LT. COL. NITISHA & ORS. versus UNION OF INDIA & ORS. on 25 March 2021

[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 womenengaged 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 togrant of PCs to Women SSC Officers in armed services – Petitionersaggrieved by the steps taken by the Union Government to implementBabita Puniya’s case-conduct of special selection procedure to screenWSSCOs for grant of PC on the same terms as their malecounterparts; SHAPE-1 Medical criteria; performance in the fifthyear of their service; 60 per cent cut-off grade and an annual capof 250 – Writ petition u/Art. 32 challenging the modalities followedin assessing the 615 WSSCOs for grant of PC after Babita Puniya’scase – Held: Evaluation criteria set by the Army constituted systemicdiscrimination against the petitioners – Evaluation patterndisproportionately affects women – This disproportionate impact isattributable to the structural discrimination against women – Faciallyneutral criteria of selective (Annual Confidential Reports)evaluation and fulfilling the medical criteria to be in SHAPE-1 at abelated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts – Exclusion of subsequent achievementsof the petitioners and casual grading and skewed incentivestructures resulted in indirect and systemic discrimination – Thisdiscrimination has caused an economic and psychological harmand an affront to their dignity – Issuance of directions thatrequirement of benchmarking women officers with officers lowestin merit in corresponding male batch is arbitrary and irrationaland would not be enforced while implementing Babita Puniya’s case;that officers who have fulfilled the cut-off grade of 60 per cent inSpecial selection Board entitled to grant of PC; that medical criterionto be applied at the time of 5[th] year/10th year of their service; that

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AWSSCOs not considered to be eligible for grant of PC, to be extendedone-time benefit; and that all consequential benefits including thegrant of time scale promotions to be granted – Constitution of India– Arts. 32, 14, 15(1).

Permanent Commission – Claim of women – Medical criteriaBprescribed by the Army – Judicial review of – Held: Physical fitnessis crucial for securing a place in the Army – While exercising judicialreview, the Court must be circumspect on dealing with policiesprescribed for the Armed Forces personnel on physical and mentalfitness – There can be no judicial review of the medical standardsadopted by the Army, unless they are manifestly arbitrary and bearCno rational nexus to the objects of the organization – SHAPEcriterion is per se not arbitrary – Constitution of India.

Constitution of India : Art. 14 – Right to equality – Equalopportunity in public employment and gender equality – Held: Sinceindependence there is continuous endeavor to achieve equalDopportunity in public employment and gender equality – Structuresof the society have been created by males and for males – Faciallyequal application of laws to unequal parties is a farce, when thelaw is structured to cater to a male standpoint – Thus, adjustments,both in thought and letter, necessary to rebuild the structures of anEequal society – These adjustments and amendments are notconcessions being granted to a set of persons, but are the wrongsbeing remedied to obliterate years of suppression of opportunitieswhich should have been granted to women – It cannot be said thatthe women officers are allowed to serve the Armed Forces, whenthe true picture of their service conditions is totally different –FSuperficial sense of equality is not in the true spirit of theConstitution and attempts to make equality only symbolic.

Gender justice:

Gender justice:

Antidiscrimination law – Concept of – Formal versusGsubstantive equality – Held: Under the formal and symmetricconception of antidiscrimination law, the law requires is that likesbe treated alike – It is premised on the notion that fairness demandsconsistency in treatment – The fact that some protected groups aredisproportionately and adversely impacted by the operation of theconcerned law or its practice, makes no difference – On the otherHhand, under a substantive approach, the anti discrimination guarantee pursues more ambitious objectives – This conceptioneschews the uncritical adoption of laws and practices that appearneutral but in fact help to validate and perpetuate an unjust statusquo – Constitution of India – Art. 14 and 15(1).

Indirect discrimination – Doctrine of – Held: Is closely tiedto the substantive conception of equality – Use of the term ‘indirectdiscrimination’ is not to refer to discrimination which is remote, butis as real as any other form of discrimination – Indirect discriminationis caused by facially neutral criteria by not taking into considerationthe underlying effects of a provision, practice or a criterion – Inevaluating direct and indirect discrimination, it is important tounderscore that these tests, when applied in strict disjunction fromone another, may end up producing narrow conceptions of equalitywhich may not account for systemic flaws that embody discrimination– Doctrine seeks to broaden the scope of antidiscrimination law toequip the law to remedy patterns of discrimination that are not aseasily discernible.

Indirect and direct discrimination – Difference between –Held: As long as a court’s focus is on the mental state underlyingthe impugned action that is allegedly discriminatory, it is the areaof direct discrimination – However, when the focus switches to theeffects of the concerned action, it is indirect discrimination – Anenquiry as to indirect discrimination looks, not at the form of theimpugned conduct, but at its consequences – In a case of directdiscrimination, the judicial enquiry is confined to the act or conductat issue, abstracted from the social setting or background fact-situation in which the act or conduct takes place – In indirectdiscrimination, on the other hand, the subject matter of the enquiryis the institutional or societal framework within which the impugnedconduct occurs.

Systemic Discrimination – Explanation of – Systemicdiscrimination as antithetical to substantive equality – Held:Emphasis on intent alone as the key to unlocking discriminationhas resulted in several practices, under the veneer of objectivityand equal application to all persons, to fall through the cracks ofour equality jurisprudence – Indirect discrimination as a tool ofjurisprudential analysis, can result in the redressal of severalinequities – In order to conceptualize substantive equality, it would A

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Abe apposite to conduct a systemic analysis of discrimination thatcombines tools of direct and indirect discrimination – Particulardiscriminatory practice or provision might often be insufficient toexpose the entire gamut of discrimination that a particular structuremay perpetuate – Exclusive reliance on tools of direct or indirectdiscrimination may also not effectively account for multiple axlesBof discrimination – Therefore, a systemic view of discrimination, inperceiving discriminatory disadvantage as a continuum, wouldaccount for not just unjust action but also inaction – Duty ofconstitutional courts, when confronted with such a scheme, wouldnot just be to strike down the discriminatory practices andCcompensate for the harm hitherto arising out of them; but alsostructure adequate reliefs and remedies that facilitate social re-distribution by providing for positive entitlements that aim to negatethe scope of future harm – An analysis of discrimination, with aview towards its systemic manifestations (direct and indirect), would be best suited for achieving the constitutional vision of equalityDand antidiscrimination.

Conclusion

Doctrine of indirect discrimination – Comparative study –Position in India, United States, United Kingdom, South Africa,Canada – Discussed.

EIndirect discrimination in India – Analytical framework for –Explained.

Disposing of the writ petitions, the Court HELD: 1. The evaluation criteria set by the Armyconstituted systemic discrimination against the petitioners. TheFpattern of evaluation deployed by the Army, to implement thedecision in Babita Puniya’s case disproportionately affects women.This disproportionate impact is attributable to the structuraldiscrimination against women, by dint of which the facially neutralcriteria of selective ACR evaluation and fulfilling the medicalGcriteria to be in SHAPE-1 at a belated stage, to secure PermanentCommission (PC) disproportionately impacts them vis-à-vis theirmale counterparts. The pattern of evaluation, by excludingsubsequent achievements of the petitioners and failing to accountfor the inherent patterns of discrimination that were produced asa consequence of casual grading and skewed incentive structures,H

has resulted in indirect and systemic discrimination. Thisdiscrimination has caused an economic and psychological harmand 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 Armyauthorities while considering the case of the women Short ServiceCommission Officers (SSCOs) for the grant of PC, ofbenchmarking these officers with the officers lowest in merit inthe corresponding male batch is held to be arbitrary and irrationaland shall not be enforced while implementing the decision of thisCourt in Babita Puniya’s case;

(ii) All women officers who have fulfilled the cut-off gradeof 60 per cent in the Special No 5 Selection Board held inSeptember 2020 shall be entitled to the grant of PC, subject totheir meeting the medical criteria prescribed by the GeneralInstructions dated 1 August 2020 (as explained in (iii) below)and receiving disciplinary and vigilance clearance;

(iii) For the purpose of determining the fulfillment ofdirection (ii), the medical criteria stipulated in the GeneralInstructions dated 1 August 2020 shall be applied at the followingpoints of time: at the time of the 5th year of service; or at thetime of the 10th year of service, as the case maybe. In case theofficer has failed to meet the medical criterion for the grant of PCat any of these points in time, the WSSCO would not be entitledto the grant of PC. It is clarified that a WSSCO who was in theTemporary Low Medical Category (TLMC) in the 5th/10th yearof service and subsequently met the SHAPE-1 criterion after theone year period of stabilization, would also be eligible for grant ofPC. Other than officers who are “non-optees”, the cases of allWSSCOs, including the petitioners who have been rejected onmedical grounds, should be reconsidered within a period of onemonth and orders for the grant of PC shall in terms of the abovedirections be issued within a period of two months;

(iv) The grant of PC to the WSSCOs who have already beengranted PC shall not be disturbed;

(v) The WSSCOs belonging to WSES(O) - 27 to 31 andSSCW(T&NT) 1 to 3 who are not considered to be eligible for A

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Agrant 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 timescale promotions shall necessarily follow as a result of thedirections contained in the judgment in Babita Puniya’s case andBthe present judgment and steps to do so shall be completed withina 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 termsof the above directions. In case the officer is not granted PC, sheCwould be allowed to complete her M.Tech degree course for whichshe has been enrolled at the College of Military Engineering,Pune and shall not be required to pay or reimburse any amounttowards the course;

(viii) In accordance with pre-existing policies of theDrespondents, the method of evaluation of ACRs and the cut-offmust be reviewed for future batches, in order to examine for adisproportionate impact on WSSCOs who became eligible for thegrant of PC in the subsequent years of their service; and

(ix) During the pendency of the proceedings, the ASG hadEassured the Court that all the serving WSSCOs would becontinued in service, since the Court was in seisin of theproceedings. There shall be a direction that this position shallcontinue until the above directions of the Court are implementedand hence the serving WSSCOs shall be entitled to the paymentof their salaries and to all other service benefits. [Para 120]F[768-G-H; 769-A-H; 770-A-F]

2.1 This Court is presented with the opportunity to chooseone of two competing visions of the antidiscrimination guaranteeembodied in Article 14 and 15(1) of the Constitution: formalversus substantive equality. Under the formal and symmetricGconception of antidiscrimination law, all that the law requires isthat likes be treated alike. Equality, under this conception, hasno substantive underpinnings. It is premised on the notion thatfairness demands consistency in treatment. Under this analysis,the fact that some protected groups are disproportionately andadversely impacted by the operation of the concerned law or itsH

practice, makes no difference. On the other hand, under asubstantive approach, the antidiscrimination guarantee pursuesmore ambitious objectives. The model of substantive equalitydeveloped by Professor Sandra Fredman views the aim ofantidiscrimination law as being to pursue four overlappingobjectives. Recognizing that certain groups have been subjectedto patterns of discrimination and marginalization, this conceptionprovides that the attainment of factual equality is possible only ifwe account for these ground realities. This conception eschewsthe uncritical adoption of laws and practices that appear neutralbut 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 substantiveconception of equality. The doctrine of substantive equality andanti-stereotyping has been a critical evolution of the Indianconstitutional jurisprudence on Article 14 and 15(1). Thejurisprudence relating to indirect discrimination in India is stillat a nascent stage. Indirect discrimination has also beenrecognized by the High Courts in India.The use of the term‘indirect discrimination’ is not to refer to discrimination which isremote, but is, instead, as real as any other form of discrimination.Indirect discrimination is caused by facially neutral criteriaby not taking into consideration the underlying effects of aprovision, 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 isimportant to underscore that these tests, when applied in strictdisjunction from one another, may end up producing narrowconceptions of equality which may not account for systemic flawsthat embody discrimination. Therefore, this Section will beconcluded with an understanding of a systemic frame of analysis,in order to adequately redress the full extent of harm that certaingroups suffer, merely on account of them possessingcharacteristics that are prohibited axles of discrimination.[Para 50][699-F-G]

2.4 As long as a court’s focus is on the mental stateunderlying the impugned action that is allegedly discriminatory,it is the territory of direct discrimination. However, when thefocus switches to the effects of the concerned action, we enter AB

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Athe territory of indirect discrimination. An enquiry as to indirectdiscrimination looks, not at the form of the impugned conduct,but at its consequences. In a case of direct discrimination, thejudicial enquiry is confined to the act or conduct at issue,abstracted from the social setting or background fact-situation inwhich the act or conduct takes place. In indirect discrimination,Bon the other hand, the subject matter of the enquiry is theinstitutional or societal framework within which the impugnedconduct occurs. The doctrine seeks to broaden the scope ofantidiscrimination law to equip the law to remedy patternsof discrimination that are not as easily discernible. [Para 53]C[700-F-G; 701-A-B]2.5 A study of the cases and scholarly works in the UnitedStates, United Kingdom, South Africa and Canada gives rise tothe following key learnings.

(i) First, the doctrine of indirect discrimination is foundedDon the compelling insight that discrimination can often be afunction, not of conscious design or malicious intent, butunconscious/implicit biases or an inability to recognize howexisting structures/institutions, and ways of doing things, havethe consequence of freezing an unjust status quo. In order toachieve substantive equality prescribed under the Constitution,Eindirect discrimination, even sans discriminatory intent, must beprohibited. [Para 66][709-E-G]

(ii) Second, and as a related point, the distinction betweendirect and indirect discrimination can broadly be drawn on thebasis of the former being predicated on intent, while the latter isFbased on effect (US, South Africa, Canada). Alternatively, it canbe based on the fact that the former cannot be justified, while thelatter can (UK). The intention versus effects distinction is a soundjurisprudential basis on which to distinguish direct from indirectdiscrimination. This is for the reason that the most compellingfeature of indirect discrimination, is the fact that it prohibitsGconduct, which though not intended to be discriminatory, has thateffect. Requiring proof of intention to establish discriminationputs an “insuperable barrier in the way of a complainant seekinga remedy. It is this barrier that a robust conception of indirectdiscrimination can enable us to counteract. [Para 67][709-G-H;H710-A-C]

(iii) Third, on the nature of evidence required to proveindirect discrimination, statistical evidence that can establish howthe impugned provision, criteria or practice is the cause for thedisproportionately disadvantageous outcome can be one of theways to establish the play of indirect discrimination. As ProfessorSandra Fredman notes, “Aptitude tests, interview and selectionprocesses, and other apparently scientific and neutral measuresmight never invite scrutiny unless data is available to dislodgethese assumptions.” Consistent with the said approach in Fraser’scase, it would not be wise to lay down any quantitative thresholdsfor the nature of statistical disparity that must be established fora claimant to succeed. Equally, an absolutist position cannot beadopted as to the nature of evidence that must be brought forthto succeed in a case of indirect discrimination. The absence ofany statistical evidence or inability to statistically demonstrateexclusion cannot be the sole ground for debunking claims ofindirect discrimination. Therefore, statistical evidencedemonstrating patterns of exclusion, can be one of the ways toprove indirect discrimination. [Para 68][710-C-G]

(iv) Fourth, insofar as the fashion in which the indirectdiscrimination enquiry must be conducted, the two-stage test laiddown by the Canadian Supreme Court in Fraser’s case offers awell-structured framework of analysis as it accounts for both thedisproportionate impact of the impugned provision, criteria orpractice on the relevant group, as well as the harm caused bysuch impact. It foregrounds an examination of the ills that indirectdiscrimination seeks to remedy. [Para 69][710-G; 711-A]

(v) Fifth and finally, while assessing the justifiability ofmeasures that are alleged to have the effect of indirectdiscrimination, the Court needs to return a finding on whetherthe narrow provision, criteria or practice is necessary forsuccessful job performance. In this regard, some amount ofdeference to the employer/defendant’s view is warranted. Equally,the Court must resist the temptation to accept generalizationsby defendants under the garb of deference and must closelyscrutinize the proffered justification. Further, the Court must alsoexamine if it is possible to substitute the measures with lessdiscriminatory alternatives. Only by exercising such close scrutiny AB

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Aand exhibiting attentiveness to the possibility of alternatives cana Court ensure that the full potential of the doctrine of indirectdiscrimination is realized and not lost in its application.[Para 70][711-B-D]

Anuj Garg v. Hotel Association of India (2008) 3 SCC1 : [2007] 12 SCR 991; National Legal ServicesAuthority v. Union of India (2014) 5 SCC 438 : [2014]5 SCR 119; Jeeja Ghosh v. Union of India (2016) 7SCC 761 : [2016] 4 SCR 638; Vikash Kumar v. UnionPublic 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 ofNCT of Delhi (2009) 111 DRJ 1 (DB); Indian YoungLawyers Assn. v. State of Kerala 2018 SCC OnLineSC 1690; Joseph Shine v. Union of India 2018 SCOnLine SC 1676; Patel Suleman Gaibi v. State ofMaharashtra 2014 SCC OnLine Bom 4639; Inspector(Mahila) Ravina v. Union of India Writ Petition (C)4525 of 2014, Delhi High Court; Madhu v. NorthernRailways 2018 SCC OnLine Del 6660; Dr. JacquelineJacinta Dias & Ors. v. Union of India& Ors., (2018)SCC OnLine Del 12426 – referred to.

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Washington v. Davis 426 U.S. 229 (1976); Coleman v.Attridge Law [2008] IRLR 722; Griggs v. Duke PowerCo 401 US 424, 431 (1971); Smith v. City of Jackson544 US 228 (2005); Texas Department of Housing andCommunity Affairs v. Inclusive Communities Project Inc135 S Ct 2411 [2015]; R (on the application of E) v. JFSGoverning Body [2009] UKSC 15; Essop v. HomeOffice (UK Border Agency) [2017] UKSC 27; CityCouncil 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.

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Anatole France, THE RED LILY (1898); Sandra Fredman,DISCRIMINATION LAW (Oxford University Press, 2nd H

edition) 2011 at p.8 (“Sandra Fredman, DiscriminationLaw”); FOUNDATIONS OF INDIRECT DISCRIMINATIONLAW (Hugh Collins and Tarunabh Khaitan (eds), HartPublishing) 2018 at p.1 - referred to.

2.6 The emphasis on intent alone as the key to unlockingdiscrimination has resulted in several practices, under the veneerof objectivity and “equal” application to all persons, to fall throughthe cracks of our equality jurisprudence. Indirect discriminationas a tool of jurisprudential analysis, can result in the redressal ofseveral inequities by probing provisions, criteria or practice thathave a disproportionate and adverse impact on members of groupswho belong to groups that are constitutionally protected fromdiscrimination under Article 15(1). However, it needs to beemphasized that a strict emphasis on using only one of the twotools (between direct and indirect discrimination) to establishand redress discrimination may often result in patternsand structures of discrimination remaining unaddressed.[Para 71][711-E-F]

2.7 In order to conceptualize substantive equality, it wouldbe apposite to conduct a systemic analysis of discrimination thatcombines tools of direct and indirect discrimination. A particulardiscriminatory practice or provision might often be insufficientto expose the entire gamut of discrimination that a particularstructure may perpetuate. Exclusive reliance on tools of director indirect discrimination may also not effectively account forpatterns arising out of multiple axles of discrimination. Therefore,a systemic view of discrimination, in perceiving discriminatorydisadvantage as a continuum, would account for not just unjustaction but also inaction. Structures, in the form of organizationsor otherwise, would be probed for the systems or cultures theyproduce that influence day-to- day interaction and decision-making. The duty of constitutional courts, when confronted withsuch a scheme of things, would not just be to strike down thediscriminatory practices and compensate for the harm hithertoarising out of them; but also structure adequate reliefs andremedies that facilitate social re-distribution by providing forpositive entitlements that aim to negate the scope of future harm.[Paras 72-73][711-G; 712-B-E]

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644SUPREME COURT REPORTS

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644SUPREME COURT REPORTS

A2.8 An analysis of discrimination, with a view towards itssystemic manifestations (direct and indirect), would be best suitedfor achieving the constitutional vision of equality andantidiscrimination. Systemic discrimination on account of genderat the workplace would then encapsulate the patriarchaldisadvantage that permeates all aspects of her being from theBoutset, including reproduction, sexuality and private choiceswhich operate within an unjust structure. In propounding thisanalysis, this Court is conscious of the practical limitations ofevery framework to understanding workforces, considering thebulk of litigation against systemic discrimination, would be fromCmembers of an organized and formal workforce who would havethe wherewithal and evidence of patterns or practices to bolstertheir claims. For the laboring class in India, which is predominantlyconstituted by members facing multiple axels of marginalization,litigating their right to work with equality and dignity may be adistant dream. However, it is the earnest hope, that a vision ofDsystemic discrimination, would aid members of even informalworkforces who, in addition to battling precarity at their placesof work, would be able to assert a right to equality and dignity. Aframework that would situate their discrimination, againstsystemic societal patterns of discrimination that are constitutedEand compounded by social and economic structures, would helpin addressing several fractures that are contributing to inequalityin our society. [Para 77][716-D-G]

Action Travail des Femmes v. Canadian NationalRailway Company [1987] 1 S.C.R. 1114; NationalFCapital Alliance on Race Relations v. Canada (Healthand Welfare) 1997 28 C.H.R.R.D/179; InternationalBrotherhood of Teamsters v. United States, 431 U.S. 324(1977) – referred to.

Marie Mercat-Bruns, Systemic discrimination: RethinkingGthe Tools of Gender Equality, EUROPEAN EQUALITYLAW REVIEW, Vol. 2 (European Commission, 2018)at p.5-6; Tristin K. Green, The Future of SystemicDisparate Treatment Law, BERKELEY JOURNAL OFEMPLOYMENT AND LABOUR LAW, Vol. 32(2),2011, 400-454; The Stephen Lawrence Inquiry: Report H

of an Inquiry by Sir William Macpherson of Cluny (February1999) 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 ofreasoning which has been advanced by the Army authorities bothin the counter affidavit as well as in the written submissions ofthe ASG. The Policy Letter dated 15 January 1991 indicates thata maximum of 250 SSCOs will be granted PC annually; a minimumcut-off grade 60 per cent is fixed, which is reviewable every twoyears; in case more than 250 officers fulfill the cut-off grade of 60per cent, only 250 would be granted PC on competitive merit;and other than non-optees and those unfit for retention, all otherswould be granted an extension of 5 years.The clear intent of thepolicy letter is that the issue of applying competitive merit arisesonly if more than 250 officers fulfill the cut-off grade annually. Ifthe number of officers who achieved the 60 per cent cut-off isless than 250, then evidently there is no requirement of assessinginter se competitive merit among the officers who meet theminimum threshold. [Paras 83, 84][723-C-G]

3.2 The chart as regards details of permanent Commissiongranted to Male Officers, however, suppresses an importantfeature which is the number of officers who had not opted forbeing considered for PC (described in the parlance as ‘non-optees”). In other words, the percentage of male officers grantedPC has been computed in the chart without disclosing the factualdetails 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 successfullygranted PC be accurately determined. This is a significantomission on the part of the Army authorities from which an adverseinterference must be drawn. However, there is another and morefundamental aspect which emerges from the disclosure which hasbeen made in the above chart by the Army authorities. The chartindicates the number of officers who were granted PC during thecourse of the selections which took place twice every year. Aclose reading of the data would show that in a number of years,the male officers who were granted PC was far lower than the A

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Aceiling of 250 vacancies prescribed by the policy letter of theMoD dated 15.01.1991. [Para 87][725-C-G]

3.3 The statistics advanced by the Army authorities disclosetwo things, firstly, in a number of years between 1994 and 2010,the ceiling limit of 250 had not been crossed. If the ceiling limitBof 250 had not been crossed, the justification which has beenoffered for benchmarking women officers against the lowest maleofficers of the corresponding batch turns out to be specious anda red-herring. Evidently, in their anxiety to rebut the submissionof the petitioners in regard to the disparity in the percentage ofmale and female officers granted PC, the statistics which haveCbeen placed on the record, completely demolish the case forbenchmarking. It is also necessary to understand is that in manyyears the ceiling of 250 officers was not met and the number ofofficers that were granted PC were below 250, the question ofevaluating officers on the basis of inter se competitive merit did Dnot arise. The second important aspect is that in certain yearssuch as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceilingof 250 was crossed for the male officers. This again belies theclaim that benchmarking is crucial to maintain the integrity ofcompetitive merit for grant of PC, as envisaged by the PolicyLetter dated 15 January 1991. The data, in fact, shows that inEseveral years, the ceiling was crossed, which is an indicatorof 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 Fcase the ceiling of 250 vacancies was not applied as a one-timemeasure, demolishes the so-called rationale for benchmarkingwhich has been offered by the ASG. There can be no manner ofdoubt whatsoever that the attempt to apply the benchmark of thelowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs.GThis benchmarking becomes particularly problematic, whencoupled 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 thegrant of PC was by a belated application of a general policy thatHdid not redress the harms of gendered discrimination that were

identified by this Court in Babita Puniya’s case. Additionally, itsbelated and formal application causes an effect of indirectdiscrimination. The petitioners submitted that Special No. 5Selection Board appears to have been more a Board for rejectionof candidates, than for selection. Some of the finest women officerswho have served the Indian Army and brought distinction by theirperformance and achievements have been excluded by refusingto consider their achievements on the specious ground that thesewere after the 5th/10th year of service. They have been asked tobenchmark with the last male counterparts from the correspondingbatches. The benchmarking criterion plainly ignores that in termsof the MoD Policy Letter dated 15 January 1991 a cut-off of 60per cent was prescribed and a cap of 250 officers who would begranted PC annually was laid down. Competitive merit wasrequired to be assessed only where the number of eligible officersexceeds the ceiling of 250. As the figures which have beendisclosed by the Union of India indicate, for the period from 1994-2010, there were years when the ceiling of 250 officers had notbeen reached. Then there are other years where the total numberof male officers granted PC was well in excess of 250. For yearsduring which the ceiling of 250 had not been reached, there isabsolutely no justification to exclude the WSSCOs who hadfulfilled the cut-off grade on the basis of the benchmarking criteria.Moreover, it is evident that the ceiling of 250 was not regardedas an absolute or rigid criterion. [Para 94][753-F-H; 754-A-C]

3.6 The evaluation process which has been followed in thecase of the WSSCOs has clearly ignored that the writing of theirACRs was fundamentally influenced by the circumstance that atthe relevant time an option of PC was not available for women.Even as late as October 2020, the authorities have emphasizedthe need to duly fill in a recommendation on whether or notWSSCOs should be granted PC. The manner of allocating 20marks or 5 marks as the case may be, in the subjective assessmenthas been found to be flawed since male counterparts of theWSSCOs were assessed by an entirely distinct Special No. 5Selection Board. To make a comparison in regard to the award ofsubjective marks ranging between 5 and 20 by different sets ofboards would be completely unfair and arbitrary. It does not fulfill ABC

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Athe avowed purpose of benchmarking which was to compare likewith 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 starkrepresentation of the systemic discrimination that pervaded theBstructures of the Army. A formalistic application of pre-existingpolicies while granting PC is a continuation of these systemicdiscriminatory practices. WSSCOs were continued in service witha clear message that their advancement would never be equal totheir male counterparts. Their ACR evaluations made nodifference to their careers, until PC was granted by a courtCmandate in Babita Puniya’ case. Accordingly, some women’sfailure to opt for courses in the past that would strengthen theirchances and reflect positively on their ACRs is not a vacuousexercise of choice but a consequence of a discriminatory incentivestructure. [Para 96][755-C-E]

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3.8 There has been a flawed attempt to peg theachievements of the WSSCOs at the 5th/10th years of servicethereby ignoring the mandate that the last ACR ought to beconsidered and the quantitative performance for the entire recordof service must be assessed. Considering the ACRs as on theE5th or 10th year of service for grant of PC would have beenappropriate, if the WSCCOs were being considered for PC atthat point of time. However, the delayed implementation of thegrant of PC to WSSCOs by the Army and considering of ACRsonly till the 5th/10th year of service has led to a situation where,in effect, the Army has obliviated the years of service, hard workFand honours received by WSSCOs beyond their 5th/10th year ofservice and relegated them back to a position they held, in somecases, more than 10 years ago. The lack of consideration givento the recent performance of WSSCOs for grant of PC is adisservice not just to these officers who have served the nation,Gbut also to the Indian Army, which on one hand salutes theseofficers by awarding them honours and decorations, and on theother hand, fails to assess the true value of these honours whenit matters the most - at the time of standing for the cause of theWSSCOs to realise their rights under the Constitution and betreated on an equal footing as male officers who are granted PC.H[Para 97][755-E-H; 756-A-B]

3.9 While implementing the judgment in Babita Puniya’scase, the Army authorities attempted to demonstrate theapplication of a facially neutral standard as between WSSCOs andtheir male counterparts.The fact that there was no pre-planningto exclude women from the grant of PC is irrelevant under anindirect discrimination analysis. The Court has to look at the effectof the concerned criteria, not at the intent underlying its adoption.In light of the fact that the pattern of evaluation will in effect leadto women being excluded from the grant of PC on grounds beyondtheir control, it is indirectly discriminatory against WSSCOs.[Paras 98, 99][756-B, F-G]

3.10 The structures of the society have been created bymales and for males. As a result, certain structures that may seemto be the “norm” and may appear to be harmless, are a reflectionof the insidious patriarchal system. At the time of Independence,the Constitution sought to achieve a transformation in our societyby envisaging equal opportunity in public employment and genderequality. Since then, there is continuous endeavor to achieve theguarantee of equality enshrined in our Constitution. A faciallyequal application of laws to unequal parties is a farce, when thelaw is structured to cater to a male standpoint. Presently,adjustments, both in thought and letter, are necessary to rebuildthe structures of an equal society. These adjustments andamendments however, are not concessions being granted to aset of persons, but instead are the wrongs being remedied toobliterate years of suppression of opportunities which should havebeen granted to women. It is not enough to proudly state thatwomen officers are allowed to serve the nation in the ArmedForces, when the true picture of their service conditions tells adifferent story. A superficial sense of equality is not in the truespirit of the Constitution and attempts to make equality onlysymbolic. [Para 100][756-G-H; 757-A-C]

Catharine A. MacKinnon, TOWARDS A FEMINISTTHEORY OF STATE (Harvard University Press 1989)at p.220

3.11 The respondents must remove the requirement ofbenchmarking the WSSCOs with the last male officer who hadreceived PC in their corresponding batches and all WSSCOs AB

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Ameeting the 60% cut-off must be granted PC. Additionally, thecalculation of the cut-off at 60%, which must by army orders andinstructions be reviewed every 2 years, must be re-assessed todetermine if the casual completion of their ACRs isdisproportionately impacting the WSSCOs ability to qualify forPC even at that threshold. In light of the systemic discriminationBthat women have faced in the Army over a period of time, to callfor the adoption of a pattern of evaluation that accounts andcompensates for this harsh reality is not to ask for ‘special andunjustified treatment’. Rather, it is the only pathway for theattainment of substantive equality. To adopt a symmetrical conceptCof equality, is to empty the antidiscrimination guarantee underArticle 15, of all meaning. [Para 101][757-D-F]

4.1 The medical criteria for assessing officers for the grantof PC have been specified in Army instructions and Army Orders.While dealing with the application of the criteria to the WSSCOsDin pursuance of the judgment in Babita Puniya’s case, the salientfeatures are revisited. [Para 102][757-G]

4.2 The singular aspect of the medical requirements thatmust be noticed at the outset is that there is a broad consistencyof policy on the norms, which have to be fulfilled in order for anEofficer to qualify for the grant of PC. Another important facet whichneeds to be emphasized is that SHAPE-1 has a specific meaningwhich is assigned to it under AO 9/2011. ‘S’ donates thephysiological features including cognitive function abnormalities,‘H’ stands for hearing, ‘A’ for appendages, ‘P’ for physical capacityand ‘E’ for eye-sight. The requirement of being in grade-1 inFeach of the five factors of SHAPE is subject to relaxation in termsof exceptions which are clearly spelt out. The policy provides aconcession to such candidates who may not have suffered injuryon the line of duty as a result of which their medical categorizationhas been lowered. But this should not be lower than S1 or H2 orGA3 or P2 or E2 or A2E2 or H2A3 or H2P2 or E2A3 or E2P2. Theexception which has been provided is available if an injury (asdistinct from a disease) has been suffered while on the line ofduty, irrespective of whether it has been incurred during peacetime or in field operations. Officers in the PLMC who fulfill theterms of the exception are granted PC, if they are otherwise foundH

fit on merits. The requirement of fulfilling the SHAPE criteria isa pre-requisite even in such arms or services where both menand women join up to the age of 45 years, as in the case of theArmy Medical Corps. The Army follows and adopts the TLMCnorm which allows an officer placed in that category to return toSHAPE 1 within the stabilization period of one year. By this, anopportunity is granted to the officer to return to the SHAPE-1category within one year. [Para 104][759-F-H; 760-A-D]

4.3 Physical fitness is crucial for securing a place in theArmy. While exercising judicial review, the Court must becircumspect on dealing with policies prescribed for the ArmedForces personnel in attaining norms associated with physical andmental fitness. In the instant case, out of the initial 87 petitionerscontesting the proceedings in 7 writ petitions, 55 are SHAPE 1going up to the age of 52 years, 23 have been assigned to PMLC,while 9 are placed in TLMC. The material which has been placedon record in the form of AO 9/2011 indicates a classification rangeof minimum and maximum permissible parameters for each ofthe five factors comprised within the SHAPE norm. Thesubmission of the respondents is that these parameters have beenfixed, keeping in mind the inevitable advancement of age of bothmen and women officers. Moreover, in refusing to consider theSSC extensions as sufficient evidence of fitness, it has beensubmitted that an unsaid concession is made in terms of medicalrequirements where an officer has been considered for extensionas opposed to when they are considered for grant of PC. Anotherimportant aspect which has been emphasized is that out of 615WSSCOs officers, 422 were found fit on merits for PC subject tofulfillment of medical and discipline parameters. Out of these 422,57 were non-optees. From the remaining 365, 277 women officerswere found fit on merits as well on medical parameters and havebeen granted PCs. Of the remaining 88, 42 are TLMC and havethe opportunity to upgrade this to the required medical parameterswithin one year. Out of the remaining 46, only 35 were found notto meet the medical criteria. These 35 officers constitute lessthan ten per cent of the 365 who had opted for the grant of PCand were found fit on merits. Even in the remaining 193 officers(615 minus 422 found fit) that were not considered fit for PC, itwas submitted that 164 of these officers fulfilled the SHAPE-1

AB

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Acriterion. This tabulation indicates a significant proportion ofWSSCOs, irrespective of their belated consideration, are able topresently meet the prescribed criteria. With respect to themedical criteria prescribed by the Army, there can be no judicialreview of the standards adopted by the Army, unless they aremanifestly arbitrary and bear no rational nexus to the objects ofBthe 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 criterionis per se not arbitrary, it is the Court’s responsibility to examinewhether it has been equally applied. This Court cannot eschewCthe fact that these 615 WSSCOs are being subjected to a rigorousmedical standard at an advanced stage of their careers, merelyon account of the fact that the Army did not consider them forgranting them PC, unlike their male counterparts. By thejudgment of the High Court, specific directions were issued forDconsidering the women SSC officers for the grant of PC. Thiswas a decade ago. During the pendency of the appeal from thejudgment of the High Court before this Court, there was no stayon the application of the judgment of the High Court. This wasspecifically clarified by the order of this Court on 2 September2011. The intent of the clarification was that implementation ofEthe directions of the High court must proceed. The WSSCOshave submitted with justification that had they been consideredfor the grant of PC then, as the respondents were directed to doby the decision of the High Court, they would have met the normsof eligibility in terms of medical parameters. Their male Fcounterparts who were considered for and granted PC at thattime are not required to maintain SHAPE 1 fitness to be continuedin service. Serious hardship has been caused by the Army notconsidering the cases of these WSSCOs for the grant of PC atthe relevant time, despite the express clarification by this Court.

Though the contempt proceedings against the respondents wereGstayed, this did not obviate the obligation to comply with themandate of the judgment of the High Court especially after aspecific clarification that no stay had been granted. Considerationfor PC was not just a legitimate expectation on the part of theWSSCOs but a right which had accrued in their favour after theHdirections of the High Court, which were issued about a decade ago. The WSSCOs who have been excluded on medical groundsin November 2020 have a legitimate grievance that whether theyfulfilled the SHAPE 1 criterion has to be determined from theirmedical status on the date when they were entitled to beconsidered, following the decision of the High Court. Such ofthem who fulfilled the criterion at the material time are entitledto PC and can continue in service so long as they continue tomeet the medical standards prescribed for continuance in theArmy. In other words, there is no challenge to the criteria formedical fitness prescribed. These WSSCOs do not seek a specialdispensation or exemption for themselves, as women. Theessence of the dispute is when the SHAPE 1 criterion has to beapplied in the peculiar circumstances. [Para 106][761-C-H;762-A-C]

4.5 SHAPE-1 is not a requirement for continuation inservice. The ASG had sought to bolster his submission of SHAPE-1 as a threshold requirement for PC, by relying on the recruitmentprocess for the Army Medical Corps, where even a 45 year oldperson seeking recruitment, must comply with SHAPE-1 medicalcriteria. However, a critical assumption that undergirds the grantof PC is the approximate age of persons who would be underconsideration. The WSSCOs in this case are not fresh recruitswho 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 onrelying on the medical criteria as a filtering mechanism for grantof PC to WSSCOs. On the other hand, WSSCOs who have legallyfought for their rights and are additionally suffering due to theuntimely implementation of their hard-won rights. The Armyauthorities have stated that the medical criterion has beensufficiently adjusted to take into account age related factors.However, the Army authorities are insistent to apply the medicalcriteria as of today, while simultaneously attempting to freezethe ACRs of the WSSCOs at the 5th or 10th year of service.Indirect discrimination coupled with an exclusionary approachinheres in this application. An enhancement in the qualificationsof WSSCOs from their 5th/10th year of service till today, as would AB

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Abe reflected in their recent ACRs, would demonstrate them asan experienced pool of human resource for the Indian Army.However, a reduction of medical fitness below the SHAPE 1 normat present as a consequence of age or the tribulations of serviceis not a necessary detriment to the Army when similarly agedmale officers with PC (invariably granted in the 5th or 10th yearBof their service) no longer have to meet these rigorous medicalstandards for continuing in service. This is further bolstered bythe fact that the WSSCOs who are no longer in SHAPE-1, havebeen meaningfully continuing in service, even after 14 years ofservice, till the declaration of results of the PC in NovemberC2020. [Para 109][763-B-F]

4.7 Anguish is expressed at the respondents’ failure toimplement 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 toDWSSCOs who are 40-50 years old, has arisen only because of theArmy not having implemented its decision in time, despite thecourse correction prescribed by the High Court in 2010. TheWSSCOs, a few of whom are petitioners, have persevered forover a decade to gain the same dignity of an equal opportunity atPC. The fact that only around 35 women who are otherwise fit for EPC, and 31 women who do not qualify in addition to not meetingthe medical criteria, is irrelevant in determining whether each ofthese women is entitled to equality of opportunity in matters ofpublic employment under Article 16(1) and (2). “The de minimishypothesis is misplaced because the invasion of a fundamentalFright is not rendered tolerable when a few, as opposed to a largenumber of persons, are subjected to hostile treatment.” Similarly,the percentage of women who have suffered as a consequence ofthe belated application of rigorous medical criteria is irrelevantto the determination of whether it is a violation of Articles 14, 15and 16 of the Constitution. [Para 110][763-F-H; 764-A-C]G

Justice KS Puttaswamy v. Union of India (2017) 10 SCC1 : [2017] 10 SCR 569 – relied on.

4.8 In rendering the decision in Babita Puniya’s case, thisCourt was mindful of the insidious impact on the generations ofHwomen who must have given up on their dreams to serve in the

Armed Forces owing to the gendered roadblock on theiraspirations, and of the women who must have chosen to opt outof availing an extension to their SSC terms on similar grounds. Itmust not be forgotten that those women officers who haveremained in service are those with the tenacity to hold on and tomeet the exacting standards of performance of which the IndianArmy has made her citizens proud. A career in the Army comeswith a serious set of trials and tribulations of a transferable servicewith postings in difficult terrains, even in times of peace. This isrendered infinitely more difficult when society relegates functionsof domestic labour, care-giving and childcare exclusively on theshoulders of women. The WSSCOs are not just women who havededicated their lives to the service of the Army, but are womenwho have persevered through difficult conditions as they trudgedalong a lengthy litigation to avail the simplest of equality withtheir male counterparts. They do not come to the Court seekingcharity or favour. They implore for a restoration of their dignity,when even strongly worded directions by the Court in BabitaPuniya’s case have not trickled down into a basic assessment ofnot subjecting unequals to supposedly “neutral parameters”.[Para 111][764-C-G]

4.9 The submission on the medical criteria being modulatedto account for advancement of age cannot be accepted. The timingof the administration of rigorous standards is a relevantconsideration for determining their discriminatory impact, andnot just an isolated reading of the standards which account fordifferences arising out of gender. The WSSCOs have been subjectto indirect discrimination when some are being considered forPC, in their 20th year of service. A retrospective application ofthe supposedly uniform standards for grant of PC must bemodulated to compensate for the harm that has arisen over theirbelated application. In the spirit of true equality with their malecounterparts in the corresponding batches, the WSSCOs mustbe considered medically fit for grant of PC by reliance on theirmedical fitness, as recorded in the 5th or 10th year of theirservice. [Para 112][764-G-H; 765-A-C]

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A5.1 As regards the interpretation of the direction in BabitaPuniya’s case mandating WSSCOs who have completed 14 yearsof service as on the date of the judgment to be considered forPC, in the event of their non-approval or non-option, these officersare to be continued in service for 20 years, with benefits ofpension. In Babita Puniya’s case, the directions issued by thisBCourt, were while accepting the policy decision of the UnionGovernment. The policy decision of the Union Government forthe grant of PCs to WSSCOs in all the ten streams where womenwere granted SSC in the Indian Army was accepted, subject toseveral conditions spelt out in clauses (a) to (g) of direction (1) inCparagraph 69 of the judgment. Direction (d) refers to “existingSSC officers with more than 14 years of service”. This expressionis clearly intended to encompass those WSSCOs who hadcompleted 14 years of service on the date of the judgment. It isimportant to note that these officers were also granted the benefitof continuing in service until the attainment of pensionableDservice. [Para 113][765-C-E; 766-C]

5.2 This Court, as a consequence of the constraint ofinformation being provided to it by the parties arraigned beforeit in Babita Puniya’s case, was not alive to the full extent of thecadres who were denied a timely opportunity for PC in their 5thEor 10th year of service. Direction (c) and (d), as a one-timemeasure, attempted to correct the gross injustice that was metedout 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 Fprovided as a corrective exercise for women who have devotedtheir careers to the Army, in spite of the dignity of PC beingelusive to them, merely as a consequence of their gender. TheCourt’s objective in providing for such a cut- off was tocompensate for the impact of the discrimination which had deniedthem timely opportunities and to account for the significant riskGand commitment they demonstrated by their continuation inservice. [Para 117][767-D-F]

5.3 The women officers in the batches of WSES(O) - 27 to31 and SSCW(T&NT) 1 to 3 face a similar predicament as they H

are being considered for PC beyond their 10th year in service (inthe best case). Similar to the women in the older cadres whowere denied opportunities, career progressions and assurancesowing to the respondents’ failure at the relevant time to ensuregender equality in the forces; the women in the batches who werebetween 10-14 years of their service were meted the sameinsecurity. The WSES scheme has been discontinued and theWSES(O) 31, commissioned in 2008, is the last batch to havegained entry in the scheme, rendering it a ‘dying cadre’. Theexpression ‘dying cadre’ is deployed not in a pejorative sense.The expression has a specific meaning in service jurisprudenceto denote a dwindling class of officers in service. The officers inthe consequent batches of SSCW (T&NT) 1 to 3, although partof the new scheme that replaced WSES, will be the only batcheswho will face an adverse impact of the respondents’ failure toimplement the High Court judgement before the 10th year oftheir service. In exercise of the constitutional power entrustedto 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 theabovementioned batches, as a one-time benefit. This one-timeextension, would bring parity inter se between officers who werediscriminated by their non-timely consideration by therespondents. [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, 2011SCC OnLine SC 87; Babita Puniya v. Ministry ofDefence, 2010 SCC OnLine Del 1116 : (2010) 168DLT 115; Titaghur Paper Mills Co. Ltd. v. State of Orissaand Ors. (1983) 2 SCC 433 : [1983] 2 SCR 743; Brig.Nalin Kumar Bhatia v. Union of India 5 Civil AppealNo 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.

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Case Law Reference

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CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.1109 of 2020.

D(Under Article 32 of the Constitution of India)

With

Writ Petition (Civil) No. 1469 of 2020, Writ Petition (Civil) No. 34of 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)ENo 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, DeepakFGoel, Mohan Kumar, Ms. Archana Pathak Dave, Ms. ChitrangdaRastravara, Jaideep Singh, Manvendra Singh Rathore, Dashrath Singh,Ms. Vanya Gupta, Kumar Prashant, Advs. for the Petitioners.

Sanjay Jain, ASG, R. Balasubramanian, Sr. Adv., Ms. SeemaBengani, Adit Khorana, Ms. Shraddha Deshmukh, Ms. SwarupmaGChaturvedi, 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.

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LT. COL. NITISHA & ORS. v. UNION OF INDIA & ORS.

The Judgment of the Court was delivered by A

DR. DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into the following sections tofacilitate analysis:

AA long and winding road

B

BSteps for implementing the decision in Babita Puniya CCriteria for the grant of PCs C.1Medical Criteria C.2Substantive Assessment for PC

DEvaluation of the credentials of 615 Women SSCOsC

ESubmissions

E.1Submissions of petitioners

E.2Submissions of the respondents

E.3The petitioners in rejoinder

D

FSystemic Discrimination

F.1Theoretical Foundations of IndirectDiscrimination F.2Position in the United States F.3Position in the United KingdomE

F.4Position in South Africa

F.5Position in Canada

F.6Evolving an analytical framework for indirectdiscrimination in India:

FF.7Systemic Discrimination as antithetical toSubstantive Equality GAnalysis G.1Selection Process & Criteria set by the Army G.2Benchmarking with the Lowest Male Officer G

G.3Reliance on Annual Confidential Reports G.4Medical Criteria G.5WSSCOs belonging to WSES(O) 27-31 andSSC(T&NT) 1-3 who had not completed 14years of service as on the date of Babita Puniya H

AHConclusion and directions

“I ask no favour for my sex. All I ask of our brethren is thatthey take their feet off our necks”[1]

-Late Justice Ruth Bader Ginsburg, Associate Justice, SupremeCourt of the United States of America B

A A long and winding road

1. By the judgment of this Court in Secretary, Ministry ofDefence v. Babita Puniya[2], the claim of women engaged on ShortService Commissions[3] in the Indian Army for seeking PermanentCCommission[4] was evaluated and held to be justified. Addressing thebackground of the dispute, the judgment described this as “a quest forequality of opportunity for women seeking PCs”. As the Court observed,“a decade and more spent in litigation, women engaged on Short ServiceCommissions in the Army seek parity with their male counterparts”.

DThe battle for equality has been long drawn, engaging as much withreforming mindsets as with implementing constitutional principles.2. The path traversed by the Women SSC Officers[5] commencedwith a writ petition in public interest before the Delhi High Court in2003. The judgment of the Delhi High Court which substantially upheld Ethe entitlement of the WSSCOs was rendered on 12 March 2010[6]. Thejudgment of the Delhi High Court and its directions[7 ]formed the subjectmatter of the earlier proceedings before this Court which resulted in thedecision in Babita Puniya (supra) being rendered on 17 February 2020.Between 12 March 2010, when the Delhi High Court pronounced itsFjudgment, and 17 February 2020, when this Court rendered its decisionin Babita Puniya (supra), there was no stay of the implementation of 1 Late Justice Ginsburg quoted Sara Grimké, noted abolitionist and advocate of equalrights of men and women, while arguing before the Supreme Court of the United Statesof America in Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson,GSecretary 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:

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the judgment of the Delhi High Court. This, as a matter of fact, wasclarified on 2 September 2011 in an order of this Court[8].

3. Despite the above clarification, the judgment of the High Courtwas not implemented by the Union Government. Several interim orderswere issued for directing a stay on the release of the WSSCOs, forreinstatement in service coupled with an entitlement to salary. Duringthe pendency of the appeal before this Court, the Union Governmentand the Ministry of Defence[9] (“MoD”) issued a communication on 25February 2019 envisaging the grant of PCs to WSSCOs in eight arms orservices of the Army (in addition to the existing two streams of JudgeAdvocate General[10] and Army Education Corps[11] which had alreadybeen 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 ofwomen officers cannot be sustained being a policy decision.

(ii) The policy decision not to offer PC to Short Service Commissioned officersacross the board for men and women being on parity and as part of manpowermanagement exercises is a policy decision which is not required to be interferedwith.

(iii) The Short Service Commissioned women officers of the Air Force who hadopted for PC and were not granted PC but granted extension of SSCs and of theArmy are entitled to PC on a par with male Short Service Commissionedofficers with all consequential benefits. This benefit would be conferred towomen officers recruited prior to change of policy as (ii) aforesaid. ThePermanent Commission shall be offered to them after completion of five years.They would also be entitled to all consequential benefits such as promotion andother financial benefits. However, the aforesaid benefits are to be made availableonly to women officers in service or who have approached this Court by filingthese 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 ofretirement available for the Permanent Commissioned officers shall, however,be reinstated in service and shall be granted all consequential benefits includingpromotion, etc. except for the pay and allowance for the period they have notbeen in service.

(v) The necessary steps including release of financial benefits shall be done bythe authorities within two (2) months of passing of this order.”8The order of this Court in Ministry of Defence v. Babita Puniya, 2011 SCC OnLineSC 87 provides as follows:“2.….

What is stayed as interim measure by this Court is action of contempt initiatedby the original writ petitioners against the petitioners in special leavepetitions.The operation of the impugned judgment [Babita Puniya v. Ministryof Defence, 2010 SCC OnLine Del 1116 : (2010) 168 DLT 115] is not stayedat all.”

9 “MoD”10 “JAG”

11 “AEC”

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ACourt dated 17 February 2020, the following directions were issued tothe Union Government, while taking on record its policy statement dated25 February 2019:

“H. Directions

69. We accordingly take on record the statement of policy placedBon the record in these proceedings by the Union Government inthe form of the Letter dated 25-2-2019 and issue the followingdirections:

(i) The policy decision which has been taken by the UnionGovernment allowing for the grant of PCs to SSC womenCofficers in all the ten streams where women have beengranted SSC in the Indian Army is accepted subject to thefollowing:

(a) All serving women officers on SSC shall beconsidered for the grant of PCs irrespective of anyDof them having crossed fourteen years or, as the casemay be, twenty years of service.

(b) The option shall be granted to all women presently inservice as SSC officers.

(c) Women officers on SSC with more than fourteenEyears of service who do not opt for being consideredfor the grant of the PCs will be entitled to continue inservice until they attain twenty years of pensionableservice.

(d) As a one-time measure, the benefit of continuing inFservice until the attainment of pensionable serviceshall also apply to all the existing SSC officers withmore than fourteen years of service who are notappointed on PC.

(e) The expression “in various staff appointments only”in Para 5 and “on staff appointments only” in Para 6shall not be enforced.

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(f) SSC women officers with over twenty years ofservice who are not granted PC shall retire on pensionin terms of the policy decision.

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(g) At the stage of opting for the grant of PC, all theAchoices for specialisation shall be available to womenofficers on the same terms as for the male SSCofficers. Women SSC officers shall be entitled toexercise their options for being considered for thegrant of PCs on the same terms as their maleBcounterparts.

A

(ii) We affirm the clarification which has been issued in sub-para (i) of Para 61 of the impugned judgment [BabitaPuniya v. Ministry of Defence, 2010 SCC OnLine Del1116 : (2010) 168 DLT 115] and order of the Delhi HighCCourt.(iii)SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequentialbenefits including promotion and financial benefits.However, these benefits would be made available to thoseofficers in service or those who had moved the Delhi HighD

(iii) SSC women officers who are granted PC in pursuance ofthe above directions will be entitled to all consequentialbenefits including promotion and financial benefits.However, these benefits would be made available to thoseofficers in service or those who had moved the Delhi HighCourt by filing the writ petitions and those who had retiredduring the course of the pendency of the proceedings.”

This batch of petitions under Article 32 has questioned the mannerin which the decision of this Court in Babita Puniya (supra) has beenimplemented.

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4. Since the grievance in these proceedings emanates directly outof the steps taken by the Union Government to implement the earlierdecision of this Court in Babita Puniya (supra), this Court has entertainedthe petitions under Article 32. Initially, in the counter affidavit filed bythe Colonel Military Secretary (Legal) at the Integrated Headquartersof the Ministry of Defence (Army), an objection was raised to themaintainability of the petitions on the ground that the petitioners shouldbe relegated to the pursuit of remedies before the Armed Forces Tribunal.However, this plea has not been pressed in the submissions by Mr SanjayJain, learned Additional Solicitor General[12] appearing on behalf of theUnion of India, the MoD and the Indian Army. The respondents, throughtheir written submissions, have also agreed to formulate a policy forgranting time-scale promotions to the WSSCOs who have been grantedPC. Hence, only the core contested issues which arose in the course ofthe proceedings are being addressed on merits in this judgment.12 “ASG”

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664SUPREME COURT REPORTS

[2021] 4 S.C.R.

AB Steps for implementing the decision in Babita Puniya5. The steps which were taken by the Union Government toimplement the decision in Babita Puniya (supra) have been elaboratedupon in the

(i) Counter Affidavit of the respondents; andB(ii)Written submissions formulated by the ASG.6. Following the decision in Babita Puniya (supra), a governmentalsanction was issued on 16 July 2020 for taking administrative steps tofulfill the directions. Accordingly, a set of General Instructions dated 1CAugust 2020 were issued for the conduct of a special selection proceedingby a “Special No. 5 Selection Board 2020” to screen WSSCOs for thegrant of PC “based on existing policy regarding grant of permanentcommission…applied uniformly to all SCC officers”. These GeneralInstructions were issued by the Integrated Headquarters of MoD (Army)for implementing the guidelines in Babita Puniya (supra). The relevantDextracts are reproduced below:

“General

1. A Spl No 5 Selection Board (SB) 2020 will be held to screenthe Short Service Commissioned WOs of the followingcourses, who are in service:

E

F

G

Aim

3. To lay down guidelines for submission of application by theWSES(O)s / SSCW(O)s for consideration for grant of PCby Spl No 5 SB 2020.

H

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 medicalboard at the nearest Military hospital where facilitiesof medical specialists are available. The detailedinstructions 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 whoare opting for PC and are SHAPE-1 or PermanentLow Medical Category (PLMC) will undergo amedical board as per AFMSF-2(ver 2002). Only one copy(ie original) of medical board proceedings [medicalexamination report on AFMSF-2 (ver 2002) format] withoutinvestigation reports and X-ray, duly approved by thecompetent authority, is required to be forwarded to MSBranch (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 theMS Branch. The medical board proceedings should reachMS 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 andwill be dealt with as per the type of consideration mentioned atPara 1 above.

b.Officers with Temporary Low Medical Category(TLMC)

i.Officers with TLMC will submit the proceedings of medicalcategorization (AFMSF-15) / re-categorization [AFMSF- A

B

C

D

E

F

G

H

A15A (ver 2002)] giving their present medical category. Thesedocuments should reach MS Branch (MS 7B) latest by 11Sep 20. In case the medical documents are not submittedby the due date, the concerned officer will be consideredas not opted for PC and will be dealt with as per the type ofconsideration mentioned at Para 1 above. B

ii.Officers with TLMC, who are otherwise found fit for PCby the Spl No 5 SB, will be given a maximum time periodof one year for stabilization of their medical category.Such offrs will forward their medical docu on AFMSF-2 asper Para 9(a) above, on becoming SHAPE-1 of PLVS ThisCtime period of one year will be counted from the last dateof submission of medical documents as per Para 9 (b) (i)above i.e. 11 Sep 20. Beyond the period, result of the boardin respect of such offers will be declassified treating themto be medically unfit for PC.

D

iii.Women officers who are on maternity leave and cannotundertake medical examination, will forward the medicalboard proceedings vide which they were medicallydowngraded for maternity leave and follow instructionscontained in Para 9(b) (i) & (ii) above.

Ec. Eligibility of PC for Officers with PLMC. The low medical category should not be due to medical reasons (whetherattributable to military service or not) but should have been causedas a result of casualties suffered in action during operations ordue to injury or other disability sustained during duty (for exampleFwhile traveling on duty, playing organized games under regimentalarrangements, during trainings exercises and so on). In addition,medical categories lower than S1 or H2 or A3 or P2 or E2 orH2E2 or H2A3 or H2P2 or E2A3 or E2P2 are NOT ELIGIBLEfor grant of PC. Officers are required to forward copies of Courtof inquiry, Injury report (IAFZ 2006) and notification of battleGcasualty, if applicable in support of their medical category……”

(emphasis supplied)

7. Special No. 5 Selection Board was convened between 14 and25 September 2020 to consider WSSCOs for the grant of PCs. Accordingto the counter affidavit, this was “on same terms and criterion as theirH

male counterparts”. 615 WSSCOs were considered for the grant ofPCs. The result of the Special No. 5 Selection Board was declared on19 November 2020. According to the Union of India, Special No. 5Selection Board was conducted in the following manner:

“[…]

a.The Military Secretary’s Branch constituted a SelectionBoard as per the provisions of Army Order 18 of 1988,which is being uniformly followed for consideration for grantof permanent commission to all SSC male officers andwomen officers of AEC & JAG. All Board members werefrom outside the Military Secretary’s Branch. A womenofficer of Brigadier rank from AMC was also a member ofthe Board.

b.Identity of the officers being considered, was hidden fromthe Board. Women officers who were being considered bythe Board were permitted to attend the Board proceedingsas observers. A list of such officers and days of theirattendance is given at Annexure – R3.

c.As per the laid down criteria, confidential reports,discipline and vigilance report, if any, honours andawards etc, as on the 5[th] or 10[th] years of service, asthe case may be, of the women officers, dependingupon the terms and conditions opted by the respectiveofficer, was taken into consideration by the SelectionBoard. This procedure was exactly similar to whatwas followed for the similarly placed correspondingcourse & entry (Technical or Non-Technical) madeofficers.

d.The Board examined the MDS (Master Data Sheet) ofeach officer, for grant of Permanent Commission and gaveindependent value Judgement marks without any mutualconsultation.

e.The Board then compared the total marks of eachofficer out of 100, with the marks of the male officerwith lowest merit granted permanent commission inher corresponding course & entry (Technical or Non-Technical ). Post this, the Board recommended 422 out of A

B

C

D

E

F

G

H

A615 officers for grant of Permanent Commission, on meritbasis, subject to them meeting the criteria of medical fitnessand DV (Discipline and Vigilance). On scrutiny of these422 officers, it emerged that 57 out of these 422 had notopted for grant of Permanent Commission. Options (choice)of officers being considered, is not disclosed to the boardBmembers during the consideration stage to avoid anybiasness.”

A

(emphasis supplied)

8. The result of the Special No. 5 Selection Board has beenCtabulated by the respondents in the following terms:

D

E

F

Note: In the above list, 42 candidates who have been placed inthe Temporary Low Medical Category have been granted one yearstabilization period during which they have an opportunity to restore to the required criterion of medical fitness.

GThe above tabulation, supplied on affidavit by the respondents,does not account for 19 women officers in the breakup. The data providedby the petitioners, on an analysis of the consolidated result of the SpecialNo. 5 Selection Board proceedings, indicates the following figures whichaids a comprehensive analysis:

H13 “non-optee”

C Criteria for the grant of PCs

C.1 Medical Criteria

9. One of the issues which has been debated in the present caseis in regard to the SHAPE-1 qualification for grant of PC. The Armyauthorities have, in terms of the General Instructions dated 1 August2020, stipulated that only those officers who are in SHAPE-1 would begranted PC. Officers in a Temporary Low Medical Category[14], who areotherwise found fit for PC by the Special No. 5 Selection Board aregranted a time period of one year (at the maximum) for stablization oftheir medical category. Within a period of one year, the officers have toforward their medical documentation of having achieved SHAPE-1status. As regards officers in the Permanent Low Medical Category[15],it has been stipulated that the low medical category should not be due tomedical reasons (whether or not attributable to military service) but shouldbe a result of casualties suffered in action during operations or due toinjury or other disability sustained during the course of duty.

10. The medical criteria for the grant of PC are governed bySpecial Army Instructions dated 30 April 1970[16] (as amended from timeto time in 1971, 1972, 1973 and 1993) and Army Order 110 of 1981[17].According to the Union of India, “the criteria of medical fitness appliedfor grant of permanent commission, are exactly the same as applicable 14 “TLMC”15 “PLMC”16 “SAI 3/S/70”17 “AO 110/1981”

A

B

C

DE

F

G

H

Ato other SSC officers”. Whenever the Special No. 5 Selection Board ofan SSC officer is deferred and is held subsequently after the passage ofone or two years, an officer has to undertake a fresh medical examinationfor the Board.

11. Before adverting to SAI 3/S/70 and AO 110/1981, it isBnecessary to understand the meaning and content of the SHAPE-1 norm,which finds place in Army Order 9 of 2011[18].

Army Order 9 of 2011

12. The expression “SHAPE” has been explained in AO 9/2011in the following terms:C

“30. Medical Classification. Medical classification/reclassification of serving officers will be made by a dulyconstituted Medical Board after assessing his/her fitness underfive factors indicated by the code letter SHAPE which willrepresent following functions (details thereof given in AppendixD‘E’):- S-Psychological including cognitive function abnormalities H-Hearing A-Appendages E

P-Physical Capacity

E-Eye Sight”

In each of the above factors, the functional capacity for performingmilitary duties is denoted by a descending order of fitness, denoted byFnumerals 1 to 5. Accordingly, while dealing with functional capacity, AO9/2011 contains the following specifications:

“31.Functional Capacity. Functional capacity for military dutiesunder each factor will be denoted by numerals 1 to 5 against eachcode letter indicating declining functional efficiency. TheseGnumerals will be used against the word SHAPE to denote theoverall medical classification and also against each factor ofSHAPE while describing the disability profile. General evaluationof these numerals will denote guidelines for employment of theofficers as under:-

“1A- Fit for all duties anywhere.

1B- Fit for all duties anywhere; under medical observation andhas no employability restrictions.

2- Fit for all duties but some may have limitations regarding dutieswhich involve severe physical and mental stress and require perfectacuity of vision and hearing.

3- Except ‘S’ factor, fit for routine or sedentary duties but havelimitations of employability, both, job wise and terrain wise as speltout 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 grantof PCs to SSC officers. According to Para 2(b), the medical categorymandating SHAPE-1 was stipulated in the following terms:

“(b) Must be in Medical Category AYE ONE (A-1). Those whohave been placed in Medical Category ‘A-2’, ‘B-1’ and ‘B-2’ asa result of casualties suffered in action during operations mayalso be considered on merits of each case by the Government.”

Para 2(b) was amended in 1972 (Army Instructions 102/72) inthe following terms:

“(b) For medical fitness, the officer should satisfy the followingconditions:-

(i) Their medical category {should not be lower than grade 2 underany one of the SHAPE factors excluding ‘S’ factor in which thegrade should not be lower than 1. In exceptional cases grading of2 in both ‘H’ and ‘E’ together may be acceptable.

(ii) The low medical categorisation should not be due to medicalreasons whether attributable or not (sic) but should have beencaused as a result of causalities suffered in action during operationsor due to injury or other disability sustained during duty (for example A

B

C

D

E

F

G

H

672SUPREME COURT REPORTS

Awhile travelling on duty, playing, organised games under regimentalarrangements, during training exercises and so on).

(iii) They should be found fit for permanent commission in allother respects, through Services Selection Board selection whereapplicable at which selection they will be given modified tests,Btaking 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:- C“Their medical category should not be lower than S1 or H2 of A3or P2 or E2 or H2E2 or H2A3 or H2P2 or E2A3 or E2P2.However, grant of Permanent Commission to low medical categoryShort Service Commissioned Officers will be subject to renditionof the requisite certificate in terms of AO 20/75.””

D15. The above policy provides a concession to such candidateswho have suffered an injury on the line of duty as a result of which theirmedical category has been lowered. However, the concessions havebeen qualified. For ease of reference, S1 indicates grade-1 in the Sfactors; H2 means grade-2 in the H factors and A3 means grade-3 inthe A factor. The requirement of being in SHAPE-1 is a pre-requisite,Eeven in respect of such arms and services, where both men and womenjoin at the threshold age of up to 45 years, such as in the Army MedicalCorps. While insisting upon the observance of the SHAPE-1 norm forthe grant of PC, the Army also envisages a Temporary Low MedicalCategory - TLMC - under which an officer is given a period of one year,Fcalled 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

G(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

H(vii)1 petitioner in Writ Petition (C) 1158 of 2020

The Army authorities submitted that out of 86 petitioners, 55 arestill in SHAPE-1. Out of the 55, 30 are above the age of 45 going up to52 years in age. 23 other petitioners have been placed in PLMC, whilethe 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 commissionedofficers granted commission under A-III/S/64 will be eligible for thegrant of PCs under the terms and conditions of service” as laid down inthe instruction. Para 2(b) prescribed medical requirements of SHAPE-1 with certain exceptions for duty-related casualties (extracted in theearlier section of this judgment). Para 5 envisaged that officers whoseapplications were in order would be called for an interview by theServices Selection Board. Under para 6(b), the Services Selection Boardswere to consider the applicants for the grant of PC. The applicants’performance as short service commissioned officers would be evaluatedand reckoned by the government in assessing their suitability for thegrant of PC. Those found suitable for the grant of PC were to be placedon a panel. PCs would be granted to those found suitable in all respectsin the arms or services as the case may be, the final decision restingwith the government. Para 89(b) stipulated that

“(b) Permanent commission will be granted depending on thevacancies existing in the Arms or Services and the officers suitable.The officer’s choice of Arm/Service will be given due considerationbut there is no commitment to give any particular Army Service.”

18. Para 10 contained provisions for the manner in which theperiod as SSC officer would be counted; para 11 for pay and allowances;para 12 for pensionary awards; para 13 for termination of commissionand para 14 for other conditions of service.

Army Order 110/1981

19. Officers granted SSC, both technical and non-technical wereconsidered for PCs on the basis of their service performance in the fifthyear of their service. AO 110/1981 inter alia contained instructions inregard to the submission of applications and evaluation of medical statusby the medical boards. Officers who were not desirous of beingconsidered for the grant of PC or for extension of SSC service, and A

B

C

D

E

F

G

H

Asought release on the expiry of their contractual terms of five yearswere required to indicate their option. Similarly, officers who were non-optees for permanent commissions but were willing to continue onextended SSC services were required to furnish certain forms.

MoD Policy Letter dated 30 September 1983B20. This specified the criteria for grant of PC to SSC officers.The policy letter envisaged that :

“The Selection Board will assess each officer’s performancebased on computerized Member Data Sheet. To facilitate themembers to arrive at their decision, a computerized Member DataCSheet (MDS) indicating the year wise performance of each officerincluding performance on courses, strong points, weak points,disciplinary awards etc., will be made available. The computerevaluation as spelt out in para 4 below will have 80% weightagewhile 20% weightage will be given to the assessment of themembers of the Selection Board.”D

The above policy letter contemplated the preparation of acomputerized Member Data Sheet indicating the year-wise performanceof the officer. Eighty per cent weightage would be given to the evaluationin the Member Data Sheet[19] while twenty per cent would be assignedEfor the assessment by the members of the selection board. The membersof the selection board were required to take into account the MDS andbear in mind, among other things,performance on courses, strong / weakpoints, technical assessment and the disciplinary background, for whichthey would award marks out of 20. The members of the selection boardwere also required to award the following gradings. besides awardingFmarks :

G

21. Para 4 of the policy letter envisaged that for preparing theevaluation sheets, the following information regarding officers would becomputed namely:

(i) QAP: Overall performance of the officer is evaluated byAtaking the average of figurative assessment of all reportingofficers other than “PTO” and “HTO”. Average will beworked out for each year as well as for the entireperiod of officer’s service. The latter QAP will beconverted into a proportion of 60 marks; B

(ii) Honours and Awards: Honours and Awards received bythe officer will be allotted marks as under:

C

The marks earned for honours and awards were to be addedup, subject to the condition that the maximum will not exceed6 marks.

D

(iii) Performance grading obtained by the officers on eachcourses: maximum 10 marks;

(iv) Strong points reflected in each ACR earned by the officer:maximum 4 marks; E

(v) Recommendation for PC: a positive recommendationwould carry 0 mark while a ‘No’ would carry minus 2 marks;

(vi) Weak points: Minus 3 marks could be awarded on thereflection of the weaknesses of the officer with referenceto qualities of dependability, discipline, integrity and loyalty,financial management, addiction to wine, lack of morals andpersonal affairs. Any other weak point would be awardeda minus 0.5 mark; and F

(vii) Disciplinary awards: the marks would be considered fordenial of PC.

G

The marks/average worked out on the above basis were to beduly computed out of a total of 80 marks.

Army Order 18/1988

[2021] 4 S.C.R.

A22. AO 18/1988 formulated the system of selection for the grantof PCs. Para 1 of AO 18/1988 stipulated grant of PC in the 5[th] year ofservice to officers:

“Officers granted Short (sic) Service Commission under AI11/S/64 are considered for grant of Permanent CommissionBby No. 5 Selection Board on this basis of their record profile,in the fifth year of their service. Option and Medical BoardProceedings are asked for 3 to 4 months in advance in terms ofAO 110/81. The proceedings are approved by the Government.”

(emphasis supplied)

CUnder para 2, the first 50 per cent of officers screened by theSelection Board in order of merit were to be granted permanentcommission; the next 35 per cent would be granted extension for fiveyears; and the remaining 15 per cent would be released on completingthe contractual period of five years’ service. Para 3 stipulates that theDselection board would be convened twice a year in May and September/ October to ensure that officers of a particular course are screenedbefore 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 forPG is as under:E

(a) Chairman - Div Cdr (1)

(b) Members - Bde Cdr (2)

Brig on Staff (1) outside Army HQ DDG

FOrg/DDG PS/DDG Rtg(l)

(c) Secretary -Col. MS-7"

Under para 6, the gradings to each officer were to be in thefollowing terms:

G

H

23. Para 7 provided for the assessment of the record profile oreach candidate:

“7. The undermentioned aspects are taken into account forcomputer evaluation and assessment by members of the SelectionBoard:

(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 beessential to consider the case of an officer for PC. If an officer did nothave the requisite number of ACRs, the case would be withdrawn bythe Selection Board and the officer would be granted an extension ofone year’s service during which, his case would be considered for grantof PC. Para 9 contained a provision for obtaining a “comprehensiveservice data output” in respect of each officer called the Member DataSheet. The guidelines for assessment contained in para 13 are extractedbelow:

“13. Assessment is made in accordance with the criteria approvedby the Government. The salient points are given below:

(a) Officers are assessed on the merits of their serviceperformance as reflected in the ACRs and course reportsfiled in the CR Dossier. Personnel knowledge of an officerneither jeopardizes his selection nor is the basis for favourableconsideration of his case .

(b) While evaluating ACRs the possibility of subjective/inflatedreporting and fluctuation in performance of officers occasionedby following circumstances, are taken note of:

(i) Last ACR before assessment for PC.

(ii) Set of initiating/reporting officers endorsing more than tworeports.

A

B

C

DE

F

G

H

(iii) Period covered by the report, if less than six months.

A(iii) Period covered by the report, if less than six months.(c) Rating and assessment in mandatory qualities of loyalty, integrityand dependability are given due weightage.

(d) More weightage are given to reports earned from regimentalappointment as opposed to staff/ERE if any.B

(e) Low Medical Category of the officer does not influencethe assessment as it is an administrative restriction andnot a; criteria for assessment.”

(emphasis supplied)

CThe requirements of medical fitness were provided in the followingterms:

“21. Officers should satisfy the following conditions:

(a) Their medical category should not be lower than grade 2 underany one of the SHAPE factors excluding ‘S’ factor in which theDgrade should not be lower than 1. In exceptional cases grading of2 in both ‘H’ and ‘E’ together may be acceptable .

(b) The low medical categorisation should not be due to medicalreasons whether attributable or not but should have been causedas a result of casualties suffered in action during operations orEdue to injuries or other disability sustained during duty, (for examplewhile travelling on duty, playing organized games under regimentalarrangements, during training exercise and so on).”

25. Under para 23, SSC officers who are not selected for PCbut are fit, suitable and willing would be granted an extension ofFfive years of the SSC period beyond the initial tenure of five years,on the expiry of which they would be released from the Army. Underpara 24, officers other than those in an unacceptable low medicalcategory or those charged with disciplinary action would continueto serve for a total period of ten years or until they were grantedGPC whichever is earlier. Para 34 provided that though SSCOs wouldbe screened only once in the fifth year of service by the Selection Boardfor PC. In exceptional cases, the cases of officers for PC could bereviewed under a ‘Special Review’.

MoD Policy Letter dated 15 January 1991

H

26. A policy letter was issued by the MoD on 15 January 1991 toregulate the grant of PCs to SSCOs. The policy letter envisaged:

A

“

(a) A maximum of 250 SSCOs will be granted PermanentCommission per year. The number of vacancies for theBbatches within the year will be allotted in proportion to theirinter se strength.

(b) Minimum acceptable cut-off grade for grant ofPermanent Commission to SSCOs will be 60%. Thismay, however, be reviewed by Army HQrs. every two years,keeping in view the rating tendencies as at that time.

C

(c) In case more than the specified number of officersmake the grade from the batches considered in a year,the requisite number only, i.e. 250 will be grantedPermanent Commission on competitive merit.

D

(d) All SSCOs, other than non-optees and those consideredunfit for retention by the Selection Board, will be grantedfive year extension.”

(emphasis supplied)

27. From the above stipulations it becomes evident that E

(i) An annual cap of 250 SSCOs for the grant of PCs wasintroduced;

(ii) The cut-off grade was fixed at 60 per cent, which wasliable to be reviewed after every two years; F

(iii) In the event that more than 250 officers were to make thegrade from the batches considered for the year, only 250officers would be granted PC on the basis of competitivemerit; and

(iv) Other than SSCOs who did not opt for PC and those foundunfit, all other SSCOs would be granted a five yearextension.

G

28. These stipulations make it abundantly clear that a cut-off gradeof 60 per cent was provided as the eligibility for the grant of PC. Anannual cap of 250 was introduced. In the event that the number of SSCOs

Awho fulfill the eligibility in terms of the 60 per cent grade exceed the capof 250, inter se competitive merit would be the basis for determiningthose who would form a part of 250 SSCOs who would be granted PC.Consequently, where the number of SSCOs who had qualified fell shortof the cap of 250 there was no occasion to apply inter se competitivemerit. Moreover, the other SSCOs falling beyond the cap of 250 wouldBbe granted a five year extension unless they were “non-optees” or unfitfor retention.

MoD Policy Letters dated 20 July 2006

29. On 20 July 2006, the Integrated Headquarters of MoD (Army)Cprovided revised terms and conditions of service for men and womenSSCOs both in the technical and non-technical branch:

(i) Grant of SSC (non-technical) to male officers: For SSCmen officers in the non-technical branch of the Army, atenure of 14 years’ service was provided – an initial periodof ten years extendable by four years. They would beDentitled to substantive promotions to the rank of Major andLieutenant Colonel[20] on the completion of 2, 6 and 13 yearsrespectively of reckonable commissioned service. ServingSSCOs were given an option to be governed by theprovisions of the revised scheme. Those who opted for theErevised scheme who were on extension of service and hadalready been considered for PC on the completion of theseventh year or those who did not opt for PC on thecompletion of the seventh year, would not be eligible forfurther consideration for the grant of PC in the tenth yearof service. On the other hand, optees between the fifth andFseventh year of service who had not exercised their secondoption for PC, could be considered again for the grant ofPC in the tenth year of service. Officers between the fifthand seventh year of service who had not exercised theirsecond option were allowed to opt to continue under theGold scheme;

(ii) Grant of SSC (technical) to men officersExtension of tenureand substantive promotions, including PC on similar termsas those for SSC(non-technical) for SSCO men technicalofficers in the Army; H20 “Lt. Col.”

(iii) Grant of SSC (technical) to women officers:By a policyletter 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

a.The total SSC tenure would be 14 years – an initialperiod of 10 years extendable by four years; B

b.An option for release was available for newlyinducted women officers on the completion of fiveyears of service;

c.Substantive promotions to the rank of Captain, MajorCand Lt. Col. would be provided at the end of 2, 6 and13 years respectively of reckonable service; and d.Serving WSES women officers had an option to optfor the SSC scheme within six months;

(iv) Grant of SSC (non-technical) to women officers: By anotherpolicy letter dated 20 July 2006, a similar provision wasmade for the grant of SSC (non-technical) to womenofficers. Under the terms of the scheme, D

a.The total engagement would be for 14 years (10 yearsextendable by a further 4 years); and E

b.Serving WSES women officers were given an optionto 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 / proceduresfor carrying out the Annual Medical Examination (AME), PeriodicalMedical Examination (PME) and medical classification of all Armyofficers. The AO was to supersede all existing instructions and interalia sought to delineate the criteria for medical classification vis-à-visfunctional capacity:

F

G

“31. Functional Capacity. Functional capacity for military dutiesunder each factor will be denoted by numerals 1 to 5 against eachcode letter indicating declining functional efficiency. Thesenumerals will be used against the word SHAPE to denote theoverall medical classification and also against each factor ofSHAPE while describing the disability profile. General evaluation H

Aof these numerals will denote guidelines for employment of theofficers as under:

1A- Fit for all duties anywhere.

1B- Fit for all duties anywhere; under medical observation andhas no employability restrictions.B2- Fit for all duties but may have some limitations regarding dutieswhich involve severe physical and mental stress and require perfectacuity of vision and hearing.

3- Except ‘S’ factor, fit for routine or sedentary duties but havelimitations of employability, both, job wise and terrain wise as speltCout 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.”D

31. Appendix (C) provides for the male average weight inkilograms based on age group and height with a 10 per cent variation oneither side of the average being acceptable. Appendix (D) contemplatesa similar table for female average weight in kilograms for different agegroups and heights with an acceptable 10 per cent variation from theEaverage.

MoD Policy Letter dated 24 February 2012

32. As a result of the policy letter dated 24 February 2012, therewas a revision of the weightage to be ascribed by the No. 5 SelectionBoard (for grant of PC / extension to SSCOs) as betweenF

(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 weightagehad been fixed at 80:20. This was revised to 95:5, thereby reducing theGsubjective element comprised in the value judgment attributed to membersof the Selection Board from 20 per cent to 5 per cent. In preparing theevaluation sheets, averages were to be taken against the following items:

(i) QAP – 75 marks

(ii) Honours and awards – 5 marksH

(iii) Games, sports and special achievements – 5 marks A

(iv) Performance of courses – 10 marks

(v) Weak points – minus 5 marks

(vi) Non-recommendation for PC- minus 2 marks B

33. Para 5 of the policy letter envisages that the marks allottedunder the computerized evaluation would be added to the value judgmentto assess the overall merits of officers. A minimum acceptable cut-offof 60 per cent was fixed, which had to be reviewed every two years:

“5. On conduct of the board, the quantified marks for overallperformance of the officer would be obtained by adding the valueJudgement marks to the Computerised Evaluation. The marksthus obtained would be used to draw out the overall merit of theofficers. Minimum acceptable cut-off grade for grant of PC toSSCOs including women officers (sic) will be 60% (this mayhowever be reviewed by MS branch every two years keeping inview the rating tendencies as at that time).”

C

D

D. Evaluation of the credentials of 615 Women SSCOs

C

D

D. Evaluation of the credentials of 615 Women SSCOs

34. The basic issue which falls for determination is in regard tothe modalities which have been followed in assessing the 615 WSSCOsfor 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 istaken from the counter affidavit filed in these proceedings on behalf ofthe respondents by the Colonel Military Secretary (Legal) at theIntegrated Head Quarters of the MoD. The relevant disclosures arecontained in the section which titled: “In Re: The Methodology forConduct of Special No 5 Selection Board”. The counter disclosesthat 615 women officers “whose corresponding male counterparts havealready been considered” were considered by a Special No. 5 SelectionBoard between 14 September and 25 September 2020. The process (asdisclosed in the counter) is delineated below:

E

F

G

(i) The Military Secretary’s Branch constituted a SelectionBoard in accordance with AO 18/1988. All members of theBoard were from outside the Military Secretary’s Branch.A woman officer of the rank of Brigadier was a member ofthe Board, drawn from the Army Medical Corps. The identityof the officers being considered was concealed from theH

684SUPREME COURT REPORTS

Amembers of the Board. The women officers who were beingconsidered were permitted to attend the proceedings asobservers;

(ii) “As per the laid down criteria”, confidential reports,discipline and vigilance report (if any), honours and awardsB“etc”, as on the 5[th] or 10[th] years of service, of the womenofficers were taken into consideration. This procedure was“exactly similar” to similarly placed male officers at theentry level;

(iii) The board examined the MDS for each officer for the grantCof PC and gave independent value judgment marks withoutmutual consultation;

(iv) The marks for each officer, out of a total of 100 werecompared “with the marks of the male officer with lowestmerit granted PC” in their corresponding courses and entryD(Technical and Non-Technical);

(v) On the above basis, the board recommended 422 out of615 officers for the grant of PC on the basis of merit subjectto their meeting the criteria of medical fitness, disciplineand vigilance; E(vi)Since out of 422 recommended officers, 57 were non-opteesafter the approval of the Selection Board, medical boardproceedings of the remaining 365 approved officers werescrutinized and the result of the Board was declassified on19 November 2020; and F(vii)Out of 365 women officers 277 have been found fit andgranted PC. Results have been withheld for 88 officerscomprising of the following:

a.42 officers are in the TLMC and have been granteda one year period for stabilization; G

b.Medical documents have not been received for 6officers; and c.40 officers are either in the PLMC or their resultshave been withheld on administrative groundsincluding discipline and vigilance clearance.

H

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 onthe basis of merit. The remaining 193 officers (615 minus 422 found fit)were not recommended, though 164 out of these officers fulfill theSHAPE-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 officerswho were considered fit for PC by the Special No. 5 Selection Board,277 WSSCOs were granted PCs after medical scrutiny. Out of theremaining 88 WSSCOs, 42 officers fall in TLMC. The division of theremaining 46 (that is non-TLMC) is that only 35 did not meet the medicalcriteria, which constitutes less than 10% of the women who wereconsidered fit for PC on merit (10% of 365). 6 officers had not submittedforms compliant with AO 110/1981, 3 officers are under scrutiny and 2officers are not cleared from the discipline and vigilance angle.

A

A

B

C

E Submissions

D

E.1 Submissions of petitioners

36. Mr P S Patwalia, learned Senior Counsel appearing on behalfof the petitioners in Writ Petition (C) 1109 of 2020 and Writ Petition (C)34 of 2021 and Ms Meenakshi Arora, learned Senior Counselrepresenting the petitioners in Writ Petition (C) 1172 of 2020, urged thefollowing submissions:

E

Medical Evaluation:

(i) The procedure laid down in the General Instructions dated01 August 2020 is a mechanical reproduction of the existingprocedure for male officers, who are evaluated for PC inFtheir 5[th] or 10[th] year of service, without making anymodifications;

(ii) The medical criterion laid down in para 9 of the GeneralInstructions is arbitrary and unjust as the women officerswho are in the age group of 40-50 years of age are beingrequired to conform to the medical standards that a maleofficer would have to conform to at the group of 25 to 30years; G

(iii) The women officers who are being offered PC at a belatedstage, due to the fault of the respondents, have already H

686SUPREME COURT REPORTS

Aundergone medical scrutiny on the completion of their 5[th],10[th] and 14[th] years of service when an extension of servicewas granted to them. Thus, they must be exempted fromany medical scrutiny at this stage of the grant of PC;

(iv) There is no material change in the job profile and the natureBof the work that is being carried out by the petitioners asSSC officers as compared to the profile attached to theirwork when they will be granted PC. Accordingly, anyexisting medical conditions that the women officers face isnot an impediment in the discharge of their functions; C(v)The criterion for grant of PC laid down in GeneralInstructions is for officers who are in the service bracketof 5-10 years and does not take into account that thepetitioners have served in the Army for 10-25 years;

(vi) The medical criterion does not account for the physiologicalDchanges that have occurred due to the passage of time inwomen officers. These include common changes such ashypertension, obesity, diabetes and changes associated withpregnancy and lactation;

(vii) In comparison to the women officers, the male officers whoEwere granted PC in their 5[th] or 10[th] year of service continueto serve in the Army on different ranks, regardless ofwhether they have undergone any physiological changes.Thus, medical conditions at a later age are not an impedimentin the career progression of male officers as once the PCis granted, there is no repeated medical scrutiny; F(viii) Male officers who have been granted PC in their 5[th] or 10[th]year of service and have later fallen in the PLMC categoryare still permitted to continue till the attainment of the ageof superannuation for all career courses, promotions tohigher ranks, and opportunities of re-employment amongGothers;

(ix) The petitioners at the time of grant of extension of serviceat their 5[th], 10[th] or 14[th] year have undergone the necessarymedical boards and were found fit to continue in the Army;and H

(x) Owing to the physiological changes occurring due to naturalAprocesses of aging and hormonal changes occurring due topregnancy, women officers are naturally downgraded to acategory lower than SHAPE-1. Thus, they are unable tomeet the stringent criteria laid down by the GeneralInstructions for the grant of PC; B

Reliance placed on Annual Confidential Reports[21]:

(xi) The reliance placed on ACRs as a basis to grant PC towomen officers is flawed as in the absence of any provisionof PC to women officers, the reporting officers used toendorse an “N/A” in the column relating to PC. Since thewomen officers could only seek an extension of service asSSC officers and not a PC in the Army, the ACRs werefilled out by the reporting officers casually, as compared tothe ACRs of male officers; C

(xii) With respect to the women officers, the columns regardingDmedical fitness in the ACRs were never filled. In case thewomen officers were medically unfit, they were not givenan opportunity to improve;

(xiii) The ACRs prepared during the term of criterionappointments have a disproportionate and adverse impacton the petitioners, as they quantify participation in juniorEcommand courses and other courses such as staff collegeand specialised courses such as M.Tech. Women officerswere either denied the opportunity of attending thesecourses or if the opportunity was granted, they were notgiven the benefit of their performance during such coursesFin the ACRs of that year;

(xiv) The process of filling out ACRs for women officers wasnot conducted seriously and good grades were not awardedas the officers were not being considered for PC at thetime. Thus, the manner of judging and grading of ACRs forGwomen officers was different from that of male officersand the two cannot be placed on an equal footing;

(xv) The current performance of the women officers and theirlatest ACRs has been completely ignored for the grant of 688SUPREME COURT REPORTS

APC. Thus, the hard work and qualifications attained afterthe 10[th] year of service have not been taken into account;

(xvi) Reliance was placed on MoD Policy Letter dated 24February 2012 on the “Criteria for Grant of PermanentCommission/Extension to Short Service commissionedBOfficers”. According to para 3 of this letter, for consideringan officer for extension of service/grant of PC, the overallperformance of the officer is to be evaluated by taking theaverage assessment of all reporting officers. The averagehas to be worked out for the entire period of the officer’sservice. Thus, the exclusion of the recent ACRs of theCpetitioners for grant of PC is unfair and arbitrary; and Lack of announcement of vacancies:

(xvii) The respondent has failed to announce the number ofvacancies against which PC would be granted to womenofficers. The number of vacancies available in each batch/Dservice is necessary for an officer to make an informedchoice of opting for PC. The respondent failed to earmarkthe vacancies available to each batch within each servicearm for grant of PC.

37. Mr Sudhanshu S Pandey, learned Counsel appearing on behalfEof the petitioners in Writ Petition (C) 1457 of 2020, urged the followingsubmissions:

(i) The women officers have never had a level playing field inthe Army since their induction;

(ii) The use of ACRs as a metric for the grant of PC is arbitraryFas unlike their male counterparts, the women officers werenever given the reasons for non-recommendation for anextension of service / promotion; the assessment criteriafor male and female officers in an ACR was entirelydifferent as the women officers were not being consideredfor future career progression; G

(iii) The consideration of ACRs of only the initial few years hasled to a situation where women officers who have beengranted commendation certificates and honours by the Chiefof Army Staff[22] have not been granted PC; and

(iv) In 2001, a new evaluation system called ‘UAC’ wasintroduced which was not easily accessible and was foundto be flawed. Although, ACRs were subsequentlyreintroduced, the UAC has been made a basis for evaluationand grant of PC to women officers.

38. In addition to the above petitioners, certain other women officerswho are petitioners have faced specific circumstances which have beenhighlighted during the proceedings:

(i) The third petitioner in Writ Petition (C) 1109 of 2020, whohas been denied PC by the results dated 19 November 2020,was selected to undertake an M. Tech degree course underthe auspices of the Army. During the application processfor selection, the petitioner was required to give a certificateof remittance dated 28 November 2019 stating that if herservice is terminated or released by the Government due tothe finalization of court proceedings in the matter concerningthe grant of PC, the officer would be liable to pay theGovernment the cost of the training. On her selection, shewas also required to given an undertaking dated 17 July2020 to serve the Army for a minimum period of 5 yearsafter completion of the course. Under the undertaking, ifshe obtained release or premature retirement, she wouldbe liable to pay for the cost of the training course. After thedenial of PC by the Army on 19 November 2020, a letterdated 1 December 2020 was issued to her demandingrecovery of the training cost of the course, to the tune ofRs. 8.5 lakh - 10 lakhs;

(ii) The petitioner in Writ Petition (C) 1469 of 2021 has statedthat she is being harassed by the respondent only on accountof the fact that she had made a complaint against herCommanding Officer, who had allegedly made sexualadvances towards her. Although the petitioner’s service wasterminated and she was released from service on 14February 2018, her case was considered for a special reviewlater. On 21 February 2019, she was granted an extensionof 4 years in service till 16 March 2021. She has advancedsimilar arguments against the process for the grant of PCas the other petitioners. During the course of the A

B

C

D

E

F

G

H

proceedings, the Court was informed that she is beingconsidered by a Special Review Board and awaiting theresults; and A

(iii) The petitioners in Writ Petition (C) 34 of 2021 havesupported the submissions advanced by other petitionersBbefore the Court. These petitioners are 5 women officersof WSES(O) 27th batch, who were commissioned in theArmy as SSC officers on 18 March 2006 and completedtheir 14 years of service on 18 March 2020. During thegrant of PC, the petitioners were considered to fall in thecategory under Para 1(c) of the General Instructions datedC1 August 2020, that is “WSES(O)- 27 to 31 andSSCW(T&NT)- 1 to 3 courses:For PC/To be releasedon completion of the period of extension alreadygranted”. The petitioners contended that while as on thedate of the judgment in Babita Puniya (supra), they hadDnot completed 14 years of service, as on the date of theGeneral Instructions dated 1 August 2020, they hadcompleted 14 years and 6 months in service. Thus, theywere to be considered in the category under Para 1(b) ofthe General Instructions: “WSES(O)- 15 - 26 courses: ForPC/To serve till 20 years of pensionable service andEreleased with pension”. Thus, they have submitted thatunder the judgment in Babita Puniya (supra), in case theyare not granted PC and have served for more than 14 years,they should be entitled to continue in service till the attainmentof pensionable service.

B

C

D

B

C

D

F39. The petitioners in Writ Petition (C) 1223 of 2020, are in thecategory of women officers belonging to batch 27 to 31, having been inservice for 10-14 years. In terms of the General Instructions dated 1August 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 onGcompletion of their extension period, without any pension. Mr Huzefa AAhmadi, learned Senior Counsel appearing on behalf the petitioners inWrit Petition (C) 1223 of 2020, made the following submissions:

(a) There was no valid basis for differentiating between thewomen officers of batches 27 to 31 from their seniors inHbatches 15 to 26 in the General Instructions dated 1 August

2020. The respondents have wrongly interpreted the decisionof this Court in Babita Puniya (supra)and have deniedextension of service till 20 years to WSSCOs who have notbeen granted PC and who had not completed 14 years ofservice as on the date of the judgment in Babita Puniya(supra); and A

B

(b) In case such women officers from batches 27 to 31 whowere in service between 10 years to 14 years, are releasedon completion of 14 years of service without pension, itwould be a gross miscarriage of justice.

E.2 Submissions of the respondents

C

40. Mr Sanjay Jain, learned ASG, appeared on behalf of therespondents, assisted by Mr R Balasubramaniam, Senior Counsel.Addressing three broad issues on the (i) medical yardsticks for grant ofPC; (ii) number of vacancies notified and the criteria for selection; and(iii) process of evaluation through the ACRs, the learned ASG made thefollowing submissions:

D

Medical Yardsticks for grant of PC

(i) A writ petition under Article 32 is not maintainable for reliefssought in service matters. The petitioners should haveapproached the Armed Forces Tribunal with their statutoryEgrievance as has been held by this Court in Titaghur PaperMills Co. Ltd. v. State of Orissa and Ors.[23](thissubmission in the counter has not been pressed during thehearing); F

(ii) After the decision of this court in Babita Puniya (supra),the respondents conducted a Special No. 5 Selection Boardbetween 14 to 25 September 2020 to consider women forPC. 57 out of the 422 women eligible did not opt for PC.Consequently, out of the remaining 365, 277 were foundeligible for PC; G

(iii) The petitioners, on one hand seek parity with their malecounterparts. On the other hand, they are seeking specialand unjustified treatment in the eligibility criteria for obtainingPC; A(iv)The General Instructions dated 01 August 2020 areadministrative instructions based on the provisions of theSAI 3/S/70 and AO 110/1981. The latter provisions havenot been challenged by the petitioners;

(v) The assessment on the medical criteria of a candidate is anBintrinsic and inseparable part of the process for grant ofPC. It is applicable to men and women alike;

(vi) The acronym ‘SHAPE’, translates as S’ for psychologicalincluding cognitive function abnormalities, ‘H’ for hearing,‘A’ for appendages, ‘P’ for physical capacity and ‘E’ forCeyesight;

(vii) The stringent requirements of SHAPE-1 can be relaxed inthe event candidates have suffered injury on the line ofduty which renders a low medical categorization permissible;

(viii) The Army follows a concept of TLMC which allows anDofficer to come back in SHAPE-1 in one year. This conceptis applicable to the grant of PC as well;

(ix) No SSC officer has ever been denied an extension of servicedue to medical reasons. Therefore, the comparison withthe petitioner’s medical fitness levels at their 5[th] or 10[th]Eyear of service is baseless, since extensions were neverdenied on medical grounds;

(x) The contention that medical fitness cannot be expectedforever in service lacks merits. The Army accounts forphysiological changes occurring during childbirth and timeFwaivers are provided in accordance with existing policies.Other physiological changes such as obesity and age areindependent of gender and the petitioners cannot seek anexemption on that ground. The criteria of TLMC and PLMCare applicable to serving PC officers as well; G(xi)The medical standard of SHAPE-1 weight is as per theage and height of the person. These parameters accountfor the changes induced by advancement of age in menand women. Therefore, the petitioners’ belated considerationfor PC does not adversely impact them as against theirmale counterparts;H

(xii) WSSCOs who seek to join the Army Medical Corps[24] canAjoin up to 45 years of age, yet they have to comply with theSHAPE-1 medical category;

(xiii) There are 86 petitioners who are contesting this batch ofpetitions. 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 PLMCand 9 are placed in TLMC; B

(xiv) The respondents have wholeheartedly complied with thedirections of this Court in Babita Puniya (supra)and hadidentified 365 women for PC. 277 women have alreadybeen granted PC and if certain requirements are fulfilledby allottees, the number could rise up to 330; C

(xv) This Court, in consonance with the spirit of Article 33, shouldnot interfere with the medical yardsticks for determinationof PC as this could be detrimental to the selected officersand the Army cannot afford to comprise on the rigour of itsfitness policies; D

Number of Vacancies Notified

(xvi) The MoD, by its letter dated 15 January 1991 had providedthat a maximum of 250 SSC officers would be granted PCevery year, with a minimum cut-off grade of 60%. In casemore than 250 officers would make the grade, then only250 posts would be granted based on competitive merit.No male officer has been granted PC merely by virtue ofqualifying for the 60% cut-off. This policy and cap of 250vacancies was relaxed for the Special No. 5 Selection Boardproceedings, in order to implement Babita Puniya (supra),in letter and spirit; E

F

(xvii) The benchmark of assessing the women officers underconsideration of PC against the benchmark of the lastselected officer with lowest merit in that particular year isa rational policy, since no upper ceiling was notified forvacancies. The PC has to be granted on competitive merit.The policy adopted by the respondent is rational, reasonableand non-discriminatory; and G

24 “AMC”

694SUPREME COURT REPORTS

A(xviii) The least meritorious male officer granted PC with thecorresponding batch of the WSSCOs is an objective andjust benchmark. This yardstick was also adopted by therespondent when PC was offered to women SSC officersin JAG and AEC in 2010; BProcess of Evaluation through ACRs

(xix) The ACRs are merely one component of the evaluation forPC, which also includes other factors of (i) honors andawards; (ii) performance on courses; (iii) recommendationsfor PC; (iv) disciplinary awards; and (v) strong and weakpoints. In terms of the erstwhile policy dated 15 January1991 and the existing policy dated 24 February 2012,competitive merit has to be seen inter se officers underconsideration for grant of PC.

C

(xx) The decision of this Court in Brig. Nalin Kumar Bhatiav. Union of India[25 ]on the inapplicability of value judgementDby the Selection Board was premised on its peculiar set offacts where the officer there was the sole person in thebatch to be considered for a promotion. The case was notan indictment of policies of inter se merit;

(xxi) The Special No. 5 Selection Board were alive to the realityEthat the column for recommendation of PC for the womenofficers would be blank. Accordingly, the evaluation wasconducted on the assumption that all of the women whohad opted for PC were recommended for the grant of PCand accordingly were not granted a 2 mark deduction; and F(xxii) The petitioners in Babita Puniya (supra) had contendedthat the consideration of ACRs for the first 5/10 years ofservice was a just and valid criterion for granting PC.Belatedly requesting for the entire career record to beconsidered would be contrary to applicable policies and thedirections in Babita Puniya (supra).G

E.3 The petitioners in rejoinder

41. Responding to the submissions of the ASG, Mr Patwalia andMs Arora, learned Senior Counsel, Mr Sudhanshu S Pandey and MrMohan Kumar, learned counsel, have submitted thus:H25 Civil Appeal No 5629 of 2017 decided on 11 February 2020

(i) The respondents have admitted that as a special case, theAvacancy cap had been lifted for consideration of womenofficers for PC. The placement of a vacancy cap could bethe only reason for a comparative determination of meritfor PC;

(ii) In comparison to women officers, 85% to 100% maleBofficers have been granted PC; and

(iii) The total marks for each woman officer were compared tothe lowest marks achieved by the male officer who wasgranted PC, for determination of whether the woman officerwould qualify for grant of PC. After this, the women officersCwere considered against each other on merit and the grantof PC was determined. Thus, the women officers first, hadto meet the benchmark of the lowest qualifying male officersand second, compete inter se women officers. This is instark contrast to the male officers who had to meet noDexternal benchmark and were only required to competeamong themselves, in the event that they were in excess of250 candidates.

D

F Systemic Discrimination

42. At its heart, this case presents this Court with the opportunityto choose one of two competing visions of the antidiscrimination guaranteeembodied in Article 14 and 15(1) of the Constitution: formal versussubstantive equality. The formal conception of antidiscrimination law iscaptured well by Anatole France’s observation: “The law, in its majesticequality, prohibits the rich and the poor alike from sleeping underbridges, begging in the streets and stealing bread.”[26]

E

F

43. Under the formal and symmetric conception ofantidiscrimination law, all that the law requires is that likes be treatedalike. Equality, under this conception, has no substantive underpinnings.It is premised on the notion that fairness demands consistency intreatment.[27] Under this analysis, the fact that some protected groupsare disproportionately and adversely impacted by the operation of theconcerned law or its practice, makes no difference. An apt illustration of G

26 Anatole France, THE RED LILY (1898)

27 Sandra Fredman, DISCRIMINATION LAW (Oxford University Press, 2nd edition)2011 atp.8 (“Sandra Fredman, Discrimination Law”)

H

Athis phenomenon would be the United States’ Supreme Court’s judgmentin Washington v. Davis[28], which held that a facially neutral qualifyingtest was not violative of the equal protection guarantee contained in the14[th] Amendment of the American Constitution merely because African-Americans disproportionately failed the test.

B44. On the other hand, under a substantive approach, theantidiscrimination guarantee pursues more ambitious objectives. Themodel of substantive equality developed by Professor Sandra Fredmanviews the aim of antidiscrimination law as being to pursue 4 overlappingobjectives. She states as follows:

C“First, it aims to break the cycle of disadvantage associated withstatus or out-groups. This reflects the redistributive dimension ofequality. Secondly, it aims to promote respect for dignity and worth,thereby redressing stigma, stereotyping, humiliation, and violencebecause of membership of an identity group. This reflects arecognition dimension. Thirdly, it should not exact conformity as aDprice of equality. Instead, it should accommodate difference andaim to achieve structural change. This captures the transformativedimension. Finally, substantive equality should facilitate fullparticipation in society, both socially and politically. This is theparticipative dimension.”[29]ERecognizing that certain groups have been subjected to patternsof discrimination and marginalization, this conception provides that theattainment of factual equality is possible only if we account for theseground realities. This conception eschews the uncritical adoption of lawsand practices that appear neutral but in fact help to validate and perpetuateFan unjust status quo.

45. Indirect discrimination is closely tied to the substantiveconception of equality outlined above. The doctrine of substantive equalityand anti-stereotyping has been a critical evolution of the Indianconstitutional jurisprudence on Article 14 and 15(1). The spirit of thesetenets have been endorsed in a consistent line of authority by this Court.GTo illustrate, in Anuj Garg v. Hotel Association of India[30], this Courtheld that laws premised on sex-based stereotypes are constitutionallyimpermissible, 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. 24H30 (2008) 3 SCC 1

The Court further held that no law that ends up perpetuating theoppression of women could pass scrutiny. Barriers that prevent womenfrom enjoying full and equal citizenship, it was held, must be dismantled,as opposed to being cited to validate an unjust status quo. In NationalLegal Services Authority v. Union of India [31], this Court recognizedhow the patterns of discrimination and disadvantage faced by thetransgender community and enumerated a series of remedial measuresthat can be taken for their empowerment. In Jeeja Ghosh v. Union ofIndia[32] and Vikash Kumar v. Union Public Service Commission[33]this Court recognized reasonable accommodation as a substantive equalityfacilitator.

46. The jurisprudence relating to indirect discrimination in India isstill at a nascent stage. Having said that, indirect discrimination has foundits place in the jurisprudence of this Court in Navtej Singh Johar v.Union of India[34], where one of us (Chandrachud J), in holding Section377 of the Indian Penal Code as unconstitutional insofar as it decriminalizeshomosexual intercourse amongst consenting adults, drew on the doctrineof indirect discrimination. This was in arriving at the conclusion that thisfacially neutral provision disproportionately affected members of theLGBT community. This reliance was in affirmation of the decision ofthe Delhi High Court in Naz Foundation v. Government of NCT ofDelhi[35 ]which had relied on the ‘Declaration of Principles of Equality’issued by the Equal Rights Trust Act in 2008 in recognizing that indirectdiscrimination occurs “when a provision, criterion or practice wouldput persons having a status or a characteristic associated with oneor more prohibited grounds at a particular disadvantage comparedwith other persons, unless that provision, criterion or practice isobjectively justified by a legitimate aim, and the means of achievingthat aim are appropriate and necessary.”[36] Similarly, this Court hasrecognized the fashion in which discrimination operates by dint of“structures of oppression and domination” which prevent certaingroups 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) (“JosephShine”)

AB

C

DEF

G

H

Aantidiscrimination enquiry, has switched from looking at the intentions ormotive of the discriminator to examining whether a rule, formally orsubstantively, “contributes to the subordination of a disadvantaged groupof individuals”[38].

47. Indirect discrimination has also been recognized by the HighBCourts in India[39]. For instance, in the matters of public sector employment,the Delhi High Court in Inspector (Mahila) Ravina v. Union of India[40]and in Madhu v. Northern Railways[41], has upheld challenges toconditions of employment, which though appear to be neutral, have anadverse effect on one section of the society. Bhat, J., while analyzingthe principles of indirect discrimination in Madhu (supra), held:C

“20. This Court itself has recognised that actions taken ona seemingly innocent ground can in fact have discriminatoryeffects due to the structural inequalities that exist betweenclasses. When the CRPF denied promotion to an officer on theground that she did not take the requisite course to secureDpromotion, because she was pregnant, the Delhi High Court struckdown the action as discriminatory. Such actions would inherentlyaffect women more than men. The Court in Inspector (Mahila)Ravina v. Union of India W.P.(C) 4525/2014 stated, 38 Ibid, Joseph ShineE39 Patel Suleman Gaibi v. State of Maharashtra, 2014 SCC OnLine Bom 463940 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 Del12426). However, the challenge could not succeed as the Court failed to discern anyFmanifest bias. In doing so however, the High Court pointed out to the lack of clearnorms regarding indirect discrimination in India and noted:

“35…This court is conscious of the fact that indirect discrimination is harderto prove or establish. Hidden biases, where establishments or individuals donot overtly show bias, but operate within a discriminatory environmenttherefore, is hard to establish. Yet, to show such bias […], there should havebeen something in the record-such as pattern of marking, or predominance ofGsome element, manifesting itself in the results declared. This court is unable todiscern any; Nor is there any per se startling consequence apparent from thegranular analysis of the results carried out. Furthermore, equality jurisprudencein India has not yet advanced as to indicate clear norms (unlike legislative rulesin the EU and the UK) which guide the courts. Consequently, it is held that thecomplaint of gender discrimination or arbitrariness is not made out from therecord.”

H

“A seemingly “neutral” reason such as inability of theemployee, or unwillingness, if not probed closely, would actin a discriminatory manner, directly impacting her servicerights. That is exactly what has happened here: though CRPFasserts that seniority benefit at par with the petitioner’scolleagues and batchmates (who were able to clear courseNo. 85) cannot be given to her because she did not attendthat course, in truth, her “unwillingness” stemmed from herinability due to her pregnancy.””

(emphasis supplied)

48. We must clarify here that the use of the term ‘indirectdiscrimination’ is not to refer to discrimination which is remote, but is,instead, as real as any other form of discrimination. Indirect discriminationis caused by facially neutral criteria by not taking into consideration theunderlying effects of a provision, practice or a criterion[42].

49. The facts of this case present an opportune moment forevaluating the practices of the respondents in evaluation for the grant ofPC. In this segment of the judgment, we will first outline the theoreticalfoundations of the doctrine of indirect discrimination. We will then surveycomparative jurisprudence concerning the doctrine, with a view tounderstand its key constituents and the legal questions surrounding itsapplication, namely the evidentiary burden to be discharged to invokethe doctrine and the standards of justification to be applied. We will thenoffer a roadmap for understanding and operationalizing indirectdiscrimination in Indian antidiscrimination law.

50. In evaluating direct and indirect discrimination, it is importantto underscore that these tests, when applied in strict disjunction fromone another, may end up producing narrow conceptions of equality whichmay not account for systemic flaws that embody discrimination.Therefore, we will conclude this section with an understanding of asystemic frame of analysis, in order to adequately redress the full extentof harm that certain groups suffer, merely on account of them possessingcharacteristics that are prohibited axles of discrimination.

F.1 Theoretical Foundations of Indirect Discrimination

51. Hugh Collins and Tarunabh Khaitan explain the concept ofindirect discrimination using Aesop’s fable of the fox and the stork. Theynote:

42 Interchangeably referred as “PCP”

A

B

C

D

E

F

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A“Aesop’s fable of the fox and the stork invokes the idea of indirectdiscrimination. The story tells how the fox invited the stork for ameal. 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 theend of her long bill on the plate and departed still hungry. Thestork invited the fox for a return visit and served soup in a long-Bnecked jar with a narrow mouth, into which the fox could notinsert his snout. Whilst several moral lessons might be drawn fromthis tale, it is often regarded as supporting the principle that oneshould have regard to the needs of others, so that everyone maybe given fair opportunities in life. Though formally giving eachCanimal an equal opportunity to enjoy the dinner, in practice thevessels for the serving of the soup inevitably excluded the gueston account of their particular characteristics.”[43]

52. Another excellent formulation of the doctrine can be found inthe opinion of Advocate General Maduro of the Court of Justice of theDEuropean Union (CJEU). He notes that the distinctive attribute of directdiscrimination is that the discriminator explicitly relies on a suspectclassification (prohibited ground of discrimination) to act in a certainway. Such classification serves as an essential premise of thediscriminator’s reasoning. On the other hand, in indirect discrimination,the intention of the discriminator, and the reasons for his actions areEirrelevant. He pertinently observes: “In fact, this is the whole point ofthe prohibition of indirect discrimination: even neutral, innocent or goodfaith measures and policies adopted with no discriminatory intentwhatsoever will be caught if their impact on persons who have a particularcharacteristic is greater than their impact on other persons.”[44]F

53. Thus, as long as a court’s focus is on the mental state underlyingthe impugned action that is allegedly discriminatory, we are in the territoryof direct discrimination. However, when the focus switches to the effectsof the concerned action, we enter the territory of indirect discrimination.An enquiry as to indirect discrimination looks, not at the form of theGimpugned conduct, but at its consequences. In a case of directdiscrimination, the judicial enquiry is confined to the act or conduct at H

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

issue, abstracted from the social setting or background fact-situation inwhich the act or conduct takes place. In indirect discrimination, on theother hand, the subject matter of the enquiry is the institutional or societalframework within which the impugned conduct occurs. The doctrineseeks to broaden the scope of antidiscrimination law to equip the law toremedy 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 celebratedUnited States Supreme Court judgment in Griggs v. Duke Power Co[45].The issue concerned manual work for which the prescribed qualificationsincluded the possession of a high school education and satisfactory resultsin an aptitude test. Two facts about the case bear emphasis. First, due tothe inferior quality of segregated school education, African-Americancandidates were disqualified in higher numbers because of theaforementioned requirements than their white counterparts. Second,neither of these two requirements was shown to be significantly relatedto successful job performance.

55. Construing the prohibition on discrimination embodied in TitleVII of the Civil Rights Act of 1964, Chief Justice Burger held:

“The Act proscribes not only overt discrimination but also practicesthat are fair in form, but discriminatory in operation.” He went on:“good intent or absence of discriminatory intent does not redeememployment procedures or testing mechanisms that operate as“built-in headwinds” for minority groups and are unrelated tomeasuring job capability.”[46]

On the question of the standard of justification for rebutting acharge of indirect discrimination, the Court held as follows:

“The touchstone is business necessity. If an employment practicewhich operates to exclude Negroes cannot be shown to be relatedto job performance, the practice is prohibited.”[47]

Griggs, therefore, laid the groundwork for the thinking thatmeaningful equality does not merely mean the absence of intentional 45 “Griggs”, 401 US 424, 431 (1971)

46 Id. at p. 431

47 Ibid.

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Ainequality. A statutory manifestation of disparate impact was codified inUS law in the shape of the Civil Rights Act of 1991. Section 105[48] of theCivil Rights Act of 1991 makes a practice causing disparate impact aprima facie violation. The presumption can be rebutted by establishingthat the practice is linked to the job and business. This can be overcome B48“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 byadding at the end the following new subsection:‘(k)(1)(A) An unlawful employment practice based on disparate impact is establishedunder this title only if—

‘(i) a complaining party demonstrates that a respondent uses a particular employmentpractice that causes a disparate impact on the basis of race, color, religion, sex, orCnational origin and the respondent fails to demonstrate that the challenged practice isjob 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 toadopt such alternative employment practice.

‘(B)(i) With respect to demonstrating that a particular employment practice causes adisparate impact as described in subparagraph (A)(i), the complaining party shallDdemonstrate that each particular challenged employment practice causes a disparateimpact, except that if the complaining party can demonstrate to the court that theelements of a respondent’s decisionmaking process are not capable of separation foranalysis, the decisionmaking process may be analyzed as one employment practice.‘(ii) If the respondent demonstrates that a specific employment practice does not causethe disparate impact, the respondent shall not be required to demonstrate that suchEpractice is required by business necessity.‘(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance withthe law as it existed on June 4, 1989, with respect to the concept of ‘alternativeemployment practice’.

‘(2) A demonstration that an employment practice is required by business necessitymay not be used as a defense against a claim of intentional discrimination under thistitle.F‘(3) Notwithstanding any other provision of this title, a rule barring the employment ofan individual who currently and knowingly uses or possesses a controlled substance, asdefined in schedules I and II of section 102(6) of the Controlled Substances Act (21U.S.C. 802(6)), other than the use or possession of a drug taken under the supervisionof a licensed health care professional, or any other use or possession authorized by theControlled Substances Act or any other provision of Federal law, shall be considered anunlawful employment practice under this title only if such rule is adopted or appliedGwith an intent to discriminate because of race, color, religion, sex, or national origin.’.(b) No statements other than the interpretive memorandum appearing at Vol. 137Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall be considered legislativehistory 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.”

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by a showing of alternative, equally efficacious, practices not causingdisparate impact.

56. In 2005, in Smith v. City of Jackson[49], the US SupremeCourt construed statutory language in The Age Discrimination inEmployment Act, 1967 which proscribed actions which “otherwiseadversely affect” an employee. This was read to include disparate impactliability. The Court held that this phrase “focuses on the effects of theaction on the employee rather than the motivation for the action of theemployer.”

57. The third major case on disparate impact liability decided bythe US Supreme Court was in 2015, concerning the Fair Housing Actwhich the Court interpreted as including disparate impact liability.[50] TheCourt also made instructive observations on the burden of proof that aplaintiff espousing a claim of disparate impact on the basis of statisticaldisparity must discharge. It held that the plaintiff must be able to establishthat the defendant’s policy is the cause of the disparity. The Court noted:“A robust causality requirement […] protects defendants from beingliable for racial disparities they did not create.”[51] On the standard ofjustification for rebutting such a claim, the Court held that courts mustassess claims of disparate impact liability with caution so that defendantsare provided reasonable margin for devising requisite policies that aretailored for their work requirement.

F.3 Position in the United Kingdom

58. In the United Kingdom (UK), the fault-line that separatesdirect discrimination from indirect discrimination is not the intention ofthe discriminator. Rather, it is the fact that direct discrimination cannotbe justified in any circumstance, while indirect discrimination is susceptibleto justification. To quote Baroness Hale:

“Direct and indirect discrimination are mutually exclusive. Youcannot have both at once … The main difference between themis that direct discrimination cannot be justified. Indirectdiscrimination can be justified if it is a proportionate means ofachieving a legitimate aim.”[52]

49 544 US 228 (2005)

50 Texas Department of Housing and Community Affairs v. Inclusive CommunitiesProject Inc, 135 S Ct 2411 [2015], per Kennedy J51 Id. at para 2052 R (on the application of E) v. JFS Governing Body, [2009] UKSC 15, para 57

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A59. The statutory definition of indirect discrimination is engraftedin Section 19[53 ]of the Equality Act, 2010. The definition has 4 salientfeatures. First, it covers provisions, criteria and practices that are appliedin a uniform fashion, to those with and without the ground on whichdiscrimination is alleged. Second, the PCP puts, or would put, personswith whom the claimant shares the relevant ground at a particularBdisadvantage when compared with persons with whom the claimant doesnot share it. Third, the claimant herself would be put, or is put, to suchdisadvantage by the operation of the PCP. Finally, the defendant cannotshow the PCP to be a proportionate means of achieving a legitimateaim.C

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60. An instructive judgment of the UK Supreme Court for us isEssop v. Home Office (UK Border Agency)[54]. At issue was theallegedly disproportionate impact of an exam called the Core SkillsAssessment, to secure public sector employment and promotion in civilservices, on “black and minority ethnic (BME)” and older candidates.DThe 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 thatof those below that age. In each case, there was a 0.1% likelihoodthat this could happen by chance. Of course, they did not all fail.ENo-one knows why the proportion of BME or older candidatesfailing is significantly higher than the proportion of white or youngercandidates failing.”

61. The Court outlined the following salient features of indirectdiscrimination in UK law:

F53 “19. Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterionor practice which is discriminatory in relation to a relevant protected characteristicof B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatoryin 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,G(b)it puts, or would put, persons with whom B shares the characteristic at a particulardisadvantage 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.”H54 [2017] UKSC 27

(i) There is no need for the claimant to show why the PCPAdiscriminates against individuals possessing the relevantground. The fact that the PCP has such a disproportionateimpact is sufficient;

(ii) Direct discrimination requires a causal link between the lessfavourable treatment and the relevant ground. On the otherBhand, indirect discrimination requires a causal link betweenthe PCP and the particular disadvantage suffered by thegroup and the individual. This difference is rooted in thefact that the aim of direct discrimination is to achieve equalityof treatment. On the other hand, indirect discriminationCseeks to create a level playing field, by spotting andeliminating hidden barriers which disproportionately affecta particular group, absent a legally acceptable justification;

(iii) The inability of the relevant group to comply with the PCPcan be ascribed to a variety of ‘context factors’. Thesecan include genetic factors, social understandings, archetypalpresuppositions, etc.; D

(iv) In order for a claim of indirect discrimination to succeed, itis not necessary to show that every single member of thegroup possessing the relevant ground was unable to meetthe PCP. It is enough to show that the PCP disproportionatelydisadvantaged members of the concerned group; E

(v) It is commonplace for indirect discrimination to beestablished on the basis of statistical evidence. Suchevidence is often able to show the causal link that a particularvariable played in arriving at a particular outcome; and F

(vi) Finally, the defendant can always rebut a charge of indirectdiscrimination by showing that there exists a goodjustification for the PCP at issue.

F.4 Position in South Africa

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62. In keeping with the progressive vision of the South AfricanConstitution, Section 9 of the South African Constitution[55 ]prohibits indirectdiscrimination. The judicial exegesis of indirect discrimination can first 55 “9 (1) Everyone is equal before the law and has the right to equal protection andbenefit of the law; H

Abe found in the judgment of the South African Constitutional Court[56] inthe case of City Council of Pretoria v. Walker[57] in which the Courtexpounded on the doctrine in the following terms:

“The concept of indirect discrimination, ... was developed preciselyto deal with situations where discrimination lay disguised behindBapparently neutral criteria or where persons already adversely hitby patterns of historic subordination had their disadvantageentrenched or intensified by the impact of measures not overtlyintended to prejudice them. In many cases, particularly those inwhich indirect discrimination is alleged, the protective purposewould be defeated if the persons complaining of discriminationChad to prove not only that they were unfairly discriminated againstbut also that the unfair discrimination was intentional. This problemwould be particularly acute in cases of indirect discrimination wherethere is almost always some purpose other than a discriminatorypurpose involved in the conduct or action to which objection isDtaken.”

In elaborating on how the impugned provision does not necessarilyhave to make a suspect classification on the grounds of race, the SACCconcluded that differentiation between the treatment of residents of areaswhich were “historically, and overwhelmingly occupied by blackEpersons….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. Ministerof Labour[58], the SACC had to rule on the constitutionality of Section(2) Equality includes the full and equal enjoyment of all rights and freedoms. Topromote the achievement of equality, legislative and other measures designed to protectFor advance persons, or categories of persons, disadvantaged by unfair discriminationmay be taken;

(3) The state may not unfairly discriminate directly or indirectly against anyone on oneor more grounds, including race, gender, sex, pregnancy, marital status, ethnic or socialorigin, 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 orGmore grounds in terms of subsection (3). National legislation must be enacted to preventor prohibit unfair discrimination;

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfairunless it is established that the discrimination is fair.”56 “SACC”

57 (1998) 3 BCLR 257, paras 31-32H58 [2020] ZACC 24

1(xix)(v) of the Compensation for Occupational Injuries andDiseases Act. This provision explicitly excluded domestic workers fromthe definition of employees under the Act. This had the consequence ofdepriving domestic workers access to the social security benefitscontained in the legislation, in the event of injury, disablement and death.The SACC, inter alia, returned a finding that the provision was hit bythe constitutional prohibition on indirect discrimination. This was for thereason that domestic workers are predominantly black women. As aresult, held the Court: “This means discrimination against them constitutesindirect discrimination on the basis of race, sex and gender.”

F.5 Position in Canada

64. In Ontario Human Rights Commission v. Simpsons-Sears[59], the Canadian Supreme Court expounded the doctrine of indirectdiscrimination (what it called adverse effects discrimination), whileentertaining a challenge under Section 4(1)(g) of the Ontario HumanRights Code[60]. In analyzing whether a work policy mandating inflexibleworking hours on Friday evenings and Saturdays indirectly discriminatedagainst the Appellant on the basis of her creed, in that her religion requiredher to strictly observe the Sabbath, the Court noted:

“18. A distinction must be made between what I would describeas direct discrimination and the concept already referred to asadverse effect discrimination in connection with employment.Direct discrimination occurs in this connection where an employeradopts a practice or rule which on its face discriminates on aprohibited ground. For example, “No Catholics or no women orno blacks employed here.” There is, of course, no disagreementin the case at bar that direct discrimination of that nature wouldcontravene the Act. On the other hand, there is the concept ofadverse effect discrimination. It arises where an employer forgenuine business reasons adopts a rule or standard which is on itsface neutral, and which will apply equally to all employees, butwhich has a discriminatory effect upon a prohibited ground onone employee or group of employees in that it imposes, becauseof 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 againstan employee with regards to any term or condition of employment on the basis of race,creed, colour, sex, age etc.

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Aobligations, penalties, or restrictive conditions not imposed on othermembers of the work force. For essentially the same reasonsthat led to the conclusion that an intent to discriminate was notrequired as an element of discrimination contravening the Code Iam of the opinion that this Court may consider adverse effectdiscrimination as described in these reasons a contradiction of theBterms of the Code. An employment rule honestly made for soundeconomic or business reasons, equally applicable to all to whom itis intended to apply, may yet be discriminatory if it affects a personor group of persons differently from others to whom it may apply.From the foregoing I therefore conclude that the appellant showedCa prima facie case of discrimination based on creed before theBoard of Inquiry.”

It was further noted that the aim of the guarantee againstdiscrimination is “not to punish the discriminator, but rather to providerelief for the victims of discrimination. It is the result or the effect of theDaction complained of which is significant.” Thus if the impugned actionhas the effect to “impose on one person or group of persons obligations,penalties, or restrictive conditions not imposed on other members of thecommunity, it is discriminatory.”[61]

65. The principles laid down in Ontario HRC (supra) wereEconsistently applied by the courts in Canada to protect indirectdiscrimination. In a recent judgment in Fraser v. Canada (AttorneyGeneral)[62], the Canadian Supreme Court was called on to determinethe 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 splitFthe duties and responsibilities of one full-time position. A large majorityof the optees for the job-sharing programme were women, who found itburdensome to carry out the responsibilities of work and domestic workand were particularly hit by the new rule as they would lose out onpension benefits. The Court recognized indirect discrimination as a legalGresponse to the fact that discrimination is “frequently a product ofcontinuing to do things the way they have always been done”, as opposedto intentionally discriminatory actions.[63] Pertinently, the Court outlined a 61 Ontario HRC (supra n.60) at para 1262 (“Fraser”), 2020 SCC 28H63 Id. at para 31

2-step test for conducting an indirect discrimination enquiry. First, theCourt has to enquire whether the impugned rule disproportionately affectsa particular group. As an evidentiary matter, this entails a considerationof material that demonstrates that “membership in the claimant group isassociated with certain characteristics that have disadvantaged membersof the group”. However, as such evidence might be hard to come by,reliance can be placed on evidence generated by the claimant groupitself. Further, while statistical evidence can serve as concrete proof ofdisproportionate impact, there is no clear quantitative threshold as to thequantum of disproportionality to be established for a charge of indirectdiscrimination to be brought home. Equally, recognizing the importanceof applying a robust judicial common sense, the Court held: “In somecases, evidence about a group will show such a strong association withcertain 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 ofreinforcing, perpetuating, or exacerbating disadvantage. Suchdisadvantage could be in the shape of: “[e]conomic exclusion ordisadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysicalharms…[or] [p]olitical exclusion”, and must be viewed in light of anysystemic or historical disadvantages faced by the claimant group.”[65]

F.6 Evolving an analytical framework for indirectdiscrimination in India:

66. A study of the above cases and scholarly works gives rise tothe following key learnings. First, the doctrine of indirect discriminationis founded on the compelling insight that discrimination can often be afunction, 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 freezingan unjust status quo. In order to achieve substantive equality prescribedunder the Constitution, indirect discrimination, even sans discriminatoryintent, must be prohibited.

67. Second, and as a related point, the distinction between directand indirect discrimination can broadly be drawn on the basis of theformer 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

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Athat the former cannot be justified, while the latter can (UK). We are ofthe considered view that the intention versus effects distinction is a soundjurisprudential basis on which to distinguish direct from indirectdiscrimination. This is for the reason that the most compelling feature ofindirect discrimination, in our view, is the fact that it prohibits conduct,which though not intended to be discriminatory, has that effect. As theBCanadian Supreme Court put it in Ontario HRC (supra), requiring proofof intention to establish discrimination puts an “insuperable barrier in theway of a complainant seeking a remedy.”[66] It is this barrier that a robustconception of indirect discrimination can enable us to counteract.

68. Third, on the nature of evidence required to prove indirectCdiscrimination, statistical evidence that can establish how the impugnedprovision, criteria or practice is the cause for the disproportionatelydisadvantageous outcome can be one of the ways to establish the playof indirect discrimination. As Professor Sandra Fredman notes, “Aptitudetests, interview and selection processes, and other apparently scientificDand neutral measures might never invite scrutiny unless data is availableto dislodge these assumptions.”[67] Consistent with the Canadian SupremeCourt’s approach in Fraser (supra), we do not think that it would bewise to lay down any quantitative thresholds for the nature of statisticaldisparity that must be established for a claimant to succeed. Equally, wedo not think that an absolutist position can be adopted as to the nature ofEevidence that must be brought forth to succeed in a case of indirectdiscrimination. The absence of any statistical evidence or inability tostatistically demonstrate exclusion cannot be the sole ground for debunkingclaims of indirect discrimination. This was clarified by the EuropeanCourt of Human Rights in a case concerning fifteen Croatians of Roma Forigin claiming racial discrimination and segregation in schools with Roma-only classes. In assessing the claims of the fifteen Croatians, the courtobserved that indirect discrimination can be proved without statisticalevidence[68]. Therefore, statistical evidence demonstrating patterns ofexclusion, can be one of the ways to prove indirect discrimination.

G69. Fourth, insofar as the fashion in which the indirectdiscrimination enquiry must be conducted, we think that the two-stagetest laid down by the Canadian Supreme Court in Fraser (supra) offersa 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. 187H68 Orsus and others v. Croatia, [2010] ECHR 337, para 153

disproportionate impact of the impugned provision, criteria or practiceon the relevant group, as well as the harm caused by such impact. Itforegrounds an examination of the ills that indirect discrimination seeksto remedy.

70. Fifth and finally, while assessing the justifiability of measuresthat are alleged to have the effect of indirect discrimination, the Courtneeds to return a finding on whether the narrow provision, criteria orpractice is necessary for successful job performance. In this regard,some amount of deference to the employer/defendant’s view iswarranted. Equally, the Court must resist the temptation to acceptgeneralizations by defendants under the garb of deference and mustclosely scrutinize the proffered justification. Further, the Court must alsoexamine if it is possible to substitute the measures with less discriminatoryalternatives. Only by exercising such close scrutiny and exhibitingattentiveness to the possibility of alternatives can a Court ensure thatthe full potential of the doctrine of indirect discrimination is realized andnot lost in its application.[69]

F.7 Systemic Discrimination as antithetical to SubstantiveEquality

71. As noted in the analysis above, the emphasis on intent aloneas the key to unlocking discrimination has resulted in several practices,under the veneer of objectivity and “equal” application to all persons, tofall through the cracks of our equality jurisprudence. Indirect discriminationas a tool of jurisprudential analysis, can result in the redressal of severalinequities by probing provisions, criteria or practice that have adisproportionate and adverse impact on members of groups who belongto groups that are constitutionally protected from discrimination underArticle 15(1). However, it needs to be emphasized that a strict emphasison using only one of the two tools (between direct and indirectdiscrimination) to establish and redress discrimination may often resultin patterns and structures of discrimination remaining unaddressed.

72. In order to conceptualize substantive equality, it would beapposite to conduct a systemic analysis of discrimination that combinestools of direct and indirect discrimination. In the words of ProfessorMarie Mercat- Bruns[70]:

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

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A“Systemic discrimination posits the need to conceptualizediscrimination in terms of workplace dynamics rather than solelyin existing terms of an identifiable actor’s isolated state of mind, avictim’s perception of his or her own work environment, or thejob-relatedness of a neutral employment practice with adverseconsequences. Systemic discrimination derives from howBorganizations, as structures discriminate.”

73. A particular discriminatory practice or provision might oftenbe insufficient to expose the entire gamut of discrimination that a particularstructure may perpetuate. Exclusive reliance on tools of direct or indirectdiscrimination may also not effectively account for patterns arising outCof multiple axles of discrimination. Therefore, a systemic view ofdiscrimination, in perceiving discriminatory disadvantage as a continuum,would account for not just unjust action but also inaction[71]. Structures, inthe form of organizations or otherwise, would be probed for the systemsor cultures they produce that influence day-to-day interaction andDdecision-making.[72] The duty of constitutional courts, when confrontedwith such a scheme of things, would not just be to strike down thediscriminatory practices and compensate for the harm hitherto arisingout of them; but also structure adequate reliefs and remedies that facilitatesocial re-distribution by providing for positive entitlements that aim tonegate the scope of future harm.E

74. The Supreme Court of Canada, in Action Travail desFemmes v. Canadian National Railway Company[73] analyzed the claimof woman seeking equal employment opportunities in the NationalRailroad Company. In echoing the mutually reinforcing consequencesof direct and indirect discrimination within organizational structures as aFsystemic feature, the Court noted[74]:

“systemic discrimination in an employment context is discriminationthat results from the simple operation of established proceduresof recruitment, hiring and promotion, none of which is necessarilydesigned to promote discrimination. The discrimination is then Greinforced 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 JOURNALOF EMPLOYMENT AND LABOUR LAW, Vol. 32(2), 2011, 400-454

73 “Canadian National Railway Company”, (1987) 1 S.C.R. 1114

H74 Id.at 1139

because the exclusion fosters the belief, both within and outsidethe group, that the exclusion is a result of “natural forces”, forexample, that women “just can’t do the job”…..To combat systemicdiscrimination, it is essential to create a climate in which bothnegative practices and negative attitudes can be challenged anddiscouraged”

In prescribing remedies against systemic discrimination, the Courtconsciously noted that the remedies do not have to be merelycompensatory, but also prospective in terms of the benefit that is designedto improve the situation in the future. The Court structured the remedyas follows:

“An employment equity program thus is designed to work in threeways. First, by countering the cumulative effects of systemicdiscrimination, such a program renders further discriminationpointless....

Secondly, by placing members of the group that had previouslybeen excluded into the heart of the work place and by allowingthem to prove ability on the job, the employment equity schemeaddresses the attitudinal problem of stereotyping....

Thirdly, an employment equity program helps to create what hasbeen termed a “critical mass” of the previously excluded group inthe work place. This “critical mass” has important effects. Thepresence of a significant number of individuals from a targetedgroup eliminates the problems of “tokenism”[75].

This framework provided in Canadian National RailwayCompany (supra) was followed by the Human Rights Tribunal ofCanada, in the case of National Capital Alliance on Race Relationsv. Canada (Health and Welfare)[76], wherein the Court had to examinea case against the Health and Welfare Department of Canada fordiscriminating against visible minorities by establishing employmentpolicies and practices that deprive visible minorities (race, colour andethnic origin) of employment opportunities in senior management. TheCourt conducted a holistic analysis of the organization by collatingtestimonies of workers in the organization and by engaging experts onstatistical 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)

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75. In the United States, the Supreme Court analysed a Title VIIclaim of workers (represented by the Government) in a trucking companyalleging pattern and practice of employment discrimination againstC“Negroes and Spanish-surnamed Americans” by failing to place themequally with whites in long-distance, line-driver positions[77]. The Courtnoted certain legal principles that could govern a claim of systemicdisparate treatment and used a mixture of statistical patterns with workertestimonies to arrive at a conclusion of systemic discrimination:

D“Consideration of the question whether the company engaged ina pattern or practice of discriminatory hiring practices involvescontrolling legal principles that are relatively clear. TheGovernment’s theory of discrimination was simply that thecompany, in violation of s 703(a) of Title VII, 14 regularly andEpurposefully treated Negroes and Spanish-surnamed Americansless favorably than white persons.…The ultimate factual issuesare thus simply whether there was a pattern or practice of suchdisparate treatment and, if so, whether the differences were“racially premised.” …

As the plaintiff, the Government bore the initial burden ofFmaking out a prima facie case of discrimination. AlbemarlePaper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45L.Ed.2d 280; McDonnell Douglas Corp. v. Green, supra, 411 U.S.,at 802, 93 S.Ct., at 1824.And, because it alleged a systemwidepattern or practice of resistance to the full enjoyment ofTitle VII rights, the Government ultimately had to proveGmore than the mere occurrence of isolated or “accidental”or sporadic discriminatory acts. It had to establish by apreponderance of the evidence that racial discrimination

was the company’s standard operating procedure theregular rather than the unusual practice….

The Government bolstered its statistical evidence with the testimonyof individuals who recounted over 40 specific instances ofdiscrimination. Upon the basis of this testimony the District Courtfound that “(n)umerous qualified black and Spanish-surnamedAmerican applicants who sought line driving jobs at the companyover the years, either had their requests ignored, were given falseor misleading information about requirements, opportunities, andapplication procedures, or were not considered and hired on thesame basis that whites were considered and hired.” Minorityemployees who wanted to transfer to line-driver jobs met withsimilar difficulties. The company’s principal response to thisevidence is that statistics can never in and of themselves provethe existence of a pattern or practice of discrimination, or evenestablish a prima facie case shifting to the employer the burden ofrebutting the inference raised by the figures. But, as even ourbrief summary of the evidence shows, this was not a case inwhich the Government relied on “statistics alone.” Theindividuals who testified about their personal experienceswith the company brought the cold numbers convincinglyto life.”[78]

(emphasis supplied)

Therefore, once a petitioner could establish a prima facie caseof discrimination that did not occur as accidental or sporadic instancesof conduct, it could prove its case using statistical evidence, witnesstestimonies and other qualitative methods to establish a preponderanceof systemic discrimination.

76. In 1997, in the United Kingdom, Sir William Macpherson, aretired High Court judge, was commissioned to study institutional racismin the police force. This study was situated in the backdrop of the lacunaein the investigation of a murder of Stephen Lawrence, a Black Britishteenager. The findings, publicized as the “Macpherson Report” on 24February 1999[79] 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 ofCluny (February 1999) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf#page=375

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Aby incompetence and institutional racism. The report studied prejudiceswithin officers which fed into an institutional culture as follows:

“6.34….The collective failure of an organisation to provide anappropriate and professional service to people because of theircolour, culture, or ethnic origin. It can be seen or detected inBprocesses, attitudes and behaviour which amount to discriminationthrough unwitting prejudice, ignorance, thoughtlessness and raciststereotyping which disadvantage minority ethnic people.It persistsbecause of the failure of the organisation openly and adequatelyto recognise and address its existence and causes by policy,example and leadership. Without recognition and action to eliminateCsuch racism it can prevail as part of the ethos or culture of theorganisation. It is a corrosive disease.”

77. Therefore, an analysis of discrimination, with a view towardsits systemic manifestations (direct and indirect), would be best suited forachieving our constitutional vision of equality and antidiscrimination.DSystemic discrimination on account of gender at the workplace wouldthen encapsulate the patriarchal disadvantage that permeates all aspectsof her being from the outset, including reproduction, sexuality and privatechoices which operate within an unjust structure. In propounding thisanalysis, this Court is conscious of the practical limitations of everyEframework to understanding workforces, considering the bulk of litigationagainst systemic discrimination, would be from members of an organizedand formal workforce who would have the wherewithal and evidenceof patterns or practices to bolster their claims. For the laboring class inIndia, which is predominantly constituted by members facing multipleaxels of marginalization, litigating their right to work with equality andFdignity may be a distant dream. However, it is our earnest hope, that avision of systemic discrimination, would aid members of even informalworkforces who, in addition to battling precarity at their places of work,will be able to assert a right to equality and dignity. A framework thatwould situate their discrimination, against systemic societal patterns ofGdiscrimination that are constituted and compounded by social andeconomic structures, would help in addressing several fractures that arecontributing to inequality in our society.

78. In the dispute at hand, this Court is tasked with a duty toanalyse the implementation of its earlier directions in Babita PuniyaH

(supra) that struck down a directly discriminatory practice of excludingWSSCOs from PC. The petitioners’ claim of further discrimination inimplementation, will have to be analyzed from the framework of systemicdiscrimination (which encompasses indirect discrimination), to determinea constitutional violation. In examining a retroactive grant of PC, a studyof the systemic impact of the prolonged denial of PC to women and theevaluation structures and patterns therein, would be indispensable.

G Analysis

79. The fundamental issue is whether the procedure which wasfollowed in evaluating the women SSCOs comports with the requirementsof law. In arriving at this determination, we will primarily be guided bythe Army Orders, Army Instructions and policy letters of the UnionGovernment which have been set out above and will be further explainedbelow. At this stage, it needs to be emphasized that the issue as regardsthe applicability of the SHAPE-1 criteria will not be taken up in the firstpart of the analysis and will be dealt with independently in a subsequentpart of this judgment. With this clarification, we proceed to outline theinterplay 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 toserving SSCOs while making SSCOs eligible to apply forPC. This was inter alia subject to the conditions of eligibilityspelt 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 prescribedby officers seeking PCs in the Corps of Engineers,Signals and EME. The Army instruction provided forinterviews by a Service Selection Board. All officerswho have been found suitable for the grant of PCwould be placed in a panel and the final decision wouldrest with the government. Para 8b stipulated that thegrant of PCs would depend upon the vacancies A

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existing in the arms or services and the suitability ofofficers. The form of application at Appendix-A tothe Army Instruction inter alia stipulated therequirement of the applicant being recommended bythe Commanding Officer and the BrigadeCommander;

(ii) On 30 September 1983, the criteria for the grant of PC toSSCOs were formulated. The criteria envisaged that theSelection Board will assess each officer’s performance onthe basis of a computerized MDS. While the computerizedevaluation would receive 80 per cent weightage, 20 percent weightage would be given to the assessment of themembers of the Selection Board. The Selection Board wasalso 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 ofPerformance (QAP), 6 for honours and awards, 10 forperformance in courses and 4 for strong points. A candidatewho was recommended for PC by the reporting officer inthe ACR would get a ‘0’ mark for “Yes” and ‘minus 2’marks for “No”. Minus marks were also be given for weakpoints.

(iii) On 24 February 2012, a policy letter was issued by theMoD to amend the weightage attributed to the computerisedevaluation. This policy currently holds the field. Thecomputerized evaluation was enhanced from 80 per cent to95 per cent and the subjective evaluation of the membersof the Selection Board No 5 was brought down from 20 to5 per cent. The weightage of 95 per cent assigned tocomputer evaluation was distributed amongst QAP (75

marks), honours and awards (5 marks), sports and games(5 marks) and performance and courses (10 marks). Therecommendation of the reporting officer in the ACR forgrant of PC would carry ‘0’ mark, while a negativerecommendation carries minus ‘2’ marks. It was envisagedthat the marks quantified for overall performance would beobtained by cumulating the value judgment marks to thecomputerized evaluation. The marks so obtained would beused to draw out the overall merit of the officer. Theminimum cut-off grade for SSCOs including women officerswould be 60 per cent which could be reviewed every 2years;

(iv) AO 18/1988 contained provisions in regard to “system forselection for grant of permanent commission of SSCOs”.Under para 8 of the AO it was envisaged that the first 50per cent of officers screened by the Selection Board in theorder of merit would be granted PC, the next 35 per centwould be granted extensions for another five years whilethe remaining 15 per cent officers would be released oncompeting the contractual period of five years’ service. Para2 of the AO 18/1988, in other words, made it abundantlyclear that while at one end of the spectrum 50 per cent ofthe officers in order of merit would be conferred with PC,at the other end of the spectrum only 15 per cent would bereleased on completing the contractual term. Between thesetwo ends were officers (35 per cent) who were granted anextension of five years. AO 18/1988 specified in para 4,the constitution of the Selection Board which was to assessperformance strictly in accordance with the laid downcriteria. Under para 6 gradings were required to be assignedto the officers on whether or not they were recommendedfor PC or for extension or, in the alternative, to be deferred.Para 7 envisaged that the computer evaluation andassessment by members of the selection board would bebased on ACRs, honours and awards, performance incourses, recommendations for PC, disciplinary awards andstrong and weak points. A minimum of three ACRs were AB

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required as essential to consider the case of an officer forPC. Moreover, the AO stipulated in paragraph 13 that“officers are assessed on the merits of their serviceperformance as reflected in the ACRs and not by the reportsfiled in the CR dossier”. Further, while evaluating the ACRs,the possibility of subjective/inflated reporting and fluctuationin performance of officers were taken note of by, interalia, stipulating that the last ACR before assessment forPC would be taken into consideration. The Army Orderalso clarified in para 13(e) that the low medical category ofthe officers would not influence the assessment as it is anadministrative restriction and not a criteria for assessment.Moreover, para 21 spelt out the medical requirements (tobe considered subsequently in this judgment). Para 23stipulated that those who are not selected for PC but areotherwise fit and suitable would be granted an extension offive years beyond the initial term of five years on the expiryof which they would be released from the Army. This ishow the SSC engagement (at that time) came to bedescribed as an engagement for 5+5 years. Persons in thePMLC who could not be granted PC would be allowed tocontinue in service for a full extended tenure of 5 yearsbeyond the initial tenure of 5 years (Para 26). Moreover,under para 34, it was stipulated that SSCOs would bescreened only once in the 5[th] year of service by a selectionboard for PC. However, in certain circumstances, a specialreview for the grant of PC was envisaged;

(v) On 15 January 1991, MoD issued a policy letter cappingthe number of vacancies per year for PC at 250. Theminimum acceptable cut-off grade for the grant of PC toSSCOs is 60 per cent which would be reviewed every twoyears. In the event that more officers, in excess of the ceilingof 250 fulfill the cut - off grade of 60 per cent, the requisitenumber of 250 officers would be granted PC in competitivemerit. All officers, irrespective of the grant of PC, wouldbe given an extension of 5 years, unless they opt out or areconsidered unfit for retention; and

(vi) MoD’s Policy Letters dated 20 July 2006 provided thatSSCOs both in the technical and non-technical branch wouldhave a tenure of 14 years – the initial 10 years, extendableby 4 years. Moreover, serving WSES officers were givenan option to seek SSC within a period of six months.

80. Now, in the backdrop of the above analysis it becomesnecessary to evaluate themethodology which has been followed whileconsidering 615 women SSCOs across several batches for the belatedgrant 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 assessmentcriteria provided in the General Instructions dated 1 August 2020 is thebench-marking of the marks awarded to WSSCOs with the lowest placedmale officer of the corresponding batch. In the course of his submissions,the ASG has argued that “there is a considerable rationale in assessingthe women officers on the basis of their first 5/10 years of service (asthe case may be) and keeping the above benchmark [that is, for bench-marking them with the lowest selected male officer of the correspondingbatch]”. The rationale which the ASG put forth can be summarized asfollows:

(i) The cut-off of 60 per cent marks is only a criterion ofeligibility for considering officers for the grant of PC. Thisis a minimum cut-off grade applicable both to men andwomen officers. Securing 60 per cent in itself, which is athreshold criteria, does not automatically entitle an officerto the grant of PC;

(ii) Since 1991, an upper ceiling of 250 vacancies per year forPC was prescribed. The number of candidates above the60 per cent cut-off, amongst whom the selection for PCwould be made, will fluctuate from year to year and hence“the marks of the 250[th] candidate automatically becomes abenchmark”;

(iii) In the present case, while implementing the judgment ofthis Court in Babita Puniya (supra) dated 17 February 2020, A

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722SUPREME COURT REPORTS

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the upper limit of 250 vacancies was dispensed with forwomen officers in order to ensure that no WSSCO who isfound eligible on merits and qualified in terms of the medicalcriterion is denied PC for want of vacancy;

(iv) The decision in Babita Puniya (supra) required the ArmyBauthorities to offer PC to the WSSCOs at par with theirmale counterparts. AO 18/1988 had initially stipulated that50 per cent of the officers falling in the order of merit wouldbe granted PC, 35 per cent would be granted an extensionof 5 years and 15 per cent would be released on completingCthe contractual period of 5 years of service. This governedthe earlier regime of SSCOs under which SSCOs wererecruited for 5 years and were granted an extension of 5years. This regime was modified in 2004 when a secondextension option up to four years was introduced making it5+5+4. In 2006, the above regime was revised by the PolicyDLetter dated 20 July 2006 by MoD, the effect of whichwas that the SSC regime of 5+5+4 was substituted by aregime of 10+4;

(v) The policy decision of MoD dated 15 January 1991 indicatedEa cap of 250 SSCOs for the annual grant of PC; a minimumcut-off grade of 60 per cent, and in case more than thespecified number of officers make the grade, only 250 wouldbe granted PC on competitive merit;

(vi) Even for male officers, the statistics pertaining to 32 batchesFwould indicate that 67.86 per cent were granted PC andhence there is no discrimination against women SSCOs;and

(vii) In the absence of an upper ceiling of vacancies, the fieldwould be left open for any number of WSSCOs to get PC.GTo avoid this, a benchmark had to be fixed. The need forfixing a benchmark is indisputable though any benchmarkhas to satisfy the test of being rational and of not beingarbitrary. If two views are possible, the view which hasbeen adopted by the Army authorities must be givenHpreference. Benchmarking the aspirant WSSCOs with the

lowest of their male counterparts on merit is an objectivecriterion.

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82. The fundamental postulate in the submissions of the ASG isthat since there is a cut-off of 250 vacancies per year for the grant ofPC to SSCOs and a minimum of 60 per cent is fixed as the cut-off gradeby the Policy Letter dated 15 January 1991 of the MoD, the evaluationof competitive merit is necessary. Though, the WSSCOs in the presentcase were not subjected to any ceiling of vacancies as a one-time measure,benchmarking (in the submission) became necessary to place them atpar with their male counterparts.

83. There is a fundamental fallacy in the entire line of reasoningwhich has been advanced by the Army authorities both in the counteraffidavit as well as in the written submissions of the ASG. The PolicyLetter dated 15 January 1991 indicates that B

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(i) A maximum of 250 SSCOs will be granted PC annually;

(ii) A minimum cut-off grade 60 per cent is fixed, which isreviewable every two years; D

(iii) In case more than 250 officers fulfill the cut-off grade of60 per cent, only 250 would be granted PC on competitiveEmerit; and

(iv) Other than non-optees and those unfit for retention, all otherswould be granted an extension of 5 years.

84. The clear intent of the policy letter is that the issue of applyingcompetitive merit arises only if more than 250 officers fulfill the cut-offgrade annually. If the number of officers who achieved the 60 per centcut-off is less than 250, then evidently there is no requirement of assessinginter se competitive merit among the officers who meet the minimumthreshold.

85. In the present case, there are a total of 615 women officersfor consideration, across several batches. As many as 32 batches wereunder consideration. Annexure WR-6 to the written submissions of theUnion of India carries the details of PC granted to male officers. Thetable is extracted below:

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86. The above table has been filed by the ASG as a part of hissubmissions, to counter the contention of the women officers that whereasmost male officers have been granted PC, the number of women officersis abysmally low. The above chart provides for

(i) The number of male officers passing out;

(ii) The number of male officers granted PC; and

(iii) The percentage of those granted PC under (ii) as aproportion of the officers passing out in (i).

87. The chart, however, suppresses an important feature which isthe number of officers who had not opted for being considered for PC(described in the parlance as ‘non-optees”). In other words, thepercentage of male officers granted PC has been computed in the chartwithout disclosing the factual details of the number of male officers whohad not opted for PC. Only when the number of “optees” is consideredagainst the “non-optees”, can the percentage of male officers who weresuccessfully granted PC be accurately determined. This is a significantomission on the part of the Army authorities from which an adverseinterference must be drawn. However there is another and morefundamental aspect which emerges from the disclosure which has beenmade in the above chart by the Army authorities. The chart indicates thenumber of officers who were granted PC during the course of theselections which took place twice every year. A close reading of thedata would show that in a number of years, the male officers who weregranted PC was far lower than the ceiling of 250 vacancies prescribedby the policy letter of the MoD dated 15 January 1991. The table below,which is prepared on the basis of the above chart of the Union of India,computes the number of male officers granted PC between 1994 and2010:

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F88. The statistics which have been advanced by the Armyauthorities disclose two things. Firstly, in a number of years between1994 and 2010, the ceiling limit of 250 had not been crossed. If theceiling limit of 250 had not been crossed, the justification which has beenoffered for benchmarking women officers against the lowest maleGofficers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitionersin regard to the disparity in the percentage of male and female officersgranted PC, the statistics which have been placed on the record,completely demolish the case for benchmarking. It is also necessary tounderstand is that in many years the ceiling of 250 officers was not metH

and the number of officers that were granted PC were below 250, thequestion of evaluating officers on the basis of inter se competitive meritdid not arise. This leads us to the second important aspect, which is, thatin certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007,the ceiling of 250 was crossed for the male officers. This again beliesthe claim that benchmarking is crucial to maintain the integrity ofcompetitive merit for grant of PC, as envisaged by the Policy Letterdated 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 notbeen applied as a rigid norm.

89. Bearing this in mind, we note the submission of the ASG thatfor the present year, while implementing the judgment of this Court inBabita Puniya (supra) the ceiling of 250 vacancies was not applied asa one-time measure. This further demolishes the so-called rationale forbenchmarking which has been offered by the ASG. For the above reason,there can be no manner of doubt whatsoever that the attempt to applythe benchmark of the lowest selected male officer is a ruse to deviatefrom the judgment of the Court and to bypass the legitimate claim of theWSSCOs. This benchmarking becomes particularly problematic, whencoupled with the manner in which the reliance on ACRs was made.

G. 3 Reliance on Annual Confidential Reports

90. The next aspect which needs to be analysed is the grievanceof the women officers on the reliance placed on their ACRs fordetermining the grant of PC. The WSSCOs claim that when their ACRswere being written, women who had been appointed on SSC were notentitled to PC and hence their ACRs were written in a casual manner.Now, the narration of the Army Orders and instructions adverted toearlier, demonstrates that the recommendation of the Commanding Officerand the Brigade Commander was necessary for evaluating an officerfor the grant of PC. This was reiterated in MoD’s Policy Letter dated30 September 1983, AO 18 /1988 and MoD’s Policy Letter dated 24February 2012. The MoD Policy Letter dated 24 February 2012, forinstance, clearly specifies the requirement that in every ACR, where theofficer has been recommended for PC by the reporting officer, he willbe awarded ‘0’ mark, and where he has not been recommended for PC,he will be awarded minus 2 marks. Now, it is an indisputable positionthat since WSSCOs were not entitled to the grant of PC, this part of theACRs was invariably left blank.

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A91. In this context, Army Order 45 of 2001[80] dated 31 December2001 inter alia stipulated in para 124 that “communicating the relevantportions of the assessment by first level of reporting officers, is one ofthe basic principles for achieving objectivity in the system of reporting”.Para 125(c) specifically stipulated that “when ratee is Not Recommendedfor Promotion or Not Recommended for Permanent Regular Commission/BExtension for Short Service Commissioned Officers”, even then theassessment by the second or higher-level rank officer must be disclosed.The reasons and justification were to be communicated along with thepen picture to the officer reported upon. On the other hand, it has beenaccepted by the Army authorities that the ACRs of the WSSCOs on theCaspect of the recommendation for PC were left blank for the simplereason that these officers were not being considered for the grant ofPC. As a matter of fact, even as late as 23 October 2020, a communicationhas been addressed by the Secretary Military Branch, IntegratedHeadquarters of MoD (Army) in the following terms:

D“A/17151/5/MS 4 CR PolicyHQ

23 Oct 2020

Southern Comd (MS)

Eastern Comd (MS)EWestern Comd (MS)

Central Comd (MS)

Northern Comd (MS)

ARTRAC (MS)FSouth Western Comd (MS)

SFC (MS)

IDS (MS & SD)

ANC (MS)GENDORSEMENT OF RECOMMENDATION FOR

PERMT COMMISSION IN CRs FOR WOMEN OFFRS

1. As per instrs issued vide ADG PS/ AG’s Br Letter No PC32313/PC to Women offr/Admn Instrs/AG/ PS-2(a) dt 30

H80 AO 45/2001/MS- Confidential Reports on Officers

Jul 20, women offrs of the IA will hereinafter be consideredfor permt commission in all Arms/services. The samenecessitates endorsement of specific recoms (Yes/ No)wrt grant of permt commission by Reporting Offrs inCRs of women offrs. It has however been obs thatReporting offrs are still erroneously endorsing ‘NA’ in theCR coln related to the same.

2. Above in view, in accordance with instrs above, it is clarifiedthat Reporting Offrs will mandatorily endorse either‘YES’ or ‘NO’ in the coln of “Recommendation for PermtCommission” in CRs of all women offrs.

3. The above may pl be disseminated to all concerned forcompliance.”

This indicates that as recently as in October 2020, the sameproblem of the ACRs of WSSCOs not being endorsed with therecommendation continued to persist. The ASG submitted that thisstructural problem was corrected by treating all the WSSCOs in thepresent batch of 615 officers to be recommended for the grant of PC.However, the issue is not confined merely to WSSCOs not beingrecommended for PC in their ACRs, but instead relates to the broaderaspect which permeated the whole process of ACR writing for women.

92. WSSCOs, unlike their male counterparts, were not eligible forbeing considered PC in the 5[th] / 10[th] year of their service. The grievanceis that the reporting officers treated these WSSCOs differently whilewriting their ACRs as compared to their male counterparts who wereeligible for the grant of PC. For instance, a document titled “ReadyReckoner for Initiating/Reviewing/Endorsing the Confidential Reports,Unit Assessment Cards and Non Initiation Reports”[81] states that in thecase of women special entry officers, a recommendation for extensionis mandatory. Evidently WSSCOs were being treated differently for thereason that they were not eligible for the grant of PC. Following thedecision of this Court in Babita Puniya (supra), a study group wasconstituted by the Integrated Headquarters of MoD (Army) on 2 March 81 Ref MS Br Letter No A/17151/MS 4 (Coord) dated 20 February 2004, provided that:“(o) In case of Short Service Commissioned Officers, recommendations for ‘PRC/Extension’ are mandatory. In case of Women Special Entry Scheme Officers,recommendation for ‘Extension’ is mandatory. Reasons for ‘Not Recommended’ shouldbe communicated to the Ratee.”

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A2020 to carry out a “Holistic Appraisal of Induction and Employment ofWomen Officers in Indian Army”[82]. In this context, the communicationdated 2 March 2020, has taken note of the fact that career progressionfor women officers in terms of their being assigned for Army coursesand posting exposure was limited as a result of an option for PC notbeing available. Noting this anomaly, the document records:B

“11. Career Progression. The ‘in service’ career progressionof WOs in terms of detailment for Army courses and postingexposures etc is presently limited keeping in view that option forPC and further career prog was NA. The same will now need tobe aligned to male offrs so as to place them on equal footing toCcompete for Nos 5, No 3 and other SBs. The Study Gp would berequired to delve upon this issue in details and may also reviewthe list of male courses applicable for WOs.”

The above communication which has been issued by Lt. GeneralSK Saini, Vice Chief of Army Staff states that it has the approval of theDCOAS. The observation in the communication in regard to the limitedposting opportunities which were available to women officers is borneout by an earlier communication[83] dated 30 December 2003 of the MilitarySecretary Branch, Army Headquarters which records that the postingof women officers in “soft field and peace stations is affecting the postingEprofile of their male counterparts”. Consequently, specific directions wereissued for the posting of women officers at appointments in peace regionsas well as in formations in the field.

93. The above factors must be coupled with the followingcircumstances, which must be borne in mind while considering theFremedial steps necessary to rectify the discrimination which has beensuffered by the WSSCOs:

(i) The number of vacancies which were available for the grantof PCs in the batches for which the WSSCOs were beingconsidered over the years has not been disclosed whileprocessing the claims for the grant of PC. As noted earlier,Gin many cases, the upper ceiling of 250 officers to begranted PC was not met and in some years, this limit wasbreached. If, as suggested by the tabulated statementproduced by the ASG in the written submissions, vacancies 82 Ref Letter No B/32313/Road Map/AG/PS-2(a) dated 2 March 2020H83 Ref Letter No 04520/MS Policy dated 30 December 2003

were available, the criteria of meeting the benchmarking ofthe lowest male selected officer is evidently irrational andarbitrary. This rationale, while touted as a manner ofincluding competitive merit, was ignorant of the structuraldiscrimination that was faced by women officers whoseACRs were casually graded, even when compared to theleast meritorious male officer in their corresponding batch;

(ii) In the case of male officers, the process of conducting theSpecial No. 5 Selection Board for considering the grant ofPC is initiated by issuing an order declaring the date of theBoard in advance so that the preceding three ACRs can betaken into consideration to assess the performance of theofficer for the grant of PC. An officer has the option toseek remedial measures before the redressal mechanismto espouse any adverse entry in the ACR. This process hasnot been followed in the case of the WSSCOs before theSpecial No. 5 Selection Board was conducted. As anillustration for this, the petitioners have relied on acommunication dated 17 January 2020 of the IntegratedHeadquarters of MoD (Army) which specifically states asfollows:

“Initiation and Despatch of CRs

14 The cut off CR for consideration by No 5 SB is 31Oct 2019 vide AO 4512001/MS as amended CO/OCwill ensure that CR for the year 2018-19 is forwarded intime in the correct format, vide AO 45/2001/MS asamended, and should reach MS Branch (respective CRlibrary) within specified time Intermediate formation HQsshould ensure that the CRs/Spl CR is initiated/endorsedfor timely submission Also ensure Spl CR (if initiated)reaches concerned CR Library on or before 31 Mar2020"

(iii) In the counter affidavit which has been filed by the Col.Military Secretary (Legal) it has been specifically admittedthat:

“15…it is submitted that women officers wereconsidered by No 5 SB in 5[th] and or 10[th] year forextension of service only. The criteria of medical ABC

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fitness for grant of permanent commission and grant ofExtension of service are entirely different. No SSCofficer has ever been denied extension of service due tomedical reasons. Therefore, the contention that sincethe petitioners were found medically fit at 5[th] or 10[th]year of service, as the case may be, when they wereconsidered for extension of service, they should be nowconsidered as fit for grant of permanent commission,are baseless.” (emphasis supplied)

Women officers were considered by Special No. 5 SelectionBoard in their 5[th] and/or 10[th] year of service for extensionof service only. In other words, Selection Board 5 was forextension and PC, but the women officers were grantedonly extensions because the option of PC was not available;

(iv) The ratio between the marks assigned to computerevaluation and the value judgment marks assigned by themembers of the Board was initially pegged at 80:20 as on30 September 1983. This came to be altered on 24 February2012 by MoD’s Policy Letter to 95:5. In the writtensubmissions tendered by the ASG it has been argued that :

“21. As per Annexure R-5 (page 122-132) [MoD PolicyLetter dated 30 September 1983], the quantified profilemarks are to be given out of 80, while the marks forvalue-judgment are to be given out of 20. Juxtaposed,as per Annexure R-6 (page 133-144) [MoD Policy Letterdated 24 February 2012], the same are to be given inthe ratio of 95:05 (Please see page 134). Dependingupon their batch, the petitioners and other similarlyplaced women SSC officers were assessed eitherunder Annexure R-5 or under Annexure R-6, aswas done in the case of their male counterparts aswell.” (emphasis supplied)

The above submission indicates that while with effect from30 September 1983, the value judgment marks were gradedout of 20, it was subsequently brought down to 5 marks on24 December 2012. The above extract indicates that thepetitioners and other similarly situated WSSCOs wereassessed either under the 30 September 1983 norm or as

the case may be the 24 February 2012 norm, depending ontheir batch. The inherent lack of fairness is evident fromthe fact that the value judgment marks which were assessedfor their male counterparts were by a different SpecialBoard 5 in distinction to the Special Board which consideredthe case of the WSSCOs. There is a subjectivity inherentin value judgment marks which is the reason for bringingthem down from 20 to 5. The issue is exacerbated in thecase of the WSSCOs involved in the present case becausethe marks for value judgment have been assigned by acompletely distinct Board;

(v) It has been admitted in the counter-affidavit that theconfidential reports, discipline and vigilance reports if any,and honours and awards as on the 5th or 10th years of servicewere considered in the case of the women officers. As aconsequence of this, the qualifications, achievements andperformance of women officers after the 5[th] or 10[th] year ofservice (as the case may be) have been ignored. At thisstage, it is necessary to note that para 13(b) of AO 18/1988specifically contemplates the “last ACR before assessmentfor PC” being taken into reckoning for grant of PC. SimilarlyMoD’s Policy Letter dated 24 February 2012 specificallycontemplates that in evaluating the overall performance ofthe officer, “the average will be worked out for each yearas well as for the entire period of officers’ services”. Para4(a) stipulates thus:

“(a) QAP: Overall performance of the officer isevaluated by taking the average of figurative assessmentof all reporting officers other than FTO and HTO.Average will be worked out for each year as wellas for the entire period of officers service. The latterQAP will be converted into a proportion of 75 marks.”

(emphasis supplied)

In spite of the above clear stipulations, it is now an admittedposition that the distinguished record of the WSSCOs beyondthe 5[th]/10[th]year of service has been disregarded. The laurelsachieved by them in the service of the nation after the 5[th]/10[th] year of service have been ignored; A

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734SUPREME COURT REPORTS

A(vi)It has been submitted on affidavit that even women officerswho have been awarded the prestigious commendation cardfrom the COAS have been denied PC. As an example ithas been stated that Lt. Col. Shikha Yadav (as well asseveral other women officers) have been denied PC thoughthey have been awarded the COAS commendation. Lt. Col.BTashi Thapliyal was awarded the Vishisht Seva Mandal.Several women officers who have served in UN Missionsoverseas have been denied PC. There are women officerswho have excelled in national sports events, exemplified byMajor Pallavi Sharma who has a proven track record interalia in shooting championships which has been ignored[84]; C

(vii) In IA 12148 of 2020 in Writ Petition (C) 1172 of 2020 (Lt.Col. Sonia Anand v. Union of India), a detailed charthas been annexed indicating illustrations of women achieverswho have been denied PC. At the cost of enlarging the sizeof this judgment, it becomes necessary to highlight thetabulated statement. The facts which have been set-forthDbefore the Court have not been denied during the course ofthe submissions of the ASG :

“Illustrations: Women Officer Achievers who have been deniedPermanent Commission.

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84 We cite these examples only to reflect the outstanding nature of the service of WSSCOs.We do so in full recognition of the fact that that these instances merely constitute aHdrop in the ocean of the contribution of women officers in the Armed Forces.

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(viii) Of the above officers, it is necessary to emphasize inparticular Lt. Col. Navneet Lobana (serial No XIV above).Lt. Col. Lobana is presently pursuing an M.Tech degreecourse for which she has been depued by the Army from30 July 2020. Following the decision not to grant a PC toHher, the officer has been asked to refund the cost of the

course which is approximately between Rs. 8.5 to 10 lacs.Applications for selection of officers for a Master ofTechnology in Structures at the College of MilitaryEngineering were invited by the Training Branch, E-i-C’sBranch of Integrated Headquarters of MoD (Army), by acommunication dated 28 November 2019. Based on aqualitative requirement criterion, the applications wereshortlisted and a list of officers eligible for the interviewwas published on 20 April 2020. Lt. Col. Lobana wasinterviewed by a panel of DRDO Scientists at the Collegeof Military Engineering, a Board of Officers headed byBrigadier rank officers and member officers from MSBranch 12 (Military Secretary Branch of Corps ofEngineers) and Training Branch from E-in-C’s Branch. Theofficer was finally detailed on 10 July 2020 and has givenan undertaking to continue to serve the Army for a minimumperiod of five years. Following her selection for the course,Lt. Col. Lobana moved from her posting at Patiala andreported to the College of Military Engineering, Pune andthe course commenced on 30 July 2020. She is the onlywoman officer who has qualified in 2020 for an M.Tech inthe Indian Army. She has been denied PC and has beenasked to refund the cost of the course. The issue of medicalfitness is not being considered here since it will be dealtwith later.

94. The above analysis leads to the conclusion that the process bywhich WSSCOs, were evaluated for the grant of PC was by a belatedapplication of a general policy that did not redress the harms of gendereddiscrimination that were identified by this Court in Babita Puniya (supra).Additionally, its belated and formal application causes an effect of indirectdiscrimination. The petitioners submitted that Special No. 5 SelectionBoard appears to have been more a Board for rejection of candidates,than for selection. Some of the finest women officers who have servedthe Indian Army and brought distinction by their performance andachievements have been excluded by refusing to consider theirachievements on the specious ground that these were after the 5[th]/10[th]year of service. They have been asked to benchmark with the last malecounterparts from the corresponding batches. The benchmarking criterionplainly ignores that in terms of the MoD Policy Letter dated 15 January ABC

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A1991 a cut-off of 60 per cent was prescribed and a cap of 250 officerswho would be granted PC annually was laid down. Competitive meritwas required to be assessed only where the number of eligible officersexceeds the ceiling of 250. As the figures which have been disclosed bythe Union of India indicate, for the period from 1994-2010, there wereyears when the ceiling of 250 officers had not been reached. Then thereBare other years where the total number of male officers granted PCwas well in excess of 250. For years during which the ceiling of 250 hadnot been reached, there is absolutely no justification to exclude theWSSCOs who had fulfilled the cut-off grade on the basis of thebenchmarking criteria. Moreover, it is evident that the ceiling of 250 wasCnot regarded as an absolute or rigid criterion as already indicated in theearlier part of this judgment.

95. The evaluation process which has been followed in the caseof the WSSCOs has clearly ignored that the writing of their ACRs wasfundamentally influenced by the circumstance that at the relevant timeDan option of PC was not available for women. Even as late as October2020, the authorities have emphasized the need to duly fill in arecommendation on whether or not WSSCOs should be granted PC.The manner of allocating 20 marks or 5 marks as the case may be, in thesubjective assessment has been found to be flawed since malecounterparts of the WSSCOs were assessed by an entirely distinct SpecialENo. 5 Selection Board. To make a comparison in regard to the award ofsubjective marks ranging between 5 and 20 by different sets of boardswould be completely unfair and arbitrary. It does not fulfill the avowedpurpose of benchmarking which was to compare like with like.

96. In addition to this, an argument on systemic flaws has beenFadvanced by the petitioners that they were not given career enhancementopportunities available to their male counterparts, such as participatingin performance courses, and in cases where they did participate in suchcourses, it was not given due reflection in their ACRs. The ASG in hiswritten submissions has stated that this argument is incorrect and thatGwomen officers have done mandatory courses. The only difference, hestates, lies in the fact that certain male officers had done additional non-mandatory courses, which would not give any extra advantage as themarks were given only on an average basis. We do not find merit in thesubmissions of the ASG. While it may be the case that in some instanceswomen officers were given the opportunity to undertake additionalH

courses to enhance their performance, we must also be alive to theother end of the spectrum which is that, at no point during their servicewere women officers incentivized to take such performanceenhancement courses as they were never eligible for grant of PC then.It may have been the case that for extension of their service suchperformance enhancing measures were not critical. Even if we take theargument of the ASG at its highest and concede that these additionalcourses would not make any difference since the marks were given onan average, it is still possible that these courses could have impacted thevalue judgment or the subjective criterion of 20 or 5 marks, as the casemay be, in their ACRs. The impact caused by the evaluation of ACRs,particularly on the marks for performance of courses is a starkrepresentation of the systemic discrimination that pervaded the structuresof the Army. A formalistic application of pre-existing policies whilegranting PC is a continuation of these systemic discriminatory practices.WSSCOs were continued in service with a clear message that theiradvancement would never be equal to their male counterparts. TheirACR evaluations made no difference to their careers, until PC wasgranted to them by a court mandate in Babita Puniya (supra).Accordingly, some women’s failure to opt for courses in the past thatwould strengthen their chances and reflect positively on their ACRs isnot a vacuous “exercise of choice” but a consequence of a discriminatoryincentive structure.

97. Finally, the above analysis indicates that there has been aflawed attempt to peg the achievements of the WSSCOs at the 5[th]/10[th]years of service thereby ignoring the mandate that the last ACR oughtto be considered and the quantitative performance for the entire recordof service must be assessed. Considering the ACRs as on the 5[th] or 10[th]year of service for grant of PC would have been appropriate, if theWSCCOs were being considered for PC at that point of time. However,the delayed implementation of the grant of PC to WSSCOs by the Armyand considering of ACRs only till the 5[th]/10[th] year of service has led to asituation where, in effect, the Army has obliviated the years of service,hard work and honours received by WSSCOs beyond their 5[th]/10[th] yearof service and relegated them back to a position they held, in somecases, more than 10 years ago. The lack of consideration given to therecent performance of WSSCOs for grant of PC is a disservice not justto these officers who have served the nation, but also to the IndianArmy, which on one hand salutes these officers by awarding them honours AB

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Aand decorations, and on the other hand, fails to assess the true value ofthese honours when it matters the most - at the time of standing for thecause of the WSSCOs to realise their rights under the Constitution andbe treated on an equal footing as male officers who are granted PC.

98. On the basis of our analysis we have come to the conclusionBthat while implementing the judgment of this Court in Babita Puniya(supra), the Army authorities have attempted to demonstrate theapplication of a facially neutral standard as between WSSCOs and theirmale counterparts. The entire approach is indicated in the followingaverment in the counter affidavit filed by the Military Secretary:

C“That the Petitioners herein on one hand seek to be treated at parwith the male counterparts, however, on the other hand, seek specialand unjustified treatment inthe eligibility conditions.”

Subsequently, in the course of the written submission, an apologyhas been tendered in the following terms:

D“11. At this stage, an apology would be in order as regards theequivocality of the last sentence in para 14 of the C/A (pages21 and 22), which though made in good faith to emphasize thepoint that the implementation is being done, treating women officersat par with the men officers, ended up, albeit inadvertently, carryingEan impression as if the same is being done to complete the rituals.It is submitted that the UoI is immensely proud of the contributionof women officers to the cause of Indian Army. It is submittedthat it is not by any pre-planning that a particular number of womenSSC officers do not find themselves approved for PC.”

F99. The fact that there was no pre-planning to exclude womenfrom the grant of PC is irrelevant under an indirect discrimination analysis.As we have noted previously, under this analysis, the Court has to lookat the effect of the concerned criteria, not at the intent underlying itsadoption. In light of the fact that the pattern of evaluation will in effectlead to women being excluded from the grant of PC on grounds beyondGtheir control, it is indirectly discriminatory against WSSCOs.

100. We must recognize here that the structures of our societyhave been created by males and for males. As a result, certain structuresthat may seem to be the “norm” and may appear to be harmless, are areflection of the insidious patriarchal system. At the time of H

Independence, our Constitution sought to achieve a transformation inour society by envisaging equal opportunity in public employment andgender equality. Since then, we have continuously endeavored to achievethe guarantee of equality enshrined in our Constitution. A facially equalapplication of laws to unequal parties is a farce, when the law is structuredto cater to a male standpoint.[85] Presently, adjustments, both in thoughtand letter, are necessary to rebuild the structures of an equal society.These adjustments and amendments however, are not concessions beinggranted to a set of persons, but instead are the wrongs being remediedto obliterate years of suppression of opportunities which should havebeen granted to women. It is not enough to proudly state that womenofficers are allowed to serve the nation in the Armed Forces, when thetrue picture of their service conditions tells a different story. A superficialsense of equality is not in the true spirit of the Constitution and attemptsto make equality only symbolic.

101. Accordingly, the respondents must remove the requirementof benchmarking the WSSCOs with the last male officer who hadreceived PC in their corresponding batches and all WSSCOs meetingthe 60% cut-off must be granted PC. Additionally, the calculation of thecut-off at 60%, which must by army orders and instructions be reviewedevery 2 years, must be re-assessed to determine if the casual completionof their ACRs is disproportionately impacting the WSSCOs ability toqualify for PC even at that threshold. In light of the systemic discriminationthat women have faced in the Army over a period of time, to call for theadoption of a pattern of evaluation that accounts and compensates forthis 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 theantidiscrimination guarantee under Article 15, of all meaning.

G.4 Medical Criteria

102. The medical criteria for assessing officers for the grant ofPC have been specified in Army instructions and Army Orders to whicha detailed reference has been made in the earlier part of this judgment.While dealing with the application of the criteria to the WSSCOs inpursuance of the judgment in Babita Puniya (supra),it would be necessaryto revisit some salient features:

85 Catharine A. MacKinnon, TOWARDS A FEMINIST THEORY OF STATE (Harvard UniversityPress 1989) at p.220.

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A(i)SAI/3/S/70 specifically provided that in order to be eligibleto apply for PC, an SSC officer must be in medical categoryA-1. Those placed in medical categories A-2, B-1 and B-2as a result of casualties suffered in action during operationscould also be considered on the merits of each case by thegovernment;B

(ii) Subsequently, when the SHAPE criteria was introduced,para 2(b) was re-constructed in 1972 by AI 102/1972 tostipulate that the medical category should not be lower thangrade-II under any of the SHAPE factors, excluding the‘S’ factor in which the grade should not be lower than 1. InCexceptional cases, it was stipulated that a grading of 2 inboth H and E together may be acceptable. A low medicalcategorization could not be due to medical reasons, but onlyas a result of casualties suffered in action during operationsor due to injury or other disability sustained during duty;

D(iii)Subsequently, AO 110/1981 contained a stipulation formedical boards. Para 13 indicated that for officers who areplaced in the TLMC, medical board proceedings recordedon form AFMSF-2 are not required until their medicalcategory stabilizes. Upon the stabilization of the medicalEcategory, certain procedures had to be followed;

(iv) Army Instruction 75-81 dated 4 November 1978 providedfor the terms and conditions of service for officers grantedSSC in the Army Medical Corps. While laying down anupper age limit of 45 years, para 3(d) also stipulated thatapplicants must be in medical category SHAPE-1;F

(v) AO 18/1988 stipulates in para 21, that the medical categoryof an officer seeking PC should not be lower than grade 2under any of the SHAPE factors, excluding the ‘S’ factorin which the grade should not be lower than 1. In exceptionalcases, grading of 2 in both H and E together acceptable.GMoreover low medical categorization should have beencaused as a result of casualties suffered in action duringoperations or due to injuries or other disabilities sustain duringduty;

(vi) Army Instruction 14/1999 dated 1 August 1999 amendedHSAI 3/S/70 by stipulating that

“Their medical category should not be lower than S1 orH2 or A3 or P2 or E2 or H2E2 or H2A3 or H2P2 orE2A3 or E2P2. However grant of PermanentCommission to low medical category Short ServiceCommissioned Officers will be subject to rendition ofthe requisite certificate in terms of AO 20/75”

(vii) AO 9/2011 specifically defines the meaning of the SHAPEcriteria and makes detailed provisions in regard to modalitiesfor evaluation of medical fitness. We have already advertedto the meaning and content of the SHAPE criteria in theearlier part of this judgment.

103. The essence of the submission which has been urged onbehalf of the petitioners is that the General Instructions dated 1 August2020 stipulated that only those officers who are SHAPE 1 or in thePLMC will undergo a medical board. Officers with TLMC were requiredto submit the proceedings of their medical categorization or re-categorization, giving their present medical category. Such TLMC officerswho were otherwise found fit for PC by the Special No. 5 SelectionBoard were given a maximum period of one year of stabilization of theirmedical category. As regards officers in the PLMC categorization, itwas clarified that this should not be due to medical reasons (whetherattributable to military service or not) but should have been a result ofcasualties suffered in action during operations or due to disabilities byother injury sustained during duty such as while traveling on duty, duringtraining exercises or playing organized games under regimentalarrangements. In addition, certain specific medical categories were madeineligible for the grant of PC.

104. Now the singular aspect of the medical requirements thatmust be noticed at the outset is that there is a broad consistency ofpolicy on the norms, which have to be fulfilled in order for an officer toqualify for the grant of PC. Another important facet which needs to beemphasized is that SHAPE-1 has a specific meaning which is assignedto it under AO 9/2011. ‘S’ donates the physiological features includingcognitive function abnormalities, ‘H’ stands for hearing, ‘A’ forappendages, ‘P’ for physical capacity and ‘E’ for eye-sight. Therequirement of being in grade-1 in each of the five factors of SHAPE issubject to relaxation in terms of exceptions which are clearly spelt out.The policy provides a concession to such candidates who may not have AB

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Asuffered injury on the line of duty as a result of which their medicalcategorization has been lowered. But this should not be lower than S1 orH2 or A3 or P2 or E2 or A2E2 or H2A3 or H2P2 or E2A3 or E2P2. Theexception which has been provided is available if an injury (as distinctfrom a disease) has been suffered while on the line of duty, irrespectiveof whether it has been incurred during peace time or in field operations.BOfficers in the PLMC who fulfill the terms of the exception are grantedPC, if they are otherwise found fit on merits. The requirement of fulfillingthe SHAPE criteria as explained earlier is a pre-requisite even in sucharms or services where both men and women join up to the age of 45years, as in the case of the Army Medical Corps. The Army follows andCadopts the TLMC norm which allows an officer placed in that categoryto 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 categorywithin one year.

105. Physical fitness is crucial for securing a place in the Army.DWhile exercising judicial review, the Court must be circumspect on dealingwith policies prescribed for the Armed Forces personnel in attainingnorms associated with physical and mental fitness. In the present case,as disclosed before this Court, out of the initial 87 petitioners contestingthe proceedings in 7 writ petitions, 55 are SHAPE 1 going up to the ageof 52 years, 23 have been assigned to PMLC, while 9 are placed inETLMC. The material which has been placed on record in the form ofAO 9/2011 indicates a classification range of minimum and maximumpermissible parameters for each of the five factors comprised within theSHAPE norm. The submission of the respondents is that these parametershave been fixed, keeping in mind the inevitable advancement of age ofFboth men and women officers. Moreover, in refusing to consider theSSC extensions as sufficient evidence of fitness, it has been submittedby the respondents that an unsaid concession is made in terms of medicalrequirements where an officer has been considered for extension asopposed to when they are considered for grant of PC. Another important aspect which has been emphasized is that out of 615 WSSCOs officers,G422 were found fit on merits for PC subject to fulfillment of medical anddiscipline parameters. Out of these 422, 57 were non-optees. From theremaining 365, 277 women officers were found fit on merits as well onmedical parameters and have been granted PCs. Of the remaining 88,42 are TLMC and have the opportunity to upgrade this to the requiredHmedical parameters within one year. Out of the remaining 46, only 35

were found not to meet the medical criteria. These 35 officers constituteless than ten per cent of the 365 who had opted for the grant of PC andwere found fit on merits. Even in the remaining 193 officers (615 minus422 found fit) that were not considered fit for PC, it was submitted that164 of these officers fulfilled the SHAPE-1 criterion. This tabulationindicates a significant proportion of WSSCOs, irrespective of their belatedconsideration, are able to presently meet the prescribed criteria. Withrespect to the medical criteria prescribed by the Army, we are cognizantthat there can be no judicial review of the standards adopted by theArmy, unless they are manifestly arbitrary and bear no rational nexus tothe objects of the organization. The SHAPE criterion is per se notarbitrary.

106. Having come to the conclusion that the medical criterion isper se not arbitrary, it is the Court’s responsibility to examine whether ithas been equally applied. We cannot shy away from the fact, that these615 WSSCOs are being subjected to a rigorous medical standard at anadvanced stage of their careers, merely on account of the fact that theArmy did not consider them for granting them PC, unlike their malecounterparts. By the judgment of the Delhi High Court dated 12 March2010, specific directions were issued for considering the women SSCofficers for the grant of PC. This was a decade ago. During the pendencyof the appeal from the judgment of the Delhi High Court before thisCourt, there was no stay on the application of the judgment of the HighCourt. This was specifically clarified by the order of this Court on 2September 2011. The intent of the clarification was that implementationof the directions of the High court must proceed. The WSSCOs havesubmitted with justification that had they been considered for the grantof PC then, as the respondents were directed to do by the decision ofthe Delhi High Court, they would have met the norms of eligibility interms of medical parameters. Their male counterparts who wereconsidered for and granted PC at that time are not required to maintainSHAPE 1 fitness to be continued in service. Serious hardship has beencaused by the Army not considering the cases of these WSSCOs for thegrant of PC at the relevant time, despite the express clarification by thisCourt. Though the contempt proceedings against the respondents werestayed, this did not obviate the obligation to comply with the mandate ofthe judgment of the Delhi High Court especially after a specificclarification that no stay had been granted. Consideration for PC wasnot just a legitimate expectation on the part of the WSSCOs but a right A

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Awhich had accrued in their favour after the directions of the High Court,which were issued about a decade ago. The WSSCOs who have beenexcluded on medical grounds in November 2020 have a legitimategrievance that whether they fulfilled the SHAPE 1 criterion has to bedetermined from their medical status on the date when they were entitledto be considered, following the decision of the Delhi High Court. Such ofBthem who fulfilled the criterion at the material time are entitled to PCand can continue in service so long as they continue to meet the medicalstandards prescribed for continuance in the Army. In other words, thereis no challenge to the criteria for medical fitness prescribed. TheseWSSCOs do not seek a special dispensation or exemption for themselves,Cas women. The essence of the dispute is when the SHAPE 1 criterionhas to be applied in the peculiar circumstances which have been notedabove.

107. Within the SHAPE criterion, para 31 of AO 9/2011 providesfor functional capacities. This ranges from category 1A (fit for all dutiesDanywhere) and category 1B (fit for all duties anywhere under medicalobservation without employability restrictions); category 2 (fit for all dutiesbut with limitations involving severe physical and mental stress); category3 (except ‘S’ factor fit for routine or sedentary duties but limitations ofemployment duties both job wise and terrain wise); category 4(temporarily unfit for duties on account of hospitality/sick leave); andEcategory 5 (permanently unfit for military duties).

108. It has been submitted by the petitioners that while being inSHAPE 1 is the requirement at the induction or entry level, it is not therequirement for continued service in the Army. Many of their malecounterparts who are granted PC in their 5[th] or 10[th] year of service areFentitled to continue in service, irrespective of whether they continue tobe compliant with SHAPE 1 criteria. In fact, the ASG and MrBalasubramaniam, learned Senior Counsel, submitted that even for thetime scale promotions to the rank of Colonel and Brigadier, there may beno SHAPE-1 requirement. We need not dwell on that aspect since it isGan admitted position that SHAPE-1 is not a requirement for continuationin service. The ASG had sought to bolster his submission of SHAPE-1as a threshold requirement for PC, by relying on the recruitment processfor the Army Medical Corps, where even a 45 year old person seekingrecruitment, must comply with SHAPE-1 medical criteria. However, acritical assumption that undergirds the grant of PC is the approximateH

age of persons who would be under consideration. The WSSCOs in thiscase are not fresh recruits who are due to be considered in their 5[th] or10[th] year of service, nor are they seeking exceptional favors on accountof their sex.

109. On one hand, the Army authorities are insistent on relying onthe medical criteria as a filtering mechanism for grant of PC to WSSCOs.On the other hand, we have WSSCOs who have legally fought for theirrights and are additionally suffering due to the untimely implementationof their hard-won rights. The Army authorities have stated that the medicalcriterion has been sufficiently adjusted to take into account age relatedfactors. However, the Army authorities are insistent to apply the medicalcriteria as of today, while simultaneously attempting to freeze the ACRsof the WSSCOs at the 5[th] or 10[th] year of service. Indirect discriminationcoupled with an exclusionary approach inheres in this application. Anenhancement in the qualifications of WSSCOs from their 5[th]/10[th] yearof service till today, as would be reflected in their recent ACRs, woulddemonstrate them as an experienced pool of human resource for theIndian Army. However, a reduction of medical fitness below the SHAPE1 norm at present as a consequence of age or the tribulations of serviceis not a necessary detriment to the Army when similarly aged male officerswith PC (invariably granted in the 5[th] or 10[th] year of their service) nolonger have to meet these rigorous medical standards for continuing inservice. This is further bolstered by the fact that the WSSCOs who areno longer in SHAPE-1, have been meaningfully continuing in service,even after 14 years of service, till the declaration of results of the PC inNovember 2020.

110. We also must express our anguish at the respondents’ failureto implement the judgment rendered by the Delhi High Court in 2010,whose operation was specifically not stayed by this Court in 2011. Theconundrum on the applicability of the medical criterion to WSSCOs whoare 40-50 years old, has arisen only because of the Army not havingimplemented its decision in time, despite the course correction prescribedby the Delhi High Court in 2010. The WSSCOs, a few of whom arepetitioners before us today, have persevered for over a decade to gainthe same dignity of an equal opportunity at PC. The fact that only around35 women who are otherwise fit for PC, and 31 women who do notqualify in addition to not meeting the medical criteria, is irrelevant indetermining whether each of these women is entitled to equality of A

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Aopportunity in matters of public employment under Article 16(1) and (2).As observed by a 9 judge bench of this Court in Justice KS Puttaswamyv. Union of India,[86] a de minimis rationale is not a permissible exceptionto invasion of fundamental rights. The Court, speaking through one of us(Chandrachud, J.) had held that “the de minimis hypothesis is misplacedbecause the invasion of a fundamental right is not rendered tolerableBwhen a few, as opposed to a large number of persons, are subjectedto hostile treatment.”[87] Similarly, the percentage of women who havesuffered as a consequence of the belated application of rigorous medicalcriteria is irrelevant to the determination of whether it is a violation ofArticles 14, 15 and 16 of the Constitution.

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111. In rendering the decision in Babita Puniya (supra), this Courtwas mindful of the insidious impact on the generations of women whomust have given up on their dreams to serve in the Armed Forces owingto the gendered roadblock on their aspirations, and of the women whomust have chosen to opt out of availing an extension to their SSC termsDon similar grounds. We must not forget that those women officers whohave remained in service are those with the tenacity to hold on and tomeet the exacting standards of performance of which the Indian Armyhas made her citizens proud. It is also important for us to bear in mindthat a career in the Army comes with a serious set of trials and tribulationsof a transferable service with postings in difficult terrains, even in timesEof peace. This is rendered infinitely more difficult when society relegatesfunctions of domestic labour, care-giving and childcare exclusively onthe shoulders of women. The WSSCOs before us are not just womenwho have dedicated their lives to the service of the Army, but are womenwho have persevered through difficult conditions as they trudged along Fa lengthy litigation to avail the simplest of equality with their malecounterparts. They do not come to the Court seeking charity or favour.They implore us for a restoration of their dignity, when even stronglyworded directions by the Court in Babita Puniya (supra) have not trickleddown into a basic assessment of not subjecting unequals to supposedly“neutral parameters”.G112. We are unable to accept the ASG’s submission on the medicalcriteria being modulated to account for advancement of age. The timingof the administration of rigorous standards is a relevant consideration 86 (2017) 10 SCC 1H87 Id. at para 128

for determining their discriminatory impact, and not just an isolated readingof the standards which account for differences arising out of gender.The WSSCOs have been subject to indirect discrimination when someare being considered for PC, in their 20[th] year of service. A retrospectiveapplication of the supposedly uniform standards for grant of PC must bemodulated to compensate for the harm that has arisen over their belatedapplication. In the spirit of true equality with their male counterparts inthe corresponding batches, the WSSCOs must be considered medicallyfit for grant of PC by reliance on their medical fitness, as recorded in the5[th]or 10[th] year of their service.

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 ofBabita Puniya

113. Another aspect of the case relates to the interpretation of thedirection in Babita Puniya (supra) mandating WSSCOs who havecompleted 14 years of service as on the date of the judgment to beconsidered for PC. In the event of their non-approval or non-option,these officers are to be continued in service for 20 years, with benefitsof pension. In Babita Puniya (supra), the directions issued by this Court,were while accepting the policy decision of the Union Government. Thepolicy decision of the Union Government for the grant of PCs to WSSCOsin all the ten streams where women were granted SSC in the IndianArmy was accepted, subject to several conditions which were spelt outin clauses (a) to (g) of direction (1) in paragraph 69 of the judgment. Thedirections (a) to (c) are again reproduced below as a convenient point ofreference:

“69. […]

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(a) All serving women officers on SSC shall be consideredfor the grant of PCs irrespective of any of them havingcrossed fourteen years or, as the case may be, twentyyears of service.

(b) The option shall be granted to all women presently inservice as SSC officers.

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766SUPREME COURT REPORTS

Agrant of the PCs will be entitled to continue in serviceuntil they attain twenty years of pensionable service.

(d) As a one-time measure, the benefit of continuing inservice until the attainment of pensionable service shallalso apply to all the existing SSC officers with moreBthan fourteen years of service who are notappointed on PC.”

(emphasis supplied)

Directions (e), (f) and (g) are not material at this stage. Direction(d) refers to “existing SSC officers with more than 14 years of service”.CThis expression is clearly intended to encompass those WSSCOs whohad completed 14 years of service on the date of the judgment. It isimportant to note that these officers were also granted the benefit ofcontinuing in service until the attainment of pensionable service.

114. The petitioners in Lt. Col. Reena Gairola v. Union of India[88]Dand in Major Nilam Gorwade v. Union of India[89] belong to the groupof women officers recruited under the WSES(O)- 27 to 31 andSSCW(T&NT) 1 to 3. These petitioners were commissioned on or afterMarch 2006 and had not completed 14 years of service as on the date ofthe judgment in Babita Puniya (supra). Under the directions in BabitaEPuniya (supra), in case they do not opt for PC or opt for PC and are notgranted PC, they will be released at the end of their 14 years ofcontractual service. The petitioners in these batches would neither beentitled to pension as they would have only completed 14 years of serviceat the end of their contract, nor would they be given the one time reliefgranted in Babita Puniya (supra) of entitlement to continue in serviceFfor 20 years.

115. The petitioners in the abovementioned writ petitions haveargued that within their batches (WSES(O) - 27 to 31 and SSCW(T&NT)1 to 3), 161 women have been granted PC, out of the 284 serving officers.66 officers who were not approved for PC (allegedly, inter alia, as aGconsequence of the medical criteria and ACR assessment) and 9 officerswho did not opt for PC, have to retire at the end of their contractual termof 14 years, with no pension or benefits. It is pertinent to mention thatthese petitioners were not a party before this Court in Babita Puniya 88 Writ Petition (Civil) No. 34 of 2021H89 Writ Petition (Civil) No. 1223 of 2020

(supra) and consequently could not make out a case for their entitlementto a similar relief for extension till they attain pensionable service, in lightof the respondents failing to consider them in time, despite the petitionersbeing beneficiaries of the judgment of the Delhi High Court.

116. The case of the petitioners is also that at the time of renderingof the judgment of the Delhi High Court in 2010, these WSSCOs hadcompleted a maximum of 4 years in service (or less). Once relief wasgranted to them by the Delhi High Court and the interim order of theSupreme Court, these WSSCOs took a conscious decision based onthese reliefs to continue in service, in anticipation that sooner or later,they would be granted PC. Had they been rejected for PC upon thejudgment of the Delhi High Court in 2010, that is over a decade ago, itwould have been easier for them to make a career shift and seekemployment elsewhere.

117. This Court, as a consequence of the constraint of informationbeing provided to it by the parties arraigned before it in Babita Puniya(supra), was not alive to the full extent of the cadres who were denied atimely opportunity for PC in their 5[th] or 10[th] year of service. Direction(c) and (d), as a one-time measure, attempted to correct the gross injusticethat was meted out to women officers who had completed over 14 yearsin service, and were being considered for PC at a belated stage. Theone-time benefit of continuation in service until their 20[th] year wasprovided as a corrective exercise for women who have devoted theircareers 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 inproviding for such a cut-off was to compensate for the impact of thediscrimination which had denied them timely opportunities and to accountfor the significant risk and commitment they demonstrated by theircontinuation in service.

118. It has been brought to our attention that the women officersin the batches of WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3 face asimilar predicament as they are being considered for PC beyond their10[th] year in service (in the best case). Similar to the women in the oldercadres who were denied opportunities, career progressions andassurances owing to the respondents’ failure at the relevant time to ensuregender equality in the forces; the women in the batches who werebetween 10-14 years of their service were meted the same insecurity.The WSES scheme has been discontinued and the WSES(O) 31, A

BC

D

EF

G

H

Acommissioned in 2008, is the last batch to have gained entry in the scheme,rendering it a ‘dying cadre’. We have deployed the expression ‘dyingcadre’ not in a pejorative sense. The expression has a specific meaningin service jurisprudence to denote a dwindling class of officers in service.The officers in the consequent batches of SSCW (T&NT) 1 to 3, althoughpart of the new scheme that replaced WSES, will be the only batchesBwho will face an adverse impact of the respondents’ failure to implementthe Delhi High Court judgement before the 10[th] year of their service. Inexercise of the constitutional power entrusted to this court under Article142 to bring about substantial justice, we are compelled to extend thebenefit of directions (c) and (d) in Babita Puniya (supra) to the officersCof the abovementioned batches, as a one-time benefit. This one-timeextension, would bring parity inter se between officers who werediscriminated by their non-timely consideration by the respondents.

H Conclusion and directions

H Conclusion and directions

119. Based on the above analysis, we are of the view that theDevaluation criteria set by the Army constituted systemic discriminationagainst the petitioners. The pattern of evaluation deployed by the Army,to implement the decision in Babita Puniya (supra) disproportionatelyaffects women. This disproportionate impact is attributable to thestructural discrimination against women, by dint of which the faciallyEneutral criteria of selective ACR evaluation and fulfilling the medicalcriteria to be in SHAPE-1 at a belated stage, to secure PCdisproportionately impacts them vis-à-vis their male counterparts. Thepattern of evaluation, by excluding subsequent achievements of thepetitioners and failing to account for the inherent patterns of discriminationthat were produced as a consequence of casual grading and skewedFincentive structures, has resulted in indirect and systemic discrimination.This discrimination has caused an economic and psychological harmand an affront to their dignity.

120. For the above reasons, we allow the petitions in terms of thefollowing directions:G

(i) The administrative requirement imposed by the Armyauthorities while considering the case of the women SSCOsfor the grant of PC, of benchmarking these officers withthe officers lowest in merit in the corresponding male batchis held to be arbitrary and irrational and shall not be enforced H

while implementing the decision of this Court in BabitaPuniya (supra); A

(ii) All women officers who have fulfilled the cut-off grade of60 per cent in the Special No 5 Selection Board held inSeptember 2020 shall be entitled to the grant of PC, subjectto their meeting the medical criteria prescribed by theBGeneral Instructions dated 1 August 2020 (as explained in(iii) below) and receiving disciplinary and vigilanceclearance;

(iii) For the purpose of determining the fulfillment of direction(ii), the medical criteria stipulated in the General Instructionsdated 1 August 2020 shall be applied at the following pointsof time:

C

(a) At the time of the 5[th] year of service; or (b)At the time of the 10[th] year of service, as the casemaybe.

DE

In case the officer has failed to meet the medical criterionfor the grant of PC at any of these points in time, theWSSCO will not be entitled to the grant of PC. We clarifythat a WSSCO who was in the TLMC in the 5[th]/10[th] yearof service and subsequently met the SHAPE-1 criterionafter the one year period of stabilization, would also be eligiblefor grant of PC. Other than officers who are “non-optees”,the cases of all WSSCOs, including the petitioners who havebeen rejected on medical grounds, shall be reconsideredwithin a period of one month and orders for the grant of PCshall in terms of the above directions be issued within aperiod of two months; F

(iv) The grant of PC to the WSSCOs who have already beengranted PC shall not be disturbed;

(v) The WSSCOs belonging to WSES(O) - 27 to 31 andGSSCW(T&NT) 1 to 3 who are not considered to be eligiblefor grant of PC after the above exercise, will be extendedthe one-time benefit of direction (c) and (d) in Babita Puniya(supra); H

A(vi)All consequential benefits including the grant of time scalepromotions shall necessarily follow as a result of thedirections contained in the judgment in Babita Puniya(supra) and the present judgment and steps to do so shallbe completed within a period of three months from the dateof the judgment;B

(vii) The candidature of Lt. Col. Navneet Lobana, PetitionerNo. 3 in Writ Petition (C) 1109 of 2020, will be reconsideredfor grant of PC in terms of the above directions. In casethe officer is not granted PC, she will be allowed to completeher M.Tech degree course for which she has been enrolledCat the College of Military Engineering, Pune and shall notbe required to pay or reimburse any amount towards thecourse;

(viii) In accordance with pre-existing policies of the respondents,the method of evaluation of ACRs and the cut-off must beDreviewed for future batches, in order to examine for adisproportionate impact on WSSCOs who became eligiblefor the grant of PC in the subsequent years of their service;and

(ix) During the pendency of the proceedings, the ASG hadEassured the Court that all the serving WSSCOs would becontinued in service, since the Court was in seisin of theproceedings. There shall be a direction that this positionshall continue until the above directions of the Court areimplemented and hence the serving WSSCOs shall beFentitled to the payment of their salaries and to all otherservice benefits.

121. The writ petitions are accordingly disposed of in the aboveterms.

122. Pending application(s), if any, stand disposed of.G

Nidhi Jain

Writ petitions disposed of.

H