The evaluation criteria set by the Army for granting permanent commission to women SSC officers constituted “systemic discrimination” which has caused an economic and psychological harm and an “affront to their dignity”, the Supreme Court said on Thursday.
The apex court said the administrative requirement imposed by the Army authorities while considering the case of women Short Service Commission officers for PC, of benchmarking them with the officers lowest in merit in the corresponding male batch, is “arbitrary and irrational”.
A bench of Justices D Y Chandrachud and M R Shah said this administrative requirement “shall not be enforced” while implementing the last year's verdict of the top court which had directed that women officers in the Army be granted PC.
“A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic,” the bench said in its 137-page verdict which was delivered on a batch of pleas filed by 86 petitioners questioning the manner in which the last year verdict has been implemented.
“Based on the above analysis, we are 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 (last year verdict) disproportionately affects women,” the bench said.
It said 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 vis-a-vis their male counterparts.”
It said 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 bench said.
It directed that all women officers, who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September last year, shall be entitled to grant of PC subject to their meeting medical criteria prescribed by the general instructions dated August 1, 2020 and receiving disciplinary and vigilance clearance.
It said that medical criteria stipulated in the general instructions shall be applied at the following points of time -- at the time of fifth year of service or at the time of tenth 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 (Women SSC officer) will not be entitled to the grant of PC,” the bench said.
The top court clarified that a WSSCO, who was in the temporary low medical category (TLMC) in the fifth or tenth 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.
The bench noted that SHAPE-1 has a “specific meaning” – ‘S' donates the physiological features including cognitive function abnormalities, ‘H' stands for hearing, ‘A' for appendages, ‘P' for physical capacity and ‘E' for eye-sight.
“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,” the bench said.
It said all consequential benefits including grant of time scale promotions shall necessarily follow as a result of directions contained in the last year verdict and the present judgment and steps to do so be completed within three months.
“In accordance with pre-existing policies of the respondents, the method of evaluation of ACRs (annual confidential reports) 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,” it said.
During the pendency of matter, the Centre's counsel had assured that all serving WSSCOs would be continued in service since the apex court was in “seisin of the proceedings”, it noted.
“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,” it said.
The bench also dealt with the issue related to one of the petitioners, Lt Col Navneet Lobana, who is pursuing an M.Tech degree course for which she has been deputed by the Army from July 30, 2020.
It noted that following the decision not to grant PC to her, the officer has been asked to refund the cost of the course which is approximately between Rs 8.5 to 10 lakh.
It directed that candidature of Lobana will be re-considered for grant of PC in terms of the court's directions and 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.
