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

Citation: [2021] 4 S.C.R. 633 · Decided: 25-03-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 9 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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   [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 women
engaged 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 to
grant of PCs to Women SSC Officers in armed services – Petitioners
aggrieved by the steps taken by the Union Government to implement
Babita Puniya’s case-conduct of special selection procedure to screen
WSSCOs for grant of PC on the same terms as their male
counterparts; SHAPE-1 Medical criteria; performance in the fifth
year of their service; 60 per cent cut-off grade and an annual cap
of 250 – Writ petition u/Art. 32 challenging the modalities followed
in assessing the 615 WSSCOs for grant of PC after Babita Puniya’s
case – Held: Evaluation criteria set by the Army constituted systemic
discrimination against the petitioners – Evaluation pattern
disproportionately affects women – This disproportionate impact is
attributable to the structural discrimination against women – Facially
neutral criteria of selective (Annual Confidential Reports)
evaluation and fulfilling the medical criteria to be in SHAPE-1 at a
belated stage, to secure PC disproportionately impacts them vis-à-
vis their male counterparts – Exclusion of subsequent achievements
of the petitioners and casual grading and skewed incentive
structures resulted in indirect and systemic discrimination – This
discrimination has caused an economic and psychological harm
and an affront to their dignity – Issuance of directions that
requirement of benchmarking women officers with officers lowest
in merit in corresponding male batch is arbitrary and irrational
and would not be enforced while implementing Babita Puniya’s case;
that officers who have fulfilled the cut-off grade of 60 per cent in
Special selection Board entitled to grant of PC; that medical criterion
to be applied at the time of 5th year/10th year of their service; that
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
WSSCOs not considered to be eligible for grant of PC, to be extended
one-time benefit; and that all consequential benefits including the
grant of time scale promotions to be granted – Constitution of India
– Arts. 32, 14, 15(1).
Permanent Commission – Claim of women – Medical criteria
prescribed by the Army – Judicial review of – Held: Physical fitness
is crucial for securing a place in the Army – While exercising judicial
review, the Court must be circumspect on dealing with policies
prescribed for the Armed Forces personnel on physical and mental
fitness – There can be no judicial review of the medical standards
adopted by the Army, unless they are manifestly arbitrary and bear
no rational nexus to the objects of the organization – SHAPE
criterion is per se not arbitrary – Constitution of India.
Constitution of India : Art. 14 – Right to equality – Equal
opportunity in public employment and gender equality – Held: Since
independence there is continuous endeavor to achieve equal
opportunity in public employment and gender equality – Structures
of the society have been created by males and for males – Facially
equal application of laws to unequal parties is a farce, when the
law is structured to cater to a male standpoint – Thus, adjustments,
both in thought and letter, necessary to rebuild the structures of an
equal society – These adjustments and amendments are not
concessions being granted to a set of persons, but are the wrongs
being remedied to obliterate years of suppression of opportunities
which should have been granted to women – It cannot be said that
the women officers are allowed to serve the Armed Forces, when
the true picture of their service conditions is totally different –
Superficial sense of equality is not in the true spirit of the
Constitution and attempts to make equality only symbolic.
Gender justice:
Antidiscrimination law – Concept of – Formal versus
substantive equality – Held: Under the formal and symmetric
conception of antidiscrimination law, the law requires is that likes
be treated alike – It is premised on the notion that fairness demands
consistency in treatment – The fact that some protected groups are
disproportionately and adversely impacted by the operation of the
concerned law or its practice, mak

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