Delhi High Court
Major Jatinder Preet Kaur And Ors. vs Union Of India (Uoi) And Ors. on 12 October, 2007
Author: T.S. Thakur
Bench: T.S. Thakur, S.N. Aggarwal
JUDGMENT T.S. Thakur, J.
1. In this petition for a writ of certiorari, the petitioners have assailed an order issued by Respondent No. 2 releasing the petitioners from short service commission in the Indian Army upon completion of the period of ten years for which they were engaged. A mandamus directing the respondents to grant extension of service to the women officers of the first batch for a minimum period of 20 years to enable them to complete their pensionable service has also been prayed for.
2. Commission as an officer or as a Junior Commissioned Officer in the Army is regulated by Chapter 3 of the Army Act. Section 12 appearing in that Chapter renders all females ineligible for enrollment or employment in the regular Army except in such corps, departments or branches 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 that behalf.
3. In terms of Special Army Instructions (SAI) No. 1 of 1992 dated 7th September, 1992, the Government formulated what is known as 'Women Special Entry Scheme (Officers)' hereinafter referred to as WSES(O). This Scheme envisaged grant of commission for a period of 5 years in the Army Service Corp, Army Ordinance Corps, Army Education Corps, Judge Advocate General (JAG) Department to women including Central or State Government Servants and those serving in the territorial army, Navy and Air Force. One of the conditions of eligibility stipulated under the scheme was that the candidate must be an unmarried female and must not be below 19 years of age or above 26 years of age except for some of the corps and departments where the age should not have been below 21 years or above 27 years. The instructions stipulated the process of selection by which the candidates would be enrolled, the physical standards required for such enrolment, pre-commission training, besides declarations and bonds to be given and executed by those enrolled. It also prescribed the conditions precedent for the grant of commission, the period of probation and disposal on expiry of the commission. Para 19 of the scheme is relevant in this regard and may be extracted at this stage:
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.
4. The contractual period of commission was in terms of the above limited to five years only extendable by another five years subject to the candidates opting for extension and being found fit for the same in terms of corrigendum No. 14 dated 1st August, 1996. Para 13(a) added by the said corrigendum was as under:
13A. Duration of Commission. The lady cadets will be initially granted commission for a period of five years. Before expiry of five years they will be required to give an option for extension of commission by five years/release. Based on the option, a Board of Officers constituted at Army HQ will decide on the fitness or otherwise of the officer for extension. If the women officer is unwilling to serve during the extended tenure, she may on giving three months notice, be permitted to resign from her commission on compassionate grounds by the competent authority. During the extended period of commission women officers will also be permitted to apply for civil jobs. Such of them as are selected for civil posts would normally be sanctioned release from Army Service at the discretion of Military Secretary at Army HQ.
5. A batch of 25 WSES(Os) including the petitioners herein were pursuant to the above Scheme, recruited in June, 1992 in different branches, namely, JAG department, Ordinance Army Supply Corps and Army Education Corps. The selected cadets were in due course sent for undergoing the basic military training at the officers training academy, Chennai and eventually granted commission by the President of India on 6th March, 1993 along with their male counterparts. Upon expiry of the said period of five years, they were granted a further extension of another five years in March, 1998. Since the extended period of five years was also expiring, Army headquarters through Military Secretary Branch, issued the impugned release order dated 6th January, 2003 aggrieved whereof the petitioners have filed the present writ petition for a certiorari as already noticed earlier and for a mandamus directing the respondents to allow the petitioners to continue till they complete pensionable service. The petitioners' case is that a request for extension up to 14 years had been made by petitioner No. 1 on the analogy of a similar extension granted by the Navy which has not evoked any response from the Government or its officers leaving no option for the petitioners except to agitate the matter and seek redress in the present writ petition.
6. The respondents have filed a counter affidavit in which they have inter alia asserted that the engagement of the petitioners as commissioned officers was contractual in nature and since the period for which the contract was valid had expired with efflux of time, the petitioners had no enforceable legal right to seek any further extension. The counter affidavit further states that there was no comparison between the Women Special Entry Scheme (Officers) and the short service commissioned officers for males. The counter affidavit compares the standards prescribed for the two separately to emphasize that there is a difference between the two not only in terms of the physical standards but in terms of training also. According to the respondents, the quantum and rigour of the training imparted to Women Special Entry Scheme (Officers) is quite low in comparison to their counterparts, i.e. SSC (Male officers). The women officers were, according to the respondents, acquainted only with pistol as a weapon which is not to be used by combatant soldiers in field area and is more in the nature of a weapon for self-defense. This difference in training was on account of the fact that Women Special Entry Scheme (Officers) are never posted in infantry attachment at field/border stations. The averment made by the petitioners that women officers have been attached to infantry units for post commission training has been denied by the respondents. According to them, only Women Special Entry Scheme (Officers) of the first batch attended a four week orientation deployment with some formations after completion of the basic course. But that attachment was discontinued for subsequent courses. In substance, the respondents' case is that Women Special Entry Scheme (Officers) are not treated at par with male officers in terms of forward posting. Some Women Special Entry Scheme (Officers) are posted at their own choice to forward areas only on spouse posting basis. So also women commissioned officers are detailed on short courses only. They are not detailed on long courses demanding heavy physical efforts as is the position with their male counterparts.
7. The fact that Navy and Air Force have extended the Women Special Entry Scheme (Officers) entry scheme up to 14 years is not denied by the respondents according to whom the Army, Navy and Air Force have different sets of service conditions, different ages of retirement for various ranks/cadres, corps, departments and different criteria for posting in the respective services due to their peculiar needs and nature of work. The educational qualifications and mode of selection also differs from service to service. Women officers in Army are deployed in non-combat appointments as they cannot be subjected to the rigours of harsh service conditions especially in war field/counter insurgency portion environment which incidentally are negligible in Air Force and totally absent in Navy except when naval ships are off-loaded and the period is considered forward tenure for specific purposes. There was, according to the respondents, no question of any discrimination or hostile treatment resulting from denial of extension to women officers serving in the Army vis-a-vis those serving in Navy and Air Force.
8. We have heard learned Counsel for the parties and perused the record. Appearing for the petitioners, Ms. Jyoti Singh made a two fold submission before us. Firstly it was contended by her that since there was no difference between Women Special Entry Scheme (Officers) serving in the Army and those in the Navy and Air Force, the extension of 4 years granted in one cannot be denied to the other without offending the guarantee contained in Articles 14 and 16 of the Constitution.
9. Secondly she argued that the question of granting extension by 4 years even to Women Special Entry Scheme (Officers) serving in the Army was under the active consideration of the Government on the date the petitioners were released from service and even on the date the present petition was filed. She urged that this Court had by an order dated 5th March, 2003 specifically directed the release of the petitioners to remain subject to the final orders passed in the writ petition. This, argued the learned Counsel, implied that in case the petitioners succeeded, their previous release would not affect their reinstatement to serve for the extended period. Now that the Government had itself extended the period by 4 years on the parity of such extension granted to Navy and Air Force officers, there was no reason why the benefit thereof the said extension should not be made available to the petitioners also especially when the petitioners were the pioneers in the field being the first batch of officers recruited under the Women Special Entry Scheme. There was, according to Ms. Singh, no intelligible differentia between the petitioners' batch of officers and others recruited later, in so far as the grant or refusal of benefit of extended service was concerned. She contended that order dated 31st March, 2004 issued by the Government of India modifying the scheme and extending the period of engagement for officers recruited under the same to 14 years was discriminatory in so far as the same restricted the said benefit to only serving women officers.
10. On behalf of the respondents, it was on the other hand contended that the terms and conditions for recruitment and quality of training as also the nature of duties for Women Special Entry Scheme (Officers) employed in Navy and Air Force were different from those applicable to Women Special Entry Scheme (Officers) employed in the Army. The mere fact that all the women officers were working under the same employer was inconsequential so long as the essential service conditions and criteria for posting depending upon their peculiar needs and nature of work and the terrain where they are working were different. The extension of service of Women Special Entry Scheme (Officers) was in any case a matter of policy, the formulation whereof was in the exclusive domain of the Government. So long as the policy did not violate any fundamental right of any citizen, the wisdom behind the same could not be questioned before a writ court.
11. It was further argued that there was a definite reason why it became necessary to apply the extended tenure only to in service Women Special Entry Scheme (Officers). The case for extension of Women Special Entry Scheme (Officers) was, according to the respondents, taken up with the Government by Army Headquarters in June, 2003 and that for SSCOs on 29th August, 2003. After considerable discussion and amendments to the proposal, a revised proposal for Women Special Entry Scheme (Officers) was forwarded on 5th January, 2004 Extension of tenure for both Women Special Entry Scheme (Officers) and SSCOs was then approved and conveyed by the Government in terms of letter dated 31st August, 2004 made applicable prospectively. Any other cut off date other than the date of the issue of the said order would have either given a different treatment to SSCOs vis-a-vis Women Special Entry Scheme (Officers) or led to litigation by SSCOs who were released form service earlier to the said order.
Reliance was placed by learned Counsel for the respondents upon a Division Bench decision of this Court in Union of India v. Birbal Arora and Supreme Court decision in Union of India and Another v. Manu Dev Arya AIR 2004 SC 2449 in support of the submission that so long as the Government policy did not violate any fundamental or other right of any citizen, there was no room for interference by a writ court.
12. We have given our anxious consideration to the submissions made at the bar and perused the record. The first limb of the argument advanced by Ms. Jyoti Singh proceeds on an assumption that recruitments to the Army and those with Navy and Air Force under the Women Special Entry Scheme are identical in terms of the content of the Training Programmes, the deploy ability of the officers recruited and the working conditions in which they have to perform their duties.
That does not, however, appear to be the correct position. The respondents have on affidavit stated that Army, Navy and Air Force are three different services governed by different sets of service conditions in different ages of retirement for various ranks/cadres/corps and departments and that there are different criteria for posting of officers in the said three services depending upon the peculiar needs and requirements of the services, the nature of work and the nature of terrain and the mode and the manner of training imparted to such officers. While women officers in the Army are deployed in non-combat appointments identified by User Directorate for the reason that they could not be subjected to rigors of harsh service specially in hard field/counter insurgency operations, the Air Force and Navy does not, have any such problems of posting. The conditions in which officers recruited in the Army have to serve are thus peculiar to that force which are not shared or faced by the officers working in the Air Force or the Indian Navy. The result is that WSES officers in the Army are classified differently from those in Navy and Air Force. That being so, there was an intelligible differentia between WSES officers serving in the Army on the one hand and those serving in the Air Force and Navy on the other hand. The grant of four years extended service to the later category of officers and denial thereof to those serving in the army would not, in that view, result in any discriminatory treatment qua the latter. So long as the classification of those who are given the benefit and others who are not, is based on an intelligible differentia which has a nexus with the objects sought to be achieved, the classification cannot be said to be arbitrary or discriminatory in nature. The legal position regarding permissible classification is well settled by a long line of decisions rendered by the Supreme Court. These decisions have authoritatively declared that to pass the test of permissible classification two conditions must be fulfillled viz;
1) The classification must be founded on an intelligible differentia which distinguishes persons or things that are graded together from others left out of the grade; and
2) The differentia must have a rational relation to the objects ought to be achieved by the Statute in question. See Budhan Chaudhary and Ors. v. State of Bihar , Mohd. Hanif Quareshi and Ors. v. State of Bihar and Ors. , Harakchand Ratanchand Banthia and Ors. etc. v. Union of India and Ors. and Muktinarain Jha and Ors. v. State of Bihar .
13. It is also well settled that the classification can be founded on different basis such as geographic or according to the objects or occupation in the life. What is necessary is that there must be a nexus between the basis of classification and the object of the enactment under consideration. In Shori Lal and Sons and Anr. v. Delhi Development Authority and Anr. the Supreme Court held that those who joined the Army as a sacrifice during the external aggression and those who did so as a career, formed two different categories and giving them benefits on different principles is not discriminatory. Reference may also be made to Kedar Nath Bajoria v. The State of West Bengal where the Apex Court held that a classification need not be scientifically perfect or logically complete.
14. In State of Kerala v. Kumari T.P. Roshana and Ors. and The State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. their lordship's declared that Courts would not interfere unless the classification resulted in a profound inequality. Reference may also be made to In re The Special Courts Bill, 1978 , where the Supreme Court held that a classification would be justified if it is not palpably arbitrary. In Venkateshwara Theatre v. State of Andhra Pradesh and Ors. , their lordship's declared that so long as there was equality and uniformity within each group, the law will not be condemned as discriminatory though due to some fortuitous circumstances arising out of a peculiar situation some included in a class get an advantage over the others.
15. In The State of West Bengal v. Anwar Ali Sarkar and Anr. , the Court held that when law is challenged as denying equal protection, the question for determination is not whether it has resulted in inequality but whether there is some difference which has a just and reasonable relation with the object of the legislation. In Shri Ram Krishna Dalmia and Ors. v. Shir Justice S.R. Tendolkar and Ors. the Court held that mere differentiation or inequality of treatment or inequality of burden does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary or that it does not rest on any rational basis having regard to the object which the maker of the law had in view.
16. Applying the above principles to the case at hand, there is no gain saying that the classification of WSES officers serving in the Army and those serving in other two forces namely Air Force and Navy cannot be said to be per se arbitrary discriminatory or irrational. The ground realities regarding the conditions in which women Army officers have to perform their duties, the quality of the training imparted to them, the conditions of their recruitment and the nature of the duties are strikingly different from those recruited to the Navy or the Air Force. They can, therefore, be treated differently from each other depending on how the Army or, for that matter, the government look at the need for their continuance beyond 10 years or their usefulness. The argument that grant of extension to WSES officers recruited in Navy or in the Air Force would expose the women officers in the Army to hostile treatment, must therefore fail and is accordingly rejected.
17. Equally untenable appears to us to be the alternative submission made by Ms. Singh based on the cut off date which the government have prescribed while extending the engagement of WSES officers by another four years. It is true that the petitioners are the first batch of officers recruited under the WSES at whose instance the process of a fresh look by the government on the question of extension of their engagement was initiated. It is also true that on the date the petitioners were discharged, the issue whether a further extension of four years should be granted to WSES officers in the Army was pending consideration before the government and that even this Court had, while entertaining the present petition directed that the discharge of the petitioner's would remain subject to its ultimate outcome. The question, however, is not whether a decision taken by the government after the petitioner's stood discharged would, ipso facto, become applicable to the petitioners. The question is, whether the decision of the government to grant extension was in the nature of a policy decision and if so whether the government was competent to apply it prospectively. Our answer to both these questions is in the affirmative. If the charge of discrimination leveled by the petitioner is found to be untenable as we have done in the foregoing paragraphs, the grant of extension whether independently or on the analogy of a similar benefit given to WSES recruits to Air Force and Navy would remain a policy decision. Whether or not WSES officers in the Army should be engaged for another four years was a matter that fell within the realm of policy making by the government. Its decision to grant such extension would not be open to question simply because the decision grants the extension benefit prospectively.
It is fairly well settled that fixing a cut off date for entitlement of benefits is legally permissible so long as the cut off date is not arbitrary or out of the hat.
18. In Union of India and Ors. v. Lieut (Mrs.) E. Iacats , the Supreme Court was dealing with a similar situation and examining whether the benefit of a scheme could be denied to a person already retired. The Court observed:
The respondent, therefore, cannot claim the benefit of a scheme which came into operation from a date subsequent to the date of her retirement. The respondent also did not contend either before the High Court or in the grounds of appeal before us that a cut-off date for grant of pensionary benefits is arbitrary or unreasonable. Even otherwise in view of the fact that a study team was first appointed and pursuant to its report certain benefits were given after considering the report of the study group would show that the cut-off date had a logical nexus with the decision to grant these benefits on the basis of the report of the study team. Fresh financial benefits which are conferred also have to be based on proper estimates of financial outlay required. Bearing in mind all relevant factors, if such a benefit is conferred from a given date, such conferment of benefits from a given date cannot be considered as arbitrary or unreasonable.
19. To the same effect is the decision rendered by the Supreme Court in Sita Ram Bansal and Ors v. State of Punjab and Ors. , Hari Ram Guppa (D) Thr. L.R. Kasturi Devi v. State of U.P. : , Union of India and Anr. v. R. Sarangapani and Ors. .
20. In Tamil Nadu Electricity Board v. R. Veerasamy and Ors. , the Supreme Court reviewed the entire case law on the subject and declared that merely because a cut off date is prescribed for a new scheme excluding from the benefit thereof people who have already retired does not make the same discriminatory. Reference may also be made to Krishnan Kakkanth v. Government of Kerala and Ors. and State of Punjab and Ors. v. Ram Lubhaya Bagga where the Apex Court has held that Government policy is not subject to judicial review unless it is demonstrably arbitrary, irrational discriminatory or violative of constitutional or statutory provisions.
21. The respondents have, in the instant case, on affidavit set out that the decision to extend the services was common to Short Service Commission and WSES officers in the Army and that making the same retrospective for the women officers would have given rise to similar claims of retrospectivity by the Short Service Commissioned officers also and consequent litigation. To avoid any such situation, such of the officers as were still in service or were on terminal leave were given the benefit of the extension in the process making others who had already retired ineligible. There is no arbitrariness or irrationality in that reasoning.
22. That apart the petitioners had completed ten years of service in March, 2003. Even if they were entitled to extension by another four years from the date of their release, the said period also expired by March, 2007.
There is, therefore, no question of their being taken back in service to wear their uniforms again. The claim would then boil down to a monetary claim for payment of emoluments award whereof would not be justified having regard to the fact that petitioners have not worked against the post earlier held by them.
23. In the totality of the above circumstances, therefore, we see no reason to interfere. This writ petition fails and is hereby dismissed but in the circumstances without any order as to costs.