WG CDR A U TAYYABA (RETD) AND OTHERSversusUNION OF INDIA AND OTHERS

800                       [2022]
               SUPREME COURT     8 S.C.R. 800
                              REPORTS                       [2022] 8 S.C.R.


A             WG CDR A U TAYYABA (RETD) AND OTHERS
                                       v.
                      UNION OF INDIA AND OTHERS
                        (Civil Appeal Nos 79-82 of 2012 )
B                                November 16, 2022
               [DR. DHANANJAYA Y CHANDRACHUD, CJI,
                 HIMA KOHLI AND J B PARDIWALA, JJ.]
             Armed Forces: Permanent Commission – Claim for, by Women
      Short Service Commissioned Officers (SSCO) – The Delhi High Court
C     in its lead judgment in *Babita Puniya v. Secretary & Anr, issued
      specific directions for considering Women SSCO in the Air Force
      and in the Army for the grant of Permanent Commission (PC) –
      Indian Air Force implemented the said judgment only for those
      officers who were in service as on 12 March 2010 or those retired/
D     released officers who were not in service as on 12 March 2010 but
      had filed writ petitions before their release – Appellants were left
      out from the reinstatement plan of IAF as they were released from
      service prior to 12 March 2010 – Appellants unsuccessfully
      challenged the manner of implementation of decision in *Babita
      Puniya v. Secretary & Anr. – On appeal, Held: Para 61(3) of the
E     judgment of the Delhi High Court provided that Women SSCOs of
      the IAF who had opted for PC but were not granted PC but allowed
      only an extension of their Short Service Commissions were entitled
      to PC at par with men SSCOs with all consequential benefits – It
      covers only two categories (i) Serving women SSCOs as on the date
F     of the judgment (ii) Women SSCOs who had instituted writ petitions
      before the High Court but who had retired during the course of the
      pendency of the petitions – Hence, submission of appellants of
      including them in reinstatement plan of IAF cannot be accepted as
      they did not fall into any of the above two categories – However, as
      a matter of fact entire litigation was pursued in the form of a PIL –
G     Appellants had a legitimate expectation since the respondents by
      their representations in the policy circular dated 25 November 1991
      and in published advertisements created expectations among the
      women SSCOs regarding the grant of PC on completion of five years
      of service – The women SSCOs continued to be under a legitimate
      expectation that their extended SSC tenure would be converted into
H
                                      800
           WG CDR A U TAYYABA (RETD) AND OTHERS v.                      801
                        UNION OF INDIA


a PC as they were induced in service with a specific representation     A
of being considered for PC – Hence, appellants should be considered
for the grant of pensionary benefits as the reinstatement in service
is not a viable option having regard to the exigencies of service –
This direction emanate in exercise of the jurisdiction of this Court
u/Art.142 of the Constitution of India to bring about complete and
                                                                        B
substantial justice and remove the pernicious effects of gender
discrimination which had taken place in the past in the Indian Air
Force – Directions passed – Legitimate expectation – Constitution
of India – Art.142.
      Disposing of the appeals, the Court
                                                                        C
       HELD: 1. Paragraph 61(3) of the judgment of the Delhi
High Court provided that women SSCOs of the IAF who had opted
for PC but were not granted PC but allowed only an extension of
their Short Service Commissions were entitled to PC at par with
men SSCOs with all consequential benefits. PC was to be offered
to them after the completion of five years. This will cover             D
consequential benefits including promotion and other financial
benefits. However, the benefits were to be made available only
to those women officers who were in service and to those who
had approached the High Court by filing petitions though they
had retired during the course of the pendency of the petitions.         E
The directions of the Delhi High Court in its judgment dated 12
March 2010 envisaged that the benefits were to be made available
to those “women officers in service who had instituted
proceedings before the High Court and had retired during the
pendency of the writ petitions”, and that by virtue of direction
(iv), it was envisaged that those women officers who had not            F
attained the age of superannuation for PC officers would be
reinstated with all consequential benefits. Hence, it is not possible
to accept the wider submission which has been urged on behalf
of the appellants that they were expressly covered by para 61 of
the Delhi High Court decision. [Paras 20, 25, 26][815-C-D; 816-         G
G-H; 817-A-D]
      2. The entire litigation initially was pursued in the form of a
PIL which was moved by an advocate. During the pendency of
the proceedings, officers of the Air Force and the Army joined in
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802            SUPREME COURT REPORTS                      [2022] 8 S.C.R.


A     the proceedings. The appellants are all officers who are in service
      since their initial appointments in 1993. In terms of the policy
      circular which held the field as well as the advertisements in
      pursuance of which they were recruited, they were under a
      legitimate expectation that they would be considered for the grant
      of PC at the end of five years. However, they were not offered
B
      PC and were instead granted extensions in service. [Para 28][817-
      E-G]
             3. In the present case, the appellants had a legitimate
      expectation since the respondents by their representations in
      the policy circular dated 25 November 1991 and in published
C     advertisements created expectations among the women SSCOs
      regarding the grant of PC on completion of five years of service,
      subject to vacancies and suitability. All the women officers were
      eligible to be considered for grant of PC between years 2000 to
      2003, but they were only given an extension of SSC in teeth of
D     the legitimate expectation which was held out in the initial terms
      and conditions of appointment. The male counterparts of the
      appellants were considered for and granted PC after their five
      years of service. The women SSCOs continued to be under a
      legitimate expectation that their extended SSC tenure would be
      converted into a PC as they were induced in service with a specific
E     representation of being considered for PC. The Delhi High Court
      in the *Babita Puniya judgment dated 12 March 2010 had also
      applied the doctrine of legitimate expectation and observed that
      the doctrine of legitimate expectation, grounded in the rule of
      law, required regularity, predictability and certainty in government
F     dealings with the public, operating on procedural and substantive
      matters. Most of these officers joined service between 1993
      and1998 and were eventually released from service between
      December 2006 and 2009. They have put in long years of service
      for the IAF. During the course of the hearing, the Court has been
      fairly apprised on behalf of the Air Force authorities that the
G     officers have an excellent track record. [Paras 30, 31][818-C-G]
            4. This batch of officers who moved the Delhi High Court
      soon after the decision in *Babita Puniya and within a reasonable
      period from the date of their release should not be denied the
      benefit which emanates from that judgment. At the same time,
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            WG CDR A U TAYYABA (RETD) AND OTHERS v.                       803
                         UNION OF INDIA


the Court cannot be oblivious of the fact that the officers have          A
been released from service on diverse dates between December
2006 to December 2009. Reinstatement in service would not
therefore be a viable option particularly having regard to the
exigencies of service in an armed force of the nation. However,
following the logic of the earlier decision of this Court in Secretary,
                                                                          B
Ministry of Defence v. Babita Puniya, the officers should be
considered for the grant of pensionary benefits. [Para 32][818-
H; 819-A-B]
      5. Directions: i. All the women SSCOs governed by the
present batch of cases shall be considered for the grant of one-          C
time pensionary benefits on the basis that they have completed
the minimum qualifying service required for pension; ii. The cases
of the appellants shall be evaluated on the basis of the HRP dated
19 November 2010 bearing Part No 5; and iii. The officers who
are found eligible for the grant of pensionary benefits in terms of
the present direction shall not be entitled to any arrears of salary,     D
but the arrears of pension shall be payable with effect from the
date on which the officers are deemed to have completed twenty
years of service; iv. This Court dismissed several other petitions
filed by officers who had moved the Delhi High Court after a
considerable degree of delay following their release from service;        E
and v. In the present batch of cases, there are three officers who
have scored QRs between 6.29 and 6.41. The case of these
officers shall be considered sympathetically by the Air Force
authorities on the same footing. [Para 34][820-C-F]
      *Babita Puniya v. Secretary & Anr (2010) 168 DLT                    F
      115 (DB); Secretary, Ministry of Defence v. Babita
      Puniya and Others (2020) 7 SCC 469 : [2020] 3 SCR
      833; State of Jharkhand v. Brahmputra Metallics Ltd.,
      Ranchi Civil Appeal Nos. 3860-3862 of 2020; 2020
      SCC OnLine SC 968; Lt. Col. Nitisha and Others v.
      Union of India WP(C) No. 1109 of 2020; 2021 SCC                     G
      OnLine SC 261; Union of India v. Lt. Cd. Annie
      Nagaraja (2020) 13 SCC 1 : [2020] 10 SCR 433 –
      relied on.

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804             SUPREME COURT REPORTS                             [2022] 8 S.C.R.


A                               Case Law Reference
      [2020] 3 SCR 833                    relied on                  Para 12
      [2020] 10 SCR 433                   relied on                  Para 32
            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.79-82
B     of 2012.
            From the Judgment and Order dated 11.08.2011 of the High Court
      of Delhi at New Delhi in Wp (C) No.5073 and 5077 of 2010 and dated
      27.09.2011 in Review Petition No.546 and 550 of 2011 in WP (C) No.5073
      and 5077 of 2010.
C            With
             Civil Appeal Nos.192-196, 83-84 And 5164 of 2012.
            Ms. Meenakshi Arora, R. Balasubramanina, Sr. Advs., Ms. Anshula
      Vijay Kumar Grover, Rakesh Kumar, Ms. Archana Pathak Dave, Ms.
D     Chitrangda Rastravara, Avnish Dave, Pramod Kumar Vishnoi, Aishwary
      Mishra, Dashrath Singh, Ms. Gunjan Negi, Shiv Autar Singh Sengar,
      Manvendra Singh, Abhijeet Singh, Aditya Pratap Singh Chauhan, K.
      Parameshwar, Ms. Arti Gupta, Ms. Garima Sachdeva, Deepak Goel,
      Sudhanshu S. Pandey, Gaichangpou Gangmei, Arjun D. Singh, Yashvir
      Kumar, Santosh Kr., Akshay Amritanshu, Mohd. Akhil, Sachin Sharma,
E     Arvind Kumar Sharma, Anupam Raina, Sridhar Potaraju, Advs. for the
      appearing parties.
             The Judgment of the Court was delivered by
             DR. DHANANJAYA Y CHANDRACHUD, CJI
F            1. The batch of appeals which forms the subject matter of the
      present dispute emanates from a judgment of the Delhi High Court dated
      11 August 2011. The High Court in its lead judgment dated 12 March
      2010 in BabitaPuniya’s case1 issued specific directions for considering
      women Short Service Commissioned Officers2in the Air Force and in
      the Army for the grant of Permanent Commission3. Following the decision
G     of the Delhi High Court in BabitaPuniya, a batch of writ petitions under
      Article 226 of the Constitution of India came to be instituted before the

      1
        BabitaPuniya v. Secretary &Anr, (2010) 168 DLT 115 (DB)
      2
        “SSCOs”
      3
H       “PC”
          WG CDR A U TAYYABA (RETD) AND OTHERS v.                              805
     UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


Delhi High Court seeking the benefit of the BabitaPuniya judgment.             A
The Delhi High Court by its judgment dated 11 August 2011 dismissed
the batch of six writ petitions. The High Court held that the petitioners
who had moved the specific proceedings were not covered by the
directions contained in Paragraph 61 of the earlier decision in Babita
Puniya. This batch of appeals has questioned the manner in which the
                                                                               B
decision of the Delhi High Court in Babita Puniya has been implemented
by the Indian Air Force.
        Brief Background
        2. The appellants are women officers who joined the Indian Air
Force4 as SSCOs between 1993 and 1998.They were appointed in terms
of a circular dated 25 November 1991 issued by the IAF which provided          C
that the officers would initially be granted Short Service Commission5
for a period of five years, at the end of which they would be considered
for the grant of Permanent Commission6subject to suitability and
availability. The circular noted that women officers who were unwilling
to opt for PC but sought extension would be granted an extension for six       D
years. The terms and conditions, as referred to in paragraph 4 of the
Circular dated 25 November 1991, specified the tenure of engagement
in the following terms:
        “Clause 5: Tenure of Engagement: Initial engagement period
        would be for 5 years from the date of commissioning. On
                                                                               E
        completion of this period, the officer may opt for PC or another
        SCC tenure of 6 years. The officers seeking such extension
        will not be eligible for PC. Grant of extension or PC would
        be subjected to suitability and requirement of the Air Force.
        Clause 6: Permanent Commission: SSC Officers granted PC
        will beeligible for all benefits/privileges, which are admissible      F
        to theregular PC Officers”
        3. The Indian Air Force issued advertisements pursuant to the
policy circular inviting applications from women to join as SSCOs, with
a representation that the women officers would be initially granted SSC
for a period of 5 years, but at the end of tenure, PC would be granted         G
subject to vacancies and suitability of the officer. The relevant portion of
the advertisement is extracted below :
4
  “IAF”
5
  “SSC”
6
  “PC”
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806             SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A           “A Unique opportunity for dynamic young girls: march to a
            new horizon as a commissioned officer in the Indian Airforce
            training:
            …
            TENURE OF ENGAGEMENT: Initial engagement would be
B
            for a period of 5 years from the date of commissioning with
            the provision to opt for PC or another tenure of six years.
            Grant of permanent commission depend upon vacancy and
            suitability of the officer.”
            CAREER PROSPECTS: SSC Officers will be entitled for
C
            promotion under conditions as applicable to Permanent
            Commissioned officers of Non-Tech Ground Duties
            Branches.”
            4. However, after rendering five years of service, the authorities
      offered an extension of a period of six years to all the women officers,
D
      including the appellants. Their cases for the grant of PC were not
      considered at that stage. However, the Indian Air Force, considered
      only male officers for PC. Women were excluded.
             5. In 2003, a Public Interest Litigation was instituted before the
      High Court of Delhi by Babita Puniya, an advocate, for the grant of PC
E
      to women SSC Officers, highlighting the gender discrimination being
      meted out to women officers in the armed forces. Some of the SSCOs
      belonging to the Army and the Air Force were also impleaded as co-
      petitioners through various writ petitions. However, the appellantshad
      not filed any writ petitions during these proceedings.
F
            6. On 10 September 2004, a policy was promulgated for the grant
      of PC to SSCOs with a rider that “Permanent Commission” would not
      be offered to Women Short Service Commission Officers.
             7. By a policy issued in 2006, the respondents decided to stop PC
G     to all SSCOs irrespective of gender, due to cadre management
      considerations. On 25 May 2006, a policy was issued by which provision
      of PC to male officers was discontinued and the stipulation of women
      officers for consideration of PC as mentioned in the policy circular of
      1991 was withdrawn. The policy circular dated 25 May 2006 only
      provided for a further extension of Commission to SSCOs. The
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            WG CDR A U TAYYABA (RETD) AND OTHERS v.                           807
       UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


corresponding Human Resources Policy7specified the Qualitative                A
Requirements8 for extension of service. Accordingly, the QR for grant
of a second extension of service was increased from a minimum average
of 6.5 to 7.0 in the last three annual reports.
       8. In terms of the HRP dated 25 May 2006, some of the appellants
qualified and were granted a second extension of Short Service                B
Commission for the period 2003-2008, and were later released during
the period between 2007 and 2010, having rendered the maximum
permissible service. Some of the appellants could not be considered for
second extensions since they did not meet the higher QR of getting a
minimum average of 7.0 in their last three years, and were released
after serving the IAF for 11 years between the years 2007 and 2009.           C

       9. Finally, on 26 September 2008, the President of India sanctioned
a policy decisionto offer PC prospectively to women officers across the
three armed forces in select branches, specifically the JAG Department
and the Army Education Corps of the Army and their corresponding
branches in the Indian Navy and Air Force, along with the Accounts            D
Branch of the Air Force and Naval Constructor in the Indian Navy.
      10. In Babita Puniya’s case, the Division Bench of the High
Court of Delhi decided all the writ petitions by a judgment dated 12
March 2010. The principal grievance of the women SSCOs was that by
denying them PC, they had been subjected to gender discrimination.            E
While allowing the writ petitions, the High Court held that on grounds of
gender equality under Articles 14, 16 and 21 of the Constitution of India
and the doctrine of legitimate expectation, women SSCOs (in certain
branches), who were commissioned prior to 2006,were entitled to be
considered for PC at par with male SSCOs along with consequential             F
benefits. The High Court observed:
        “52. The women Air Force officers joined the service on the
        assurance as held out to them in terms of the Circular dated
        25.11.2009 read with its appendix and as advertised for their
        recruitment. A representation was made to them that though they       G
        were initially to be granted a SSC for a period of 5 years, they
        were entitled to a PC so long as they were willing and subject to
        their suitability. The women officers opted for PC but despite this
        fact only their SSC was extended.
7
    “HRP”
8
    “QRs”                                                                     H
808            SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A           53. As noticed above neither is the question of suitability nor the
            absence of requirement in doubt which was the twin condition
            even as per Clause (v) of the appendix. Once male officers who
            had been granted PC, there could be no question of absence of
            requirement of officers for PC. The advertisement also held out a
            promise to the women Air Force officers of grant of PC depending
B
            upon two factors, which are:
            (i) Vacancy.
            (ii) Suitability of the officers.
            54. …..
C
            55. Once these two conditions are satisfied, which is so in the
            present case, the women Air Force officers cannot be denied PC
            on the specious plea that the SSC was only on experimental basis
            and there was no entitlement to PC despite satisfaction of the
            two terms and conditions.
D
            56. ….
            57. ….
            58. The doctrine of legitimate expectation as observed in various
            judgments referred to aforesaid is granted on the rule of law as
E           requiring regularity, predictability and certainty in Government
            dealings with the public, operating both on procedural and
            substantive matters. The fair play would be the expectation from
            the Government.”
             11. The High Court issued the following directions in Paragraph
F     61 of the judgment:
            “61. We are, thus, of the considered view that the following
            directions are required to be issued:
            i. The claim of absorption in area of operation not open for
            recruitment of women officers cannot be sustained being a policy
G           decision.
            ii.The policy decision not to offer PC to Short Service
            Commissioned Officers across the board for men and women
            being on parity and as part of manpower management exercise is
            a policy decision which is not required to be interfered with.
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             WG CDR A U TAYYABA (RETD) AND OTHERS v.                            809
        UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


         iii.The Short Service Commissioned women officers of the Air           A
         Force who had opted for PC and were not granted PC but granted
         extension of SSCs and of the Army are entitled to PC at par with
         male Short Service Commissioned officers with all consequential
         benefits.This benefits would be conferred to women officers
         recruited prior to change of policy as (ii) aforesaid. The Permanent
                                                                                B
         Commission shall be offered to them after completion of
         five years. They would also be entitled to all consequential
         benefits such as promotion and other financial benefits.
         However, the aforesaid benefits are to be made available
         only to women officers in service or who have approached
         this Court by filing petitions and have retired during the             C
         course of pendency of the petitions.
         iv.It is made clear that those women officers who have not
         attained the age of retirement available for the Permanent
         Commission officers shall, however, be reinstated in service
         and shall be granted all consequential benefits including              D
         promotion, etc. except for the pay and allowances for the
         period they have not been in service.
         The necessary steps including release of financial benefits shall
         be done by the authorities within two (2) months of passing of this
         order.”                                                                E

       12. The decision of the High Court was questioned in appeal by
the Army authorities and by the Union of India. This led to the decision
of this Court reported in Secretary, Ministry of Defence versus Babita
Puniya and Others.9 The following directions were issued by this Court:
                                                                                F
         “87. We accordingly take on record the statement of policy placed
         on the record in these proceedings by the Union Government in
         the form of the Letter dated 25-2-2019 and issue the following
         directions:
         87.1 The policy decision which has been taken by the Union             G
         Government allowing for the grant of PCs to SSC women officers
         in all the ten streams where women have been granted SSC in
         the Indian Army is accepted subject to the following:

9
    (2020) 7 SCC 469                                                            H
810            SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A           87.1.1 All the serving women officers on SSC shall be considered
            for the grant of PCs irrespective of any of them having crossed
            fourteen years or, as the case may be, twenty years of service.
            87.1.2 The option shall be granted to all women presently in service
            as SSC officers.
B           87.1.3 Women officers on SSC with more than fourteen years of
            service who do not opt for being considered for the grant of the
            PCs will be entitled to continue in service until they attain twenty
            years of pensionable service.
            87.1.4 As a one-time measure, the benefit of continuing in service
C           until the attainment of pensionable service shall also apply to all
            the existing SSC officers with more than fourteen years of service
            who are not appointed on PC.
            87.1.5 The expression “in various staff appointments only” in Para
            5 and “on staff appointments only” in Para 6 shall not be enforced.
D
            87.1.6 SSC women officers with over twenty years of service
            who are not granted PC shall retire on pension in terms of the
            policy decision.
            87.1.7 At the stage of opting for the grant of PC, all the choices
            for specialisation shall be available to women officers on the same
E
            terms as for the male SSC officers. Women SSC officers shall be
            entitled to exercise their options for being considered for the grant
            of PCs on the same terms as their male counterparts.
            87.2 We affirm the clarification which has been issued in sub-
            para(i) of Para 61 of the impugned judgment and order of the
F
            Delhi High Court.
            87.3 SSC women officers who are granted PC in pursuance of
            the above directions will be entitled to all consequential benefits
            including promotion and financial benefits. However, these benefits
            would be made available to those officers in service or those who
G           had moved the Delhi High Court by filing the writ petitions and
            those who had retired during the course of the pendency of the
            proceedings.”
             13. The grant of PC to women SSCOs is no longer res integra in
      so far as the Air Force is concerned since the judgment of the Delhi
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          WG CDR A U TAYYABA (RETD) AND OTHERS v.                              811
     UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


High Court was not challenged before this Court by the Indian Air Force.       A
As a matter of fact, the judgment was said to be implementedby the IAF
for only those officers who were in service as on 12 March 2010 or
those retired/ released officers who were not in service as on 12 March
2010 but had filed writ petitions before their release. Forty-four women
SSCOs (twenty-three who had been released and twenty-one who were
                                                                               B
then serving) were considered for the grant of PC. A total of forty-one
women SSCOs were granted PC. Three women SSCOs intimated their
unwillingness.
      14. The appellants were left out from the reinstatement plan of
the IAF as they were all released from service prior to 12 March 2010
and had not filed writ petitions independently prior to the lead judgment      C
in Babita Puniya’s case. Without any undue delay, the appellants
immediately approached the Delhi High Court challenging the manner
of implementation of the decision in Babita Puniya’s case by the IAF.
        15. The Delhi High Court in the impugned judgment dated 11
August 2011 held that the benefit of the Babita Puniya judgment was            D
limited to those women officers who were still in service when the writ
petition was decided or those who had approached the Court by filing
petitions but had retired during the pendency of the proceedings in Babita
Puniya’s case. The High Court further noted that if the benefit of the
directions in Babita Puniya’s case were to be extended to all women            E
officers who were inducted as SSCOs, the directions issued would have
to be recalled since the grant of a PC was subject to the twin requirements
of suitability and availability of vacancies. By an order dated 27 September
2011, the Delhi High Court dismissed the review petitions filed against
the impugned judgment.
                                                                               F
      Submissions
       16. We have heard Mr Krishnan Venugopal, MrHuzefa A Ahmadi
and Ms Meenakshi Arora, senior counsel appearing on behalf of the
appellants, and Mr R Balasubramanian, senior counsel appearingon behalf
of the respondents.                                                            G
      17. Five submissions have been urged on behalf of the appellants
in support of the challenge to the judgment of the High Court:
      i.     Though the appellants were not parties to the proceedings
             before the High Court which resulted in the decision in
             Babita Puniya and would hence not be governed by                  H
812                SUPREME COURT REPORTS                          [2022] 8 S.C.R.


A                    paragraph 61(3) of the operative directions, they would fall
                     within the purview of paragraph 61(4), which is an additional
                     category over and above the category specified in paragraph
                     61(3);
            ii.      The appellants had a legitimate expectation in terms of the
B                    prevailing policy circular dated 25 November 1991 and the
                     advertisement in pursuance of which they were recruited
                     that they would be considered for the grant of PC at the
                     end of five years of service but they were deprived of their
                     legitimate expectation;
C           iii.     Following the decision of the High Court in Babita Puniya,
                     the claim of the women SSCOs was required to be
                     considered in terms of the Human Resources
                     Policypromulgated by the IAF on 19 November 2010but
                     consideration has not taken place in pursuance of the
                     applicable policy circular;
D
            iv.      In applying the Qualitative Ratings for considering the
                     women SSCOs for the grant of PC, a crucial aspect is that
                     at the relevant time such officers were not entitled to the
                     grant of PC in view of the policy circular dated 10 September
                     2004, consequent upon which the QRs were assessed on a
E                    casual basis without due application of mind; and
            v.       In any event, should this Court come to the conclusion that
                     the women SSCOs cannot be reinstated in service at this
                     point of time having regard to the years which have elapsed
                     since they have been released from service, they should be
F                    granted pensionary benefits in terms of the decision in
                     Secretary, Ministry of Defence v. Babita Puniya rendered
                     by this Court in the exercise of its jurisdiction under Article
                     142 of the Constitution of India.
            18. Controverting these submissions, Mr R Balasubramanian, senior
G     counsel appearing on behalf of the respondents submitted that:
            i.       The appellants were neither serving in the IAF on 12 March
                     2010 when the judgment of the Delhi High Court in Babita
                     Puniya was rendered nor had they approached the High
                     Court while they were in service. As a consequence, none
H                    of the appellants are governed by the operative directions
     WG CDR A U TAYYABA (RETD) AND OTHERS v.                           813
UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


        contained in paragraph 61 of the judgment of the Delhi High    A
        Court in Babita Puniya;
 ii.    The IAF has duly complied with the operative conditions
        contained in the decision in Babita Puniya rendered by the
        High Court by considering forty-four women SSCOs of
        whom forty-one were granted PC;                                B
 iii.   During the pendency of these proceedings, by an interim
        direction, this Court directed the IAF to consider the plea
        for reinstatement subject to the women SSCOs meeting
        the QRs reflected in the policy of 2007. Accordingly, the
        cases of fourteen appellants were considered in terms of       C
        the order dated 20 February 2013 passed by this Court.
        Eight women SSCOs were reinstated while the rest were
        not found to be suitable; othershad expressed their
        unwillingness; and yet others failed to meet the medical
        criteria;
                                                                       D
 iv.    Subsequent to the above interim order, this Court on 23
        August 2013 and 27 September 2013 declined to grant
        interim relief to other officers;
 v.     On the date of the order of the High Court dated 12 March
        2010, there were 811 SSCOs of whom 348 had been                E
        released while 463 were serving. While implementing the
        judgment of the Delhi High Court, the Government of India
        and the Ministry of Defence issued orders on 5 August
        2011 in terms of which 463 serving SSCOs (88 male and
        375 female) were considered for PC in addition to the 44
        women SSCOs who had already been considered for the            F
        grant of PC under the judgment of the Delhi High Court.
        Out of these 463 officers, 371 SSCOs were granted PC
        comprising of 70 men and 301 women; and
 vi.    There has been no discrimination between men and women
        officers in terms of the application of the QR requirements    G
        in considering their claims for the grant of PC. The uniform
        QR requirement of 6.5 has been applied across the board
        to both men and women SSCOs as reflected in the following
        tabular chart:
                                                                       H
814   SUPREME COURT REPORTS   [2022] 8 S.C.R.


A




B




C




D




E




F




G




H
          WG CDR A U TAYYABA (RETD) AND OTHERS v.                             815
     UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


       Analysis                                                               A
       19. The principal issue which falls for determination turns on the
interpretation of paragraphs 61(3) and 61(4) of the decision of the Delhi
High Court in Babita Puniya. The decision of the High Court eventually
resulted in a judgment of this Court, as already noted above. The IAF
did not challenge the judgment of the Delhi High Court dated 12 March         B
2010, unlike the Army authorities which were in appeal before this Court.
The IAF authorities have purported to implement the judgment. The
issue which falls for determination is whether the judgment has been
duly observed.
       20. Paragraph 61(3) of the judgment of the Delhi High Court
provided that women SSCOs of the IAF who had opted for PC but                 C
were not granted PC but allowed only an extension of their Short Service
Commissions were entitled to PC at par with men SSCOs with all
consequential benefits. PC was to be offered to them after the completion
of five years. This will cover consequential benefits including promotion
and other financial benefits. However, the benefits were to be made           D
available only to those women officers who were in service and to those
who had approached the High Court by filing petitions though they had
retired during the course of the pendency of the petitions. In other words,
paragraph 61(3) covers two categories:
       i.     Serving women SSCOs as on the date of the judgment; and         E
       ii.    Women SSCOs who had instituted writ petitions before the
              High Court but who had retired during the course of the
              pendency of the petitions.
       21. The reference to the expression “retired” has to be construed
as a release from service as accepted on both sides during the course of
                                                                              F
the hearing, since the SSCOs were governed by a release from service
following the initial tenure of five years followed by two extensions of
six years and four years, respectively.
       22. Paragraph 61(4), according to the submission of the appellants,
postulates an additional category of officers who would not fall within
the ambit of paragraph 61(3). This submission has been opposed by Mr          G
R Balasubramanian, senior counsel appearing on behalf of the respondents
who urges that paragraph 61(4) is clarificatory in nature.
       23. Before we resolve the area of contentious dispute, it would be
appropriate to advert to the reasoning contained in paragraph 16 of the
impugned judgment which reproduces paragraph 60 of the earlier                H
816                SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A     decision. Paragraph 60 of the decision of the Delhi High Court in
      BabitaPuniya is extracted below:
            “60. A PC carries with it certain privileges of rank including
            pension. These women officers have served well the Armed Forces
            of the country in the areas of operation they were recruited for
B           and have worked in this capacity for 14 to 15 years. They deserved
            better from the respondents. There is no reason why these persons
            who have knocked the door of the court should be deprived of
            their benefit and the benefit extended only in future for grant of
            PC to women. It is not as if a complete chapter can be opened
            by persons who have chosen to accept the SSC and on
C           completion of period decided to go out of service. The
            benefit is only available to serving officers and the ones
            who knocked the court but during the period of
            consideration of the matter retired from service. Lt would
            have been in the fitness of things if the respondents having taken
D           the decision to offer PC prospectively should have favourably
            examined as a policy itself, the plea of the petitioners who were in
            service or retired from service during pendency of petition to grant
            them an equivalent benefit. In matters of gender discrimination a
            greater sensitivity is expected and required.”

E          24. The above observations of the Delhi High Court make it
      abundantly clear that at that stage, it was inclined to grant the benefit to:
             i.      Serving officers; and
             ii.     Officers who had moved the Court, but had retired or been
                     released from service during the pendency of the
F                    proceedings.
            25. The operative directions cannot be read in a manner isolated
      from the main text of the judgment, which is evident from the intent
      underlying the ultimate directions. This interpretation of the decision of
      the Delhi High Court is also reinforced by the operative directions which
G     were issued by this Court in Secretary, Ministry of Defence v.
      BabitaPuniya, in the batch of appeals arising from the judgment of the
      Delhi High Court at the instance of the Army authorities. This Court
      observed that the directions of the Delhi High Court in its judgment
      dated 12 March 2010 envisaged that the benefits were to be made
      available to those “women officers in service who had instituted
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          WG CDR A U TAYYABA (RETD) AND OTHERS v.                                817
     UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


proceedings before the High Court and had retired during the pendency            A
of the writ petitions”, and that by virtue of direction (iv), it was envisaged
that those women officers who had not attained the age of superannuation
for PC officers would be reinstated with all consequential benefits. In
paragraph 87 of its judgment, this Court observed as follows:
       “87.3 SSC women officers who are granted PC in pursuance of               B
       the above directions will be entitled to all consequential benefits
       including promotion and financial benefits. However, these benefits
       would be made available to those officers in service or those who
       had moved the Delhi High Court by filing the writ petitions and
       those who had retired during the course of the pendency of the
       proceedings.”                                                             C

       26. In other words, it was clarified that the benefits would extend
to those officers who were in service and to those who had moved the
Delhi High Court by filing writ petitions and had retired during the
pendency of the proceedings. Hence, it isnot possible to accept the wider
submission which has been urged on behalf of the appellants that they            D
were expressly covered by para 61 of the decision of the Delhi High
Court in Babita Puniya.
      27. The issue which falls for determination as to whether the
appellants stand in the same position as the officers who were governed
by the decision in Babita Puniya.                                                E

       28. It needs to be emphasized that the entire litigation initially was
pursued in the form of a PIL which was moved by an advocate.During
the pendency of the proceedings, officers of the Air Force and the Army
joined in the proceedings. The appellants are all officers who are in
service since their initial appointment in 1993. In terms of the policy          F
circular which held the field as well as the advertisements in pursuance
of which they were recruited, they were under a legitimate expectation
that they would be considered for the grant of PC at the end of five
years. However, they were not offered PC and were instead granted
extensions in service.                                                           G
        29. A person is said to have a reasonable or legitimate expectation
if a representation or a promise made by an authority, either expressly or
impliedly, gives room for such expectation in the normal course. While
applying the doctrine of legitimate expectation, the primary considerations
are reasonableness and fairness of the state action. In State of
                                                                                 H
818                SUPREME COURT REPORTS                            [2022] 8 S.C.R.


A     Jharkhand v. Brahmputra Metallics Ltd., Ranchi, 10 this Court
      speaking through of one us (D.Y. Chandrachud J)elaborated on
      the doctrine of legitimate expectation in the following terms:
                “45. …The state must discard the colonial notion that it is a
                sovereign handing out doles at its will. Its policies give rise to
B               legitimate expectations that the state will act according to what it
                puts forth in the public realm. In all its actions, the State is bound
                to act fairly, in a transparent manner. This is an elementary
                requirement of the guarantee against arbitrary state action which
                Article 14 of the Constitution adopts.”
C            30. In the present case, the appellants had a legitimate expectation
      since the respondents by their representations in the policy circular dated
      25 November 1991 and in published advertisement screated expectations
      among the women SSCOs regarding the grant of PC on completion of
      five years of service, subject to vacancies and suitability. All the women
      officers were eligible to be considered for grant of PC between years
D     2000 to 2003, but they were only given an extension of SSC in teeth of
      the legitimate expectation which was held out in the initial terms and
      conditions of appointment. The male counterparts of the appellants were
      considered for and granted PC after their five years of service. The
      women SSCOs continued to be under a legitimate expectation that their
E     extended SSC tenure would be converted into a PC as they were induced
      in service with a specific representation of being considered for PC.
      The Delhi High Court in the Babita Puniya judgment dated 12 March
      2010 had also applied the doctrine of legitimate expectation and observed
      that the doctrine of legitimate expectation, grounded in the rule of law,
      required regularity, predictability and certainty in government dealings
F     with the public, operating on procedural and substantive matters.
            31. Most of these officers joined service between 1993 and 1998
      and were eventually released from service between December 2006
      and 2009. They have put in long years of service for the IAF. During the
      course of the hearing, the Court has been fairly apprised on behalf of the
G     Air Force authorities that the officers have an excellent track record.
            32. In this backdrop, we are of the view that this batch of officers
      who moved the Delhi High Court soon after the decision in Babita Puniya
      and within a reasonable period from the date of their release should not
      10
H          Civil Appeal Nos. 3860-3862 of 2020; 2020 SCC OnLine SC 968
             WG CDR A U TAYYABA (RETD) AND OTHERS v.                            819
        UNION OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]


be denied the benefit which emanates from that judgment. At the same            A
time, the Court cannot be oblivious of the fact that the officers have
been released from service on diverse dates between December 2006
to December 2009.Reinstatement in service would not therefore be a
viable option particularly having regard to the exigencies of service in an
armed force of the nation. However, following the logic of the earlier
                                                                                B
decision of this Court in Secretary, Ministry of Defence v. Babita
Puniya, we are of the view that the officers should be considered for
the grant of pensionary benefits. This direction shall emanate in exercise
of the jurisdiction of this Court under Article 142 of the Constitution of
India to bring about complete and substantial justice and remove the
pernicious effects of gender discrimination which had taken place in the        C
past in the Indian Air Force. The extra-ordinary constitutional power
entrusted under Article 142 has been earlier invoked by this Court in
Secretary, Ministry of Defence v. Babita Puniya, Lt. Col. Nitisha
and Others v. Union of India,11 and Union of India v. Lt. Cd. Annie
Nagaraja12 to compensate and/or grant pensionary benefits to women
                                                                                D
officers, belonging to the Army and Navy, in the interest of justice.
       33. The officers shall be considered for the grant of PC on the
basis of the HRP dated 19 November 2010. The policy document
specifically enunciates the QRs for the grant of PC to women SSCOs in
the following terms:
                                                                                E
         “5. Qualitative Reguirements (QRs.) - Q.Rs for grant of PC
         in respect of SSC Women officers would be as follows: -
         (a) No of ARs. ARs of the preceding three years prior to 25 May
         06 would be considered for grant of PC.
         (b) AR Grades. For grant of PC an officer must have Minimum            F
         average grading of 6.5 in the three ARs under consideration. For
         the grant of PC, an officer must have a minimum grading of 6 (in
         ARs under consideration), in each of the professional and behavioral
         factors listed below
         (i)        Professional Factors                                        G
                    (aa) Professional Knowledge.
                    (ab) Job proficiency.
11
     WP(C) No. 1109 of 2020; 2021 SCC OnLine SC 261
12
     (2020) 13 SCC 1                                                            H
820                   SUPREME COURT REPORTS                      [2022] 8 S.C.R.


A              (ii)        Behavioral Factors
                          (aa) Integrity and Loyalty.
                          (ab) Dependability and Sense of Responsibility.
                          (ac) Courage (Physical and Moral)
               The policy also specifies other requirements including medical
B              conditions.”
               Directions
               34. We accordingly order and direct as follows:
               i.     All the women SSCOs governed by the present batch of
                      cases shall be considered for the grant of one-time
C
                      pensionary benefits on the basis that they have completed
                      the minimum qualifying service required for pension;
               ii.    The cases of the appellants shall be evaluated on the basis
                      of the HRP dated 19 November 2010 bearing Part No 5;
                      and
D              iii.   The officers who are found eligible for the grant of
                      pensionary benefits in terms of the present direction shall
                      not be entitled to any arrears of salary, but the arrears of
                      pension shall be payable with effect from the date on which
                      the officers are deemed to have completed twenty years
E                     of service;
               iv.    We also clarify that we have dismissed several other
                      petitions filed by officers who had moved the Delhi High
                      Court after a considerable degree of delay following their
                      release from service; and
F              v.     In the present batch of cases, there are three officers who
                      have scored QRs between 6.29 and 6.41. The case of these
                      officers shall be considered sympathetically by the Air Force
                      authorities on the same footing.
               35. The civil appeals are accordingly disposed of in the above
      terms.
G
               36. Pending applications, if any, stand disposed of.

      Devika Gujral                                               Appeals disposed of.
      (Assisted by : Shevali Monga, LCRA)

H