WG CDR A U TAYYABA (RETD) AND OTHERS versus UNION OF INDIA AND OTHERS on 16 November 2022

800

SUPREME COURT REPORTS

[2022] 8 S.C.R.

AWG CDR A U TAYYABA (RETD) AND OTHERS

v.

UNION OF INDIA AND OTHERS

(Civil Appeal Nos 79-82 of 2012 )

BNovember 16, 2022

[DR. DHANANJAYA Y CHANDRACHUD, CJI,HIMA KOHLI AND J B PARDIWALA, JJ.]

Armed Forces: Permanent Commission – Claim for, by WomenShort Service Commissioned Officers (SSCO) – The Delhi High CourtCin its lead judgment in *Babita Puniya v. Secretary & Anr, issuedspecific directions for considering Women SSCO in the Air Forceand in the Army for the grant of Permanent Commission (PC) –Indian Air Force implemented the said judgment only for thoseofficers who were in service as on 12 March 2010 or those retired/Dreleased officers who were not in service as on 12 March 2010 buthad filed writ petitions before their release – Appellants were leftout from the reinstatement plan of IAF as they were released fromservice prior to 12 March 2010 – Appellants unsuccessfullychallenged the manner of implementation of decision in *BabitaPuniya v. Secretary & Anr. – On appeal, Held: Para 61(3) of theEjudgment of the Delhi High Court provided that Women SSCOs ofthe IAF who had opted for PC but were not granted PC but allowedonly an extension of their Short Service Commissions were entitledto PC at par with men SSCOs with all consequential benefits – Itcovers only two categories (i) Serving women SSCOs as on the dateFof the judgment (ii) Women SSCOs who had instituted writ petitionsbefore the High Court but who had retired during the course of thependency of the petitions – Hence, submission of appellants ofincluding them in reinstatement plan of IAF cannot be accepted asthey did not fall into any of the above two categories – However, asa matter of fact entire litigation was pursued in the form of a PIL –GAppellants had a legitimate expectation since the respondents bytheir representations in the policy circular dated 25 November 1991and in published advertisements created expectations among thewomen SSCOs regarding the grant of PC on completion of five yearsof service – The women SSCOs continued to be under a legitimateexpectation that their extended SSC tenure would be converted intoH

a PC as they were induced in service with a specific representationof being considered for PC – Hence, appellants should be consideredfor the grant of pensionary benefits as the reinstatement in serviceis not a viable option having regard to the exigencies of service –This direction emanate in exercise of the jurisdiction of this Courtu/Art.142 of the Constitution of India to bring about complete andsubstantial justice and remove the pernicious effects of genderdiscrimination which had taken place in the past in the Indian AirForce – Directions passed – Legitimate expectation – Constitutionof India – Art.142.

Disposing of the appeals, the Court

Conclusion

Disposing of the appeals, the Court

HELD: 1. Paragraph 61(3) of the judgment of the DelhiHigh Court provided that women SSCOs of the IAF who had optedfor PC but were not granted PC but allowed only an extension oftheir Short Service Commissions were entitled to PC at par withmen SSCOs with all consequential benefits. PC was to be offeredto them after the completion of five years. This will coverconsequential benefits including promotion and other financialbenefits. However, the benefits were to be made available onlyto those women officers who were in service and to those whohad approached the High Court by filing petitions though theyhad retired during the course of the pendency of the petitions.The directions of the Delhi High Court in its judgment dated 12March 2010 envisaged that the benefits were to be made availableto those “women officers in service who had institutedproceedings before the High Court and had retired during thependency of the writ petitions”, and that by virtue of direction(iv), it was envisaged that those women officers who had notattained the age of superannuation for PC officers would bereinstated with all consequential benefits. Hence, it is not possibleto accept the wider submission which has been urged on behalfof the appellants that they were expressly covered by para 61 ofthe Delhi High Court decision. [Paras 20, 25, 26][815-C-D; 816-G-H; 817-A-D]

2. The entire litigation initially was pursued in the form of aPIL which was moved by an advocate. During the pendency ofthe proceedings, officers of the Air Force and the Army joined in AB

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Athe proceedings. The appellants are all officers who are in servicesince their initial appointments in 1993. In terms of the policycircular which held the field as well as the advertisements inpursuance of which they were recruited, they were under alegitimate expectation that they would be considered for the grantof PC at the end of five years. However, they were not offeredBPC and were instead granted extensions in service. [Para 28][817-E-G]

3. In the present case, the appellants had a legitimateexpectation since the respondents by their representations inthe policy circular dated 25 November 1991 and in publishedCadvertisements created expectations among the women SSCOsregarding the grant of PC on completion of five years of service,subject to vacancies and suitability. All the women officers wereeligible to be considered for grant of PC between years 2000 to2003, but they were only given an extension of SSC in teeth of Dthe legitimate expectation which was held out in the initial termsand conditions of appointment. The male counterparts of theappellants were considered for and granted PC after their fiveyears of service. The women SSCOs continued to be under alegitimate expectation that their extended SSC tenure would beconverted into a PC as they were induced in service with a specificErepresentation of being considered for PC. The Delhi High Courtin the *Babita Puniya judgment dated 12 March 2010 had alsoapplied the doctrine of legitimate expectation and observed thatthe doctrine of legitimate expectation, grounded in the rule oflaw, required regularity, predictability and certainty in government Fdealings with the public, operating on procedural and substantivematters. Most of these officers joined service between 1993and1998 and were eventually released from service betweenDecember 2006 and 2009. They have put in long years of servicefor the IAF. During the course of the hearing, the Court has beenfairly apprised on behalf of the Air Force authorities that theGofficers have an excellent track record. [Paras 30, 31][818-C-G]

4. This batch of officers who moved the Delhi High Courtsoon after the decision in *Babita Puniya and within a reasonableperiod from the date of their release should not be denied thebenefit which emanates from that judgment. At the same time,H

the Court cannot be oblivious of the fact that the officers havebeen released from service on diverse dates between December2006 to December 2009. Reinstatement in service would nottherefore be a viable option particularly having regard to theexigencies of service in an armed force of the nation. However,following the logic of the earlier decision of this Court in Secretary,Ministry of Defence v. Babita Puniya, the officers should beconsidered for the grant of pensionary benefits. [Para 32][818-H; 819-A-B]

5. Directions: i. All the women SSCOs governed by thepresent batch of cases shall be considered for the grant of one-time pensionary benefits on the basis that they have completedthe minimum qualifying service required for pension; ii. The casesof the appellants shall be evaluated on the basis of the HRP dated19 November 2010 bearing Part No 5; and iii. The officers whoare found eligible for the grant of pensionary benefits in terms ofthe present direction shall not be entitled to any arrears of salary,but the arrears of pension shall be payable with effect from thedate on which the officers are deemed to have completed twentyyears of service; iv. This Court dismissed several other petitionsfiled by officers who had moved the Delhi High Court after aconsiderable degree of delay following their release from service;and v. In the present batch of cases, there are three officers whohave scored QRs between 6.29 and 6.41. The case of theseofficers shall be considered sympathetically by the Air Forceauthorities on the same footing. [Para 34][820-C-F]

*Babita Puniya v. Secretary & Anr (2010) 168 DLT115 (DB); Secretary, Ministry of Defence v. BabitaPuniya and Others (2020) 7 SCC 469 : [2020] 3 SCR833; State of Jharkhand v. Brahmputra Metallics Ltd.,Ranchi Civil Appeal Nos. 3860-3862 of 2020; 2020SCC OnLine SC 968; Lt. Col. Nitisha and Others v.Union of India WP(C) No. 1109 of 2020; 2021 SCCOnLine SC 261; Union of India v. Lt. Cd. AnnieNagaraja (2020) 13 SCC 1 : [2020] 10 SCR 433 –relied on.

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Case Law Reference

[2020] 3 SCR 833[2020] 10 SCR 433

relied onPara 12relied onPara 32

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.79-82

Bof 2012.

From the Judgment and Order dated 11.08.2011 of the High Courtof Delhi at New Delhi in Wp (C) No.5073 and 5077 of 2010 and dated27.09.2011 in Review Petition No.546 and 550 of 2011 in WP (C) No.5073and 5077 of 2010.

CWith

Civil Appeal Nos.192-196, 83-84 And 5164 of 2012.

Ms. Meenakshi Arora, R. Balasubramanina, Sr. Advs., Ms. AnshulaVijay Kumar Grover, Rakesh Kumar, Ms. Archana Pathak Dave, Ms.Chitrangda Rastravara, Avnish Dave, Pramod Kumar Vishnoi, AishwaryDMishra, Dashrath Singh, Ms. Gunjan Negi, Shiv Autar Singh Sengar,Manvendra Singh, Abhijeet Singh, Aditya Pratap Singh Chauhan, K.Parameshwar, Ms. Arti Gupta, Ms. Garima Sachdeva, Deepak Goel,Sudhanshu S. Pandey, Gaichangpou Gangmei, Arjun D. Singh, YashvirKumar, Santosh Kr., Akshay Amritanshu, Mohd. Akhil, Sachin Sharma,EArvind Kumar Sharma, Anupam Raina, Sridhar Potaraju, Advs. for theappearing parties.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI

F1. The batch of appeals which forms the subject matter of thepresent dispute emanates from a judgment of the Delhi High Court dated11 August 2011. The High Court in its lead judgment dated 12 March2010 in BabitaPuniya’s case[1] issued specific directions for consideringwomen Short Service Commissioned Officers[2]in the Air Force and inthe Army for the grant of Permanent Commission[3]. Following the decisionGof the Delhi High Court in BabitaPuniya, a batch of writ petitions underArticle 226 of the Constitution of India came to be instituted before the 1BabitaPuniya v. Secretary &Anr, (2010) 168 DLT 115 (DB)

2 “SSCOs”

H3 “PC”

1BabitaPuniya v. Secretary &Anr, (2010) 168 DLT 115 (DB)

2 “SSCOs”

H3 “PC”

Delhi High Court seeking the benefit of the BabitaPuniya judgment.The Delhi High Court by its judgment dated 11 August 2011 dismissedthe batch of six writ petitions. The High Court held that the petitionerswho had moved the specific proceedings were not covered by thedirections contained in Paragraph 61 of the earlier decision in BabitaPuniya. This batch of appeals has questioned the manner in which thedecision of the Delhi High Court in Babita Puniya has been implementedby the Indian Air Force.

Brief Background

2. The appellants are women officers who joined the Indian AirForce[4] as SSCOs between 1993 and 1998.They were appointed in termsof a circular dated 25 November 1991 issued by the IAF which providedthat the officers would initially be granted Short Service Commission[5]for a period of five years, at the end of which they would be consideredfor the grant of Permanent Commission[6]subject to suitability andavailability. The circular noted that women officers who were unwillingto opt for PC but sought extension would be granted an extension for sixyears. The terms and conditions, as referred to in paragraph 4 of theCircular dated 25 November 1991, specified the tenure of engagementin the following terms:

“Clause 5: Tenure of Engagement: Initial engagement periodwould be for 5 years from the date of commissioning. Oncompletion of this period, the officer may opt for PC or anotherSCC tenure of 6 years. The officers seeking such extensionwill not be eligible for PC. Grant of extension or PC wouldbe subjected to suitability and requirement of the Air Force.Clause 6: Permanent Commission: SSC Officers granted PCwill beeligible for all benefits/privileges, which are admissibleto theregular PC Officers”

3. The Indian Air Force issued advertisements pursuant to thepolicy circular inviting applications from women to join as SSCOs, witha representation that the women officers would be initially granted SSCfor a period of 5 years, but at the end of tenure, PC would be grantedsubject to vacancies and suitability of the officer. The relevant portion ofthe advertisement is extracted below :

4 “IAF”

5 “SSC”

6 “PC”

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A“A Unique opportunity for dynamic young girls: march to anew horizon as a commissioned officer in the Indian Airforcetraining:

…

TENURE OF ENGAGEMENT: Initial engagement would beBfor a period of 5 years from the date of commissioning withthe provision to opt for PC or another tenure of six years.Grant of permanent commission depend upon vacancy andsuitability of the officer.”

CAREER PROSPECTS: SSC Officers will be entitled forCpromotion under conditions as applicable to PermanentCommissioned officers of Non-Tech Ground DutiesBranches.”

4. However, after rendering five years of service, the authoritiesoffered an extension of a period of six years to all the women officers,Dincluding the appellants. Their cases for the grant of PC were notconsidered at that stage. However, the Indian Air Force, consideredonly male officers for PC. Women were excluded.

5. In 2003, a Public Interest Litigation was instituted before theHigh Court of Delhi by Babita Puniya, an advocate, for the grant of PCEto women SSC Officers, highlighting the gender discrimination beingmeted out to women officers in the armed forces. Some of the SSCOsbelonging to the Army and the Air Force were also impleaded as co-petitioners through various writ petitions. However, the appellantshadnot filed any writ petitions during these proceedings.F6. On 10 September 2004, a policy was promulgated for the grantof PC to SSCOs with a rider that “Permanent Commission” would notbe offered to Women Short Service Commission Officers.

7. By a policy issued in 2006, the respondents decided to stop PCto all SSCOs irrespective of gender, due to cadre managementGconsiderations. On 25 May 2006, a policy was issued by which provisionof PC to male officers was discontinued and the stipulation of womenofficers for consideration of PC as mentioned in the policy circular of1991 was withdrawn. The policy circular dated 25 May 2006 onlyprovided for a further extension of Commission to SSCOs. TheH

corresponding Human Resources Policy[7]specified the QualitativeRequirements[8] for extension of service. Accordingly, the QR for grantof a second extension of service was increased from a minimum averageof 6.5 to 7.0 in the last three annual reports.

8. In terms of the HRP dated 25 May 2006, some of the appellantsqualified and were granted a second extension of Short ServiceCommission for the period 2003-2008, and were later released duringthe period between 2007 and 2010, having rendered the maximumpermissible service. Some of the appellants could not be considered forsecond extensions since they did not meet the higher QR of getting aminimum average of 7.0 in their last three years, and were releasedafter serving the IAF for 11 years between the years 2007 and 2009.

9. Finally, on 26 September 2008, the President of India sanctioneda policy decisionto offer PC prospectively to women officers across thethree armed forces in select branches, specifically the JAG Departmentand the Army Education Corps of the Army and their correspondingbranches in the Indian Navy and Air Force, along with the AccountsBranch of the Air Force and Naval Constructor in the Indian Navy.

10. In Babita Puniya’s case, the Division Bench of the HighCourt of Delhi decided all the writ petitions by a judgment dated 12March 2010. The principal grievance of the women SSCOs was that bydenying them PC, they had been subjected to gender discrimination.While allowing the writ petitions, the High Court held that on grounds ofgender equality under Articles 14, 16 and 21 of the Constitution of Indiaand the doctrine of legitimate expectation, women SSCOs (in certainbranches), who were commissioned prior to 2006,were entitled to beconsidered for PC at par with male SSCOs along with consequentialbenefits. The High Court observed:

“52. The women Air Force officers joined the service on theassurance as held out to them in terms of the Circular dated25.11.2009 read with its appendix and as advertised for theirrecruitment. A representation was made to them that though theywere initially to be granted a SSC for a period of 5 years, theywere entitled to a PC so long as they were willing and subject totheir suitability. The women officers opted for PC but despite thisfact only their SSC was extended.

7 “HRP”

8 “QRs”

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53. As noticed above neither is the question of suitability nor theabsence of requirement in doubt which was the twin conditioneven as per Clause (v) of the appendix. Once male officers whohad been granted PC, there could be no question of absence ofrequirement of officers for PC. The advertisement also held out apromise to the women Air Force officers of grant of PC dependingupon two factors, which are:

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(i) Vacancy.

(ii) Suitability of the officers.

54. …..

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55. Once these two conditions are satisfied, which is so in thepresent case, the women Air Force officers cannot be denied PCon the specious plea that the SSC was only on experimental basisand there was no entitlement to PC despite satisfaction of thetwo terms and conditions.

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57. ….

58. The doctrine of legitimate expectation as observed in variousjudgments referred to aforesaid is granted on the rule of law asErequiring regularity, predictability and certainty in Governmentdealings with the public, operating both on procedural andsubstantive matters. The fair play would be the expectation fromthe Government.”

11. The High Court issued the following directions in ParagraphF61 of the judgment:

“61. We are, thus, of the considered view that the followingdirections are required to be issued:

i. The claim of absorption in area of operation not open forrecruitment of women officers cannot be sustained being a policydecision.

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ii.The policy decision not to offer PC to Short ServiceCommissioned Officers across the board for men and womenbeing on parity and as part of manpower management exercise isa policy decision which is not required to be interfered with.

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iii.The Short Service Commissioned women officers of the AirForce who had opted for PC and were not granted PC but grantedextension of SSCs and of the Army are entitled to PC at par withmale Short Service Commissioned officers with all consequentialbenefits.This benefits would be conferred to women officersrecruited prior to change of policy as (ii) aforesaid. The PermanentCommission shall be offered to them after completion offive years. They would also be entitled to all consequentialbenefits such as promotion and other financial benefits.However, the aforesaid benefits are to be made availableonly to women officers in service or who have approachedthis Court by filing petitions and have retired during thecourse of pendency of the petitions.

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

The necessary steps including release of financial benefits shallbe done by the authorities within two (2) months of passing of thisorder.”

12. The decision of the High Court was questioned in appeal bythe Army authorities and by the Union of India. This led to the decisionof this Court reported in Secretary, Ministry of Defence versus BabitaPuniya and Others.[9] The following directions were issued by this Court:

“87. We accordingly take on record the statement of policy placedon the record in these proceedings by the Union Government inthe form of the Letter dated 25-2-2019 and issue the followingdirections:

87.1 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 the following:

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SUPREME COURT REPORTS

A87.1.1 All the serving women officers on SSC shall be consideredfor the grant of PCs irrespective of any of them having crossedfourteen years or, as the case may be, twenty years of service.

87.1.2 The option shall be granted to all women presently in serviceas SSC officers.

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87.1.3 Women officers on SSC with more than fourteen years ofservice who do not opt for being considered for the grant of thePCs will be entitled to continue in service until they attain twentyyears of pensionable service.

87.1.4 As a one-time measure, the benefit of continuing in serviceCuntil the attainment of pensionable service shall also apply to allthe existing SSC officers with more than fourteen years of servicewho are not appointed on PC.

87.1.5 The expression “in various staff appointments only” in Para5 and “on staff appointments only” in Para 6 shall not be enforced.

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87.1.6 SSC women officers with over twenty years of servicewho are not granted PC shall retire on pension in terms of thepolicy decision.

87.1.7 At the stage of opting for the grant of PC, all the choicesfor specialisation shall be available to women officers on the sameEterms as for the male SSC officers. Women SSC officers shall beentitled to exercise their options for being considered for the grantof PCs on the same terms as their male counterparts.

87.2 We affirm the clarification which has been issued in sub-para(i) of Para 61 of the impugned judgment and order of theFDelhi High Court.

87.3 SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequential benefitsincluding promotion and financial benefits. However, these benefitswould be made available to those officers in service or those whoGhad moved the Delhi High Court by filing the writ petitions andthose who had retired during the course of the pendency of theproceedings.”

13. The grant of PC to women SSCOs is no longer res integra inso far as the Air Force is concerned since the judgment of the DelhiH

High Court was not challenged before this Court by the Indian Air Force.As a matter of fact, the judgment was said to be implementedby the IAFfor only those officers who were in service as on 12 March 2010 orthose retired/ released officers who were not in service as on 12 March2010 but had filed writ petitions before their release. Forty-four womenSSCOs (twenty-three who had been released and twenty-one who werethen serving) were considered for the grant of PC. A total of forty-onewomen SSCOs were granted PC. Three women SSCOs intimated theirunwillingness.

14. The appellants were left out from the reinstatement plan ofthe IAF as they were all released from service prior to 12 March 2010and had not filed writ petitions independently prior to the lead judgmentin Babita Puniya’s case. Without any undue delay, the appellantsimmediately approached the Delhi High Court challenging the mannerof implementation of the decision in Babita Puniya’s case by the IAF.

15. The Delhi High Court in the impugned judgment dated 11August 2011 held that the benefit of the Babita Puniya judgment waslimited to those women officers who were still in service when the writpetition was decided or those who had approached the Court by filingpetitions but had retired during the pendency of the proceedings in BabitaPuniya’s case. The High Court further noted that if the benefit of thedirections in Babita Puniya’s case were to be extended to all womenofficers who were inducted as SSCOs, the directions issued would haveto be recalled since the grant of a PC was subject to the twin requirementsof suitability and availability of vacancies. By an order dated 27 September2011, the Delhi High Court dismissed the review petitions filed againstthe impugned judgment.

Submissions

16. We have heard Mr Krishnan Venugopal, MrHuzefa A Ahmadiand Ms Meenakshi Arora, senior counsel appearing on behalf of theappellants, and Mr R Balasubramanian, senior counsel appearingon behalfof the respondents.

17. Five submissions have been urged on behalf of the appellantsin support of the challenge to the judgment of the High Court:

i.Though the appellants were not parties to the proceedingsbefore the High Court which resulted in the decision inBabita Puniya and would hence not be governed by A

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812SUPREME COURT REPORTS

Aparagraph 61(3) of the operative directions, they would fallwithin the purview of paragraph 61(4), which is an additionalcategory over and above the category specified in paragraph61(3);

ii.The appellants had a legitimate expectation in terms of theBprevailing policy circular dated 25 November 1991 and theadvertisement in pursuance of which they were recruitedthat they would be considered for the grant of PC at theend of five years of service but they were deprived of theirlegitimate expectation;

Ciii.Following the decision of the High Court in Babita Puniya,the claim of the women SSCOs was required to beconsidered in terms of the Human ResourcesPolicypromulgated by the IAF on 19 November 2010butconsideration has not taken place in pursuance of theapplicable policy circular; D

iv.In applying the Qualitative Ratings for considering thewomen SSCOs for the grant of PC, a crucial aspect is thatat the relevant time such officers were not entitled to thegrant of PC in view of the policy circular dated 10 September2004, consequent upon which the QRs were assessed on aEcasual basis without due application of mind; and

v.In any event, should this Court come to the conclusion thatthe women SSCOs cannot be reinstated in service at thispoint of time having regard to the years which have elapsedsince they have been released from service, they should beFgranted pensionary benefits in terms of the decision inSecretary, Ministry of Defence v. Babita Puniya renderedby this Court in the exercise of its jurisdiction under Article142 of the Constitution of India.

18. Controverting these submissions, Mr R Balasubramanian, seniorGcounsel appearing on behalf of the respondents submitted that:

i.The appellants were neither serving in the IAF on 12 March2010 when the judgment of the Delhi High Court in BabitaPuniya was rendered nor had they approached the HighCourt while they were in service. As a consequence, noneHof the appellants are governed by the operative directions contained in paragraph 61 of the judgment of the Delhi HighCourt in Babita Puniya; ii.The IAF has duly complied with the operative conditionscontained in the decision in Babita Puniya rendered by theHigh Court by considering forty-four women SSCOs ofwhom forty-one were granted PC;

iii.During the pendency of these proceedings, by an interimdirection, this Court directed the IAF to consider the pleafor reinstatement subject to the women SSCOs meetingthe QRs reflected in the policy of 2007. Accordingly, thecases of fourteen appellants were considered in terms ofthe order dated 20 February 2013 passed by this Court.Eight women SSCOs were reinstated while the rest werenot found to be suitable; othershad expressed theirunwillingness; and yet others failed to meet the medicalcriteria;

iv.Subsequent to the above interim order, this Court on 23August 2013 and 27 September 2013 declined to grantinterim relief to other officers;

v.On the date of the order of the High Court dated 12 March2010, there were 811 SSCOs of whom 348 had beenreleased while 463 were serving. While implementing thejudgment of the Delhi High Court, the Government of Indiaand the Ministry of Defence issued orders on 5 August2011 in terms of which 463 serving SSCOs (88 male and375 female) were considered for PC in addition to the 44women SSCOs who had already been considered for thegrant of PC under the judgment of the Delhi High Court.Out of these 463 officers, 371 SSCOs were granted PCcomprising of 70 men and 301 women; and

vi.There has been no discrimination between men and womenofficers in terms of the application of the QR requirementsin considering their claims for the grant of PC. The uniformQR requirement of 6.5 has been applied across the boardto both men and women SSCOs as reflected in the followingtabular chart:

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814SUPREME COURT REPORTS[2022] 8 S.C.R.ABCDEFGH

Analysis

19. The principal issue which falls for determination turns on theinterpretation of paragraphs 61(3) and 61(4) of the decision of the DelhiHigh Court in Babita Puniya. The decision of the High Court eventuallyresulted in a judgment of this Court, as already noted above. The IAFdid not challenge the judgment of the Delhi High Court dated 12 March2010, unlike the Army authorities which were in appeal before this Court.The IAF authorities have purported to implement the judgment. Theissue which falls for determination is whether the judgment has beenduly observed.

20. Paragraph 61(3) of the judgment of the Delhi High Courtprovided that women SSCOs of the IAF who had opted for PC butwere not granted PC but allowed only an extension of their Short ServiceCommissions were entitled to PC at par with men SSCOs with allconsequential benefits. PC was to be offered to them after the completionof five years. This will cover consequential benefits including promotionand other financial benefits. However, the benefits were to be madeavailable only to those women officers who were in service and to thosewho had approached the High Court by filing petitions though they hadretired during the course of the pendency of the petitions. In other words,paragraph 61(3) covers two categories:

i.Serving women SSCOs as on the date of the judgment; andii.Women SSCOs who had instituted writ petitions before theHigh Court but who had retired during the course of thependency of the petitions.

21. The reference to the expression “retired” has to be construedas a release from service as accepted on both sides during the course ofthe hearing, since the SSCOs were governed by a release from servicefollowing the initial tenure of five years followed by two extensions ofsix years and four years, respectively.

22. Paragraph 61(4), according to the submission of the appellants,postulates an additional category of officers who would not fall withinthe ambit of paragraph 61(3). This submission has been opposed by MrR Balasubramanian, senior counsel appearing on behalf of the respondentswho urges that paragraph 61(4) is clarificatory in nature.

23. Before we resolve the area of contentious dispute, it would beappropriate to advert to the reasoning contained in paragraph 16 of theimpugned judgment which reproduces paragraph 60 of the earlier A

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Adecision. Paragraph 60 of the decision of the Delhi High Court inBabitaPuniya is extracted below:

“60. A PC carries with it certain privileges of rank includingpension. These women officers have served well the Armed Forcesof the country in the areas of operation they were recruited forBand have worked in this capacity for 14 to 15 years. They deservedbetter from the respondents. There is no reason why these personswho have knocked the door of the court should be deprived oftheir benefit and the benefit extended only in future for grant ofPC to women. It is not as if a complete chapter can be openedby persons who have chosen to accept the SSC and onCcompletion of period decided to go out of service. Thebenefit is only available to serving officers and the oneswho knocked the court but during the period ofconsideration of the matter retired from service. Lt wouldhave been in the fitness of things if the respondents having takenDthe decision to offer PC prospectively should have favourablyexamined as a policy itself, the plea of the petitioners who were inservice or retired from service during pendency of petition to grantthem an equivalent benefit. In matters of gender discrimination agreater sensitivity is expected and required.”

E24. The above observations of the Delhi High Court make itabundantly clear that at that stage, it was inclined to grant the benefit to:

i.Serving officers; and

ii.Officers who had moved the Court, but had retired or beenreleased from service during the pendency of theFproceedings.

25. The operative directions cannot be read in a manner isolatedfrom the main text of the judgment, which is evident from the intentunderlying the ultimate directions. This interpretation of the decision ofthe Delhi High Court is also reinforced by the operative directions whichGwere issued by this Court in Secretary, Ministry of Defence v.BabitaPuniya, in the batch of appeals arising from the judgment of theDelhi High Court at the instance of the Army authorities. This Courtobserved that the directions of the Delhi High Court in its judgmentdated 12 March 2010 envisaged that the benefits were to be madeavailable to those “women officers in service who had institutedH

proceedings before the High Court and had retired during the pendencyof the writ petitions”, and that by virtue of direction (iv), it was envisagedthat those women officers who had not attained the age of superannuationfor PC officers would be reinstated with all consequential benefits. Inparagraph 87 of its judgment, this Court observed as follows:

“87.3 SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequential benefitsincluding promotion and financial benefits. However, these benefitswould be made available to those officers in service or those whohad moved the Delhi High Court by filing the writ petitions andthose who had retired during the course of the pendency of theproceedings.”

26. In other words, it was clarified that the benefits would extendto those officers who were in service and to those who had moved theDelhi High Court by filing writ petitions and had retired during thependency of the proceedings. Hence, it isnot possible to accept the widersubmission which has been urged on behalf of the appellants that theywere expressly covered by para 61 of the decision of the Delhi HighCourt in Babita Puniya.

27. The issue which falls for determination as to whether theappellants stand in the same position as the officers who were governedby the decision in Babita Puniya.

28. It needs to be emphasized that the entire litigation initially waspursued in the form of a PIL which was moved by an advocate.Duringthe pendency of the proceedings, officers of the Air Force and the Armyjoined in the proceedings. The appellants are all officers who are inservice since their initial appointment in 1993. In terms of the policycircular which held the field as well as the advertisements in pursuanceof which they were recruited, they were under a legitimate expectationthat they would be considered for the grant of PC at the end of fiveyears. However, they were not offered PC and were instead grantedextensions in service.

29. A person is said to have a reasonable or legitimate expectationif a representation or a promise made by an authority, either expressly orimpliedly, gives room for such expectation in the normal course. Whileapplying the doctrine of legitimate expectation, the primary considerationsare reasonableness and fairness of the state action. In State of A

BC

D

E

F

G

H

AJharkhand v. Brahmputra Metallics Ltd., Ranchi,[10] this Courtspeaking through of one us (D.Y. Chandrachud J)elaborated onthe doctrine of legitimate expectation in the following terms:

“45. …The state must discard the colonial notion that it is asovereign handing out doles at its will. Its policies give rise toBlegitimate expectations that the state will act according to what itputs forth in the public realm. In all its actions, the State is boundto act fairly, in a transparent manner. This is an elementaryrequirement of the guarantee against arbitrary state action whichArticle 14 of the Constitution adopts.”

C30. In the present case, the appellants had a legitimate expectationsince the respondents by their representations in the policy circular dated25 November 1991 and in published advertisement screated expectationsamong the women SSCOs regarding the grant of PC on completion offive years of service, subject to vacancies and suitability. All the womenofficers were eligible to be considered for grant of PC between yearsD2000 to 2003, but they were only given an extension of SSC in teeth ofthe legitimate expectation which was held out in the initial terms andconditions of appointment. The male counterparts of the appellants wereconsidered for and granted PC after their five years of service. Thewomen SSCOs continued to be under a legitimate expectation that theirEextended SSC tenure would be converted into a PC as they were inducedin service with a specific representation of being considered for PC.The Delhi High Court in the Babita Puniya judgment dated 12 March2010 had also applied the doctrine of legitimate expectation and observedthat the doctrine of legitimate expectation, grounded in the rule of law,required regularity, predictability and certainty in government dealingsFwith the public, operating on procedural and substantive matters.

31. Most of these officers joined service between 1993 and 1998and were eventually released from service between December 2006and 2009. They have put in long years of service for the IAF. During thecourse of the hearing, the Court has been fairly apprised on behalf of theGAir Force authorities that the officers have an excellent track record.

32. In this backdrop, we are of the view that this batch of officerswho moved the Delhi High Court soon after the decision in Babita Puniyaand within a reasonable period from the date of their release should not be denied the benefit which emanates from that judgment. At the sametime, the Court cannot be oblivious of the fact that the officers havebeen released from service on diverse dates between December 2006to December 2009.Reinstatement in service would not therefore be aviable option particularly having regard to the exigencies of service in anarmed force of the nation. However, following the logic of the earlierdecision of this Court in Secretary, Ministry of Defence v. BabitaPuniya, we are of the view that the officers should be considered forthe grant of pensionary benefits. This direction shall emanate in exerciseof the jurisdiction of this Court under Article 142 of the Constitution ofIndia to bring about complete and substantial justice and remove thepernicious effects of gender discrimination which had taken place in thepast in the Indian Air Force. The extra-ordinary constitutional powerentrusted under Article 142 has been earlier invoked by this Court inSecretary, Ministry of Defence v. Babita Puniya, Lt. Col. Nitishaand Others v. Union of India,[11]and Union of India v. Lt. Cd. AnnieNagaraja[12]to compensate and/or grant pensionary benefits to womenofficers, belonging to the Army and Navy, in the interest of justice.

33. The officers shall be considered for the grant of PC on thebasis of the HRP dated 19 November 2010. The policy documentspecifically enunciates the QRs for the grant of PC to women SSCOs inthe following terms:

“5. Qualitative Reguirements (QRs.)- Q.Rs for grant of PCin respect of SSC Women officers would be as follows: - (a)No of ARs.ARs of the preceding three years prior to 25 May06 would be considered for grant of PC.

(b) AR Grades. For grant of PC an officer must have Minimumaverage grading of 6.5 in the three ARs under consideration. Forthe grant of PC, an officer must have a minimum grading of 6 (inARs under consideration), in each of the professional and behavioralfactors listed below

(i) Professional Factors

(aa) Professional Knowledge.

(ab) Job proficiency.

11 WP(C) No. 1109 of 2020; 2021 SCC OnLine SC 261

12 (2020) 13 SCC 1

A

B

C

D

E

F

G

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A(ii)Behavioral Factors

(aa) Integrity and Loyalty.

(ab) Dependability and Sense of Responsibility.

(ac) Courage (Physical and Moral)

The policy also specifies other requirements including medicalBconditions.”

Directions

34. We accordingly order and direct as follows:

i.All the women SSCOs governed by the present batch ofcases shall be considered for the grant of one-timeCpensionary benefits on the basis that they have completedthe minimum qualifying service required for pension;

ii.The cases of the appellants shall be evaluated on the basisof the HRP dated 19 November 2010 bearing Part No 5;and D

iii.The officers who are found eligible for the grant ofpensionary benefits in terms of the present direction shallnot be entitled to any arrears of salary, but the arrears ofpension shall be payable with effect from the date on whichthe officers are deemed to have completed twenty yearsof service; E

iv.We also clarify that we have dismissed several otherpetitions filed by officers who had moved the Delhi HighCourt after a considerable degree of delay following theirrelease from service; and

v.In the present batch of cases, there are three officers whohave scored QRs between 6.29 and 6.41. The case of theseofficers shall be considered sympathetically by the Air Forceauthorities on the same footing.

F

35. The civil appeals are accordingly disposed of in the aboveterms.G

36. Pending applications, if any, stand disposed of.

Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeals disposed of.

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