In a landmark verdict, the Supreme Court Monday directed that women officers in the Army be granted permanent commission and command postings, rejecting the Centre's stand of their physiological limitations as being based on "sex stereotypes" and "gender discrimination against women".
The apex court directed that within three months, all serving SSC women officers have to be considered for Permanent Commissions (PCs) irrespective them having crossed 14 years or, as the case may be, 20 years of service.
It said however that the question of combat posting of women officers is a policy decision and was not dealt by the Delhi High Court in its 2010 verdict.
The top court accepted the Centre's policy of February 25, 2019 to grant PCs to Short Service Commission (SSC) women officers in all the 10 streams in the Indian Army.
Despite this policy, the Centre's stand in a matter before the top court was that provisions of Army Act contemplate that women will be eligible for enrolment only in those segments which the government permits.
The court said however that women officers have got numerous commendation certificates and laurels and their track record of service to the nation is beyond reproach.
A bench of Justices D Y Chandrachud and Ajay Rastogi rejected the Centre's submission that women officers cannot be granted PCs due to physiological limitations, all-male environment in a unit, combat capability and said that mindset change is required to recognize the values of the Constitution.
"To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army men and women who serve as equal citizens in a common mission," the bench said.
"The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women," it said.
"Underlying the statement that it is a greater challenge for women officers to meet the hazards of service owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families is a strong stereotype which assumes that domestic obligations rest solely on women," the bench said.
It said reliance on inherent physiological differences between men and women rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the "weaker sex" and may not undertake tasks that are "too arduous" for them.
Rejecting the Centre's arguments, the bench said it is founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family which do not constitute a constitutionally valid basis for denying equal opportunity to women officers.
"To deny the grant of PCs to women officers on the ground that this would upset the peculiar dynamics in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women," it said.
It held that the option of grant of PCs shall be given to all women SSC officers and if those with more than 14 years of service do not opt for grant of PCs then they will be entitled to continue in service until they attain 20 years of pensionable service.
"As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC," it said.
The court cleared the hurdle for command postings for women by staying the enforcement of the expression "in various staff appointments only" and "on staff appointments only" in para-5 and Para-6 of notification dated February 25, 2019.
They deal with grant of PCs to SSC women officers in various staff appointments only and within their parent department.
The bench said SSC women officers with over 20 years of service who are not granted PC shall retire on pension in terms of policy decision.
It said that pension and other benefits would be made available to those officers in service or those who had moved the high court by filing the Writ Petitions.
It said that following the Delhi High Court 2010 judgment, the Centre was under a mandate to grant PCs to women officers, to the exclusion of the Combat Arms, and at par with the grant of PCs to their male counterparts.
"There was no reason or justification for the Union Government not to act upon the directions that were issued by the Delhi High Court, particularly, in the absence of a stay on the operation and enforcement of the judgment," it said.
On the Centre's policy decision of February 25, 2019, the bench said it is a recognition of right of women officers to equality of opportunity.
The bench noted that Indian Army has sanctioned 50,266 posts for officers, while the posts currently occupied are 40,825 including 1,653 by women officers.
It noted that there is shortage of 9,441 officers in the Indian Army.
There are total of 1,653 women officers which is a miniscule 4 per cent of the total strength of commissioned officers in the Army, it said.
The total of 1,653 officers includes -- 77 having above 20 years of service, 255 having service tenure between 14 and 20 years and the fate of 322 women officers was to be decided by the verdict of the apex court.
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