TaxTMI 
TaxTMI 
2020 (2) TMI 1681
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....Jha, Adv., Mr. Pragyan Mishra, Adv., Mr. Ajay Singh, Adv., Mr. B. V. Balaram Das, AOR, Mr. Manider Jit Singh, Adv., Mr. Hitesh Kumar Sharma, Adv., Mr. Akhileshwar Jha, Adv., Ms. Beenu Singh, Adv. JUDGMENT 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 Commissions [PC] 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 Commissions [SSCs] 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 1950 [1950 Act] contains, in so far as it is material, ....
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....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 instruction [SAI NO/1/5/92], it was governed by the Terms of Engagement. [ToE] Para 1 of the ToE stipulated that commission would be for a period of five years in the Army Service Corps, Army Ordinance Corps, Army Education Corps [AEC] and Judge Advocate General Department [JAG]. Para 12 contemplated that on the successful completion of precommission 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 commis....
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....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 Petition [WP (C) 1597 of 2003] in the nature of a Public Interest Litigation [PIL] before the Delhi High Court for the grant of PC to women SSC officers in the Army. 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: ....
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...., 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. 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....
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....uation 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 que....
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....r stipulates that: (i) Women officers will continue to be commissioned in the above mentioned ten arms/services as earlier with no change in their tenure of SSC engagement; (ii) On the completion of three years and before completing four years of commissioned service, they will be required to exercise an option for the grant of PC and the choice of specialisation; (iii) SSC women officers will be considered for the grant of PC based on the availability of vacancies and subject to willingness, suitability, performance, medical fitness and competitive merit; (iv) On the grant of PC, women officers will be employed "in various staff appointments only" in accordance with their qualifications, professional experience, specialisation, if any, and organisational requirements; (v) While women officers who are granted PCs will continue to be a part of their parent Army/service, "they would serve on staff appointments only" both within the parent Army/service and in other fields of specialization; (vi) Further career progression in selected ranks will be within the existing authorised strength of officers in the Army and no additional sel....
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....continue to be part of their parent arm/service. However, they would serve on staff appointments only, both within their parent arm/service and in other fields of their specialization. 7. Their further career progression in select ranks will be within the existing authorised strength of officers in Indian Army in accordance with paragraph 6 above and no additional select rank vacancies will be created for this purpose. 8. Women Officers who fail to exercise option for permanent commission or do not opt for permanent commission will be governed by terms and conditions under which they were commissioned. 9. This policy will come into effect prospectively from the date of issue of this letter. 10. Necessary administrative instructions in this regard will be issued by Army HQ. 11. This issues with the concurrence of MoD (Finance) vide their ID No.2(12)/2019(50-PA) dated 22.02.2019. (Poornima Rajendran) Deputy Secretary Tel: 23011593 Copy to: As per standard distribution" 23. During the course of hearing, Mr R Balasubramanian, learned Senior Counsel appearing on behalf of the Union of India has tendered a proposal which e....
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....tments for women in the Army. The judgment of the Delhi High Court has also affirmed this position. In 2008, the benefit of PC was extended to SSC women officers in the JAG and AEC which belonged to the Services stream. As a consequence of the judgment of the Delhi High Court, it has been held that in all streams where the Army has provided the option for SSC women officers, there should be no impediment for extending the option for the conferment of PCs. The effect of the judgment is that all SCC women officers in different disciplines in the Combat Support Arms and in the Services category to whom the judgment applies have continued in service beyond the maximum permissible term of fourteen years as SSC officers. 25. Women SSC officers commissioned before 2008 who were parties before the High Court but had been discharged from service secured the benefit of being reinstated in service as a consequence of the judgment of the Delhi High Court. As a result, they have continued after the expiry of the term of fourteen years. The Union of India contends that restrictions on the employability of women in the Army "is inescapable due to the peculiar operational compulsions of the Arm....
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....ision dated 15 February 2019 communicated by the Union of India provides that the offer of PCs would be restricted to SSC women officers who have not completed fourteen years of service. Those who have completed fourteen years but have not attained the pensionable service of twenty years would be permitted to continue without any scrutiny as a one-time measure to qualify for the grant of pensionary benefits. Women officers who have crossed twenty years of pensionable service would be discharged from service immediately and would receive pension. Thus, the substantial benefit of pensionable service has been provided to women officers who have continued beyond fourteen years of service under interim orders. (c) Policy considerations 28. The Union of India has submitted that: (i) Fortified by Section 12 of the 1950 Act and Article 33[1] 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 Artic....
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....es in the Armed Forces favoured a lean permanent cadre of officers, supplemented by an enhanced support cadre in the ratio 1:1.1 in view of the pyramadical structure of the Indian Army. 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 32. 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. The issue of command appointments was not a lis in the Writ Petitions before the Delhi High Court. Considering matters of organisational requirement, suitability and performance, women officers granted PC would be recommended only for staff appointments. 33. Finally, it has been urged by the Union of India that it has re-instated all women officers covered by the judgment of the Delhi High Court insofar as it relates to the Army. Those who are not in service either did not join their posts or had sought release despit....
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....so have women in their rank and file with the exception of India, Pakistan and Turkey. This results in a unique "all male' environment in a unit where presence of WOs requires moderated behavior in their presence. Posting of WOs in all male units thus has its own peculiar dynamics." (iv) Under the head of "Infrastructure", the written note states: "Infrastructure in forward/border areas is very basic with minimal facilities for habitat and hygiene. Officers and men have to make do with primitive/make shift arrangements. Manning forward posts and small detachments with restricted communication facilities leads to a feeling of isolation. Deployment of WOs in such situations or places in the current circumstances is not advisable." 36. The submission note of the Union of India has spoken of "physiological limitation" on the employability of women officers "accentuated by the challenges of confinement, motherhood and childcare". Finally, the note portends the dangers of a woman officer being captured by the enemy and becoming a prisoner of war. Submissions of the respondents 37. Assailing the above submissions, and in a serious critique of the submissions ado....
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....ndia with respect to battlefield scenarios lacks substance; (ii) Unit cohesion: The Union of India has alleged that the presence of women has a negative impact on unit cohesion. It is time that the organisation starts accepting women as equal colleagues; and (iii) National security: Despite the present batch of appeals being sub judice for ten years, women officers of all ages and service profiles are still being posted to sensitive places, field areas, force head-quarters and units without being commissioned into combat arms; 39. Ms Lekhi urged that 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. 40. In other words, 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. Submissions based on the policy letter dated 25 February 2....
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....cted as SSC women officers are not combative in nature. The job profile includes supporting the combat arms segment and assisting in providing, maintaining and repairing the logistic support. The respondents were inducted in the Army against specified appointments with specific eligibility qualifications such as food scientists, material managers, software engineers and linguistic officers. These postings cannot be compared with the combat arms of the Army. The present case has not been instituted seeking either recruitment or commission into combat arms as this is a conscious decision of the Union Government and is a matter of policy; (ii) The nature of duty which a commissioned officer is required to perform while serving in the Corps is defined in the Army Manuals of these services. Both women and male officers who were commissioned in these services perform similar duties, undergo similar professional courses and training and are posted to all field/peace postings according to their profiles. There is no separate charter of duties for women officers or SSC commissioned male officers and PC male officers. Women officers commissioned in various corps are assigned duties ....
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....wed; (vii) The willingness of the Indian Army to grant PC to women officers of only AEC and JAG branches, stating that these are non-combative roles is not true as these two corps do not have a "unit‟ like organizational structure and both men and women officers are not offered command positions; and (viii) In addition to the discriminatory nature of the policy with respect to the grant of PC, the policies for women officers in the Army also lowers their status to that of a jawan/JCO. A woman officer working for fourteen years is neither given pension nor retirement benefits. Details of the treatment meted out to women officers in the Army in comparison with PC, SSC male officers/ jawans and JCOs is tabulated as follows: " Pension Ex- Servicemen Status Ex- Servicemen Contributory Health Scheme Reemployment Encashment of Leave PC Male Officers Pensionable after 20 years Yes Yes Yes Paid for 300 days encashed leave Jawan/ JCO Pensionable after 15 years Yes Yes Yes Paid for 300 days encashed leave SSC Women Officers No pension No ESM Status No ECHS Facility No provision of reemployme....
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....ment and that if any such provision tends to affect the fundamental right under Part III of the Constitution, that provision does not, on that account become void, as it must be taken that Parliament has thereby, in the exercise of its power under Article 33 of the Constitution, made the requisite modification to affect the respective fundamental right. We are however of opinion that the provisions or Section 125 of the Act are not discriminatory and do not infringe the provisions of Article 14 of the Constitution." This Court held that the 1950 Act was enacted in pursuance of the enabling power conferred upon Parliament by Article 33 of the Constitution and is entitled to protection despite the restrictions imposed by its provisions on the fundamental rights guaranteed by the Constitution. The Court held that the provisions of the 1950 Act formed an inherent part of the legislation and having been enacted in pursuance of the power conferred by Article 33, they would not be declared void to the extent they restricted or abrogated the guarantee of fundamental rights to members of the Armed Forces. 46. In Lt. Col. Prithi Pal Singh Bedi v Union of India [(1982) 3 SCC 140], the l....
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....scribed by law and if it stands in derogation of Article 21, to that extent Article 21 in its application to the Armed Forces is modified by enactment of the procedure in the Army Act itself." 47. In R Viswan v Union of India [(1983) 3 SCC 401] one of the issues concerned whether Section 21 of the Army Act, 1950 read with Chapter IV of the Army Rules, 1954 is within the scope and ambit of Article 33 of the Constitution. Section 21 empowers the Central Government by notification to make rules restricting "to such extent and in such manner as may be necessary" certain fundamental rights in their application to persons subject to the 1950 Act. Justice P N Bhagwati (as the learned Chief Justice then was), speaking for a Constitution Bench of this Court held: "A plain reading thus would reveal that the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be ....
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....ified 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. 50. The engagement of women officers in the Army has been an evolutionary process. As we have seen, women officers were initially inducted in the year 1992 under the WSES, for a period of five years. This was extended for a further period of five years. On the incorporation of a provision for SSCs for women officers, options were granted to those amongst them who had been engaged under the earlier scheme to become SSC officers. As a part of the pool of officers engaged as SSC officers, the tenure was extended to fourteen years with a provision for due promotions while in service. Following the judgment of the Delhi High Court, the Union Government was under a mandate to grant 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 judgment of the Delhi High Court was not stayed by this Court at any stage, though there was a direction that no coercive steps woul....
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....tal right of women to seek access to public 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. With the Union Government having recognised the induction of permanently commissioned women officers in its policy decision dated 25 February 2019, we are of the opinion that the submissions which have been made by the Union of India betray a lack of understanding of the plain consequences of the decision. 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. E Stereotypes and women in the Armed Forces 53. Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court. Repeatedl....
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....ot be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. 55. These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles - that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere - it is unlikely that there would be a change in mindsets. Confronted on the one hand with a solemn policy decision taken by the Union Government allowing for the grant of PC to women SSC officers in ten streams, we have yet on the other hand a whole baseless line of submissions solemenly made to this Court to detract from the vital role that has been played by women SSC officers in the line of duty. 56. 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 should....
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.... [10620/Sect/EME] dated 8 September 2009, women officers were also made part of the Quick Reaction Teams, where women and male officers perform similar duties; (vii) The Indian Army entrusts women officers with complex tasks of transporting convoys of between thirty to fifty vehicles in militant prone areas in Leh, Srinagar, Udhampur and the North East. An example was provided of the movement order from Leh to Pathankot dated 15 September 2010 issued to one of the respondents, Major Gopika Bhatti who, in the role of a convoy commander, handled junior commissioned officers, jawans (drivers and supporting staff), vehicles (filled with logistics, arms and ammunitions) and other military equipment; (viii) Major Gopika Ajitsingh Pawar was awarded the United Nations Peacekeeping Medal by the Secretary General of the United Nations in recognition of her role as a military member of the United Nations Interim Force in Lebanon. (ix) Major Madhu Rana, Preeti Singh and Anuja Yadav were awarded the United Nation Medal completing the qualifying service as military members of the United Nations Mission in the Democratic Republic of Congo. (x) Captain Ashwini P....
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....n 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, where such benefit would otherwise not be available to them. 59. 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. Nearly a decade has elapsed since the date of the decision. The Union Government was du....
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.... length of service which has been rendered by them. 62. Mr R Balasubramanian, learned Senior Counsel relied on the judgment of this Court in P K Choudhary to contend that the scope of judicial review in matters of command/tenure is limited. In that case, pursuant to the suggestions of the Ajay Vikram Singh Committee [AVS Committee] to lower of the age profile of officers in the Indian Army and create 1484 additional vacancies in the rank of Colonel, the Union Government sanctioned an additional 1484 vacancies which were to be allocated in two separate phases. In the first phase, 750 vacancies were sanctioned by the upgradation of appointments in the rank of Lieutenant Colonel to Colonel which were to be distributed across the three service branches of the Army - Combat, Combat Support and Services. However, in the second phase, the Union Government sanctioned the remaining 734 vacancies to be allocated on a "Command Exit Model‟ which was claimed to be in consonance with the functional and operational requirements of the Army. Aggrieved by the denial of a pro rata share of the vacancies sanctioned in the second phase, the respondents, who were inducted in the Services Corps....
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....e allotted on Command Exit Model. In the absence of any perversity, unreasonableness or unfairness in the policy so introduced, there is no reason to allow the argument based on legitimate expectation to unsettle or undo the policy which is otherwise laudable..." 65. The judgment of this Court in P K Choudhary was based on the specific recommendations of the AVS Committee as well as the actions of the Union Government in committing to a course of action for the allocation of vacancies. This Court observed that the first phase of allocation was clearly contrary to both the recommendations of the AVS Committee as well as the method of allocation adopted by the Union Government. The Court additionally observed that the method of allocation in the second phase did not suffer from any perversity, unreasonableness or unfairness. 66. As we have noted before, 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....
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.... light of the requirements and exigencies of a particular appointment. The blanket nonPART H 52 consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law. 68. We therefore hold that 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. We have already adverted to the submission which was urged on behalf of the women officers by Ms Lekhi that there are various command assignments in which there would be no reason or justification for excluding women. This is a matter for the determination of the relevant authority. H Directions 69. We accordingly take on record the statement of policy placed on the record in these proceedings by the Union Government in the form of the letter dated 25 February 2019 and issue the 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 follo....