[Permanent Commission] There Cannot Be Perverse Equality, A 45-50 Yr Old Lady Officer Cannot Be Asked To Meet The Threshold Of Medical Fitness: Supreme Court

first_imgTop Stories[Permanent Commission] There Cannot Be Perverse Equality, A 45-50 Yr Old Lady Officer Cannot Be Asked To Meet The Threshold Of Medical Fitness: Supreme Court Mehal Jain4 March 2021 7:38 AMShare This – x”You want to be in the Armed Forces, you have to be as fit as a man. You have to be able to move ahead shoulder-to-shoulder with your male counterparts. But there cannot be a perverse equality. A 45-50 year old lady officer cannot be asked to meet the threshold standards of medical fitness”, observed Justice DY Chandrachud on ThursdayThese observations came on an argument by senior…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?Login”You want to be in the Armed Forces, you have to be as fit as a man. You have to be able to move ahead shoulder-to-shoulder with your male counterparts. But there cannot be a perverse equality. A 45-50 year old lady officer cannot be asked to meet the threshold standards of medical fitness”, observed Justice DY Chandrachud on ThursdayThese observations came on an argument by senior advocate Meenakshi Arora, appearing for the lady officers who have been denied Permanent Commission, that while in adjudging their suitability on merit, their intervening service records after the 5th or the 10th year of induction are disregarded, the medical yardstick that they are required to meet is that of an entry-stage Short Service Commission officer.”Women biologically cannot be compared to men, and more so after 20 years of service…there has to be gender-sensitisation in the army”, Ms. Arora had urged.At this, Justice Chandrachud remarked, “I have a slightly nuanced opinion on this. There has to be gender equality for women in the armed forces. They have to compete equally. You want to be in the Armed Forces, you have to be as fit as a man. You have to be able to move ahead shoulder-to-shoulder with your male counterparts. While the government may grant any relaxation or exemption by way of policy, it is not open for the court to do so through judicial review”But the judge proceeded to explain that there cannot be a “perverse equality” – a 45-50 year old woman cannot be required to meet the same standards of medical fitness as a 25-30 year old man.”They were available to be considered for PC at the age of 25-30 but they were not so considered because of the erstwhile policy of the Armed Forces. Now their (the Armed Forces) attitude seems to be, as it emerges from their affidavit, that ‘you went to the Supreme Court, you put up the flag of gender equality, here is gender equality in your face, what is your grievance now’? The attitude seems to be that you wanted to be treated at par with the men, so what are you crying about now? But your argument is that today, if your male counterparts are deemed fit to continue in service, so should you. The point is that they cannot apply threshold standards to you today”, he elaborated.”The theory is that the Armed Forces are for the men, for the people who can fight, and women are not fit enough for it. They are saying that now that you have got the benefit of the Supreme Court judgement, you cannot ask them to not apply the same standards to you. But that is not your argument! Your argument is that ‘apply the same standards at the same point of time’…This shows a perverse mind, that is all”, commented Justice Chandrachud.At the outset, Ms. Arora had pointed out that the judgement of the Supreme Court has been interpreted by the Armed Forces in the most literal sense. These lady officers who are being considered for PC after 25-30 years are expected to meet the same standards of fitness as that of a male officer in the 5th or the 10th year of service, but for merit, the yardstick is different, requiring equivalence with the lowest mark received by the male counterpart in the corresponding course. She had pointed out this dichotomy. “They say that they have applied the very same standards to us as that of the male officers. This approach has not been thought-through, it is arbitrary and it is used as a tool to exclude women officers where they can. They have taken equality in its literal sense and not in the figurative sense”, she had submitted. She had asked the bench if the court has so intended in its judgment. “No. We had meant that the lady officers should also be considered for PC alongside their male counterparts and that they should not be deprived of PC as against the male officers”, Justice Chandrachud had said.Justice Shah also pointed out, “They admit that at the age of 25- 30, you were found to be fit! It appears that according to them, your medical fitness is to be considered as of today, since you are applying for PC today, but they are forgetting that your consideration for PC in the 5th or the 10th year was denied (as the policy did not permit lady officers to be granted PC back then). So far as ACRs are concerned, your suitability is considered as on 10 years. However, your fitness has been considered only as of today. It appears that whatever good is there, they consider as on that day. Whatever bad is there, they consider as on today””For considering service performance, the intervening performance from the 10th to the 25th year, when you could have got PC, is not considered. No matter how many awards and honours you might have received in the intervening 15 years, no matter what service you have rendered to the nation in between! But for medical fitness, since you want PC today, so you are expected to meet the fitness of a man aged 25-30 today!”, remarked Justice Chandrachud.During the course of the initial arguments, it was pointed out that as per the Army Order of 1988, there was a limitation of 50% on the number of officers to be granted PC, 35% of the officers were to be entitled to an extension, and the remaining 15% who were not found eligible were to be phased out.Justice Chandrachud observed, “Assuming that for extension, lower parameters are acceptable, while for the grant of PC, a higher benchmark is to be met, those women who complied with the parameters at the relevant point of time for PC should at least get PC!”. “Even if the person was found fit for PC, they might have been placed in the 35% as only 50% of the officers could get PC. It was not that they were not medically fit!”, concurred Justice Shah. “It was because of the quota that those people could not get PC and only got an extension…The women officers who met the requirements for PC when they were considered for extension, those medical records must be available!”, noted Justice Chandrachud.The bench also noted that so far as the modality of recommendation from the commanding officers is concerned, the same had been rendered blank in the ACRs of the women officers. “And these recommendations are vital because they are made by the commanding officers who are in direct contact with these officers. They not only see how you turn up on duty, if you are a disciplined soldier etc but how you are in the mess, how you behave towards the spouses of other officers, other men and women. They look at you 360°, not just how you are at shooting the target. They know the kind of human being you are. We have been told that they extract work from you, so they are very empathetic towards their team of officers. The commanding officer would never desert his team, we have been told”, commented Justice Chandrachud.”The main submission that you have to answer is that why despite a judgement of this court, women officers are not being treated at par with their male counterparts starts from the bottom of your heart”, directed Justice Shah at ASG Sanjay Jain, who is scheduled to begin his submissions for the from Tuesday. “A wrong impression has been created before Your Lordships. We will respond or Tuesday”, said the ASG”It is an extremely hard service for women to take up. Look at the dedication. The Air Force has the same position, but there as high as 95% women have been granted PC. And this was following the High Court order itself! These are women who have participated in Operations Vijay, Parakram, Rakshak! These are women who have been posted at the extremely sensitive Western zone, they have been posted at high-altitudes. They are not ordinary women. They just can’t do these things today”, Ms. Arora had urged.The bench was told that the quantum of women getting PC is low as compared to their initial intake, being 22%, 30%, 33% or 36%, as against the proportion of their male counterparts which goes as high as 95% or 97% or even a hundred percent.Next Storylast_img

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