"They May Have Climbed Mount Everest In The Past, Now You Say They Are Not In Shape-1": Supreme Court To Govt. On Permanent Commission Of Women In Army
Govt’s Failure To Consider Women Officers At Appropriate Time Cannot Be Used To Say Today that They Are Not In Shape-1, Supreme Court told Centre.
"When it suits you, you ask for today's fitness, SHAPE 1 as on today. But you ignore their years of meritorious service rendered post the 5th year or the 10th year. This shows how warped it is. Is the idea to exclude women or to give them equal opportunity?", remarked Justice DY Chandrachud on TuesdayThese observations came on the Centre's response to the argument of the lady officers who...
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"When it suits you, you ask for today's fitness, SHAPE 1 as on today. But you ignore their years of meritorious service rendered post the 5th year or the 10th year. This shows how warped it is. Is the idea to exclude women or to give them equal opportunity?", remarked Justice DY Chandrachud on Tuesday
These observations came on the Centre's response to the argument of the lady officers who have been denied Permanent Commission, that while in adjudging their suitability on merit, their intervening service records after the 5th or the 10th year of induction are disregarded, the medical yardstick of Grade 1 in the relevant factors- Psychological (Cognitive functions and normalities), Hearing, Appendage, Physical and Eyesight (signified by the acronym 'SHAPE') that they must meet is required to be as on date of their consideration for grant of PC.
"Some of them might have become national swimmers, they might have gone on the around-the-world yacht expedition, they may have climbed Mount Everest in the intervening years, but all this is ignored. They are senior officers of the Army and some of your best candidates, but you are not even looking at this. Even the subsequent honours and awards are not considered ", continued the judge.
ASG Sanjay Jain, appearing for the Defence Ministry, asserted that the same consideration of service records uptil the 5th or the 10th year is applicable to their male counterparts also. At this, Justice Chandrachud pointed out that the male officers were also considered for PC upon completion of their 5 or 10 years in service, as against the lady officers.
"There has to be some cut-off somewhere...", the ASG sought to advance.
"When it suits you, you ask for today's fitness, SHAPE 1 as on today. This shows how warped it is. Is the idea to exclude women or to give them equal opportunity?", wondered Justice Chandrachud.
"The Union of India has no mala fide intention. We have applied those tests which meet the standards of objectivity and include the maximum possible people, and have kept within the realm of our policy in doing so", the ASG had sought to advance.
"We are not disputing that it is as per the Army Order, that you are applying SHAPE 1 across the board for everyone. But the Delhi High Court had granted some relief in 2011 to the lady officers. And the Supreme Court expressly said that it is not staying that order of the High Court. If you are bound by the rule of law, as we believe the Indian Army to be, you should have considered the lady officers in 2011. Even if you do not go as back as to the 5th year or the 10th year, you were obligated to consider them for permanent commission as in 2011. If on account of your failure to do so, between 2011 and 2020, many women officers have gone out of SHAPE 1, can you board them out now, saying that they are not SHAPE 1 today? Can you turn around to say that today they don't meet the criteria?", Justice Chandrachud had asked in the course of the hearing.
"Even not focusing on the hormonal changes which are peculiar to women, on account of menopause or childbirth, there are certain physiological changes that both men and women undergo with age, women more than men. So far as Appendage is concerned, there is a loss of bone density with advancement in age, and there is a precipitate decline in the bone density of women. This is why post 50, they are advised to take calcium supplements and a calcium-rich diet to compensate for this loss, which happens because of hormonal changes. Even our bone density is not similar to what it used to be when we were 25 or when we were in college.", the judge had reflected.
"Say, there is a woman officer who is an engineer in the army. If she was considered in 2011 or 2012, when she was 30 years old and had not been subjected to the ravages of age, she would have qualified. On the other hand, a man with a similar condition as her today is not boarded out of service and continues to be in the army, just because he was considered in the 5th or the 10th year! Your failure to consider the women officers at the appropriate time cannot be used to say today that they are not in SHAPE 1 as of today and so they do not qualify for PC. This is the heart of arbitrariness ", Justice Chandrachud had noted.
"If you look at your Lieutenant Generals and Major Generals, so far as the 'A' factor is concerned, they will one hundred percent not be in SHAPE 1 today! It is not physically possible after 51-52. We got your point that to qualify for PC, both male and women officers have to be in SHAPE 1. But, to our mind, it is arbitrary that despite the Supreme Court order, you didn't consider them in 2011. We are not even going as back as the 5th or the 10th year", continued the judge
"Both women and men officers, when they are considered for any position, they are aware that they have to be SHAPE 1. And SHAPE 1 is not static. The physiological factors linked with the inevitable advancement of age have been considered...The weight corresponds with age and gender...These are standards as per WHO. All the factors have a range which takes into account the advancement of age, de hors any injury that may have been suffered. They provide for a normal wear and tear of the body. It is the army officers themselves who have told me that the range for the assessment of SHAPE 1 factors is wide enough to provide for ages varying from 25 to 45. And there is also a separate yardstick for women and men", explained the ASG. It was his point that the requirement for being SHAPE 1 at the age of 45 is very different from the same requirement at the age of 25. He pointed out that SHAPE 1 is a requirement up to the rank of the Chief of Army Staff. He further informed the bench that bone density is not taken into consideration at all when assessing the 'Appendage' factor.
"It is fantastic that SHAPE 1 is needed even at the rank of the Chief of Army Staff. It must be respected and appreciated and we do so. You are setting the yardstick for the whole batch. What is worrying us is that though we are dealing with the grant of PC, there are also those who have already been granted PC and will be continuing in the service for long. It is not your case that those who were granted PC 10-15 years back have to be in SHAPE 1 today also to continue in service. So there is a hybrid system, in so far as the women officers, who should have been considered for PC 10 years back, are being considered for the same today and are being asked to meet the SHAPE 1 criteria as on today", observed Justice Chandrachud.
"It is the bounden duty of each officer wanting PC to maintain SHAPE 1 at all times, and if they lose this standard, to bounce back from the Temporary Low Medical Category in one year", replied the ASG.
In the beginning of the hearing, he had explained That the requirement of SHAPE 1 is an integral part of the job requirements of the armed forces, that it is not arbitrary or discriminatory and that even the Army Medical Corps, where officers are inducted till the age of 45 and are of both genders, also have to possess SHAPE 1 position when they are inducted. The only exception to this is, when an injury is suffered in the line of duty or on account of any casualty in the performing of operations, travelling on duty, training exercises or playing organised games. There is a bar on the grant of PC to one who does not possess SHAPE 1 other than this Low Medical Category. "This is the fundamental policy of induction in the army. SHAPE 1 is sine qua non, subject to this exception. It is applied across the board. This is not just the physical aspect, but other parameters also which concern the Army in extreme critical importance", he had explained. He had shown that the majority of the women officers who participated in the Selection Board are SHAPE 1.
"A person who was inducted in the past and who is not SHAPE 1 today is entitled to continue in the army? Their male compatriots who were inducted at the relevant time in the 5th or the 10th year may not necessarily be SHAPE 1 today?", Justice Chandrachud had asked. "All male officers who go below SHAPE 1 are placed in the TLMC and given an opportunity to bounce back in one year ", replied the ASG. "This is the grievance of the women officers that we have been denied the opportunity of the TLMC", Justice M. R. Shah noted.
"That is the impression which has been created by the petitioners. In the current list, there are as many as 42 women officers who have been placed in TLMC and will pick up PC rank in one year. They will be automatically granted PC in one year", said the ASG.
"Even though the upper limit of the number of officers who can be granted PC in one year is 250, to comply with the Supreme Court judgement, we clarified that there will be no vacancy parameter. So we had to set the benchmark, since this year we were free of vacancy. Your Lordships' order was to consider the women officers and there has been a fateful attempt on our part to implement it", continued the ASG.
He indicated that of the 615 women officers identified, 193 were not found fit on merits and 422 were found fit on merits. Of these 422, there were 57 who did not opt for PC. Of the remaining 365 who were eligible for PC, 277 were granted PC. Of the remaining 88, 42 are in TLMC and can pick up the rank any time. Of the balance 46, 35 are found not meeting the medical criteria.
"Out of the 365 women, only 35 are not meeting the medical criteria. This is less than 9%. If we intended to discriminate…(signing off)...This is also indicative of the fact that the women officers were always aware that SHAPE 1 is indispensable. That it is non-negotiable. These are career conscious women, who have contributed so much to the country. They knew that SHAPE 1 is required for PC, and also, when they look for further promotions", advanced the ASG. He had added that when the assessment for the grant of PC is carried out, there is a two tier system in place- it is only when a candidate is otherwise found fit on merit, that the medical records are called for. It was urged that the SB5 Board did not have the medical records before itself when it was considering the grant of PC.
The bench was explained that the exception from SHAPE 1 is available only in promotions from the post of Colonel to Brigadier. Above that, for promotion to the rank of Major General and Lieutenant General, SHAPE 1 is indispensable. If the candidate drops in fitness later, they continue in service but are not entitled for further promotion since they are placed in the LMC.
"Suppose, one woman officer is found to be diabetic by the time her case comes up for consideration now. Now, this is a problem that one has no control over, it results from a variety of factors including genetic reasons. It can happen despite the best of the diet and regardless of how careful of your health you are. She was not diabetic in 2011. That she can't get SHAPE 1 now is not because of voluntary reasons. If she had already been in service, she would not have been boarded out now", Justice Chandrachud observed.
"We find this point worrisome. There are many people who may have been SHAPE 1 at the time when they should have been considered originally. If they were granted PC then, they would have continued in service even if their medical fitness dropped. Should these people (lady officers) be denied PC now, saying that if you want PC, you must meet the stringent criteria as of today? Even if they did at the time of the order of the Delhi High Court?", continued the judge.
"How many women officers met the medical criteria for permanent commission at the time of the first and the second Boards? Those who were in the LMC even in the 5th or the 10th year have no case. But how many of them in the 5th or the 10th year met the medical requirement for PC? ", asked the judge. The bench was told that of the aforesaid 35 women officers, 24 were found to be in SHAPE 1 at the relevant time.
The hearing also witnessed observations in respect of the benchmark employed by the Army for qualification on merit, by way of a cut-off requiring lady officers, in order to be considered for PC, to achieve equivalence in marks with the last selected male candidate in the corresponding batch.
"The ACRs for women officers were written at a time when the mindset may have been that they will never qualify for PC (as the army policy did not permit so at the relevant time). Can these be compared with the ACRs written for the male candidates who were in the running for PC at that time? They had the same commanding officer...the women officers might have been looked at differently then? There was a clear understanding that the women officers would never be eligible for PC. It might have been assumed that the women officer will be terminated come what may, no matter how good she is. So her long-term profile may not have been considered and she may have been seen only as a SSC officer engaged on a contractual basis?", noted Justice Chandrachud.
"We are not finding fault with you or saying that you have deliberately sought to exclude women officers, but this is like comparing chalk with cheese. Can the women officers be asked to meet, by way of benchmark, this criteria of the last selected male candidate in the corresponding batch? Can these women aspire to meet the ACRs of their male counterparts at the relevant time?", questioned Justice Chandrachud.
"It is only speculative that this kind of complacency may have crept in with their commanding officers in writing the ACRs. Even if it did, it would be of a very minor percentage. Also, this application of human mind and the consequent subjectivity would apply to even the male officers. It is not like everything is loaded against the women. Also, this criteria was set only by way of benchmark. We do not intend this to be discriminatory or arbitrary. Since there is no upper ceiling of 250 or so on (on the number of officers procuring PC), this benchmark was necessary. I must make it clear that the women officers have to compete with other women officers only. There is no attempt on our part to compare men with women", explained the ASG.
"The Union of India is immensely proud of the contribution of its women officers to the Indian Army. It is not by any preplanning that they have been excluded and it is only because they were not found fit as per the policy. Any difference that may appear is not so significant to be portrayed as discriminatory or deliberate. This is not a fit case for the Supreme Court to exercise its jurisdiction under Articles 32 or 142 to set aside the selections. The process which has been sought to be demonised and the instructions which are sought to be quashed are an expression of the policies which have been consistently followed in the army from 1983 to 2012. It is not like we changed them after the judgement", concluded the ASG