This article has been written by Smruti Ravi Iyer, from BACL, Nagpur.

Introduction

What is meant by the permanent commission? A permanent commission (PC) means continuing a career in the armed force until one retires. If someone gets selected through PC, he/she has the option of serving the country up to the full age of retirement. The reason why I’ve highlighted “he/she” is because not very long ago, this option of permanent commission was only offered to the male officers in the forces. 

Previously, the female officers were offered only the Short Service Commission (SSC). SSC or Short Service Commission in the forces is the tenure of officers. The Short Service Commission officer’s tenure is 10+4 years. 

After the completion of this tenure, the male officers can either opt for a permanent commission or can opt out of the Indian Army. Initially, the officers are enrolled for 10 years then they can continue for 4 years after this completion of 10+4 years the women officers would have to opt-out and the men could continue and take up permanent commission or they can also opt-out. 

This pattern has now changed and has become liberal towards female officers. They now also have the option of permanent commission, being on a par with the male officers. The Supreme Court should be given credit for this colossal change that leads society one step closer to equality. This article focuses on how the role of female officers have evolved and how the judiciary has contributed to equalizing the roles of male and female officers in the armed forces.

History

As the Indian Military Nursing Services originated in 1888, the role of women in the armed force began to crystallize. It’s a part of the Armed Force Military Services first formed under British rule in 1888. The nurses of the Indian Army first served with distinction in World War I. Women’s role further started to expand with the formation of the Women’s Auxiliary Corps, which allowed them to serve in primarily non-combatant roles like communications, accounting, administration etc. 

Noor Inayat Khan was known for her astonishing service in World War II. She was a wartime British secret agent of Indian descent who was the first female radio operator sent into Nazi-occupied France by the Special Operations Executive (SOE). She was later arrested and eventually executed by the Gestapo.

Section 12 of the Air Force Act, 1950 which makes females ineligible for enrolment or employment in the Air Force, except in such corps, department, branch or body forming part of or attached to the Air Force as the Central Government may, by notification, specify in this behalf.[1] 

In November 1991, the central government notified by the way of an official gazette the wings of the Air Force where women could be enrolled or employed. However, all these women were appointed on short service commission and not permanent commission. Women officers in the Indian Air Force struggled their way through various litigations to finally achieve this milestone of being granted the permanent commission in the force.

With respect to the Indian Navy, Section 9(2) of the Navy Act, 1957, restricted the entry of women into the Navy. They were not eligible for enrolment and employment in the Navy. This provision can however be negated if the union government by using its powers, make exceptions to this given bar on women.[2] 

In consonance with this exact power conferred upon them, the union government issued a notification making women eligible for enrolment and employment in mainly three branches of the Navy. These branches were: (i) Logistics; (ii) Law and (iii) Education. This notification provided a set of rules and regulations that would regard women being granted a PC. However, this employment for women was only on Short Service Commission and not permanent commission. 

Similarly, Section 12 of the Army Act, 1950, also makes women ineligible for employment or enrolment in the Army unless the central government by the way of an official gazette allows them to.[3] Again, in January 1992, the union government provided a list of areas where female officers can be employed. These were:

(i) Army Postal Service; 

(ii) Judge Advocate General’s Department; 

(iii) Army Education Corps; 

(iv) Army Ordinance Corps (Central Ammunition Depots and Material Management); and 

(v) Army Service Corps (Food Scientists and Catering Officers).

This inducement was also only on the Short Service Commission. The SSC was initially just 5 years which later rose to 10 or 14 years at the most. In the Army, like in the other two forces, the female officers had to fight a prolonged battle against this antagonistic policy of the Army of not granting PC to deserving women officers.

The pinnacle of a revolution

This beginning of this change can be traced back to when the women officers finally identified the inequality between the male and female officers in the Armed forces. Both male and female officers opted for an SSC, but after completion of 14 years, male officers were granted to opt for a PC, whereas female officers were discriminated against by not being granted that entitlement. This trend was highly discriminatory. It led to an enormous number of litigations which in turn brought this indispensable change in the field of defence. The judiciary played a crucial role in interpreting this issue in the correct direction.

The Indian Navy

When it came to the Indian Navy, in February 1999, the union government sent a letter to the Chief of the Naval Staff and specified the rules and regulations that would govern the grant of PC to the female officers opening a path of female officers to getting a PC. 

CHAPTER IX of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963 contains regulation number 203 which grants PC to SSC officers: 

(1) Subject to the availability of vacancies in the stabilised cadre of the Navy, Permanent Commission may be granted from time to time to Short Service Commission Officers of the rank of Sub-Lieutenant and above who are considered suitable and are recommended by the Chief of the Naval Staff.

(2) Officers granted Permanent Commission may be transferred with their existing rank and seniority. The retention of any acting rank held by an officer at the time of transfer to a Permanent Commission shall be governed by Regulation 202.

(3) Short Service Commission Officers selected for the grant of Permanent Commission in the Navy shall conform to the medical standard laid down by the Chief of the Naval Staff from time to time.[4] 

Ultimately, no female officers were granted PC upon completion of their SCC. The most they were offered was an extension of their SCC.SSC women officers in the batch of cases before the High Court and the AFT, who were at the time in service were considered for the grant of PCs based on the vacant position as on the date of judgments of the Delhi High Court and the AFT or as it stood at the time, whichever was higher.

Finally, in September 2008, a policy letter was issued anticipating a pending High Court Judgement, in which the Union Government granted a chance of obtaining a PC in the Armed Forces on a restricted basis. There were two major restrictions: 

1) The policy was prospective and not retrospective. It means that women will be offered a PC only post-September 2008. 

2) The PC would be offered only to specific cadres and branches viz. Judge Advocate General cadre, Naval Constructor cadre, Education branch, unlike the notification of 1998 that allowed PC to female officers in all the four branches of the Navy.

In Lt. Cdr. Annie Nagaraja & ors. v Union of India, the Delhi high court held that SSC officers of the navy who had opted for but were not granted permanent commission should be granted permanent commission within a period of six weeks though they had attained the age of retirement during the pendency of the petitions. The AFT differed from the decision of the high court and stated that since it does not have enough materials to decide the grant of permanent commission this decision will be left to the relevant authorities. But the AFT held that until a decision came about the women could continue as SSC officers on existing terms and conditions as applicable. The respondents appealed against this order in the Supreme Court. The court held that the provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside. 

All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs. The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs based on the vacant position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher. 

The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts. 

The Indian Air Force

Section 12 of the Indian Air Force Act, 1950 made women officers ineligible to work in the Air Force except in such corps, department, branch or body forming part of or attached to the Air Force as the Central Government may, by notification, specify in this behalf.

In November 1991, the central government made it eligible by notifying the wings of the Air Force where females could be enrolled or employed. All of them were employed on short service commission and not on a permanent commission.

The Division Bench considered entitlement of women officers, granted short service commission in the Indian Air Force and the Army; pertaining to their claim of the commission being converted to a permanent commission. It was noted by the Division Bench that the women officers, who were petitioners before it, had joined the Air Force and the Army as Short Service Commissioned Officers, initially for a period of 5 years, which was extended from time to time, to a maximum of 14 years.

Wg. Cdr. Jasmine Kaur was one of the first female officers to file a writ petition for the female officers on SSC to be eligible for the grant of PC. (Jasmine Kaur vs. Union of India WP (C) 8492/2009). In 2010, the case was adjudicated in favour of granting PC to women officers, thus, paving the way forward.

The Indian Army 

Section 12 of the Army Act, 1950 made women officers ineligible for enrolment or employment. The Union Government, in January 1992, made amends making women eligible in certain cadres/branches of the Army on Short Service Commission. These were: 

(i) Army Postal Service;

(ii) Judge Advocate General’s Department;

(iii) Army Education Corps;

(iv) Army Ordinance Corps (Central Ammunition Depots and Material Management);

(v) Army Service Corps (Food Scientists and Catering Officers).

By another notification, in December 1992, women were made eligible to enrol in five more branches, namely: 

• Corps of signals
• Electrical and mechanical engineering
• Engineers
• Intelligence corps
• Regiment of artillery.

In 2003, practising advocate Babita Puniya filed a writ petition in the form of a public interest litigation pleading the court to grant permanent commission to women officers who were enrolled on short service, citing the gender inequalities in the Army. A number of other petitions from the armed forces seeking the same end joined hands with this petition. 

The Women Special Entry Scheme (WSES) was a scheme under which recruits had a shorter pre-commission training than their male counterparts who were commissioned under the Short Service Commission (SSC) scheme. In 2005, the Ministry of Defence issued a notification extending the validity of appointment schemes for women officers. The notification also ceased the existence of WSES, thus, making women eligible to be inducted into the armed forces through SSCs just as their male counterparts.

In July 2006, the president sanctioned two circulars that granted the women then serving under the WSES scheme a chance to move to the SSC scheme. And, women serving under the SSC scheme were allowed to serve for a maximum of 14 years tenure. On 16th October, Major Leena Gaurav moved to the court challenging the July 2006 notification, seeking PC for women officers. Lt. Col. Seema Singh also, in 2007, approached the court regarding the same issue.

In 2008, the Centre granted permanent commission to women officers prospectively in only two departments- Army Education Corps and Judge Advocate General. Major Sandhya Yadav and others challenged this act that offered PC to only prospective candidates and that too only in two departments. In March 2010, Delhi High Court combined all the pending petitions together and held that women who were already serving under SCC should be offered PC after 5 years of service along with all other consequential benefits within 2 months of the order. This was challenged by the Army in the SC but all its efforts went in vain as the court upheld the Delhi High Court’s order. Later, in September 2011, an appeal was made in the Supreme Court where the court held the order of the questioned judgement to be continued. 

In February 2019, the union government issued an order granting PC to women in eight combat support services but only prospectively. Thus, the main issue raised in Secretary, Ministry of Defence v. Babita Puniya & ors. was whether women already working in the army should be eligible to acquire permanent commission and whether the guidelines issued by the central government in 2019 February should be upheld.

The Supreme Court, finally in February 2020, directed the Union Government the following:

1. Every woman officer working on a SSC basis, disregarding whether for 14 years or 20 years, should be considered for granting of PC.
2. Women who do not opt for PC, or who do not get appointed on PC, shall be given the opportunity to continue serving up to 20 years of pensionable service can be achieved, being only a one-time advantage for the latter.
3. All the women who are not granted PC after 20 years of service, can retire on pension terms.
4. The clause “various staff appointments only” in para 5 and 6 shall not be enforced.
5. The women officers on SCC, upon being offered PC, shall be able to work out all their options for being considered for the grant on the same terms as their male counterparts, along with being accredited to all consequential benefits.

Thus, it can be said that this judgement has granted all women the right to being on par with their male counterparts by being offered PC in all the ten branches of the Indian Army.

Conclusion

The Armed Forces, Army, Navy and Air Force, are the defence of our country. They fight every day, every hour, every second of their lives for the protection of our nation. Above all this responsibility, it was absolutely superfluous for them to fight against this kind of discrimination. The women officers can now take a sigh of relief as they have defeated this sex stereotype prevailing in our country since time immemorial. They have paved the way for all the women, irrespective of being in the armed forces or not, to be sanguine in their everyday lives. 

Moreover, this sex stereotype of believing that men are superior to women in all aspects, makes it more difficult for women as a community to emerge victoriously. The women of the Armed Forces are incontrovertibly viewed as role models for all women and the Supreme Court along with the Union Government have played a stimulating character in achieving this end. This occurrence sure invigorated me to voice up against injustices not just against myself, but also those against society. Hope it does you too.

References

1. Section 12 of The Air Force Act, 1950
2. Section 9(2) of The Navy Act, 1957
3. Section 12 of The Army Act, 1950
4. Regulation 203 of the Naval Ceremonial, Conditions of Service and Miscellaneous Regulations, 1963
5. Indiankanoon.com
6. Casemine
7. www.jlsrjournal.in
8. www.firstpost.com
9. www.drishtiias.com
10. www.thehindu.com

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