In a landmark ruling, Supreme Court on Thursday allowed the petitions of women SSC officers to be fairly evaluated for permanent commission. The bench quashed the application of fitness standards of a 35-year old male officer to women now in the 45-45 age group.
The division bench comprising Justice D Y Chandrachud and Justice M R Shah observed that structures of our society have been created by males and for males and adjustments, both in letter and thought, are necessary to rebuild them for an equal society.
The bench noted, “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.”
The female officers had moved Delhi High Court in 2003 seeking a permanent commission. The PC was allowed by the court in 2010 in non-combat units. On February 17, 2020, the apex court also upheld the judgment and asked the Army to grant PC to women Short Service Commission officers.
However, 86 women moved SC again alleging arbitrary rejection by retrospective application of standards.
In the 137 page judgment, the bench stated, “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.”
The apex court bench stated that it would be in the spirit of true equality to apply the fitness standards of male counterparts of women SSC officers in the same age group and not make women officers who are in their 20th year of service to show fitness akin to the 10th year of service in the Army. Supreme Court also noted that even in selection level posts for male Army officers, the fitness levels are much relaxed.
“Accordingly, the Army authorities must remove the requirement of benchmarking women Short Service Commission officers (WSSCOs) with the last male officer who had received PC in their corresponding batches and all WSSCOs meeting the 60% cutoff must be granted PC. Additionally, the calculation of the cutoff at 60%, which must by Army orders and instructions be reviewed every two years, must be re-assessed to determine if the casual completion of their ACRs is disproportionately impacting the WSSCOs ability to qualify for PC even at that threshold,” SC said.
Justice Chandrachud further added, “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 anti-discrimination guarantee under Article 15 of all meaning.”
The top court said that WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the Shape-1 criteria has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the Delhi HC in 2010.
“Some of them who fulfilled the criterion at the material time are entitled to PC and can continue in service so long as they continue to meet the medical standards prescribed for continuance in the Army,” the bench said.
Blaming the Army for the simmering controversy over grant of PC to women officers, the bench stated that it arose only because of the Army not having implemented its decision in time, despite the course correction prescribed by the Delhi HC in 2010.