# THE SECRETARY, MINISTRY OF DEFENCE v. BABITA PUNIYA & ORS

- **Citation:** [2020] 3 S.C.R. 833
- **Court:** Supreme Court of India
- **Decided:** 2020-02-17
- **Case number:** Civil Appeal Nos. 9367-9369 of 2011
- **Bench:** Dr. Dhananjaya Y Chandrachud, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-ministry-of-defence-v-babita-puniya-ors-34117
- **Pages:** 49

## Headnote

Constitution of India:
Arts. 14, 15 (1) and 16(1) - Induction of women in Army under
Women Special Entry Scheme (Officers) [WSES] for a period of 5
years - The initial process under WSES replaced by Short Service
Commission (SSC) with outer period of fourteen years - Writ petition
seeking direction for grant of Permanent Commission (PC) to women
SSC officers - High Court held that SSC women officers who had
opted for PC and were not granted PC but granted extension of
SSC, were entitled to PC at par with male SSC officers - Appeal to
Supreme Court - During pendency of the appeal Union Government
by its communication dated 25 February 2019 granted PC to SSC
women officers in ten arms of services of the Army - Held: The
policy decision of Union dated 25 February 2019 must be construed
as a decision which enforces the fundamental right of women to
seek access to public appointment and to equality of opportunity in
public employment as envisaged in Articles 15(1) and 16(1) of the
Constitution respectively - However, the distinction sought to be
drawn between women officers with less than fourteen years of
service, with those having service between fourteen and twenty years
and above twenty years, is fallacious - There is no reason to deprive
women SSC officers of grant of PC on the ground that they have
crossed fourteen years of service because such situation arose only
due to delay on part of the Union Government in implementing the
order of the High Court - Therefore, women SSC officers both within
the period of 14 years of service and beyond, should equally be
entitled to consideration for grant of PCs - Also the absolute bar
on women seeking criteria or command appointments is not
sustainable being against the provisions under Article 14.
[2020] 3 S.C.R. 833
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[2020] 3 S.C.R.
Art. 33 - Scope of - Held: Limitation or abrogation of
fundamental rights in their application to members of Armed Forces
u/Art. 33, must be by law enacted to ensure proper discharge of
duties and maintenance of discipline.
Disposing of the appeals, the Court
HELD: 1. 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. The impact of
Article 33 is to enable Parliament to limit or abrogate the
fundamental rights in their application to the members of the
Armed forces. But such a restriction or abrogation must be by
law. Moreover, the restriction or abrogation must be enacted to
ensure the proper discharge of duties and the maintenance of
discipline. [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) 3
SCC 140 : [1983] 1 SCR 393; R Viswan v. Union of
India (1983) 3 SCC 401 : [1983] (3) SCR 60 - referred
to.
2. Section 12 of the Army Act, 1950 embodies the principle
that a woman would be eligible for enrolment or employment only
in such corps, departments, branches or bodies forming part of
or attached to the regular Army upon and to the extent notified
by the Central Government. In other words, 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. [Para 49]
[869-D-F]
3. Following the judgment of the impugned order, the Union
Government was under a mandate to grant Permanent
Commissions (PCs) to women officers, to the exclusion of the
Combat Arms, and at par with the grant of PCs to their male
counterparts. Significantly, the impugned judgment was not stayed
by this Court at any stage, though there was a direction that no
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coercive steps would be initiated on the basis of the judgment in
appeal. A direction

## Text

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THE SECRETARY, MINISTRY OF DEFENCE
v.
BABITA PUNIYA & ORS.
(Civil Appeal Nos. 9367-9369 of 2011)
FEBRUARY 17, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Constitution of India:
Arts. 14, 15 (1) and 16(1) - Induction of women in Army under
Women Special Entry Scheme (Officers) [WSES] for a period of 5
years - The initial process under WSES replaced by Short Service
Commission (SSC) with outer period of fourteen years - Writ petition
seeking direction for grant of Permanent Commission (PC) to women
SSC officers - High Court held that SSC women officers who had
opted for PC and were not granted PC but granted extension of
SSC, were entitled to PC at par with male SSC officers - Appeal to
Supreme Court - During pendency of the appeal Union Government
by its communication dated 25 February 2019 granted PC to SSC
women officers in ten arms of services of the Army - Held: The
policy decision of Union dated 25 February 2019 must be construed
as a decision which enforces the fundamental right of women to
seek access to public appointment and to equality of opportunity in
public employment as envisaged in Articles 15(1) and 16(1) of the
Constitution respectively - However, the distinction sought to be
drawn between women officers with less than fourteen years of
service, with those having service between fourteen and twenty years
and above twenty years, is fallacious - There is no reason to deprive
women SSC officers of grant of PC on the ground that they have
crossed fourteen years of service because such situation arose only
due to delay on part of the Union Government in implementing the
order of the High Court - Therefore, women SSC officers both within
the period of 14 years of service and beyond, should equally be
entitled to consideration for grant of PCs - Also the absolute bar
on women seeking criteria or command appointments is not
sustainable being against the provisions under Article 14.
[2020] 3 S.C.R. 833
833
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SUPREME COURT REPORTS
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Art. 33 - Scope of - Held: Limitation or abrogation of
fundamental rights in their application to members of Armed Forces
u/Art. 33, must be by law enacted to ensure proper discharge of
duties and maintenance of discipline.
Disposing of the appeals, the Court
HELD: 1. 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. The impact of
Article 33 is to enable Parliament to limit or abrogate the
fundamental rights in their application to the members of the
Armed forces. But such a restriction or abrogation must be by
law. Moreover, the restriction or abrogation must be enacted to
ensure the proper discharge of duties and the maintenance of
discipline. [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) 3
SCC 140 : [1983] 1 SCR 393; R Viswan v. Union of
India (1983) 3 SCC 401 : [1983] (3) SCR 60 - referred
to.
2. Section 12 of the Army Act, 1950 embodies the principle
that a woman would be eligible for enrolment or employment only
in such corps, departments, branches or bodies forming part of
or attached to the regular Army upon and to the extent notified
by the Central Government. In other words, 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. [Para 49]
[869-D-F]
3. Following the judgment of the impugned order, the Union
Government was under a mandate to grant Permanent
Commissions (PCs) to women officers, to the exclusion of the
Combat Arms, and at par with the grant of PCs to their male
counterparts. Significantly, the impugned judgment was not stayed
by this Court at any stage, though there was a direction that no
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coercive steps would be initiated on the basis of the judgment in
appeal. A direction by this Court not to initiate coercive steps is
distinct from a stay on the operation of the judgment. There was
no reason or justification for the Union Government not to act
upon the directions that were issued by the High Court in the
impugned judgment, particularly, in the absence of a stay on the
operation and enforcement of the judgment. The Union
Government continued to thwart implementation despite the
order of this Court dated 2 September 2011 clarifying that "the
operation of the impugned judgment is not stayed at all." Scant
regard has been paid to the High Court and to this Court as well.
Eventually, nearly nine years after the judgment, the Union
Government has communicated a policy circular dated 25
February 2019 by which a decision has been taken to grant women
officers PC in eight Arms/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 women officers were currently being
commissioned as Short Service Commission (SSC) officers.
[Para 50] [869-G-H; 870-A-D]
4. The decision of the Union Government to allow PCs to
women officers in all the ten streams where they are being
inducted as SSC officers substantially renders redundant the
submission based on the provisions of Section 12 of the Army
Act. Even on a textual interpretation of Section 12 as it stands, it
is evident that the policy decision dated 25 February 2019 of the
Union Government has allowed for the grant of consideration of
PCs to commissioned women officers in all the ten streams which
have been notified. [Para 51] [870-D-G]
5. 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 nondiscrimination 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). 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
THE SECRETARY, MINISTRY OF DEFENCE v.
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appointment and to equality of opportunity in matters of
engagement relating to the Army. The fundamental right is
recognised in the specified streams where women are permitted
to seek engagement as equal members of the Armed force that
the Indian Army represents. The decision of the Union
Government to extend the grant of PC to other corps in the
support arms and services recognizes that the physiological
features of a woman have no significance to her equal entitlements
under the Constitution. Reliance on the "inherent physiological
differences between men and women" rests in a deeply
entrenched stereotypical and constitutionally flawed notion that
women are the 'weaker' sex and may not undertake tasks
that 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 of
the service which has been rendered by women SSC officers to
the cause of the nation, working shoulder to shoulder with their
male counterparts. Yet, that role is sought to be diluted by the
repeated pleas made before this Court that women, by the nature
of their biological composition and social milieu have a less
important role to play than their male counterparts. Such a line of
submission is disturbing as it ignores the solemn constitutional
values which every institution in the nation is bound to uphold
and facilitate. [Para 56] [873-A-B]
7. Women officers of the Indian Army have brought laurels
to the force. These are documented in the course of proceedings
and have not been controverted. To cast aspersion on the abilities
of the women officers 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 and women - who serve as equal citizens
in a common mission. [Para 56] [873-A-B; 874-G; 875-A]
8.1 Courts are indeed conscious of the limitations which
issues of national security and policy impose on the judicial
evolution of doctrine in matters relating to the Armed forces. For
this reason the engagement of women in the Combat Arms has
been specifically held to be a matter of policy by the High Court
and which is not in question in the present appeals. The
submissions by Union of India detract from the significant role
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which has been played by women SSC commissioned officers since
their induction in 1992. The time has come for a realization that
women officers in the Army are not adjuncts to a male dominated
establishment whose presence must be "tolerated" within narrow
confines. 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.[Para 57]
[875-A-E]
8.2. Courts are conscious of the limitations which questions
of policy impose on judicial intervention in matters relating to
the Armed Forces. At the same time, faced with a salient decision
of the Union Government to extend to all women SSC officers
the option for the grant of PCs as well as the situation which has
come to pass due to the non-implementation of the binding
directions of the Delhi High Court as well as this Court, nonintervention in the present matter would be nothing short of a
travesty 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 this
Court by the Union Government involves a three-stage
assessment of women SSC officers for the grant of PCs. A
distinction has been made in the proposal between women officers
who have been in service for a period of less than fourteen years
and those beyond. The proposal envisages that only those women
officers with less than fourteen years of service would be
considered for the grant of PCs. Under the terms of this proposal,
women officers with more than fourteen years of service but less
than twenty years of service would continue until they attain
pensionable service of twenty years, without the grant of PCs.
Women officers who have crossed twenty years' service would
be discharged from service immediately subject to receipt of
pension. The proposal has been commended for acceptance to
this Court on the ground that it allows women officers who have
crossed fourteen years of service to receive pensionary benefits,
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where such benefit would otherwise not be available to them.
[Para 58] [875-E-H]
9.2. 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. Nearly a
decade has elapsed since the date of the decision of the High
Court. 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. Having failed to
enforce the judgment, the Union Government has now informed
the Court that it would not consider women officers who have
crossed the age of fourteen years in service as SSC officers for
the grant of PCs. This situation of women officers with service
above fourteen years has come to pass plainly as a consequence
of the failure of the Union Government to comply not only with
the directions of the High Court but also those which were issued
by this Court on 2 September 2011. In this view of the matter,
there is no reason or justification to deprive SSC women officers
of the grant of PCs on the ground that they have crossed fourteen
years of service. The failure of the government to implement the
judgment of the High Court has caused irreparable prejudice to
the women officers. To turn around now and inform them that
they will lose the entitlement of being considered for the grant of
PCs would be a travesty of justice. Therefore, SSC women
officers, both within the period of fourteen years' service and
beyond, should equally be entitled to consideration for the grant
of PCs. [Paras 59 and 60] [876-A-G]
10. 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 for this Court 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. The Union Government has not
applied it in such a manner, which is evident from the fact that
the decision contemplates that women officers already in service
but with less than fourteen years would be entitled to be
considered. Therefore it is clarified that the policy decision will
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apply to all women SSC officers who are currently in service
irrespective of the length of service which has been rendered by
them. [Para 61] [876-F-H; 877-A-B]
11. The next aspect of the policy decision relates to the
restriction which has been imposed on women officers being
granted PCs save and except 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. 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
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blanket non-consideration of women for criteria or command
appointments absent an individuated justification by the Army
cannot be sustained in law. Therefore, 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. [Paras 67 and 68]
[879-B-H; 880-A-B]
12. 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: (a)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; (b) The option shall be
granted to all women presently in service as SSC officers; (c)
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; (d) 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; (e) The
expression "in various staff appointments only" in para 5 and
"on staff appointments only" in para 6 of communication dated
25 February, 2019 shall not be enforced; (f) 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 (g) 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. 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
High Court by filing the Writ Petitions and those who had retired
during the course of the pendency of the proceedings. [Para 69]
[880-D-H; 881-A-E]
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Case Law Reference
[2016] 2 SCR 426
distinguished
Para 28 (iv)
[1964] 5 SCR 931
referred to
Para 45
[1983] 1 SCR 393
referred to
Para 46
[1983] 3 SCR 60
referred to
Para 47
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 93679369 of 2011.
From the Judgment and Order dated 12.03.2010 of the High Court
of Delhi at New Delhi in W.P.(C) Nos. 1597 of 2003, 16010 of 2006 and
9028 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. Neela
Gokhale, Ms. Saniya Scott, Yuvraj Sharma, Padmesh Mishra, Arkaj
Kumar, Ashray Behura, Ms. Shradha Agrawal, Ms. Shruti Dixit, Ilam
Paridi, Chitrangda Rastravara, Ms. Kirti Khangarot, Ms. Oorjasvi
Goswami, 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 Vijay
Palli, Ms. Garima Sachdeva, Nikhil Palli, Deepak Goel, Anil Kumar
Bakshi, Ms. Meenakshi Lekhi, Harish Pandey, Jitender Kr. Tripathi, Alok
Kr. Pandey, Sanchar Anand, Anant K. Vatsya, Devendra Singh, Deepak
Goel, Vivek Narayan Sharma, Jasdeep Singh, Pragyan Mishra, Shubham
Awasthi, Akash Sharma, Rajeev Kumar Jha, Ms. Suman Rani, Santosh
Krishnan, B. V. Balaram Das, Ms. Pooja Dhar, Ms. Haripriya
Padmanabhan, 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, Maninder
Jit Singh, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. Beendu Singh,
Advs. for the appearing parties.
THE SECRETARY, MINISTRY OF DEFENCE v.
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A Background of the dispute
B 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
F Consequence of non-compliance
G Blanket restriction on criteria appointments
H Directions
A Background of the dispute
1. A quest for equality of opportunity for women seeking Permanent
Commissions1 in the Indian Army forms the basis of these appeals. The
lead appeal originated in a batch of Writ Petitions which were instituted
before the High Court of Delhi in 2003 and 2006.
2. A decade and more spent in litigation, women engaged on Short
Service Commissions2 in the Army seek parity with their male
counterparts in obtaining PCs. The entry of women in the Army has a
chequered history. Section 12 of the Army Act 19503 contains, in so far
as it is material, the following provisions:
"12. Ineligibility of females for enrolment or employment.- 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."
3. Pursuant to the power conferred by Section 12, the Union
Government issued a notification4 dated 30 January 1992 making women
1 "PC"
2 "SSCs"
3 "1950 Act"
4 SRO-11
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eligible for appointment as officers in the specific branches/cadres of
the Army. These were:
"(i) Army Postal Service;
(ii)
Judge Advocate General's Department;
(iii) Army Education Corps;
(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 years
from the date on which it was published in the official Gazette. SRO-11
was published in the Gazette on 15 February 1992.
4. By a notification5 dated 31 December 1992, women became
eligible for enrollment in the following corps/departments of the regular
Army:
"(i) Corps of Signals,
(ii) Intelligence Corps,
(iii) Corps of Engineers,
(iv) Corps of Electrical and Mechanical Engineering,
(v) Regiment of Artillery."
5. The provision for the induction of women for an initial period of
five years was extended by a notification6 dated 12 December 1996
issued by the Ministry of Defence7. The notification deleted paragraph
2 of SRO-11 under which enrollment was to be for a period of five
years.
6. On 28 October 2005, a notification8 was issued by the MoD by
which the Union Government extended the validity "of the scheme of
appointment of women as officers in the Indian Army". To facilitate
this, four amendments were made to the earlier notification dated 15
February 1992:
5 SRO-1, published in the Gazette on 23 January 1993
6 SRO-10(E)
7 "MoD"
8 SRO-121, published in the Gazette on 19 November 2005
THE SECRETARY, MINISTRY OF DEFENCE v.
BABITA PUNIYA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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(i)
The tenure of women officers inducted under the Women
Special Entry Scheme (Officers)9 under the notifications
dated 15 February 1992, 23 January 1993 and 12 December
1996 was extended by five years from 1997;
(ii)
The tenure of SSC male officers and WSES officers was
extended up to fourteen years;
(iii)
The WSES was to cease to apply as a consequence of
which women officers were to be inducted through SSC in
the corps/services notified by the notification dated 15
February 1992, 23 January 1993 and 12 December 1996;
and
(iv)
Substantive promotions were to be extended both to men
and women SSC officers "as applicable to PC officers".
7. Initially, when the WSES was notified under an Army
instruction10, it was governed by the Terms of Engagement.11 Para 1 of
the ToE stipulated that commission would be for a period of five years in
the Army Service Corps, Army Ordnance Corps, Army Education Corps12
and Judge Advocate General Department13. Para 12 contemplated that
on the successful completion of pre-commission training, 'lady cadets'
would be granted PCs in the rank of second Lieutenant, but they would
be placed junior to other candidates passing out from the Indian Military
Academy and would be granted regular commission from the same date.
Para 19 contemplated that:
"19. Disposal on Expiry of Commission: On expiry of contractual
period of commission i.e. five years commissioned service from
the date of grant of commission, they will be released from the
service. The officers granted commission under this Army
Instruction will not be granted permanent commission or any
extension beyond five years of commissioned service."
8. The original ToE provided for a contractual period of five years
after which the officers were to be released from service. The officers
who were granted commission under the Army instruction were not
entitled to PC or to any extension beyond five years of commissioned
service.
9 "WSES"
10 SAI NO/1/5/92
11 "ToE"
12 "AEC"
13 "JAG"
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9. On 1 August 1996, an amendment was issued to the WSES,
under which the commission for an initial period of five years was made
further extendable by five years in the Regiment of Artillery, Corps of
Engineers, Corps of Signals, Army Service Corps, Army Ordnance Corps,
Corps of Electrical and Mechanical engineers, AEC, Intelligence Corps
and JAG department. Women who had been granted commission for an
initial period of five years were required to furnish an option for extension
by five years or for release. A provision was made for promotion on a
substantive basis to the rank of a Lieutenant after two years and to the
rank of Captain after five years. The provision contained in para 19 of
the earlier Army instruction14 for the release from service on the
completion of the contractual period of five years was substituted by the
following provision:
"19. Disposal on Expiry of Commission. On expiry of contractual
period of commission i.e. five years/ ten years from the date of
grant of commission as the case may be, they will be released
from the service. The officers granted commission under these
Army Instruction will not be granted permanent commission."
10. The position that emerges from the above narration is that
when the induction of women in the Army was envisaged with effect
from 15 February 1992 in stipulated branches and cadres, the tenure of
engagement was five years. The above stipulation of five years was
deleted on 12 December 1996. On 19 November 2005, the MoD provided
that the tenure of WSES officers would be extended up to fourteen
years. The Army instruction broadly followed the same course, as a
consequence of which a cap on the length of service was introduced.
The initial process of induction under the WSES was replaced by SSCs
with 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 officers
commencing from 1995-96.
12. In February 2003, Babita Puniya, an advocate instituted a
Writ Petition15 in the nature of a Public Interest Litigation16 before the
Delhi High Court for the grant of PC to women SSC officers in the
Army.
14 SAI NO 1/5/92
15 WP (C) 1597 of 2003
16 "PIL"
THE SECRETARY, MINISTRY OF DEFENCE v.
BABITA PUNIYA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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13. During the course of the proceedings, two circulars were issued
on 20 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. The period of training was stipulated at fourty-nine weeks at
par with male SSC officers. The circulars had comprehensive provisions
pertaining among other things, tenure, substantive promotions and
adjustment of seniority. Serving WSES officers were given an option to
move to the new SSC scheme or to continue under the erstwhile WSES.
The first batch of women officers under the new scheme entered the
Army in 2008. Among the terms and conditions, para 1(a) provided for
tenure in the following terms:
"(a) Tenure of Short Service Commission: Short Service
Commission (SSC) Technical in the Regular Army will be granted
for 14 years i.e. for an initial period of ten years extendable by a
further of four years."
14. Para 1(c) enabled newly inducted women officers other than
those with a specialised course to leave service after completing five
years of service. Substantive promotions were provided in Para (e) in
the following terms:
"(e) Substantive Promotion: Women granted Short Service
Commission under these rules will be eligible for substantive
promotion as under:-
(i) To the rank of Capt - On completion of 2 years reckonable
commissioned service.
(ii) To the rank of Maj - On completion of 6 years reckonable
commissioned service.
(iii) To the rank of LT Col - On completion of 13 years reckonable
commissioned service."
Para 1(g) provided for the adjustment of seniority:
"(g) Adjustment of Seniority: To make adjustment for shorter
training of SSC Women Officers vis-à-vis PC officers, the seniority
of SSC Women Officers will be depressed by the period
corresponding to the difference in training period between the
SSC course under consideration and the training period of its
equivalent PC Course. This adjustment of seniority will be carried
out at the time of grant of first substantive rank of Captain. The
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revised seniority will have no effect on the pay and allowance
granted in the rank of Capt. Major and Lt Col."
Para 2-A allowed serving officers under the WSES to exercise
an option to opt for the SSC scheme within six months failing which,
they would be treated to have exercised the option to continue under the
erstwhile scheme. Para 4 contained the following stipulation:
"4. All other provisions of AI 1/93 except Para 18 and SAI 1/S/92
as amended will be applicable, mutatis mutandis, to women granted
SSC subject to issue of separate AI for SSC (Women) (Tech)."
Consequently, all other provisions contained in SAI-1/S/1992 were
to apply mutatis mutandis to women who were granted SSCs.
15. Apart from the PIL which was instituted before the High Court
of Delhi, a Writ Petition17 was filed by Major Leena Gurav on 16 October
2006 primarily to challenge the terms and conditions of service imposed
by the circulars dated 20 July 2006 and for seeking the grant of PCs for
women officers.
16. 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.
17. The Writ Petitions were heard together by the Division Bench
of the Delhi High Court. By a judgment dated 12 March 2010, the High
Court issued the following directions:
"61...
i.
The claim of absorption in areas of operation not open for
recruitment of women officers cannot be sustained being a
policy decision.
ii.
The policy decision not to offer PC to Short Service
Commissioned officers across the board for men and women
being on parity and as part of manpower management
exercises is a policy decision which is not required to be
interfered with.
17 WP (C) 16010 of 2006
THE SECRETARY, MINISTRY OF DEFENCE v.
BABITA PUNIYA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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iii.
The Short Service Commissioned women officers of the Air
Force who had opted for PC and were not granted PC but
granted extension of SSCs and of the Army are entitled to
PC at par with male Short Service Commissioned officers
with all consequential benefits. This benefit would be
conferred to women officers recruited prior to change of policy
as (ii) aforesaid. The Permanent Commission shall be offered
to them after completion of five years. They would also be
entitled to all consequential benefits such as promotion and
other financial benefits. However, the aforesaid benefits are
to be made available only to women officers in service or
who have approached this Court by filing these petitions and
have retired during the course of pendency of the petitions.
iv.
It is made clear that those women officers who have not
attained the age of retirement available for the Permanent
Commissioned officers shall, however, be reinstated in service
and shall be granted all consequential benefits including
promotion, etc. except for the pay and allowance for the period
they have not been in service.
v.
The necessary steps including release of financial benefits
shall be done by the authorities within two (2) months of
passing of this order."
At this stage, it would be appropriate to briefly dwell on the above
directions.
18. Clause (i) envisages that "areas of operation" of the Armed
forces where recruitment of women officers is not open was excluded
from the purview of the judgment of the High Court on the ground that
it is a matter of policy. Women have been excluded from combat
operations. 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 subject
matter of contest in the present appeals. Direction (ii) envisages that
where a policy decision has been taken not to offer PC to SSC officers
- both men and women without distinction as a part of manpower
management, such a policy decision was not be interfered with. Direction
(iii) envisages that women officers of the Air Force and Army on SSC
who had opted for the grant of PC but were not granted that status
would be entitled to PC at par with male SSC officers with all
consequential benefits. PC was to be offered to them after the completion
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of five years together with consequential benefits of promotion and other
financial benefits. However, this benefit was only available to women
officers in service who had instituted proceedings before the High Court
and had retired during the pendency of the Writ Petitions. By direction
(iv), it was envisaged that women officers who had not attained the age
of superannuation for PC officers would be reinstated with all
consequential benefits.
19. Assailing the judgment of the High Court, the Union of India is
in appeal. The present batch of appeals relates to the Indian Army. The
directions issued by the High Court in regard to the Indian Air Force are
not the subject of contest in these appeals.
20. Contempt proceedings were initiated by the respondents against
the Union of India alleging non-compliance with the judgment of the
Delhi High Court. On 2 August 2010, the Solicitor General of India made
a statement before this Court that "women SSC officers in service would
be considered for grant of Permanent Commission in JAG and Education
Branch of the Army within two months..." In view of the statement
made before this Court, the contempt proceedings were stayed. By an
order dated 4 October 2010, time for compliance with the order dated 2
August 2010 was extended until 1 December 2010.
21. On 11 January 2011, this Court, while issuing notice, acceded
to the prayer of the Additional Solicitor General of India for an
adjournment of six weeks to enable a 'high powered committee'
constituted by the Union Government to consider the question pertaining
to the grant of PCs to SCC women officers and to enable the Chief of
Staffs' Committee and the MoD to consider the report. During the
pendency of the proceedings, applications for impleadment were allowed
on 4 March 2011 and the operation of release orders passed by the
Union of India on 19 January 2011 was stayed. On 2 September 2011,
this Court dealt with an application filed by eleven applicants for reinstatement in the Army in terms of the judgment of the Delhi High
Court. Dealing with the application, this Court observed that:
"What is stayed as interim measure by this Court is action of
contempt initiated by the original writ petitioners against the
petitioners in Special Leave Petitions. The operation of the
impugned judgment is not stayed at all."
(Emphasis supplied)
THE SECRETARY, MINISTRY OF DEFENCE v.
BABITA PUNIYA [DR. DHANANJAYA Y CHANDRACHUD, J.]
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It was explicitly clarified that no stay had been issued on the
judgment of the Delhi High Court. Hence, eleven applicants were allowed
to be re-instated in terms of the judgment of the Delhi High Court subject
to the outcome the appeal. Eventually, leave was granted on 2 September
2011. During the pendency of the appeal, on 24 April 2012, this Court
allowed impleadment applications and stayed a release order 10 April
2012. As a consequence, the applicants were held to be entitled to regular
salary and other emoluments in the ranks which they were presently
holding. Similar orders were passed by the Court on 12 July 2013.
B Proposal of the Union of India
22. During the pendency of this appeal, the Union Government in
the MoD issued a communication dated 25 February 2019 for the grant
of PCs to SSC women officers in eight arms or services of the Army, in
addition to the JAG and AEC which had been opened up earlier for PC.
The communication stipulates that:
"The sanction of the President is hereby conveyed for consideration
of grant of Permanent Commission to SSC Women Officers in
the eight arms/services in Indian Army viz. Signals, Engineers,
Army Aviation, Army Air Defence, Electronics and Mechanical
Engineers (EME), Army Service Corps, Army Ordnance Corps
and Intelligence in addition to the existing two streams of Judge
Advocate General (JAG) and Army Education Corps (AEC).