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Supreme Court Directs Grant Of Permanent Commission To 39 Women Army Officers
Mehal Jain
22 Oct 2021 1:31 PM GMT
The Supreme Court on Friday directed the Centre to tender a statement in tabulated form indicating reasons for the denial of permanent commission to 25 women officers, together with an affidavit expressly stating that no reasons independent of the directions issued by the Court have weighed in the grant/refusal of PC to the total 72 petitioners."In other words, once the final judgement and...
The Supreme Court on Friday directed the Centre to tender a statement in tabulated form indicating reasons for the denial of permanent commission to 25 women officers, together with an affidavit expressly stating that no reasons independent of the directions issued by the Court have weighed in the grant/refusal of PC to the total 72 petitioners.
"In other words, once the final judgement and order of this court has been pronounced, the consideration for the grant of PC has to be confined to the specific directions issued and not be based upon grounds independent of the judgement", the bench clarified.
The Court also directed that 39 of the aforesaid 72 women officers found eligible, in terms of the judgment of the Court, for the grant of PC on a re-examination personally carried out by ASG Sanjay Jain and Senior Advocate R. Balasubramanian, for the UOI and the Indian Army, be "scrupulously" issued orders granting PC by "Monday week".
The bench of Justices D. Y. Chandrachud and B. V. Nagarathna was hearing the contempt petition at the behest of 72 women officers of the Indian army who have moved the Court claiming that they have been denied Permanent Commission in violation of the March judgment of the Court. In March, another bench headed by Justice Chandrachud had held in Lt. Col. Nitisha's case that all women officers who have satisfied the 60% cut-off are entitled to PC subject to satisfaction of medical criteria as specified and satisfaction of vigilance and disciplinary clearance. It is the contention of the petitioners, that by the results declassified in September this year, it has been revealed that they have been denied PC despite securing above 60%, being medically fit and having vigilance clearance, on account of an additional criteria of "discipline, disobedience of orders, lapses in government procurement, forging medical documents, poor work ethics, lack of professionalism, un-officer like conduct, poor performance in courses etc".
It has been urged on behalf of the petitioners that even after the judgment of March, the 72 petitioners have been declared unfit and incompetent for PC and their claim rejected based on a September, 2020 assessment by the Selection Board that had allegedly found charges on the above grounds against the petitioners. It has been pointed out that the Indian Army had sought a clarification from the Supreme Court on the grant of PC to women SSC officers who have allegedly failed this one criteria for this, asking whether the ruling of March meant PC had to be granted irrespective of the criteria being met. The petitioners' senior advocates have submitted that the Supreme Court had in August dismissed the said Miscellaneous Application for clarification, with Justice Chandrachud telling the Centre, "You implement the judgment as it stands. This is an attempt on the part of your client to go around the judgment"
The Supreme Court had on October 8 allowed time until October 22 to the Centre and the Indian Army to resolve the issue of grant of Permanent Commission to those women Short Service Commission officers against whom there is no problem of disciplinary or vigilance clearance. Posting the matter for October 22, the Court required ASG Sanjay Jain, for the Union, and Senior Advocate R. Balasubramanian, for the Indian army, to personally look into the individual cases in view of its March judgment that if the women officers meet the cut-off of 60% marks and clear the medical fitness criteria and have received vigilance and disciplinary clearances, they shall be entitled for PC.
On Friday, ASG Sanjay Jain informed the bench, "Pursuant to Your Lordships' direction, the issue has been addressed to a great extent. Mr Balasubramanian has examined each of the 72 files on a case to case basis. 1 of these 72 have opted for release. Each of those files were examined on an independent basis, of course in consultation with me. We found that 38 of the 71 women officers we can grant PC to. And there is 1 more case which can also be reconsidered"
"Coming to the arithmetic, 7 officers were found medically unfit in terms of the standards approved by Your Lordships. This leaves 64. Deducting the 39 aforesaid officers from it, the remaining 25 may not be granted PC according to us. Because they will now be raising questions of fact, the disputed questions of facts can be addressed before the AFT instead of the contempt jurisdiction here. Your Lordships may grant them the liberty to move the AFT. There are serious issues of discipline, weak operational reports, integrity, disobedience of orders, adverse ACRs, poor grading in basic courses against them. And their male counterparts have been denied PC on the same grounds. If these women officers are to be granted PC, the male counterparts would also come and say that since we have relaxed the standards for them, we must do the same for the male officers", he advanced.
At this, Justice Chandrachud noted, "You could give us a tabulated chart disclosing the reasons, on a case by case basis, for not granting PC. If there is a genuine issue of discipline etc, we will not interfere. But let them also have the satisfaction".
Addressing senior advocates Hufeza Ahmadi, Meenakshi Arora and V. Mohana for the petitioners, the judge said, "Let them come in a statement. We will peruse the same and share it with you. There will be no sealed cover business.This will give you a sense of confidence also. Then you can see if you want to press the contempt or go before the AFT. We don't want to foreclose your remedies anywhere, either here or elsewhere"
Mr Ahmadi submitted that the bench's judgement of March 25 gives no discretion and that once an officer has secured 60% marks or above, it is not open for the government or the army to sit in judgement over it and deny them PC.
When Ms. Mohana urged that the government is denying PC to rightful candidates by introducing new grounds now, Justice Chandrachud tried to console her, saying, "Let these 39 atleast get the benefit for now". When Ms. Mohana insisted that the fact that these 39 petitioners have now been found fit for the grant of PC goes to show that the government was wrong, Mr Balasubramanian responded that this statement is wrong and that the grant of PC to these 39 was the result of an independent exercise. The ASG also advanced that the same was on account of an exercise undertaken at the command of the court.
"We want to express our appreciation for you Mr ASG and Mr Balasubramanian for having gone beyond the call of duty to undertake this exercise", said Justice Chandrachud.
"We want to see if anyone has been denied PC on any ground de hors our order. If the denial is within the purview of order, they can go to the AFT, but there should not be any denial outside the scope of our order", added Justice Chandrachud.
Dictating the order, the bench recorded, "4 contempt petitions have been listed before the court where a total of 72 women officers have raised the grievance as regards the manner in which the order of this Court of March 25 has been complied with. The ASG and Mr Balasubramanian have apprised the court that a comprehensive exercise was carried out once again to redetermine the entitlement of a total of 71 women short service commission officers in whose case it was submitted that though the requirement of securing 60% marks and other conditions for grant of PC were fulfilled, the decision with regard to the grant of PC was still awaited. The position stated is as follows: the total number of officers is 72, one officer has applied for release, seven officers have been declared medically unfit; of the balance of 64, 39 officers were found upon reconsideration to be eligible for the grant of PC."
"We are of the view that the ends of justice would be met if orders for the grant of PC are issued to these 39, in terms of the statement of the ASG, in one week. We direct that the compliance with the same is scrupulously ensured on or before ('Monday week'). Out of the aforesaid 64 officers, after the grant of PC to 39, there are 25 officers still left. The AAG has told the court that they are not found eligible on the grounds of discipline, and in certain cases, other issues like integrity, wilful disobedience of lawful orders, weak operational reports etc. More importantly, the ASG has also stated that male officers have been denied PC on similar grounds and that there is no discrimination against the women short service commission officers. In view of the same, it is necessary for the respondents to apprise the court of the grounds which led to the denial of PC to the others. The ASG has said that a tabulated chart, officer-wise, for those found ineligible, will be placed on record before the court. If the court considers it appropriate, the tabulated chart may be shared with the counsel for the petitioners to enable them to take remedies in accordance with the law".
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