Army’s Approach In Promotion Of Women Officers Is Arbitrary And Contrary To Dictum Of Lt.Col. Nitisha Case: Supreme Court

The Supreme Court observed that the approach adopted by the Army authorities while considering the promotion of women officers is arbitrary and contrary to the dictum of this Court in the case of Lieutenant Colonel Nitisha and Others v Union of India and Others [(2021) 15 SCC 125].

The Court disposed of the Applications filed by some women officers of the Indian Army. They contended that the Confidential Reports (CRs) commencing from the 1992 batch onwards until 2005 were not duly considered and the more recent CRs have been excluded from consideration.

“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”, the Bench headed by Chief Justice DY Chandrachud also comprising Justice JB Pardiwala and Justice Manoj Misra observed.

Senior Advocates Huzefa Ahmadi and V Mohana appeared for Applicants and Attorney General R Venkataramani with Senior Advocate R Balasubramanian appeared for the Union/Respondent.

The issue was regarding the promotion of women officers of the Indian Army who were granted Permanent Commission (PC) in pursuance of the Judgment of the Supreme Court in Lieutenant Colonel Nitisha (supra). They were not considered for promotion to the rank of Colonel by selection because their CRs were not considered. The CRs of the women officers were not considered because the cut-off date for CRs was the same as that of their corresponding male batches when they were considered by the No 3 Selection Board (SB 3). As a result, all the CRs of women officers commencing from the 1992 batch onwards until 2005 were not duly considered and the more recent CRs have been excluded from consideration. Aggrieved, the women officers of the Indian Army approached the Court.

The Court noted that the policy framework for the empanelment of officers for promotion as Colonels by selection requires that CRs after nine years of reckonable service be taken into consideration. The policy, dated December 23, indicates that CRs carry 89 out of a total of 100 marks, which emphasizes the importance of a correct evaluation and reckoning of the CRs. The policy, dated October 31, stipulates that the cut-off CRs in respect of officers of the batch will be promulgated by the MS Branch before the conduct of the Selection Board.

Furthermore, the Court observed that the Army authorities have specified that an officer is granted three looks for Special No 3 SB. The authorities have argued 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. The Court accepted the contention but also asserted that the authorities had arbitrarily applied a cut-off in the case to equate the women officers with their male counterparts.

Additionally, the Court emphasized that the attitude of the concerned authorities has been to find some loophole to defeat the just entitlement of the women officers. The Court has stated that the Army's approach is arbitrary and in violation of the fundamental principles of fairness. The Court has also stated that the Army's approach is contrary to both the judgment of the Court in Nitisha (supra) as well as the applicable policy framework laid down by the Army authorities.

“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”, the Bench noted.

The Court further noted that the arbitrariness of the cut-off was evident from the fact that the CRs for several years were kept out of reckoning altogether. The Court laid down the following directions:

“(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 empaneled);

(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

(iv) Those officers who have already been empaneled 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”.

Accordingly, the Court disposed of the Applications.

Cause Title: Nitisha and Others v Union of India and Others (2023 INSC 985)

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