Institute of Legal and Management Studies

A woman Indian Air Force Wing Commander, who reportedly participated in Operation Sindoor and Operation Balakot, has approached the Supreme Court assailing denial of Permanent Commission to her.

A bench of Justices Surya Kant and N Kotiswar Singh heard the matter today and while issuing notice, stayed her release from service, without prejudice to the rights of the parties. Among other things, it was clarified that the order shall not create any equities in the officer's favor.

Senior Advocate Dr Menaka Guruswamy, for the applicant/Wing Commander Nikita Pandey, submitted that she is an expert fighter controller, who participated as an expert at the Managed Integrated Air Command and Control Systems, which were employed in Operation Sindoor and Operation Balakot. Further, it was urged that the applicant has served over 13.5 years but stands impacted by a 2019 policy, forcing her to conclude her service within a month. It was also highlighted that the applicant ranks second in the merit list of expert air fighter controllers.

When the bench probed as to why the applicant was denied PC, Additional Solicitor General Aishwarya Bhati, for the Union, replied that a Board found her unfit, however, a second Board is set to consider her case. In response, Justice Kant said, "Let her continue for some time".

Not having any objection in the event of Court directing that the applicant be allowed to continue for some time, the ASG submitted that most officers in the Forces are brilliant, but the question boils down to "comparative merit". She emphasized the need to keep the Forces "young" and stated that the "steep pyramidical structure" requires certain officers to "go out" after serving 14 years.

Hearing the ASG, Justice Kant reflected that the Forces should have the capacity to accommodate all Short Service Commission officers to PC, such that PC is not denied due to inter-se merit.

"Due to the lack of PC for women officers for a long duration, Short Service Commission recruitments have been taking place...that's why the inter se competition arises after 10 yrs, 12 yrs, 15 yrs...for future, if you can have a policy of taking SCC only to the extent you can accommodate as PC if they are found suitable. If you have 100 SCC, you should have the capacity to take 100 of them to PC also. That's a different issue that out of them, only 90 or so qualify and some of your PC remain unfilled. Those who will disqualify will not be on account of inter se merit, they will be for some other reason (where you find they are not worth PC)", the judge opined.

The ASG replied saying that out of 100 officers considered, almost 90-95% officers are found fit but lose out only on comparative merit. "There are limited number of posts, it's a very steep pyramid", she submitted.

Lauding the Armed Forces, Justice Kant further observed that a sense of uncertainty may not be good for the officers.

"Our Air Force is one of the best organizations in the world. Officers are very commendable. Quality of coordination they have exhibited, I think it's unparalleled. Therefore we always salute them. They are a big asset for the nation. They are the nation, in a way. Because of them, we are able to sleep in the night. After they are recruited, tough life starts...none of the civil servants face the kind of challenges they face. So, one incentive should be there that after 10 years, I am going to have PC provided that I don't get myself down, not that I would have to compete with unknown persons. That sense of uncertainty may not be good for the Armed Forces. It's a layman's suggestion, because we are not experts. On minimum benchmarks, there can't be a compromise" the judge said.

ASG Bhati underlined at this point that she, as the daughter of an Air Force officer and daughter-in-law of an Army officer, has first hand knowledge of matters pertaining to the Forces. She equated the posting of military officers in higher echelons with the elevation of High Court judges to the Supreme Court. "We can't look at suitability alone...the Forces' requirement to be functionally younger is a very important yardstick...[moreover] many women officers are getting PC, women have performed very well", the ASG said.

Recently, the Supreme Court, as an interim arrangement, stayed the release of Women Army Officers from service. Subsequently, it clarified that the stay order would cover all such officers whose cases are pending before the Supreme Court, High Courts or the Armed Forces Tribunals.

Appearance: Senior Advocate Dr Menaka Guruswamy with AoR Astha Sharma (for applicant officer-Nikita Pandey); ASG Aishwarya Bhati

Case Title: WG CDR SUCHETA EDN Versus UNION OF INDIA AND ORS., Diary No. 28412-2024