With a forward looking Supreme Court helping their cause, the women’s struggle to end discrimination in the sphere of Permanent Commission (PC) for them in the Indian Army made a significant advancement with the judgment of the Supreme Court delivered by Justice Dr Dhananjaya Y. Chandrachud and Justice M.R.Shah, on March 25, 2021 in the case of Lt. Col. Nitisha & Others v. Union of India & Others and 6 other writ petitions filed by similarly aggrieved women officers.
The 137-page judgment authored by Justice Chandrachud opens with a memorable quote from Late Justice Ruth Bader Ginsburg of the United states of America Supreme Court, as under : “ I ask no favour for my sex. All I ask my brethren is that they take their feet off our necks.”
These petitions under Article 32 of the Constitution has questioned the manner in which the decision of the Supreme Court in the case – Secretary, Ministry of Defence v. Babita Puniya –(2020) 7 SCC 469 has been implemented .
Based on the analysis done by the Supreme Court, the Court is 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’s case 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 in relation with 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, which has caused an economic and psychological harm and an affront to their dignity.
For these reasons, the Supreme Court has allowed these petitions in terms of the following directions: (i) The administrative requirement imposed by the Army authorities while considering the case of the women SSCOs (Short Service Commissioned Officers) 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 decision of this Court in Babita Puniya’s case.
(ii) All women officers, who have fulfilled the cut-off grade of 60 pc 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 ( as explained in (iii) below) and receiving disciplinary and vigilance clearance.
(iii) For the purpose of determining the fulfillment of direction (ii) , the medical criteria stipulated in the General Instructions of August1, 2020 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 10th year of service, as the case may be.
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. The Court has clarified that 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 been already 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’s judgment.
(vi)All consequential benefits including the grant of time scale promotions shall necessarily follow as a result of the directions contained in the judgment of the Babita Puniya’s case and the present judgment and steps to do so shall be completed within a period of three months from the date of judgment.
(vii) The candidature of Lt. Col. Navneet Lobana, petitioner No. 3 in the WP 1109/2020, will be reconsidered for the grant of PC in terms of the above directions. In case the officer is not granted PC , she will be allowed to continue 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 Addl. Solicitor General (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.
The path traversed by the Women SSC Officers (WSSCOs) had commenced with a PIL before the Delhi HC in 2003.The Delhi HC substantially upheld these officers’ entitlement through its judgment of March 12, 2010. This judgment and its directions formed the subject matter of the earlier proceedings before the Supreme Court, which resulted in the decision of the Babita Puniya’s case on February 17, 2020.Despite there being no stay on implementing the HC’s judgment, it was not acted upon.