1  

Reportable          IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION    

Civil Appeal Nos 9367-9369 of 2011        

The Secretary, Ministry of Defence                         ...Appellant              

                                                                                   Versus   

Babita Puniya & Ors.                                       ...Respondents       

With      

Civil Appeal Nos 1127-1128 of 2013    

And With    

Civil Appeal No. 1210 of 2020    

2  

J U D G M E N T         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  

PART A  

3  

A Background of the dispute      1. A quest for equality of opportunity for women seeking Permanent  

Commissions 1  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 2  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 3  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 notification 4  dated 30 January 1992 making women 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 Ordinance Corps (Central Ammunition Depots  

and Material Management); and   

(v) Army Service Corps (Food Scientists and Catering  

Officers).”    

                                                      1  “PC”  

2  “SSCs”  

3  “1950 Act”  

4  SRO-11

PART A  

4  

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 notification

5  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 notification 6  dated 12 December 1996 issued by the Ministry  

of Defence 7 . 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 notification

8  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 dated15 February 1992:   

(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;  

                                                      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  

9  “WSES”

PART A  

5  

(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 instruction

10 , 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  

Ordinance Corps, Army Education Corps 12

and Judge Advocate General  

Department 13

. 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.”   

                                                      10

SAI NO/1/5/92  11

“ToE”  12

“AEC”  13

“JAG”

PART A  

6  

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. 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 Ordinance 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 instruction 14

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  

                                                      14

SAI NO 1/5/92

PART A  

7  

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 Petition

15  in  

the nature of a Public Interest Litigation 16

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:  

                                                      15

WP (C) 1597 of 2003  16

“PIL”

PART A  

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“(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 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).”  

PART A  

9  

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 Petition 17

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.   

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  

                                                      17

WP (C) 16010 of 2006

PART A  

10  

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 of five years together with consequential benefits of promotion and

PART A  

11  

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

PART B  

12  

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 re-instatement 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)     

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:

PART B  

13  

“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.”   

The communication further 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;

PART B  

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(vi) Further career progression in selected ranks will be within the existing  

authorised strength of officers in the Army and no additional select rank  

vacancies will be created;   

(vii) Women officers who fail to exercise the option for PC will be governed  

by the terms and conditions under which they were commissioned; and  

(viii) The policy would come into effect prospectively from the date of the  

issuance of the letter.  

The communication dated 25 February 2019 is reproduced below:  

“Policy letter dated 25 February 2019    

F. No. 14(01)/2018-D(AG)  Government of India  Ministry of Defence  

New Delhi,  Dated the 25

th  February, 2019  

To        The Chief of Army Staff,        New Delhi  

Subject: Permanent Commission to Short Service  

Commission (SSC) Women Officers in Indian  

Army.  

This is in continuation of MoD letter No. 12(01)/2004-

D(AG) Pt. II dated 26.09.2008 and letter No. 671/2009-(AG)  

dated 11.11.2011 regarding induction of women in Armed  

Forces and grant of Permanent Commission (PC) to Short  

Service Commission (SSC) Women Officers.  

2.  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). Thus women will be  

considered for grant of PC in all the ten streams in which they  

are currently being commissioned as SSC Officers.  

3.  Women Officers will continue to be commissioned into  

the above mentioned ten Arms and Services hither-to-force,  

with no change in their tenure of Short Service engagement.

PART B  

15  

4.  On completion of three years of commissioned  

service and before completion of four years of commissioned  

service, they will be required to exercise option for grant of  

PC and their choices for specialization.  

5.  SSC Women Officers will be considered for grant of  

PC based on the availability of vacancies and subject to  

willingness, suitability, performance, medical fitness and  

competitive merit. On grant of permanent commission, these  

women officers will be employed in various staff appointments  

only as per their qualification, professional experience,  

specialization if any and organizational requirement.  

6.  Women Officers granted PC will 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”  

PART B  

16  

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  

envisages that:   

(i) Women officers of up to fourteen years of service would be considered for  

the grant of PC with further career progression only in staff appointments  

in terms of the Union Government‟s communication dated 25 February  

2019. Since women officers above four years of service have missed the  

cut-off stipulated in the communication for exercising their choice to opt for  

the grant of PC and specialisation, the provisions would be modified for the  

benefit of such officers;  

(ii) Women officers with more than fourteen years of service would be  

permitted to serve for up to twenty years without being considered for the  

grant of PC and would be then released with pensionary benefits subject to  

meeting disciplinary and medical criteria; and  

(iii) Women officers with more than twenty years of service would be released  

with pensionary benefits immediately upon the conclusion of the present  

appeal.   

 The rationale for the above classification is explained in the following terms:  

(i) In 1992, the Army introduced the WSES in the Army Service Corps, Army  

Ordinance Corps, AEC and the JAG branches. The training period was  

twenty-four weeks and the tenure of service was five years;   

(ii) In 1996, the tenure was extended by five years in Corps of Engineers,  

Signals and Electrical and Mechanical Engineering branches; and

PART B  

17  

(iii) In 2004, the tenure was extended from ten years to fourteen years (5+5  

+4). Women officers who have rendered more than fourteen years of  

service belonged to the erstwhile WSES whose ToE were initially for a  

period of five years, extended in two spells, thereafter to fourteen years  

(5+5+4). Since their employment was for a limited period, they were  

imparted shorter pre-commission training of twenty-four weeks as against  

forty-nine weeks for male officers. These officers have limited exposure  

and responsibility and many in the technical arms are not qualified.   

24. In pursuance of an order dated 23 July 2018 of this Court in the present  

appeal, the Union of India in the MoD filed an affidavit dated 4 May 2018. The  

Union of India states that the services in the Army are classified into three broad  

categories: (i) Combat Arms; (ii) Combat Support Arms; and (iii) Services. SSC  

for women was available only in Combat Support Arms and Services. Combat  

Arms have been excluded for SSC appointments 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.

PART C  

18  

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 Army”.  

According to the Union Government, measures to eradicate the divide between  

men and women officers in as many streams as possible are being adopted in an  

incremental manner.   

 C Submissions  

 Submissions of the Union Government  

 26. Challenging the judgment of the Delhi High Court, the following  

submissions have been urged on behalf of Union of India:  

 (a) Grant of PC  

 (i) Prior to the communication dated 25 February 2019, the engagement of  

SSC women officers was governed by Gazette notifications as amended  

from time to time. The ToE of WSES officers, later replaced by SSC  

service was tenure based with a clear stipulation for exit on the completion  

of fourteen years of service. The grant of PCs was specifically not  

envisaged. None of these notifications or Army instructions were  

challenged before the High Court;

PART C  

19  

(ii) The judgment of the Delhi High Court has failed to take notice of the  

relevant statutory provisions and orders of the Government of India;  

(iii) Under Section 10 of the 1950 Act, the grant of commission is at the  

discretion of the President of India. The absence of a fundamental right to  

claim PC is reinforced by Section 12 of the 1950 Act by reason of which,  

no woman is eligible for employment except in such corps and  

departments as the Government of India may determine. The power to  

grant commission belongs to the President and no mandamus can be  

claimed from a court;   

(iv) The communication dated 25 February 2019 which has been placed on  

record has been taken after due deliberation and is issued in national  

interest. It stipulates that the order applies prospectively;  

(v) The policy decision communicated on 25 February 2019, envisages that  

the skills of SSC women officers can be utilized by training them in  

specialised fields such as language interpreters, imagery interpreters and  

cyber and information technology. In these specialisations, unrestricted  

employment including career progression to higher ranks can be ensured;  

and   

(vi) The new policy is in organisational interest. The benefits envisaged in the  

policy cannot be granted to women officers who have crossed fourteen  

years since they will be left with little time to be trained. It would not be  

possible to gainfully employ them, as they would have limited years of  

service left.  

 (b) Pensionary benefits  

PART C  

20  

27. The policy decision 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 18

of the Constitution,  

questions relating to constitution, recruitment, posts, categories, cadres  

and criteria for the grant of PCs constitute policy decisions and lie  

exclusively in the domain of executive functions;  

(ii) The provisions of the 1950 Act, insofar as they infringe or affect  

fundamental rights, are protected by Article 33;  

(iii) The Union Government is entitled to frame a policy regarding the grant of  

PCs to women officers after accounting for the need for a balanced  

                                                      18

Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc. – Parliament  may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to, - (a) the  members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order;  or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence  or counter intelligence; or (d) persons employed in, or in connection with, the telecommunications systems set up  for the purposes of any Force, bureau or organisation referred to in clause (a) to (c), be restricted or abrogated  so as to ensure the proper discharge of their duties and the maintenance of discipline among them.  

PART C  

21  

approach involving military services and national security. The Union  

Government is entitled to take into account the inherent dangers involved  

in serving in the Army, adverse conditions of service which include an  

absence of privacy in field and insurgency areas, maternity issues and  

child care. These considerations are not open to judicial review; and  

(iv) The scope of judicial review in matters of command/tenure is limited as  

held by this Court in Union of India v P K Chaudhary 19

(“P K  

Choudhary”).  

 (d) Occupational hazards  

 29. According to the Union of India, women are not employed on duties which  

are hazardous in nature unlike their male counterparts in the same Arm/Service  

who are liable to be employed in combat duties. For instance, a male officer in  

Army Service Corps undergoes infantry attachment in field areas upon  

commissioning and may be posted later to Rashtriya Rifles/Assam Rifles for  

counter-insurgency/counter-terrorist operations. The personnel below officer  

ranks are similarly engaged in combat  roles. A male officer in the engineering  

branch would undergo a tenure in the Rashtriya Riffle/Assam Rifles while women  

officers are not employed due to the “inherent risks”.   

 (e) Discrimination   

 30. There is no discrimination between men and women SSC officers. For  

example, male SSC officers are not eligible to opt for an M.Tech course. Women  

                                                      19

Civil Appeal No 3208 of 2015, decided on 15 February 2016

PART C  

22  

SSC officers in the JAG branch may avail 180 days of child care leave, while PC  

women officers are entitled to avail 360 days owing to the long period of service  

expected from them. The Union Government has submitted that the Army faces a  

huge management challenge “to manage WOs in soft postings with required  

infrastructure, not involving hazardous duties with the regular posts with  

the other women in the station”. The Army has to cater for spouse postings,  

“long absence on account of maternity leave, child care leave” as a result of  

which “the legitimate dues of male officers have to be compromised”.  

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

 31. The Ajay Vikram Singh Committee

20  constituted by the Union Government  

to enquire into cadre issues 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  

                                                      20

2003-2004

PART C  

23  

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 despite the grant of an extension in service. Hence, women  

officers who are out of service or are not covered by the judgment of the High  

Court cannot seek the benefit of the policy decision dated 25 February 2019. Any  

extension of the benefit to a woman officer outside the scope of the policy  

decision would (it is urged) “open floodgates for litigation creating serious  

administrative issues of cadre management.”  

 34. In emphasising these submissions of behalf of Union of India, Mr R  

Balasubramanian, learned Senior Counsel has in his written note stressed upon  

two facets:  

(i) The need to protect national security and operational effectiveness; and   

(ii) Non-linear battlefield scenarios in future wars.  

 35. At this stage, it would be necessary to extract from the written note which  

has been submitted on behalf of the Union of India. While we will express our  

views on the content of the note at a later stage, it is necessary here to extract  

certain portions, as they stand:  

(i) Under the head of “Exigencies of Service”, the written note of submissions  

states:

PART C  

24  

“The profession of arms is not only a profession but a „way of  

life’, which often requires sacrifices and commitment beyond  

the call of duty by the entire family of service personnel  

involving separation, frequent transfers affecting education of  

children and career prospects of the spouse. As a  

consequence, it is a greater challenge for WOs to meet these  

hazards of service, owing to their prolonged absence during  

pregnancy, motherhood and domestic obligations towards  

their children and families, especially when both husband and  

wife happen to be service officers.”  

(ii) Under the head of “Physical Capabilities”, the written note states:  

“A soldier relies heavily on his physical prowess to engage in  

combat. The officers are expected to lead their men „from the  

front’ and need to be in prime physical condition to undertake  

combat tasks. Inherent physiological differences (reference  

Annexure A) between men and women preclude equal  

physical performances resulting in lower physical standards  

(reference Annexure B) and hence the physical capacity of  

WOs in the IA remain a challenge for command of units.”     

(iii) Under the head of “Composition of Rank and File”, the written note states:  

“Most of the countries whose armies have women as officers  

also 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

PART C  

25  

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 adopted by Union of India and the MoD in their perception of women  

officers, Ms Meenakshi Lekhi, learned Counsel and Ms Aishwarya Bhati, learned  

Senior Counsel have joined issue. The attention of the Court has been drawn to  

the total strength of and shortage of officers in the Army on date, as reflected in  

the following table:  

DETAILS OF OFFICERS IN INDIAN ARMY  

Auth Officers Held Officers Shortage  

50266 40825 including 1653  

Women Officers   

9441  

Besides, 157 male officers between the age group of fifty-four and fifty-eight  

years have been re-employed after their retirement. The cadre structure of  

women officers serving in the Indian Army is indicated in the following table:  

DETAILS OF WOMEN OFFICERS IN INDIAN ARMY  

Present Holding Above 20 Yrs Between 14-20 Yrs Fate Undecided  

1653 77 255 332  

38. Women officers form a miniscule four per cent of the total strength of  

commissioned officers in the Army. Ms Lekhi submitted that the Union

PART C  

26  

Government instituted the present proceedings under Article 136 of the  

Constitution in 2010 and in spite of there being no stay on the implementation of  

the judgment of the Delhi High Court, no steps were taken to grant PCs to  

women officers in the Army in compliance with the judgment of the Delhi High  

Court. Ms Lekhi submitted that this is based on the pre-dominant fear of male  

officers representing ninety-six per cent of the overall strength that four per cent  

of the officers who are women would “eat away vacancies” in the higher ranks.  

However, it has been submitted that the reality is different since higher rank  

vacancies genuinely due to the 322 competent women officers have been taken  

away for promoting male officers. Ms Lekhi has addressed this Court about the  

conventional bias against the women officers in the Army. Women officers have  

served the organisation for almost twenty-five years and the battle is against  

mind-sets. Dealing with the factors which have been stressed by the Union of  

India, the written note submitted by Ms Lekhi contains the following explanations:  

(i) Battlefield Scenario: The Army considers women officers as an effective  

workforce until they complete fourteen years of service. The nature of  

duties is similar to male officers. Having served shoulder to shoulder with  

male officers for twenty-five years, the contention advanced by the Union  

of India 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

PART C  

27  

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 2019  

 41. Ms Meenakshi Lekhi and Ms Aishwarya Bhati have highlighted, during the  

course of their submissions, the following aspects of the policy letter dated 25  

February 2019 which are discriminatory:  

(i) In response to para 4: Male SSC officers are required to exercise their  

option for the grant of PC prior to the completion of ten years of service.  

SSC women officers are required to exercise their option on the  

completion of three years of service and prior to the completion of four  

years of service. With comparatively lesser experience at the stage when  

they are required to exercise an option, women officers lack adequate

PART C  

28  

experience to take a considered decision and the possibility of being  

granted PC is comparatively lower;  

(ii) In response to para 6: Restricting SSC women officers only to staff  

appointments is to prevent their career growth by restraining them within  

vacancy restrictions, promotions and placements; and  

(iii) In response to para 9: Application of the policy prospectively is designed  

to keep away senior women officers outside the ambit of PC. The Army is  

misconstruing the prospective application of the policy to give the benefit  

to women officers inducted after the date of the policy. On the other hand,  

for the JAG and AEC officers, the prospective application has been  

interpreted by the Army to grant benefit to officers who were in service on  

the date of the issuance of the policy.  

 42. It was further contended that posting women officers in staff appointments  

in the select rank of Colonel under the aegis of MS-1 and MS-3 will equate them  

with re-employed, low medical category and non-empaneled male officers.  

Refuting the argument on command appointments, it has been submitted that  

there are several command roles that do not require any special training  

including:  

(i) NCC Battalions (there are more than 100 girl battalions which are  

currently being commanded by male officers);   

(ii) Record officers;  

(iii) Training regiments;  

(iv) Commandants of Sainik schools and Military schools; and  

PART C  

29  

(v) Provost unit commanding officers as provosts are pioneering the  

induction of women combatants.  

 Meeting the submissions advanced by the Union Government, the respondents  

have filed a counter affidavit contending that:   

(i) Services in which women officers have been inducted 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 similar to male officers  

(SSC or PC) and commissioned into the same corps;

PART C  

30  

(iii) The claim of the appellant that there is a probability of women officers  

being exposed to a hostile environment where there is a grave danger of  

their coming in contact with the enemy is discriminatory and without any  

basis. The women officers have been and are regularly being posted by  

the Indian Army to all possible field units (combat zones) where male  

officers from the same corps are also serving. Consequently, the Army  

follows a policy of non-discrimination when it comes to postings but does  

not follow the same when it comes to granting PC to its women officers.  

Thirty percent of all women officers are posted in the field (combat zones);  

(iv)  Based on the response to a question raised in the Lok Sabha, as on 16  

August 2010, there is an acute shortage of 11,500 officers in the Indian  

Army out of which approximately 5,115 officers are deficient in the support  

services in which women officers have been commissioned. Despite the  

deficiency of officers in the support services, the Indian Army is letting go  

of trained women officers due to gender discrimination and not granting  

PCs to women officers. To overcome the shortage of officers, the Army  

has given re-employment to retired male officers of the rank of Colonel or  

below at the age of superannuation (54-58 years) for a period of four  

years. The vacancies in the Indian Army can be easily handled by women  

officers;  

(v) Women officers undergo training for all mandatory courses which other  

SSC male officers also undertake. However, only male officers are eligible  

to seek PCs. Women officers also undergo the Junior Command Course

PART C  

31  

which is mandatory to train army officers to discharge their responsibilities  

as Lieutenant Colonels;  

(vi)  No rule of the Indian Army prescribes that officers seeking PC have to  

compulsorily be given command of troops. A command position is given  

only to those officers who clear their promotion Board based on an  

efficiency metric. Male officers (SSC or PC) who are not found fit for  

promotion to the rank of Colonel are accommodated in the staff  

appointments. Similarly, if women officers are found fit and deserving for  

the rank of Colonel, they may be promoted to the next rank or be allowed  

to continue in the manner other non-empaneled PC male officers are  

presently allowed;  

(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  

Re- employment  

Encashment  of Leave

PART D  

32  

Scheme  

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 re- employment   

Paid only for  90 days  encashed  leave  

SSC  Male  Officers   

SSC Gentlemen officers are all together in a different category, as they  are allowed to opt for permanent commission after 5/10 years of service  and once they get permanent commission, they are authorised for all  benefits of permanent commission officers.  

 ”   

43. The rival submissions fall for consideration.  

 D Consequence of the policy letter dated 25 February 2019  

44. 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.   

PART D  

33  

45. Several decisions of this Court have dealt with Article 33 of the  

Constitution in relation to the Armed Forces. In Ram Sarup v Union of India, 21

the petitioner, a sepoy in 131 Platoon DSC, was charged under Section 69 of the  

1950 Act read with Section 302 of the Indian Penal Code 1908. A sentence of  

death was awarded by the General Court Martial which was confirmed by the  

Union Government. A number of contentions were raised for challenging the  

provisions of the 1950 Act as well as the method in which the trial was  

conducted. A Constitution Bench of this Court rejected the challenge and upheld  

the sentence. In the course of the judgment, Justice Raghubar Dayal, writing for  

the Bench, held:  

 “15. …The learned Attorney-General has urged that the entire  

Act has been enacted by parliament and if any of the  

provisions of the Act are not consistent with the provision of  

any of the articles in Part III of the Constitution, it must be  

taken that to the extent of the inconsistency Parliament had  

modified the fundamental rights under those articles in their  

application to the person subject to that Act. Any such  

provision in the Act is as much law as the entire Act. We  

agree that each and every provision of the Act is a law made  

by Parliament 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  

                                                      21

(1964) 5 SCR 931

PART D  

34  

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 22

, the legality of orders  

convening a General Court Martial and its composition was questioned. It was  

contended that trial by a Court Martial would result in the deprivation of personal  

liberty, which can only be done in consonance with Article 21 of the Constitution.  

It was contended that any restriction must be by procedure established by law  

and the law prescribing such procedure must satisfy the test prescribed by  

Articles 14 and 19 of the Constitution. Justice D A Desai, writing for a three judge  

Bench of this Court noted the competing interests that must be considered in  

matters concerning the Armed Forces in the following terms:   

 “14. While investigating and precisely ascertaining the limits  

of inroads or encroachments made by legislation enacted in  

exercise of power conferred by Article 33, on the guaranteed  

fundamental rights to all citizens of this country without  

distinction, in respect of armed personnel, the court should be  

vigilant to hold the balance between two conflicting public  

interests; namely necessity of discipline in armed personnel  

to preserve national security at any cost, because that itself  

would ensure enjoyment of fundamental rights by others, and  

the denial to those responsible for national security of these  

very fundamental rights which are inseparable adjuncts of  

civilised life…”  

 The Court held that the public interest in the maintenance and preparedness of  

the Armed Forces of the nation has to be weighed with an equally compelling  

                                                      22

(1982) 3 SCC 140

PART D  

35  

public interest in balancing the abrogation or restriction of fundamental rights of  

the officers in the Armed Forces. For this reason, Article 33 specifies that any  

restriction imposed must be by law and in order to ensure the proper discharge of  

their duties and the maintenance of discipline among them. The Court rejected  

the challenge and held:   

“…Article 33 does not obligate that Parliament must  specifically adumbrate each fundamental right enshrined in  Part III and to specify in the law enacted in exercise of the  power conferred by Article 33 the degree of restriction or total  abrogation of each right. That would be reading into Article 33  a requirement which it does not enjoin…it is not possible to  accept the submission that the law prescribing procedure for  trial of offences by court martial must satisfy the requirement  of Article 21 because to the extent the procedure is  prescribed 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, 23

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 inadvisable to encase it in a rigid statutory  

                                                      23

(1983) 3 SCC 401

PART D  

36  

formula. The Constitution-makers were obviously anxious  that no more restrictions should be placed than are  absolutely necessary for ensuring proper discharge of  duties and the maintenance of discipline amongst the  armed force personnel and therefore Article 33  empowered Parliament to restrict or abridge within  permissible extent, the rights conferred under Part III of  the Constitution insofar as the armed force personnel are  concerned.”    

(Emphasis supplied)    

 The Court noted that restrictions imposed upon fundamental rights in exercise of  

the power conferred by Article 33 must be “absolutely necessary for ensuring  

proper discharge of duties and the maintenance of discipline”. The Court held:  

 “…Parliament was therefore within its power under Article 33  to enact Section 21 laying down to what extent the Central  Government may restrict the Fundamental Rights under  clauses (a), (b) and (c) of Article 19 (1), of any person subject  to the Army Act, 1950, every such person being clearly a  member of the Armed Forces… The guideline for determining  as to which restrictions should be considered necessary by  the Central Government within the permissible extent  determined by Parliament is provided in Article 33 itself,  namely, that the restrictions should be such as are necessary  for ensuring the proper discharge of their duties by the  members of the Armed Forces and the maintenance of  discipline among them. The Central Government has to keep  this guideline before it in exercising the power of imposing  restrictions under Section 21 …”  

This Court, in upholding Section 21 of the 1950 Act, held that the exercise of  

such power must necessarily conform to the restrictions inherent in Article 33 of  

Constitution.  

 48. None of the above cases were rendered in the context of Section 12 of the  

1950 Act. The present case requires an assessment of the implication of a  

specific provision restricting the entry of women into the Armed Forces on one  

hand and the steps taken by the Union Government to grant PCs to women SSC  

officers in streams in which they have been commissioned.  

PART D  

37  

 49. Section 12 of the 1950 Act 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.   

 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 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 Delhi High

PART D  

38  

Court, 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 Delhi 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 SSC officers.   

 51. 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 of Mr Balasubramanian, learned Senior  

Counsel, based on the provisions of Section 12 of the Army Act. Section 12  

contemplates that women will be eligible for enrollment only in those segments of  

the Army where the Union Government has, by notification, permitted their  

enrollment and engagement. 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.   

 52. 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

PART E  

39  

non-discrimination on the ground of sex which is embodied in Article 15(1) of the  

Constitution. The second facet of the right is equality of opportunity for all citizens  

in matters of public employment under Article 16(1). The policy statement of the  

Union Government must therefore be construed as a decision which enforces the  

fundamental right of women to seek access to public appointment and to equality  

of opportunity in matters of engagement relating to the Army. 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. Repeatedly, in the course of the  

submissions, this Court has been informed that:

PART E  

40  

(i) The profession of Arms is a way of life which requires sacrifice and  

commitment beyond the call of duty;  

(ii) Women officers must deal with pregnancy, motherhood and domestic  

obligations towards their children and families and may not be well suited  

to the life of a soldier in the Armed force;  

(iii) A soldier must have the physical capability to engage in combat and  

inherent in the physiological differences between men and women is the  

lowering of standards applicable to women;  

(iv) An all-male environment in a unit would require „moderated behavior‟ in the  

presence of women officers;  

(v) The “physiological limitations” of women officers are accentuated by  

challenges of confinement, motherhood and child care; and   

(vi) The deployment of women officers is not advisable in areas where  

members of the Armed forces are confronted with “minimal facility for  

habitat and hygiene”.   

 54. The submissions advanced in the note tendered to this Court are based on  

sex stereotypes premised on assumptions about socially ascribed roles of gender  

which discriminate against women. Underlying the statement that it is a “greater  

challenge” for women officers to meet the hazards of service “owing to their  

prolonged absence during pregnancy, motherhood and domestic obligations  

towards their children and families” is a strong stereotype which assumes that  

domestic obligations rest solely on women.  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

PART E  

41  

and may not undertake tasks that are „too arduous‟ for them. Arguments founded  

on the physical strengths and weaknesses of men and women and on  

assumptions about women in the social context of marriage and family do not  

constitute a constitutionally valid basis for denying equal opportunity to women  

officers. To deny the grant of PCs to women officers on the ground that this  

would upset the “peculiar dynamics” in a unit casts an undue burden on women  

officers which has been claimed as a ground for excluding women. The written  

note also relies on the “minimal facilities for habitat and hygiene” as a ground for  

suggesting that women officers in the services must not 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.   

PART E  

42  

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 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. 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 in the submissions. Some of the distinctions which women  

officers have achieved are catalogued below:  

(i) Lieutenant Colonel Sophia Qureshi (Army Signal Corps) is the first  

woman to lead an Indian Army contingent at a multi-national military  

exercise named „Exercise Force 18‟ which is the largest ever foreign  

military exercise hosted by India. She has served in the United  

Nations Peacekeeping Operation in Congo in 2006 where she,  

along with others, was in charge of monitoring ceasefires in those  

countries and aiding in humanitarian activities. Her job included  

ensuring peace in conflict affected areas;  

(ii) Lieutenant Colonel Anuvandana Jaggi served as the Women‟s  

Team Leader of the United Nations Military Observers Team in the  

UN mission in Burundi. She was awarded the United Nations Force  

Commander‟s Commendation and an Appreciation Epistle from the  

Chief of Army Staff for her commendable effort;  

PART E  

43  

(iii) Major Madhumita (Army Education Corps) is the first woman officer  

in the country to receive the Gallantry Award (Sena Medal) for  

fighting Taliban terrorists in Afghanistan. Despite adversity, she  

continued and her speedy rescue and evacuation efforts saved  

many lives; and  

(iv) Lieutenant Bhavana Kasturi recently led a contingent of the Indian  

Army Service Corps, becoming the first woman to lead an all-men  

Army contingent in the history of India. Similarly, Captain Tania  

Shergill recently became first Indian woman Parade Adjutant to lead  

an all-men contingent in New Delhi on 15 Janurary, 2020;   

(v) In September 2010, the Sword of Honour in the Officers Training  

Academy, Chennai (the only training center for SSC male and  

female officers) was given to Lieutenant A Divya amongst 170 male  

officers and 57 women officers.  

(vi) By a letter 24

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  

                                                      24

10620/Sect/EME

PART E  

44  

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 Pawar (Army Ordinance Corps) and Captain Shipra  

Majumdar (Army Engineer Corps) were awarded the Sewa Medal by  

the President of India in 2007; and  

(xi) Women officers from the Indian Army have been participating in the  

UN Peace Keeping Force since 2004 and have been deployed in  

active combat scenarios in Syria, Lebanon, Ethiopia and Israel.   

 Numerous other commendation certificates and laurels achieved by women  

officers have been placed on record. Their track record of service to the nation is  

beyond reproach. To cast aspersion on their abilities 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.

PART F  

45  

57. 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, we have noticed that the engagement of  

women in the Combat Arms has been specifically held to be a matter of policy by  

the judgment of the Delhi High Court and which is not in question in the present  

appeals. At the same time, we have adverted in some detail to the line of  

submissions urged before this Court. These submissions detract from the  

significant role 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. That in our view is not the  

manner in which the steps taken progressively by the Union Government to bring  

women into the mainstream of the Army (except the Combat Arms) can be  

viewed. 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.  

 F Consequence of non-compliance  

 58. 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

PART F  

46  

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  

duty bound to enforce the judgment of the Delhi High Court, the judgment not  

having been stayed during the pendency of these appeals. However, it failed to  

do so despite the categoric assertion by this Court in its order dated 2 September  

2011 that what was stayed as an interim measure is the action for contempt and  

not the operation of the judgment. 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

PART F  

47  

Government to comply not only with the directions of the Delhi High Court but  

also those which were issued by this Court on 2 September 2011. In this view of  

the matter, we see 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.   

 60. The failure of the government to implement the judgment of the Delhi High  

Court has caused irreparable prejudice to the women officers. Over the  

chequered history of the litigation of the past decade, they have lost the benefit of  

promotions and the assumption of higher responsibilities as members of the  

Armed Force. 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. We are accordingly 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.   

 61. 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. We therefore clarify 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.

PART F  

48  

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 25

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, challenged the action of the Union  

Government.   

 63. The Union Government contended that the recommendations of the AVS  

Committee were limited to officers in the Combat and Combat Support Arms only  

and did not extend to the Services‟ Arms. It was further contended that the  

„Command Exit Model‟ for allocation of vacancies was neither discriminatory nor  

arbitrary, but in accordance with the recommendations of the Committee. A two  

judge Bench of this Court rejected the claim of the respondents. Mr R  

Balasubramanian sought to rely on the judgment to contend that courts must  

                                                      25

“AVS Committee”

PART F  

49  

refrain from questions concerning the Armed Forces as they constitute matters of  

policy in which courts cannot interfere.    

 64. It is necessary to observe the rationale underlying the judgment in P K  

Choudhary. The Court noted that the AVS Committee did not take into account  

vacancies for Colonels in the Corps of Services. The Court concluded that the  

Committee did not recommend a reduction in the age profile of Unit Commanders  

in Army Signal Corps, Army Ordinance Corps and other Minor Corps. Thus, the  

argument urged by the respondents that the recommendations of the Committee  

to create vacancies was for the benefit of officers serving in all streams, was  

rejected. The Court further noted that the recommendation of AVS Committee to  

adopt the „Command Exit Model‟ was accepted by the Government.  

Consequently, merely because the earlier allocation was not reversed, this would  

not affect the binding nature of the government‟s decision to allocate vacancies  

on the basis of the „Command Exit Model‟. The Court held:  

“28…If the Army Headquarters committed a mistake in  

allocating vacancies on a pro rata basis contrary to the  

recommendations and the decision of the Government, any  

such error cannot adversely effect officers servings in Arms  

and Arms Support who may have been entitled to a higher  

number of vacancies in the second tranche but who were  

deprived of such allocation on account of the error in the  

previous allocation made on pro rata basis.”  

This apart, the Court rejected a claim of legitimate expectation by the  

respondents in the following terms:   

“58…There is nothing perverse, unreasonable or unfair about  

the policy that the age of officers serving in Combat Arms and  

Combat Arms Support will be lowered by creating additional  

vacancies to be 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

PART G  

50  

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 to the non-implementation of  

the binding directions of the Delhi High Court as well as this Court, non-

intervention in the present matter would be nothing short of a travesty of justice.  

 G Blanket restriction on criteria appointments       67. 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

PART G  

51  

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 blanket non-

PART 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 following:  

(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;

PART H  

53  

(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 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.  

(ii) We affirm the clarification which has been issued in sub-para (i) of  

paragraph 61 of the impugned judgment and order of the Delhi High  

Court; and  

(iii) 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

PART H  

54  

made available to those officers in service or those who had moved the  

Delhi High Court by filing the Writ Petitions and those who had retired  

during the course of the pendency of the proceedings.   

 70. Necessary steps for compliance with this judgment shall be taken within  

three months from the date of this judgment.   

 71. We accordingly dispose of the appeals. However, there shall be no order  

as to costs.   

…………...…...….......………………........J.                                                                   [Dr Dhananjaya Y Chandrachud]  

…..…..…....…........……………….…........J.                          [Ajay Rastogi]   

  New Delhi;   February 17, 2020