• Ms. Kanika Balhara

The Secretary, Ministry of Defence v. Babita Puniya & Ors. (MANU/SC/0194/2020)

CASE

The Secretary, Ministry of Defence v. Babita Puniya & Ors.


CITATION

MANU/SC/0194/2020


CORAM

Supreme Court of India

Full Bench - Hon’ble Justice Dhananjaya Y. Chandrachud,

Hon’ble Justice Hemant Gupta


ALSO KNOWN AS

Permanent Commission for Women in the Indian Army Case


POINT OF CONSIDERATION

Equality (Article 14) and Equal Opportunity for women seeking Permanent Commissions in the Indian Army


FACTS

  1. It is important to know a very important provision. Section 12 of the Army Act, 1950 that prohibited the recruitment of “females” into the army except- and to the extent that- the Government of India would allow.

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

  3. Apart from the PIL which was instituted before the High Court of Delhi, a Writ Petition 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.

  4. 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.

  5. The Writ Petitions were heard together by the Division Bench of the Delhi High Court. Assailing the judgment of the High Court, the Union of India went in for appeal to the Supreme Court of India.

ISSUES RAISED & RATIO

  • Whether a permanent commission should be established for female SSC officers recruited in the Indian army?

- The policy decision relates to the restriction which has been imposed on women officers being granted PCs save and except for staff 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.

- The apex court was of the view that SSC women officers, both within the period of fourteen years‟ service and beyond, should equally be entitled to consideration for the grant of PCs.

  • Whether the government of India should implement the guidelines issued via order dated 15th Feb. 2019 only prospectively?

The policy decision which has been taken by the Union Government on 25 February 2019 indicates that it is to apply prospectively. The Court clarified 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. The apex court, therefore, clarified that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them.

  • What are the conditions governing the Women Officers in the Indian Army?

Section 12 of the 1950 Act - 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.”


❖ By a notification dated 31 December 1992, women became eligible for enrollment in the following corps/departments of the regular Army:

❏ Corps of Signals,

❏ Intelligence Corps,

❏ Corps of Engineers,

❏ Corps of Electrical and Mechanical Engineering,

❏ Regiment of Artillery


❖ By a notification dated 28 October 2005, the MoD

❏ 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

❏ The tenure of SSC male officers and WSES officers was extended up to fourteen years;

❏ 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

❏ Substantive promotions were to be extended both to men and women SSC officers “as applicable to PC officers.”


❖ During the pendency of this appeal, the Union Government in the MoD issued a notification 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 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 Ordinance Corps and Intelligence in addition to the existing two streams of Judge Advocate General (JAG) and Army Education Corps (AEC). Thus women will be considered for grant of PC in all the ten streams in which they are currently being commissioned as SSC Officers.

IMPORTANT CASES REFERRED

  1. Union of India v. P K Chaudhary (Civil Appeal No 3208 of 2015, decided on 15 February 2016)

  2. Lt. Col. Prithi Pal Singh Bedi v. Union of India [(1982) 3 SCC 140]

  3. R Viswan v. Union of India [(1983) 3 SCC 401]

  4. Ram Sarup v. Union of India [(1964) 5 SCR 931]



The author is a B.A.LL.B Graduate from University School of Law and Legal Studies, GGSIPU, Delhi.

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