New Delhi: The evaluation criteria set by the Army for granting permanent commission (PC) to women SSC officers constituted systemic discrimination which has caused an economic and psychological harm and an affront to their dignity, the Supreme Court said on Thursday.
The apex court said the administrative requirement imposed by the Army authorities while considering the case of women Short Service Commission (SSC) officers for PC, 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 this administrative requirement shall not be enforced while implementing the last year's verdict of the top court which had directed that women officers in the Army be granted PC.
A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic, the bench said in its 137-page verdict which was delivered on a batch of pleas filed by 86 petitioners questioning the manner in which the last year verdict has been implemented.
Based on the above analysis, we are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. The pattern of evaluation deployed by the Army, to implement the decision in Babita Puniya (last year verdict) disproportionately affects women, the bench said.
It said this disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-a-vis their male counterparts.
It said the pattern of evaluation, by excluding subsequent achievements of the petitioners and failing to account for the inherent patterns of discrimination that were produced as a consequence of casual grading and skewed incentive structures , has resulted in indirect and systemic discrimination.
This discrimination has caused an economic and psychological harm and an affront to their dignity, the bench said.
It directed 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 last year, shall be entitled to grant of PC subject to their meeting medical criteria prescribed by the general instructions dated August 1, 2020 and receiving disciplinary and vigilance clearance.
It said that medical criteria stipulated in the general instructions shall be applied at the following points of time –at the time of fifth year of service or at the time of tenth year of service, as the case may be.
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 (Women SSC officer) will not be entitled to the grant of PC, the bench said.
The top court clarified that a WSSCO, who was in the temporary low medical category (TLMC) in the fifth or tenth 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.
The bench noted that SHAPE-1 has a specific meaning 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.
Other than officers who are non-optees', the cases of all WSSCOs, including the petitioners who have been rejected on medical grounds, shall be reconsidered within a period of one month and orders for the grant of PC shall in terms of the above directions be issued within a period of two months, the bench said.
It said all consequential benefits including grant of time scale promotions shall necessarily follow as a result of directions contained in the last year verdict and the present judgment and steps to do so be completed within three months.