The Supreme Court's benchmark of 60% for Permanent Commission cannot be reduced, regardless of flaws in past appraisal systems.

JUDGMENT

Manmohan, J.: (Oral)--The petitions have been heard by way of video conferencing.

2. Present writ petitions have been filed challenging the interim order dated 27th August 2021 passed by the Armed Forces Tribunal, Principal Bench, New Delhi [AFT]. Petitioners also seek a direction to the Respondents not to release the Petitioners from service on 12th September, 2021.

3. Learned counsel for the petitioners states that the AFT has by way of an evasive order rejected the prayer of the petitioners for staying the operation of release order dated 15th July, 2021 vide which the petitioners have been ordered to be released on 12th September, 2021. He states that the AFT has fixed the next date of hearing on 27th September, 2021 and if stay on release is not granted by this Court, the petitioners will be released from service on 12th September, 2021.

4. Learned counsel for the petitioners states that the AFT erred in not appreciating that out of 615 Women Officers, who were considered for Permanent Commission by Special Selection Board No.5, only fifteen women officers, who opted for Permanent Commission, have secured less than 60% marks. He contends that all women officers who could not secure 60% marks, are senior officers, whose first five years of service fell between the years 1999 and 2005 i.e. when Unit Assessment Card (UAC) Appraisal System was in force. He states that efficiency of UAC Appraisal System in judging an officer for Permanent Commission was suspected even by the respondents and consequently the said appraisal System was dispensed with vide letter dated 22nd September, 2005 and Annual Confidential Report (ACR) based appraisal system was introduced. He emphasises that no women officer, whose ACRs were only taken into account by the Special Selection Board No.5, has secured less than 60% marks. He further emphasises that fifteen women officers could not secure 60% marks due to inefficient and defective UAC appraisal System and contends that all UAC affected women officers being in highly disadvantageous position are a distinct class. He states that all UAC affected women officers are therefore entitled to differential treatment and for them benchmark ought to be much lower than 60%.

5. Learned counsel for the petitioners also submits that the action of the respondents is violative of the Supreme Court judgment in the case of Lt. Col. Nitisha & Ors. Vs. Union of India & Ors. dated 25th March, 2021, wherein it has been held as under:

"(v) It has been admitted in the counter-affidavit that the confidential reports, discipline and vigilance reports if any, and honours and awards as on the 5th or 10th years of service were considered in the case of the women officers. As a consequence of this, the qualifications, achievements and performance of women officers after the 5th or 10th year of service (as the case may be) have been ignored. At this stage, it is necessary to note that para 13(b) of AO 18/1988 specifically contemplates the "last ACR before assessment for PC" being taken into reckoning for grant of PC. Similarly MoD's Policy Letter dated 24 February 2012 specifically contemplates that in evaluating the overall performance of the officer, "the average will be worked out for each year as well as for the entire period of officers' services". Para 4(a) stipulates thus:

"(a) QAP: Overall performance of the officer is evaluated by taking the average of figurative assessment of all reporting officers other than FTO and HTO. Average will be worked out for each year as well as for the entire period of officers service. The latter QAP will be converted into a proportion of 75 marks."

(emphasis s