Argument Of 'Functional Difference' Can't Work In 2024 To Deny Women Permanent Commission In Coast Guard: Supreme Court Tells Union

The bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra were hearing the petition filed by a woman Short Service Appointment (SSA) Officer with the Indian Coast Guard (ICG) who sought permanent commission.

AG submitted that a short affidavit would be submitted to highlight how the ICG was functionally different from the Navy and Armed Forces.

The CJI however intervened to express, "It may be completely different but you must have women.”

The AG said that a board has been constituted to relook into the modalities as there might be a need for “structural changes”

The CJI, seemingly pressing for the cause of Women Officers, opined “Either you do it, or else we will do it!” The CJI said that the argument of 'functional differences' cannot be accepted in modern times.

“ All these functional differences etc, all this Mr Attorney, won't work now in 2024”

AG urged that once the Union's submission is filed, the bench would be better able to appreciate the aspect of the differences in functionality of the ICG as compared to other branches of Defence Services.

In the previous hearing, the Court pulled up the Central Government over the denial of Permanent Commission for women officers in the Indian Coast Guard (ICG).

Addressing the Union Government, CJI said, "You speak of 'Nari shakti'. Now show it here. You're in the deep end of the sea, in this matter…you must come up with a policy which treats women fairly…after 2009 no woman has been inducted …Why are you being so patriarchal? You don't want to see the face of women in the Coast Guard?”

Additional Solicitor General (ASG) Mr Vikramjit Banerjee, representing the Union, explained that there was a difference between the stream of the Petitioner who was in the Short Service Commission (SSC) and the branch of Permanent Commission (PC) which the petitioner sought to be absorbed into. The issue was the transition sought from SSC to PC.

The bench asked what was so distinctive about the ICG that women could not have Permanent Commission there, while the Indian Navy grants the same.

The Court cautioned the Union to come up with a gender-neutral policy sooner.

“ Forget about her case, we will now deal with what you do to others. We are the Supreme Court, we may not give her liberty but we will see that Justice is done for women in ICG …then we will open up the whole canvas, you better take instructions with what you want to do…if women can guard the borders, they can guard the Coasts, it's as simple as that.”

Senior Advocate Archana Pathak Dave and Siddhant Sharma Advocate-on-Record represented the petitioner. The petitioner relied upon the Supreme Court's judgments which directed the grant of permanent commissions for women officers in the Army, Navy and the Air Force.

Background

The woman Officer/petitioner was appointed as Assistant Commandant (General Duty-Women) in 2009. She was promoted to the post of Deputy Commandant (GD) in 2015 and to the post of Commandant (JG) in 2021. In 2021, she submitted a request for permanent absorption along with recommendations from her commanding officers.

However, a year later, the request was returned without action, on the basis that the Ministry of Defence's (MoD) letter dated February 25, 2019 (regarding the grant of permanent absorption to women officers) did not apply to ICG. Reportedly, the petitioner also communicated that no provision for permanent absorption/commission of SSA Officers existed in ICG. Rather, the procedure for induction of women officers in the permanent cadre of the GD branch existed and the PMT/SSC option had to be exercised at the time of enrolment.

In May 2023, the petitioner communicated a release order pursuant to the completion of her engagement period. Against the same, she approached the Delhi High Court.

The High Court denied interim relief to the petitioner, being of the view that if the petitioner was ultimately successful, she could be directed to be reinstated retrospectively. However, if she was not successful, any period spent in continuation of service, in terms of an interim order passed, would amount to illegal usurpation of office without any entitlement thereto.

Consequently, the petitioner was released from service in December 2023. Challenging the High Court order, she approached the Supreme Court.

Case Title: Priyanka Tyagi v. Union of India & Ors., Special Leave to Appeal (C) 3045/2024