith all consequential benefits. This benefit would beconferred to women officers recruited prior to change of policyBas (ii) aforesaid. The Permanent Commission shall be offeredto them after completion of five years. They would also beentitled to all consequential benefits such as promotion andother financial benefits. However, the aforesaid benefits areto be made available only to women officers in service orCwho have approached this Court by filing these petitions andhave retired during the course of pendency of the petitions.

iv.It is made clear that those women officers who have notattained the age of retirement available for the PermanentCommissioned officers shall, however, be reinstated in serviceDand shall be granted all consequential benefits includingpromotion, etc. except for the pay and allowance for the periodthey have not been in service.

v.The necessary steps including release of financial benefitsshall be done by the authorities within two (2) months ofEpassing of this order.”

At this stage, it would be appropriate to briefly dwell on the abovedirections.

18. Clause (i) envisages that “areas of operation” of the Armedforces where recruitment of women officers is not open was excludedFfrom the purview of the judgment of the High Court on the ground thatit is a matter of policy. Women have been excluded from combatoperations. This exclusion which has not been interfered with in direction(i) above on the ground that it is a matter of policy is not the subjectmatter of contest in the present appeals. Direction (ii) envisages thatGwhere a policy decision has been taken not to offer PC to SSC officers- both men and women without distinction as a part of manpowermanagement, such a policy decision was not be interfered with. Direction(iii) envisages that women officers of the Air Force and Army on SSCwho had opted for the grant of PC but were not granted that statuswould be entitled to PC at par with male SSC officers with allHconsequential benefits. PC was to be offered to them after the completion of five years together with consequential benefits of promotion and otherfinancial benefits. However, this benefit was only available to womenofficers in service who had instituted proceedings before the High Courtand had retired during the pendency of the Writ Petitions. By direction(iv), it was envisaged that women officers who had not attained the ageof superannuation for PC officers would be reinstated with allconsequential benefits.

19. Assailing the judgment of the High Court, the Union of India isin appeal. The present batch of appeals relates to the Indian Army. Thedirections issued by the High Court in regard to the Indian Air Force arenot the subject of contest in these appeals.

20. Contempt proceedings were initiated by the respondents againstthe Union of India alleging non-compliance with the judgment of theDelhi High Court. On 2 August 2010, the Solicitor General of India madea statement before this Court that “women SSC officers in service wouldbe considered for grant of Permanent Commission in JAG and EducationBranch of the Army within two months…” In view of the statementmade before this Court, the contempt proceedings were stayed. By anorder dated 4 October 2010, time for compliance with the order dated 2August 2010 was extended until 1 December 2010.

21. On 11 January 2011, this Court, while issuing notice, accededto the prayer of the Additional Solicitor General of India for anadjournment of six weeks to enable a ‘high powered committee’constituted by the Union Government to consider the question pertainingto the grant of PCs to SCC women officers and to enable the Chief ofStaffs’ Committee and the MoD to consider the report. During thependency of the proceedings, applications for impleadment were allowedon 4 March 2011 and the operation of release orders passed by theUnion of India on 19 January 2011 was stayed. On 2 September 2011,this Court dealt with an application filed by eleven applicants for re-instatement in the Army in terms of the judgment of the Delhi HighCourt. Dealing with the application, this Court observed that:

“What is stayed as interim measure by this Court is action ofcontempt initiated by the original writ petitioners against thepetitioners in Special Leave Petitions. The operation of theimpugned judgment is not stayed at all.”

(Emphasis supplied)

A

B

C

D

E

F

G

H

AIt was explicitly clarified that no stay had been issued on thejudgment of the Delhi High Court. Hence, eleven applicants were allowedto be re-instated in terms of the judgment of the Delhi High Court subjectto the outcome the appeal. Eventually, leave was granted on 2 September2011. During the pendency of the appeal, on 24 April 2012, this Courtallowed impleadment applications and stayed a release order 10 AprilB2012. As a consequence, the applicants were held to be entitled to regularsalary and other emoluments in the ranks which they were presentlyholding. Similar orders were passed by the Court on 12 July 2013.

B Proposal of the Union of India

C22. During the pendency of this appeal, the Union Government inthe MoD issued a communication dated 25 February 2019 for the grantof PCs to SSC women officers in eight arms or services of the Army, inaddition to the JAG and AEC which had been opened up earlier for PC.The communication stipulates that:

D“The sanction of the President is hereby conveyed for considerationof grant of Permanent Commission to SSC Women Officers inthe eight arms/services in Indian Army viz. Signals, Engineers,Army Aviation, Army Air Defence, Electronics and MechanicalEngineers (EME), Army Service Corps, Army Ordnance Corpsand Intelligence in addition to the existing two streams of JudgeEAdvocate General (JAG) and Army Education Corps (AEC). Thuswomen will be considered for grant of PC in all the ten streams inwhich they are currently being commissioned as SSC Officers.”

The communication further stipulates that:

F(i)Women officers will continue to be commissioned in theabove mentioned ten arms/services as earlier with nochange in their tenure of SSC engagement;

(ii) On the completion of three years and before completingfour years of commissioned service, they will be requiredto exercise an option for the grant of PC and the choice ofGspecialisation;

(iii) SSC women officers will be considered for the grant ofPC based on the availability of vacancies and subject towillingness, suitability, performance, medical fitness andcompetitive merit; H

(iv) On the grant of PC, women officers will be employed “inAvarious staff appointments only” in accordance with theirqualifications, professional experience, specialisation, if any,and organisational requirements;

(v) While women officers who are granted PCs will continueto be a part of their parent Army/service, “they would serveBon staff appointments only” both within the parent Army/service and in other fields of specialization;

(vi) Further career progression in selected ranks will be withinthe existing authorised strength of officers in the Armyand no additional select rank vacancies will be created; C

(vii) Women officers who fail to exercise the option for PC willbe governed by the terms and conditions under which theywere commissioned; and

(viii) The policy would come into effect prospectively from thedate of the issuance of the letter.D

The communication dated 25 February 2019 is reproduced below:

“Policy letter dated 25 February 2019

F. No. 14(01)/2018-D(AG)

E

Government of IndiaMinistry of Defence

New Delhi,

Dated the 25[th] February, 2019

F

To

The Chief of Army Staff,

New Delhi

Subject: Permanent Commission to Short ServiceCommission (SSC) Women Officers in Indian Army.

G

This is in continuation of MoD letter No. 12(01)/2004-D(AG) Pt. II dated 26.09.2008 and letter No. 671/2009-(AG)dated 11.11.2011 regarding induction of women in Armed Forcesand grant of Permanent Commission (PC) to Short ServiceCommission (SSC) Women Officers.

H

SUPREME COURT REPORTS

A

2. The sanction of the President is hereby conveyed forconsideration of grant of Permanent Commission to SSC WomenOfficers in the eight arms/services in Indian Army viz. Signals,Engineers, Army Aviation, Army Air Defence, Electronics andMechanical Engineers (EME), Army Service Corps, ArmyOrdnance Corps and Intelligence in addition to the existing twostreams of Judge Advocate General (JAG) and Army EducationCorps (AEC). Thus women will be considered for grant of PC inall the ten streams in which they are currently being commissionedas SSC Officers.

B

3. Women Officers will continue to be commissioned into theabove mentioned ten Arms and Services hither-to-force, with nochange in their tenure of Short Service engagement.

C

4. On completion of three years of commissioned service andbefore completion of four years of commissioned service, theywill be required to exercise option for grant of PC and their choicesfor specialization.

D

5. SSC Women Officers will be considered for grant of PC basedon the availability of vacancies and subject to willingness, suitability,performance, medical fitness and competitive merit. On grant ofpermanent commission, these women officers will be employedin various staff appointments only as per their qualification,professional experience, specialization if any and organizationalrequirement.

E

6. Women Officers granted PC will continue to be part of theirparent arm/service. However, they would serve on staffFappointments only, both within their parent arm/service and in otherfields of their specialization.

7. Their further career progression in select ranks will be withinthe existing authorised strength of officers in Indian Army inaccordance with paragraph 6 above and no additional select rankGvacancies will be created for this purpose.

8. Women Officers who fail to exercise option for permanentcommission or do not opt for permanent commission will begoverned by terms and conditions under which they werecommissioned.

H

9. This policy will come into effect prospectively from the date ofissue of this letter.

A

10. Necessary administrative instructions in this regard will beissued by Army HQ.

11. This issues with the concurrence of MoD (Finance) vide theirBID No.2(12)/2019(50-PA) dated 22.02.2019.

(Poornima Rajendran)Deputy SecretaryTel: 23011593

C

Copy to: As per standard distribution”

23. During the course of hearing, Mr R Balasubramanian, learnedSenior Counsel appearing on behalf of the Union of India has tendered aproposal which envisages that:

D

(i) Women officers of up to fourteen years of service would beDconsidered for the grant of PC with further career progressiononly in staff appointments in terms of the Union Government’scommunication dated 25 February 2019. Since womenofficers above four years of service have missed the cut-offstipulated in the communication for exercising their choice toEopt for the grant of PC and specialisation, the provisions wouldbe modified for the benefit of such officers;

(ii) Women officers with more than fourteen years of servicewould be permitted to serve for up to twenty years withoutbeing considered for the grant of PC and would be thenreleased with pensionary benefits subject to meetingdisciplinary and medical criteria; and F

(iii) Women officers with more than twenty years of service wouldbe released with pensionary benefits immediately upon theconclusion of the present appeal.

G

The rationale for the above classification is explained in thefollowing terms:

(i) In 1992, the Army introduced the WSES in the Army ServiceCorps, Army Ordnance Corps, AEC and the JAG branches.

H

AThe training period was twenty-four weeks and the tenureof service was five years;

(ii) In 1996, the tenure was extended by five years in Corps ofEngineers, Signals and Electrical and Mechanical Engineeringbranches; and B

(iii) In 2004, the tenure was extended from ten years to fourteenyears (5+5+4). Women officers who have rendered morethan fourteen years of service belonged to the erstwhileWSES whose ToE were initially for a period of five years,extended in two spells, thereafter to fourteen years (5+5+4).CSince their employment was for a limited period, they wereimparted shorter pre-commission training of twenty-fourweeks as against forty-nine weeks for male officers. Theseofficers have limited exposure and responsibility and manyin the technical arms are not qualified.

D24. In pursuance of an order dated 23 July 2018 of this Court inthe present appeal, the Union of India in the MoD filed an affidavitdated 4 May 2018. The Union of India states that the services in theArmy are classified into three broad categories: (i) Combat Arms; (ii)Combat Support Arms; and (iii) Services. SSC for women was availableonly in Combat Support Arms and Services. Combat Arms have beenEexcluded for SSC appointments for women in the Army. The judgmentof the Delhi High Court has also affirmed this position. In 2008, thebenefit of PC was extended to SSC women officers in the JAG andAEC which belonged to the Services stream. As a consequence of thejudgment of the Delhi High Court, it has been held that in all streamsFwhere the Army has provided the option for SSC women officers, thereshould be no impediment for extending the option for the conferment ofPCs. The effect of the judgment is that all SCC women officers indifferent disciplines in the Combat Support Arms and in the Servicescategory to whom the judgment applies have continued in service beyondthe maximum permissible term of fourteen years as SSC officers.G

25. Women SSC officers commissioned before 2008 who wereparties before the High Court but had been discharged from servicesecured the benefit of being reinstated in service as a consequence ofthe judgment of the Delhi High Court. As a result, they have continuedafter the expiry of the term of fourteen years. The Union of India contendsHthat restrictions on the employability of women in the Army “is inescapable due to the peculiar operational compulsions of the Army”. According tothe Union Government, measures to eradicate the divide between menand women officers in as many streams as possible are being adopted inan incremental manner.

A

C Submissions

B

Submissions of the Union Government

26. Challenging the judgment of the Delhi High Court, the followingsubmissions have been urged on behalf of Union of India:

(a) Grant of PC

C

(i) Prior to the communication dated 25 February 2019, theengagement of SSC women officers was governed byGazette notifications as amended from time to time. TheToE of WSES officers, later replaced by SSC service wastenure based with a clear stipulation for exit on thecompletion of fourteen years of service. The grant of PCswas specifically not envisaged. None of these notificationsor Army instructions were challenged before the HighCourt; D

(ii) The judgment of the Delhi High Court has failed to takenotice of the relevant statutory provisions and orders of theEGovernment of India;

(iii) Under Section 10 of the 1950 Act, the grant of commissionis at the discretion of the President of India. The absenceof a fundamental right to claim PC is reinforced by Section12 of the 1950 Act by reason of which, no woman is eligiblefor employment except in such corps and departments asthe Government of India may determine. The power to grantcommission belongs to the President and no mandamus canbe claimed from a court; F

(iv) The communication dated 25 February 2019 which has beenplaced on record has been taken after due deliberation andis issued in national interest. It stipulates that the orderapplies prospectively; G

(v) The policy decision communicated on 25 February 2019,envisages that the skills of SSC women officers can be H

Autilized by training them in specialised fields such as languageinterpreters, imagery interpreters and cyber and informationtechnology. In these specialisations, unrestrictedemployment including career progression to higher rankscan be ensured; and B(vi)The new policy is in organisational interest. The benefitsenvisaged in the policy cannot be granted to women officerswho have crossed fourteen years since they will be leftwith little time to be trained. It would not be possible togainfully employ them, as they would have limited years ofservice left.

C

(b) Pensionary benefits

27. The policy decision dated 15 February 2019 communicated bythe Union of India provides that the offer of PCs would be restricted toSSC women officers who have not completed fourteen years of service.DThose who have completed fourteen years but have not attained thepensionable service of twenty years would be permitted to continuewithout any scrutiny as a one-time measure to qualify for the grant ofpensionary benefits. Women officers who have crossed twenty years ofpensionable service would be discharged from service immediately andwould receive pension. Thus, the substantial benefit of pensionableEservice has been provided to women officers who have continued beyondfourteen years of service under interim orders.

(c) Policy considerations

28. The Union of India has submitted that:

F(i)Fortified by Section 12 of the 1950 Act and Article 33[18] ofthe Constitution, questions relating to constitution, recruitment,posts, categories, cadres and criteria for the grant of PCs 18 Power of Parliament to modify the rights conferred by this Part in their applicationto Forces, etc. – Parliament may, by law, determine to what extent any of the rightsGconferred by this Part shall, in their application to, - (a) the members of the ArmedForces; or (b) the members of the Forces charged with the maintenance of public order;or (c) persons employed in any bureau or other organisation established by the Statefor purposes of intelligence or counter intelligence; or (d) persons employed in, or inconnection with, the telecommunications systems set up for the purposes of anyForce, bureau or organisation referred to in clause (a) to (c), be restricted or abrogatedso as to ensure the proper discharge of their duties and the maintenance of disciplineHamong them.

constitute policy decisions and lie exclusively in the domainAof executive functions;

(ii) The provisions of the 1950 Act, insofar as they infringe oraffect fundamental rights, are protected by Article 33;

(iii) The Union Government is entitled to frame a policy regardingBthe grant of PCs to women officers after accounting for theneed for a balanced approach involving military services andnational security. The Union Government is entitled to takeinto account the inherent dangers involved in serving in theArmy, adverse conditions of service which include anabsence of privacy in field and insurgency areas, maternityCissues and child care. These considerations are not open tojudicial review; and

(iv) The scope of judicial review in matters of command/tenureis limited as held by this Court in Union of India v P KChaudhary[19](“P K Choudhary”).

D

(d) Occupational hazards

29. According to the Union of India, women are not employed onduties which are hazardous in nature unlike their male counterparts inthe same Arm/Service who are liable to be employed in combat duties.Forinstance, a male officer in Army Service Corps undergoes infantryattachment in field areas upon commissioning and may be posted laterto Rashtriya Rifles/Assam Rifles for counter-insurgency/counter-terroristoperations. The personnel below officer ranks are similarly engaged incombat roles. A male officer in the engineering branch would undergo atenure in the Rashtriya Riffle/Assam Rifles while women officers arenot employed due to the “inherent risks”.

E

F

(e) Discrimination

30. There is no discrimination between men and women SSCofficers. For example, male SSC officers are not eligible to opt for anM.Tech course. Women SSC officers in the JAG branch may avail 180days of child care leave, while PC women officers are entitled to avail360 days owing to the long period of service expected from them. TheUnion Government has submitted that the Army faces a hugemanagement challenge “to manage WOs in soft postings with G

19 Civil Appeal No 3208 of 2015, decided on 15 February 2016

H

Arequired infrastructure, not involving hazardous duties with theregular posts with the other women in the station”. The Army hasto cater for spouse postings, “long absence on account of maternityleave, child care leave” as a result of which “the legitimate dues ofmale officers have to be compromised”.

B(f) Ajay Vikram Singh Committee report: SSC as a supportcadre

31. The Ajay Vikram Singh Committee[20] constituted by the UnionGovernment to enquire into cadre issues in the Armed Forces favoureda lean permanent cadre of officers, supplemented by an enhanced supportCcadre in the ratio 1:1.1 in view of the pyramadical structure of the IndianArmy. However, the ratio between the PC cadre vis-a-vis the SSC cadreis currently skewed at 3.98:1. Hence, further induction into the PC cadrethrough the SSC cadre will upset the organisational structure of the Army.

(g) Employment in staff appointments

D

32. Since 1992, the Union Government has restricted the eligibilityof women officers to select appointments, as decided from time to timeby Army headquarters. These orders have not been subjected to challengeor been invalidated. The issue of command appointments was not a lisin the Writ Petitions before the Delhi High Court. Considering mattersEof organisational requirement, suitability and performance, womenofficers granted PC would be recommended only for staff appointments.

33. Finally, it has been urged by the Union of India that it has re-instated all women officers covered by the judgment of the Delhi HighCourt insofar as it relates to the Army. Those who are not in serviceFeither did not join their posts or had sought release despite the grant ofan extension in service. Hence, women officers who are out of serviceor are not covered by the judgment of the High Court cannot seek thebenefit of the policy decision dated 25 February 2019. Any extension ofthe benefit to a woman officer outside the scope of the policy decisionwould (it is urged) “open floodgates for litigation creating seriousGadministrative issues of cadre management.”

34. In emphasising these submissions of behalf of Union of India,Mr R Balasubramanian, learned Senior Counsel has in his written notestressed upon two facets:

H20 2003-2004

(i) The need to protect national security and operationaleffectiveness; and

(ii) Non-linear battlefield scenarios in future wars.

35. At this stage, it would be necessary to extract from the writtennote which has been submitted on behalf of the Union of India. Whilewe will express our views on the content of the note at a later stage, it isnecessary here to extract certain portions, as they stand:

(i) Under the head of “Exigencies of Service”, the written note ofsubmissions states:

“The profession of arms is not only a profession but a ‘way of’life, which often requires sacrifices and commitment beyondthe call of duty by the entire family of service personnel involvingseparation, frequent transfers affecting education of children andcareer prospects of the spouse. As a consequence, it is a greaterchallenge for WOs to meet these hazards of service, owing totheir prolonged absence during pregnancy, motherhood anddomestic obligations towards their children and families, especiallywhen both husband and wife happen to be service officers.”

(ii) Under the head of “Physical Capabilities”, the written notestates:

“A soldier relies heavily on his physical prowess to engage incombat. The officers are expected to lead their men ‘from thefront’ and need to be in prime physical condition to undertakecombat tasks. Inherent physiological differences (referenceAnnexure A) between men and women preclude equal physicalperformances resulting in lower physical standards (referenceAnnexure B) and hence the physical capacity of WOs in the IAremain a challenge for command of units.”

(iii) Under the head of “Composition of Rank and File”, the writtennote states:

“Most of the countries whose armies have women as officersalso have women in their rank and file with the exception of India,Pakistan and Turkey. This results in a unique ‘all male’ environmentin a unit where presence of WOs requires moderated behavior intheir presence. Posting of WOs in all male units thus has its own”peculiar dynamics.

A

B

CD

E

F

G

H

A(iv) Under the head of “Infrastructure”, the written note states:“Infrastructure in forward/border areas is very basic with minimalfacilities for habitat and hygiene. Officers and men have tomake do with primitive/make shift arrangements. Manningforward posts and small detachments with restrictedcommunication facilities leads to a feeling of isolation. DeploymentBof WOs in such situations or places in the current circumstancesis not advisable.”

36. The submission note of the Union of India has spoken of“physiological limitation” on the employability of women officers“accentuated by the challenges of confinement, motherhood andCchildcare”. Finally, the note portends the dangers of a woman officerbeing captured by the enemy and becoming a prisoner of war.

Submissions of the respondents

37. Assailing the above submissions, and in a serious critique ofthe submissions adopted by Union of India and the MoD in their perceptionDof women officers, Ms Meenakshi Lekhi, learned Counsel and MsAishwarya Bhati, learned Senior Counselhave joined issue. The attentionof the Court has been drawn to the total strength of and shortage ofofficers in the Army on date, as reflected in the following table:

Besides, 157 male officers between the age group of fifty-fourand fifty-eight years have been re-employed after their retirement. TheFcadre structure of women officers serving in the Indian Army is indicatedin the following table:

G

38. Women officers form a miniscule four per cent of the totalstrength of commissioned officers in the Army. Ms Lekhi submitted thatthe Union Government instituted the present proceedings under Article136 of the Constitution in 2010 and in spite of there being no stay on theimplementation of the judgment of the Delhi High Court, no steps wereHtaken to grant PCs to women officers in the Army in compliance with the judgment of the Delhi High Court. Ms Lekhi submitted that this isbased on the pre-dominant fear of male officers representing ninety-sixper cent of the overall strength that four per cent of the officers who arewomen would “eat away vacancies” in the higher ranks. However, ithas been submitted that the reality is different since higher rank vacanciesgenuinely due to the 322 competent women officers have been takenaway for promoting male officers. Ms Lekhi has addressed this Courtabout the conventional bias against the women officers in the Army.Women officers have served the organisation for almost twenty-fiveyears and the battle is against mind-sets. Dealing with the factors whichhave been stressed by the Union of India, the written note submitted byMs Lekhi contains the following explanations:

(i) Battlefield Scenario: The Army considers women officersas an effective workforce until they complete fourteen yearsof service. The nature of duties is similar to male officers.Having served shoulder to shoulder with male officers fortwenty-five years, the contention advanced by the Union ofIndia with respect to battlefield scenarios lacks substance;

(ii) Unit cohesion: The Union of India has alleged that thepresence of women has a negative impact on unit cohesion.It is time that the organisation starts accepting women asequal colleagues; and

(iii) National security: Despite the present batch of appeals beingsub judice for ten years, women officers of all ages andservice profiles are still being posted to sensitive places, fieldareas, force head-quarters and units without beingcommissioned into combat arms;

39. Ms Lekhi urged that women officers on SSC have sufferedfrom serious discrimination comprising of:

(i) Lack of opportunity for professional growth;

(ii) Absence of job security due to the ambiguous status of thecadre; and

(iii) Rendering service under Junior Officers due to the lack of auniform and equal promotion policy.

40. In other words, women officers have been left in the lurchwithout pensionary and promotional benefits at par with their male A

B

C

D

E

F

G

H

Acounterparts despite having dedicated prime years of their lives to theservice of the nation.

Submissions based on the policy letter dated 25 February2019

41. Ms Meenakshi Lekhi and Ms Aishwarya Bhati haveBhighlighted, during the course of their submissions, the following aspectsof the policy letter dated 25 February 2019 which are discriminatory:

(i) In response to para 4: Male SSC officers are required toexercise their option for the grant of PC prior to the completionof ten years of service. SSC women officers are required toCexercise their option on the completion of three years ofservice and prior to the completion of four years of service.With comparatively lesser experience at the stage when theyare required to exercise an option, women officers lackadequate experience to take a considered decision and theDpossibility of being granted PC is comparatively lower;

(ii) In response to para 6: Restricting SSC women officers onlyto staff appointments is to prevent their career growth byrestraining them within vacancy restrictions, promotions andplacements; and

E(iii) In response to para 9: Application of the policy prospectivelyis designed to keep away senior women officers outside theambit of PC. The Army is misconstruing the prospectiveapplication of the policy to give the benefit to women officersinducted after the date of the policy. On the other hand, forFthe JAG and AEC officers, the prospective application hasbeen interpreted by the Army to grant benefit to officerswho were in service on the date of the issuance of the policy.

42. It was further contended that posting women officers in staffappointments in the select rank of Colonel under the aegis of MS-1 andMS-3 will equate them with re-employed, low medical category andGnon-empaneled male officers. Refuting the argument on commandappointments, it has been submitted that there are several commandroles that do not require any special training including:

(i) NCC Battalions (there are more than 100 girl battalions whichare currently being commanded by male officers);H

(ii) Record officers;

(iii) Training regiments;

(iv) Commandants of Sainik schools and Military schools; and

(v) Provost unit commanding officers as provosts are pioneeringthe induction of women combatants.

Meeting the submissions advanced by the Union Government,the respondents have filed a counter affidavit contending that:

(i) Services in which women officers have been inducted asSSC women officers are not combative in nature. The jobprofile includes supporting the combat arms segment andassisting in providing, maintaining and repairing the logisticsupport. The respondents were inducted in the Army againstspecified appointments with specific eligibility qualificationssuch as food scientists, material managers, softwareengineers and linguistic officers. These postings cannot becompared with the combat arms of the Army. The presentcase has not been instituted seeking either recruitment orcommission into combat arms as this is a conscious decisionof the Union Government and is a matter of policy;

(ii) The nature of duty which a commissioned officer is requiredto perform while serving in the Corps is defined in the ArmyManuals of these services. Both women and male officerswho were commissioned in these services perform similarduties, undergo similar professional courses and training andare posted to all field/peace postings according to their profiles.There is no separate charter of duties for women officers orSSC commissioned male officers and PC male officers.Women officers commissioned in various corps are assignedduties similar to male officers (SSC or PC) and commissionedinto the same corps;

(iii) The claim of the appellant that there is a probability of womenofficers being exposed to a hostile environment where thereis a grave danger of their coming in contact with the enemyis discriminatory and without any basis. The women officershave been and are regularly being posted by the Indian Armyto all possible field units (combat zones) where male officers A

B

C

D

E

F

G

H

Afrom the same corps are also serving. Consequently, the Armyfollows a policy of non-discrimination when it comes topostings but does not follow the same when it comes togranting PC to its women officers. Thirty percent of all womenofficers are posted in the field (combat zones);

B(iv) Based on the response to a question raised in the Lok Sabha,as on 16 August 2010, there is an acute shortage of 11,500officers in the Indian Army out of which approximately 5,115officers are deficient in the support services in which womenofficers have been commissioned. Despite the deficiency ofofficers in the support services, the Indian Army is letting goCof trained women officers due to gender discrimination andnot granting PCs to women officers. To overcome theshortage of officers, the Army has given re-employment toretired male officers of the rank of Colonel or below at theage of superannuation (54-58 years) for a period of four years.DThe vacancies in the Indian Army can be easily handled bywomen officers;

(v) Women officers undergo training for all mandatory courseswhich other SSC male officers also undertake. However,only male officers are eligible to seek PCs. Women officersEalso undergo the Junior Command Course which is mandatoryto train army officers to discharge their responsibilities asLieutenant Colonels;

(vi) No rule of the Indian Army prescribes that officers seekingPC have to compulsorily be given command of troops. AFcommand position is given only to those officers who cleartheir promotion Board based on an efficiency metric. Maleofficers (SSC or PC) who are not found fit for promotion tothe rank of Colonel are accommodated in the staffappointments. Similarly, if women officers are found fit anddeserving for the rank of Colonel, they may be promoted toGthe next rank or be allowed to continue in the manner othernon-empaneled PC male officers are presently allowed;

(vii) The willingness of the Indian Army to grant PC to womenofficers of only AEC and JAG branches, stating that theseare non-combative roles is not true as these two corps do notH

have a ‘unit’ like organizational structure and both men andwomen officers are not offered command positions; and

(viii) In addition to the discriminatory nature of the policy withrespect to the grant of PC, the policies for women officers inthe Army also lowers their status to that of a jawan/JCO. Awoman officer working for fourteen years is neither givenpension nor retirement benefits. Details of the treatmentmeted out to women officers in the Army in comparison withPC, SSC male officers/ jawans and JCOs is tabulated asfollows:

“

’’

43. The rival submissions fall for consideration.

D Consequence of the policy letter dated 25 February 2019

44. Article 33 of the Constitution empowers Parliament todetermine by law the extent to which the rights conferred by Part III ofthe Constitution shall be restricted/abrogated in their application interalia to the members of the Armed Forces so as to ensure the properdischarge of their duties and the maintenance of discipline among them.The impact of Article 33 is to enable Parliament to limit or abrogate thefundamental rights in their application to the members of the Armedforces. But such a restriction or abrogation must be by law. Moreover,the restriction or abrogation must be enacted to ensure the properdischarge of duties and the maintenance of discipline.

45. Several decisions of this Court have dealt with Article 33 ofthe Constitution in relation to the Armed Forces. In Ram Sarup v Union A

B

C

D

E

F

G

H

Aof India,[21] the petitioner, a sepoy in 131 Platoon DSC, was chargedunder Section 69 of the 1950 Act read with Section 302 of the IndianPenal Code. A sentence of death was awarded by the General CourtMartial which was confirmed by the Union Government. A number ofcontentions were raised for challenging the provisions of the 1950 Actas well as the method in which the trial was conducted. A ConstitutionBBench of this Court rejected the challenge and upheld the sentence. Inthe course of the judgment, Justice Raghubar Dayal, writing for theBench, held:

“15. …The learned Attorney-General has urged that the entireAct has been enacted by parliament and if any of the provisionsCof the Act are not consistent with the provision of any of thearticles in Part III of the Constitution, it must be taken that to theextent of the inconsistency Parliament had modified thefundamental rights under those articles in their application to theperson subject to that Act. Any such provision in the Act is asDmuch law as the entire Act. We agree that each and everyprovision of the Act is a law made by Parliament and that if anysuch provision tends to affect the fundamental right under PartIII of the Constitution, that provision does not, on that accountbecome void, as it must be taken that Parliament has thereby, inthe exercise of its power under Article 33 of the Constitution,Emade the requisite modification to affect the respective fundamentalright. We are however of opinion that the provisions or Section125 of the Act are not discriminatory and do not infringe theprovisions of Article 14 of the Constitution.”

This Court held that the 1950 Act was enacted in pursuance ofFthe enabling power conferred upon Parliament by Article 33 of theConstitution and is entitled to protection despite the restrictions imposedby its provisions on the fundamental rights guaranteed by the Constitution.The Court held that the provisions of the 1950 Act formed an inherentpart of the legislation and having been enacted in pursuance of the powerGconferred by Article 33, they would not be declared void to the extentthey restricted or abrogated the guarantee of fundamental rights tomembers of the Armed Forces.

46. In Lt. Col. Prithi Pal Singh Bedi v Union of India[22], thelegality of orders convening a General Court Martial and its compositionH21 (1964) 5 SCR 93122 (1982) 3 SCC 140

was questioned. It was contended that trial by a Court Martial wouldresult in the deprivation of personal liberty, which can only be done inconsonance with Article 21 of the Constitution. It was contended thatany restriction must be by procedure established by law and the lawprescribing such procedure must satisfy the test prescribed by Articles14 and 19 of the Constitution. Justice D A Desai, writing for a threejudge Bench of this Court noted the competing interests that must beconsidered in matters concerning the Armed Forces in the followingterms:

“14. While investigating and precisely ascertaining the limits ofinroads or encroachments made by legislation enacted in exerciseof power conferred by Article 33, on the guaranteed fundamentalrights to all citizens of this country without distinction, in respectof armed personnel, the court should be vigilant to hold the balancebetween two conflicting public interests; namely necessity ofdiscipline in armed personnel to preserve national security at anycost, because that itself would ensure enjoyment of fundamentalrights by others, and the denial to those responsible for nationalsecurity of these very fundamental rights which are inseparableadjuncts of civilised life…”

The Court held that the public interest in the maintenance andpreparedness of the Armed Forces of the nation has to be weighed withan equally compelling public interest in balancing the abrogation orrestriction of fundamental rights of the officers in the Armed Forces.For this reason, Article 33 specifies that any restriction imposed must beby law and in order to ensure the proper discharge of their duties and themaintenance of discipline among them. The Court rejected the challengeand held:

“…Article 33 does not obligate that Parliament must specificallyadumbrate each fundamental right enshrined in Part III and tospecify in the law enacted in exercise of the power conferred byArticle 33 the degree of restriction or total abrogation of eachright. That would be reading into Article 33 a requirement whichit does not enjoin…it is not possible to accept the submission thatthe law prescribing procedure for trial of offences by court martialmust satisfy the requirement of Article 21 because to the extentthe procedure is prescribed by law and if it stands in derogation ofArticle 21, to that extent Article 21 in its application to the Armed A

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AForces is modified by enactment of the procedure in the ArmyAct itself.”

47. In R Viswan v Union of India,[23] one of the issues concernedwhether Section 21 of the Army Act, 1950 read with Chapter IV of theArmy Rules, 1954 is within the scope and ambit of Article 33 of theBConstitution. Section 21 empowers the Central Government by notificationto make rules restricting “to such extent and in such manner as may benecessary” certain fundamental rights in their application to personssubject to the 1950 Act. Justice P N Bhagwati (as the learned ChiefJustice then was), speaking for a Constitution Bench of this Court held:

C“A plain reading thus would reveal that the extent of restrictionsnecessary to be imposed on any of the fundamental rights in theirapplication to the armed forces and the forces charged with themaintenance of public order for the purpose of ensuring properdischarge of their duties and maintenance of discipline amongthem would necessarily depend upon the prevailing situation at aDgiven point of time and it would be inadvisable to encase it in arigid statutory formula. The Constitution-makers wereobviously anxious that no more restrictions should beplaced than are absolutely necessary for ensuring properdischarge of duties and the maintenance of disciplineEamongst the armed force personnel and therefore Article33 empowered Parliament to restrict or abridge withinpermissible extent, the rights conferred under Part III ofthe Constitution insofar as the armed force personnel areconcerned.”

(Emphasis supplied)

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The Court noted that restrictions imposed upon fundamental rightsin exercise of the power conferred by Article 33 must be “absolutelynecessary for ensuring proper discharge of duties and the maintenanceof discipline”. The Court held:G“…Parliament was therefore within its power under Article 33 toenact Section 21 laying down to what extent the CentralGovernment may restrict the Fundamental Rights under clauses(a), (b) and (c) of Article 19 (1), of any person subject to theArmy Act, 1950, every such person being clearly a member of H23 (1983) 3 SCC 401

the Armed Forces… The guideline for determining as to whichrestrictions should be considered necessary by the CentralGovernment within the permissible extent determined byParliament is provided in Article 33 itself, namely, that therestrictions should be such as are necessary for ensuring the properdischarge of their duties by the members of the Armed Forcesand the maintenance of discipline among them. The CentralGovernment has to keep this guideline before it in exercising thepower of imposing restrictions under Section 21 …”

This Court, in upholding Section 21 of the 1950 Act, held that theexercise of such power must necessarily conform to the restrictionsinherent in Article 33 of Constitution.

48. None of the above cases were rendered in the context ofSection 12 of the 1950 Act. The present case requires an assessment ofthe implication of a specific provision restricting the entry of women intothe Armed Forces on one hand and the steps taken by the UnionGovernment to grant PCs to women SSC officers in streams in whichthey have been commissioned.

49. Section 12 of the 1950 Act embodies the principle that a womanwould be eligible for enrolment or employment only in such corps,departments, branches or bodies forming part of or attached to the regularArmy upon and to the extent notified by the Central Government. Inother words, the eligibility of women for enrollment or engagement inthe regular Army is conditional on a provision being made by the CentralGovernment in terms of the enabling provision of Section 12.

50. The engagement of women officers in the Army has been anevolutionary process. As we have seen, women officers were initiallyinducted in the year 1992 under the WSES, for a period of five years.This was extended for a further period of five years. On the incorporationof a provision for SSCs for women officers, options were granted tothose amongst them who had been engaged under the earlier scheme tobecome SSC officers. As a part of the pool of officers engaged as SSCofficers, the tenure was extended to fourteen years with a provision fordue promotions while in service. Following the judgment of the DelhiHigh Court, the Union Government was under a mandate to grant PCsto women officers, to the exclusion of the Combat Arms, and at par withthe grant of PCs to their male counterparts. Significantly, the judgment A

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Aof the Delhi High Court was not stayed by this Court at any stage,though there was a direction that no coercive steps would be initiated onthe basis of the judgment in appeal. A direction by this Court not toinitiate coercive steps is distinct from a stay on the operation of thejudgment. There was no reason or justification for the Union Governmentnot to act upon the directions that were issued by the Delhi High Court,Bparticularly, in the absence of a stay on the operation and enforcementof the judgment. The Union Government continued to thwartimplementation despite the order of this Court dated 2 September 2011clarifying that “the operation of the impugned judgment is not stayedat all.” Scant regard has been paid to the Delhi High Court and to thisCCourt as well. Eventually, nearly nine years after the judgment, the UnionGovernment has communicated a policy circular dated 25 February 2019by which a decision has been taken to grant women officers PC in eightArms/Services, in addition to the existing streams of JAG and AEC.Thus, as a matter of policy, the Union Government has taken a decision to allow for the grant of PCs in all the ten streams in which womenDofficers were currently being commissioned as SSC officers.

51. The decision of the Union Government to allow PCs to womenofficers in all the ten streams where they are being inducted as SSCofficers substantially renders redundant the submission of MrBalasubramanian, learned Senior Counsel, based on the provisions ofESection 12 of the Army Act. Section 12 contemplates that women willbe eligible for enrollment only in those segments of the Army where theUnion Government has, by notification, permitted their enrollment andengagement. Even on a textual interpretation of Section 12 as it stands,it is evident that the policy decision dated 25 February 2019 of the UnionFGovernment has allowed for the grant of consideration of PCs tocommissioned women officers in all the ten streams which have beennotified.

52. The policy decision of the Union Government is a recognitionof the right of women officers to equality of opportunity. One facet ofGthat right is the principle of non-discrimination on the ground of sex whichis embodied in Article 15(1) of the Constitution. The second facet of theright is equality of opportunity for all citizens in matters of publicemployment under Article 16(1). The policy statement of the UnionGovernment must therefore be construed as a decision which enforcesthe fundamental right of women to seek access to public appointmentH

and to equality of opportunity in matters of engagement relating to theArmy. The fundamental right is recognised in the specified streams wherewomen are permitted to seek engagement as equal members of theArmed force that the Indian Army represents. With the UnionGovernment having recognised the induction of permanentlycommissioned women officers in its policy decision dated 25 February2019, we are of the opinion that the submissions which have been madeby the Union of India betray a lack of understanding of the plainconsequences of the decision. The decision of the Union Government toextend the grant of PC to other corps in the support arms and servicesrecognizes that the physiological features of a woman have no significanceto her equal entitlements under the Constitution.

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E Stereotypes and women in the Armed Forces

53. Seventy years after the birth of a post-colonial independentstate, there is still a need for change in attitudes and mindsets to recognizethe commitment to the values of the Constitution. This is evident fromthe submissions which were placed as a part of the record of this Court.Repeatedly, in the course of the submissions, this Court has been informedthat:

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(i) The profession of Arms is a way of life which requiressacrifice and commitment beyond the call of duty; E

(ii) Women officers must deal with pregnancy, motherhood anddomestic obligations towards their children and families andmay not be well suited to the life of a soldier in the Armedforce;

(iii) A soldier must have the physical capability to engage incombat and inherent in the physiological differences betweenmen and women is the lowering of standards applicable towomen; F

(iv) An all-male environment in a unit would require ‘moderatedbehavior’ in the presence of women officers; G

(v) The “physiological limitations” of women officers areaccentuated by challenges of confinement, motherhood andchild care; and

(vi) The deployment of women officers is not advisable in areaswhere members of the Armed forces are confronted withH“minimal facility for habitat and hygiene”.

A54. The submissions advanced in the note tendered to this Courtare based on sex stereotypes premised on assumptions about sociallyascribed roles of gender which discriminate against women. Underlyingthe statement that it is a “greater challenge” for women officers to meetthe hazards of service “owing to their prolonged absence during pregnancy,motherhood and domestic obligations towards their children and families”Bis a strong stereotype which assumes that domestic obligations rest solelyon women. Reliance on the “inherent physiological differences betweenmen and women” rests in a deeply entrenched stereotypical andconstitutionally flawed notion that women are the ‘weaker’ sex and maynot undertake tasks that are ‘too arduous’ for them. Arguments foundedCon the physical strengths and weaknesses of men and women and onassumptions about women in the social context of marriage and familydo not constitute a constitutionally valid basis for denying equal opportunityto women officers. To deny the grant of PCs to women officers on theground that this would upset the “peculiar dynamics” in a unit casts anundue burden on women officers which has been claimed as a groundDfor excluding women. The written note also relies on the “minimalfacilities for habitat and hygiene” as a ground for suggesting that womenofficers in the services must not be deployed in conflict zones. Therespondents have placed on record that 30% of the total women officersare in fact deputed to conflict areas.E55. These assertions which we have extracted bodily from thewritten submissions which have been tendered before this Court only goto emphasise the need for change in mindsets to bring about true equalityin the Army. If society holds strong beliefs about gender roles – thatmen are socially dominant, physically powerful and the breadwinners of Fthe family and that women are weak and physically submissive, andprimarily caretakers confined to a domestic atmosphere – it is unlikelythat there would be a change in mindsets. Confronted on the one handwith a solemn policy decision taken by the Union Government allowingfor the grant of PC to women SSC officers in ten streams, we have yeton the other hand a whole baseless line of submissions solemenly madeGto this Court to detract from the vital role that has been played by womenSSC officers in the line of duty.

56. The counter affidavit contains a detailed elaboration of theservice which has been rendered by women SSC officers to the causeof the nation, working shoulder to shoulder with their male counterparts.H

Yet, that role is sought to be diluted by the repeated pleas made beforethis Court that women, by the nature of their biological composition andsocial milieu have a less important role to play than their male counterparts.Such a line of submission is disturbing as it ignores the solemnconstitutional values which every institution in the nation is bound touphold and facilitate. Women officers of the Indian Army have broughtlaurels to the force. These are documented in the course of proceedingsand have not been controverted in the submissions. Some of thedistinctions which women officers have achieved are catalogued below:

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(i) Lieutenant Colonel Sophia Qureshi (Army Signal Corps) isthe first woman to lead an Indian Army contingent at aCmulti-national military exercise named ‘Exercise Force 18’which is the largest ever foreign military exercise hostedby India. She has served in the United NationsPeacekeeping Operation in Congo in 2006 where she, alongwith others, was in charge of monitoring ceasefires in thosecountries and aiding in humanitarian activities. Her jobDincluded ensuring peace in conflict affected areas;

(ii) Lieutenant Colonel Anuvandana Jaggi served as theWomen’s Team Leader of the United Nations MilitaryObservers Team in the UN mission in Burundi. She wasawarded the United Nations Force Commander’sCommendation and an Appreciation Epistle from the Chiefof Army Staff for her commendable effort; E

(iii) Major Madhumita (Army Education Corps) is the firstwoman officer in the country to receive the Gallantry Award(Sena Medal) for fighting Taliban terrorists in Afghanistan.Despite adversity, she continued and her speedy rescue andevacuation efforts saved many lives; and F

(iv) Lieutenant Bhavana Kasturi recently led a contingent ofthe Indian Army Service Corps, becoming the first womanto lead an all-men Army contingent in the history of India.Similarly, Captain Tania Shergill recently became first Indianwoman Parade Adjutant to lead an all-men contingent inNew Delhi on 15 Janurary, 2020; G

(v) In September 2010, the Sword of Honour in the OfficersTraining Academy, Chennai (the only training center for H

ASSC male and female officers) was given to Lieutenant ADivya amongst 170 male officers and 57 women officers.

(vi) By a letter[24] dated 8 September 2009, women officers werealso made part of the Quick Reaction Teams, where womenand male officers perform similar duties; B(vii)The Indian Army entrusts women officers with complextasks of transporting convoys of between thirty to fiftyvehicles in militant prone areas in Leh, Srinagar, Udhampurand the North East. An example was provided of themovement order from Leh to Pathankot dated 15 SeptemberC2010 issued to one of the respondents, Major Gopika Bhattiwho, in the role of a convoy commander, handled juniorcommissioned officers, jawans (drivers and supportingstaff), vehicles (filled with logistics, arms and ammunitions)and other military equipment; D(viii) Major Gopika Ajitsingh Pawar was awarded the UnitedNations Peacekeeping Medal by the Secretary General ofthe United Nations in recognition of her role as a militarymember of the United Nations Interim Force in Lebanon.

(ix) Major Madhu Rana, Preeti Singh and Anuja Yadav wereEawarded the United Nation Medal completing the qualifyingservice as military members of the United Nations Missionin the Democratic Republic of Congo.

(x) Captain Ashwini Pawar (Army Ordinance Corps) andCaptain Shipra Majumdar (Army Engineer Corps) wereFawarded the Sewa Medal by the President of India in 2007;and

(xi) Women officers from the Indian Army have beenparticipating in the UN Peace Keeping Force since 2004and have been deployed in active combat scenarios in Syria,Lebanon, Ethiopia and Israel.G

Numerous other commendation certificates and laurels achievedby women officers have been placed on record. Their track record ofservice to the nation is beyond reproach. To cast aspersion on theirabilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men andwomen – who serve as equal citizens in a common mission.

57. Courts are indeed conscious of the limitations which issues ofnational security and policy impose on the judicial evolution of doctrinein matters relating to the Armed forces. For this reason, we have noticedthat the engagement of women in the Combat Arms has been specificallyheld to be a matter of policy by the judgment of the Delhi High Courtand which is not in question in the present appeals. At the same time, wehave adverted in some detail to the line of submissions urged before thisCourt. These submissions detract from the significant role which hasbeen played by women SSC commissioned officers since their inductionin 1992. The time has come for a realization that women officers in theArmy are not adjuncts to a male dominated establishment whose presencemust be “tolerated” within narrow confines. That in our view is not themanner in which the steps taken progressively by the Union Governmentto bring women into the mainstream of the Army (except the CombatArms) can be viewed. The salient decision of the Union Government toextend PCs to women SSC officers in all ten streams in which they arecommissioned is a step forward in recognising and realising the right ofwomen to equality of opportunity in the Army. This marks a step towardsrealising the fundamental constitutional commitment to the equality anddignity of women.

F Consequence of non-compliance

58. The proposal which has been submitted before this Court bythe Union Government involves a three-stage assessment of womenSSC officers for the grant of PCs. A distinction has been made in theproposal between women officers who have been in service for a periodof less than fourteen years and those beyond. The proposal envisagesthat only those women officers with less than fourteen years of servicewould be considered for the grant of PCs. Under the terms of thisproposal, women officers with more than fourteen years of service butless than twenty years of service would continue until they attainpensionable service of twenty years, without the grant of PCs. Womenofficers who have crossed twenty years’ service would be dischargedfrom service immediately subject to receipt of pension. The proposalhas been commended for acceptance to this Court on the ground that itallows women officers who have crossed fourteen years of service toreceive pensionary benefits, where such benefit would otherwise not beavailable to them.

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A59. There is fundamental fallacy in the distinction which has beensought to be drawn between women officers with less than fourteenyears of service with those with service between fourteen and twentyyears and above twenty years. The judgment of the Delhi High Courtwas rendered on 12 March 2010. Nearly a decade has elapsed since thedate of the decision. The Union Government was duty bound to enforceBthe judgment of the Delhi High Court, the judgment not having beenstayed during the pendency of these appeals. However, it failed to do sodespite the categoric assertion by this Court in its order dated 2 September2011 that what was stayed as an interim measure is the action forcontempt and not the operation of the judgment. Having failed to enforceCthe judgment, the Union Government has now informed the Court that itwould not consider women officers who have crossed the age of fourteenyears in service as SSC officers for the grant of PCs. This situation ofwomen officers with service above fourteen years has come to passplainly as a consequence of the failure of the Union Government tocomply not only with the directions of the Delhi High Court but alsoDthose which were issued by this Court on 2 September 2011. In thisview of the matter, we see no reason or justification to deprive SSCwomen officers of the grant of PCs on the ground that they have crossedfourteen years of service.

60. The failure of the government to implement the judgment ofEthe Delhi High Court has caused irreparable prejudice to the womenofficers. Over the chequered history of the litigation of the past decade,they have lost the benefit of promotions and the assumption of higherresponsibilities as members of the Armed Force. To turn around nowand inform them that they will lose the entitlement of being consideredFfor the grant of PCs would be a travesty of justice. We are accordinglyof the view that SSC women officers, both within the period of fourteenyears’ service and beyond, should equally be entitled to considerationfor the grant of PCs.

61. The policy decision which has been taken by the UnionGGovernment on 25 February 2019 indicates that it is to apply prospectively.It is necessary for this Court to clarify that the prospective application ofthe decision does not mean that it would apply to women officers whohave been appointed as SSCs officers after the date of the decision.The Union Government has not applied it in such a manner, which isevident from the fact that the decision contemplates that women officersH

already in service but with less than fourteen years would be entitled tobe considered. We therefore clarify that the policy decision will apply toall women SSC officers who are currently in service irrespective of thelength of service which has been rendered by them.

62. Mr R Balasubramanian, learned Senior Counsel relied on thejudgment of this Court in P K Choudhary to contend that the scope ofjudicial review in matters of command/tenure is limited. In that case,pursuant to the suggestions of the Ajay Vikram Singh Committee[25] tolower of the age profile of officers in the Indian Army and create 1484additional vacancies in the rank of Colonel, the Union Governmentsanctioned an additional 1484 vacancies which were to be allocated intwo separate phases. In the first phase, 750 vacancies were sanctionedby the upgradation of appointments in the rank of Lieutenant Colonel toColonel which were to be distributed across the three service branchesof the Army – Combat, Combat Support and Services. However, in thesecond phase, the Union Government sanctioned the remaining 734vacancies to be allocated on a ‘Command Exit Model’ which was claimedto be in consonance with the functional and operational requirements ofthe Army. Aggrieved by the denial of a pro rata share of the vacanciessanctioned in the second phase, the respondents, who were inducted inthe Services Corps, challenged the action of the Union Government.

63. The Union Government contended that the recommendationsof the AVS Committee were limited to officers in the Combat and CombatSupport Arms only and did not extend to the Services’ Arms. It wasfurther contended that the ‘Command Exit Model’ for allocation ofvacancies was neither discriminatory nor arbitrary, but in accordancewith the recommendations of the Committee. A two judge Bench of thisCourt rejected the claim of the respondents. Mr R Balasubramaniansought to rely on the judgment to contend that courts must refrain fromquestions concerning the Armed Forces as they constitute matters ofpolicy in which courts cannot interfere.

64. It is necessary to observe the rationale underlying the judgmentin P K Choudhary. The Court noted that the AVS Committee did nottake into account vacancies for Colonels in the Corps of Services. TheCourt concluded that the Committee did not recommend a reduction inthe age profile of Unit Commanders in Army Signal Corps, ArmyOrdnance Corps and other Minor Corps. Thus, the argument urged by25 “AVS Committee”

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Athe respondents that the recommendations of the Committee to createvacancies was for the benefit of officers serving in all streams, wasrejected. The Court further noted that the recommendation of AVSCommittee to adopt the ‘Command Exit Model’ was accepted by theGovernment. Consequently, merely because the earlier allocation wasnot reversed, this would not affect the binding nature of the government’sBdecision to allocate vacancies on the basis of the ‘Command Exit Model’.The Court held:

“28…If the Army Headquarters committed a mistake in allocatingvacancies on a pro rata basis contrary to the recommendationsand the decision of the Government, any such error cannotCadversely effect officers servings in Arms and Arms Support whomay have been entitled to a higher number of vacancies in thesecond tranche but who were deprived of such allocation onaccount of the error in the previous allocation made on pro ratabasis.”DThis apart, the Court rejected a claim of legitimate expectation bythe respondents in the following terms:

“58…There is nothing perverse, unreasonable or unfair about thepolicy that the age of officers serving in Combat Arms and CombatArms Support will be lowered by creating additional vacancies toEbe allotted on Command Exit Model. In the absence of anyperversity, unreasonableness or unfairness in the policy sointroduced, there is no reason to allow the argument based onlegitimate expectation to unsettle or undo the policy which isotherwise laudable…”F65. The judgment of this Court in P K Choudhary was based onthe specific recommendations of the AVS Committee as well as theactions of the Union Government in committing to a course of action forthe allocation of vacancies. This Court observed that the first phase ofallocation was clearly contrary to both the recommendations of the AVSGCommittee as well as the method of allocation adopted by the UnionGovernment. The Court additionally observed that the method of allocationin the second phase did not suffer from any perversity, unreasonablenessor unfairness.

66. As we have noted before, courts are conscious of the limitationswhich questions of policy impose on judicial intervention in matters relatingH

to the Armed Forces. At the same time, faced with a salient decision ofthe Union Government to extend to all women SSC officers the optionfor the grant of PCs as well as the situation which has come to pass dueto the non-implementation of the binding directions of the Delhi HighCourt as well as this Court, non-intervention in the present matter wouldbe nothing short of a travesty of justice.

G Blanket restriction on criteria appointments

67. The next aspect of the policy decision relates to the restrictionwhich has been imposed on women officers being granted PCs saveand except for staff appointments. Such a restriction was not imposedwhen the JAG and AEC branches were opened up for the grants ofPCs for women SSC officers in the past. The consequence of this, is animplicit acceptance by the Army that women can, in certain situations,receive criteria or command appointments. An absolute bar on womenseeking criteria or command appointments would not comport with theguarantee of equality under Article 14. Implicit in the guarantee of equalityis that where the action of the State does differentiate between twoclasses of persons, it does not differentiate them in an unreasonable orirrational manner. In this sense, even at its bare minimum, the right toequality is a right to rationality. Where the State, and in this case theArmy as an instrumentality of the State, differentiates between womenand men, the burden falls squarely on the Army to justify suchdifferentiation with reason. An absolute prohibition of women SSC officersto obtain anything but staff appointments evidently does not fulfill thepurpose of granting PCs as a means of career advancement in the Army.Whether a particular candidate should or should not be granted a criteriaor command assignment is a matter for the competent authority toconsider having regard to all the exigencies of service, performance andorganisational requirements. In the present case the Army has providedno justification in discharging its burden as to why women across theboard should not be considered for any criteria or command appointments.Command assignments are not automatic for men SSC officers who aregranted PC and would not be automatic for women either. The absoluteexclusion of women from all others except staff assignments inindefensible. If the army has cogent reasons for excluding women froma particular criteria or command appointment, it may provide them to therelevant authorities and if necessary, to future courts. However, such ajustification must take place on a case-to-case basis, in light of the A

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Arequirements and exigencies of a particular appointment. The blanketnon-consideration of women for criteria or command appointments absentan individuated justification by the Army cannot be sustained in law.

68. We therefore hold that the expression “in various staffappointments only” in paragraph 5 and that “on staff appointments only”Bin paragraph 6 of the communication dated 25 February 2019 shall notbe enforced. We have already adverted to the submission which wasurged on behalf of the women officers by Ms Lekhi that there are variouscommand assignments in which there would be no reason or justificationfor excluding women. This is a matter for the determination of the relevantauthority.C

H Directions

69. We accordingly take on record the statement of policy placedon the record in these proceedings by the Union Government in the formof the letter dated 25 February 2019 and issue the following directions:

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(i) The policy decision which has been taken by the UnionGovernment allowing for the grant of PCs to SSC womenofficers in all the ten streams where women have been grantedSSC in the Indian Army is accepted subject to the following:

(a) All serving women officers on SSC shall be consideredEfor the grant of PCs irrespective of any of them havingcrossed fourteen years or, as the case may be, twentyyears of service; (b) The option shall be granted to all women presently inservice as SSC officers; F

(c) Women officers on SSC with more than fourteen yearsof service who do not opt for being considered for thegrant of the PCs will be entitled to continue in serviceuntil they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing inGservice until the attainment of pensionable service shallalso apply to all the existing SSC officers with morethan fourteen years of service who are not appointedon PC; (e) The expression “in various staff appointments only” inHpara 5 and “on staff appointments only” in para 6 shallnot be enforced; (f)SSC women officers with over twenty years of serviceAwho are not granted PC shall retire on pension in termsof the policy decision; and (g) At the stage of opting for the grant of PC, all the choicesfor specialisation shall be available to women officerson the same terms as for the male SSC officers. WomenBSSC officers shall be entitled to exercise their optionsfor being considered for the grant of PCs on the sameterms as their male counterparts.

(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and orderof the Delhi High Court; and C

(iii) SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequentialbenefits including promotion and financial benefits. However,these benefits would be made available to those officers inservice or those who had moved the Delhi High Court byfiling the Writ Petitions and those who had retired during thecourse of the pendency of the proceedings.

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70. Necessary steps for compliance with this judgment shall betaken within three months from the date of this judgment.

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71. We accordingly dispose of the appeals. However, there shallbe no order as to costs.

Kalpana K. Tripathy

Appeals disposed of.

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