Supreme Court: In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.
The Court hence, directed that the such requirement shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya;, (2020) 7 SCC 469.
Benchmarking with the Lowest Male Officer
The chart produced before the Court by the Army provided for
(i) The number of male officers passing out;
(ii) The number of male officers granted PC; and
(iii) The percentage of those granted PC under (ii) as a proportion of the officers passing out in (i).
The Court, however, noticed that the chart suppressed an important feature which is the number of officers who had not opted for being considered for PC (described in the parlance as ‘non-optees”). In other words, the percentage of male officers granted PC has been computed in the chart without disclosing the factual details of the number of male officers who had not opted for PC.
“Only when the number of “optees” is considered against the “non-optees”, can the percentage of male officers who were successfully granted PC be accurately determined. This is a significant omission on the part of the Army authorities from which an adverse interference must be drawn.”
The Policy Letter dated 15 January 1991 provides that the issue of applying competitive merit arises only if more than 250 officers fulfill the cut-off grade annually. If the number of officers who achieved the 60 per cent cut-off is less than 250, then evidently there is no requirement of assessing inter se competitive merit among the officers who meet the minimum threshold.
The statistics advanced by the Army authorities disclosed two things:
- In a number of years between 1994 and 2010, the ceiling limit of 250 had not been crossed. If the ceiling limit of 250 had not been crossed, the justification which has been offered for benchmarking women officers against the lowest male officers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitioners in regard to the disparity in the percentage of male and female officers granted PC, the statistics which have been placed on the record, completely demolish the case for benchmarking.
- In certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceiling of 250 was crossed for the male officers. This again belies the claim that benchmarking is crucial to maintain the integrity of competitive merit for grant of PC, as envisaged by the Policy Letter dated 15 January 1991. The data, in fact, shows that in several years, the ceiling was crossed, which is an indicator of the fact that it has not been applied as a rigid norm.
The benchmarking criterion plainly ignores that in terms of the MoD Policy Letter dated 15 January 1991 a cut-off of 60 per cent was prescribed and a cap of 250 officers who would be granted PC annually was laid down. Competitive merit was required to be assessed only where the number of eligible officers exceeds the ceiling of 250.
Hence,
“There can be no manner of doubt whatsoever that the attempt to apply the benchmark of the lowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs.”
Reliance on Annual Confidential Reports
“A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts. Their ACR evaluations made no difference to their careers, until PC was granted to them by a court mandate in Babita Puniya (supra).”
The evaluation process which has been followed in the case of the WSSCOs has clearly ignored that the writing of their ACRs was fundamentally influenced by the circumstance that at the relevant time an option of PC was not available for women. Even as late as October 2020, the authorities have emphasized the need to duly fill in a recommendation on whether or not WSSCOs should be granted PC.
Further, there has been a flawed attempt to peg the achievements of the WSSCOs at the 5th/10th years of service thereby ignoring the mandate that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed. Considering the ACRs as on the 5th or 10th year of service for grant of PC would have been appropriate, if the WSCCOs were being considered for PC at that point of time. However, the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10th year of service and relegated them back to a position they held, in some cases, more than 10 years ago.
“The lack of consideration given to the recent performance of WSSCOs for grant of PC is a disservice not just to these officers who have served the nation, but also to the Indian Army, which on one hand salutes these officers by awarding them honours and decorations, and on the other hand, fails to assess the true value of these honours when it matters the most – at the time of standing for the cause of the WSSCOs to realise their rights under the Constitution and be treated on an equal footing as male officers who are granted PC.”
Hence, in light of the systemic discrimination that women have faced in the Army over a period of time, to call for the adoption of a pattern of evaluation that accounts and compensates for this harsh reality is not to ask for ‘special and unjustified treatment’. Rather, it is the only pathway for the attainment of substantive equality. To adopt a symmetrical concept of equality, is to empty the antidiscrimination guarantee under Article 15, of all meaning.
“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”
Medical Criteria
While the medical criterion was not held arbitrary per se, the Court took note of the fact, that these 615 WSSCOs are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts. Had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the Delhi High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service.
The Army authorities have stated that the medical criterion has been sufficiently adjusted to take into account age related factors. However, 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 timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender.”
The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service.
“A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service.”
Directions
(i) The administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is held to be arbitrary and irrational and shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya,(2020) 7 SCC 469
(ii) All women officers who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September 2020 shall be entitled to the grant of PC, subject to their meeting the medical criteria prescribed by the General Instructions dated 1 August 2020 and receiving disciplinary and vigilance clearance;
(iii) For the purpose of determining the fulfillment of the medical criteria shall be applied at the following points of time:
(a) At the time of the 5th year of service; or
(b) At the time of the 10th year of service, as the case maybe.
In case the officer has failed to meet the medical criterion for the grant of PC at any of these points in time, the WSSCO will not be entitled to the grant of PC. Further, a WSSCO who was in the TLMC in the 5th/10th year of service and subsequently met the SHAPE-1 criterion after the one year period of stabilization, would also be eligible for grant of PC. Other than officers who are “non-optees”, the cases of all WSSCOs, including the petitioners who have been rejected on medical grounds, shall be reconsidered within a period of one month and orders for the grant of PC shall in terms of the above directions be issued within a period of two months;
(iv) The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed;
(v) The WSSCOs belonging to WSES(O) – 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of PC after the above exercise, will be extended the one-time benefit of direction (c) and (d) in Babita Puniya (supra);
(vi) All consequential benefits including the grant of time scale promotions shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya (supra) and the present judgment and steps to do so shall be completed within a period of three months from the date of the judgment;
(vii) The candidature of Lt. Col. Navneet Lobana, Petitioner No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered for grant of PC in terms of the above directions. In case the officer is not granted PC, she will be allowed to complete her M.Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course;
(viii) In accordance with pre-existing policies of the respondents, the method of evaluation of ACRs and the cut-off must be reviewed for future batches, in order to examine for a disproportionate impact on WSSCOs who became eligible for the grant of PC in the subsequent years of their service; and (ix) During the pendency of the proceedings, the ASG had assured the Court that all the serving WSSCOs would be continued in service, since the Court was in seisin of the proceedings. There shall be a direction that this position shall continue until the above directions of the Court are implemented and hence the serving WSSCOs shall be entitled to the payment of their salaries and to all other service benefits.
While concluding the analysis, the Court
“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. (…) The WSSCOs before us are not just women who have dedicated their lives to the service 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”.”
[Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261, decided on 25.03.2021]
*Judgment by: Justice Dr. DY Chandrachud