Shruti Vyas & Ors. v. Union of India & Anr.

48. Further, on 26th September 2008, the Respondents issued a circular envisaging the grant of Permanent Commission prospectively to SSC Women Officers in the JAG Department and the Army Education Corps. Subsequently, on 25th February 2019, the Respondents granted Permanent Commission to SSC Women Officers in the remaining eight (08) arms. This Court in Babita Puniya (supra)8 has held that the grant of Permanent Commission to all ten (10) streams (including JAG) is ‘is a step forward in recognizing and realizing the right of women to equality of opportunity in the Army’.

49. Also, while making women officers eligible for appointment in such streams, no notification has been published in the official gazette laying down the ‘extent of induction’. It is settled law that ‘when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden’ [See: Taylor v Taylor[9], Nazir v King Ministry of Defence v Babita Puniya, (2020) 7 SCC 469 [L.R.] 1 Ch. 426 Emperor10, Babu Verghese v Bar Council of Kerala11]. Accordingly, there is no basis to say that women can be appointed ‘only up to a certain extent’ in such streams.

50. Consequently, this Court is of the view that once the Service Headquarters decides to induct women officers in a particular branch or corp by way of a Notification under Section 12 of the Army Act, 1950, it cannot restrict their numbers and/or make a reservation for male officers by way of a policy or administrative instruction under the guise of ‘extent of induction’. Accepting the submission of the Respondents would amount to ‘setting at naught’ the Notification issued under Section 12 of the Army Act, 1950.” 7.[6] The ambit and import of these paragraphs are clear and categorical. In respect of corps, departments, or streams of the Army, which stand notified under Section 12 of the Army Act12 as streams in which women could also be recruited, the percentage of women could not be restricted, nor could reservation for male candidates be permitted, by way of an advertisement or executive instruction. It is further clarified, by the Supreme Court, that Section 12 of the Army Act does not permit specification of any extent to which women could be inducted into the notified streams, corps or branches. 7.[7] These paragraphs deal specifically with appointment as SSC officers. The Supreme Court has identified ten streams in the Army, which stand notified under Section 12 of the Army Act, and to which women officers would be eligible to gain entry, as enumerated in para AIR 1936 PC 253

12. Ineligibility of females for enrolment or employment. – No female shall be eligible for enrolment or employment in the regular Army, except in such corps, department, branch or other body 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 this behalf: Provided that nothing contained in this section shall affect the provisions of any law for the time being in force providing for the raising and maintenance of any service auxiliary to the regular Army or any branch thereof in which females are eligible for enrolment or employment. 45 of the report. The Supreme Court, thereafter, has proceeded to hold in para 46 that appointments of women to these ten streams are limited to Combat Support Arms and Services and not to Combat Arms like Artillery, Armoured Division and Mechanised Infantry. The same paragraph goes on to qualify that women could not insist on being enrolled to Combat Arms such as Artillery, Armoured Division and Mechanised Infantry but that, for the remaining 10 streams which were limited to Combat Support Arms and Services, as the Notifications dated 30 January 1992 and 31 December 1992 issued under Section 12 of the Army Act permitted entry for women without specifying any extent of induction, there could be no constitutional restriction on the number of women who could be recruited to these corps or services. It stands further clarified that Section 12 of the Army Act only empowers notification of corps or services into which women could be inducted and does not thereafter permit restriction of the number of women who could be inducted there into. 7.[8] We are aware that our observations are somewhat repetitive, but we regard the cause as sufficiently important to justify the repetition. Our obligations, vis-à-vis the Supreme Court, are not restricted to Article 141, but also encompass Article 144. It is the constitutional duty of every executive and judicial authority, in the territory of India, to act in aid of the Supreme Court. This would include ensuring that the law declared by the Supreme Court, especially where it is aimed at social emancipation and in which public interest is deeply ingrained, is implemented to optimum effect. Elimination of the anachronistically artificial chromosomal distinction between women and men is a cherished constitutional goal, and the Supreme Court has, especially in recent times, been, through one judicial pronouncement after another, been pushing the envelope to the maximum possible extent. We have to carry the torch forward. 7.[9] Mr. Singh, learned counsel for the petitioner, submits that the case of his client is squarely covered by the afore-extracted paragraphs from Arshnoor Kaur and we entirely agree.

7.10 The learned ASG, ably assisted by Mr. Satya Ranjan Swain, learned CGSC, sought to submit that the dispute before the Supreme Court in Arshnoor Kaur was restricted to induction into the JAG. For this purpose, reliance has been placed on paras 110 and 114 of the Arshnoor Kaur, which reads thus:

The learned ASG would submit that Arshnoor Kaur has to be understood as limited to the issue which was before the Supreme Court, which was induction of women into the JAG branch, and cannot be generalized.

7.11 The learned ASG further submits that if paras 45 to 50 of Arshnoor Kaur are to be read in absolute fashion, as Mr. Singh would seek to contend, they would run contrary to the law laid down by the Supreme Court in Babita Punia. He submits that in Babita Puniya, the Supreme Court had recognized the advisability of courts steering clear of policy decisions in the matter of recruitment into the Armed Forces. He submits that there is no reference to Babita Puniya in paras 45 to 50 of the decision in Arshnoor Kaur, and that applying the principle of stare decisis, the Court has to read these paragraphs in the light of the issue which was before the Supreme Court i.e., entry into the JAG.

7.12 The learned ASG further submits that the policy of restricting the number of women who could enter into the Armed Forces through the SCC was sound and wholesome as it factored in considerations of combat operational preparedness, and the possibility of the inductees having to be engaged in dangerous insurgency operations and the like. Such policy matters, he submits, are typically terra nullius for courts and should be left to the policy makers.

7.13 We are not in a position to accept these submissions, inter alia because the very same submissions were advanced before the Supreme Court, and comprehensively addressed in Arshnoor Kaur.

7.14 Besides, Arshnoor Kaur, has taken note of and, in fact, placed reliance on, Babita Puniya. Once an earlier decision of the Supreme Court, irrespective of the strength of the Bench which had rendered it, is considered in a later decision, the Court is bound by the later decision of the Supreme Court. Else, it would amount to this Court holding that the Bench that rendered Arshnoor Kaur had not correctly understood Babita Puniya or that Arshnoor Kaur is per incuriam Babita Puniya. A three-Judge Bench of the Supreme Court has already held in South Central Railway Employees Co-operative Credit Society Employees Union v B. Yashodabai13 that no court, lower in the judicial hierarchy in the Supreme Court, can hold a judgment of the Supreme Court to be per incuriam.

7.15 As Babita Puniya has been considered and examined in Arshnoor Kaur, therefore, we are bound by the enunciation of law in Arshnoor Kaur.

7.16 The submission regarding combat preparedness, possibility of having to engage in the insurgency operations and the like stands specifically addressed in para 46 of the decision in Arshnoor Kaur. In that case, the Supreme Court has identified ten corps and services within the Army, as notified by the Notifications dated 30 January 1992 and 31 December 1992 under Section 12 of the Army Act which cannot be regarded as Combat Armed Services and are merely Combat Support Armed Services. So far as these ten categories of streams or corps are concerned, therefore, the Supreme Court has dealt with the very same argument that has been advanced by the learned ASG and has rejected it in para 46 of the report.

7.17 It is also important to remember, in this context, that the Supreme Court, as the supreme judicial authority for the nation, is not merely the arbiter of disputes and ultimate interpreter of the law. It also functions as the sentinel on the qui vive, as the supreme guardian of the fundamental rights guaranteed by Part III of the Constitution. Among the most pristine of these fundamental rights is the right to gender neutrality. In the discharge of its functions as the sentinel on the qui vive, the Supreme Court is unshackled by considerations of the limits of the lis before it. Where the Supreme Court lays down the law on matters of policy, gravely impacting fundamental rights, it would be folly, on the part of any Court, to restrict it to the lis with which the Supreme Court was concerned.

7.18 In para 46 of Kalpana Mehta v UOI14, the Supreme Court held:

7.19 We, therefore, are of the opinion that the controversy in issue is squarely covered by the decision in Arshnoor Kaur, which binds us.

8. The plea of estoppel 8.[1] One other submission that was advanced by the learned ASG was that, having participated in the selection with full knowledge of the fact that only 16 vacancies were reserved for women, the petitioners cannot now seek to be inducted against the vacancies which were reserved for men. Mr. Singh correctly points out that this aspect also stands covered by the following paragraphs from the decision in Arshnoor Kaur, which reads thus:

AIR 1958 SC 419

AIR 1959 SC 149 on that I am not expressing any opinion — to recover compensation or damages for the improvements bona fide made or the loss incurred, having regard to the circumstances of a particular case. These considerations, in my view, are of no relevance in considering the question of waiver in the context of fundamental rights. By express provisions of the Constitution, the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not, therefore, expected to enforce any right contrary to the constitutional prohibition on the ground that the party waived his fundamental right. If this prohibition is borne in mind, no occasion can arise when the State would be prejudiced. The prejudice, if any, to the State would be caused not by the non -application of the doctrine of waiver but by its own action contrary to the constitutional prohibition imposed on it.” 8.[2] Dr (Major) Meeta Sahai v State of Bihar18 also addressed an objection of estoppel, raised by the respondent before the Supreme Court, and held as under:

process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.

16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v State of Bihar19, observing as follows:

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” 8.[3] Where, therefore, the challenge is on the ground of invidious discrimination, and violation of constitutional principles, and is found by the Court to be substantial, the plea of estoppel by participation must be consigned to oblivion.

9. The learned ASG fervently urged that the Government was committed to ensuring complete gender neutrality and that, towards this end, progressive steps are being made. We have absolutely no reason to doubt the truth of this assertion. We earnestly hope that this decision would act as an aid to the executive in ensuring the perpetuation and propagation of our cherished constitutional goals. Conclusion

10. We, therefore, direct that the petitioners be considered against the 62 unfilled vacancies of men, as there could have been no limitation on the number of women who could be entitled to recruitment against the corps and services identified in para 45 of Arshnoor Kaur. Needless to say, however, the petitioners would not be entitled for induction into any other corps or services, other than the corps or services, which are identified in para 45 of the decision in Arshnoor Kaur.

11. A closing caveat 11.[1] Maj. Anish Muralidhar, who ably assisted the learned ASG and Mr. Swain and has, we must acknowledge, been of considerable assistance to us in ensuring dispensation of justice in the present roster, points out that the actual identification of the streams to which the candidates would be deployed or posted takes place only after training. As such, it is submitted that, before training commences, it is not possible to identify as to whether the petitioners would in fact be suitable for deployment against one of the ten corps or service identified in para 45 of Arshnoor Kaur. 11.[2] Though we feel that this is an aspect which should have been taken up before the Supreme Court when it rendered Arshnoor Kaur, Mr. Indra Sen Singh also agrees that the right of the petitioners for deployment would only be against one or more of the ten categories of corps and services notified under Section 12 of the Army Act and identified in para 45 of Arshnoor Kaur. 11.[3] We, therefore, clarify that the entitlement of the petitioners to appointment and deployment against the remaining 62 unfilled vacancies of men would be conditional upon their being found suitable for deployment against one or more of the identified corps and services identified in para 45 of the decision in Arshnoor Kaur.

12. As one of the issues that may arise is regarding the petitioners satisfying the age requirement for the post, we clarify that the benefits of this judgment would be available to those petitioners who were within the prescribed age on the date of declaration of the result.

13. If there are any pre-training formalities such as medical clearance, which are required to be fulfilled, it goes without saying that the petitioners would be required to fulfil them, before undergoing training.

14. Needless to say, should the petitioners qualify and be selected, they would be entitled to all other consequential reliefs as available in law.

15. The petition is allowed in the aforesaid terms.

C. HARI SHANKAR, J.

OM PRAKASH SHUKLA, J. SEPTEMBER 16, 2025