ARSHNOOR KAUR Vs. UNION OF INDIA

JUDGEMENT

(1.) PRIMARY ISSUE : The primary issue that arises for consideration in the present case is whether Respondent-Union of India after having issued a Notification under Sec. 12 of the Army Act, 1950 allowing induction of women in the Judge Advocate General ('JAG') branch could have denied admission to Petitioner No.2 (Ms.Astha Tyagi), who has achieved the fourth (4th) rank with 477 marks and Petitioner No.1 (Ms. Arshnoor Kaur), who has achieved (5th) rank with 447 marks in the merit list of women candidates in preference to Mr. Himanshu Panwar who has secured third rank with 433 marks in the merit list of men candidates, but has obtained lesser marks than the female candidate placed at Serial No.10 in the Females Merit List in pursuance to the notification dtd. 18/1/2023 for the JAG Scheme 31st Course, qua Short Service Commission ('SSC') Course for Law Graduates (impugned notification) on the grounds that the said Notification provides for separate merit list for male and female candidates and provides for only three (03) vacancies for female candidates, as against six (06) vacancies for male candidates. It is pertinent to mention here that the Petitioners have sought not only a declaration that the impugned Notification is ultra vires Articles 14, 15, 16 and 19 of the Constitution, but also publication of a common merit list irrespective of sex of the candidate and implementation of a real and effective 'gender-neutral' policy of recruitment in the JAG branch instead of the subsequent intake policy of the Respondents of having men and women officers in the ratio of 50:50, which has been branded by the Respondents as 'gender-neutral'.

(2.) Mr. Gopal Sankaranarayanan, learned senior counsel for the Petitioners stated that the selection criteria for male and female candidates in the JAG branch were not separate as they were assessed on identical parameters. Only few indicators such as physical attributes were different. He pointed out that the Service Selection Board ("SSB") procedure for male and female candidates is identical in content, structure and evaluation, including the fifteen (15) Officer Like Qualities. The relevant portion of the procedure and testing parameters of the Officer Like Qualities considered by the SSB and the conduct thereof for recruitment to the Indian Armed Forces is reproduced hereinbelow: -

(3.) He emphasised that the Ministry of Defence in its Press Release dtd. 17/3/2023 affirmed that employment in the Indian Armed Forces is 'gender-neutral' and that there is no distinction in testing, deployment or working conditions. The relevant portion of the Press Release is reproduced hereinbelow: -