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The Top Court in its judgment today ruled that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners, causing psychological harm and an affront to their dignity.

The judgment opens with a beautiful quote by former Judge of the US Supreme Court, Justice Ruth Bader Ginsberg; “I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.”

A Division Bench of Justice D.Y. Chandrachud and Justice M.R. Shah, while allowing the present petitions, said,

“We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the ‘norm’ and may appear to be harmless, are a reflection of the insidious patriarchal system. At the time of Independence, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavoured 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".
- Supreme Court

The judgment also presents theoretical foundations of indirect discrimination by studying position in the United States, United Kingdom, South Africa and Canada.

It was also noted that the principle of Indirect Discrimination can be traced under Indian Jurisdiction in Navtej Singh Johar v. Union of India, Indian Young Lawyers Assn. v. State of Kerala and Joseph Shine v. Union of India.

A batch of seven writ petitions were heard together by the Court.

Senior Counsel(s) Ms Meenakshi Arora and Mr PS Patwalia, Learned Counsel Mr Sudhanshu S Pandey appeared for the Petitioners.

It was their submission that owing to the physiological changes occurring due to natural processes of agEing and hormonal changes, 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 Permanent Commission.

Further, the use of ACRs as a metric for the grant of Permanent Commission is arbitrary as unlike their male counterparts, the women officers were never given the reasons for non-recommendation for an extension of service or promotion.

Observations and Directions by the Court

1. Administrative requirement by the Army authorities of benchmarking eligible SSC Officers for grant of Permanent Commission, with the officers lowest in merit in the corresponding male batch, held arbitrary and irrational.
2. All women officers who have fulfilled the cut-off grade of 60% in the Special No. 5 Selection Board held in September 2020 shall be entitled to the grant of Permanent Commission, subject to medical criteria and disciplinary/vigilance clearance.
3. Medical criteria stipulated in the General Instructions dated 1 August 2020 shall be applied at the following points of time, namely, (a) At the time of the 5th year of service or (b) At the time of the 10th year of service, as the case maybe. 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.
4. Other than officers who are ‘non-optees’, the cases of all WSSCO shall be reconsidered.
5. The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed.
6. The WSSCOs belonging to Women Special Entry Scheme (O) - 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of Permanent Commission after the above exercise, will be extended the one-time benefit of direction (c) and (d) in Babita Puniya.
7. All consequential benefits shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya and the present judgment.
8. The candidature of Lt. Col. Navneet Lobana, Petitioner No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered. In case the officer is not granted Permanent Commission, she will be allowed to complete her M. Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course.
9. Method of evaluation of ACRs and the cut-off must be reviewed for future batches.

Case Title: Lt. Col. Nitisha & Ors. v. Union of India | WP (C) No. 1109 of 2020