THE SECRETARY, MINISTRY OF DEFENCE versus BABITA PUNIYA & ORS.

Citation: [2020] 3 S.C.R. 833 · Decided: 17-02-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 9 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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THE SECRETARY, MINISTRY OF DEFENCE
v.
BABITA PUNIYA & ORS.
(Civil Appeal Nos. 9367-9369 of 2011)
FEBRUARY 17, 2020
[DR. DHANANJAYA Y CHANDRACHUD AND
AJAY RASTOGI, JJ.]
Constitution of India:
Arts. 14, 15 (1) and 16(1) – Induction of women in Army under
Women Special Entry Scheme (Officers) [WSES] for a period of 5
years – The initial process under WSES replaced by Short Service
Commission (SSC) with outer period of fourteen years – Writ petition
seeking direction for grant of Permanent Commission (PC) to women
SSC officers – High Court held that SSC women officers who had
opted for PC and were not granted PC but granted extension of
SSC, were entitled to PC at par with male SSC officers – Appeal to
Supreme Court – During pendency of the appeal Union Government
by its communication dated 25 February 2019 granted PC to SSC
women officers in ten arms of services of the Army – Held: The
policy decision of Union dated 25 February 2019 must be construed
as a decision which enforces the fundamental right of women to
seek access to public appointment and to equality of opportunity in
public employment as envisaged in Articles 15(1) and 16(1) of the
Constitution respectively – However, the distinction sought to be
drawn between women officers with less than fourteen years of
service, with those having service between fourteen and twenty years
and above twenty years, is fallacious – There is no reason to deprive
women SSC officers of grant of PC on the ground that they have
crossed fourteen years of service because such situation arose only
due to delay on part of the Union Government in implementing the
order of the High Court – Therefore, women SSC officers both within
the period of 14 years of service and beyond, should equally be
entitled to consideration for grant of PCs – Also the absolute bar
on women seeking criteria or command appointments is not
sustainable being against the provisions under Article 14.
[2020] 3 S.C.R. 833
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
Art. 33 – Scope of – Held: Limitation or abrogation of
fundamental rights in their application to members of Armed Forces
u/Art. 33, must be by law enacted to ensure proper discharge of
duties and maintenance of discipline.
Disposing of the appeals, the Court
HELD: 1. 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. [Para 44] [865-E-G]
Ram Sarup v. Union of India [1964] 5 SCR 931; Lt.
Col. Prithi Pal Singh Bedi v. Union of India (1982) 3
SCC 140 : [1983] 1 SCR 393; R Viswan v. Union of
India (1983) 3 SCC 401 : [1983] (3) SCR 60 – referred
to.
2. Section 12 of the Army Act, 1950 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. [Para 49]
[869-D-F]
3. Following the judgment of the impugned order, the Union
Government was under a mandate to grant Permanent
Commissions (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 impugned judgment was not stayed
by this Court at any stage, though there was a direction that no
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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 High Court in the
impugned judgment, particularly, in the absence of a stay on the
operation 

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