‘Men-Only’ Reservation In Air Force Flying Posts Unjustified; Eligible Women Must Be Appointed: Delhi High Court

The Delhi High Court has directed the Central Government to appoint a woman candidate on the post of Air Force Pilot, observing that we are no longer in the times in which discrimination could be made between male and female candidates for entering into the Armed Forces.

A division bench comprising Justice C Hari Shankar and Justice Om Prakash Shukla said it is open to the authorities, while advertising the posts for recruitment, to incorporate terms and conditions, qualifications and other stipulations which have to be satisfied for a candidate to be qualified for admission.

The Court said that once such stipulations are prescribed, candidates who fulfil the stipulations have necessarily to be treated equally.

On 17 May, 2023, the UPSC issued a notification for recruitment to various posts in the Armed Forces, including Air Force (i) Flying for which the notified number of vacancies as was 92- including 02 for female candidates.

The two vacancies earmarked for female candidates were filled and out of the 90 remaining vacancies, only 70 vacancies were filled by male candidates, thereby leaving 20 vacancies unfilled. The petitioner was 7th in the merit list of women candidates after the two candidates who had been appointed against the two earmarked vacancies.

The petitioner filed the plea aggrieved by the fact that despite 20 of the 90 vacancies which were not earmarked for female candidates remaining vacant, she was not offered appointment.

Allowing the plea, the Court observed that the petitioner candidate had as possession of a Fit to Fly certificate which was required for the post.

“There being no dispute about the fact that 20 of the 90 vacancies which were not earmarked for female candidates are remaining unfilled, and the petitioner being 7th in the merit list of women candidates after the two candidates who had been selected against the two earmarked vacancies, there is no basis whatsoever not to appoint petitioner against one of the remaining 20 vacancies,” the Court said.

It added that if after appointing the successful women candidates against the remaining 20 vacancies any vacancy still remains unfilled, it would be open to the authorities to fill up those by any other mode of recruitment.

Relying on a Supreme Court ruling on the issue of JAG posts (Arshnoor Kaur v Union of India), the Court observed that it is not permissible for anyone to interpret or administer any stipulation, advertisement or notification in a manner which would be “gender skewed.”

“The distinction between male and female has, in the present time, been reduced to nothing more than a chance chromosomal circumstance, and ascribing, to it, any greater relevance would be illogical as well as anachronistic. It is time, to adopt a somewhat pedestrian adage, that one woke up and smelt the coffee,” the Court said.

Disposing of the matter, the Court said that the 90 vacancies notified, apart from the 2 vacancies earmarked for female candidates, cannot be regarded as earmarked for male candidates.

It added that the said 90 vacancies were which were open to female as well as male candidates and thus, out of a total number of 92 vacancies, 2 vacancies were earmarked for female candidates and the remaining vacancies were not earmarked either for female or male candidates but were open to everyone.

The Court concluded that the petitioner candidate being in possession of a “fit to fly” certificate and having cleared all rounds of examinations, was eligible for appointment.

“In view of the fact that there were eligible female candidates who had cleared the examination, the respondents were not justified in keeping 20 vacancies unfilled. They were required to fill up the said 20 vacancies from the female candidates who were lower in merit to the two candidates who had been selected against the two earmarked vacancies,” the Court said.

It added that as the petitioner was the 7th in the merit list, she was entitled to be appointed against one of the 20 unfilled vacancies.

“Resultantly, the respondents are directed to appoint the petitioner, forthwith, against one of the unfilled 20 Air Force (i) Flying vacancies relating to the Examination Notification dated 17 May 2023. She would be entitled to be treated at par, for all service benefits including seniority and other associated benefits, with the 70 male and 2 female candidates who have been selected and appointed,” the Court directed.

Counsel for Petitioner: Mr. Sahil Mongia, Mr. Yash Yadav and Ms. Sanjana Samor, Advs

Counsel for Respondents: Mr. Chetan Sharma, ASG with Mr. Rohan Jaitley, CGSC with Mr. Dev Pratap Shahi, Mr. Varun Pratap Singh, Mr. Yogya Bhatia, Mr. Amit Gupta, Mr. Naman and Mr. Shubham Sharma, Advs; Mr. Ravinder Agarwal, Mr. Manish Kumar Singh and Mr. Vasu Agarwal, Advs. for R-2

Title: MS. ARCHANA v. UNION OF INDIA AND ORS

Click here to read order

_{Images are for reference only.Images and contents gathered automatic from google or 3rd party sources.All rights on the images and contents are with their legal original owners.}