New Delhi, Mar 25: Women Short Service Commission (SSC) officers in the Indian Army have traversed a long and tedious path since 2003, engaged in litigation seeking parity with their male counterparts for grant of permanent commission, and their long-drawn battle for equality was as much about engaging as much with reforming mindsets as with implementing constitutional principles, the Supreme Court said.
The apex court did not disappoint these women officers, as it held that the administrative requirement imposed by Army authorities, while considering their case for the grant of permanent commission, of benchmarking them with the officers lowest in merit in the corresponding male batch is “arbitrary and irrational”.
A bench of Justices D.Y. Chandrachud and M.R. Shah said: “We must recognise here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the ‘norm’ and may appear to be harmless, are a reflection of the insidious patriarchal system.”
These women officers have persevered for over a decade to gain the same dignity of an equal opportunity at permanent commission, it said, observing that the pattern of evaluation of women officers resulted in indirect and systemic discrimination, which caused economic and psychological harm and an affront to their dignity.
Justice Chandrachud, who authored the February 17, 2020 verdict allowing permanent commission to women officers, minced no words citing discrimination meted out with women officers while evaluating their ACRs (annual confidential reports).
“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 women SSC officers who became eligible for the grant of permanent commission in the subsequent years of their service,” the top court said in a 137-page judgment.
The bench ruled that all women officers who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September 2020 shall be entitled to the grant of permanent commission, subject to their meeting the medical criteria prescribed by the General Instructions dated August 1, 2020 and receiving disciplinary and vigilance clearance.
More than 80 petitioners have moved the top court aggrieved with the implementation of top court’s order by the Centre in granting permanent commission to women officers.
“The petitioners, who have been rejected on medical grounds, shall be reconsidered within a period of one month and orders for the grant of permanent commission shall, in terms of the above directions, be issued within a period of two months,” the top court said.
The bench emphasised that equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint.
“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,” it added.
The bench clarified that the women officers who were in the 5th or 10th year of service and met the medical criterion after the one-year period of stabilisation, would also be eligible for grant of permanent commission.
It did not shy away from expressing its agony that both the Defence Ministry and the Army failed to implement the Delhi High Court’s 2010 verdict on permanent commission, though there was no stay on its operation. The bench said this resulted in conundrum on the applicability of the medical criterion to women officers who are 40-50 years old.
“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,” it said.
The bench said some of the finest women officers who have served the 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.