28 Mar 2010

Women Officers to get Full Commission in Armed forces: High Court

While the cry everywhere is to give equal rights and opportunities to the members of the fair sex, the Delhi High Court has done its part by setting aside the government policy and directing it to grant full commission to women officers in the armed forces. To defend the government policy was no less than the Solicitor General of India, Mr. Gopal Surbramaniam himself. However, the Division Bench of the High Court held otherwise. 

The High Court noted the claims of the women officers as under;

1. “Nature gave women too much power; the law gives them too little.” observed Will Henry, American political adviser and columnist. The claim of women to the right to serve in the Armed Forces has been and is a matter of debate in various countries. The denial of such right is pleaded to be a case of gender discrimination. This is more so as the modernization of the Armed Forces has resulted in lesser reliance on a hand to hand combat. The debate in each country is coloured by its own social & cultural norms and ethos. In some of the countries women have now been inducted into combat force while in other countries the induction has been restricted to support services to actual combat.
2. The second limb of the claim is for the right to Permanent Commission (for short "PC‟). In India the progress in this behalf has been slow on the perceived ground of social norms. There has been induction of women into certain restricted areas of the Armed Forces and that too on a Short Service Commission (for short "SSC‟) basis. The Government is stated to have carried out studies for grant of PC to women but till date it has not received a favourable response.
3. We are here concerned with women officers who were granted SSC in the Air Force and in the Army and who seek PC. These officers have had long stints albeit on SSC basis extended from time to time to as much as 14 years. The consequence of not being granted PC is that these officers are deprived of certain benefits and privileges, which would have enured to them in case of grant of PC like pension, ex-serviceman status, medical facilities, etc.
The High Court undertook stocktaking of the position in relation to all three wings of the armed forces and noted the arguments of the rival sides acknowledged that "courts are slow to interfere in policy matters (which) is more so where the Armed Forces are involved which have their own peculiar requirements and norms" and also that "as to whether women ought to be recruited or not into the Armed Forces and if so then in which areas of operation, does fall within policy domain". However the Court was quick to point out that on such counts it cannot choose to ignore the "discrimination on the ground of gender in terms of opportunities" and the claims for "equity and fairness in view of Articles 14, 16 & 21" of the Constitution of India. The High Court clearly pointed out, thus, that "the area of judicial scrutiny would arise where both men and women officers are taken on SSC pursuant to a policy decision and while men have been offered PC, a similar privilege has not been extended to the women officers." Being of this view, the High Court declared the law as under;

57. The doctrine of legitimate expectation as observed in various judgments referred to aforesaid is granted on the rule of law as requiring regularity, predictability and certainty in Government dealings with the public, operating both on procedural and substantive matters. The fair play would be the expectation from the Government.
58. We are of the considered view that the women officers of the Army can be treated no differently from the Air Force women officers even though there is no specific policy decision in their case as they are at par with the women Air Force officers.
59. The methodology adopted by the Army in dropping seniority for any differential of training inter se male officers or inter se female and male officers as discussed in the factual matrix can equally apply for fixing seniority once PC is granted to the women officers.
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.
The High Court further issued consequential directions to the armed forces to consider the claims of the women officers for Permanent Commission in terms of the decision.

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