By Chitrangda Rastravara
Today’s verdict has paved a way to demolish gender-related barriers, roadblocks and speedbreakers that have been institutionalized and set a milestone to treat women as equal stakeholders in the service of the nation. (Lt. Col. Nitisha & Ors Vs Union of India & Ors.)
The bench of Justice D.Y. Chandrachud and Justice M.R. Shah has categorically held in the landmark judgment that there are fundamental fallacies in the reasoning given by Army to deny permanent commission (PC) to women officers. They have also stated that the process undertaken to evaluate women officers for the grant of PC was by a belated application of a general policy that did not redress the harms of gendered discrimination that were identified by this Court in Babita Puniya case. There is no justification to exclude women officers based on irrational and arbitrary standards.
We must rebuild the structure of our society to include women, as the existing structure of our society reflects a patriarchal mindset that is males for males. The court specifically recorded that Army has employed indirect discrimination and an exclusionary approach in granting PC to women officers.
After the landmark judgment of Babita Puniya pronounced on February 17, 2020, wherein the Apex Court gave directions to consider women officers for grant of permanent commission, promotion and consequential benefits, the Army initiated the procedure to comply with the directions, but the compliance so done was not in tune with the true intent of the directions given by court while passing the judgment.
Therefore a group of petitions including WP 1172/2020 Sonia Anand Bedi versus Union of India was filed by Chitrangda Rastravara and Archana Pathak Dave, AOR in the month of October to challenge the arbitrary procedure including unjust medical standards applied to deny PC to women officers.
The court on Thursday gave the landmark verdict categorically holding that women officers approached the Hon’ble Supreme Court not to ask for an extra benefit but they have implored the court to restore their dignity. Grant of Permanent Commission to these extremely meritorious officers is not just a legitimate expectation but a right that had accrued in their favour as a result of judgment of the Delhi High court in 2010 which was not complied for a decade even though it wasn’t stayed for implementation pending appeal before the Apex Court.
Key take-aways of the verdict are:-
- The policies applied for denying PC to women officers are facially neutral but are highly discriminatory in reality as they fail the test of constitutional guarantees because the true picture of service performance of these women officers show a different story.
- Benchmark of comparison with lowest graded gentleman officer of parallel batch, set by the Army to evaluate the performance of women officers is arbitrary and irrational. It goes against the intent of the judgment in Babita Puniya case.
- The manner of allocating 20 marks or 5 marks as the case may be, in the subjective assessment has been found to be flawed since male counterparts of the WSSCOs were assessed by an entirely distinct Special No. 5 Selection Board. To make a comparison in regard to the award of subjective marks ranging between 5 and 20 by different sets of boards would be completely unfair and arbitrary. It does not fulfil the avowed purpose of benchmarking which was to compare like with like.
- The medical standards and fitness required for PC to women officers must be SHAPE 1 not evaluated as of today but the medical category as was existing in their 5th and 10th year of service (relevant period to grant PC ).
- There has been a flawed attempt to peg the achievements of officers in 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 WSSCOs 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 realize their rights under the Constitution and be treated on an equal footing as male officers who are granted PC.
- Thus, 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, within a period of one month subject to disciplinary and vigilance angle.
- Time scale promotion to be granted to officers in accordance with existing policy within a period of 3 months from today.
- Last but not the least, the Apex Court exercised its jurisdiction under Art 142 by granting benefit of continuing in service till the completion of 20th year to complete pensionable service, if denied PC ,to the officers within the service bracket 10 to 14 years as on the date of the judgment in Babita Puniya case. Earlier, this benefit was only extended to women officers in the service brackets between 14 to 20 years of service to complete 20 years of pensionable service in the Babita Puniya case
This judgment of the Apex Court is a milestone that has paved the way for a barrier-free inclusion of women in services.
The author is Advocate, Supreme Court of India.