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Supreme Court today dismissed all Miscellaneous Applications in the Judgment of Col. Nitisha v. Union Of India, directing to approach the Armed Forces Tribunal to seek appropriate remedy in law.

The Top Court, recognizing concept of Indirect Discrimination, had in the judgment observed,

“A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint. Presently, adjustments, both in thought and letter, are necessary to rebuild the structures of an equal society. These adjustments and amendments however, are not concessions being granted to a set of persons, but instead are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women.”

A Division Bench of Justice DY Chandrachud and Justice MR Shah, while dismissing all Miscellaneous Applications with liberty to pursue appropriate remedies before the Armed Forces Tribunal, observed,

“This is a very wrong practice. We have concluded our judgment, we cannot take up these MAs now. Implement the judgment, as it is, File a Review if needed.”

On the contention of Learned ASG Mr. Balbir Singh that the MAs only seek a clarification, Court said,

 “Such MAs should at least not be filed by the Government of India.”

On the submission of Counsel Huzefa Ahmadi, Court responded,

“The Government has given benefit to a large number of people. In any bureaucratic set up some errors may be there, for that you can go to the Tribunal. We cannot take up Individual matters.

Go to the Tribunal, There are some human limitations on our capacity also.”

The bench added for an expeditious disposal of all these applications before the AFT.

Key Observations in Col. Nitisha v. Union of India

• Administrative requirement by the Army authorities of benchmarking eligible SSC Officers for grant of Permanent Commission, with the officers lowest in merit in the corresponding male batch, held arbitrary and irrational.
• All women officers who have fulfilled the cut-off grade of 60% in the Special No. 5 Selection Board held in September 2020 shall be entitled to the grant of Permanent Commission, subject to medical criteria and disciplinary/vigilance clearance.
• Medical criteria stipulated in the General Instructions dated 1 August 2020 shall be applied at the following points of time, namely, (a) At the time of the 5th year of service or (b) At the time of the 10th year of service, as the case maybe. WSSCO who was in the Temporary Low Medical category (TLMC) in the 5th/10th year of service and subsequently met the SHAPE 1 criterion after the one year period of stabilization, would also be eligible for grant of PC.
• Other than officers who are ‘non-optees’, the cases of all WSSCO shall be reconsidered.
• The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed.
• The WSSCOs belonging to Women Special Entry Scheme (O) - 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of Permanent Commission after the above exercise, will be extended the one-time benefit of direction (c) and (d) in Babita Puniya.
• All consequential benefits shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya and the present judgment.
• The candidature of Lt. Col. Navneet Lobana, Petitioner No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered. In case the officer is not granted Permanent Commission, she will be allowed to complete her M. Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course.
• Method of evaluation of ACRs and the cut-off must be reviewed for future batches.

Also Read: “It is not enough to proudly say that women were kept at par by adopting the criteria similar to the male counterparts”: Supreme Court Strikes Down The Criteria Adopted By Army To Grant Permanent Commission To Women SSC Officers

Case Title: Nitisha v. Union of India