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New Delhi, February 17, 2020
Insisting on shaking-off typical arguments founded on the physical strengths and weaknesses of men and women, the Supreme Court in a landmark judgement on Monday said the delay in granting permanent commission (PC) to women officers has caused "irreparable prejudice" to them.
It directed the Centre to grant PC to the women officers in the Army within three months and said the arguments founded on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers.
A bench comprising Justices D. Y. Chandrachud and Ajay Rastogi, said: "Short Service Commission (SSC) women officers, both within the period of fourteen years' service and beyond, should equally be entitled to consideration for the grant of PCs."
"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," noted the top court.
The apex court noted the policy decision which has been taken by the Centre on February 25, 2019, indicates that PC is to apply prospectively.
The top court said that it is necessary to clarify that the prospective application of the decision does not mean that it would apply to women officers who have been appointed as SSC officers after the date of the decision.
"We therefore clarify that the policy decision will apply to all women SSC officers who are currently in service irrespective of the length of service which has been rendered by them," said Justice Chandrachud.
The top court observed policy decision of the Centre is recognition of the right of women officers to equality of opportunity, where one facet is the principle of non-discrimination on the ground of sex which is embodied in Article 15(1) of the Constitution; and, the second facet of the right is equality of opportunity for all citizens in matters of public employment under Article 16(1).
"The policy statement of the Union Government must therefore be construed as a decision which enforces the fundamental right of women to seek access to public appointment and to equality of opportunity in matters of engagement relating to the Army," observed Justice Chandrachud.
The top court observed that the Centre is clinging on the sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women.
The Centre had also argued on the "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."
Justice Chandrachud termed it "strong stereotype", which assumes that domestic obligations rest solely on women.
"Reliance on the '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," said Justice Chandrachud hitting out at prevalent stereotypical notion against women.