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
A
B
C
D
E
F
G
H
633
633
   [2021] 4 S.C.R. 633
LT. COL. NITISHA & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No 1109 of 2020)
MARCH 25, 2021
[DR. DHANANJAYA Y CHANDRACHUD
AND M. R. SHAH, JJ.]
Armed Forces:Permanent Commission (PC) – Claim of women
engaged on Short Service Commission (SSC) in the Indian Army –
Said claim held to be justified by this Court in Babita Puniya’s case
– Thereafter, issuance of directions to the Union Government to
grant of PCs to Women SSC Officers in armed services – Petitioners
aggrieved by the steps taken by the Union Government to implement
Babita Puniya’s case-conduct of special selection procedure to screen
WSSCOs for grant of PC on the same terms as their male
counterparts; SHAPE-1 Medical criteria; performance in the fifth
year of their service; 60 per cent cut-off grade and an annual cap
of 250 – Writ petition u/Art. 32 challenging the modalities followed
in assessing the 615 WSSCOs for grant of PC after Babita Puniya’s
case – Held: Evaluation criteria set by the Army constituted systemic
discrimination against the petitioners – Evaluation pattern
disproportionately affects women – This disproportionate impact is
attributable to the structural discrimination against women – Facially
neutral criteria of selective (Annual Confidential Reports)
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 – Exclusion of subsequent
achievements
of the petitioners and casual grading and skewed incentive
structures resulted in indirect and systemic discrimination – This
discrimination has caused an economic and psychological harm
and an affront to their dignity – Issuance of directions that
requirement of benchmarking women officers with officers lowest
in merit in corresponding male batch is arbitrary and irrational
and would not be enforced while implementing Babita Puniya’s case;
that officers who have fulfilled the cut-off grade of 60 per cent in
Special selection Board entitled to grant of PC; that medical criterion
to be applied at the time of 5th year/10th year of their service; that
A
B
C
D
E
F
G
H
634
SUPREME COURT REPORTS
[2021] 4 S.C.R.
WSSCOs not considered to be eligible for grant of PC, to be extended
one-time benefit; and that all consequential benefits including the
grant of time scale promotions to be granted – Constitution of India
– Arts. 32, 14, 15(1).
Permanent Commission – Claim of women – Medical criteria
prescribed by the Army – Judicial review of – Held: 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 on physical and mental
fitness – There can be no judicial review of the medical standards
adopted by the Army, unless they are manifestly arbitrary and bear
no rational nexus to the objects of the organization – SHAPE
criterion is per se not arbitrary – Constitution of India.
Constitution of India : Art. 14 – Right to equality – Equal
opportunity in public employment and gender equality – Held: Since
independence there is continuous endeavor to achieve equal
opportunity in public employment and gender equality – Structures
of the society have been created by males and for males – Facially
equal application of laws to unequal parties is a farce, when the
law is structured to cater to a male standpoint – Thus, adjustments,
both in thought and letter, necessary to rebuild the structures of an
equal society – These adjustments and amendments are not
concessions being granted to a set of persons, but
are the wrongs
being remedied to obliterate years of suppression of opportunities
which should have been granted to women – It cannot be said that
the women officers are allowed to serve the Armed Forces, when
the true picture of their service conditions is totally different –
Superficial sense of equality is not in the true spirit of the
Constitution and attempts to make equality only symbolic.
Gender justice:
Antidiscrimination law – Concept of – Formal versus
substantive equality – Held: Under the formal and symmetric
conception of antidiscrimination law, the law requires is that likes
be treated alike – It is premised on the notion that fairness demands
consistency in treatment – The fact that some protected groups are
disproportionately and adversely impacted by the operation of the
concerned law or its practice, makes no difference – On the other
hand, under a substantive approach, the anti discrimination
A
B
C
D
E
F
G
H
635
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
guarantee pursues more ambitious objectives – This conception
eschews the uncritical adoption of laws and practices that appear
neutral but in fact help to validate and perpetuate an unjust status
quo – Constitution of India – Art. 14 and 15(1).
Indirect discrimination – Doctrine of – Held: Is closely tied
to the substantive conception of equality – Use of the term ‘indirect
discrimination’ is not to refer to discrimination which is remote, but
is 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 – In
evaluating direct and indirect discrimination, it is important to
underscore that these tests, when applied in strict disjunction from
one another, may end up producing narrow conceptions of equality
which may not account for systemic flaws that embody discrimination
– Doctrine seeks to broaden the scope of antidiscrimination law to
equip the law to remedy patterns of discrimination that are not as
easily discernible.
Indirect and direct discrimination – Difference between –
Held: As long as a court’s focus is on the mental state underlying
the impugned action that is allegedly discriminatory, it is the area
of direct discrimination – However, when the focus switches to the
effects of the concerned action, it is indirect discrimination – An
enquiry as to
indirect discrimination looks, not at the form of the
impugned conduct, but at its consequences – In a case of direct
discrimination, the judicial enquiry is confined to the act or conduct
at issue, abstracted from the social setting or background fact-
situation in which the act or conduct takes place – In indirect
discrimination, on the other hand, the subject matter of the enquiry
is the institutional or societal framework within which the impugned
conduct occurs.
Systemic Discrimination – Explanation of – Systemic
discrimination as antithetical to substantive equality – Held:
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 – In order to conceptualize substantive equality, it would
A
B
C
D
E
F
G
H
636
SUPREME COURT REPORTS
[2021] 4 S.C.R.
be apposite to conduct a systemic analysis of discrimination that
combines tools of direct and indirect discrimination – Particular
discriminatory practice or provision might often be insufficient to
expose the entire gamut of discrimination that a particular structure
may perpetuate – Exclusive reliance on tools of direct or indirect
discrimination may also not effectively account for multiple axles
of discrimination – Therefore, a systemic view of discrimination, in
perceiving discriminatory disadvantage as a continuum, would
account for not just unjust action but also inaction – Duty of
constitutional courts, when confronted with such a scheme, would
not just be to strike down the discriminatory practices and
compensate for the harm hitherto arising out of them; but also
structure adequate reliefs and remedies that facilitate social re-
distribution by providing for positive entitlements that aim to negate
the scope of future harm – An analysis of discrimination, with a
view towards its systemic manifestations (direct and indirect), would
be best suited for achieving the constitutional vision of equality
and antidiscrimination.
Doctrine of indirect discrimination – Comparative study –
Position in India, United States, United Kingdom, South Africa,
Canada – Discussed.
Indirect discrimination in India – Analytical framework for –
Explained.
Disposing of the writ petitions, the Court
HELD: 1. 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’s case 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 Permanent
Commission (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,
A
B
C
D
E
F
G
H
637
has resulted in indirect and systemic discrimination. This
discrimination has caused an economic and psychological harm
and an affront to their dignity. [Para 119][768-D-G]
1.2 The following directions are issued that:
(i) The administrative requirement imposed by the Army
authorities while considering the case of the women Short Service
Commission Officers (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 while implementing the decision of this
Court in Babita Puniya’s case;
(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: at the time of the 5th year of service; or 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 would not be entitled
to the grant of PC. It is clarified that a
WSSCO who was in the
Temporary Low Medical Category (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, should 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
638
SUPREME COURT REPORTS
[2021] 4 S.C.R.
grant of PC after the above exercise, would be extended the one-
time benefit of direction (c) and (d) in Babita Puniya’s case;
(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’s case 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 petitioner No. 3 in Writ Petition
(C) 1109 of 2020, would be reconsidered for grant of PC in terms
of the above directions. In case the officer is not granted PC, she
would 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. [Para 120]
[768-G-H; 769-A-H; 770-A-F]
2.1 This Court is presented with the opportunity to choose
one of two competing visions of the antidiscrimination guarantee
embodied in Article 14 and 15(1) of the Constitution: formal
versus substantive equality. Under the formal and symmetric
conception of antidiscrimination law, all that the law requires is
that likes be treated alike. Equality, under this conception, has
no substantive underpinnings. It is premised on the notion that
fairness demands consistency in treatment. Under this analysis,
the fact that some protected groups are disproportionately and
adversely impacted by the operation of the concerned law or its
A
B
C
D
E
F
G
H
639
practice, makes no difference. On the other hand, under a
substantive approach, the antidiscrimination guarantee pursues
more ambitious objectives. The model of substantive equality
developed by Professor Sandra Fredman views the aim of
antidiscrimination law as being to pursue four overlapping
objectives. Recognizing that certain groups have been subjected
to patterns of discrimination and marginalization, this conception
provides that the attainment of factual equality is possible only if
we account for these ground realities. This conception eschews
the uncritical adoption of laws and practices that appear neutral
but in fact help to validate and perpetuate an unjust status quo.
[Paras 42- 44][695-E-H; 696-B-C, E-F]
2.2 Indirect discrimination is closely tied to the substantive
conception of equality. 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
jurisprudence relating to indirect discrimination in India is still
at a nascent stage. Indirect discrimination has also been
recognized by the High Courts in India.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. [Paras
45-48][696-F-G; 697-C;
698-B; 699-C]
2.3 In evaluating direct and indirect discrimination, it is
important to underscore that these tests, when applied in strict
disjunction from one another, may end up producing narrow
conceptions of equality which may not account for systemic flaws
that embody discrimination. Therefore, this Section will be
concluded with an understanding of a systemic frame of analysis,
in order to adequately redress the full extent of harm that certain
groups suffer, merely on account of them possessing
characteristics that are prohibited axles of discrimination.
[Para 50][699-F-G]
2.4 As long as a court’s focus is on the mental state
underlying the impugned action that is allegedly discriminatory,
it is the territory of direct discrimination. However, when the
focus switches to the effects of the concerned action, we enter
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
640
SUPREME COURT REPORTS
[2021] 4 S.C.R.
the territory of indirect discrimination. An enquiry as to indirect
discrimination looks, not at the form of the impugned conduct,
but at its consequences. In a case of direct discrimination, the
judicial enquiry is confined to the act or conduct at issue,
abstracted from the social setting or background fact-situation in
which the act or conduct takes place. In indirect discrimination,
on the other hand, the subject matter of the enquiry is the
institutional or societal framework within which the impugned
conduct occurs. The doctrine seeks to broaden the scope of
antidiscrimination law to equip the law to remedy patterns
of discrimination that are not as easily discernible. [Para 53]
[700-F-G; 701-A-B]
2.5 A study of the cases and scholarly works in the United
States, United Kingdom, South Africa and Canada gives rise to
the following key learnings.
(i) 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. [Para 66][709-E-G]
(ii) 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). 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, is the fact that it prohibits
conduct, which though not intended to be discriminatory, has that
effect. Requiring proof of intention to establish discrimination
puts an “insuperable barrier in the way of a complainant seeking
a remedy. It is this barrier that a robust conception of indirect
discrimination can enable us to counteract. [Para 67][709-G-H;
710-A-C]
A
B
C
D
E
F
G
H
641
(iii) 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.” Consistent with the said approach in Fraser’s
case, it would not be wise to lay down any quantitative thresholds
for the nature of statistical disparity that must be established for
a claimant to succeed. Equally, an absolutist position cannot 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. Therefore, statistical evidence
demonstrating patterns of exclusion, can be one of the ways to
prove indirect discrimination. [Para 68][710-C-G]
(iv) Fourth, insofar as the fashion in which the indirect
discrimination enquiry must be conducted, the two-stage test laid
down by the Canadian Supreme Court in Fraser’s case 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. [Para 69][710-G; 711-A]
(v) 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/defendant’s 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
642
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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.
[Para 70][711-B-D]
Anuj Garg v. Hotel Association of India (2008) 3 SCC
1 : [2007] 12 SCR 991; National Legal Services
Authority v. Union of India (2014) 5 SCC 438 : [2014]
5 SCR 119; Jeeja Ghosh v. Union of India (2016) 7
SCC 761 : [2016] 4 SCR 638; Vikash Kumar v. Union
Public Service Commission 2021 SCC OnLine SC 84;
Navtej Singh Johar v. Union of India (2018) 10 SCC 1
: [2018] 7 SCR 379; Naz Foundation v. Government of
NCT of Delhi (2009) 111 DRJ 1 (DB); Indian Young
Lawyers Assn. v. State of Kerala 2018 SCC OnLine
SC 1690; Joseph Shine v. Union of India 2018 SC
OnLine SC 1676; Patel Suleman Gaibi v. State of
Maharashtra 2014 SCC OnLine Bom 4639; Inspector
(Mahila) Ravina v. Union of India Writ Petition (C)
4525 of 2014, Delhi High Court; Madhu v. Northern
Railways 2018 SCC OnLine Del 6660; Dr. Jacqueline
Jacinta Dias & Ors. v. Union of India& Ors., (2018)
SCC OnLine Del 12426 – referred to.
Washington v. Davis 426 U.S. 229 (1976); Coleman v.
Attridge Law [2008] IRLR 722; Griggs v. Duke Power
Co 401 US 424, 431 (1971); Smith v. City of Jackson
544 US 228 (2005); Texas Department of Housing and
Community Affairs v. Inclusive Communities Project Inc
135 S Ct 2411 [2015]; R (on the application of E) v. JFS
Governing Body
[2009] UKSC 15; Essop v. Home
Office (UK Border Agency) [2017] UKSC 27; City
Council of Pretoria v. Walker (1998) 3 BCLR 257;
Mahlangu and Another v. Minister of Labour [2020]
ZACC 24; Ontario Human Rights Commission v.
Simpsons-Sears , [1985] 2 SCR 53; Fraser v. Canada
(Attorney General) 2020 SCC 28; Orsus and others v.
Croatia, [2010] ECHR 337 – referred to.
Anatole France, THE RED LILY (1898); Sandra Fredman,
DISCRIMINATION LAW (Oxford University Press, 2nd
A
B
C
D
E
F
G
H
643
edition) 2011 at p.8 (“Sandra Fredman, Discrimination
Law”); FOUNDATIONS OF INDIRECT DISCRIMINATION
LAW (Hugh Collins and Tarunabh Khaitan (eds), Hart
Publishing) 2018 at p.1 - referred to.
2.6 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.
[Para 71][711-E-F]
2.7 In order to conceptualize substantive equality, it would
be apposite to conduct a systemic analysis of discrimination that
combines tools of direct and indirect discrimination. A particular
discriminatory practice or provision might often be insufficient
to expose the entire gamut of discrimination that a particular
structure may perpetuate. Exclusive reliance on tools of direct
or indirect discrimination may also not effectively account
for
patterns arising out of multiple axles of discrimination. Therefore,
a systemic view of discrimination, in perceiving discriminatory
disadvantage as a continuum, would account for not just unjust
action but also inaction. Structures, in the form of organizations
or otherwise, would be probed for the systems or cultures they
produce that influence day-to- day interaction and decision-
making. The duty of constitutional courts, when confronted with
such a scheme of things, would not just be to strike down the
discriminatory practices and compensate for the harm hitherto
arising out of them; but also structure adequate reliefs and
remedies that facilitate social re-distribution by providing for
positive entitlements that aim to negate the scope of future harm.
[Paras 72-73][711-G; 712-B-E]
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
644
SUPREME COURT REPORTS
[2021] 4 S.C.R.
2.8 An analysis of discrimination, with a view towards its
systemic manifestations (direct and indirect), would be best suited
for achieving the 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 the 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, would 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. [Para 77][716-D-G]
Action Travail des Femmes v. Canadian National
Railway Company [1987] 1 S.C.R. 1114; National
Capital Alliance on Race Relations v. Canada (Health
and Welfare) 1997 28 C.H.R.R.D/179; International
Brotherhood of Teamsters v. United States, 431 U.S. 324
(1977) – referred to.
Marie Mercat-Bruns, Systemic discrimination: Rethinking
the Tools of Gender Equality, EUROPEAN EQUALITY
LAW REVIEW, Vol. 2 (European Commission, 2018)
at p.5-6; Tristin K. Green, The Future of Systemic
Disparate Treatment Law, BERKELEY JOURNAL OF
EMPLOYMENT AND LABOUR LAW, Vol. 32(2),
2011, 400-454; The Stephen Lawrence Inquiry: Report
A
B
C
D
E
F
G
H
645
of an Inquiry by Sir William Macpherson of Cluny (February
1999) available at https://assets.publishing.service.gov.uk/
government/uploads/system/uploads/attachment_data/file/
277111/4262.p df#page=375 - referred to.
3.1 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
a maximum of 250 SSCOs will be granted PC annually; a minimum
cut-off grade 60 per cent is fixed, which is reviewable every two
years; 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 other than non-optees and those unfit for retention, all others
would be granted an extension of 5 years.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. [Paras 83, 84][723-C-G]
3.2 The chart as regards details of permanent Commission
granted to Male Officers, 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2021] 4 S.C.R.
ceiling of 250 vacancies prescribed by the policy letter of the
MoD dated 15.01.1991. [Para 87][725-C-G]
3.3 The statistics 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. The second important aspect 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.
[Para 88][726-F-H; 727-A-C]
3.4 The submission of the ASG that for the present year,
while implementing the judgment of this Court in Babita Puniya’s
case the ceiling of 250 vacancies was not applied as a one-time
measure, demolishes the so-called rationale for benchmarking
which has been offered by the ASG. 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.
[Para 89][727-C-D]
3.5 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
A
B
C
D
E
F
G
H
647
identified by this Court in Babita Puniya’s case. 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 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. [Para 94][753-F-H; 754-A-C]
3.6 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
648
SUPREME COURT REPORTS
[2021] 4 S.C.R.
the avowed purpose of benchmarking which was to compare like
with like. [Para 95][754-C-F]
3.7 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 by a court
mandate in Babita Puniya’ case. 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. [Para 96][755-C-E]
3.8 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.
[Para 97][755-E-H; 756-A-B]
A
B
C
D
E
F
G
H
649
3.9 While implementing the judgment in Babita Puniya’s
case, the Army authorities attempted to demonstrate the
application of a facially neutral standard as between WSSCOs and
their male counterparts.The fact that there was no pre-planning
to exclude women from the grant of PC is irrelevant under an
indirect discrimination 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.
[Paras 98, 99][756-B, F-G]
3.10 The structures of the 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,
the Constitution sought to achieve a transformation in our society
by envisaging equal opportunity in public employment and gender
equality. Since then, there is continuous endeavor 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. 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. [Para 100][756-G-H; 757-A-C]
Catharine A. MacKinnon, TOWARDS A FEMINIST
THEORY OF STATE (Harvard University Press 1989)
at p.220
3.11 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
650
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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. [Para 101][757-D-F]
4.1 The medical criteria for assessing officers for the grant
of PC have been specified in Army instructions and Army Orders.
While dealing with the application of the criteria to the WSSCOs
in pursuance of the judgment in Babita Puniya’s case, the salient
features are revisited. [Para 102][757-G]
4.2 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
A
B
C
D
E
F
G
H
651
fit on merits. The requirement of fulfilling the SHAPE criteria 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. [Para 104][759-F-H; 760-A-D]
4.3 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 instant case, 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 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 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
652
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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, 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.
[Para 105][760-D-H; 761-A-C]
4.4 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. This Court cannot eschew
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 High Court, 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 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 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 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
A
B
C
D
E
F
G
H
653
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 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. [Para 106][761-C-H;
762-A-C]
4.5 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.
[Para 108][762-G-H; 763-A]
4.6 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, 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
654
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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. [Para 109][763-B-F]
4.7 Anguish is expressed at the respondents’ failure to
implement the judgment rendered by the 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 High Court in 2010. The
WSSCOs, a few of whom are petitioners, 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). “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.” 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. [Para 110][763-F-H; 764-A-C]
Justice KS Puttaswamy v. Union of India (2017) 10 SCC
1 : [2017] 10 SCR 569 – relied on.
4.8 In rendering the decision in Babita Puniya’s case, 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
A
B
C
D
E
F
G
H
655
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. It
must not be forgotten 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. 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 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 for a restoration of their dignity,
when even strongly worded directions by the Court in Babita
Puniya’s case have not trickled down into a basic assessment of
not subjecting unequals to supposedly “neutral parameters”.
[Para 111][764-C-G]
4.9 The submission on the medical criteria being modulated
to account for advancement of age cannot be accepted. 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. [Para 112][764-G-H; 765-A-C]
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
656
SUPREME COURT REPORTS
[2021] 4 S.C.R.
5.1 As regards the interpretation of the direction in Babita
Puniya’s case 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’s case, 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 spelt out in clauses (a) to (g) of direction (1) in
paragraph 69 of the judgment. 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. [Para 113][765-C-E; 766-C]
5.2 This Court, as a consequence of the constraint of
information being provided to it by the parties arraigned before
it in Babita Puniya’s case, 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. [Para 117][767-D-F]
5.3 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
A
B
C
D
E
F
G
H
657
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, commissioned in 2008, is the last batch to have
gained entry in the scheme, rendering it a ‘dying cadre’. The
expression ‘dying cadre’ is deployed 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 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,
this Court is compelled to extend the benefit of directions (c)
and (d) in Babita Puniya’s case 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. [Para 118][767-F-H; 768-A-C]
Secretary, Ministry of Defence v. Babita Puniya, (2020)
7 SCC 469; Ministry of Defence v. Babita Puniya, 2011
SCC OnLine SC 87; Babita Puniya v. Ministry of
Defence, 2010 SCC OnLine Del 1116 : (2010) 168
DLT 115; Titaghur Paper Mills Co. Ltd. v. State of Orissa
and Ors. (1983) 2 SCC 433 : [1983] 2 SCR 743; Brig.
Nalin Kumar Bhatia v. Union of India 5 Civil Appeal
No 5629 of 2017 decided on 11 February 2020–
referred to.
Sharron A. Frontiero and Joseph Frontiero v. Elliot L.
Richardson, Secretary of Defense, et al., 411 U.S 677 –
referred to.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
658
SUPREME COURT REPORTS
[2021] 4 S.C.R.
Case Law Reference
(2020) 7 SCC 469
referred to
Para 1
[1983] 2 SCR 743
referred to
Para 40(i)
[2007] 12 SCR 991
referred to
Para 45
[2014] 5 SCR 119
referred to
Para 45
[2016] 4 SCR 638
referred to
Para 45
[2018] 7 SCR 379
referred to
Para 46
(2009) 111 DRJ 1 (DB)
referred to
Para 46
[1985] 2 SCR 53
referred to
Para 64
[2017] 10 SCR 569
relied on
Para 110
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
1109 of 2020.
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) No. 1469 of 2020, Writ Petition (Civil) No. 34
of 2021, Writ Petition (Civil) No. 1223 of 2020, Writ Petition (Civil) No.
1457 of 2020, Writ Petition (Civil) No. 1158 of 2020, Writ Petition (Civil)
No 1172 of 2020.
P.S. Patwalia, C.U. Singh, Ms. Meenakshi Arora, Sr. Advs.,
Rakesh Kumar, Ms. Pooja Dhar, Amjid Maqbool, Ms. Preetika Dwivedi,
Tarunvir Singh Khehar, Shankar Divate, Sudhanshu S. Pandey,
Gaichangpou Gangmei, Abhishek R. Shukla, Arjun D. Singh, Deepak
Goel, Mohan Kumar, Ms. Archana Pathak Dave, Ms. Chitrangda
Rastravara, Jaideep Singh, Manvendra Singh Rathore, Dashrath Singh,
Ms. Vanya Gupta, Kumar Prashant, Advs. for the Petitioners.
Sanjay Jain, ASG, R. Balasubramanian, Sr. Adv., Ms. Seema
Bengani, Adit Khorana, Ms. Shraddha Deshmukh, Ms. Swarupma
Chaturvedi, Arvind Kumar Sharma, Anas Tanwir, Venkatesh, Nitin Saluja,
Ms. Shivani Luthra Lohiya, Siddharth Joshi, Neil Chatterji, Suhael Buttan,
Anant Singh, Aditya
Ajay, Ms. Mehak Verma, Ms. Sasha Maria Paul,
Advs. for the Respondents.

A
B
C
D
E
F
G
H
659
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A
A long and winding road
B
Steps for implementing the decision in Babita Puniya
C
Criteria for the grant of PCs
C.1
Medical Criteria
C.2
Substantive Assessment for PC
D
Evaluation of the credentials of 615 Women SSCOs
E
Submissions
E.1
Submissions of petitioners
E.2
Submissions of the respondents
E.3
The petitioners in rejoinder
F
Systemic Discrimination
F.1
Theoretical 
Foundations 
of 
Indirect
Discrimination
F.2
Position in the United States
F.3
Position in the United Kingdom
F.4
Position in South Africa
F.5
Position in Canada
F.6
Evolving an analytical framework for indirect
discrimination in India:
F.7
Systemic Discrimination as antithetical to
Substantive Equality
G
Analysis
G.1
Selection Process & Criteria set by the Army
G.2
Benchmarking with the Lowest Male Officer
G.3
Reliance on Annual Confidential Reports
G.4
Medical Criteria
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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
A
B
C
D
E
F
G
H
660
SUPREME COURT REPORTS
[2021] 4 S.C.R.
H
Conclusion and directions
“I ask no favour for my sex. All I ask of our brethren is that
they take their feet off our necks”1
-Late Justice Ruth Bader Ginsburg, Associate Justice, Supreme
Court of the United States of America
A  A long and winding road
1. By the judgment of this Court in Secretary, Ministry of
Defence v. Babita Puniya2, the claim of women engaged on Short
Service Commissions3 in the Indian Army for seeking Permanent
Commission4 was evaluated and held to be justified. Addressing the
background of the dispute, the judgment described this as “a quest for
equality of opportunity for women seeking PCs”. As the Court observed,
“a decade and more spent in litigation, women engaged on Short Service
Commissions in the Army seek parity with their male counterparts”.
The battle for equality has been long drawn, engaging as much with
reforming mindsets as with implementing constitutional principles.
2. The path traversed by the Women SSC Officers5 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 20106. The
judgment of the Delhi High Court and its directions7 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
1 Late Justice Ginsburg quoted Sara Grimké, noted abolitionist and advocate of equal
rights of men and women, while arguing before the Supreme Court of the United States
of America in  Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson,
Secretary of Defense, et al., 411 U.S 677.
2 “Babita Puniya”, (2020) 7 SCC 469
3 “SSCs”
4 “PC”
5 “WSSCO”
6 WP(C) No. 1597 of 2003 (High Court of Delhi)
7 The directions of the Delhi High Court were in the following terms:
A
B
C
D
E
F
G
H
661
the judgment of the Delhi High Court. This, as a matter of fact, was
clarified on 2 September 2011 in an order of this Court8.
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 Defence9 (“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 General10 and Army Education Corps11 which had already
been opened up for PC to WSSCOs). Eventually, in the judgment of this
“ 62.***
(i) The claim of absorption in areas of operation not open for recruitment of
women officers cannot be sustained being a policy decision.
(ii) The policy decision not to offer PC to Short Service Commissioned officers
across the board for men and women being on parity and as part of manpower
management exercises is a policy decision which is not required to be interfered
with.
(iii) The Short Service Commissioned women officers of the Air Force who had
opted for PC and were not granted PC but granted extension of SSCs and of the
Army are entitled to PC on a par with male Short Service Commissioned
officers with all consequential benefits. This benefit
would be conferred to
women officers recruited prior to change of policy as (ii) aforesaid. The
Permanent Commission shall be offered to them after completion of five years.
They would also be entitled to all consequential benefits such as promotion and
other financial benefits. However, the aforesaid benefits are to be made available
only to women officers in service or who have approached this Court by filing
these petitions and have retired during the course of pendency of the petitions.
(iv) It is made clear that those women officers who have not attained the age of
retirement available for the Permanent Commissioned officers shall, however,
be reinstated in service and shall be granted all consequential benefits including
promotion, etc. except for the pay and allowance for the period they have not
been in service.
(v) The necessary steps including release of financial benefits shall be done by
the authorities within two (2) months of passing of this order.”
8The order of this Court in Ministry of Defence v. Babita Puniya, 2011 SCC OnLine
SC 87 provides as follows:
“2.….
What is stayed as interim measure by this Court is action of contempt initiated
by the original writ petitioners against the petitioners in special leave
petitions.The operation of the impugned judgment [Babita Puniya v. Ministry
of Defence, 2010 SCC OnLine Del 1116 : (2010) 168 DLT 115] is not stayed
at all.”
9 “MoD”
10 “JAG”
11 “AEC”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y
CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
662
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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.
A
B
C
D
E
F
G
H
663
(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 General12 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.
12 “ASG”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
664
SUPREME COURT REPORTS
[2021] 4 S.C.R.
B Steps for implementing the decision in Babita Puniya
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: 
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.
A
B
C
D
E
F
G
H
665
Scope
4.
Following issues have been covered in the instructions: 
a. Guidelines for preparation of application 
b. Medical Board 
c. Submission of application 
d. Detailed checklist for submission of documents 
e. 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-
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
666
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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
A
B
C
D
E
F
G
H
667
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 Secretary’s 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 Secretary’s 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
668
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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.”
(emphasis supplied)
8. The result of the Special No. 5 Selection Board has been
tabulated by the respondents in the following terms:
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:
13 “non-optee”
13
A
B
C
D
E
F
G
H
669
C Criteria for the grant of PCs
C.1 Medical Criteria
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 Category14, 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 Category15,
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 197016 (as amended from time
to time in 1971, 1972, 1973 and 1993) and Army Order 110 of 198117.
According to the Union of India, “the criteria of medical fitness applied
for grant of permanent commission, are exactly the same as applicable
14 “TLMC”
15 “PLMC”
16 “SAI 3/S/70”
17 “AO 110/1981”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR.
DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
670
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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 201118.
Army Order 9 of 2011
12. 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 including cognitive function abnormalities
H-
Hearing
A-
Appendages
P-
Physical Capacity
E-
Eye Sight”
In 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:-
18 “AO 9/2011”, Ref: AO 01/2004/DGMS
A
B
C
D
E
F
G
H
671
“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/70
13. 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
672
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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 2020
A
B
C
D
E
F
G
H
673
The 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.
C.2 Substantive Assessment for PC
Special Army Instruction –SAI 3/S/70
17. 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 officer’s 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 110/1981
19. 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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
674
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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 officer’s 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 Sheet19 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 :
21. Para 4 of the policy letter envisaged that for preparing the
evaluation sheets, the following information regarding officers would be
computed namely:
19 “MDS”
A
B
C
D
E
F
G
H
675
(i)
QAP: Overall performance of the officer is evaluated by
taking the average of figurative assessment of all reporting
officers other than “PTO” and “HTO”. Average will be
worked out for each year as well as for the entire
period of officer’s service. The latter QAP will be
converted into a proportion of 60 marks;
(ii)
Honours and Awards: Honours and Awards received by
the officer will be allotted marks as under:
The marks earned for honours and awards were to be added
up, subject to the condition that the maximum will not exceed
6 marks.
(iii)
Performance grading obtained by the officers on each
courses: maximum 10 marks;
(iv)
Strong points reflected in each ACR earned by the officer:
maximum 4 marks;
(v)
Recommendation for PC: a positive recommendation
would carry 0 mark while a ‘No’ would carry minus 2 marks;
(vi)
Weak points: Minus 3 marks could be awarded on the
reflection of the weaknesses of the officer with reference
to qualities of dependability, discipline, integrity and loyalty,
financial management, addiction to wine, lack of morals and
personal affairs. Any other weak point would be awarded
a minus 0.5 mark; and
(vii) Disciplinary awards: the marks would be considered for
denial of PC.
The marks/average worked out on the above basis were to be
duly computed out of a total of 80 marks.
Army Order 18/1988
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
676
SUPREME COURT REPORTS
[2021] 4 S.C.R.
22. AO 18/1988 formulated the system of selection for the grant
of PCs. Para 1 of AO 18/1988 stipulated grant of PC in the 5th year of
service to officers:
“Officers granted Short (sic) Service Commission under AI
11/S/64 are considered for grant of Permanent Commission
by No. 5 Selection Board on this basis of their record profile,
in the fifth year of their service. Option and Medical Board
Proceedings are asked for 3 to 4 months in advance in terms of
AO 110/81. The proceedings are approved by the Government.”
(emphasis supplied)
Under para 2, the first 50 per cent of officers screened by the
Selection Board in order of merit were to be granted permanent
commission; the next 35 per cent would be granted extension for five
years; and the remaining 15 per cent would be released on completing
the contractual period of five years’ service. Para 3 stipulates that the
selection board would be convened twice a year in May and September
/ October to ensure that officers of a particular course are screened
before completing the initial contractual period of five years’ service.
The composition of Selection Board No. 5 was provided:
“4. The occupation of No.5 Selection Board to screen SSCOs for
PG is as under:
(a) Chairman - Div Cdr (1)
(b) Members - Bde Cdr (2)
Brig on Staff (1) outside Army HQ DDG
Org/DDG PS/DDG Rtg(l)
(c) Secretary -Col. MS-7"
Under para 6, the gradings to each officer were to be in the
following terms:
A
B
C
D
E
F
G
H
677
23. Para 7 provided for the assessment of the record profile or
each candidate:
“7. The undermentioned aspects are taken into account for
computer evaluation and assessment by members of the Selection
Board:
(a) Annual Confidential Report.
(b) Honours and awards.
(c) Performance on courses
(d) Recommendations for Permanent Commission.
(d) Disciplinary awards.
(e) Strong and Weak Points.”
24. Para 8 provided that a minimum of three ACRs would be
essential to consider the case of an officer for PC. If an officer did not
have the requisite number of ACRs, the case would be withdrawn by
the Selection Board and the officer would be granted an extension of
one year’s service during which, his case would be considered for grant
of PC. Para 9 contained a provision for obtaining a “comprehensive
service data output” in respect of each officer called the Member Data
Sheet. The guidelines for assessment contained in para 13 are extracted
below:
“13. Assessment is made in accordance with the criteria approved
by the Government. The salient points are given below:
(a) Officers are assessed on the merits of their service
performance as reflected in the ACRs and course reports
filed in the CR Dossier. Personnel knowledge of an officer
neither jeopardizes his selection nor is the basis for favourable
consideration of his case .
(b) While evaluating ACRs the possibility of subjective/inflated
reporting and fluctuation in performance of officers occasioned
by following
circumstances, are taken note of:
(i) Last ACR before assessment for PC.
(ii) Set of initiating/reporting officers endorsing more than two
reports.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
678
SUPREME COURT REPORTS
[2021] 4 S.C.R.
(iii) Period covered by the report, if less than six months.
(c) Rating and assessment in mandatory qualities of loyalty, integrity
and dependability are given due weightage.
(d) More weightage are given to reports earned from regimental
appointment as opposed to staff/ERE if any.
(e) Low Medical Category of the officer does not influence
the assessment as it is an administrative restriction and
not a; criteria for assessment.”
(emphasis supplied)
The requirements of medical fitness were provided in the following
terms:
“21. Officers should satisfy the following conditions:
(a) 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 .
(b) The low medical categorisation should not be due to medical
reasons whether attributable or not but should have been caused
as a result of casualties suffered in action during operations or
due to injuries or other disability sustained during duty, (for example
while travelling on duty, playing organized games under regimental
arrangements, during training exercise and so on).”
25. Under para 23, SSC officers who are not selected for PC
but are fit, suitable and willing would be granted an extension of
five years of the SSC period beyond the initial tenure of five years,
on the expiry of which they
would be released from the Army. Under
para 24, officers other than those in an unacceptable low medical
category or those charged with disciplinary action would continue
to serve for a total period of ten years or until they were granted
PC whichever is earlier. Para 34 provided that though SSCOs would
be screened only once in the fifth year of service by the Selection Board
for PC. In exceptional cases, the cases of officers for PC could be
reviewed under a ‘Special Review’.
MoD Policy Letter dated 15 January 1991
A
B
C
D
E
F
G
H
679
26. A policy letter was issued by the MoD on 15 January 1991 to
regulate the grant of PCs to SSCOs. The policy letter envisaged:
“
(a)
A maximum of 250 SSCOs will be granted Permanent
Commission per year. The number of vacancies for the
batches within the year will be allotted in proportion to their
inter se strength.
(b)
Minimum acceptable cut-off grade for grant of
Permanent Commission to SSCOs will be 60%. This
may, however, be reviewed by Army HQrs. every two years,
keeping in view the rating tendencies as at that time.
(c)
In case more than the specified number of officers
make the grade from the batches considered in a year,
the requisite number only, i.e. 250 will be granted
Permanent Commission on competitive merit.
(d)
All SSCOs, other than non-optees and those considered
unfit for retention by the Selection Board, will be granted
five year extension.”
(emphasis supplied)
27. From the above stipulations it becomes evident that
(i)
An annual cap of 250 SSCOs for the grant of PCs was
introduced;
(ii)
The cut-off grade was fixed at 60 per cent, which was
liable to be reviewed after every two years;
(iii)
In the event that more than 250 officers were to make the
grade from the batches considered for the year, only 250
officers would be granted PC on the basis of competitive
merit; and
(iv)
Other than SSCOs who did not opt for PC and those found
unfit, all other SSCOs would be granted a five year
extension.
28. These stipulations make it abundantly
clear that a cut-off grade
of 60 per cent was provided as the eligibility for the grant of PC. An
annual cap of 250 was introduced. In the event that the number of SSCOs
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
680
SUPREME COURT REPORTS
[2021] 4 S.C.R.
who fulfill the eligibility in terms of the 60 per cent grade exceed the cap
of 250, inter se competitive merit would be the basis for determining
those who would form a part of 250 SSCOs who would be granted PC.
Consequently, where the number of SSCOs who had qualified fell short
of the cap of 250 there was no occasion to apply inter se competitive
merit. Moreover, the other SSCOs falling beyond the cap of 250 would
be granted a five year extension unless they were “non-optees” or unfit
for retention.
MoD Policy Letters dated 20 July 2006
29. On 20 July 2006, the Integrated Headquarters of MoD (Army)
provided revised terms and conditions of service for men and women
SSCOs both in the technical and non-technical branch:
(i)
Grant of SSC (non-technical) to male officers: For SSC
men officers in the non-technical branch of the Army, a
tenure of 14 years’ service was provided – an initial period
of ten years extendable by four years. They would be
entitled to substantive promotions to the rank of Major and
Lieutenant Colonel20 on the completion of 2, 6 and 13 years
respectively of reckonable commissioned service. Serving
SSCOs were given an option to be governed by the
provisions of the revised scheme. Those who opted for the
revised scheme who were on extension of service and had
already been considered for PC on the completion of the
seventh year or those who did not opt for PC on the
completion of the seventh year,
would not be eligible for
further consideration for the grant of PC in the tenth year
of service. On the other hand, optees between the fifth and
seventh year of service who had not exercised their second
option for PC, could be considered again for the grant of
PC in the tenth year of service. Officers between the fifth
and seventh year of service who had not exercised their
second option were allowed to opt to continue under the
old scheme;
(ii)
Grant of SSC (technical) to men officers Extension of tenure
and substantive promotions, including PC on similar terms
as those for SSC(non-technical) for SSCO men technical
officers in the Army;
20 “Lt. Col.”
A
B
C
D
E
F
G
H
681
(iii)
Grant of SSC (technical) to women officers: By a policy
letter dated 20 July 2006, the Women Special Entry Scheme
(WSES) was closed by providing for the grant of SSC
(technical) to women subject to the following conditions:
a.
The total SSC tenure would be 14 years – an initial
period of 10 years extendable by four years;
b.
An option for release was available for newly
inducted women officers on the completion of five
years of service;
c.
Substantive promotions to the rank of Captain, Major
and Lt. Col. would be provided at the end of 2, 6 and
13 years respectively of reckonable service; and
d.
Serving WSES women officers had an option to opt
for the SSC scheme within six months;
(iv)
Grant of SSC (non-technical) to women officers: By another
policy letter dated 20 July 2006, a similar provision was
made for the grant of SSC (non-technical) to women
officers. Under the terms of the scheme,
a.
The total engagement would be for 14 years (10 years
extendable by a further 4 years); and
b.
Serving WSES women officers were given an option
to opt for the scheme;
Army Order 9 of 2011 including Appendix C and D
30. The aim of AO 9/2011 was to lay down instructions / procedures
for carrying out the Annual Medical Examination (AME), Periodical
Medical Examination (PME) and medical classification of all Army
officers. The AO was to supersede all existing instructions and inter
alia sought to delineate the criteria for medical classification vis-à-vis
functional capacity:
“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
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
682
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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 may have some 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.”
31.  Appendix (C) provides for the male average weight in
kilograms based on age group and height with a 10 per cent variation on
either side of the average being acceptable. Appendix (D) contemplates
a similar table for female average weight in kilograms for different age
groups and heights with an acceptable 10 per cent variation from the
average.
MoD Policy Letter dated 24 February 2012
32. As a result of the policy letter dated 24 February 2012, there
was a revision of the weightage to be ascribed by the No. 5 Selection
Board (for grant of PC / extension to SSCOs) as between
(i)
The computerized MDS; and
(ii)
Value judgment of the members of the Selection Board.
In the earlier policy letter dated
30 September 1983, the weightage
had been fixed at 80:20. This was revised to 95:5, thereby reducing the
subjective element comprised in the value judgment attributed to members
of the Selection Board from 20 per cent to 5 per cent. In preparing the
evaluation sheets, averages were to be taken against the following items:
(i)
QAP – 75 marks
(ii)
Honours and awards – 5 marks
A
B
C
D
E
F
G
H
683
(iii)
Games, sports and special achievements – 5 marks
(iv)
Performance of courses – 10 marks
(v)
Weak points – minus 5 marks
(vi)
Non-recommendation for PC- minus 2 marks
33. Para 5 of the policy letter envisages that the marks allotted
under the computerized evaluation would be added to the value judgment
to assess the overall merits of officers. A minimum acceptable cut-off
of 60 per cent was fixed, which had to be reviewed every two years:
“5. On conduct of the board, the quantified marks for overall
performance of the officer would be obtained by adding the value
Judgement marks to the Computerised Evaluation. The marks
thus obtained would be used to draw out the overall merit of the
officers. Minimum acceptable cut-off grade for grant of PC to
SSCOs including women officers (sic) will be 60% (this may
however be reviewed by MS branch every two years keeping in
view the rating tendencies as at that time).”
D. Evaluation of the credentials of 615 Women SSCOs
34. The basic issue which falls for determination is in regard to
the modalities which have been followed in assessing the 615 WSSCOs
for the grant of PC, after the decision of this Court in Babita Puniya
(supra). In order to obviate any factual dispute, the basis of evaluation is
taken from the counter affidavit filed in these proceedings on behalf of
the respondents by the Colonel Military Secretary (Legal) at the
Integrated Head Quarters of the MoD. The relevant disclosures are
contained in the
section which titled: “In Re: The Methodology for
Conduct of Special No 5 Selection Board”. The counter discloses
that 615 women officers “whose corresponding male counterparts have
already been considered” were considered by a Special No. 5 Selection
Board between 14 September and 25 September 2020. The process (as
disclosed in the counter) is delineated below:
(i)
The Military Secretary’s Branch constituted a Selection
Board in accordance with AO 18/1988. All members of the
Board were from outside the Military Secretary’s Branch.
A woman officer of the rank of Brigadier was a member of
the Board, drawn from the Army Medical Corps. The identity
of the officers being considered was concealed from the
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
684
SUPREME COURT REPORTS
[2021] 4 S.C.R.
members of the Board. The women officers who were being
considered were permitted to attend the proceedings as
observers;
(ii)
“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, of the women
officers were taken into consideration. This procedure was
“exactly similar” to similarly placed male officers at the
entry level; 
(iii)
The board examined the MDS for each officer for the grant
of PC and gave independent value judgment marks without
mutual consultation; 
(iv)
The marks for each officer, out of a total of 100 were
compared “with the marks of the male officer with lowest
merit granted PC” in their corresponding courses and entry
(Technical and Non-Technical);
(v)
On the above basis, the board recommended 422 out of
615 officers for the grant of PC on the basis of merit subject
to their meeting the criteria of medical fitness, discipline
and vigilance;
(vi)
Since out of 422 recommended officers, 57 were non-optees
after the approval of the Selection Board, medical board
proceedings of the remaining 365 approved officers were
scrutinized and the result of the Board was declassified on
19 November 2020; and
(vii)
Out of 365 women officers 277 have been found fit and
granted PC. Results have been withheld for 88 officers
comprising of the following: 
a.
42 officers are in the TLMC and have been granted
a one
year period for stabilization;
b.
Medical documents have not been received for 6
officers; and
c.
40 officers are either in the PLMC or their results
have been withheld on administrative grounds
including discipline and vigilance clearance.
A
B
C
D
E
F
G
H
685
35. During the course of hearing and in the written submissions,
the ASG informed the Court that out of 615 officers who were considered,
422 were recommended by the Special No. 5 Selection Board for PC on
the basis of merit. The remaining 193 officers (615 minus 422 found fit)
were not recommended, though 164 out of these officers fulfill the
SHAPE-1 criterion and are SHAPE-1 officers even as of date. Further,
out of 422, 57 WSSCOs were non-optees. Out of the 365 optee officers
who were considered fit for PC by the Special No. 5 Selection Board,
277 WSSCOs were granted PCs after medical scrutiny. Out of the
remaining 88 WSSCOs, 42 officers fall in TLMC. The division of the
remaining 46 (that is non-TLMC) is that only 35 did not meet the medical
criteria, which constitutes less than 10% of the women who were
considered fit for PC on merit (10% of 365). 6 officers had not submitted
forms compliant with AO 110/1981, 3 officers are under scrutiny and 2
officers are not cleared from the discipline and vigilance angle.
E Submissions
E.1 Submissions of petitioners
36. Mr P S Patwalia, learned Senior Counsel appearing on behalf
of the petitioners in Writ Petition (C) 1109 of 2020 and Writ Petition (C)
34 of 2021 and Ms Meenakshi Arora, learned Senior Counsel
representing the petitioners in Writ Petition (C) 1172 of 2020, urged the
following submissions:
Medical Evaluation:
(i)
The procedure laid down in the General Instructions dated
01 August 2020 is a
mechanical reproduction of the existing
procedure for male officers, who are evaluated for PC in
their 5th or 10th year of service, without making any
modifications;
(ii)
The medical criterion laid down in para 9 of the General
Instructions is arbitrary and unjust as the women officers
who are in the age group of 40-50 years of age are being
required to conform to the medical standards that a male
officer would have to conform to at the group of 25 to 30
years;
(iii)
The women officers who are being offered PC at a belated
stage, due to the fault of the respondents, have already
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
686
SUPREME COURT REPORTS
[2021] 4 S.C.R.
undergone medical scrutiny on the completion of their 5th,
10th and 14th years of service when an extension of service
was granted to them. Thus, they must be exempted from
any medical scrutiny at this stage of the grant of PC;
(iv)
There is no material change in the job profile and the nature
of the work that is being carried out by the petitioners as
SSC officers as compared to the profile attached to their
work when they will be granted PC. Accordingly, any
existing medical conditions that the women officers face is
not an impediment in the discharge of their functions;
(v)
The criterion for grant of PC laid down in General
Instructions is for officers who are in the service bracket
of 5-10 years and does not take into account that the
petitioners have served in the Army for 10-25 years;
(vi)
The medical criterion does not account for the physiological
changes that have occurred due to the passage of time in
women officers. These include common changes such as
hypertension, obesity, diabetes and changes associated with
pregnancy and lactation;
(vii)
In comparison to the women officers, the male officers who
were granted PC in their 5th or 10th year of service continue
to serve in the Army on different ranks, regardless of
whether they have undergone any physiological changes.
Thus, medical conditions at a later age are not an impediment
in the career progression of male officers as once the PC
is granted, there is
no repeated medical scrutiny;
(viii) Male officers who have been granted PC in their 5th or 10th
year of service and have later fallen in the PLMC category
are still permitted to continue till the attainment of the age
of superannuation for all career courses, promotions to
higher ranks, and opportunities of re-employment among
others;
(ix)
The petitioners at the time of grant of extension of service
at their 5th, 10th or 14th year have undergone the necessary
medical boards and were found fit to continue in the Army;
and
A
B
C
D
E
F
G
H
687
(x)
Owing to the physiological changes occurring due to natural
processes of aging and hormonal changes occurring due to
pregnancy, women officers are naturally downgraded to a
category lower than SHAPE-1. Thus, they are unable to
meet the stringent criteria laid down by the General
Instructions for the grant of PC;
Reliance placed on Annual Confidential Reports21:
(xi)
The reliance placed on ACRs as a basis to grant PC to
women officers is flawed as in the absence of any provision
of PC to women officers, the reporting officers used to
endorse an “N/A” in the column relating to PC. Since the
women officers could only seek an extension of service as
SSC officers and not a PC in the Army, the ACRs were
filled out by the reporting officers casually, as compared to
the ACRs of male officers;
(xii)
With respect to the women officers, the columns regarding
medical fitness in the ACRs were never filled. In case the
women officers were medically unfit, they were not given
an opportunity to improve;
(xiii) The ACRs prepared during the term of criterion
appointments have a disproportionate and adverse impact
on the petitioners, as they quantify participation in junior
command courses and other courses such as staff college
and specialised courses such as M.Tech. Women officers
were either denied the opportunity of attending these
courses or if the opportunity was granted, they were not
given the benefit of their performance during such courses
in the ACRs of that
year;
(xiv) The process of filling out ACRs for women officers was
not conducted seriously and good grades were not awarded
as the officers were not being considered for PC at the
time. Thus, the manner of judging and grading of ACRs for
women officers was different from that of male officers
and the two cannot be placed on an equal footing;
(xv)
The current performance of the women officers and their
latest ACRs has been completely ignored for the grant of
21 “ACR”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
688
SUPREME COURT REPORTS
[2021] 4 S.C.R.
PC. Thus, the hard work and qualifications attained after
the 10th year of service have not been taken into account;
(xvi) Reliance was placed on MoD Policy Letter dated 24
February 2012 on the “Criteria for Grant of Permanent
Commission/Extension to Short Service commissioned
Officers”. According to para 3 of this letter, for considering
an officer for extension of service/grant of PC, the overall
performance of the officer is to be evaluated by taking the
average assessment of all reporting officers. The average
has to be worked out for the entire period of the officer’s
service. Thus, the exclusion of the recent ACRs of the
petitioners for grant of PC is unfair and arbitrary; and
Lack of announcement of vacancies:
(xvii) The respondent has failed to announce the number of
vacancies against which PC would be granted to women
officers. The number of vacancies available in each batch/
service is necessary for an officer to make an informed
choice of opting for PC. The respondent failed to earmark
the vacancies available to each batch within each service
arm for grant of PC.
37. Mr Sudhanshu S Pandey, learned Counsel appearing on behalf
of the petitioners in Writ Petition (C) 1457 of 2020, urged the following
submissions:
(i)
The women officers have never had a level playing field in
the Army since their induction;
(ii)
The use of ACRs as a metric for the grant of PC is arbitrary
as unlike their male counterparts, the
women officers were
never given the reasons for non-recommendation for an
extension of service / promotion; the assessment criteria
for male and female officers in an ACR was entirely
different as the women officers were not being considered
for future career progression;
(iii)
The consideration of ACRs of only the initial few years has
led to a situation where women officers who have been
granted commendation certificates and honours by the Chief
of Army Staff22 have not been granted PC; and
22 “COAS”
A
B
C
D
E
F
G
H
689
(iv)
In 2001, a new evaluation system called ‘UAC’ was
introduced which was not easily accessible and was found
to be flawed. Although, ACRs were subsequently
reintroduced, the UAC has been made a basis for evaluation
and grant of PC to women officers.
38. In addition to the above petitioners, certain other women officers
who are petitioners have faced specific circumstances which have been
highlighted during the proceedings:
(i)
The third petitioner in Writ Petition (C) 1109 of 2020, who
has been denied PC by the results dated 19 November 2020,
was selected to undertake an M. Tech degree course under
the auspices of the Army. During the application process
for selection, the petitioner was required to give a certificate
of remittance dated 28 November 2019 stating that if her
service is terminated or released by the Government due to
the finalization of court proceedings in the matter concerning
the grant of PC, the officer would be liable to pay the
Government the cost of the training. On her selection, she
was also required to given an undertaking dated 17 July
2020 to serve the Army for a minimum period of 5 years
after completion of the course. Under the undertaking, if
she obtained release or premature retirement, she would
be liable to pay for the cost of the training course. After the
denial of PC by the Army on 19 November 2020, a letter
dated 1 December 2020 was issued to her demanding
recovery of the training cost of the course, to the tune of
Rs. 8.5 lakh - 10 lakhs;
(ii)
The petitioner in Writ Petition (C) 1469 of 2021 has stated
that she is being harassed by the respondent only on account
of the fact that she had made a complaint against her
Commanding Officer, who had allegedly made sexual
advances towards her. Although the petitioner’s service was
terminated and she was released from service on 14
February 2018, her case was considered for a special review
later. On 21 February 2019, she was granted an extension
of 4 years in service till 16 March 2021. She has advanced
similar arguments against the process for the grant of PC
as the other petitioners. During the course of the
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
690
SUPREME COURT REPORTS
[2021] 4 S.C.R.
proceedings, the Court was informed that she is being
considered by a Special Review Board and awaiting the
results; and
(iii)
The petitioners in Writ Petition (C) 34 of 2021 have
supported the submissions advanced by other petitioners
before the Court. These petitioners are 5 women officers
of WSES(O) 27th batch, who were commissioned in the
Army as SSC officers on 18 March 2006 and completed
their 14 years of service on 18 March 2020. During the
grant of PC, the petitioners were considered to fall in the
category under Para 1(c) of the General Instructions dated
1 August 2020, that is “WSES(O)- 27 to 31 and
SSCW(T&NT)- 1 to 3 courses:For PC/To be released
on completion of the period of extension already
granted”. The petitioners contended that while as on the
date of the judgment in Babita Puniya (supra), they had
not completed 14 years of service, as on the date of the
General Instructions dated 1 August 2020, they had
completed 14 years and 6 months in service. Thus, they
were to be considered in the category under Para 1(b) of
the General Instructions: “WSES(O)- 15 - 26 courses: For
PC/To serve till 20 years of pensionable service and
released with pension”. Thus, they have submitted that
under the judgment in Babita Puniya (supra), in case they
are not granted PC and have served for more than 14 years,
they should be entitled to continue in service till the attainment
of pensionable service.
39. The petitioners
in Writ Petition (C) 1223 of 2020, are in the
category of women officers belonging to batch 27 to 31, having been in
service for 10-14 years. In terms of the General Instructions dated 1
August 2020, they have been placed in the category under Para 1(c),
under which in case of non-grant of PC, they would be released on
completion of their extension period, without any pension. Mr Huzefa A
Ahmadi, learned Senior Counsel appearing on behalf the petitioners in
Writ Petition (C) 1223 of 2020, made the following submissions:
(a)
There was no valid basis for differentiating between the
women officers of batches 27 to 31 from their seniors in
batches 15 to 26 in the General Instructions dated 1 August
A
B
C
D
E
F
G
H
691
2020. The respondents have wrongly interpreted the decision
of this Court in Babita Puniya (supra)and have denied
extension of service till 20 years to WSSCOs who have not
been granted PC and who had not completed 14 years of
service as on the date of the judgment in Babita Puniya
(supra); and
(b)
In case such women officers from batches 27 to 31 who
were in service between 10 years to 14 years, are released
on completion of 14 years of service without pension, it
would be a gross miscarriage of justice.
E.2 Submissions of the respondents
40. Mr Sanjay Jain, learned ASG, appeared on behalf of the
respondents, assisted by Mr R Balasubramaniam, Senior Counsel.
Addressing three broad issues on the (i) medical yardsticks for grant of
PC; (ii) number of vacancies notified and the criteria for selection; and
(iii) process of evaluation through the ACRs, the learned ASG made the
following submissions:
Medical Yardsticks for grant of PC
(i)
A writ petition under Article 32 is not maintainable for reliefs
sought in service matters. The petitioners should have
approached the Armed Forces Tribunal with their statutory
grievance as has been held by this Court in Titaghur Paper
Mills Co. Ltd. v. State of Orissa and Ors.23(this
submission in the counter has not been pressed during the
hearing);
(ii)
After the decision of this court in Babita Puniya (supra),
the respondents conducted a Special No. 5 Selection Board
between 14 to 25 September 2020 to consider women for
PC. 57 out of the 422 women eligible did not opt for PC.
Consequently, out of the remaining 365, 277 were found
eligible for PC;
(iii)
The petitioners, on one hand seek parity with their male
counterparts. On the other hand, they are seeking special
and unjustified treatment in the eligibility criteria for obtaining
PC;
23 (1983) 2 SCC 433
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
692
SUPREME COURT REPORTS
[2021] 4 S.C.R.
(iv)
The General Instructions dated 01 August 2020 are
administrative instructions based on the provisions of the
SAI 3/S/70 and AO 110/1981. The latter provisions have
not been challenged by the petitioners;
(v)
The assessment on the medical criteria of a candidate is an
intrinsic and inseparable part of the process for grant of
PC. It is applicable to men and women alike;
(vi)
The acronym ‘SHAPE’, translates as S’ for psychological
including cognitive function abnormalities, ‘H’ for hearing,
‘A’ for appendages, ‘P’ for physical capacity and ‘E’ for
eyesight;
(vii)
The stringent requirements of SHAPE-1 can be relaxed in
the event candidates have suffered injury on the line of
duty which renders a low medical categorization permissible;
(viii) The Army follows a concept of TLMC which allows an
officer to come back in SHAPE-1 in one year. This concept
is applicable to the grant of PC as well;
(ix)
No SSC officer has ever been denied an extension of service
due to medical reasons. Therefore, the comparison with
the petitioner’s medical fitness levels at their 5th or 10th
year of service is baseless, since extensions were never
denied on medical grounds;
(x)
The contention that medical fitness cannot be expected
forever in service lacks merits. The Army accounts for
physiological changes occurring during childbirth and time
waivers are provided in accordance with existing policies.
Other physiological changes such as
obesity and age are
independent of gender and the petitioners cannot seek an
exemption on that ground. The criteria of TLMC and PLMC
are applicable to serving PC officers as well;
(xi)
The medical standard of SHAPE-1 weight is as per the
age and height of the person. These parameters account
for the changes induced by advancement of age in men
and women. Therefore, the petitioners’ belated consideration
for PC does not adversely impact them as against their
male counterparts;
A
B
C
D
E
F
G
H
693
(xii)
WSSCOs who seek to join the Army Medical Corps24 can
join up to 45 years of age, yet they have to comply with the
SHAPE-1 medical category;
(xiii) There are 86 petitioners who are contesting this batch of
petitions. Out of these 86 petitioners, 55 are still in SHAPE-
1 (out of these 55, 30 women are in the age group of 45-
52). 23 petitioners are assigned to the category of PLMC
and 9 are placed in TLMC;
(xiv) The respondents have wholeheartedly complied with the
directions of this Court in Babita Puniya (supra)and had
identified 365 women for PC. 277 women have already
been granted PC and if certain requirements are fulfilled
by allottees, the number could rise up to 330;
(xv)
This Court, in consonance with the spirit of Article 33, should
not interfere with the medical yardsticks for determination
of PC as this could be detrimental to the selected officers
and the Army cannot afford to comprise on the rigour of its
fitness policies;
Number of Vacancies Notified
(xvi) The MoD, by its letter dated 15 January 1991 had provided
that a maximum of 250 SSC officers would be granted PC
every year, with a minimum cut-off grade of 60%. In case
more than 250 officers would make the grade, then only
250 posts would be granted based on competitive merit.
No male officer has been granted PC merely by virtue of
qualifying for the 60% cut-off. This policy and cap of 250
vacancies was relaxed for the Special No. 5 Selection Board
proceedings, in order to implement
Babita Puniya (supra),
in letter and spirit;
(xvii) The benchmark of assessing the women officers under
consideration of PC against the benchmark of the last
selected officer with lowest merit in that particular year is
a rational policy, since no upper ceiling was notified for
vacancies. The PC has to be granted on competitive merit.
The policy adopted by the respondent is rational, reasonable
and non-discriminatory; and
24 “AMC”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
694
SUPREME COURT REPORTS
[2021] 4 S.C.R.
(xviii) The least meritorious male officer granted PC with the
corresponding batch of the WSSCOs is an objective and
just benchmark. This yardstick was also adopted by the
respondent when PC was offered to women SSC officers
in JAG and AEC in 2010;
Process of Evaluation through ACRs
(xix) The ACRs are merely one component of the evaluation for
PC, which also includes other factors of (i) honors and
awards; (ii) performance on courses; (iii) recommendations
for PC; (iv) disciplinary awards; and (v) strong and weak
points. In terms of the erstwhile policy dated 15 January
1991 and the existing policy dated 24 February 2012,
competitive merit has to be seen inter se officers under
consideration for grant of PC.
(xx)
The decision of this Court in Brig. Nalin Kumar Bhatia
v. Union of India25 on the inapplicability of value judgement
by the Selection Board was premised on its peculiar set of
facts where the officer there was the sole person in the
batch to be considered for a promotion. The case was not
an indictment of policies of inter se merit;
(xxi) The Special No. 5 Selection Board were alive to the reality
that the column for recommendation of PC for the women
officers would be blank. Accordingly, the evaluation was
conducted on the assumption that all of the women who
had opted for PC were recommended for the grant of PC
and accordingly were not granted a 2 mark deduction; and
(xxii) The petitioners in Babita Puniya
(supra) had contended
that the consideration of ACRs for the first 5/10 years of
service was a just and valid criterion for granting PC.
Belatedly requesting for the entire career record to be
considered would be contrary to applicable policies and the
directions in Babita Puniya (supra).
E.3 The petitioners in rejoinder
41. Responding to the submissions of the ASG, Mr Patwalia and
Ms Arora, learned Senior Counsel, Mr Sudhanshu S Pandey and Mr
Mohan Kumar, learned counsel, have submitted thus:
25 Civil Appeal No 5629 of 2017 decided on 11 February 2020
A
B
C
D
E
F
G
H
695
(i)
The respondents have admitted that as a special case, the
vacancy cap had been lifted for consideration of women
officers for PC. The placement of a vacancy cap could be
the only reason for a comparative determination of merit
for PC;
(ii)
In comparison to women officers, 85% to 100% male
officers have been granted PC; and
(iii)
The total marks for each woman officer were compared to
the lowest marks achieved by the male officer who was
granted PC, for determination of whether the woman officer
would qualify for grant of PC. After this, the women officers
were considered against each other on merit and the grant
of PC was determined. Thus, the women officers first, had
to meet the benchmark of the lowest qualifying male officers
and second, compete inter se women officers. This is in
stark contrast to the male officers who had to meet no
external benchmark and were only required to compete
among themselves, in the event that they were in excess of
250 candidates.
F Systemic Discrimination
42. At its heart, this case presents this Court with the opportunity
to choose one of two competing visions of the antidiscrimination guarantee
embodied in Article 14 and 15(1) of the Constitution: formal versus
substantive equality. The formal conception of antidiscrimination law is
captured well by Anatole France’s observation: “The law, in its majestic
equality, prohibits the rich and the poor alike from sleeping under
bridges, begging in the streets and stealing
bread.”26
43. Under the formal and symmetric conception of
antidiscrimination law, all that the law requires is that likes be treated
alike. Equality, under this conception, has no substantive underpinnings.
It is premised on the notion that fairness demands consistency in
treatment.27 Under this analysis, the fact that some protected groups
are disproportionately and adversely impacted by the operation of the
concerned law or its practice, makes no difference. An apt illustration of
26 Anatole France, THE RED LILY (1898)
27 Sandra Fredman, DISCRIMINATION LAW (Oxford University Press, 2nd edition)2011 at
p.8 (“Sandra Fredman, Discrimination Law”)
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
696
SUPREME COURT REPORTS
[2021] 4 S.C.R.
this phenomenon would be the United States’ Supreme Court’s judgment
in Washington v. Davis28, which held that a facially neutral qualifying
test was not violative of the equal protection guarantee contained in the
14th Amendment of the American Constitution merely because African-
Americans disproportionately failed the test.
44. On the other hand, under a substantive approach, the
antidiscrimination guarantee pursues more ambitious objectives. The
model of substantive equality developed by Professor Sandra Fredman
views the aim of antidiscrimination law as being to pursue 4 overlapping
objectives. She states as follows:
“First, it aims to break the cycle of disadvantage associated with
status or out-groups. This reflects the redistributive dimension of
equality. Secondly, it aims to promote respect for dignity and worth,
thereby redressing stigma, stereotyping, humiliation, and violence
because of membership of an identity group. This reflects a
recognition dimension. Thirdly, it should not exact conformity as a
price of equality. Instead, it should accommodate difference and
aim to achieve structural change. This captures the transformative
dimension. Finally, substantive equality should facilitate full
participation in society, both socially and politically. This is the
participative dimension.”29
Recognizing that certain groups have been subjected to patterns
of discrimination and marginalization, this conception
provides that the
attainment of factual equality is possible only if we account for these
ground realities. This conception eschews the uncritical adoption of laws
and practices that appear neutral but in fact help to validate and perpetuate
an unjust status quo.
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 India30, this Court
held that laws premised on sex-based stereotypes are constitutionally
impermissible, in that they are outmoded in content and stifling in means.
28 426 U.S. 229 (1976)
29 Sandra Fredman, Discrimination Law (supra n. 28), p. 24
30 (2008) 3 SCC 1
A
B
C
D
E
F
G
H
697
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 31, 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
India32 and Vikash Kumar v. Union Public Service Commission33
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 India34, 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
Delhi35 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.”36 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.37 The focus in
31 (2014) 5 SCC 438
32 (2016) 7 SCC 761
33 2021 SCC OnLine SC 84
34 (2018) 10 SCC 1, paras 442-446
35 (2009) 111 DRJ 1 (DB)
36 Id. at para 93
37 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”)
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
698
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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”38.
47. Indirect discrimination has also been recognized by the High
Courts in India39. For instance, in the matters of public sector employment,
the Delhi High Court in Inspector (Mahila) Ravina v. Union of India40
and in Madhu v. Northern Railways41, 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,
38 Ibid, Joseph Shine
39 Patel Suleman Gaibi v. State of Maharashtra, 2014 SCC OnLine  Bom 4639
40 Writ Petition (C) 4525 of 2014, Delhi High Court (6 August 2015)
41 “Madhu”,
2018 SCC OnLine Del 6660. A challenge to conditions of employment/
promotion in the Army Dental Corps was also made before the Delhi High Court in Dr.
Jacqueline Jacinta Dias & Ors. v. Union of India & Ors., (2018 SCC OnLine Del
12426). However, the challenge could not succeed as the Court failed to discern any
manifest bias. In doing so however, the High Court pointed out to the lack of clear
norms regarding indirect discrimination in India and noted:
“35…This court is conscious of the fact that indirect discrimination is harder
to prove or establish. Hidden biases, where establishments or individuals do
not overtly show bias, but operate within a discriminatory environment
therefore, is hard to establish. Yet, to show such bias […], there should have
been something in the record-such as pattern of marking, or predominance of
some element, manifesting itself in the results declared. This court is unable to
discern any; Nor is there any per se startling consequence apparent from the
granular analysis of the results carried out. Furthermore, equality jurisprudence
in India has not yet advanced as to indicate clear norms (unlike legislative rules
in the EU and the UK) which guide the courts. Consequently, it is held that the
complaint of gender discrimination or arbitrariness is not made out from the
record.”
A
B
C
D
E
F
G
H
699
“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 petitioner’s
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.””
(emphasis supplied)
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 criterion42.
49. The facts of this case present an opportune moment for
evaluating the practices of the respondents in evaluation for the grant of
PC. In this segment of the judgment, we will first outline the theoretical
foundations of the doctrine of indirect discrimination. We will then survey
comparative jurisprudence concerning the doctrine, with a view to
understand its key constituents and the legal questions surrounding its
application, namely the evidentiary burden to be discharged to invoke
the doctrine and the standards of justification to be applied. We will then
offer a roadmap for understanding
and operationalizing indirect
discrimination in Indian antidiscrimination law.
50. In evaluating direct and indirect discrimination, it is important
to underscore that these tests, when applied in strict disjunction from
one another, may end up producing narrow conceptions of equality which
may not account for systemic flaws that embody discrimination.
Therefore, we will conclude this section with an understanding of a
systemic frame of analysis, in order to adequately redress the full extent
of harm that certain groups suffer, merely on account of them possessing
characteristics that are prohibited axles of discrimination.
F.1 Theoretical Foundations of Indirect Discrimination
51. Hugh Collins and Tarunabh Khaitan explain the concept of
indirect discrimination using Aesop’s fable of the fox and the stork. They
note:
42 Interchangeably referred as “PCP”
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
700
SUPREME COURT REPORTS
[2021] 4 S.C.R.
“Aesop’s fable of the fox and the stork invokes the idea of indirect
discrimination. The story tells how the fox invited the stork for a
meal. For a mean joke, the fox served soup in a shallow dish,
which the fox could lap up easily, but the stork could only wet the
end of her long bill on the plate and departed still hungry. The
stork invited the fox for a return visit and served soup in a long-
necked jar with a narrow mouth, into which the fox could not
insert his snout. Whilst several moral lessons might be drawn from
this tale, it is often regarded as supporting the principle that one
should have regard to the needs of others, so that everyone may
be given fair opportunities in life. Though formally giving each
animal an equal opportunity to enjoy the dinner, in practice the
vessels for the serving of the soup inevitably excluded the guest
on account of their particular characteristics.”43
52. Another excellent formulation of the doctrine can be found in
the opinion of Advocate General Maduro of the Court of Justice of the
European Union (CJEU). He notes that the distinctive attribute of direct
discrimination is that the discriminator explicitly relies on a suspect
classification (prohibited ground of discrimination) to act in a certain
way. Such classification serves as an essential premise of the
discriminator’s reasoning. On the other hand, in indirect discrimination,
the intention of the discriminator, and
the reasons for his actions are
irrelevant. He pertinently observes: “In fact, this is the whole point of
the prohibition of indirect discrimination: even neutral, innocent or good
faith measures and policies adopted with no discriminatory intent
whatsoever will be caught if their impact on persons who have a particular
characteristic is greater than their impact on other persons.”44
53. Thus, as long as a court’s focus is on the mental state underlying
the impugned action that is allegedly discriminatory, we are in the territory
of direct discrimination. However, when the focus switches to the effects
of the concerned action, we enter the territory of indirect discrimination.
An enquiry as to indirect discrimination looks, not at the form of the
impugned conduct, but at its consequences. In a case of direct
discrimination, the judicial enquiry is confined to the act or conduct at
43 FOUNDATIONS OF INDIRECT DISCRIMINATION LAW (Hugh Collins and Tarunabh Khaitan
(eds), Hart Publishing) 2018 at p.1
44 Coleman v. Attridge Law, [2008] IRLR 722
A
B
C
D
E
F
G
H
701
issue, abstracted from the social setting or background fact-situation in
which the act or conduct takes place. In indirect discrimination, on the
other hand, the subject matter of the enquiry is the institutional or societal
framework within which the impugned conduct occurs. The doctrine
seeks to broaden the scope of antidiscrimination law to equip the law to
remedy patterns of discrimination that are not as easily discernible.
F.2 Position in the United States
54. The genesis of the doctrine can be traced to the celebrated
United States Supreme Court judgment in Griggs v. Duke Power Co45.
The issue concerned manual work for which the prescribed qualifications
included the possession of a high school education and satisfactory results
in an aptitude test. Two facts about the case bear emphasis. First, due to
the inferior quality of segregated school education, African-American
candidates were disqualified in higher numbers because of the
aforementioned requirements than their white counterparts. Second,
neither of these two requirements was shown to be significantly related
to successful job performance.
55. Construing the prohibition on discrimination embodied in Title
VII of the Civil Rights Act of 1964, Chief Justice Burger held:
“The Act proscribes not only overt discrimination but also practices
that are fair in form, but discriminatory in operation.” He went on:
“good intent or absence of discriminatory intent does not redeem
employment procedures
or testing mechanisms that operate as
“built-in headwinds” for minority groups and are unrelated to
measuring job capability.”46
On the question of the standard of justification for rebutting a
charge of indirect discrimination, the Court held as follows:
“The touchstone is business necessity. If an employment practice
which operates to exclude Negroes cannot be shown to be related
to job performance, the practice is prohibited.”47
Griggs, therefore, laid the groundwork for the thinking that
meaningful equality does not merely mean the absence of intentional
45 “Griggs”, 401 US 424, 431 (1971)
46 Id. at p. 431
47 Ibid.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
702
SUPREME COURT REPORTS
[2021] 4 S.C.R.
inequality. A statutory manifestation of disparate impact was codified in
US law in the shape of the Civil Rights Act of 1991. Section 10548 of the
Civil Rights Act of 1991 makes a practice causing disparate impact a
prima facie violation. The presumption can be rebutted by establishing
that the practice is linked to the job and business. This can be overcome
48“SEC. 105. BURDEN OF PROOF IN DISPARATE IMPACT CASES.
(a) Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is amended by
adding at the end the following new subsection:
‘(k)(1)(A) An unlawful employment practice based on disparate impact is established
under this title only if—
‘(i) a complaining party demonstrates that a respondent uses a particular employment
practice that causes a disparate impact on the basis of race, color, religion, sex, or
national origin and the respondent fails to demonstrate that the challenged practice is
job related for the position in question and consistent with business necessity; or
‘(ii) the complaining party makes the demonstration described in subparagraph (C)
with respect to an alternative employment practice and the respondent refuses to
adopt such alternative employment practice.
‘(B)(i) With respect to demonstrating that a particular employment practice causes a
disparate impact as described in subparagraph (A)(i), the complaining party shall
demonstrate that each particular challenged employment practice
causes a disparate
impact, except that if the complaining party can demonstrate to the court that the
elements of a respondent’s decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be analyzed as one employment practice.
‘(ii) If the respondent demonstrates that a specific employment practice does not cause
the disparate impact, the respondent shall not be required to demonstrate that such
practice is required by business necessity.
‘(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with
the law as it existed on June 4, 1989, with respect to the concept of ‘alternative
employment practice’.
‘(2) A demonstration that an employment practice is required by business necessity
may not be used as a defense against a claim of intentional discrimination under this
title.
‘(3) Notwithstanding any other provision of this title, a rule barring the employment of
an individual who currently and knowingly uses or possesses a controlled substance, as
defined in schedules I and II of section 102(6) of the Controlled Substances Act (21
U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision
of a licensed health care professional, or any other use or possession authorized by the
Controlled Substances Act or any other provision of Federal law, shall be considered an
unlawful employment practice under this title only if such rule is adopted or applied
with an intent to discriminate
because of race, color, religion, sex, or national origin.’.
(b) No statements other than the interpretive memorandum appearing at Vol. 137
Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall be considered legislative
history of, or relied upon in any way as legislative history in construing or applying,
any provision of this Act that relates to Wards Cove—Business necessity/cumulation/
alternative business practice.”
A
B
C
D
E
F
G
H
703
by a showing of alternative, equally efficacious, practices not causing
disparate impact.
56. In 2005, in Smith v. City of Jackson49, the US Supreme
Court construed statutory language in The Age Discrimination in
Employment Act, 1967 which proscribed actions which “otherwise
adversely affect” an employee. This was read to include disparate impact
liability. The Court held that this phrase “focuses on the effects of the
action on the employee rather than the motivation for the action of the
employer.”
57. The third major case on disparate impact liability decided by
the US Supreme Court was in 2015, concerning the Fair Housing Act
which the Court interpreted as including disparate impact liability.50 The
Court also made instructive observations on the burden of proof that a
plaintiff espousing a claim of disparate impact on the basis of statistical
disparity must discharge. It held that the plaintiff must be able to establish
that the defendant’s policy is the cause of the disparity. The Court noted:
“A robust causality requirement […] protects defendants from being
liable for racial disparities they did not create.”51 On the standard of
justification for rebutting such a claim, the Court held that courts must
assess claims of disparate impact liability with caution so that defendants
are provided reasonable margin for devising requisite policies that are
tailored for their work requirement.
F.3 Position in the United Kingdom
58. In the United Kingdom
(UK), the fault-line that separates
direct discrimination from indirect discrimination is not the intention of
the discriminator. Rather, it is the fact that direct discrimination cannot
be justified in any circumstance, while indirect discrimination is susceptible
to justification. To quote Baroness Hale:
“Direct and indirect discrimination are mutually exclusive. You
cannot have both at once … The main difference between them
is that direct discrimination cannot be justified. Indirect
discrimination can be justified if it is a proportionate means of
achieving a legitimate aim.”52
49 544 US 228 (2005)
50 Texas Department of Housing and Community Affairs v. Inclusive Communities
Project Inc, 135 S Ct 2411 [2015], per Kennedy J
51 Id. at para 20
52 R (on the application of E) v. JFS Governing Body, [2009] UKSC 15, para 57
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
704
SUPREME COURT REPORTS
[2021] 4 S.C.R.
59. The statutory definition of indirect discrimination is engrafted
in Section 1953 of the Equality Act, 2010. The definition has 4 salient
features. First, it covers provisions, criteria and practices that are applied
in a uniform fashion, to those with and without the ground on which
discrimination is alleged. Second, the PCP puts, or would put, persons
with whom the claimant shares the relevant ground at a particular
disadvantage when compared with persons with whom the claimant does
not share it. Third, the claimant herself would be put, or is put, to such
disadvantage by the operation of the PCP. Finally, the defendant cannot
show the PCP to be a proportionate means of achieving a legitimate
aim.
60. An instructive judgment of the UK Supreme Court for us is
Essop v. Home Office (UK Border Agency)54. At issue was the
allegedly disproportionate impact of an exam called the Core Skills
Assessment, to secure public sector employment and promotion in civil
services, on “black and minority ethnic (BME)” and older candidates.
The Court noted the statistical disparity in the following terms:
“The BME pass rate was 40.3% of that of the white candidates.
The pass rate of candidates aged 35 or older was 37.4% of that
of those below that age. In each case, there was a 0.1% likelihood
that this could happen by chance. Of course, they did not all fail.
No-one knows why the proportion of BME or older candidates
failing is
significantly higher than the proportion of white or younger
candidates failing.”
61. The Court outlined the following salient features of indirect
discrimination in UK law:
53 “19. Indirect discrimination
(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion
or practice which is discriminatory in relation to a relevant protected characteristic
of B’s.
(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory
in relation to a relevant protected characteristic of B’s if—
(a)A applies, or would apply, it to persons with whom B does not share the characteristic,
(b)it puts, or would put, persons with whom B shares the characteristic at a particular
disadvantage when compared with persons with whom B does not share it,
(c)it puts, or would put, B at that disadvantage, and
(d)A cannot show it to be a proportionate means of achieving a legitimate aim.
(3)The relevant protected characteristics are—age; disability; gender reassignment;
marriage and civil partnership; race; religion or belief; sex; sexual orientation.”
54 [2017] UKSC 27
A
B
C
D
E
F
G
H
705
(i)
There is no need for the claimant to show why the PCP
discriminates against individuals possessing the relevant
ground. The fact that the PCP has such a disproportionate
impact is sufficient;
(ii)
Direct discrimination requires a causal link between the less
favourable treatment and the relevant ground. On the other
hand, indirect discrimination requires a causal link between
the PCP and the particular disadvantage suffered by the
group and the individual. This difference is rooted in the
fact that the aim of direct discrimination is to achieve equality
of treatment. On the other hand, indirect discrimination
seeks to create a level playing field, by spotting and
eliminating hidden barriers which disproportionately affect
a particular group, absent a legally acceptable justification;
(iii)
The inability of the relevant group to comply with the PCP
can be ascribed to a variety of ‘context factors’. These
can include genetic factors, social understandings, archetypal
presuppositions, etc.;
(iv)
In order for a claim of indirect discrimination to succeed, it
is not necessary to show that every single member of the
group possessing the relevant ground was unable to meet
the PCP. It is enough to show that the PCP disproportionately
disadvantaged members of the concerned group;
(v)
It is commonplace for indirect discrimination to be
established on the basis of statistical evidence. Such
evidence is often able to show the causal link that a particular
variable played in arriving at a particular outcome; and
(vi)
Finally, the defendant can always rebut a charge of indirect
discrimination by showing that there exists a good
justification for the PCP at issue.
F.4 Position in South Africa
62. In keeping with the progressive vision of the South African
Constitution, Section 9 of the South African Constitution55 prohibits indirect
discrimination. The judicial exegesis of indirect discrimination can first
55  “9 (1) Everyone is equal before the law and has the right to equal protection and
benefit of the law;
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
706
SUPREME COURT REPORTS
[2021] 4 S.C.R.
be found in the judgment of the South African Constitutional Court56 in
the case of City Council of Pretoria v. Walker57 in which the Court
expounded on the doctrine in the following terms:
“The concept of indirect discrimination, ... was developed precisely
to deal with situations where discrimination lay disguised behind
apparently neutral criteria or where persons already adversely hit
by patterns of historic subordination had their disadvantage
entrenched or intensified by the impact of measures not overtly
intended to prejudice them. In many cases, particularly those in
which indirect discrimination is alleged, the protective purpose
would be defeated if the persons complaining of discrimination
had to prove not only that they were unfairly discriminated against
but also that the unfair discrimination was intentional. This problem
would be particularly acute in cases of indirect discrimination where
there is almost always some purpose other than a discriminatory
purpose involved in the conduct or action to which objection is
taken.”
In elaborating on how the impugned provision does not necessarily
have to make a suspect classification on the grounds of race, the SACC
concluded that differentiation between the treatment of residents of areas
which were “historically, and overwhelmingly occupied by black
persons….as opposed to areas which were still overwhelmingly white”
was sufficient to evince indirect
discrimination on the grounds of race.
63. In a recent judgment in Mahlangu and Another v. Minister
of Labour58, the SACC had to rule on the constitutionality of Section
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures designed to protect
or advance persons, or categories of persons, disadvantaged by unfair discrimination
may be taken;
(3) The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth;
(4) No person may unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3). National legislation must be enacted to prevent
or prohibit unfair discrimination;
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
56 “SACC”
57 (1998) 3 BCLR 257, paras 31-32
58 [2020] ZACC 24
A
B
C
D
E
F
G
H
707
1(xix)(v) of the Compensation for Occupational Injuries and
Diseases Act. This provision explicitly excluded domestic workers from
the definition of employees under the Act. This had the consequence of
depriving domestic workers access to the social security benefits
contained in the legislation, in the event of injury, disablement and death.
The SACC, inter alia, returned a finding that the provision was hit by
the constitutional prohibition on indirect discrimination. This was for the
reason that domestic workers are predominantly black women. As a
result, held the Court: “This means discrimination against them constitutes
indirect discrimination on the basis of race, sex and gender.”
F.5 Position in Canada
64.In Ontario Human Rights Commission v. Simpsons-
Sears59, the Canadian Supreme Court expounded the doctrine of indirect
discrimination (what it called adverse effects discrimination), while
entertaining a challenge under Section 4(1)(g) of the Ontario Human
Rights Code60. In analyzing whether a work policy mandating inflexible
working hours on Friday evenings and Saturdays indirectly discriminated
against the Appellant on the basis of her creed, in that her religion required
her to strictly observe the Sabbath, the Court noted:
“18. A distinction must be made between what I would describe
as direct discrimination and the concept already referred to as
adverse effect discrimination in connection with employment.
Direct discrimination occurs in this
connection where an employer
adopts a practice or rule which on its face discriminates on a
prohibited ground. For example, “No Catholics or no women or
no blacks employed here.” There is, of course, no disagreement
in the case at bar that direct discrimination of that nature would
contravene the Act. On the other hand, there is the concept of
adverse effect discrimination. It arises where an employer for
genuine business reasons adopts a rule or standard which is on its
face neutral, and which will apply equally to all employees, but
which has a discriminatory effect upon a prohibited ground on
one employee or group of employees in that it imposes, because
of some special characteristic of the employee or group,
59 “Ontario HRC”, [1985] 2 SCR 53
60 Section 4(1)(g) of the Ontario Human Rights Code prohibited discrimination against
an employee with regards to any term or condition of employment on the basis of race,
creed, colour, sex, age etc.
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
708
SUPREME COURT REPORTS
[2021] 4 S.C.R.
obligations, penalties, or restrictive conditions not imposed on other
members of the work force. For essentially the same reasons
that led to the conclusion that an intent to discriminate was not
required as an element of discrimination contravening the Code I
am of the opinion that this Court may consider adverse effect
discrimination as described in these reasons a contradiction of the
terms of the Code. An employment rule honestly made for sound
economic or business reasons, equally applicable to all to whom it
is intended to apply, may yet be discriminatory if it affects a person
or group of persons differently from others to whom it may apply.
From the foregoing I therefore conclude that the appellant showed
a prima facie case of discrimination based on creed before the
Board of Inquiry.”
It was further noted that the aim of the guarantee against
discrimination is “not to punish the discriminator, but rather to provide
relief for the victims of discrimination. It is the result or the effect of the
action complained of which is significant.” Thus if the impugned action
has the effect to “impose on one person or group of persons obligations,
penalties, or restrictive conditions not imposed on other members of the
community, it is discriminatory.”61
65. The principles laid down in Ontario HRC (supra) were
consistently applied by the courts in Canada to protect indirect
discrimination. In a recent judgment in Fraser
v. Canada (Attorney
General)62, the Canadian Supreme Court was called on to determine
the constitutionality of a rule categorizing job-sharing positions as “part-
time work” for which participants could not receive full-time pension.
Under the job-sharing programme, optees for the programme could split
the duties and responsibilities of one full-time position. A large majority
of the optees for the job-sharing programme were women, who found it
burdensome to carry out the responsibilities of work and domestic work
and were particularly hit by the new rule as they would lose out on
pension benefits. The Court recognized indirect discrimination as a legal
response to the fact that discrimination is “frequently a product of
continuing to do things the way they have always been done”, as opposed
to intentionally discriminatory actions.63 Pertinently, the Court outlined a
61 Ontario HRC (supra n.60) at para 12
62 (“Fraser”), 2020 SCC 28
63 Id. at para 31
A
B
C
D
E
F
G
H
709
2-step test for conducting an indirect discrimination enquiry. First, the
Court has to enquire whether the impugned rule disproportionately affects
a particular group. As an evidentiary matter, this entails a consideration
of material that demonstrates that “membership in the claimant group is
associated with certain characteristics that have disadvantaged members
of the group”. However, as such evidence might be hard to come by,
reliance can be placed on evidence generated by the claimant group
itself. Further, while statistical evidence can serve as concrete proof of
disproportionate impact, there is no clear quantitative threshold as to the
quantum of disproportionality to be established for a charge of indirect
discrimination to be brought home. Equally, recognizing the importance
of applying a robust judicial common sense, the Court held: “In some
cases, evidence about a group will show such a strong association with
certain traits—such as pregnancy with gender—that the disproportionate
impact on members of that group will be apparent and immediate”.64
Second, the Court has to look at whether the law has the effect of
reinforcing, perpetuating, or exacerbating disadvantage. Such
disadvantage could be in the shape of: “[e]conomic exclusion or
disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical
harms…[or] [p]olitical exclusion”, and must be viewed in light of any
systemic or historical disadvantages faced by the claimant group.”65
F.6
Evolving an analytical framework for indirect
discrimination in India:
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
64 Id. at paras 50-72
65 Id. at para 76
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
710
SUPREME COURT REPORTS
[2021] 4 S.C.R.
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.”66 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.”67 Consistent with the Canadian Supreme
Court’s 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
evidence68. 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
66 Ontario HRC (supra n. 60), para 14
67 Sandra Fredman, Discrimination Law (supra n. 28) at p. 187
68 Orsus and others v. Croatia,  [2010] ECHR 337, para 153
A
B
C
D
E
F
G
H
711
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/defendant’s 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.69
F.7 Systemic Discrimination as antithetical to Substantive
Equality
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.
72. In order to conceptualize substantive equality, it would be
apposite to conduct a systemic analysis of discrimination that combines
tools of direct and indirect discrimination. In the words of Professor
Marie Mercat- Bruns70:
69 Sandra Fredman, Discrimination Law (supra n. 28) at p. 194
70 Marie Mercat-Bruns, Systemic discrimination: Rethinking the Tools of Gender Equality,
EUROPEAN EQUALITY LAW REVIEW, Vol. 2 (European Commission, 2018) at p.5-6
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
712
SUPREME COURT REPORTS
[2021] 4 S.C.R.
“Systemic discrimination posits the need to conceptualize
discrimination in terms of workplace dynamics rather than solely
in existing terms of an identifiable actor’s isolated state of mind, a
victim’s perception of his or her own work environment, or the
job-relatedness of a neutral employment practice with adverse
consequences. Systemic discrimination derives from how
organizations, as structures discriminate.”
73. A particular discriminatory practice or provision might often
be insufficient to expose the entire gamut of discrimination that a particular
structure may perpetuate. Exclusive reliance on tools of direct or indirect
discrimination may also not effectively account for patterns arising out
of multiple axles of discrimination. Therefore, a systemic view of
discrimination, in perceiving discriminatory disadvantage as a continuum,
would account for not just unjust action but also inaction71. Structures, in
the form of organizations or otherwise, would be probed for the systems
or cultures they produce that influence day-to-day interaction and
decision-making.72 The duty of constitutional courts, when confronted
with such a scheme of things, would not just be to strike down the
discriminatory practices and compensate for the harm hitherto arising
out of them; but also structure adequate reliefs and remedies that facilitate
social re-distribution by providing for positive entitlements that aim to
negate the
scope of future harm.
74. The Supreme Court of Canada, in Action Travail des
Femmes v. Canadian National Railway Company73 analyzed the claim
of woman seeking equal employment opportunities in the National
Railroad Company. In echoing the mutually reinforcing consequences
of direct and indirect discrimination within organizational structures as a
systemic feature, the Court noted74:
“systemic discrimination in an employment context is discrimination
that results from the simple operation of established procedures
of recruitment, hiring and promotion, none of which is necessarily
designed to promote discrimination. The discrimination is then
reinforced by the very exclusion of the disadvantaged group
71 Id. at p.10-13
72 Tristin K. Green, The Future of Systemic Disparate Treatment Law, BERKELEY JOURNAL
OF EMPLOYMENT AND LABOUR LAW, Vol. 32(2), 2011, 400-454
73 “Canadian National Railway Company”, (1987) 1 S.C.R. 1114
74 Id.at 1139
A
B
C
D
E
F
G
H
713
because the exclusion fosters the belief, both within and outside
the group, that the exclusion is a result of “natural forces”, for
example, that women “just can’t do the job”…..To combat systemic
discrimination, it is essential to create a climate in which both
negative practices and negative attitudes can be challenged and
discouraged”
In prescribing remedies against systemic discrimination, the Court
consciously noted that the remedies do not have to be merely
compensatory, but also prospective in terms of the benefit that is designed
to improve the situation in the future. The Court structured the remedy
as follows:
“An employment equity program thus is designed to work in three
ways. First, by countering the cumulative effects of systemic
discrimination, such a program renders further discrimination
pointless....
Secondly, by placing members of the group that had previously
been excluded into the heart of the work place and by allowing
them to prove ability on the job, the employment equity scheme
addresses the attitudinal problem of stereotyping....
Thirdly, an employment equity program helps to create what has
been termed a “critical mass” of the previously excluded group in
the work place. This “critical mass” has important effects. The
presence of a significant number of individuals from a targeted
group eliminates the problems of “tokenism”75.
This framework provided in Canadian National Railway
Company (supra) was followed by the Human Rights
Tribunal of
Canada, in the case of National Capital Alliance on Race Relations
v. Canada (Health and Welfare)76, wherein the Court had to examine
a case against the Health and Welfare Department of Canada for
discriminating against visible minorities by establishing employment
policies and practices that deprive visible minorities (race, colour and
ethnic origin) of employment opportunities in senior management. The
Court conducted a holistic analysis of the organization by collating
testimonies of workers in the organization and by engaging experts on
statistical analysis and human resource management. The evidence of
75 Canadian National Railway Company (supra n. 74) at p.1143 to 1144
76 1997 28 C.H.R.R.D/179 (Canadian Human Rights Tribunal)
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
714
SUPREME COURT REPORTS
[2021] 4 S.C.R.
the expert on human resources was analysed to situate systemic issues
ranging from ghettoization of minorities in Canada translating into lesser
encouragement for professional ambition. Societal impact of
discrimination was evidenced in the informal staffing decisions providing
fertile ground for unconscious bias and a broader perception of visible
minorities as unfit for management. In upholding the claims of the plaintiffs,
corrective measures were prescribed to counteract the effects of systemic
discrimination in the workforce.
75. In the United States, the Supreme Court analysed a Title VII
claim of workers (represented by the Government) in a trucking company
alleging pattern and practice of employment discrimination against
“Negroes and Spanish-surnamed Americans” by failing to place them
equally with whites in long-distance, line-driver positions77. The Court
noted certain legal principles that could govern a claim of systemic
disparate treatment and used a mixture of statistical patterns with worker
testimonies to arrive at a conclusion of systemic discrimination:
“Consideration of the question whether the company engaged in
a pattern or practice of discriminatory hiring practices involves
controlling legal principles that are relatively clear. The
Government’s theory of discrimination was simply that the
company, in violation of s 703(a) of Title VII, 14 regularly and
purposefully treated Negroes and
Spanish-surnamed Americans
less favorably than white persons.…The ultimate factual issues
are thus simply whether there was a pattern or practice of such
disparate treatment and, if so, whether the differences were
“racially premised.” …
As the plaintiff, the Government bore the initial burden of
making out a prima facie case of discrimination. Albemarle
Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45
L.Ed.2d 280; McDonnell Douglas Corp. v. Green, supra, 411 U.S.,
at 802, 93 S.Ct., at 1824. And, because it alleged a systemwide
pattern or practice of resistance to the full enjoyment of
Title VII rights, the Government ultimately had to prove
more than the mere occurrence of isolated or “accidental”
or sporadic discriminatory acts. It had to establish by a
preponderance of the evidence that racial discrimination
77 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)
A
B
C
D
E
F
G
H
715
was the company’s standard operating procedure the
regular rather than the unusual practice….
The Government bolstered its statistical evidence with the testimony
of individuals who recounted over 40 specific instances of
discrimination. Upon the basis of this testimony the District Court
found that “(n)umerous qualified black and Spanish-surnamed
American applicants who sought line driving jobs at the company
over the years, either had their requests ignored, were given false
or misleading information about requirements, opportunities, and
application procedures, or were not considered and hired on the
same basis that whites were considered and hired.” Minority
employees who wanted to transfer to line-driver jobs met with
similar difficulties. The company’s principal response to this
evidence is that statistics can never in and of themselves prove
the existence of a pattern or practice of discrimination, or even
establish a prima facie case shifting to the employer the burden of
rebutting the inference raised by the figures. But, as even our
brief summary of the evidence shows, this was not a case in
which the Government relied on “statistics alone.” The
individuals who testified about their personal experiences
with the company brought the cold numbers convincingly
to life.”78
(emphasis supplied)
Therefore, once a petitioner could establish a prima facie case
of discrimination that did not occur as accidental or sporadic instances
of conduct, it could
prove its case using statistical evidence, witness
testimonies and other qualitative methods to establish a preponderance
of systemic discrimination.
76. In 1997, in the United Kingdom, Sir William Macpherson, a
retired High Court judge, was commissioned to study institutional racism
in the police force. This study was situated in the backdrop of the lacunae
in the investigation of a murder of Stephen Lawrence, a Black British
teenager. The findings, publicized as the “Macpherson Report” on 24
February 199979 concluded that the investigation by the police was marred
78 Id.at p. 334-340
79 The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of
Cluny (February 1999) available at https://assets.publishing.service.gov.uk/government/
uploads/system/uploads/attachment_data/file/277111/4262.pdf#page=375
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
716
SUPREME COURT REPORTS
[2021] 4 S.C.R.
by incompetence and institutional racism. The report studied prejudices
within officers which fed into an institutional culture as follows:
“6.34….The collective failure of an organisation to provide an
appropriate and professional service to people because of their
colour, culture, or ethnic origin. It can be seen or detected in
processes, attitudes and behaviour which amount to discrimination
through unwitting prejudice, ignorance, thoughtlessness and racist
stereotyping which disadvantage minority ethnic people.It persists
because of the failure of the organisation openly and adequately
to recognise and address its existence and causes by policy,
example and leadership. Without recognition and action to eliminate
such racism it can prevail as part of the ethos or culture of the
organisation. It is a corrosive disease.”
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
A
B
C
D
E
F
G
H
717
(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.
G Analysis
79. The fundamental issue is whether the procedure which was
followed in evaluating the women SSCOs comports with the requirements
of law. In arriving at this determination, we will primarily be guided by
the Army Orders, Army Instructions and policy letters of the Union
Government which have been set out above and will be further explained
below. At this stage, it needs to be emphasized that the issue as regards
the applicability of the SHAPE-1 criteria will not be taken up in the first
part of the analysis and will be dealt with independently in a subsequent
part of this judgment. With this clarification, we proceed to outline the
interplay between the Army instructions and policy letters.
G.1 Selection Process & Criteria set by the Army
(i)
SAI/3S/70 set out the modalities for the grant of PC to
serving SSCOs while making SSCOs eligible to apply for
PC. This was inter alia subject to the conditions of eligibility
spelt out in paragraph 2. These
conditions of eligibility were
a.
An upper age limit of 27 years;
b.
Fulfillment of medical criteria; and
c.
Possession of technical qualifications as prescribed
by officers seeking PCs in the Corps of Engineers,
Signals and EME. The Army instruction provided for
interviews by a Service Selection Board. All officers
who have been found suitable for the grant of PC
would be placed in a panel and the final decision would
rest with the government. Para 8b stipulated that the
grant of PCs would depend upon the vacancies
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
718
SUPREME COURT REPORTS
[2021] 4 S.C.R.
existing in the arms or services and the suitability of
officers. The form of application at Appendix-A to
the Army Instruction inter alia stipulated the
requirement of the applicant being recommended by
the Commanding Officer and the Brigade
Commander;
(ii)
On 30 September 1983, the criteria for the grant of PC to
SSCOs were formulated. The criteria envisaged that the
Selection Board will assess each officer’s performance on
the basis of a computerized MDS. While the computerized
evaluation would receive 80 per cent weightage, 20 per
cent weightage would be given to the assessment of the
members of the Selection Board. The Selection Board was
also required to award a grading, besides awarding marks,
on whether an officer was recommended for
a.
PC; or
b.
Extension; or
c.
In the alternate was rejected, deferred or withdrawn.
Of the 80 marks earmarked for computerized evaluation,
60 marks were for the Quantitative Assessment of
Performance (QAP), 6 for honours and awards, 10 for
performance in courses and 4 for strong points. A candidate
who was recommended for PC by the reporting officer in
the ACR would get a ‘0’ mark for “Yes” and ‘minus 2’
marks for “No”. Minus marks were also be given for weak
points.
(iii)
On 24 February 2012, a policy letter was issued by the
MoD to amend the weightage attributed to the computerised
evaluation. This policy currently holds the field. The
computerized evaluation was enhanced from
80 per cent to
95 per cent and the subjective evaluation of the members
of the Selection Board No 5 was brought down from 20 to
5 per cent. The weightage of 95 per cent assigned to
computer evaluation was distributed amongst QAP (75
A
B
C
D
E
F
G
H
719
marks), honours and awards (5 marks), sports and games
(5 marks) and performance and courses (10 marks). The
recommendation of the reporting officer in the ACR for
grant of PC would carry ‘0’ mark, while a negative
recommendation carries minus ‘2’ marks. It was envisaged
that the marks quantified for overall performance would be
obtained by cumulating the value judgment marks to the
computerized evaluation. The marks so obtained would be
used to draw out the overall merit of the officer. The
minimum cut-off grade for SSCOs including women officers
would be 60 per cent which could be reviewed every 2
years;
(iv)
AO 18/1988 contained provisions in regard to “system for
selection for grant of permanent commission of SSCOs”.
Under para 8 of the AO it was envisaged that the first 50
per cent of officers screened by the Selection Board in the
order of merit would be granted PC, the next 35 per cent
would be granted extensions for another five years while
the remaining 15 per cent officers would be released on
competing the contractual period of five years’ service. Para
2 of the AO 18/1988, in other words, made it abundantly
clear that while at one end of the spectrum 50 per cent of
the officers in order of merit would be conferred with PC,
at the other end of the spectrum only 15 per cent would be
released on completing the contractual term. Between these
two ends were officers (35 per cent) who were granted an
extension of five years. AO 18/1988 specified in
para 4,
the constitution of the Selection Board which was to assess
performance strictly in accordance with the laid down
criteria. Under para 6 gradings were required to be assigned
to the officers on whether or not they were recommended
for PC or for extension or, in the alternative, to be deferred.
Para 7 envisaged that the computer evaluation and
assessment by members of the selection board would be
based on ACRs, honours and awards, performance in
courses, recommendations for PC, disciplinary awards and
strong and weak points. A minimum of three ACRs were
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
720
SUPREME COURT REPORTS
[2021] 4 S.C.R.
required as essential to consider the case of an officer for
PC. Moreover, the AO stipulated in paragraph 13 that
“officers are assessed on the merits of their service
performance as reflected in the ACRs and not by the reports
filed in the CR dossier”. Further, while evaluating the ACRs,
the possibility of subjective/inflated reporting and fluctuation
in performance of officers were taken note of by, inter
alia, stipulating that the last ACR before assessment for
PC would be taken into consideration. The Army Order
also clarified in para 13(e) that the low medical category of
the officers would not influence the assessment as it is an
administrative restriction and not a criteria for assessment.
Moreover, para 21 spelt out the medical requirements (to
be considered subsequently in this judgment). Para 23
stipulated that those who are not selected for PC but are
otherwise fit and suitable would be granted an extension of
five years beyond the initial term of five years on the expiry
of which they would be released from the Army. This is
how the SSC engagement (at that time) came to be
described as an engagement for 5+5 years. Persons in the
PMLC who could not be granted PC would be allowed to
continue in service for a full extended tenure of 5 years
beyond the initial tenure of 5 years (Para 26). Moreover,
under para 34, it was stipulated that SSCOs would be
screened only once in the 5th year of service by a selection
board for PC. However, in certain circumstances, a special
review for the grant of PC was envisaged;
(v)
On 15 January 1991, MoD issued a policy letter capping
the number of vacancies per year for PC at 250. The
minimum acceptable cut-off grade for the grant of PC to
SSCOs is 60 per cent which would be reviewed every two
years. In the event that more officers, in excess of the ceiling
of 250 fulfill the cut - off grade of 60 per cent, the requisite
number of 250 officers would be granted PC in competitive
merit. All officers, irrespective of the grant of PC, would
be given an extension of 5 years, unless they opt out or are
considered unfit for retention; and
A
B
C
D
E
F
G
H
721
(vi)
MoD’s Policy Letters dated 20 July 2006 provided that
SSCOs both in the technical and non-technical branch would
have a tenure of 14 years – the initial 10 years, extendable
by 4 years. Moreover, serving WSES officers were given
an option to seek SSC within a period of six months.
80. Now, in the backdrop of the above analysis it becomes
necessary to evaluate themethodology which has been followed while
considering 615 women SSCOs across several batches for the belated
grant of PC, by the constitution of a special board.
G.2 Benchmarking with the Lowest Male Officer
81. The first aspect to be considered in relation to the assessment
criteria provided in the General Instructions dated 1 August 2020 is the
bench-marking of the marks awarded to WSSCOs with the lowest placed
male officer of the corresponding batch. In the course of his submissions,
the ASG has argued that “there is a considerable rationale in assessing
the women officers on the basis of their first 5/10 years of service (as
the case may be) and keeping the above benchmark [that is, for bench-
marking them with the lowest selected male officer of the corresponding
batch]”. The rationale which the ASG put forth can be summarized as
follows:
(i)
The cut-off of 60 per cent marks is only a criterion of
eligibility for considering officers for the grant of PC. This
is a minimum cut-off grade applicable both to men and
women officers. Securing 60 per cent in itself, which is a
threshold
criteria, does not automatically entitle an officer
to the grant of PC; 
(ii)
Since 1991, an upper ceiling of 250 vacancies per year for
PC was prescribed. The number of candidates above the
60 per cent cut-off, amongst whom the selection for PC
would be made, will fluctuate from year to year and hence
“the marks of the 250th candidate automatically becomes a
benchmark”;
(iii)
In the present case, while implementing the judgment of
this Court in Babita Puniya (supra) dated 17 February 2020,
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2021] 4 S.C.R.
the upper limit of 250 vacancies was dispensed with for
women officers in order to ensure that no WSSCO who is
found eligible on merits and qualified in terms of the medical
criterion is denied PC for want of vacancy;
(iv)
The decision in Babita Puniya (supra) required the Army
authorities to offer PC to the WSSCOs at par with their
male counterparts. AO 18/1988 had initially stipulated that
50 per cent of the officers falling in the order of merit would
be granted PC, 35 per cent would be granted an extension
of 5 years and 15 per cent would be released on completing
the contractual period of 5 years of service. This governed
the earlier regime of SSCOs under which SSCOs were
recruited for 5 years and were granted an extension of 5
years. This regime was modified in 2004 when a second
extension option up to four years was introduced making it
5+5+4. In 2006, the above regime was revised by the Policy
Letter dated 20 July 2006 by MoD, the effect of which
was that the SSC regime of 5+5+4 was substituted by a
regime of 10+4;
(v)
The policy decision of MoD dated 15 January 1991 indicated
a cap of 250 SSCOs for the annual grant of PC; a minimum
cut-off grade of 60 per cent, and in case more than the
specified number of officers make the grade, only 250 would
be granted PC on competitive merit;
(vi)
Even for male officers, the statistics pertaining to 32 batches
would indicate that 67.86 per cent were granted PC and
hence
there is no discrimination against women SSCOs;
and
(vii)
In the absence of an upper ceiling of vacancies, the field
would be left open for any number of WSSCOs to get PC.
To avoid this, a benchmark had to be fixed. The need for
fixing a benchmark is indisputable though any benchmark
has to satisfy the test of being rational and of not being
arbitrary. If two views are possible, the view which has
been adopted by the Army authorities must be given
preference. Benchmarking the aspirant WSSCOs with the
A
B
C
D
E
F
G
H
723
lowest of their male counterparts on merit is an objective
criterion.
82. The fundamental postulate in the submissions of the ASG is
that since there is a cut-off of 250 vacancies per year for the grant of
PC to SSCOs and a minimum of 60 per cent is fixed as the cut-off grade
by the Policy Letter dated 15 January 1991 of the MoD, the evaluation
of competitive merit is necessary. Though, the WSSCOs in the present
case were not subjected to any ceiling of vacancies as a one-time measure,
benchmarking (in the submission) became necessary to place them at
par with their male counterparts.
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. The
table is extracted below:
LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.
[DR. DHANANJAYA Y CHANDRACHUD, J.]

A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2021] 4 S.C.R.