Supreme Court Directs Indian Air Force To Consider Granting Pensionary Benefits To 32 Retired Women SSC Officers Deeming They Had Permanent Commission

The Supreme Court, on Wednesday, in exercise of power under Article 142 of the Constitution, directed the Indian Air Force (IAF) to consider 32 Women Short Service Commission Officers (WSSCOs) in the present batch of appeals, who were released from service between December, 2006 and December, 2009 and were not considered for grant of Permanent Commission (PC), for grant of one-time pensionary benefits deeming that they have completed 20 years of service.

The relief was granted following the logic applied by the Apex Court in its judgment in Secretary, Ministry of Defence v. Babita Poonia.

A Bench comprising CJI, Justice D.Y. Chandrachud, Justice Hima Kohli and Justice J.B. Pardiwala noted that the cases of the appellants shall be considered on the basis of the Human Resource policy of the IAF floated on 19.11.2010. It was made clear that the said officers shall not be entitled to any arrears of salary; only the arrears of pension shall be payable from the date on which the officers were deemed to have completed 20 years of service.

In order to prevent deluge of petitions from being filed subsequent to the present order, the Bench made it clear that it is freezing the benefit granted and would not extend it to subsequent applicants/petitioners. To demonstrate the said intention, some of the impleadment petitions in the present appeals, which were filed after considerable delay from the dismissal of service were dismissed by the Bench.

The appellants are women officers who had joined the IAF as Short Service Commission Officers between 1993 and 1998 and were released from service between December, 2006 and December, 2009. The appointment of these officers were in terms of the advertisement dated 25.11.1991, which contemplated that the officers would initially be granted Short Service Commission for a period of 5 years. Thereafter they would be considered for the grant of Permanent Commission (PC). However, after rendering 5 years of service, they were not considered for PC but their period of service was extended by 6 years. On 01.09.2004, the IAF floated a policy for the grant of PC to SSCOs with a rider stating that PC would not be offered to WSSCOs. Subsequently, on 25.05.2006, a policy was issued providing for a further extension with a rider that no PC would be offered to SSCOs. Finally, a policy was issued on 26.09.2008 which envisaged granting PC prospectively to women officers across the three Armed Forces, in select branches.

In 2003, a PIL was instituted before the Delhi High Court by an Advocate, Ms. Babita Poonia who argued that not granting PC to women SSCOs was discrimination based on gender. In the proceedings, some WSSCOs belonging to the armed forces were impleaded as petitioners.The High Court granted relief, which came to be challenged before the Apex Court by the Ministry of Defence. However, the IAF did not prefer appeal and indicated that it would implement the decision in Babita Poonia passed by the High Court on 12.11.2010. 44 women SSCOs (23 had been released and 21 were then serving) were considered for the grant of PC. A total of 41 Women SSCOs were granted PC; 3 WSSCOs indicated their unwillingness.

Pursuant to the High Court's decision in Babita Poonia, a batch of Writ Petitions reached the Delhi High Court seeking benefit of the judgment of the High Court for WSSCOs in the IAF. On 11.08.2011, the petitions were dismissed on the ground that the petitioners who had moved the court were not covered by the operative portion of the judgment in Babita Poonia, wherein it was held that women SSCOs who opted for PC, but were not granted and only allowed extension were entitled to PC at par with men SSCOs with all consequential benefits. PC was to be offered to them after completion of 5 years. As per Paragraph 61(3) of Babita Poonia's judgment the decision was applicable only to (a) women officers in service and to (b) those who had approached the High Court, though they had retired during the pendency of the petitions.

Senior Advocate, Mr. Krishnan Venugopal, Mr. Huzefa Ahmadi and Ms. Meenakshi Arora and Advocate, Mr. Sudhanshu Pandey appeared for the appellants.

The appellants argued that they were covered by Paragraph 61(4), which is an additional category over and above the category specified in Paragraph 61(3). They also contended they had legitimate expectation of being considered for grant of PC, as vouched by the advertisement dated 25.11.1991, pursuant to which they had joined the IAF. As per Babita Poonia, IAF was to consider the WSSCOs as per the Human Resource Policy dated 19.11.2010, but the appellants alleged that in reality that was not considered as per the said policy. In the alternative, the appellants argued that if the Court decides against reinstatement of the WSSCOs in the present batch of appeals, they should be granted pensionary benefits in terms of the decision of the Apex Court in Babita Poonia.

Senior Advocate, R. Balasubramaniam appearing on behalf of IAF submitted that the officers in the present appeal are not covered by the operative portion of the judgment of the High Court in Babita Poonia as they were neither serving in the IAF on 12.03.2010, when the judgment was pronounced, nor had they approached the High Court when they were in service. To demonstrate that IAF had indeed complied with the Poonia judgment, Mr. Balasubramaniam submitted IAF had considered 44 women SSCOs of whom 41 were granted PC and 3 during pendency of the proceedings.

In the present round of proceedings, by way of interim directions the High Court had asked IAF to consider the plea of WSSCOs for reinstatement, subject to them meeting QRs as per policy existent in 2007. Accordingly, 14 applicants were considered. 8 women SSCOs were reinstated while rest were found not suitable or expressed unwillingness or failed to meet the medical criteria. Thereafter, vide orders dated 23.08.2013 and 27.09.2013 the High Court declined to grant interim relief to other officers, who have now approached the Apex Court. Mr. Balasubramanian submitted that on the date of Babita Poonia's judgment, there were 811 SSCOs of whom 348 had been released, others were serving. While implementing the judgment of the Delhi High Court, the Ministry of Defence had issued orders, in terms of which 463 serving SSCOs (88 male and 375 female) were considered for PC in addition to 44 women SSCOs who had been already considered for PC under the judgment of High Court in Poonia. Out of these 463 officers, 371 SSCOs ( 70 men and 301 women) were granted PC. It was averred that there was no gender-discrimination in terms of application of QR requirements in considering claims for grant of PC; a uniform requirement of 6.5 has been applied across the board.

The Bench was not inclined to accept the argument of the appellant that they were covered by paragraph 61(4) of Babita Poonia. It noted that the Delhi High Court had made it abundantly clear that at that stage it was inclined to grant benefit only to (a) serving officers and (b) those who had moved the court, but retired during the pendency of the petitions, which was reiterated by the Apex Court in appeal. Therefore, the issue that the Bench felt needed to be looked into in the present appeals was - 'whether the appellants stand in the same position as the officers governed by the decision in Babita Poonia'. The Bench noted that the advertisement pursuant to which the present batch of SSCOs were employed categorically mentioned that after 5 years they would be considered for grant of PC. It observed that the SSCOs deserved relief but not in the form of reinstatement -

"They have put in long years of service for IAF. During the course of the hearing the Court has been apprised by IAF that the officers have an excellent track record. In this backdrop, we are of the view that this batch of officers who moved the Delhi High Court soon after the decision in Poonia and within a reasonable period after their date of release should not be denied the benefit which emanates from that judgment. At the same time the court cannot be oblivious of the fact that the officers were released from service on diverse dates between 2006 and 2009. Therefore reinstatement in service would not be viable."

Moreover, the Bench asked the IAF to also consider the case of three officers whose Qualitative Ratings were between 6.21 to 6.41, sympathetically, on the same footing as the other officers in the present petition.

[Case Title: WG. CDR. A.U. Tayyaba (Retd) And Ors. v. UoI And Ors. Civil Appeal No 79-82/2012]