SC terms woman military officer’s 1988 discharge ‘illegal’: How courts have ruled for women in armed forces

What is this case?

Former permanent commissioned officer Lt. Selina John, of the MNS, was released from employment in 1988 on grounds of her marriage.

The MNS is an integral part of the Armed Forces Medical Services (AFMS), which includes the Army Medical Corps (AMC) and Army Dental Corps (ADC). AFMS personnel serve in India’s medical establishments and its officers have played a role in United Nations peacekeeping missions abroad.

John then approached the Armed Forces Tribunal, Regional Bench, Lucknow, which called the termination “illegal” and directed her reinstatement with back wages. However, the Central government then moved the SC to challenge this order (‘Union of India & Others vs. Ex. Lt. Selina John’).

What did the Supreme Court say?

Dismissing the Centre’s challenge, the Supreme Court said on February 14 that John’s release from the service was “wrong and illegal”. The government has been directed to pay Rs 60 lakhs to her within eight weeks.

The court also rejected the Centre’s argument, based on a rule in force at the time. “This rule, it is accepted, was applicable to only women nursing officers. Such rule was ex facie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality,” the court said.

That rule – Army Instruction No. 61 of 1977 titled “Terms and Conditions of Service for the Grant of Permanent Commissions in the Military Nursing Service” – was later withdrawn by a letter dated August 29, 1995.

It governed the terms and conditions of MNS. Clause 11 dealt with the termination of an appointment on certain grounds. These included “being pronounced by a medical board to be unfit for further service in the Armed Forces”; getting married; misconduct; breach of contract, or if services are found unsatisfactory.”

What is the process of recruiting women military officers?

A permanent commission in the Indian Army means a career until the age of retirement. Whereas, Short Service Commission jobs are for a few years. In some SSCs, a few officers get to opt for permanent commissions based on available vacancies.

In 1992, the Indian Army first allowed women officers to be inducted. They were commissioned for five-year periods in certain streams, like the Army Education Corps and the Corps of Engineers.

Recruitment was then done under the Women Special Entry Scheme (WSES). It had shorter pre-commission training periods than those stipulated for men commissioned under the SSC scheme. Men were commissioned for 10-year periods, which could be extended up to 14 years.

In 2006, the WSES scheme was replaced by the SSC scheme for women. Existing WSES officers were given the option to move to the new scheme. Again, their options were limited to a few streams. For instance, the infantry and armoured corps were not open to them.

How has the SC acted in favour of women officers in the military?

On February 17, 2020, a bench of then Supreme Court Justice DY Chandrachud and Justice Ajay Rastogi upheld the demands of women in the SSC (‘Secretary, Ministry of Defence vs. Babita Puniya’). The court said that seeking a Permanent Commission or a full-length career was “justified”.

“A decade and more spent in litigation, women engaged on Short Service Commissions in the Army seek parity with their male counterparts in obtaining PCs,” the court observed. It added that even 70 years after the “birth of a post-colonial independent state, there was a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution.”

Before the ruling, only male SSC officers could opt for permanent commission after 10 years of service. Hence, women could not qualify for a government pension, which is conferred only after 20 years of service as officers.

With this decision, the SC brought women officers in 10 streams of the Army on par with their male counterparts, setting aside long-standing objections of the government.

The Centre argued that the issue was a matter of policy, adding that Article 33 of the Constitution allows fundamental rights to be restricted when it comes to the armed forces. It also argued that there were “dangers involved in serving in the army” and adverse service conditions including “absence of privacy in field and insurgency areas, maternity issues and child care”.

The case was first filed in the Delhi HC by women officers in 2003 and the HC awarded Permanent Commissions to women officers in all branches where they were serving in 2010. Still, the order was not implemented and was challenged by the Centre in the SC.

What happened after the SC’s decision?

Following the 2020 ruling, the Army constituted the Number 5 Selection Board, directing the Army to induct all eligible female officers as permanent commission officers. The special board came into effect in September 2020, led by a senior general officer. It also includes a woman officer of the rank of brigadier.

Here, women officers qualifying for the screening process will be granted PC status, subject to being in the acceptable medical category. However, The Indian Express reported that while military nurses marched in this year’s Republic Day parade for the first time, they were still denied the status of ex-servicemen.

A former MNS officer argued that this would mean “effectively killing their re-employment opportunities in civil services, for their right to age relaxation and job reservations meant for ex-Military personnel. This is particularly hard on those young MNS officers who had to leave the service after the Short Service Commission… and wish to re-employ civil services as livelihood,” she said.

Earlier this month, a division bench of the Punjab and Haryana HC ruled that MNS officers cannot be denied ex-serviceman status under the Punjab Recruitment of Ex-Servicemen Rules, 1982. Under this, officers who were released from service on completion of their term with a gratuity (as SSC officers do), are categorised as ex-servicemen.

It noted that MNS members have been serving the nation, including in extremely difficult situations like unfavourable weather conditions at high altitudes.