Read Time: 16 minutes
The Division Bench comprising Justice DY Chandrachud & Justice MR Shah reserved the matter Nitisha v. Union of India & Ors| WP(C) 1109 of 2020 about the criteria adopted for the implementation of Permanent Commission (“PC”) & other related benefits as granted by the Apex Court on February 17, 2020, in Secretary, Ministry Of Defence vs. Babita Puniya & Ors, Civil Appeal Nos 9367-9369 of 2011 for Judgement after the conclusion of final hearing today.
In the present matter, the Bench was hearing the pleas filed by women SSC officers challenging the criteria for being considered eligible for grant of PC.
As per the figures, 422 women officers were found fit for PC out of a total of 615 women officers & 193 were not granted PC due to them being unfit as per the “Medical Yardstick.”
In the plea, it was contended by the Petitioner’s Counsel that the threshold & criteria that were applied to a male officer after 5 years are what was being applied to a lady officer after 15 years. The Counsel also contended that ACR’s played a crucial role in ineligibility as the same accounted for 80 marks (60 for ACR & followed by further marks) out of 100 & when the same was drafted for female counterparts, the fact that they were not going to be considered for PC was taken into consideration.
Background
According to the Court’s order that allowed women to serve as Permanent Commissioned Officers in 10 combat support arms & services of the Indian Army, the Government issued a formal Government Sanction Letter ("GSL") to Short Service Commissioned ("SSC") women officers in all 10 streams of the Army. A Selection Board consisting of 5 members headed by the Senior General Officer, which included a woman officer of the rank of Brigadier, came into effect on September 14, 2021. Woman officers were allowed to witness the proceedings as observers to add transparency to the process & all those who qualified for the screening process were to be granted PC subject to being in the acceptable medical category.
Criteria for Grant of Permanent Commission
The grant of PC is dependent on the Annual Confidential Report (ACR) in the first 10 years of service, a ‘Shape 1’ (an acronym where S stands for psychiatric, H for hearing, A for appendages, P is for physical and E is for eye sight) medical category & discipline & vigilance clearance. Further, the counterparts are also required to clear the threshold of 60% which is set keeping into consideration the marks obtained by the 25oth selected male candidate of the 1994 batch. As per the breakup for allotment of marks,
The hearing today commenced with ASG Sanjay Jain elaborating on the policies & making his submissions on behalf of the Union of India ("UOI").
His first major submission was that not granting PC to some female officers eligible under Short Service Commission was not pre-planned & is devoid of any malafide intention. He further contended that every women officer's Benchmark securing a threshold of 60% was based on a rationale.
"In this batch, the first woman officer isn't supposed to have the same eligibility as compared to male counterparts occupying the first position in the list of selected candidates for grant of PC. Criteria are picking up marks of lowest selected candidate & considering that for selection. If the current process is set aside, it would be detrimental to the interest of other officers who have been selected for PC", ASG further submitted.
At this juncture, Justice DY Chandrachud intervened & remarked
Women clearing the threshold of above 60% should be granted PC automatically. You have to meet a benchmark of 250th candidate of that year is not acceptable. Currently the position is that the women who are eligible under medical criteria of shape 1 are eligible.
ASG Sanjay Jain: Today if we have to consider the threshold for granting PC, eligibility would be above 60%.
DY Chandrachud,J: There may be women who are above 60% who were not selected. You may have the data.
ASG Sanjay Jain: That would be given.
With regards to the petitioner's contention on the ideology with which ACR's were drafted by the Commanding Officers keeping into consideration that female counterparts were not eligible for PC, ASG Sanjay Jain submitted that the conjecture also applied to male officers as there could be "n" number of reasons to be considered for writing ACR for male officers too. The conjecture applies to male officers also.
"Irrespective of this, 422 women were able to bypass the Benchmark. Whenever discretion is exercised, an iota of subjectivity is there. When many options are available and one option is taken, the same is to check if it is riddled with arbitrariness. We did not have any Mala fide intention for the selection of Benchmark. We wanted to include the maximum possible number of people without any exclusion.", ASG also contended.
DY Chandrachud, J: You ignore the years of services rendered post that period of selection of PC. You don't look at the subsequent service profile. Why should subsequent years be not taken into account?
ASG Sanjay Jain concluded his submissions by making the Bench aware of the fact that all the female counterparts who were not found eligible for PC due to not being fit under “Shape 1” would be given an year to be fit as per the medical yardstick. He finally submitted that women SSC officers found eligible for PC would be granted time scale promotion in due course of time & this was the rationale for them to fulfill the criteria under “Shape 1”.
Senior Advocate Paramjitsingh Patwalia submitted that if there was no cap on vacancy concerning female counterparts, then there was absolutely no reason to not grant PC women who obtained marks beyond 60%. With respect to the medical criteria, he contended that the category that should be applied should be the one that would now continue.
“Having served for that long, "Shape 1" which was applicable for the initial category cannot be applied now as a medical criteria. For those who are left & who qualify as per the threshold, medical criteria for them should be the same as male counterpart for continuation of service.”, Patwalia contended.
Advocate SS Pandey opposing the chart presented by the ASG concerning the number of women who were granted PC submitted that, “The chart that has been presented by UOI does not include the numbers of who were willing for PC. It should be the number of people applied= number of people who have got. This representation is incorrect.”
The hearing today concluded with Senior Advocate Meenakshi Arora submitting that, “A lot of contentions have been mentioned by the UOI which were not even mentioned in the Counter Affidavit. In the submissions the UOI is now making discrepancies about the applicability of the policy for considering PC to improve their case”
Since the matter was listed for final hearing today the Bench directed the Counsels to file their further written submissions till Friday before 5:00 PM.
Upon a Counsel’s query, the Bench at the end of the hearing also informed that the Navy Matters would be taken up after two weeks.
Please Login or Register
