Case BriefsSupreme Court

Supreme Court: In a case where challenge was made to declare Section 50(a) of the Delhi Land Reforms Act, 1954 unconstitutional being ultra vires Articles 14, 15, 254 and 21 of the Constitution of India, the bench of Hemant Gupta and Vikram Nath*, JJ has held that all the legislations included in the Ninth Schedule to the Constitution before the Judgment in the case of Kesavananda Bharati vs. State of Kerala, 1973 (4) SCC 225 that is 24.04.1973, would stand protected under Article 31B of the Constitution and, therefore, the challenge to the validity of provisions of the 1954 Act must fail.

The Provision in question

Section 50. General order of succession from males: – Subject to the provisions of Section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:

a) Male lineal descendants in the male line of the descent:

Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive:

Provided further that the son or sons of a predeceased on how low so ever shall inherit the share which would have devolved upon the deceased if he had been then alive:

b) Widow; c) Father; d) Mother, being a widow; e) Step mother, being a widow; f) Father’s father; g) Father’s mother, being a widow; h) Widow of a male lineal descendant in the male line of descent; i) Brother, being the son of same father as the deceased; j) Unmarried sister; k) Brother’s son, the brother having been a son of the same father as the deceased; l) Father’s father’s son; m)Brother’s son’s son; n) Father’s father’s son’s son; and o) Daughter’s son.

Grounds of challenge

(i) violation of Article 14 of the Constitution;

(ii) women being discriminated despite world over the rights of women were being empowered;

(iii) Hindu Succession Act, 1956 would prevail over the 1954 Act.

Analysis

Repugnancy – Article 254 of the Constitution

It was argued before the Court that Succession provided in 1956 Act will prevail over the succession provided in 1954 Act in view of Article 254 of the Constitution, as there is clear repugnancy. The Court rejected this submission and held that the question of repugnancy arises only if both the Parliament and the State legislature have made law with respect to any one of the matters enumerated in the Concurrent list (List III). However, in the present case two enactments of 1956 and 1954 are relatable to Entries in List III and List II respectively. Thus, no question of repugnancy would arise in view of Article 254 of the Constitution.

Special Law

The argument relating to 1956 Act being a special law and 1954 being a general law is completely misconceived as, it has been expressed by the Supreme Court as well as High Courts, on several occasions, that any State enactment relating to Agricultural land tenures is a special law.

Repeal of an enactment – Effect

The Court also rejected the contention that Section 4(2) of the 1956 Act having been deleted by an amendment in 2005, there would be no justification to apply the provisions of succession given in the 1954 Act as the same would now be governed by the 1956 Act as by virtue of Section 6 of the General Clauses Act, the repeal of an enactment would not affect the previous operation of such an enactment.

In the case at hand, the deletion of Section 4(2) took place w.e.f 09.09.2005. Therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005. This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so repealed and cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued.

In the present case, as the succession has opened prior to 09.09.2005, the rights of the descendants in terms of Section 50 became crystallized on account of the said Section read with Section 4(2) of the 1956 Act, therefore, the deletion of Section 4(2) cannot have retrospective effect.

Also, the 1954 Act is a special law, dealing with fragmentation, ceiling, and devolution of tenancy rights over agricultural holdings only, whereas the 1956 Act is a general law, providing for succession to a Hindu by religion as stated in Section 2 thereof. The existence or absence of Section 4(2) in the 1956 Act would be immaterial.

Gender Bias

While it was argued before the Court that the provisions of Section 50(a) of the 1954 Act are violative of Articles 14 and 15 of the Constitution of India as there is clear discrimination on the ground of sex, the Court held that the argument was invalidated once it was held that there can be no challenge to the 1954 Act as the said legislation is included in the Ninth Schedule of the Constitution of India.

[Har Naraini Devi v. Union of India, CIVIL APPEAL NO. 22957 OF 2017, decided on 20.09.2022]


*Judgment by: Justice Vikram Nath

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: While dismissing the writ petitions filed challenging the different criteria set for men and women in the Physical Eligibility Test as notified for the Excise Constable (General Selection), Examination 2016, Saurabh Shyam Shamshery, J. held the same to be non-arbitrary in nature.

Petitioners participated in recruitment process to the post of ‘Excise Constable' according to selection procedure prescribed under Uttar Pradesh Direct Recruitment to Group ‘C' Post in pursuance of an Advertisement issued by the U.P. Subordinate Service Selection Board. There were three major issues for consideration:

(a) Whether challenge to Rules of a recruitment process at instance of unsuccessful candidates would be permissible?

(b) Whether different set of criteria/yard stick for Physical Efficiency Test for male and female candidates has allowed arbitrariness being violative of Article 14 of the Constitution?

(c) Arbitrariness if any, has resulted into an anomaly which leads to selection of 143 female candidates i.e. much more than their 20% reserved quota of 81 seats?

Regarding issue (a) Senior advocate for the petitioner argued that petitioners approached this Court before final result was announced and had challenged the criteria of different yardstick for physical efficiency test for male and female being arbitrary. 143 female candidates were selected much beyond to their 20% quota (81 seats) and it is an eventuality which appears after the final result, as expected by the petitioners and therefore, this petition was filed even before final result was announced, therefore, present writ petition still maintainable at instance of the petitioners not withstanding being unsuccessful candidates.

Counsel appearing on behalf of respondents and other Advocates for other respondents opposed above submission that it is settled law that after participation in recruitment process upto the final stage, it is not open for an unsuccessful candidate(s) to challenge the criteria/rules of selection.

The Court reproduced the relevant pats of the judgment in Ashok Kumar v. State of Bihar, (2017) 4 SCC 357 and Ramjit Singh Kardam v. Sanjeev Kumar, (2020) 20 SCC 209 noting that petitioners had participated in the recruitment process with open eyes, having complete knowledge of different criteria of physical efficiency test for male and female, however, when they anticipated likely to be unsuccessful in final result, they approached this Court just before declaration of final result, challenging the entire notification as well as criteria of physical efficiency test. Thus, the Court was of the opinion that the petitioners have to be estopped from challenging recruitment process as well as physical efficiency test being different for male and female after they have participated therein with open eyes.

Regarding issue (b) and (c) Senior Counsel on behalf of petitioners submitted that there was discrimination between male and female candidates in respect of their respective criteria for physical efficiency test being different and it was comparatively easy for female candidates to score more marks in comparison of male candidates.

Counsel for the Subordinate Services Selection Board submitted that criteria for male and female are on different yardstick details thereof were part of advertisement and also, mentioned in earlier part of this judgment. The different criteria were based on basis of different physical ability of a male and a female.

The Court opined that ground of arbitrariness appears to be baseless on face of it and as it is raised without considering the ratio behind fixing of different yardstick for physical efficiency test for male and female. The Court mentioned the examples of the recently held CommonWealth Games where the difference of criteria of physical efficiency test is based on physical strength of a male and a female as in number of research papers it has come that in a normal situation male has more physical strength than her female counterpart.

The argument to challenge criteria of female for physical efficiency test is not only without any legal basis but is also against women empowerment.”

The Court relied on Saurav Yadav vs. State of Uttar Pradesh & Ors, (2021) 4 SCC 542, wherein it has been categorically held if number of female candidates have satisfied their quota and have entered into general list, on their own, merit, then separate list of women candidates is not required. Thus, issue (b) and (c) was accordingly decided against the petitioners. concluding “Women empowerment can make the society powerful.”

[Pramod Kumar Singh v. State of U.P., Writ – A No. – 4225 of 2022, decided on 30-08-2022]


Advocates who appeared in this case :

Ajay Kumar Rai, Alok Mishra, Binod Kumar Mishra, Advocates, Counsel for the Petitioner;

C.S.C., Chandan Sharma, Siddharth Singhal, Uday Pratap Singh, Vinit Kumar Sharma, Seemant Singh, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In yet another big verdict on rights of women, a bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has lifted the statutory bar on the engagement or enrolment of women in the Indian Navy to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the Navy Act, 1957.

On the contention that certain sea-going duties are ill-suited to women officers, the Court said that such contention is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are illsuited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

The Court, hence, passed the following directions:

  • By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;
  • The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;
  • The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;
  • All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs.

“The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher”

  • The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;
  • The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
    • availability of vacancies in the stabilised cadre at the material time;
    • determination of suitability; and
    • recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;
  • SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;
  • All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
  • As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and

The Court, further directed that 5 women Commanders, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna, who were not reinstated despite Court’s interim order, shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ? 25 lakhs each.

Earlier, the same bench had ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

[Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326, decided on 17.03.2020]

Case Briefs

Supreme Court:

“Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court.”

In a major verdict today, the bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. The Court also ordered that after the judgement of Delhi High Court, Centre should grant permanent commission to women officers.

Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

The Court took a strong exception to the following submissions made by the Union of India,

(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;

(ii) Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;

(iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;

(iv) An all-male environment in a unit would require „moderated behavior? in the presence of women officers;

(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and

(vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.

Terming the aforementioned submissions ‘disturbing’, the Court said that reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the „weaker? sex and may not undertake tasks that are “too arduous” for them. It said,

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

The Court further highlighted that numerous other commendation certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.

The Court, hence, issued the following decisions:

(i) The policy decision which has been taken by the Union 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:

(a) All 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;

(b) The option shall be granted to all women presently in service as SSC officers;

(c) 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;

(d) As a one-time measure, the benefit of continuing in service 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;

(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;

(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and

(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same 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.

(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and

(iii) 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 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.

[The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200, decided on 17.02.2020]