Women's Induction Into Notified Army Corps Can't Be Numerically Restricted; Vacant Male Posts Must Be Open To Eligible Women : Delhi HC

Background Facts

An Examination Notice was issued by the Union Public Service Commission (UPSC) on 04.08.2021 for the Combined Defence Services Examination (II) 2021. It invited applications for recruitment to various posts in the Indian Army. There were posts for Short Service Commission (Non-Technical) Women. As per the notification, 169 vacancies were earmarked for men and 16 vacancies for women. The petitioners were all women aspirants. They applied and cleared the examination for the SSC (NT) Women category. Out of the 169 vacancies for men, only 107 were filled. Therefore, 62 vacancies were left unfilled, whereas all 16 vacancies for women were exhausted.

The petitioners claimed appointment against the 62 unfilled male vacancies. It was contended that restricting the number of women candidates was unconstitutional and violative of the principle of gender neutrality. They further sought directions for issuance of joining letters, consideration in future SSC (NT) courses, and relaxation of the maximum age limit of 25 years due to the delay. However, their claims were refused by the respondents.

Being aggrieved by the same, the petitioners filed the writ petition.

It was submitted by the petitioners that in the judgment of Arshnoor Kaur v. Union of India, the Supreme Court held that once women are permitted entry into a corps under Section 12 of the Army Act, 1950, the respondents cannot impose any limitation on the extent of their induction by way of policy or executive instructions. It was urged that denial of appointment in the presence of vacant posts, violates the principle of gender neutrality as well as the constitutional guarantees under Articles 14, 15 and 16 of the Constitution of India.

On the other hand it was submitted by the respondents that the petitioners cannot seek to be inducted against the vacancies for men after having participated in the selection with full knowledge of the fact that only 16 vacancies were reserved for women. It was further submitted that in the judgment of Dr (Major) Meeta Sahai v. State of Bihar, the Supreme Court acknowledged that the candidates who participate and fail cannot later question the selection to prevent opportunistic challenges and “second shots” at success. The same principle was also established in the case of Manish Kumar Shahi v. State of Bihar. However, the Court clarified that participation does not stop from challenging any illegality in the process.

It was further argued that the decision in Arshnoor Kaur case was limited to the induction of women into the JAG branch and cannot be generalized to other Armed Forces branches. It was emphasized that the ruling focused on merit-based gender-neutral recruitment for JAG and allocation of at least 50% vacancies to women. It was further argued that limiting women's induction via the SCC was a valid policy consideration, accounting for combat readiness and operational risks. It was argued that these matters should be left to policymakers rather than courts.

Findings of the Court

It was observed by the Court that plea of estoppel raised by defendant is not sustainable as fundamental rights cannot be waived merely because the petitioners had participated in the examination knowing that only 16 posts were advertised for women.

The case of Arshnoor Kaur v. Union of India was relied upon wherein the Supreme Court emphasized that gender neutrality is a constitutional imperative, distinct from mere gender equality. Once women are permitted to join a corps or branch under Section 12 of the Army Act, 1950, authorities cannot restrict their numbers through policy or administrative instructions. It was held that women are limited to Combat Support Arms and Services and they cannot enter Combat Arms like Artillery or Armoured Division. Therefore, once they are permitted in a notified branch, the Army cannot impose additional restrictions, as Section 12 does not empower such limits. In Babita Puniya case, permanent commissions were progressively granted, which reinforced equality of opportunity. It was observed by the court that restricting numbers or reserving posts for men via policy or instructions is impermissible, as it would nullify the Section 12 notification. It was held that women cannot enter Combat Arms, but the 1992 notifications for ten streams allow entry without limiting numbers.

It was held by the Court that eligible women candidates could not be deprived of consideration while posts remained vacant. It was directed by the court that the petitioners should be considered for appointment against the 62 unfilled male vacancies, subject to their suitability in one or more of the identified corps and services. It was clarified that the benefit of this order would be available only to those who were within the prescribed age limit on the date of declaration of the result.

With the aforesaid observations, the writ petition was allowed in favour of the petitioners.

Case Name : Shruti Vyas & Ors. Union Of India Through & Anr.

Case No. : W.P.(C) 1106/2024

Counsel for the Petitioner : Indra Sen Singh, Nasir Mohd and Kaberi Sharma, Advs.

Counsel for the Respondents : Chetan Sharma, ASG with Satya Ranjan Swain, CGSC, Amit Gupta, SPC with Kautilya Birat, Ankush Kapoor and Vishwadeep, Advs. with Major Anish Muralidhar and Capt Carolin Johnson