Permanent Commission- "How Do You Ignore Those Women Who Are Not Considered In The Past, Are Now Not Being Granted PC Citing Bodily Impairments": SC Asks Centre

During the hearing today Senior Advocate PS Patwalia made submissions on behalf of some of the women Army officers stating that these officers were not assessed like their male counterparts after completion of 5 years of service.

Senior Advocate Balasubramaniam appearing for the Defence Ministry explained the Court about the medical categories based on which officers are assessed for grant of permanent commission. He stated there are 5 medical categories SHAPE, which is an acronym, where S stands for psychiatric, H for hearing, A for appendages, P is for physical and E is for eye sight. While Shape 1 is the fittest, Shape 5 is on other end of spectrum and means the officer is unfit for any duty and will have to be released from duty.

"So If a person is on 1 in any of the parameters they are out? " the Bench asked.

Senior Counsel Balasubramaniam answered in the affirmative and stated that if a person is in a temporary medical category, time is given so their condition stabilises.

Senior Advocate PS Patwalia submitted 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 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.

Patwalia submitted that this is a peculiar batch of officers who hadn't completed their 14 years of service when the Court issued its judgement last year but had completed 14 years when the circular for grant of PC was issue, and therefore they should have been considered.

Mr Patwalia also stated that the 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.

Khehar further stated that the petitioner was considered by a Special Review Board and results should have been out by now. He added that the respondents should consider telling him the result of review of her consideration for permanent commission.

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.

Advocate Shri Venkatesh for Intervenors who are scheduled to be discharged from service in March 2021. He stated that the discharge orders were issued on 19th November 2020 and are effective from March 2021, so these officers stand to be discharged on 16 March.

Advocate Venkatesh submitted that the male officers are given two options to appear before a selection Board, but after deciding to discharge the petitioner female officers in November, a second SB chance was not given to them, and is therefore an issue of equity. These officers are being ousted on the first selection itself, and had they been given a second chance, they could have improved their performance and been selected in the second board.

Advocate Venkatesh also urged the Court to consider granting these officers an interim relief by these officers will be discharged in March and if no interim order is issued, they will be discharged and we will have no remedy left.

On being informed by Senior Advocate Meenakshi Arora that salaries of some petitioner women officers for the month of January haven't been released, the Bench stated that salary of these officers should be released by Friday.

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