LT. COL. NITISHA & ORS. versus UNION OF INDIA & ORS.
[2021] 4 S.C.R. 633, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Ratio
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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. The table below,
which is prepared on the basis of the above chart of the Union of India,
computes the number of male officers granted PC between 1994 and
2010:
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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Year of Commission  
No. of Officers granted PC  
Total Officers granted PC in 
one year  
1994 
77 + 106 
183 
1995 
90 + 67  
157 
1996 
113+ 96 
209 
1997 
23 + 178 
201 
1998 
85 + 120 
205 
1999 
141 + 166 
307 
2000 
114 + 159  
273 
2001 
141 + 161 
302 
2002 
108 + 95 
203 
2003 
95 + 115 
210 
2004 
107 + 168 
275 
2005 
138 + 168 
306 
2006 
175 + 156 
331 
2007 
132 + 133 
265 
2008 
128 + 87 
215 
2009 
87 + 117 
204  
2010 
77 
77 
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
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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.
G. 3 Reliance on Annual Confidential Reports
90. The next aspect which needs to be analysed is the grievance
of the
women officers on the reliance placed on their ACRs for
determining the grant of PC. 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 MoD’s Policy Letter dated
30 September 1983, AO 18 /1988 and MoD’s Policy Letter dated 24
February 2012. The MoD Policy Letter dated 24 February 2012, for
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.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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91. In this context, Army Order 45 of 200180 dated 31 December
2001 inter alia stipulated in para 124 that “communicating the relevant
portions of the assessment by first level of reporting officers, is one of
the basic principles for achieving objectivity in the system of reporting”.
Para 125(c) specifically stipulated that “when ratee is Not Recommended
for Promotion or Not Recommended for Permanent Regular Commission/
Extension for Short Service Commissioned Officers”, even then the
assessment by the second or higher-level rank officer must be disclosed.
The reasons and justification were to be communicated along with the
pen picture to the officer reported upon. On the other hand, it has been
accepted by the Army authorities that the ACRs of the WSSCOs on the
aspect of the recommendation for PC were left blank for the simple
reason that these officers were not being considered for the grant of
PC. As a matter of fact, even as late as 23 October 2020, a communication
has been addressed by the Secretary Military Branch, Integrated
Headquarters of MoD (Army) in the following terms:
“A/17151/5/MS 4 CR Policy
23 Oct 2020
HQ
Southern Comd (MS)
Eastern Comd (MS)
Western Comd (MS)
Central Comd (MS)
Northern Comd (MS)
ARTRAC (MS)
South Western Comd (MS)
SFC (MS)
IDS (MS & SD)
ANC (MS)
ENDORSEMENT OF RECOMMENDATION FOR
PERMT COMMISSION IN CRs FOR WOMEN OFFRS
1.
As per instrs issued vide ADG PS/ AG’s Br Letter No PC
32313/PC
to Women offr/Admn Instrs/AG/ PS-2(a) dt 30
80 AO 45/2001/MS- Confidential Reports on Officers
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Jul 20, women offrs of the IA will hereinafter be considered
for permt commission in all Arms/services. The same
necessitates endorsement of specific recoms (Yes/ No)
wrt grant of permt commission by Reporting Offrs in
CRs of women offrs. It has however been obs that
Reporting offrs are still erroneously endorsing ‘NA’ in the
CR coln related to the same.
2.
Above in view, in accordance with instrs above, it is clarified
that Reporting Offrs will mandatorily endorse either
‘YES’ or ‘NO’ in the coln of “Recommendation for Permt
Commission” in CRs of all women offrs.
3.
The above may pl be disseminated to all concerned for
compliance.”
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”81 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
81 Ref MS Br Letter No A/17151/MS 4 (Coord) dated 20 February 2004, provided that:
“(o) In case of Short Service Commissioned Officers, recommendations for ‘PRC/
Extension’ are mandatory. In case of Women Special Entry Scheme Officers,
recommendation for ‘Extension’ is mandatory. Reasons for ‘Not Recommended’ should
be communicated to the Ratee.”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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2020 to carry out a “Holistic Appraisal of Induction and Employment of
Women Officers in Indian Army”82. 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 communication83 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
82 Ref Letter No B/32313/Road Map/AG/PS-2(a) dated 2 March 2020
83 Ref Letter No 04520/MS Policy dated 30 December 2003
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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 CRs
14 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
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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.” (emphasis supplied)
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 MoD’s 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) [MoD Policy Letter
dated 24 February 2012], 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.” (emphasis supplied)
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
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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
MoD’s 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.”
(emphasis supplied)
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;
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(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 ignored84;
(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.
84 We cite these examples only to reflect the outstanding nature of the service of WSSCOs.
We do so in full recognition of the fact that that these instances merely constitute a
drop in the ocean of the contribution of women officers in the
Armed Forces.

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(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 depued 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
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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-C’s
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-C’s 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 the MoD Policy Letter dated 15 January
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
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1991 a 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.
96. In addition to this, an argument on systemic flaws has been
advanced by the petitioners that they were not given career enhancement
opportunities available to their male counterparts, such as participating
in performance courses, and in cases where they did participate in such
courses, it was not given due reflection in their ACRs. The ASG in his
written submissions has stated that this argument is incorrect and that
women officers have done mandatory courses. The only difference, he
states, lies in the fact that certain male officers had done additional non-
mandatory courses, which would not give any extra advantage as the
marks were given only on an average basis. 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
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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 women’s 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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 inthe 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
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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.85 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.
G.4 Medical Criteria
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:
85 Catharine A. MacKinnon, TOWARDS A FEMINIST THEORY OF STATE (Harvard University
Press 1989) at p.220.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(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 that
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“Their 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.
103. The essence of the submission which has been urged on
behalf of the petitioners is that the General Instructions dated 1 August
2020 stipulated that only those officers who are SHAPE 1 or in the
PLMC will undergo a medical board. Officers with TLMC were required
to submit the proceedings of their medical categorization or re-
categorization, giving their present medical category. Such TLMC officers
who were otherwise found fit for PC by the Special No. 5 Selection
Board were given a maximum period of one year of stabilization of their
medical category. As regards officers in the PLMC categorization, it
was clarified that this should not be due to medical reasons (whether
attributable to military service or not) but should have been a result of
casualties suffered in action during operations or due to disabilities by
other injury sustained during duty such as while traveling on duty, during
training exercises or playing organized games under regimental
arrangements. In addition, certain specific medical categories were made
ineligible for the grant of PC.
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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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. The submission of the respondents is that these parameters
have been fixed, keeping in mind the inevitable advancement of age of
both men and women officers. Moreover, in refusing to consider the
SSC extensions as sufficient evidence of fitness, it has been submitted
by the respondents that an unsaid concession is made in terms of medical
requirements where an officer has been considered for extension as
opposed to when they are considered for grant of PC. Another important
aspect which has been emphasized is that out of 615 WSSCOs officers,
422 were found fit on merits for PC subject to fulfillment of medical and
discipline parameters. Out of these 422, 57 were non-optees. From the
remaining 365, 277 women officers were found fit on merits as well on
medical parameters and have been granted PCs. Of the remaining 88,
42 are TLMC and have the opportunity to upgrade this to the required
medical parameters within one year. Out of the remaining 46, only 35
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were found not to meet the medical criteria. These 35 officers constitute
less than ten per cent of the 365 who had opted for the grant of PC and
were found fit on merits. Even in the remaining 193 officers (615 minus
422 found fit) that were not considered fit for PC, it was submitted that
164 of these officers fulfilled the SHAPE-1 criterion. 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 Court’s 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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).
108. It has been submitted by the petitioners that while being in
SHAPE 1 is the requirement at the induction or entry level, it is not the
requirement for continued service in the Army. Many of their male
counterparts who are granted PC in their 5th or 10th year of service are
entitled to continue in service, irrespective of whether they continue to
be compliant with SHAPE 1 criteria. In fact, the ASG and Mr
Balasubramaniam, learned Senior Counsel, submitted that even for the
time scale promotions to the rank of Colonel and Brigadier, there may be
no SHAPE-1 requirement. 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
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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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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,86 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.”87 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 ASG’s 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
86 (2017) 10 SCC 1
87 Id. at para 128
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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
5thor 10th year of their service.
G.5 WSSCOs belonging to WSES(O) 27-31 and SSC(T&NT)
1-3 who had not completed 14 years of service as on the date of
Babita Puniya
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:
“69. […]
(i) […]
(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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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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.”
(emphasis supplied)
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 India88
and in Major Nilam Gorwade v. Union of India89 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.
115. The petitioners in the abovementioned writ petitions have
argued that within their batches (WSES(O) - 27 to 31 and SSCW(T&NT)
1 to 3), 161 women have been granted PC, out of the 284 serving officers.
66 officers who were not approved for PC (allegedly, inter alia, as a
consequence of the medical criteria and ACR assessment) and 9 officers
who did not opt for PC, have to retire at the end of their contractual term
of 14 years, with no pension or benefits. It is pertinent to mention that
these petitioners were not a party before this Court in Babita Puniya
88 Writ Petition (Civil) No. 34 of 2021
89 Writ Petition (Civil) No. 1223 of 2020
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(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.
116. The case of the petitioners is also that at the time of rendering
of the judgment of the Delhi High Court in 2010, these WSSCOs had
completed a maximum of 4 years in service (or less). 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 Court’s 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.
118. It has been brought to our attention that the women officers
in the batches of WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3 face a
similar predicament as they are being considered for PC beyond their
10th year in service (in the best case). Similar to the women in the older
cadres who were denied opportunities, career progressions and
assurances owing to the respondents’ failure at the relevant time to ensure
gender equality in the forces; the women in the batches who were
between 10-14 years of their service were meted the same insecurity.
The WSES scheme has been discontinued and the WSES(O) 31,
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
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commissioned in 2008, is the last batch to have gained entry in the scheme,
rendering it a ‘dying cadre’. We have deployed the expression ‘dying
cadre’ not in a pejorative sense. The expression has a specific meaning
in service jurisprudence to denote a dwindling class of officers in service.
The officers in the consequent batches of SSCW (T&NT) 1 to 3, although
part of the new scheme that replaced WSES, will be the only batches
who will face an adverse impact of the respondents’ failure to implement
the Delhi High Court judgement before the 10th year of their service. In
exercise of the constitutional power entrusted to this court under Article
142 to bring about substantial justice, we are compelled to extend the
benefit of directions (c) and (d) in Babita Puniya (supra) to the officers
of the abovementioned batches, as a one-time benefit. This one-time
extension, would bring parity inter se between officers who were
discriminated by their non-timely consideration by the respondents.
H Conclusion and directions
119. 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 (supra) disproportionately
affects women. This disproportionate impact is attributable to the
structural discrimination against women, by dint of which the
facially
neutral criteria of selective ACR evaluation and fulfilling the medical
criteria to be in SHAPE-1 at a belated stage, to secure PC
disproportionately impacts them vis-à-vis their male counterparts. The
pattern of evaluation, by excluding subsequent achievements of the
petitioners and failing to account for the inherent patterns of discrimination
that were produced as a consequence of casual grading and skewed
incentive structures, has resulted in indirect and systemic discrimination.
This discrimination has caused an economic and psychological harm
and an affront to their dignity.
120. For the above reasons, we allow the petitions in terms of the
following directions:
(i)
The administrative requirement imposed by the Army
authorities while considering the case of the women SSCOs
for the grant of PC, of benchmarking these officers with
the officers lowest in merit in the corresponding male batch
is held to be arbitrary and irrational and shall not be enforced
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while implementing the decision of this Court in Babita
Puniya (supra);
(ii)
All 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, subject
to their meeting the medical criteria prescribed by the
General Instructions dated 1 August 2020 (as explained in
(iii) below) and receiving disciplinary and vigilance
clearance;
(iii)
For the purpose of determining the fulfillment of direction
(ii), the medical criteria stipulated in the General Instructions
dated 1 August 2020 shall be applied at the following points
of time:
(a)
At the time of the 5th year of service; or
(b)
At the time of the 10th year of service, as the case
maybe.
In case the officer has failed to meet the medical criterion
for the grant of PC at any of these points in time, the
WSSCO will not be entitled to the grant of PC. We clarify
that a WSSCO who was in the TLMC in the 5th/10th year
of service and subsequently met the SHAPE-1 criterion
after the one year period of stabilization, would also be eligible
for grant of PC. Other than officers who are “non-optees”,
the cases of all WSSCOs, including the petitioners who have
been rejected on medical grounds, shall be reconsidered
within a period of one month and orders for the grant of PC
shall in terms of the above directions be issued within a
period of two months;
(iv)
The grant of PC to the WSSCOs who have already been
granted PC
shall not be disturbed; 
(v)
The WSSCOs belonging to WSES(O) - 27 to 31 and
SSCW(T&NT) 1 to 3 who are not considered to be eligible
for grant of PC after the above exercise, will be extended
the one-time benefit of direction (c) and (d) in Babita Puniya
(supra);
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
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(vi)
All consequential benefits including the grant of time scale
promotions shall necessarily follow as a result of the
directions contained in the judgment in Babita Puniya
(supra) and the present judgment and steps to do so shall
be completed within a period of three months from the date
of the judgment;
(vii)
The candidature of Lt. Col. Navneet Lobana, Petitioner
No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered
for grant of PC in terms of the above directions. 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;
(viii) In accordance with pre-existing policies of the respondents,
the method of evaluation of ACRs and the cut-off must be
reviewed for future batches, in order to examine for a
disproportionate impact on WSSCOs who became eligible
for the grant of PC in the subsequent years of their service;
and
(ix)
During the pendency of the proceedings, the ASG had
assured the Court that all the serving WSSCOs would be
continued in service, since the Court was in seisin of the
proceedings. There shall be a direction that this position
shall continue until the above directions of the Court are
implemented and hence the serving WSSCOs shall be
entitled to the payment of their salaries and to all other
service
benefits.
121. The writ petitions are accordingly disposed of in the above
terms.
122. Pending application(s), if any, stand disposed of.
Nidhi Jain
Writ petitions disposed of.