Delhi High Court
Wg.Cdr.Manisha Krishnatri ... vs Uoi & Ors. on 11 August, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 4th August, 2011
Judgment Delivered On: 11th August, 2011
+ W.P.(C) 5073/2010
WG.CDR. MANISHA KRISHNATRI (RETD.)
& ORS. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates
W.P.(C) 5075/2010
SQN.LDR.MAMTA S YADAV & ORS. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates
W.P.(C) 5077/2010
WG.CDR.BHAGYASHREE SHIVOLKAR
& ORS. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates
W.P.(C) No.5073/2010 & connected matters Page 1 of 16
W.P.(C) 5783/2010
SQN.LDR.MADHUR HANDA DUBEY
& ORS. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates.
W.P.(C) 5798/2010
SQN.LDR.SOMA DHAR (RETD.)
& ORS. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates
W.P.(C) 6830/2010
SQN.LDR.RINA ANGEL (RETD.)
& ANR. ..... Petitioners
Through: Mrs.Rekha Palli, Mr.Punam Singh
and Mrs.Amrita Prakash, Advocates
versus
UOI AND ORS ..... Respondents
Through: Mr.A.S.Chandhiok, A.S.G. with
Mr.Ankur Chhibber, Mr.P.S.Parmar,
Mr.Jitender Kumar and Mr.Ritesh
Kumar, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
W.P.(C) No.5073/2010 & connected matters Page 2 of 16
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Above captioned writ petitions filed after a
Division Bench of this Court decided, vide its judgment and
order dated 12.3.2010, on the issue of entitlement of women
lady officers inducted in the Indian Air Force as Short Service
Commissioned Officers for Permanent Commission. In that
sense, it can be said that the captioned writ petitions are a
sequel to the opinion dated 12.3.2010 deciding a batch of
writ petitions, lead matter being W.P.(C) No.1597/2003
Babita Punia Vs. The Secretary & Anr.
2. The origin of the litigation could be traced to
Section 12 of the Air Force Act 1950 which makes females
ineligible for enrolment or employment in the Air Force,
except in such corps, department, branch or body forming
part of or attached to the Air Force as the Central
Government may, by notification, specify in this behalf.
3. 25.11.1991 was the date when the Central
Government made eligible by notifying the wings of the Air
Force where females could be enrolled or employed. All of
them were employed on short service commission and not on
a permanent commission.
4. The Division Bench considered entitlement of
women officers, granted short service commission in the
Indian Air Force and the Army; pertaining to their claim of the
commission being converted to a permanent commission. It
was noted by the Division Bench that the women officers,
who were petitioners before it, had joined the Air Force and
the Army as Short Service Commissioned Officers, initially for
a period of 5 years, which was extended from time to time, to
a maximum of 14 years.
5. Since in the instant writ petition, we are
concerned with women officers who had served under the
Indian Air Force, we note the relevant facts noted by the
Division Bench pertaining to women officers who had worked
or were working under the Indian Air Force for the reason the
Division Bench also considered the claim of women officers
taken on short service commission in the Indian Army.
6. In para 4 of the decision, the Division Bench noted
that on 26.9.2008, the President of India had been pleased to
sanction a policy to offer permanent commission
„prospectively‟ to short service commissioned women officers
in the Jag Department, Army Division Core of the Indian Army
and their corresponding branches in the Indian Navy as also
the Air Force and the Accounts Branch of the Air Force and
Naval Constructor in the Indian Navy.
7. The Division Bench noted that the said step was
undoubtedly a progressive one, but opined that the matter
needed further consideration, as observed in para 4: „we
were of the view that the matter needed to be further
examined as to why women personnel who are still in service
could not get the benefit of the change of policy as also the
women officers who had approached this Court by filing of
petitions but retired during the pendency of those petitions.‟
(Underlined emphasized).
8. The Division Bench traced the history of induction
of women in the Indian Air Force, to the circular dated
25.11.1991 issued by the Ministry of Defence, Government of
India, in the Non-Technical Ground Duty Branches (as SSC
Officers), which reads as under:-
"Sir,
1. I am directed to convey the sanction of the
President for inducting women in the officer cadre
of Non-Tech Ground Duty branches of IAF from
1992 on an experimental basis for 5 years which is
to be reviewed thereafter.
2. The intake of women in the officer cadre would
be restricted to 10% of the officer vacancies in
respect of Adm, Log., Accts, Met, & Edn. Braches
of the IAF.
3. The induction of trainee women officers would
be forecast and planned well in time. The women
officers would be initially granted SSC for a period
of 5 years. At the end of the SSC tenure, PC would
be offered to willing officers, subject to their
suitability. However, women officers unwilling for
PC, but seeking an extension, would be granted
extension for six years.
4. The terms & conditions would be so given at
the Appendix to this letter.
5. The expenditure involved is debitable to the
relevant minor head of the major head 2079-F of
the Defence Services Estimates.
This is issued with the concurrence of the Min. of
Def. (Fin/Air) vide their u.o. No.1029/Org/S/AF
dated 10.11.91."
(Underlined emphasized)
9. The terms and conditions of engagement, referred
to in para 4 of the policy circular dated 25.11.1991, read as
under:-
"TERMS AND CONDITIONS FOR WOMEN IN THE
OFFICERS CADRE OF NON-TECH GROUND DUTY
BRANCHES
1. Age Limit: 22 to 26 years for Graduates and 20
to 25 years for non-Graduates, relaxable to 27
years for those possessing higher qualification like
Ph.D., M.Ed., M. Tech.
2. Entry Qualification: 1st Class Graduation/2nd
Class Post Graduation in subject as specified in the
Advertisement for selection from time to time.
3. Mode of Selection: Applications would be called
for directly by the Air Force through open
advertisement, and the candidates selected
through AFSU.
4. Commission: Candidates selected under this
scheme will be granted provision Short Service
Commission on successful completion of 52 weeks
at the Air Force Academy. The SSC will be
confirmed after a probationary period of one year.
Failure to pass the requisite examination etc.,
during training may result in suspension from
course. Also, if in the opinion of the Head of
Institution or due to medical reasons, the trainee
is unlikely to benefit by further training, she would
be suspended from the course.
5. Tenure of Engagement: Initial engagement
period would be for 5 years from the date of
commissioning. On completion of this period, the
officer may opt for PC or another SSC tenure of 6
years. The officers seeking such extension will not
be considered for PC. Grant of extension or PC
would be subject to suitability and requirement of
the Air Force.
6. Permanent Commission: SSC Officers granted
PC will be eligible for all benefits/privileges, which
are admissible to the regular PC Officers.
7. Seniority: The seniority of SSC Officers will
reckon from the date of grant of provisional SSC.
So as to place them at par with their
contemporary PC Officers. However, the SSC
Officers‟ names will appear in the Air Force List
immediately below that of their contemporary PC
Officers. They would be eligible for promotion up
to the rank as applicable to permanent
commissioned officers of Non-Tech GD\\branches.
8. Pay and Allowances: As applicable to
permanent commissioned officers. However, SSC
Officers will not be entitled to any advance for
Car/Motor Cycle/Housing, etc.
Other perquisites: SSC Officers will be entitled to
all the perquisites of housing, traveling, leave,
medical facilities and ration, etc., as applicable to
permanent commissioned officers. However, they
will not be eligible for Service sponsored Post-
Graduate studies or for study leave. Accumulation
of leave for the purpose of entertainment will be
as applicable to SSC Officers at that time. In
addition, maternity leave will be granted as per
the existing Government Rules applicable to the
lady medical officers of Army Medical Corps."
(Underlined emphasized)
10. The Division Bench noted the language of the
advertisement which was issued pursuant to the policy
circular dated 25.11.1991, which reads as under:-
"A UNIQUE OPPORTUNITY FOR DYNAMIC YOUNG
GIRLS: MARCH TO A NEW HORIZON AS A
COMMISSIONED OFFICER IN THE INDIAN AIR
FORCE
TRAINING:
Successful candidates will undergo 52 weeks
training at Air Force Academy.
COMMISSION:
Provisional Short Service Commission in the rank
of Pilot Officer will be granted after successful
completion of training at Air Force Academy. The
Short Service Commission will be confirmed with
retrospective effect after completion of
probationary period of one year.
TENURE OF ENGAGEMENT:
Initial engagement period would be for five years
from the date of commissioning with provision to
opt for Permanent Commission or another tenure
of six years. Grant of Permanent Commission
depend upon vacancy and suitability of the officer.
CAREER PROSPECTS:
SSC Officers will be entitled for promotion under
conditions as applicable to Permanent
Commissioned officers of Non-Tech Ground Duties
Branches."
(Underlined emphasized)
11. The Division Bench highlighted that as per the
policy circular dated 25.11.1991, decision taken was to
induct women officers initially on short service commission
for a period of 5 years and that at the end of the SSC
tenure, subject to suitability and availability, willing officers
would be offered permanent commission. It was also noted
that such women officers who were unwilling for a
permanent commission, but sought extension, would be
granted extension for 6 years. The Division Bench further
noted that same was the ethos of the terms and conditions
for engagement notified under the policy as per the
appendix referred to in para 4 of the policy. The Division
Bench further noted that the advertisement inviting
applications from women to join as SSC Officers, held out to
them a promise that initial engagement would be for 5
years with option of the ladies to opt for permanent
commission or another tenure for 6 years and that grant of
permanent commission would depend upon vacancy,
position and suitability of the officer. The Division Bench, in
para 12 of its decision, noted a change of policy and its
effect in following words:-
"12. A change of policy, however, took place as
per circular of the Air Headquarters Human
Resources Policy dated 25.5.2006. This is stated
to be in the context of the larger question as to
whether SSC officers male or female should be
granted PC. This circular notes that SSC was first
introduced in the AE Branch in the year 1985 and
was subsequently made applicable to other
branches and extended to women aspirants vide
Government of India letter dated 23.4.2001. It
notes that the IAF does not have a requirement to
grant PC to SSC officers and guidelines are,
therefore, laid down for extension of Commission
to SSC officers."
12. In para 15 of its decision, the Division Bench noted
as under:-
"15. We may note at this stage itself that the
policy decisions and the advertisements are not in
dispute. The petitioners making an application for
PC is not in dispute. The suitability of the
petitioners is also not in dispute in view of the
commendation certificates but in any case that
aspect has not even been examined by the
respondents. If the advertisement in pursuance
whereto the petitioners applied is taken into
consideration then the grant of PC was dependent
only upon two factors; viz. (i) vacancy; & (ii)
suitability of the officers. The respondents, thus,
seek to introduce new factors contrary to the
advertisement to deny the women officers the PC
since their suitability is not in issue and SSC male
officers were inducted on PC basis which shows
that vacancies had existed at the relevant stage of
time."
13. The Division Bench thereafter noted that a two-
fold argument was advanced by the women officers. First
was of gender discrimination, inasmuch as permanent
commission was being offered to short service commissioned
male officers which was denied to the women officers and in
the larger context the denial of permanent commission to
women officers, was being urged to be discriminatory
inasmuch as male officers were inducted in service at the
inception of their service as permanent commissioned
officers which right was denied to the women. The second
ground of challenge was that the legitimate expectation held
out to the women officers by way of a promise that after
successful completion of short service commission tenure,
those who opt for permanent commission would be granted a
permanent commission subject to assessment of their
suitability and availability of vacancy.
14. Noting various decisions pertaining to gender
classification and legitimate expectation, the Division Bench
observed in para 47 as under:-
"47. The advertisement in case of Air Force
officers itself envisages absorption on PC. In our
considered view, it is not open for the respondents
to plead that even if a woman officer performs as
well as a man officer, still whether to grant PC or
not to such women officers would remain within
the domain of policy matters not to be interfered
by this Court. The initial advertisement itself
envisaged grant of PC, of course subject to
vacancy and suitability. The suitability has never
been examined and is hardly in question because
these are all meritorious officers as per the
documents annexed. No comparison was made of
performance of male and female officers. The fact
that male officers were taken on PC itself means
that there were vacancies."
15. Thereafter, noting that male officers had been
granted permanent commission, on the issue of vacancy and
suitability, in paras 52 to 54, pertaining to the Air Force, the
Division Bench observed as under:-
"52. As noticed above neither is the question of
suitability nor the absence of requirement in doubt
which was the twin condition even as per clause
(v) of the appendix. Once male officers who had
been granted PC, there could be no question of
absence of requirement of officers for PC. The
advertisement also held out a promise to the
women Air Force officers of grant of PC depending
upon two factors, which are:
i. Vacancy
ii. Suitability of the officers.
53. The officers thus joined the Air Force on the
promise of these terms of their recruitment apart
from other terms and conditions of service and the
respondents cannot now introduce an alien
element other than these two conditions.
54. Once these two conditions are satisfied,
which is so in the present case, the women Air
Force officers cannot be denied PC on the
specious plea that the SSC was only on
experimental basis and there was no entitlement
to PC despite satisfaction of the two terms and
conditions."
16. Before terminating the decision by issuing
directions, in para 60, the Division Bench observed as under:-
"60. A PC carries with it certain privileges of rank
including pension. These women officers have
served well the Armed Forces of the country in the
areas of operation they were recruited for and
have worked in this capacity for 14 to 15 years.
They deserved better from the respondents.
There is no reason why these persons who have
knocked the door of the court should be deprived
of their benefit and the benefit extended only in
future for grant of PC to women. It is not as if a
complete chapter can be opened by persons who
have chosen to accept the SSC and on completion
of period decided to go out of service. The benefit
is only available to serving officers and the ones
who knocked the court but during the period of
consideration of the matter retired from service.
It would have been in the fitness of things if the
respondents having taken the decision to offer PC
prospectively should have favourably examined as
a policy itself, the plea of the petitioners who were
in service or retired from service during pendency
of petition to grant them an equivalent benefit. In
matters of gender discrimination a greater
sensitivity is expected and required."
17. Curtains were brought down by issuing 5
directions in para 61, the same read as under:-
"61. We are, thus, of the considered view that the
following directions are required to be issued:
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 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.
The necessary steps including release of
financial benefits shall be done by the
authorities within two (2) months of passing
of this order."
18. Learned counsel for the petitioner would urge that
the decision of the Division Bench would squarely cover the
case pleaded by the writ petitioners who were inducted as
short service commissioned officers by the Indian Air Force in
various wings such as education, administration and
engineering. Counsel urged that all writ petitioners had
admittedly opted for permanent commission to be granted to
them and thus it is claimed that since the issue stands
settled against the Indian Air Force, the writ petitions have to
be allowed.
19. Mr.A.S.Chandhiok, learned Additional Solicitor
General urged that though the legal position has been settled
against the Indian Air Force by the Division Bench, but
prospectively and for the benefit of only those who were
serving in the Indian Air Force when they filed the writ
petitions and for which plea, learned Additional Solicitor
General drew our attention to the statement by way of a
preamble to the decision in para 4, contents whereof have
been reproduced by us in para 7 hereinabove. Thus, it was
urged that the writ petitions should be dismissed for the
reason the writ petitioners before us had superannuated from
service and had accepted their superannuation as short
service commissioned officers notwithstanding they having
opted for a permanent commission which was denied to
them.
20. A perusal of the decision upon which the
petitioners rely would show that after noting that on
26.9.2008 the President of India have been pleased to
sanction a policy for Permanent Commission of Short Service
Commissioned Women Officers in the Armed Forces, but had
made the policy prospective i.e. to be applicable to such
women officers who were appointed after 26.9.2008, held, as
per para 4, that the Court would examine the claim of those
who were still in service or those who had approached the
Court by filing petitions when they were in service but had
retired during pendency of the writ petitions.
21. We would further highlight that in para 60 the
Division Bench conveyed clearly that its decision was for the
benefit of only such women officers who were either serving
when the writ petition was decided or were serving when
they had filed the writ petitions and the same can be
gathered from the two sentences: It is not as if a complete
chapter can be opened by persons who have chosen to
accept the SSC and on completion of period decided to go
out of service. The benefit is only available to serving
officers and the ones who knocked the court but during the
period of consideration of the matter retired from service.
Further, while issuing the directions, vide direction No.3 the
Court clearly held that its directions 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 the pendency of the petition.
22. If the directions issued by the Division Bench have
to be treated as enuring to the benefit of all women who
were inducted as short service commissioned officers, the
very directions issued by the Division Bench would be liable
to be recalled inasmuch as the Division Bench itself noted
that the assurance held to women officers was to grant them
a permanent commission subject to the twin requirements of
(i) they being found suitable; and (ii) availability of vacancy.
The Division Bench overlooked the second requirement of
availability of vacancy for the obvious reason it had before it
a hand full of officers, but if the benefit has to be extended to
all women officers, the Indian Air Force cannot be saddled
with excess women power and thus would require a direction
that before implementing the directions issued by the
Division Bench, suitable vacancy available be considered.
23. The plea that the first writ petition decided by the
Division Bench i.e. the one filed by Babita Punia was a
representative writ petition and thus the directions issued by
the Division Bench, in their sweep encompass all lady
officers, is noted and rejected as the same runs in the teeth
of the repeated observations made by the Division Bench
that it was considering the claim of only such women officers
who were in service when they approached this Court and
thereafter made it expressly clear that its directions were to
apply to only these lady officers who were in service when
they filed the writ petitions.
24. We would be failing not to highlight that short
service commission is being resorted to by the 3 Armed
Forces for the reason the pyramidical structure of the Armed
Forces has a very narrow space at the top and at the lower
rungs more human power is needed and if at the junior level
everybody is inducted on a permanent commission, there
would be extreme frustration after a few years inasmuch as
promotional avenues would be less and less as one moves up
the pyramid. Thus, a core of the pyramid in the form of
Permanent Commission is created and the remainder is left
to be filled by Short Service Commission. If the decision of
the Division Bench is made applicable to all retired women
officers it would mean that irrespective of the availability of a
vacancy they would be taken into service and the entire
pyramid would collapse.
25. Regretfully not agreeing with the contentions
urged by the petitioners and conscious of the fact that the
young ladies have sacrificed the prime of their life to serve
the nation and appear to be given a raw deal inasmuch as
they leave service without any pension, we dismiss the writ
petitions as our sympathies cannot replace the mandate of
the law.
26. The writ petitions are dismissed but without any
orders as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 11, 2011
mm
