'Structures Of Our Society Created By Males For Males' : Supreme Court Holds Army's Evaluation Criteria To Grant Permanent Commission For Women Officers Arbitrary

[Story updated with judgment]

The Supreme Court on Thursday declared that the evaluation criteria adopted by the Indian Army to consider the grant of permanent commission for women officers to be "arbitrary and irrational".

The Court directed the Army to reconsider the pleas of women Short Service Commission officers for grant of PC within two months in accordance with the fresh directions issued by the Court.

The top court held that the evaluation criteria adopted by the Army to benchmark the women officers with the lowest credentials of their male counter-parts and to freeze their ACR evaluation at the 5th or 10th years of their services to be "arbitrary and irrational", causing women officers "systemic discrimination".

"We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the "norm" and may appear to be harmless, are a reflection of the insidious patriarchal system.At the time of Independence, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavored to achieve the guarantee of equality enshrined in our Constitution. A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint....Superficial face of Equality does not stand true to the principles enshrined in the Constitution", the Court observed in the 137-page judgment.

A division Bench of the Supreme Court comprising of Justice DY Chandrachud and Justice MR Shah heard a batch of pleas filed by women Army officers seeking grant of permanent commission and related benefits(Lt Col Nitisha and others vs Union of India and others and connected cases).

The judgment came in a batch of petitions filed by women officers challenging the rejection of their applications seeking permanent commission in Indian Army. They contended that the Army denied them permanent commission, despite the ruling of the Supreme Court in the Babita Puniya case, by applying an arbitrary threshold for medical fitness and by not considering their credentials beyond the 5th or 10th year of services.

Some of the finest women officers excluded

The Supreme Court noted with dismay that the decision of the Army to not take into account the qualifications of women Short Service Commission officers beyond their 5th or 10th year of services resulted in the exclusion of "some of the finest women officers who have served the Army".

"Some of the finest women officers who have served the Indian Army and brought distinction by their performance and achievements have been excluded by refusing to consider their achievements on the specious ground that these were after the 5th/10th year of service", the Court said.

The Court mentioned the names of some of such officers as follows :

"As an example it has been stated that Lt. Col. Shikha Yadav (as well as several other women officers) have been denied PC though they have been awarded the COAS commendation. Lt. Col. Tashi Thapliyal was awarded the Vishisht Seva Mandal. Several women officers who have served in UN Missions overseas have been denied PC. There are women officers who have excelled in national sports events, exemplified by Major Pallavi Sharma who has a proven track record inter alia in shooting championships which has been ignored"

On application of medical criteria

The Court noted that the army subjected the women officers to a rigorous medical criteria of  SHAPE-1. SHAPE1 is an acronym with S' denotes the physiological features including cognitive function abnormalities, 'H' stands for hearing, 'A' for appendages, 'P' for physical capacity and 'E' for eye-sight.

The WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the SHAPE 1 criterion has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the Delhi High Court.

The Court observed that this anomaly occurred because the Indian Army did not consider the claim of women officers for PC at the relevant time. Though the Delhi High Court had upheld the entitlement of women SSC officers for PC around ten years ago, the Army did not implement the HC directions, although there was no stay by the Supreme Court on the judgment.

"Serious hardship has been caused to the women officers by the Army by not considering their application for PC at the relevant time", the Court said.

It went ahead to underscore that the Permanent Commission was not just a legitimate expectation for women but a right accrued to them after the Delhi High Court judgment.

While the Court held that the SHAPE1 medical criteria was not arbitrary, it added that such criteria has to be applied to the women officers on the basis of date when they were entitled for consideration.

"The Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application", the judgment noted the anomaly in the stand of the Army.

"The conundrum of application of medical criteria to women in the age group of 45-50 arose only because the Army did not apply the decision(of HC & SC) in time", the Court noted.

Directions

The Court in conclusion observed :

"...we are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. The pattern of evaluation deployed by the Army, to implement the decision in Babita Puniya (supra) disproportionately affects women. This disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts. The pattern of evaluation, by excluding subsequent achievements of the petitioners and failing to account for the inherent patterns of discrimination that were produced as a consequence of casual grading and skewed incentive structures, has resulted in indirect and systemic discrimination. This discrimination has caused an economic and psychological harm and an affront to their dignity"

It passed the following directions.

1. The administrative requirements adopted by the Army Authorities is 'arbitrary and irrational" and shall not be enforced

2. All women officers who have satisfied the 60% cut-off are entitled to PC subject to satisfaction of medical criteria as given below and satisfaction of vigilance and disciplinary clearance.

3. The medical criteria adopted by the Army in August 2020 shall be applied at the 5th or 10th year of their service as the case may be.

4. All officers other than non-optees officers to be considered for grant of permanent commission as per terms, within 2 months

5. The decision already taken to grant permanent commission to some of the women officers in terms of the Babita Puniya judgment shall not be disturbed.

Evaluation of comparative merit was unnecessary

The Court noted that as per the 1991 policy of the Indian Army, the evaluation of comparative merit is necessary only if there are more than 250 candidates for PC in a year. The judgment noted that in many years between 1994-2010, this limit of 250 was not met. Also, in some years, the limit of 250 had crossed.

"Therefore, the justification of bench-marking female officers with the lowers credentials of their male counterparts is specious. In many years, the ceiling of 250 officers was not met.

I number of years, the ceiling of 250 was crossed for male officers. This belies the claim that bench-marking is necessary. In several years, the ceiling has been crossed, indicating that benchmark is not a rigid norm. For the above reason, there can be no manner of doubt that the bench-marking with lowers credentials of male counter-parts is a ruse to bye-pass the judgment".

Court acknowledges the perseverance of women officers

Acknowledging the perseverance and tenacity of the petitioners, the judgment said :

"We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women".

"The WSSCOs before us are not just women who have dedicated their lives to the ervice of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly "neutral parameters"."

Recap of Oral Arguments

"The threshold and criteria applied to a male officer after 5 years is being applied to a lady officer who had 15 years service. This is like comparing apples and oranges", their lawyers had argued.

During the hearing, Justice Chandrachud had orally remarked that a "perverse notion of equality" was being applied against the women officers.

"They were available to be considered for PC at the age of 25-30 but they were not so considered because of the erstwhile policy of the Armed Forces. Now their (the Armed Forces) attitude seems to be, as it emerges from their affidavit, that 'you went to the Supreme Court, you put up the flag of gender equality, here is gender equality in your face, what is your grievance now'? The attitude seems to be that you wanted to be treated at par with the men, so what are you crying about now? But your argument is that today, if your male counterparts are deemed fit to continue in service, so should you. The point is that they cannot apply threshold standards to you today", Justice Chandrachud had remarked.

These pleas have come after Supreme Court's significant judgment in February 2020 where it had directed that Permanent Commission should be granted to women in army regardless of their service, in all the ten streams where the Union Government have already taken a decision to grant Short Service Commission to women.

In the course of hearing before Supreme Court the female officers had contended that their assessment for permanent commission is not done like their male counterparts.

Senior Advocate PS Patwalia on behalf of some of the women Army officers had submitted that these officers were not assessed like their male counterparts who were considered after completion of 5 years of service. He had added that for grant of permanent commission to these officers, the medical criteria that is being applied now is that which was applied to their male counterparts after the first 5 years of their service, when they are 25-30 years of age.

"All that we are saying is treat us like our male counterparts" - Senior Advocate PS Patwalia remarked.

"So you are not seeking any special treatment. You are saying that don't asses us today based on criteria of assessment of male counterparts at age of 25" the Bench noted.

Justice Chandrachud had observed that it is true that women go through certain aspects like childbirth, menopause etc which changes their body and this cannot be ignored. He added that the idea here is not to give women officers special dispensation but how do you ignore that those women who weren't considered for PC in the past, are now not being granted it based on bodily impairments.

It was also argued on behalf of the women officers that granting PC to women officers based on the last empaneled male officer was not correct, as the ACRs of the male officers were written keeping in mind that they would be considered for PC while the same was not true for women officers.

Advocate Tarunvir Khehar appearing for one Army Officer Lt Col Megha Gupta submitted that being in a technical course, she was granted a retrospective seniority, and should therefore come under the minimum scope of being granted permanent commission. In response to the Bench's question as to how the officer was given retrospective seniority, Khehar clarified that the petitioner is in a technical course, and officers in special courses like Doctors, JAG, etc are given extra seniority.

Senior Advocate Huzefa Ahmadi appeared on behalf of the petitioner women officers who have finished 10-14 years of service. He submitted that there are two aspects, One with regard to Permanent Commission, and second with regard to right to pension.

The Court asked Ahmadi as to how the petitioners can be considered if they haven't even completed 14 years of service. Ahmadi responded by stating there is no intelligible differentia between people in the category of those in 10-14 years and those who have completed 14 years.

Some of the submissions made by Senior Counsel Ahmadi were:

• The aspect that today they cannot be considered for any other employment hasn't been considered. If they are not considered they will be left high and dry, it will be unjust and the Court should find a way to alleviate that

• The case of the women who have served for 10-14 years was not represented before this Court, please find a way to alleviate that.

• They have been denied PC based on a wrong threshold. The threshold and criteria applied to a male officers after 5 years is what is being applied to a lady officer after 15 years. This is like comparing apples and oranges.

• The ACR's, being made the basis for considering them for PC now, were being marked for these officers back then in a casual manner This is arbitrary.

• These officers in so far as pension is concerned, if they're retired without pension, they won't be able to get any other government job and have no other career option available.This wasn't brought before this Court before and the Court should alleviate that.

• The male officers are allowed direct entry into Permanent commission, but the same is not available to women officers, who have to get into Short service commission first. Equality should be in all terms.

" Your point is that can they apply the same medical yardstick to women that are being considered for PC much later due to government's delay in execution of the High Court's order, as was applied to male counterparts much earlier." the Bench observed.

Senior advocate Meenakshi Arora, appearing for the lady officers who have been denied Permanent Commission, had submitted that while in adjudging their suitability on merit, their intervening service records after the 5th or the 10th year of induction are disregarded, the medical yardstick that they are required to meet is that of an entry-stage Short Service Commission officer.

What was held in Babita Puniya case?

Supreme Court of India, in a significant judgment on gender equality, had in February 2020 directed that Permanent Commission should be granted to women in army regardless of their service, in all the ten streams where the Union Government have already taken a decision to grant Short Service Commission to women. The Court also held that absolute exclusion of women from command assignments is against Article 14 of the Constitution and unjustified. Therefore, the policy that women will be given only "staff appointments" was held to be unenforceable by the Court.

The Court had held that an absolute prohibition of women SSC officers to obtain anything but staff appointments evidently does not fulfil the purpose of granting PCs as a means of career advancement in the Army. The blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law.

Case Details

Case Title : Lt Col Nitisha and othes v Union of India and others

Coram : Justices DY Chandrachud and MR Shah

Citation : LL 2021 SC 181

Click here to read/download the judgment