Criteria based on gender? Supreme Court frowns upon 'arbitrariness' in appointment of women Army officers

New Delhi: The Supreme Court on Wednesday frowned upon the 'arbitrariness' in the consideration of 'criteria appointment' for Short Service Commission (SSC) women Army officers seeking permanent commission as compared to their male counterparts.

A 'criteria appointment' usually means an officer given command of a post in a difficult and hostile area or operation.

A bench of Justices Surya Kant, Ujjal Bhuyan and N Kotiswar Singh, which was hearing a plea of 13 women Army officers challenging the denial of permanent commission to them, questioned how there can be two parameters for male and female officers, who undergo the same training and postings.

"How can there be two criteria based on gender? Is there a different format for evaluating SSC women officers and male officers? Is this format different for SSC officers and those in permanent commission?" the bench questioned.

Senior advocate Maneka Guruswamy, appearing for the 13 officers along with advocate Amrita Panda, said the appellants are aggrieved by the casual grading received despite undergoing the same training and postings as their male counterparts.

"This grading resulted from a subjective assessment conducted at a time when they were not eligible for Permanent Commission (PC). Unlike male officers, whose performance was continuously assessed with PC in mind, the Appellants' ACRs froze in 2019, prior to this court's ruling granting women eligibility for PC in 2020," Guruswamy submitted.

She pointed out that among the 13 officers she represented, Lt Col Vanita Padhi was posted in the UN Peacekeeping Mission in Congo, Lt Col Chandni Mishra was the first woman pilot in 88 countries to have flown Manoeuvrable Expendable Aerial Target (MEAT) and Lt. Col Geeta Sharma has also been posted in High Altitude Areas like Ladakh and Major Khim has served in Akhnoor (near Pakistan Border).

Guruswamy said among the officers, Lt Col Geeta Sharma has served on 'Criteria Appointments' as Officer Commanding Communication for 'Operation Galwan' at Ladakh; Lt Col Swati Rawat as Officer Commanding Workshop for 'Operation Sindoor' and Lt Col Swati Rawat in Counter Insurgency area at Basauli of Jammu and Kashmir and Lt Col Vanita Padhi as Company Commander in Firozpur, Border Area of Punjab during Operation Sindoor.

"However, unlike their male counterparts, their (women officers) ACRs did not reflect this as a 'Criteria Appointment'. For male officers, ACRs for such appointments were categorised as 'Criteria Reports', with explicit mention of the appointment being a 'Criteria Appointment', which are considered for the grant of PC," she submitted.

Justice Singh asked whether this means that for women officers, it does not matter where they are posted but for male officers, posting in difficult areas is considered for the grant of permanent commission.

"Yes", replied Guruswamy and added, "Women officers, despite holding identical appointments, were issued ACRs which were 'Non-Criteria Reports', with no mention of the appointment being a 'Criteria Appointment’, since they were not eligible for PC." He said the Armed Forces Tribunal (AFT) has itself held that criteria reports have greater weightage in PC consideration than non-criteria reports. Justice Kant asked Guruswamy whether the consideration of the criteria for appointment for permanent commission is arbitrary.

"Yes. It is violative of Article 14 and Article 15 and hence, arbitrary," she submitted, adding that the fact that women officers are given these positions where there are border, contentious or fragile areas, means they trust the women officers, but would not give them permanent commission.

Justice Kant said this problem appears to be due to "conservative thinking" and "perceptions" of some senior officers.

Guruswamy submitted that they were not given any pension, medical allowance and the situation is such that one of the commanders, who brought the planes back from Balakot, was asked to leave a week later.

The hearing remained inconclusive and will continue on Thursday.

The bench was hearing the pleas filed by serving officers and those released from service in the Army. The top court said it would thereafter hear the pleas filed by Naval officers, followed by officers in the Air Force who have also been aggrieved by the denial of PC.

On August 6, the top court was informed that female and male officers of the Indian Army comprise two unequal and distinct classes, and cannot be considered together for the grant of permanent commission on the same criteria and cut-off marks.

The officers have relied upon the 2020 verdict of the apex court by which the Army was directed to grant them permanent commission.

In its February 17, 2020, the top court said absolute exclusion of women from all positions, except staff assignments, in the Army was indefensible and their blanket non-consideration for command appointments without any justification could not be sustained in law.

The apex court, which allowed PC to women officers in the Army, said an absolute prohibition of women SSC officers to obtain anything but staff appointments evidently did not fulfil the purpose of granting PC as a means of career advancement in the Army.

Since the 2020 verdict, the top court has passed several orders on the issue of permanent commission to women officers in the Armed Forces and similar orders were passed in the case of the Navy, Indian Air Force and Coast Guard.