Judges: Dr. D.Y. Chandrachud and Ajay Rastogi

Facts:

On 30^th January 1992, Union of India (UOI) has issued a notification making women eligible for appointment as officers in the specific branches/cadres of the Army for five years. The initial period of five years was later on extended by a notification dated 12th December 1996 issued by Ministry of Defence (MoD).

In February 2003, Babita Puniya, an advocate instituted a Writ Petition in the nature of a Public Interest Litigation before the Delhi High Court for the grant of PC to women Short Service Commission (SSC) officers in the Army.

On 28^th October 2005, a notification was issued by the MoD by which the UOI extended the validity of the scheme of appointment of women as officers in the Indian Army and the tenure of women officers inducted under the Women Special Entry Scheme (Officers) (WSES) was extended by five years.

During the course of the proceedings, two circulars were issued on 20th July 2006, conveying the sanction of the President of India regarding the grant of SSCs both on the technical and non-technical side to women officers for 14 years.

On 16^th October 2006, a Writ Petition was filed by Major Leena Gurav for seeking the grant of PCs for women officers. On 26 September 2008, the MoD issued a circular envisaging the grant of PCs prospectively to SSC women officers in the JAG department and the AEC. The circular was challenged before the Delhi High Court by Major Sandhya Yadav and others on the ground that it granted PCs only prospectively and only to certain specified cadres. All the Petitions were heard together by the Division Bench of Delhi High Court.

By a judgment dated 12th March 2010, the High Court directed that the Short Service Commissioned women officers are entitled to PC at par with male Short Service Commissioned officers with all consequential benefits. Assailing the judgment, the Union of India (UOI) has approached the present court.

During the pendency of this appeal, MoD issued a communication dated 25th February, 2019 for the grant of PCs to SSC women officers in 10 arms or services of the Army including JAG and AEC. UOI has also tendered a proposal which envisages that (i) Women officers of up to fourteen years of service would be considered for the grant of PC with further career progression only in staff appointments; (ii) Women officers with more than fourteen years of service would be permitted to serve for up to twenty years without being considered for the grant of PC; and (iii) Women officers with more than twenty years of service would be released with pensionary benefits immediately upon the conclusion of the present appeal.

Issues:

(i) Whether women entitled to get Permanent Commission in the Indian Army?

(ii) Whether the communication dated 25th February 2019 issued by MoD should be implemented?

Law:

Army Act, 1950 - Section 12 - No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body forming part of, or attached to any portion of, the regular Army as the Central Government may, by notification in the Official Gazette, specify in this behalf

Contentions of Petitioner:

(a) Grant of PC

(i) Prior to the communication dated 25 February 2019, the engagement of SSC women officers was governed by Gazette notifications as amended from time to time with a clear stipulation for exit on the completion of fourteen years of service. The grant of PCs was specifically not envisaged. None of these notifications or Army instructions were challenged before the High Court.

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

(iii) The power to grant commission belongs to the President and no mandamus can be claimed from a court;

(iv) The communication dated 25 February 2019 which has been placed on record has been taken after due deliberation and is issued in national interest.

(v) The new policy is in organisational interest. The benefits envisaged in the policy cannot be granted to women officers who have crossed fourteen years since they will be left with little time to be trained. It would not be possible to gainfully employ them, as they would have limited years of service left.

(b) Pensionary benefits

(i) The Communication dated 25th February 2019 provides for substantial benefit of pensionable service to women officers who have continued beyond fourteen years of service under interim orders.

(c) Policy considerations

(i) Fortified by Section 12 of the Act and Article 33 of the Constitution, questions relating to constitution, recruitment, posts, categories, cadres and criteria for the grant of PCs constitute policy decisions and lie exclusively in the domain of executive functions;

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

(iii) The Union Government is entitled to frame a policy regarding the grant of PCs to women officers after accounting for the need for a balanced approach involving military services and national security. The Union Government is entitled to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care. These considerations are not open to judicial review;

(iv) The scope of judicial review in matters of command/tenure is limited as held by this Court in Union of India v. P K Chaudhary

(d) Occupational hazards

(i) Women are not employed on duties which are hazardous in nature unlike their male counterparts in the same Arm/Service who are liable to be employed in combat duties.

(e) Discrimination

(i) There is no discrimination between men and women SSC officers. The Army faces a huge management challenge "to manage WOs in soft postings with required infrastructure, not involving hazardous duties with the regular posts with the other women in the station". The Army has to cater for spouse postings, "long absence on account of maternity leave, child care leave" as a result of which "the legitimate dues of male officers have to be compromised".

(f) Ajay Vikram Singh Committee report: SSC as a support cadre

(i) The Ajay Vikram Singh Committee favoured a lean permanent cadre of officers, supplemented by an enhanced support cadre in the ratio 1:1.1. However, the ratio between the PC cadre vis-a-vis the SSC cadre is currently skewed at 3.98:1. Hence, further induction into the PC cadre through the SSC cadre will upset the organisational structure of the Army.

(g) Employment in staff appointments

(i) Since 1992, the Union Government has restricted the eligibility of women officers to select appointments, as decided from time to time by Army headquarters. These orders have not been subjected to challenge or been invalidated.

Contentions of Respondents

(i) Women officers form a miniscule four per cent of the total strength of commissioned officers in the Army.

(ii) Women officers on SSC have suffered from serious discrimination comprising of:(i) Lack of opportunity for professional growth; (ii) Absence of job security due to the ambiguous status of the cadre; and (iii) Rendering service under Junior Officers due to the lack of a uniform and equal promotion policy.

(iii) Women officers have been left in the lurch without pensionary and promotional benefits at par with their male counterparts despite having dedicated prime years of their lives to the service of the nation.

(iv) Posting women officers in staff appointments in the select rank of Colonel under the aegis of MS-1 and MS-3 will equate them with re-employed, low medical category and non-empanelled male officers. Refuting the argument on command appointments, it has been submitted that there are several command roles that do not require any special training including:

Analysis

(i) Article 33 of the Constitution empowers Parliament to determine by law the extent to which the rights conferred by Part III of the Constitution shall be restricted/abrogated in their application inter alia to the members of the Armed Forces so as to ensure the proper discharge of their duties and the maintenance of discipline among them. But such a restriction or abrogation must be by law and must be enacted to ensure the proper discharge of duties and the maintenance of discipline.

(ii) The eligibility of women for enrollment or engagement in the regular Army is conditional on a provision being made by the Central Government in terms of the enabling provision of Section 12 of the Act.

(iii) On a textual interpretation of Section 12 of the Act as it stands, it is evident that the policy decision dated 25 February 2019 of the Union Government has allowed for the grant of PCs to commissioned women officers in all the ten streams which have been notified.

(iv) The policy decision of the Union Government is a recognition of the right of women officers to equality of opportunity. One facet of that right is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution. The second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1) of Constitution. The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army.

(v) The salient decision of the Union Government to extend PCs to women SSC officers in all ten streams in which they are commissioned is a step forward in recognising and realising the right of women to equality of opportunity in the Army. This marks a step towards realising the fundamental constitutional commitment to the equality and dignity of women.

(vi) There is fundamental fallacy in the distinction which has been sought to be drawn between women officers with less than fourteen years of service with those with service between fourteen and twenty years and above twenty years. The judgment of the Delhi High Court was rendered on 12 March 2010. The Union Government was duty bound to enforce the judgment of the Delhi High Court, the judgment not having been stayed during the pendency of these appeals. The failure of the government to implement the judgment of the Delhi High Court has caused irreparable prejudice to the women officers as they have lost the benefit of promotions and the assumption of higher responsibilities as members of the Armed Force. Thus, SSC women officers, both within the period of fourteen years' service and beyond, should equally be entitled to consideration for the grant of PCs.

(vii) The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. It is necessary here to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSCs officers after the date of the decision. Thus, the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them.

(viii) The next aspect of the policy decision relates to the restriction which has been imposed on women officers being granted PCs for staff appointments. Such a restriction was not imposed when the JAG and AEC branches were opened up for the grants of PCs for women SSC officers in the past. The consequence of this, is an implicit acceptance by the Army that women can, in certain situations, receive criteria or command appointments. An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14 of Constitution. Implicit in the guarantee of equality is that where the action of the State does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner. In this sense, even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason. An absolute prohibition of women SSC officers to obtain anything but staff appointments evidently does not fulfill the purpose of granting PCs as a means of career advancement in the Army. Whether a particular candidate should or should not be granted a criteria or command assignment is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements. In the present case the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either. The absolute exclusion of women from all others except staff assignments in indefensible. If the army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts. However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment. The blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law. Thus, the expression "in various staff appointments only" in paragraph 5 and that "on staff appointments only" in paragraph 6 of the communication dated 25 February 2019 shall not be enforced.

Conclusion:

Appeals disposed of with following directions:

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

1. All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;
2. The option shall be granted to all women presently in service as SSC officers;
3. Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;
4. As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;
5. The expression "in various staff appointments only" in para 5 and "on staff appointments only" in para 6 shall not be enforced;
6. SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and
7. At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.

(ii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.

Necessary steps for compliance with this judgment directed to be taken within three months from the date of this judgment.

Relevant Precedents:

Union of India v. P K Chaudhary