NEW DELHI: Physical fitness is crucial for securing a place in the Army and while exercising judicial review, courts must be circumspect on dealing with policies prescribed for Armed Forces personnel on physical and mental fitness, the Supreme Court said on Thursday.
The apex court said it is cognizant that there can be no judicial review of the standards adopted by the Army with respect to medical criteria, unless they are "manifestly arbitrary".
A bench of Justices D Y Chandrachud and M R Shah observed this in its 137-page verdict in which it said that evaluation criteria set by the Army for granting permanent commission (PC) to women SSC officers constituted "systemic discrimination" which has caused an economic and psychological harm and an "affront to their dignity".
The top court dealt with the issue related to SHAPE-1 qualification for grant of PC.
The bench noted that SHAPE-1 has a "specific meaning" - 'S' donates the physiological features including cognitive function abnormalities, 'H' stands for hearing, 'A' for appendages, 'P' for physical capacity and 'E' for eye-sight.
"With respect to the medical criteria prescribed by the Army, we are cognizant that there can be no judicial review of the standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization. The SHAPE criterion is per se not arbitrary," the bench said.
"Physical fitness is crucial for securing a place in the Army. While exercising judicial review, the court must be circumspect on dealing with policies prescribed for the Armed Forces personnel in attaining norms associated with physical and mental fitness," it noted.
The bench said that having come to the conclusion that medical criterion is per se not arbitrary, it is the court's responsibility to examine whether it has been equally applied.
"We cannot shy away from the fact, that these 615 WSSCOs (women SSC officers) are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts," it said.
The bench noted that by the March 2010 judgement of the Delhi High Court, specific directions were issued for considering the women SSC officers for grant of PC.
It said during the pendency of appeal against the verdict before the apex court, there was no stay on the application of the high court's judgement and this was specifically clarified by the top court's September 2, 2011 order.
"The intent of the clarification was that implementation of the directions of the high court must proceed," it said.
"The WSSCOs have submitted with justification that had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the Delhi High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service," it noted.
It further said, "We also must express our anguish at the respondents' failure to implement the judgment rendered by the Delhi High Court in 2010, whose operation was specifically not stayed by this court in 2011."
The bench said these women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made the citizens proud.
"It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women," it said.
"The WSSCOs before us are not just women who have dedicated their lives to the service of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the court seeking charity or favour," it said.
The judgement was delivered on a batch of pleas questioning the manner in which last year verdict of the apex court has been implemented.
In its landmark judgement delivered on February 17 last year, the top court had directed that women officers in the Army be granted PC, rejecting the Centre's stand of their physiological limitations as being based on "sex stereotypes" and "gender discrimination against women".
It had directed that within three months, all serving SSC women officers have to be considered for grant of PC irrespective of them having crossed 14 years or, as the case may be, 20 years of service.