_____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 14.12.2009 % Date of decision: 12.03.2010 + WP (C) No.1597 of 2003 BABITA PUNIYA …PETITIONER Through: Ms. Rekha Palli, Ms. Punam Singh & Ms. Amrita Prakash, Advocates. Versus THE SECRETARY & ANR. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advocates. + WP (C) No.16010 of 2006 MAJOR LEENA GURAV …PETITIONER Through: Ms. Rekha Palli, Ms. Punam Singh & Ms. Amrita Prakash, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advocates. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 2 of 32 + WP (C) No.3357 of 2007 WING COMMANDER ANUPAMAN JOSHI …PETITIONER Through: Ms. Rekha Palli, Ms. Punam Singh & Ms. Amrita Prakash, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. + WP (C) No.3686 of 2007 SQUADRON LEADER RUKHSANA PARV …PETITIONER Through: Ms. Rekha Palli, Ms. Punam Singh & Ms. Amrita Prakash, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. + WP (C) No.9028 of 2008 MAJOR SANDHYA YADAV & ORS. …PETITIONERS Through: Ms. Rekha Palli, Ms. Punam Singh & Ms. Amrita Prakash, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 3 of 32 + WP (C) No.7669 of 2009 MONICA BIJLANI & ORS. …PETITIONERS Through: Mr. Arun Monga & Mr. Vivek Sharma, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. + WP (C) No.8492 of 2009 WING COMMANDER JASMINE KAUR & ORS. …PETITIONERS Through: Mr. Arun Monga & Mr. Vivek Sharma, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. + WP (C) No.8495 of 2009 WING COMMANDER URMILA SAHU & ORS. …PETITIONERS Through: Mr. Arun Monga & Mr. Vivek Sharma, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, Ms. Barkha Babbar & Mr. Ravinder Aggarwal, Advs. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 4 of 32 + WP (C) No.9264 of 2009 WING COMMANDER PUSHPANJALI SHARMA & ANR. …PETITIONERS Through: Mr. Arun Monga & Mr. Vivek Sharma, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. + WP (C) No.9367 of 2009 WING COMMANDER RACHNA SHARMA & ORS. …PETITIONERS Through: Mr. Arun Monga & Mr. Vivek Sharma, Advocates. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Gopal Surbramaniam, Solicitor General of India with Ms. Jyoti Singh, Colonel R. Balasubramaniam (Retd.), Mr. Ankur Chhibber, Mr. Atul Nanda, & Mr. Ravinder Aggarwal, Advs. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 5 of 32 SANJAY KISHAN KAUL, J. 1. “Nature gave women too much power; the law gives them too little.” observed Will Henry, American political adviser and columnist. The claim of women to the right to serve in the Armed Forces has been and is a matter of debate in various countries. The denial of such right is pleaded to be a case of gender discrimination. This is more so as the modernization of the Armed Forces has resulted in lesser reliance on a hand to hand combat. The debate in each country is coloured by its own social & cultural norms and ethos. In some of the countries women have now been inducted into combat force while in other countries the induction has been restricted to support services to actual combat. 2. The second limb of the claim is for the right to Permanent Commission (for short „PC‟). In India the progress in this behalf has been slow on the perceived ground of social norms. There has been induction of women into certain restricted areas of the Armed Forces and that too on a Short Service Commission (for short „SSC‟) basis. The Government is stated to have carried out studies for grant of PC to women but till date it has not received a favourable response. 3. We are here concerned with women officers who were granted SSC in the Air Force and in the Army and who seek PC. These officers have had long stints albeit on SSC basis extended from time to time to as much as 14 years. The consequence of not being granted PC is that these officers are deprived of certain benefits and privileges, _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 6 of 32 which would have enured to them in case of grant of PC like pension, ex-serviceman status, medical facilities, etc. 4. We had issued directions from time to time so that the respondents themselves could examine the issue of grant of PC and pursuant thereto a policy decision dated 26.9.2008 was taken in terms whereof the President of India had been pleased to sanction the policy for offer of PC prospectively to SSC (Women) officers in the JAG Department and the Army Education Corps (AEC) of the Army and their corresponding Branch/Cadre in Navy and Air Force, Accounts Branch of the Air Force and Naval Constructor of the Navy in addition to current provisions of grant of PC to SSC (Men) officers. This step undoubtedly was a progressive one but we were of the view that the matter needed to be further examined as to why women personnel who are still in service could not get the benefit of the change of policy as also the women officers who had approached this Court by filing of petitions but retired during the pendency of those petitions. In fact, the learned Solicitor General of India also took up this matter but no solution was found possible and thus the claims of the petitioners are required to be decided on merits. 5. The principles of law governing the cases is identical but the factual matrix is slightly different in respect of women officers on SSC in the Air Force and in the Army. It is, thus, necessary to deal with their factual matrix separately. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 7 of 32 AIR FORCE: 6. Our country moved towards the induction of women in the Indian Air Force by a circular dated 25.11.1991 issued by the Ministry of Defence, Government of India, in the Non-Technical Ground Duty Branches (as SSC Officers), which reads as under: “Sir, 1. I am directed to convey the sanction of the President for inducting women in the officer cadre of Non-Tech Ground Duty branches of IAF from 1992 on an experimental basis for 5 years which is to be reviewed thereafter. 2. The intake of women in the officer cadre would be restricted to 10% of the officer vacancies in respect of Adm, Log., Accts, Met, & Edn. Braches of the IAF. 3. The induction of trainee women officers would be forecast and planned well in time. The women officers would be initially granted SSC for a period of 5 years. At the end of the SSC tenure, PC would be offered to willing officers, subject to their suitability. However, women officers unwilling for PC, but seeking an extension, would be granted extension for six years. 4. The terms & conditions would be so given at the Appendix to this letter. 5. The expenditure involved is debitable to the relevant minor head of the major head 2079-F of the Defence Services Estimates. 6. This is issued with the concurrence of the Min. of Def. (Fin/Air) vide their u.o. No.1029/Org/S/AF dated 10.11.91.” (emphasis supplied) 7. The terms of engagement as listed in the Appendix are specified as under: “TERMS AND CONDITIONS FOR WOMEN IN THE OFFICERS CADRE OF NON-TECH GROUND DUTY BRANCHES 1. Age Limit: 22 to 26 years for Graduates and 20 to 25 years for non-Graduates, relaxable to 27 years for those possessing higher qualification like Ph.D., M.Ed., M. Tech. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 8 of 32 2. Entry Qualification: 1st Class Graduation/2nd Class Post Graduation in subject as specified in the Advertisement for selection from time to time. 3. Mode of Selection: Applications would be called for directly by the Air Force through open advertisement, and the candidates selected through AFSU. 4. Commission: Candidates selected under this scheme will be granted provision Short Service Commission on successful completion of 52 weeks at the Air Force Academy. The SSC will be confirmed after a probationary period of one year. Failure to pass the requisite examination etc., during training may result in suspension from course. Also, if in the opinion of the Head of Institution or due to medical reasons, the trainee is unlikely to benefit by further training, she would be suspended from the course. 5. Tenure of Engagement: Initial engagement period would be for 5 years from the date of commissioning. On completion of this period, the officer may opt for PC or another SSC tenure of 6 years. The officers seeking such extension will not be considered for PC. Grant of extension or PC would be subject to suitability and requirement of the Air Force. 6. Permanent Commission: SSC Officers granted PC will be eligible for all benefits/privileges, which are admissible to the regular PC Officers. 7. Seniority: The seniority of SSC Officers will reckon from the date of grant of provisional SSC. So as to place them at par with their contemporary PC Officers. However, the SSC Officers‟ names will appear in the Air Force List immediately below that of their contemporary PC Officers. They would be eligible for promotion up to the rank as applicable to permanent commissioned officers of Non-Tech GD\\branches. 8. Pay and Allowances: As applicable to permanent commissioned officers. However, SSC Officers will not be entitled to any advance for Car/Motor Cycle/Housing, etc. 9. Other perquisites: SSC Officers will be entitled to all the perquisites of housing, traveling, leave, medical facilities and ration, etc., as applicable to permanent commissioned officers. However, they will not be eligible for Service sponsored Post- Graduate studies or for study leave. Accumulation of leave for the purpose of entertainment will be as applicable to SSC Officers at that time. In addition, maternity leave will be granted as per the existing Government Rules applicable to the lady medical officers of Army Medical Corps.” (emphasis supplied) _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 9 of 32 8. The relevant portion of the advertisement which was issued in newspapers is as under: “A UNIQUE OPPORTUNITY FOR DYNAMIC YOUNG GIRLS: MARCH TO A NEW HORIZON AS A COMMISSIONED OFFICER IN THE INDIAN AIR FORCE TRAINING: Successful candidates will undergo 52 weeks training at Air Force Academy. COMMISSION: Provisional Short Service Commission in the rank of Pilot Officer will be granted after successful completion of training at Air Force Academy. The Short Service Commission will be confirmed with retrospective effect after completion of probationary period of one year. TENURE OF ENGAGEMENT: Initial engagement period would be for five years from the date of commissioning with provision to opt for Permanent Commission or another tenure of six years. Grant of Permanent Commission depend upon vacancy and suitability of the officer. CAREER PROSPECTS: SSC Officers will be entitled for promotion under conditions as applicable to Permanent Commissioned officers of Non-Tech Ground Duties Branches.” (emphasis supplied) 9. The case of the Air Force officers is predicated on what was set out by the Government of India as its policy decision as also the advertisement in pursuant whereto these petitioners applied and were recruited. The reference to the aforesaid was made to emphasize that women officers were to be “initially” granted SSC for a period of 5 years but at the end of that tenure, PC “would” be offered to the willing officers subject to their suitability. The women officers who were unwilling for PC could be granted extension of SSC for 6 years _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 10 of 32 on making that request. The advertisement published also specifies the same in respect of the tenure engagement. Not only that, while referring to career prospects it was stated that the SSC officers would be entitled for promotion on conditions as applicable to Permanent Commissioned officers of non-technical ground duties. 10. The counsel for the petitioners emphasized that the SSC women officers were given training for a period of 1 year and such training took place along with the male Permanent Commissioned officers for the same period of time in the same class room with the same test and both sets of persons passed out together. On the other hand, insofar as the male Short Service Commissioned officers are concerned the training period was only 3 months. It was, thus, emphasized that the training of women officers and of the male Permanent Commissioned officers was done simultaneously as the advertisement itself envisaged the terms of engagement where such women officers at their option were entitled to be absorbed as PC subject to their fitness. 11. The petitioners also stated that they did apply for PC (request placed on record) but only the SSC was extended. There was no issue of fitness as the officers have annexed commendation certificates of their performance. In any case they were never found unfit and the SSC could have been extended only on their being fit. 12. A change of policy, however, took place as per circular of the Air Headquarters Human Resources Policy dated 25.5.2006. This is stated to be in the context of the larger question as to whether SSC _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 11 of 32 officers male or female should be granted PC. This circular notes that SSC was first introduced in the AE Branch in the year 1985 and was subsequently made applicable to other branches and extended to women aspirants vide Government of India letter dated 23.4.2001. It notes that the IAF does not have a requirement to grant PC to SSC officers and guidelines are, therefore, laid down for extension of Commission to SSC officers. 13. The aforesaid change of policy has been challenged by the petitioners. Without prejudice to the same, the contention is that in any case the petitioners were recruited before this change of policy and thus this change of policy cannot prejudice them as they are entitled to PC as per the original policy and the original advertisement issued pursuant whereto the petitioners had applied for the post SSC Officers in the IAF. 14. The respondents in their defence have raised a plea that the absorption on PC basis was as per service exigency and that the same is a policy matter. 15. We may note at this stage itself that the policy decisions and the advertisements are not in dispute. The petitioners making an application for PC is not in dispute. The suitability of the petitioners is also not in dispute in view of the commendation certificates but in any case that aspect has not even been examined by the respondents. If the advertisement in pursuance whereto the petitioners applied is taken into consideration then the grant of PC was dependent only upon two factors; viz. (i) vacancy; & (ii) suitability of the officers. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 12 of 32 The respondents, thus, seek to introduce new factors contrary to the advertisement to deny the women officers the PC since their suitability is not in issue and SSC male officers were inducted on PC basis which shows that vacancies had existed at the relevant stage of time. 16. The facts sheet shows that the petitioners were not even considered for grant of PC even though they underwent the same training of one year as the male PC officers whereas 10 batches of male SSC officers who had undergone training of a much lesser period of only three (3) months in the Air Force Administrative College were considered and granted PC in the same period when women SSC officers continued to work in that capacity. ARMY 17. The position in respect of SSC officers in the Army is slightly different. This is so since no such specific policy decision was taken for grant of PC and thus the plea is predicated only on the fact that there was no reason why a different view should be taken in respect of the SSC officers in the Army once such a route of PC is available in the Air Force. 18. The plea as advanced by learned counsel for the petitioners is that they are not seeking induction into combat which is a policy matter but when in certain fields where women officers had been inducted in SSC and their performances have been found up to the mark, there is no reason to deny them a PC especially when the Government has taken a policy decision for PC to such SSC women officers in certain departments like the JAG & AEC branches prospectively. _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 13 of 32 19. It is not disputed that there has been some difference in training as the training period is 6 months for SSC women officers while 9 months for men officers against a training of 18 months for the Permanent Commissioned officers. It is, however, pleaded that both for men and women SSC officers the classes are common and the syllabus is the same and have been performing exactly the same kind of duties. 20. The SSC for women officers is initially for a period of 5 years extendable for two further terms of 5 years and 4 years respectively to a maximum of 14 years. In the Air Force the period is initially for 5 years followed by a term of 6 years and a further 4 years extension(s). When the male SSC officers are granted PC there is no further training but the seniority is dropped by the difference in the training period. It is, thus, the submission that a similar pattern can be conveniently followed in the case of women officers and their seniority may also be dropped, which may be more than what is for the male Short Service Commissioned officers on account of differential in training period. This plea is further supported by the treatment meted out to the SSC officers both male and female while granting them promotion. A policy decision was taken on 20.7.2006 by the respondents whereby women officers who were earlier being released from the Army in the substantive rank of Captain irrespective of their length of service were given the option of revised terms of SSC under which the women SSC officers were made eligible for substantive promotion up to the rank of a Major (after six _____________________________________________________________________________________________ WP (C)Nos.1597 of 2003; 16010 of 2006; 3357 of 2007; 3686 of 2007; 9028 of 2008; 7669 of 2009; 8492 of 2009; 8495 of 2009; 9264 of 2009 & 9367 of 2009 Page 14 of 32 years of service) and Lieutenant Colonel (after 13 years of service) but the seniority was suppressed by the period corresponding to the difference in training period between the SSC commissioned course and the equivalent PC course. Thus, the plea of the respondents based on a difference in training and consequently the decision of PC being applied prospectively is negated. 21. We may notice that on behalf of the respondents the plea of lesser training was advanced as a ground for non-grant of PC apart from the fact that there was no offer by any letter/advertisement as in the case of Air Force which is a matter of a policy decision. The respondents also pleaded that if PC was granted to women officers there was a danger of coming in contact with the enemy but then this plea has no basis since the women officers are not being inducted in combat. 22. A further aspect raised by the respondents is that after the war of Kargil, Ajai Vikram Singh Committee was set up to look into several aspects of Cadre Management and the said Committee recommended a lean PC Cadre and a large Cadre support comprising of SSC officers. It is in view thereof that a decision was taken vide Air Headquarters Human Resource Policy dated 25.5.2006 that SSC officers are not to be granted PC and this is across the board for both men and women. 23. Learned counsels for the parties relied upon a number of authoritative pronouncements to advance the case. Broadly speaking, the cases cited by the petitioners are to advance the plea that any gender discrimination should be frowned upon and must be struck down as _____________________________________________________________________________________________ WP (C)Nos.1597