Case: Lt. Col. Nitisha &amp; Ors Vs. Union of India &amp; Ors

2. The path traversed by the Women SSC Officers(WSSCO) commenced with a writ petition in public interest before the Delhi High Court in 2003. The judgment of the Delhi High Court which substantially upheld the entitlement of the WSSCOs was rendered on 12 March 2010( WP(C) No. 1597 of 2003 (High Court of Delhi)). The judgment of the Delhi High Court and its directions formed the subject matter of the earlier proceedings before this Court which resulted in the decision in Babita Puniya (supra) being rendered on 17 February 2020. Between 12 March 2010, when the Delhi High Court pronounced its judgment, and 17 February 2020, when this Court rendered its decision in Babita Puniya (supra), there was no stay of the implementation of the judgment of the Delhi High Court. This, as a matter of fact, was clarified on 2 September 2011 in an order of this Court.3. Despite the above clarification, the judgment of the High Court was not implemented by the Union Government. Several interim orders were issued for directing a stay on the release of the WSSCOs, for reinstatement in service coupled with an entitlement to salary. During the pendency of the appeal before this Court, the Union Government and the Ministry of Defence (MoD) issued a communication on 25 February 2019 envisaging the grant of PCs to WSSCOs in eight arms or services of the Army (in addition to the existing two streams of Judge Advocate General(JAG) and Army Education Corps(AEC) which had already been opened up for PC to WSSCOs). Eventually, in the judgment of this Court dated 17 February 2020, the following directions were issued to the Union Government, while taking on record its policy statement dated 25 February 2019:H. Directions  69. We accordingly take on record the statement of policy placed on the record in these proceedings by the Union Government in the form of the Letter dated 25-2-2019 and issue the following directions:(i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service.(b) The option shall be granted to all women presently in service as SSC officers.(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service.(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC.(e) The expression in various staff appointments only in Para 5 and on staff appointments only in Para 6 shall not be enforced.(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision.(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.(ii) We affirm the clarification which has been issued in sub-para (i) of Para 61 of the impugned judgment [Babita Puniya v. Ministry of Defence, 2010 SCC OnLine Del 1116 : (2010) 168 DLT 115] and order of the Delhi High Court.(iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the writ petitions and those who had retired during the course of the pendency of the proceedings.This batch of petitions under Article 32 has questioned the manner in which the decision of this Court in Babita Puniya (supra) has been implemented.4. Since the grievance in these proceedings emanates directly out of the steps taken by the Union Government to implement the earlier decision of this Court in Babita Puniya (supra), this Court has entertained the petitions under Article 32. Initially, in the counter affidavit filed by the Colonel Military Secretary (Legal) at the Integrated Headquarters of the Ministry of Defence (Army), an objection was raised to the maintainability of the petitions on the ground that the petitioners should be relegated to the pursuit of remedies before the Armed Forces Tribunal. However, this plea has not been pressed in the submissions by Mr Sanjay Jain, learned Additional Solicitor General( ASG) appearing on behalf of the Union of India, the MoD and the Indian Army. The respondents, through their written submissions, have also agreed to formulate a policy for granting time- scale promotions to the WSSCOs who have been granted PC. Hence, only the core contested issues which arose in the course of the proceedings are being addressed on merits in this judgment.5. The steps which were taken by the Union Government to implement the decision in Babita Puniya (supra) have been elaborated upon in the(i) Counter Affidavit of the respondents; and(ii) Written submissions formulated by the ASG.6. Following the decision in Babita Puniya (supra), a governmental sanction was issued on 16 July 2020 for taking administrative steps to fulfill the directions. Accordingly, a set of General Instructions dated 1 August 2020 were issued for the conduct of a special selection proceeding by a Special No. 5 Selection Board 2020 to screen WSSCOs for the grant of PC based on existing policy regarding grant of permanent commission…applied uniformly to all SCC officers. These General Instructions were issued by the Integrated Headquarters of MoD (Army) for implementing the guidelines in Babita Puniya (supra). The relevant extracts are reproduced below:General  1. A Spl No 5 Selection Board (SB) 2020 will be held to screen the Short Service Commissioned WOs of the following courses, who are in service:  TABLE  Aim 3. To lay down guidelines for submission of application by the WSES(O)s / SSCW(O)s for consideration for grant of PC by Spl No 5 SB 2020.  Scope 4. Following issues have been covered in the instructions:a. Guidelines for preparation of applicationb. Medical Boardc. Submission of applicationd. Detailed checklist for submission of documentse. Checklist / Misc Instrs for Unit & Sub-Unit Cdrs  Medical Board 9. All officers opting for PC have to undergo a medical board at the nearest Military hospital where facilities of medical specialists are available. The detailed instructions are contained in AO 110/81 & SAI 3/S/70, the extract of the same is as under:-a. Medical Board Proceedings. Only those officers who are opting for PC and are SHAPE-1 or Permanent Low Medical Category (PLMC) will undergo a medical board as per AFMSF-2(ver 2002). Only one copy (ie original) of medical board proceedings [medical examination report on AFMSF-2 (ver 2002) format] without investigation reports and X-ray, duly approved by the competent authority, is required to be forwarded to MS Branch (MS-7B), through staff (medical) channel. Remaining copies of AFMSF-2 will be forwarded to AG/MP-5&6, DGMS-5 and respective controlling groups at the MS Branch. The medical board proceedings should reach MS Branch (MS 7B) latest by 11 Sep 20.In case the medical documents are not submitted by the due date, the concerned officer will be considered as not opted for PC and will be dealt with as per the type of consideration mentioned at Para 1 above.b. Officers with Temporary Low Medical Category (TLMC)i. Officers with TLMC will submit the proceedings of medical categorization (AFMSF-15) / re-categorization [AFMSF-15A (ver 2002)] giving their present medical category. These documents should reach MS Branch (MS 7B) latest by 11 Sep 20.In case the medical documents are not submitted by the due date, the concerned officer will be considered as not opted for PC and will be dealt with as per the type of consideration mentioned at Para 1 above.ii. Officers with TLMC, who are otherwise found fit for PC by the Spl No 5 SB, will be given a maximum time period of one year for stabilization of their medical category. Such offrs will forward their medical docu on AFMSF-2 as per Para 9(a) above, on becoming SHAPE-1 of PLVS This time period of one year will be counted from the last date of submission of medical documents as per Para 9 (b) (i) above i.e. 11 Sep 20. Beyond the period, result of the board in respect of such offers will be declassified treating them to be medically unfit for PC.iii. Women officers who are on maternity leave and cannot undertake medical examination, will forward the medical board proceedings vide which they were medically downgraded for maternity leave and follow instructions contained in Para 9(b) (i) & (ii) above.c. Eligibility of PC for Officers with PLMC. The low medical category should not be due to medical reasons (whether attributable to military service or not) but should have been caused as a result of casualties suffered in action during operations or due to injury or other disability sustained during duty (for example while traveling on duty, playing organized games under regimental arrangements, during trainings exercises and so on). In addition, medical categories lower than S1 or H2 or A3 or P2 or E2 or H2E2 or H2A3 or H2P2 or E2A3 or E2P2 are NOT ELIGIBLE for grant of PC. Officers are required to forward copies of Court of inquiry, Injury report (IAFZ 2006) and notification of battle casualty, if applicable in support of their medical category……  (emphasis supplied) 7. Special No. 5 Selection Board was convened between 14 and 25 September 2020 to consider WSSCOs for the grant of PCs. According to the counter affidavit, this was on same terms and criterion as their male counterparts. 615 WSSCOs were considered for the grant of PCs. The result of the Special No. 5 Selection Board was declared on 19 November 2020. According to the Union of India, Special No. 5 Selection Board was conducted in the following manner:a. The Military Secretarys Branch constituted a Selection Board as per the provisions of Army Order 18 of 1988, which is being uniformly followed for consideration for grant of permanent commission to all SSC male officers and women officers of AEC & JAG. All Board members were from outside the Military Secretarys Branch. A women officer of Brigadier rank from AMC was also a member of the Board.b. Identity of the officers being considered, was hidden from the Board. Women officers who were being considered by the Board were permitted to attend the Board proceedings as observers. A list of such officers and days of their attendance is given at Annexure – R3.c. As per the laid down criteria, confidential reports, discipline and vigilance report, if any, honours and awards etc, as on the 5th or 10th years of service, as the case may be, of the women officers, depending upon the terms and conditions opted by the respective officer, was taken into consideration by the Selection Board. This procedure was exactly similar to what was followed for the similarly placed corresponding course & entry (Technical or Non- Technical) made officers.d. The Board examined the MDS (Master Data Sheet) of each officer, for grant of Permanent Commission and gave independent value Judgement marks without any mutual consultation.e. The Board then compared the total marks of each officer out of 100, with the marks of the male officer with lowest merit granted permanent commission in her corresponding course & entry (Technical or Non- Technical ). Post this, the Board recommended 422 out of 615 officers for grant of Permanent Commission, on merit basis, subject to them meeting the criteria of medical fitness and DV (Discipline and Vigilance). On scrutiny of these 422 officers, it emerged that 57 out of these 422 had not opted for grant of Permanent Commission. Options (choice) of officers being considered, is not disclosed to the board members during the consideration stage to avoid any biasness.8. The result of the Special No. 5 Selection Board has been tabulated by the respondents in the following terms:  TABLE Note: In the above list, 42 candidates who have been placed in the Temporary Low Medical Category have been granted one year stabilization period during which they have an opportunity to restore to the required criterion of medical fitness.The above tabulation, supplied on affidavit by the respondents, does not account for 19 women officers in the breakup. The data provided by the petitioners, on an analysis of the consolidated result of the Special No. 5 Selection Board proceedings, indicates the following figures which aids a comprehensive analysis:9. One of the issues which has been debated in the present case is in regard to the SHAPE-1 qualification for grant of PC. The Army authorities have, in terms of the General Instructions dated 1 August 2020, stipulated that only those officers who are in SHAPE-1 would be granted PC. Officers in a Temporary Low Medical Category(TLMC), who are otherwise found fit for PC by the Special No. 5 Selection Board are granted a time period of one year (at the maximum) for stablization of their medical category. Within a period of one year, the officers have to forward their medical documentation of having achieved SHAPE-1 status. As regards officers in the Permanent Low Medical Category(PLMC), it has been stipulated that the low medical category should not be due to medical reasons (whether or not attributable to military service) but should be a result of casualties suffered in action during operations or due to injury or other disability sustained during the course of duty.10. The medical criteria for the grant of PC are governed by Special Army Instructions dated 30 April 1970(SAI 3/S/70) (as amended from time to time in 1971, 1972, 1973 and 1993) and Army Order 110 of 1981(AO 110/1981). According to the Union of India, the criteria of medical fitness applied for grant of permanent commission, are exactly the same as applicable to other SSC officers. Whenever the Special No. 5 Selection Board of an SSC officer is deferred and is held subsequently after the passage of one or two years, an officer has to undertake a fresh medical examination for the Board.11. Before adverting to SAI 3/S/70 and AO 110/1981, it is necessary to understand the meaning and content of the SHAPE-1 norm, which finds place in Army Order 9 of 2011(AO 9/2011, Ref: AO 01/2004/DGMS).Army Order 9 of 201112. The expression SHAPE has been explained in AO 9/2011 in the following terms:30. Medical Classification. Medical classification/reclassification of serving officers will be made by a duly constituted Medical Board after assessing his/her fitness under five factors indicated by the code letter SHAPE which will represent following functions (details thereof given in Appendix E):-S- Psychological abnormalities including cognitive function  H- Hearing  A- Appendages P- Physical CapacityE- Eye SightIn each of the above factors, the functional capacity for performing military duties is denoted by a descending order of fitness, denoted by numerals 1 to 5. Accordingly, while dealing with functional capacity, AO 9/2011 contains the following specifications:31. Functional Capacity. Functional capacity for military duties under each factor will be denoted by numerals 1 to 5 against each code letter indicating declining functional efficiency. These numerals will be used against the word SHAPE to denote the overall medical classification and also against each factor of SHAPE while describing the disability profile. General evaluation of these numerals will denote guidelines for employment of the officers as under:1A- Fit for all duties anywhere.1B- Fit for all duties anywhere; under medical observation and has no employability restrictions.2- Fit for all duties but some may have limitations regarding duties which involve severe physical and mental stress and require perfect acuity of vision and hearing.3- Except S factor, fit for routine or sedentary duties but have limitations of employability, both, job wise and terrain wise as spelt out in Employment Management Index at Annexure II to Appendix E to this Army Order.4- Temporarily unfit for military duties on account of hospitalization/ sick leave.5- Permanently unfit for military duties.Special Army Instruction –SAI 3/S/7013. SAI/3/S/70 was issued on 30 April 1970 to regulate the grant of PCs to SSC officers. According to Para 2(b), the medical category mandating SHAPE-1 was stipulated in the following terms:(b) Must be in Medical Category AYE ONE (A-1). Those who have been placed in Medical Category A-2, B-1 and B-2 as a result of casualties suffered in action during operations may also be considered on merits of each case by the Government.Para 2(b) was amended in 1972 (Army Instructions 102/72) in the following terms:(b) For medical fitness, the officer should satisfy the following conditions:-(i) Their medical category should not be lower than grade 2 under any one of the SHAPE factors excluding S factor in which the grade should not be lower than 1. In exceptional cases grading of 2 in both H and E together may be acceptable.(ii) The low medical categorisation should not be due to medical reasons whether attributable or not (sic) but should have been caused as a result of causalities suffered in action during operations or due to injury or other disability sustained during duty (for example while travelling on duty, playing, organised games under regimental arrangements, during training exercises and so on).(iii) They should be found fit for permanent commission in all other respects, through Services Selection Board selection where applicable at which selection they will be given modified tests, taking into account the specific disability in each case.14. On 1 August 1999, by corrigendum No 14/99, para 2(b)(i) was substituted as stated below:Existing Para 2(b)(i) is substituted as under:-Their medical category should not be lower than S1 or H2 of A3 or P2 or E2 or H2E2 or H2A3 or H2P2 or E2A3 or E2P2. However, grant of Permanent Commission to low medical category Short Service Commissioned Officers will be subject to rendition of the requisite certificate in terms of AO 20/75.15. The above policy provides a concession to such candidates who have suffered an injury on the line of duty as a result of which their medical category has been lowered. However, the concessions have been qualified. For ease of reference, S1 indicates grade-1 in the S factors; H2 means grade-2 in the H factors and A3 means grade-3 in the A factor. The requirement of being in SHAPE-1 is a pre-requisite, even in respect of such arms and services, where both men and women join at the threshold age of up to 45 years, such as in the Army Medical Corps. While insisting upon the observance of the SHAPE-1 norm for the grant of PC, the Army also envisages a Temporary Low Medical Category - TLMC - under which an officer is given a period of one year, called the category stabilization period, to return to SHAPE-1.16. In the batch of writ petitions, eighty six petitioners are involved:(i) 47 petitioners in Writ Petition (C) 1172 of 2020(ii) 9 petitioners in Writ Petition (C) 1457 of 2020(iii) 5 petitioners in Writ Petition (C) 34 of 2021(iv) 1 petitioner in Writ Petition (C) 1469 of 2020(v) 14 petitioners in Writ Petition (C) 1223 of 2020(vi) 9 petitioners in Writ Petition (C) 1109 of 2020(vii) 1 petitioner in Writ Petition (C) 1158 of 2020The Army authorities submitted that out of 86 petitioners, 55 are still in SHAPE-1. Out of the 55, 30 are above the age of 45 going up to 52 years in age. 23 other petitioners have been placed in PLMC, while the remaining 9 have been placed in TLMC.Special Army Instruction –SAI 3/S/7017. SAI 3/S/70 stipulated that serving short service commissioned officers granted commission under A-III/S/64 will be eligible for the grant of PCs under the terms and conditions of service as laid down in the instruction. Para 2(b) prescribed medical requirements of SHAPE-1 with certain exceptions for duty- related casualties (extracted in the earlier section of this judgment). Para 5 envisaged that officers whose applications were in order would be called for an interview by the Services Selection Board. Under para 6(b), the Services Selection Boards were to consider the applicants for the grant of PC. The applicants performance as short service commissioned officers would be evaluated and reckoned by the government in assessing their suitability for the grant of PC. Those found suitable for the grant of PC were to be placed on a panel. PCs would be granted to those found suitable in all respects in the arms or services as the case may be, the final decision resting with the government. Para 89(b) stipulated that(b) Permanent commission will be granted depending on the vacancies existing in the Arms or Services and the officers suitable. The officers choice of Arm/Service will be given due consideration but there is no commitment to give any particular Army Service.18. Para 10 contained provisions for the manner in which the period as SSC officer would be counted; para 11 for pay and allowances; para 12 for pensionary awards; para 13 for termination of commission and para 14 for other conditions of service.Army Order 110/198119. Officers granted SSC, both technical and non-technical were considered for PCs on the basis of their service performance in the fifth year of their service. AO 110/1981 inter alia contained instructions in regard to the submission of applications and evaluation of medical status by the medical boards. Officers who were not desirous of being considered for the grant of PC or for extension of SSC service, and sought release on the expiry of their contractual terms of five years were required to indicate their option. Similarly, officers who were non-optees for permanent commissions but were willing to continue on extended SSC services were required to furnish certain forms.MoD Policy Letter dated 30 September 1983 20. This specified the criteria for grant of PC to SSC officers. The policy letter envisaged that :The Selection Board will assess each officers performance based on computerized Member Data Sheet. To facilitate the members to arrive at their decision, a computerized Member Data Sheet (MDS) indicating the year wise performance of each officer including performance on courses, strong points, weak points, disciplinary awards etc., will be made available. The computer evaluation as spelt out in para 4 below will have 80% weightage while 20% weightage will be given to the assessment of the members of the Selection Board.The above policy letter contemplated the preparation of a computerized Member Data Sheet indicating the year-wise performance of the officer. Eighty per cent weightage would be given to the evaluation in the Member Data Sheet(MDS) while twenty per cent would be assigned for the assessment by the members of the selection board. The members of the selection board were required to take into account the MDS and bear in mind, among other things, performance on courses, strong / weak points, technical assessment and the disciplinary background, for which they would award marks out of 20. The members of the selection board were also required to award the following gradings. besides awarding marks :(a) Recommended for Permanent Commission B(b) Recommended for Extension only BE(c) Rejected for Permanent Commission and extension R(d) Withdrawn (for want of sufficient material/ administrative reasons) W(e) Deferred D21. Para 4 of the policy letter envisaged that for preparing the evaluation sheets, the following information regarding officers would be computed namely:

Reasoning:
45. Indirect discrimination is closely tied to the substantive conception of equality outlined above. The doctrine of substantive equality and anti- stereotyping has been a critical evolution of the Indian constitutional jurisprudence on Article 14 and 15(1). The spirit of these tenets have been endorsed in a consistent line of authority by this Court. To illustrate, in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 , this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. In National Legal Services Authority v. Union of India (2014) 5 SCC 438 , this Court recognized how the patterns of discrimination and disadvantage faced by the transgender community and enumerated a series of remedial measures that can be taken for their empowerment. In Jeeja Ghosh v. Union of India (2016) 7 SCC 761  and Vikash Kumar v. Union Public Service Commission 2021 SCC OnLine SC 84 this Court recognized reasonable accommodation as a substantive equality facilitator.46. The jurisprudence relating to indirect discrimination in India is still at a nascent stage. Having said that, indirect discrimination has found its place in the jurisprudence of this Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 , paras 442-446, where one of us (Chandrachud J), in holding Section 377 of the Indian Penal Code as unconstitutional insofar as it decriminalizes homosexual intercourse amongst consenting adults, drew on the doctrine of indirect discrimination. This was in arriving at the conclusion that this facially neutral provision disproportionately affected members of the LGBT community. This reliance was in affirmation of the decision of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) 111 DRJ 1 (DB) which had relied on the Declaration of Principles of Equality issued by the Equal Rights Trust Act in 2008 in recognizing that indirect discrimination occurs when a provision, criterion or practice would put persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.(Id. at para 93) Similarly, this Court has recognized the fashion in which discrimination operates by dint of structures of oppression and domination which prevent certain groups from enjoying the full panoply of entitlements.( Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC OnLine SC 1690,  (Chandrachud J., concurring opinion, paragraph 117); Joseph Shine v. Union of India, 2018 SC OnLine SC 1676, (Chandrachud J, concurring opinion, para 38) (Joseph Shine)) The focus in antidiscrimination enquiry, has switched from looking at the intentions or motive of the discriminator to examining whether a rule, formally or substantively, contributes to the subordination of a disadvantaged group of individuals(Ibid, Joseph Shine).47. Indirect discrimination has also been recognized by the High Courts in India(Patel Suleman Gaibi v. State of Maharashtra, 2014 SCC OnLine Bom 4639). For instance, in the matters of public sector employment, the Delhi High Court in Inspector (Mahila) Ravina v. Union of India(Writ Petition (C) 4525 of 2014, Delhi High Court (6 August 2015)) and in Madhu v. Northern Railways, has upheld challenges to conditions of employment, which though appear to be neutral, have an adverse effect on one section of the society. Bhat, J., while analyzing the principles of indirect discrimination in Madhu (supra), held:20. This Court itself has recognised that actions taken on a seemingly innocent ground can in fact have discriminatory effects due to the structural inequalities that exist between classes. When the CRPF denied promotion to an officer on the ground that she did not take the requisite course to secure promotion, because she was pregnant, the Delhi High Court struck down the action as discriminatory. Such actions would inherently affect women more than men. The Court in Inspector (Mahila) Ravina v. Union of India W.P.(C) 4525/2014 stated,A seemingly neutral reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights. That is exactly what has happened here: though CRPF asserts that seniority benefit at par with the petitioners colleagues and batchmates (who were able to clear course No. 85) cannot be given to her because she did not attend that course, in truth, her unwillingness stemmed from her inability due to her pregnancy.48. We must clarify here that the use of the term indirect discrimination is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion(Interchangeably referred as PCP).66. A study of the above cases and scholarly works gives rise to the following key learnings. First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.67. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention versus effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario HRC (supra), requiring proof of intention to establish discrimination puts an insuperable barrier in the way of a complainant seeking a remedy.( Ontario HRC (supra n. 60), para 14) It is this barrier that a robust conception of indirect discrimination can enable us to counteract.68. Third, on the nature of evidence required to prove indirect discrimination, statistical evidence that can establish how the impugned provision, criteria or practice is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As Professor Sandra Fredman notes, Aptitude tests, interview and selection processes, and other apparently scientific and neutral measures might never invite scrutiny unless data is available to dislodge these assumptions.(Sandra Fredman, Discrimination Law (supra n. 28) at p. 187) Consistent with the Canadian Supreme Courts approach in Fraser (supra), we do not think that it would be wise to lay down any quantitative thresholds for the nature of statistical disparity that must be established for a claimant to succeed. Equally, we do not think that an absolutist position can be adopted as to the nature of evidence that must be brought forth to succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect discrimination. This was clarified by the European Court of Human Rights in a case concerning fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with Roma-only classes. In assessing the claims of the fifteen Croatians, the court observed that indirect discrimination can be proved without statistical evidence(Orsus and others v. Croatia, [2010] ECHR 337, para 153). Therefore, statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination.69. Fourth, insofar as the fashion in which the indirect discrimination enquiry must be conducted, we think that the two-stage test laid down by the Canadian Supreme Court in Fraser (supra) offers a well-structured framework of analysis as it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks to remedy.70. Fifth and finally, while assessing the justifiability of measures that are alleged to have the effect of indirect discrimination, the Court needs to return a finding on whether the narrow provision, criteria or practice is necessary for successful job performance. In this regard, some amount of deference to the employer/defendants view is warranted. Equally, the Court must resist the temptation to accept generalizations by defendants under the garb of deference and must closely scrutinize the proffered justification. Further, the Court must also examine if it is possible to substitute the measures with less discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness to the possibility of alternatives can a Court ensure that the full potential of the doctrine of indirect discrimination is realized and not lost in its application.( Sandra Fredman, Discrimination Law (supra n. 28) at p. 194)71. As noted in the analysis above, the emphasis on intent alone as the key to unlocking discrimination has resulted in several practices, under the veneer of objectivity and equal application to all persons, to fall through the cracks of our equality jurisprudence. Indirect discrimination as a tool of jurisprudential analysis, can result in the redressal of several inequities by probing provisions, criteria or practice that have a disproportionate and adverse impact on members of groups who belong to groups that are constitutionally protected from discrimination under Article 15(1). However, it needs to be emphasized that a strict emphasis on using only one of the two tools (between direct and indirect discrimination) to establish and redress discrimination may often result in patterns and structures of discrimination remaining unaddressed.77. Therefore, an analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving our constitutional vision of equality and antidiscrimination. Systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure. In propounding this analysis, this Court is conscious of the practical limitations of every framework to understanding workforces, considering the bulk of litigation against systemic discrimination, would be from members of an organized and formal workforce who would have the wherewithal and evidence of patterns or practices to bolster their claims. For the laboring class in India, which is predominantly constituted by members facing multiple axels of marginalization, litigating their right to work with equality and dignity may be a distant dream. However, it is our earnest hope, that a vision of systemic discrimination, would aid members of even informal workforces who, in addition to battling precarity at their places of work, will be able to assert a right to equality and dignity. A framework that would situate their discrimination, against systemic societal patterns of discrimination that are constituted and compounded by social and economic structures, would help in addressing several fractures that are contributing to inequality in our society.78. In the dispute at hand, this Court is tasked with a duty to analyse the implementation of its earlier directions in Babita Puniya (supra) that struck down a directly discriminatory practice of excluding WSSCOs from PC. The petitioners claim of further discrimination in implementation, will have to be analyzed from the framework of systemic discrimination (which encompasses indirect discrimination), to determine a constitutional violation. In examining a retroactive grant of PC, a study of the systemic impact of the prolonged denial of PC to women and the evaluation structures and patterns therein, would be indispensable.83. There is a fundamental fallacy in the entire line of reasoning which has been advanced by the Army authorities both in the counter affidavit as well as in the written submissions of the ASG. The Policy Letter dated 15 January 1991 indicates that(i) A maximum of 250 SSCOs will be granted PC annually;(ii) A minimum cut-off grade 60 per cent is fixed, which is reviewable every two years;(iii) In case more than 250 officers fulfill the cut-off grade of 60 per cent, only 250 would be granted PC on competitive merit; and(iv) Other than non-optees and those unfit for retention, all others would be granted an extension of 5 years.84. The clear intent of the policy letter is 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.85. In the present case, there are a total of 615 women officers for consideration, across several batches. As many as 32 batches were under consideration. Annexure WR-6 to the written submissions of the Union of India carries the details of PC granted to male officers.86. The above table has been filed by the ASG as a part of his submissions, to counter the contention of the women officers that whereas most male officers have been granted PC, the number of women officers is abysmally low. The above chart provides 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).87. The chart, however, suppresses 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. However there is another and more fundamental aspect which emerges from the disclosure which has been made in the above chart by the Army authorities. The chart indicates the number of officers who were granted PC during the course of the selections which took place twice every year. A close reading of the data would show that in a number of years, the male officers who were granted PC was far lower than the ceiling of 250 vacancies prescribed by the policy letter of the MoD dated 15 January 1991.88. The statistics which have been advanced by the Army authorities disclose two things. Firstly, 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. It is also necessary to understand is that in many years the ceiling of 250 officers was not met and the number of officers that were granted PC were below 250, the question of evaluating officers on the basis of inter se competitive merit did not arise. This leads us to the second important aspect, which is, that 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.89. Bearing this in mind, we note the submission of the ASG that for the present year, while implementing the judgment of this Court in Babita Puniya (supra) the ceiling of 250 vacancies was not applied as a one-time measure. This further demolishes the so-called rationale for benchmarking which has been offered by the ASG. For the above reason, 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. This benchmarking becomes particularly problematic, when coupled with the manner in which the reliance on ACRs was made.The WSSCOs claim that when their ACRs were being written, women who had been appointed on SSC were not entitled to PC and hence their ACRs were written in a casual manner. Now, the narration of the Army Orders and instructions adverted to earlier, demonstrates that the recommendation of the Commanding Officer and the Brigade Commander was necessary for evaluating an officer for the grant of PC. This was reiterated in MoDs Policy Letter dated 30 September 1983, AO 18 /1988 and MoDs Policy Letter dated 24 February 2012. TheMoD Policy Letter dated 24 Februaryfor instance, clearly specifies the requirement that in every ACR, where the officer has been recommended for PC by the reporting officer, he will be awarded 0 mark, and where he has not been recommended for PC, he will be awarded minus 2 marks. Now, it is an indisputable position that since WSSCOs were not entitled to the grant of PC, this part of the ACRs was invariably left blank.This indicates that as recently as in October 2020, the same problem of the ACRs of WSSCOs not being endorsed with the recommendation continued to persist. The ASG submitted that this structural problem was corrected by treating all the WSSCOs in the present batch of 615 officers to be recommended for the grant of PC. However, the issue is not confined merely to WSSCOs not being recommended for PC in their ACRs, but instead relates to the broader aspect which permeated the whole process of ACR writing for women.92. WSSCOs, unlike their male counterparts, were not eligible for being considered PC in the 5th / 10th year of their service. The grievance is that the reporting officers treated these WSSCOs differently while writing their ACRs as compared to their male counterparts who were eligible for the grant of PC. For instance, a document titled Ready Reckoner for Initiating/Reviewing/Endorsing the Confidential Reports, Unit Assessment Cards and Non Initiation Reports states that in the case of women special entry officers, a recommendation for extension is mandatory. Evidently WSSCOs were being treated differently for the reason that they were not eligible for the grant of PC. Following the decision of this Court in Babita Puniya (supra), a study group was constituted by the Integrated Headquarters of MoD (Army) on 2 March 2020 to carry out a Holistic Appraisal of Induction and Employment of Women Officers in Indian Army(Ref Letter No B/32313/Road Map/AG/PS-2(a) dated 2 March 2020). In this context, the communication dated 2 March 2020, has taken note of the fact that career progression for women officers in terms of their being assigned for Army courses and posting exposure was limited as a result of an option for PC not being available. Noting this anomaly, the document records:11. Career Progression. The in service career progression of WOs in terms of detailment for Army courses and posting exposures etc is presently limited keeping in view that option for PC and further career prog was NA. The same will now need to be aligned to male offrs so as to place them on equal footing to compete for Nos 5, No 3 and other SBs. The Study Gp would be required to delve upon this issue in details and may also review the list of male courses applicable for WOs.The above communication which has been issued by Lt. General SK Saini, Vice Chief of Army Staff states that it has the approval of the COAS. The observation in the communication in regard to the limited posting opportunities which were available to women officers is borne out by an earlier communication(Ref Letter No 04520/MS Policy dated 30 December 2003) dated 30 December 2003 of the Military Secretary Branch, Army Headquarters which records that the posting of women officers in soft field and peace stations is affecting the posting profile of their male counterparts. Consequently, specific directions were issued for the posting of women officers at appointments in peace regions as well as in formations in the field.93. The above factors must be coupled with the following circumstances, which must be borne in mind while considering the remedial steps necessary to rectify the discrimination which has been suffered by the WSSCOs:(i) The number of vacancies which were available for the grant of PCs in the batches for which the WSSCOs were being considered over the years has not been disclosed while processing the claims for the grant of PC. As noted earlier, in many cases, the upper ceiling of 250 officers to be granted PC was not met and in some years, this limit was breached. If, as suggested by the tabulated statement produced by the ASG in the written submissions, vacancies were available, the criteria of meeting the benchmarking of the lowest male selected officer is evidently irrational and arbitrary. This rationale, while touted as a manner of including competitive merit, was ignorant of the structural discrimination that was faced by women officers whose ACRs were casually graded, even when compared to the least meritorious male officer in their corresponding batch;(ii) In the case of male officers, the process of conducting the Special No. 5 Selection Board for considering the grant of PC is initiated by issuing an order declaring the date of the Board in advance so that the preceding three ACRs can be taken into consideration to assess the performance of the officer for the grant of PC. An officer has the option to seek remedial measures before the redressal mechanism to espouse any adverse entry in the ACR. This process has not been followed in the case of the WSSCOs before the Special No. 5 Selection Board was conducted. As an illustration for this, the petitioners have relied on a communication dated 17 January 2020 of the Integrated Headquarters of MoD (Army) which specifically states as follows:Initiation and Despatch of CRs14 The cut off CR for consideration by No 5 SB is 31 Oct 2019 vide AO 4512001/MS as amended CO/OC will ensure that CR for the year 2018-19 is forwarded in time in the correct format, vide AO 45/2001/MS as amended, and should reach MS Branch (respective CR library) within specified time Intermediate formation HQs should ensure that the CRs/Spl CR is initiated/endorsed for timely submission Also ensure Spl CR (if initiated) reaches concerned CR Library on or before 31 Mar 2020(iii) In the counter affidavit which has been filed by the Col. Military Secretary (Legal) it has been specifically admitted that:15…it is submitted that women officers were considered by No 5 SB in 5th and or 10th year for extension of service only. The criteria of medical fitness for grant of permanent commission and grant of Extension of service are entirely different. No SSC officer has ever been denied extension of service due to medical reasons. Therefore, the contention that since the petitioners were found medically fit at 5th or 10th year of service, as the case may be, when they were considered for extension of service, they should be now considered as fit for grant of permanent commission, are baseless.Women officers were considered by Special No. 5 Selection Board in their 5th and/or 10th year of service for extension of service only. In other words, Selection Board 5 was for extension and PC, but the women officers were granted only extensions because the option of PC was not available;(iv) The ratio between the marks assigned to computer evaluation and the value judgment marks assigned by the members of the Board was initially pegged at 80:20 as on 30 September 1983. This came to be altered on 24 February 2012 by MoDs Policy Letter to 95:5. In the written submissions tendered by the ASG it has been argued that :21. As per Annexure R-5 (page 122-132)MoD Policy Letter dated 30 September 1983, the quantified profile marks are to be given out of 80, while the marks for value-judgment are to be given out of 20. Juxtaposed, as per Annexure R-6 (page 133-144)D Policy Letter dated 24 February, the same are to be given in the ratio of 95:05 (Please see page 134). Depending upon their batch, the petitioners and other similarly placed women SSC officers were assessed either under Annexure R-5 or under Annexure R-6, as was done in the case of their male counterparts as well.The above submission indicates that while with effect from 30 September 1983, the value judgment marks were graded out of 20, it was subsequently brought down to 5 marks on 24 December 2012. The above extract indicates that the petitioners and other similarly situated WSSCOs were assessed either under the 30 September 1983 norm or as the case may be the 24 February 2012 norm, depending on their batch. The inherent lack of fairness is evident from the fact that the value judgment marks which were assessed for their male counterparts were by a different Special Board 5 in distinction to the Special Board which considered the case of the WSSCOs. There is a subjectivity inherent in value judgment marks which is the reason for bringing them down from 20 to 5. The issue is exacerbated in the case of the WSSCOs involved in the present case because the marks for value judgment have been assigned by a completely distinct Board;(v) It has been admitted in the counter-affidavit that the confidential reports, discipline and vigilance reports if any, and honours and awards as on the 5th or 10th years of service were considered in the case of the women officers. As a consequence of this, the qualifications, achievements and performance of women officers after the 5th or 10th year of service (as the case may be) have been ignored. At this stage, it is necessary to note that para 13(b) of AO 18/1988 specifically contemplates the last ACR before assessment for PC being taken into reckoning for grant of PC. Similarly MoDs Policy Letter dated 24 February 2012 specifically contemplates that in evaluating the overall performance of the officer, the average will be worked out for each year as well as for the entire period of officers services. Para 4(a) stipulates thus:(a) QAP: Overall performance of the officer is evaluated by taking the average of figurative assessment of all reporting officers other than FTO and HTO. Average will be worked out for each year as well as for the entire period of officers service. The latter QAP will be converted into a proportion of 75 marks.In spite of the above clear stipulations, it is now an admitted position that the distinguished record of the WSSCOs beyond the 5th/10thyear of service has been disregarded. The laurels achieved by them in the service of the nation after the 5th/10th year of service have been ignored;(vi) It has been submitted on affidavit that even women officers who have been awarded the prestigious commendation card from the COAS have been denied PC. As an example it has been stated that Lt. Col. Shikha Yadav (as well as several other women officers) have been denied PC though they have been awarded the COAS commendation. Lt. Col. Tashi Thapliyal was awarded the Vishisht Seva Mandal. Several women officers who have served in UN Missions overseas have been denied PC. There are women officers who have excelled in national sports events, exemplified by Major Pallavi Sharma who has a proven track record inter alia in shooting championships which has been ignored;(vii) In IA 12148 of 2020 in Writ Petition (C) 1172 of 2020 (Lt. Col. Sonia Anand v. Union of India), a detailed chart has been annexed indicating illustrations of women achievers who have been denied PC. At the cost of enlarging the size of this judgment, it becomes necessary to highlight the tabulated statement. The facts which have been set-forth before the Court have not been denied during the course of the submissions of the ASG :Illustrations: Women Officer Achievers who have been denied Permanent Commission.(viii) Of the above officers, it is necessary to emphasize in particular Lt. Col. Navneet Lobana (serial No XIV above). Lt. Col. Lobana is presently pursuing an M.Tech degree course for which she has been deputed by the Army from 30 July 2020. Following the decision not to grant a PC to her, the officer has been asked to refund the cost of the course which is approximately between Rs. 8.5 to 10 lacs. Applications for selection of officers for a Master of Technology in Structures at the College of Military Engineering were invited by the Training Branch, E-i-Cs Branch of Integrated Headquarters of MoD (Army), by a communication dated 28 November 2019. Based on a qualitative requirement criterion, the applications were shortlisted and a list of officers eligible for the interview was published on 20 April 2020. Lt. Col. Lobana was interviewed by a panel of DRDO Scientists at the College of Military Engineering, a Board of Officers headed by Brigadier rank officers and member officers from MS Branch 12 (Military Secretary Branch of Corps of Engineers) and Training Branch from E-in-Cs Branch. The officer was finally detailed on 10 July 2020 and has given an undertaking to continue to serve the Army for a minimum period of five years. Following her selection for the course, Lt. Col. Lobana moved from her posting at Patiala and reported to the College of Military Engineering, Pune and the course commenced on 30 July 2020. She is the only woman officer who has qualified in 2020 for an M.Tech in the Indian Army. She has been denied PC and has been asked to refund the cost of the course. The issue of medical fitness is not being considered here since it will be dealt with later.94. The above analysis leads to the conclusion that the process by which WSSCOs, were evaluated 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 (supra). Additionally, its belated and formal application causes an effect of indirect discrimination. The petitioners submitted that Special No. 5 Selection Board appears to have been more a Board for rejection of candidates, than for selection. Some of the finest women officers who have served the Indian Army and brought distinction by their performance and achievements have been excluded by refusing to consider their achievements on the specious ground that these were after the 5th/10th year of service. They have been asked to benchmark with the last male counterparts from the corresponding batches. The benchmarking criterion plainly ignores that in terms of theMoD Policy Letter dated 15 January 1991a 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. As the figures which have been disclosed by the Union of India indicate, for the period from 1994-2010, there were years when the ceiling of 250 officers had not been reached. Then there are other years where the total number of male officers granted PC was well in excess of 250. For years during which the ceiling of 250 had not been reached, there is absolutely no justification to exclude the WSSCOs who had fulfilled the cut-off grade on the basis of the benchmarking criteria. Moreover, it is evident that the ceiling of 250 was not regarded as an absolute or rigid criterion as already indicated in the earlier part of this judgment.95. 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. 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 fulfill the avowed purpose of benchmarking which was to compare like with like.We do not find merit in the submissions of the ASG. While it may be the case that in some instances women officers were given the opportunity to undertake additional courses to enhance their performance, we must also be alive to the other end of the spectrum which is that, at no point during their service were women officers incentivized to take such performance enhancement courses as they were never eligible for grant of PC then. It may have been the case that for extension of their service such performance enhancing measures were not critical. Even if we take the argument of the ASG at its highest and concede that these additional courses would not make any difference since the marks were given on an average, it is still possible that these courses could have impacted the value judgment or the subjective criterion of 20 or 5 marks, as the case may be, in their ACRs. The impact caused by the evaluation of ACRs, particularly on the marks for performance of courses is a stark representation of the systemic discrimination that pervaded the structures of the Army. 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). Accordingly, some womens failure to opt for courses in the past that would strengthen their chances and reflect positively on their ACRs is not a vacuous exercise of choice but a consequence of a discriminatory incentive structure.97. Finally, the above analysis indicates that 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.98. On the basis of our analysis we have come to the conclusion that while implementing the judgment of this Court in Babita Puniya (supra), the Army authorities have attempted to demonstrate the application of a facially neutral standard as between WSSCOs and their male counterparts. The entire approach is indicated in the following averment in the counter affidavit filed by the Military Secretary:That the Petitioners herein on one hand seek to be treated at par with the male counterparts, however, on the other hand, seek special and unjustified treatment in the eligibility conditions.Subsequently, in the course of the written submission, an apology has been tendered in the following terms:11. At this stage, an apology would be in order as regards the equivocality of the last sentence in para 14 of the C/A (pages 21 and 22), which though made in good faith to emphasize the point that the implementation is being done, treating women officers at par with the men officers, ended up, albeit inadvertently, carrying an impression as if the same is being done to complete the rituals. It is submitted that the UoI is immensely proud of the contribution of women officers to the cause of Indian Army. It is submitted that it is not by any pre-planning that a particular number of women SSC officers do not find themselves approved for PC.99. The fact that there was no pre-planning to exclude women from the grant of PC is irrelevant under an indirect discrimination analysis. As we have noted previously, under this analysis, the Court has to look at the effect of the concerned criteria, not at the intent underlying its adoption. In light of the fact that the pattern of evaluation will in effect lead to women being excluded from the grant of PC on grounds beyond their control, it is indirectly discriminatory against WSSCOs.100. We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the norm and may appear to be harmless, are a reflection of the insidious patriarchal system. At the time of Independence, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavored to achieve the guarantee of equality enshrined in our Constitution. A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint.(Catharine A. MacKinnon, TOWARDS A FEMINIST THEORY OF STATE (Harvard University Press 1989) at p.220.) Presently, adjustments, both in thought and letter, are necessary to rebuild the structures of an equal society. These adjustments and amendments however, are not concessions being granted to a set of persons, but instead are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women. 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.101. Accordingly, the respondents must remove the requirement of benchmarking the WSSCOs with the last male officer who had received PC in their corresponding batches and all WSSCOs meeting the 60% cut-off must be granted PC. Additionally, the calculation of the cut-off at 60%, which must by army orders and instructions be reviewed every 2 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. 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.102. The medical criteria for assessing officers for the grant of PC have been specified in Army instructions and Army Orders to which a detailed reference has been made in the earlier part of this judgment. While dealing with the application of the criteria to the WSSCOs in pursuance of the judgment in Babita Puniya (supra), it would be necessary to revisit some salient features:(i) SAI/3/S/70 specifically provided that in order to be eligible to apply for PC, an SSC officer must be in medical category A-1. Those placed in medical categories A-2, B-1 and B-2 as a result of casualties suffered in action during operations could also be considered on the merits of each case by the government;(ii) Subsequently, when the SHAPE criteria was introduced, para 2(b) was re- constructed in 1972 by AI 102/1972 to stipulate that the medical category should not be lower than grade-II under any of the SHAPE factors, excluding the S factor in which the grade should not be lower than 1. In exceptional cases, it was stipulated that a grading of 2 in both H and E together may be acceptable. A low medical categorization could not be due to medical reasons, but only as a result of casualties suffered in action during operations or due to injury or other disability sustained during duty;(iii) Subsequently, AO 110/1981 contained a stipulation for medical boards. Para 13 indicated that for officers who are placed in the TLMC, medical board proceedings recorded on form AFMSF-2 are not required until their medical category stabilizes. Upon the stabilization of the medical category, certain procedures had to be followed;(iv) Army Instruction 75-81 dated 4 November 1978 provided for the terms and conditions of service for officers granted SSC in the Army Medical Corps. While laying down an upper age limit of 45 years, para 3(d) also stipulated that applicants must be in medical category SHAPE-1;(v) AO 18/1988 stipulates in para 21, that the medical category of an officer seeking PC should not be lower than grade 2 under any of the SHAPE factors, excluding the S factor in which the grade should not be lower than 1. In exceptional cases, grading of 2 in both H and E together acceptable. Moreover low medical categorization should have been caused as a result of casualties suffered in action during operations or due to injuries or other disabilities sustain during duty;(vi) Army Instruction 14/1999 dated 1 August 1999 amended SAI 3/S/70 by stipulating thatTheir medical category should not be lower than S1 or H2 or A3 or P2 or E2 or H2E2 or H2A3 or H2P2 or E2A3 or E2P2. However grant of Permanent Commission to low medical category Short Service Commissioned Officers will be subject to rendition of the requisite certificate in terms of AO 20/75(vii) AO 9/2011 specifically defines the meaning of the SHAPE criteria and makes detailed provisions in regard to modalities for evaluation of medical fitness. We have already adverted to the meaning and content of the SHAPE criteria in the earlier part of this judgment.104. Now the singular aspect of the medical requirements that must be noticed at the outset is that there is a broad consistency of policy on the norms, which have to be fulfilled in order for an officer to qualify for the grant of PC. Another important facet which needs to be emphasized is that SHAPE-1 has a specific meaning which is assigned to it under AO 9/2011. 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. The requirement of being in grade-1 in each of the five factors of SHAPE is subject to relaxation in terms of exceptions which are clearly spelt out. The policy provides a concession to such candidates who may not have suffered injury on the line of duty as a result of which their medical categorization has been lowered. But this should not be lower than S1 or H2 or A3 or P2 or E2 or A2E2 or H2A3 or H2P2 or E2A3 or E2P2. The exception which has been provided is available if an injury (as distinct from a disease) has been suffered while on the line of duty, irrespective of whether it has been incurred during peace time or in field operations. Officers in the PLMC who fulfill the terms of the exception are granted PC, if they are otherwise found fit on merits. The requirement of fulfilling the SHAPE criteria as explained earlier is a pre-requisite even in such arms or services where both men and women join up to the age of 45 years, as in the case of the Army Medical Corps. The Army follows and adopts the TLMC norm which allows an officer placed in that category to return to SHAPE 1 within the stabilization period of one year. By this, an opportunity is granted to the officer to return to the SHAPE-1 category within one year.105. Physical fitness is crucial for securing a place in the Army. While exercising judicial review, the Court must be circumspect on dealing with policies prescribed for the Armed Forces personnel in attaining norms associated with physical and mental fitness. In the present case, as disclosed before this Court, out of the initial 87 petitioners contesting the proceedings in 7 writ petitions, 55 are SHAPE 1 going up to the age of 52 years, 23 have been assigned to PMLC, while 9 are placed in TLMC. The material which has been placed on record in the form of AO 9/2011 indicates a classification range of minimum and maximum permissible parameters for each of the five factors comprised within the SHAPE norm.This tabulation indicates a significant proportion of WSSCOs, irrespective of their belated consideration, are able to presently meet the prescribed criteria. With respect to the medical criteria prescribed by the Army, we are cognizant that there can be no judicial review of the standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization. The SHAPE criterion is per se not arbitrary.106. Having come to the conclusion that the medical criterion is per se not arbitrary, it is the Courts responsibility to examine whether it has been equally applied. We cannot shy away from 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. By the judgment of the Delhi High Court dated 12 March 2010, specific directions were issued for considering the women SSC officers for the grant of PC. This was a decade ago. During the pendency of the appeal from the judgment of the Delhi High Court before this Court, there was no stay on the application of the judgment of the High Court. This was specifically clarified by the order of this Court on 2 September 2011. The intent of the clarification was that implementation of the directions of the High court must proceed. The WSSCOs have submitted with justification that 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. Serious hardship has been caused by the Army not considering the cases of these WSSCOs for the grant of PC at the relevant time, despite the express clarification by this Court. Though the contempt proceedings against the respondents were stayed, this did not obviate the obligation to comply with the mandate of the judgment of the Delhi High Court especially after a specific clarification that no stay had been granted. Consideration for PC was not just a legitimate expectation on the part of the WSSCOs but a right which had accrued in their favour after the directions of the High Court, which were issued about a decade ago. The WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the SHAPE 1 criterion has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the Delhi High Court. Such 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. In other words, there is no challenge to the criteria for medical fitness prescribed. These WSSCOs do not seek a special dispensation or exemption for themselves, as women. The essence of the dispute is when the SHAPE 1 criterion has to be applied in the peculiar circumstances which have been noted above.107. Within the SHAPE criterion, para 31 of AO 9/2011 provides for functional capacities. This ranges from category 1A (fit for all duties anywhere) and category 1B (fit for all duties anywhere under medical observation without employability restrictions); category 2 (fit for all duties but with limitations involving severe physical and mental stress); category 3 (except S factor fit for routine or sedentary duties but limitations of employment duties both job wise and terrain wise); category 4 (temporarily unfit for duties on account of hospitality/sick leave); and category 5 (permanently unfit for military duties).We need not dwell on that aspect since it is an admitted position that SHAPE-1 is not a requirement for continuation in service. The ASG had sought to bolster his submission of SHAPE-1 as a threshold requirement for PC, by relying on the recruitment process for the Army Medical Corps, where even a 45 year old person seeking recruitment, must comply with SHAPE-1 medical criteria. However, a critical assumption that undergirds the grant of PC is the approximate age of persons who would be under consideration. The WSSCOs in this case are not fresh recruits who are due to be considered in their 5th or 10th year of service, nor are they seeking exceptional favors on account of their sex.109. On one hand, the Army authorities are insistent on relying on the medical criteria as a filtering mechanism for grant of PC to WSSCOs. On the other hand, we have WSSCOs who have legally fought for their rights and are additionally suffering due to the untimely implementation of their hard-won rights. 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. An enhancement in the qualifications of WSSCOs from their 5th/10th year of service till today, as would be reflected in their recent ACRs, would demonstrate them as an experienced pool of human resource for the Indian Army. However, a reduction of medical fitness below the SHAPE 1 norm at present as a consequence of age or the tribulations of service is not a necessary detriment to the Army when similarly aged male officers with PC (invariably granted in the 5th or 10th year of their service) no longer have to meet these rigorous medical standards for continuing in service. This is further bolstered by the fact that the WSSCOs who are no longer in SHAPE-1, have been meaningfully continuing in service, even after 14 years of service, till the declaration of results of the PC in November 2020.110. We also must express our anguish at the respondents failure to implement the judgment rendered by the Delhi High Court in 2010, whose operation was specifically not stayed by this Court in 2011. The conundrum on the applicability of the medical criterion to WSSCOs who are 40-50 years old, has arisen only because of the Army not having implemented its decision in time, despite the course correction prescribed by the Delhi High Court in 2010. The WSSCOs, a few of whom are petitioners before us today, have persevered for over a decade to gain the same dignity of an equal opportunity at PC. The fact that only around 35 women who are otherwise fit for PC, and 31 women who do not qualify in addition to not meeting the medical criteria, is irrelevant in determining whether each of these women is entitled to equality of opportunity in matters of public employment under Article 16(1) and (2). As observed by a 9 judge bench of this Court in Justice KS Puttaswamy v. Union of India,((2017) 10 SCC 1 ) a de minimis rationale is not a permissible exception to invasion of fundamental rights. The Court, speaking through one of us (Chandrachud, J.) had held that the de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.( Id. at para 128) Similarly, the percentage of women who have suffered as a consequence of the belated application of rigorous medical criteria is irrelevant to the determination of whether it is a violation of Articles 14, 15 and 16 of the Constitution.111. In rendering the decision in Babita Puniya (supra), this Court was mindful of the insidious impact on the generations of women who must have given up on their dreams to serve in the Armed Forces owing to the gendered roadblock on their aspirations, and of the women who must have chosen to opt out of availing an extension to their SSC terms on similar grounds. 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. It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women. 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.112. We are unable to accept the ASGs submission on the medical criteria being modulated to account for advancement of age. 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.113. Another aspect of the case relates to the interpretation of the direction in Babita Puniya (supra) mandating WSSCOs who have completed 14 years of service as on the date of the judgment to be considered for PC. In the event of their non-approval or non-option, these officers are to be continued in service for 20 years, with benefits of pension. In Babita Puniya (supra), the directions issued by this Court, were while accepting the policy decision of the Union Government. The policy decision of the Union Government for the grant of PCs to WSSCOs in all the ten streams where women were granted SSC in the Indian Army was accepted, subject to several conditions which were spelt out in clauses (a) to (g) of direction (1) in paragraph 69 of the judgment. The directions (a) to (c) are again reproduced below as a convenient point of reference:(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service.(b) The option shall be granted to all women presently in service as SSC officers.(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service.(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC.Directions (e), (f) and (g) are not material at this stage. Direction (d) refers to existing SSC officers with more than 14 years of service. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service.114. The petitioners in Lt. Col. Reena Gairola v. Union of India(Writ Petition (Civil) No. 34 of 2021) and in Major Nilam Gorwade v. Union of India(Writ Petition (Civil) No. 1223 of 2020) belong to the group of women officers recruited under the WSES(O)- 27 to 31 and SSCW(T&NT) 1 to 3. These petitioners were commissioned on or after March 2006 and had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra). Under the directions in Babita Puniya (supra), in case they do not opt for PC or opt for PC and are not granted PC, they will be released at the end of their 14 years of contractual service. The petitioners in these batches would neither be entitled to pension as they would have only completed 14 years of service at the end of their contract, nor would they be given the one time relief granted in Babita Puniya (supra) of entitlement to continue in service for 20 years.It is pertinent to mention that these petitioners were not a party before this Court in Babita Puniya (supra) and consequently could not make out a case for their entitlement to a similar relief for extension till they attain pensionable service, in light of the respondents failing to consider them in time, despite the petitioners being beneficiaries of the judgment of the Delhi High Court.Once relief was granted to them by the Delhi High Court and the interim order of the Supreme Court, these WSSCOs took a conscious decision based on these reliefs to continue in service, in anticipation that sooner or later, they would be granted PC. Had they been rejected for PC upon the judgment of the Delhi High Court in 2010, that is over a decade ago, it would have been easier for them to make a career shift and seek employment elsewhere.117. This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya (supra), was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The one-time benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. The Courts objective in providing for such a cut- off was to compensate for the impact of the discrimination which had denied them timely opportunities and to account for the significant risk and commitment they demonstrated by their continuation in service.