The current case before the Supreme Court of India concerns the promotion of female officers in the Indian Army to the rank of Colonel by selection.
The dispute concerns the promotion of women officers in the Indian Army to the rank of Colonel by selection. Following a prior court decision in the case of Nitisha vs. Union of India, these women officers were granted Permanent Commissions (PC).
However, their non-promotion by the Special No. 3 Selection Board (SB) became a point of contention. The core of the issue is that the women officers’ recent Confidential Reports (CRs) were not properly examined throughout the promotion process.
The female officers claimed that they were unjustly compared to their male counterparts from previous batches. They claimed that the Army authorities had breached both the policy framework and the spirit of the Nitisha ruling.
The Hon’ble Bench of Justice Dr Dhananjaya Y Chandrachud, Justice J B Pardiwala and Justice Manoj Misra stated that We are conscious of the fact that the judgment in Nitisha deals with the grant of PC, whereas in the present case the Court is concerned with the empanelment of officers who are granted PC for promotion as Colonels by selection. In that regard, the policy framework which has been set out by the letter dated 7 October 2002 which has been set out in the earlier part of this judgment makes it abundantly clear that CRs after nine years’ reckonable service was required to be taken into consideration. Subsequently, after the Quantitative Assessment System came into existence, it was clarified by the policy circular dated 17 March 2011 that the consideration of CRs for various SBs will be as per the policy in vogue at the time of consideration. The policy circular dated 23 December 2017 indicates the primacy which is attributed to CRs, which carry 89 out of a total of 100 marks. This indicates the importance of a correct evaluation and reckoning of the CRs since it forms the basis of promotion which is being considered by Special No 3 SB. The policy document of 31 October 2013 stipulates that the cut off CRs in respect of officers of batch will be promulgated by the MS Branch before the conduct of the Selection Board. In the counter affidavit which has been filed by the Army authorities, it has been specified that for the purpose of the work of Special No 3 SB, an officer is granted three looks, namely, the first look, the first review and the second review. Consequently, it has been stated that if all the CRs up to date were to be considered in the first look itself, the purpose of having a second look and a final review would be rendered otiose. We are in agreement with this logic. However, this would have perhaps justified the authorities to exclude the last CR which could have been considered at the final look and the CR prior to that, which could be considered at the stage of the first review. However, as the chart which we have annexed earlier indicates, a cut off was applied arbitrarily in the present case ostensibly to equate the women officers with their male counterparts. The arbitrariness of the cutoff is evident from the fact that the CRs for several years were kept out of reckoning altogether. A stray sentence in the judgment of this Court in Nitisha cannot be torn out of context. We are constrained to observe that the attitude has been to find some way to defeat the just entitlement of the women officers. Such an approach does disservice to the need to provide justice to the women officers who have fought a long and hard battle before this Court to receive their just entitlement under the law. Even after the judgment in Nitisha, the women officers have been compelled to move this Court repeatedly for the realization of their rights. An alternate ground has been sought to be raised on behalf of the Army authorities to the effect that adequate vacancies were not available for accommodating the officers. In this regard, it is common ground that in an earlier order dated 21 November 2022, the Court recorded the statement of the Army authorities that as many as 150 vacancies were to be made available pursuant to the judgment of this Court in Nitisha. Admittedly, as the counter indicates 108 vacancies have been filled up. The ground of the unavailability of vacancies would therefore not be available at this stage. We are, therefore, clearly of the view that the manner in which the applicants have been denied empanelment for the post of Colonel on a selection basis is arbitrary. Besides being violative of the fundamental principles of fairness embodied in Article 14 of the Constitution, the whole approach has been contrary to both the judgment of this Court in Nitisha as well as the applicable policy framework laid down by the Army authorities. We accordingly order and direct that: (i) A fresh exercise of reconvening Special No 3 SB shall be conducted no later than within a fortnight from the date of this order for all the women officers who were considered by the earlier Special No 3 SB (except for those officers who have already been empanelled); (ii) In the course of Special No 3 SB to be convened in pursuance of the above direction, the Attorney General states that a common cut off of June 2021 shall be taken into reckoning in order to obviate any controversy; (iii) Since during the pendency of these proceedings, one of the officers, Colonel (Time Scale) Asha Kale has retired, her case shall also be considered on a similar footing; and Those officers who have already been empanelled or promoted as Colonels, shall not be disturbed or affected in any manner nor will their seniority be affected by the implementation of these directions. The Miscellaneous Applications are accordingly disposed of. Pending applications, if any, stand disposed of.
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Written by- Namitha Ramesh
