Supreme Court of India
NITISHA AND OTHERSversusUNION OF INDIA AND OTHERS
- Citation
- 2023 INSC 985
- Decided
- 3 November 2023
- Disposal
- Disposed off
- Bench
- D Y CHANDRACHUD
Holding
The Court held that the manner in which cut‑off dates for Confidential Reports were applied to women officers for empanelment as Colonels was arbitrary, violated Article 14 and the Nitisha judgment, and therefore a fresh Special No 3 Selection Board must be convened with a uniform cut‑off.
Summary
The petitioners, women officers of the Indian Army who had been granted Permanent Commission following the Supreme Court's Nitisha judgment, challenged their non‑empanelment for promotion to Colonel by selection. They argued that the Army’s cut‑off dates for Confidential Reports (CRs) excluded a substantial portion of their service records, contrary to policy circulars that require consideration of CRs after nine years of reckonable service. The Court examined the relevant policy documents of 2002, 2011, 2013, and 2017, and found that the cut‑off dates applied to women officers were identical to those for their male counterparts, thereby omitting many years of CRs. Relying on the principles of fairness under Article 14 and the Nitisha judgment, the Court held that this method was arbitrary and discriminatory. Consequently, the Court directed that a fresh Special No 3 Selection Board be reconvened with a uniform cut‑off of June 2021 for all pending women officers, without disturbing those already empaneled. The miscellaneous applications were disposed of.
Issues considered
- The applicability of the Army's cut‑off dates for Confidential Reports to women officers seeking promotion to Colonel after the Nitisha judgment.
- Whether the exclusion of certain years of CRs for women officers violates the principle of equality under Article 14.
- Whether the Army's procedure aligns with the policy framework governing selection boards.
Subjects
Women officersIndian ArmyPermanent CommissionPromotionColonelSelection BoardConfidential ReportsEqualityArticle 14Nitisha judgment
Judgment
[2023] 15 S.C.R. 513 : 2023 INSC 985
CASE DETAILS
NITISHA AND OTHERS
v.
UNION OF INDIA AND OTHERS
(Miscellaneous Application No. 1913 of 2022)
In
(Writ Petition (Civil) No. 1109 of 2020)
NOVEMBER 03, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: The issue pertains to the women officers of
the Indian Army, who were granted Permanent Commission in pursuance
of the judgment of this Court in *Lieutenant Colonel Nitisha and Others
vs Union of India and Others, are aggreived by the non-empanelment for
promotion to the rank of Colonel by selection.
Armed forces – Women officers – Promotion to the rank of Colonel
by selection – Women officers granted Permanent Commission-PC
pursuant to *Lieutenant Colonel Nitisha v Union of India’s case,
aggreived by the non-empanelment for promotion to the rank of Colonel
by selection – Plea that all the Confidential Reports-CRs of women
officers commencing from the 1992 batch onwards until 2005 not duly
considered and the more recent CRs excluded from consideration:
Held: Manner in which the cut off was applied for reckoning CRs of
the women officers for empanelment as Colonels is arbitrary, since the CRs
for several years were kept out of reckoning altogether – Attitude was 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
– Manner in which the applicants have been denied empanelment for the post
of Colonel on a selection basis is arbitrary and violative of the fundamental
principles of fairness – Whole approach is contrary to both the judgment of
this Court in *Nitisha case as well as the policy framework laid down by the
513
514 SUPREME COURT REPORTS [2023] 15 S.C.R.
Army authorities – Thus, issuance of direction to reconvene Special No 3
SB afresh within the stipulated period for all the women officers who were
considered by the earlier Special No 3 SB (except for those officers already
been empaneled) – Constitution of India – Art 14.[Paras 21-23]
LIST OF CITATIONS AND OTHER REFERENCES
*Lieutenant Colonel Nitisha and Others vs Union of India and Others
(2021) 15 SCC 125 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Miscellaneous Application
No.1913 of 2022 in Writ Petition (Civil) No.1109 of 2020.
From the Judgment and Order dated 25.03.2021 in W.P. (C) No.1109
of 2020 of the Supreme Court of India.
With
Miscellaneous Application No.246 of 2023 in Writ Petition (Civil)
No.1109 of 2020.
Appearances:
R. Venkataramani, AG, Ms. V. Mohana, Huzefa Ahmadi, R.
Balasubramanian, Gopal Sankaranarayanan, Sr. Advs., Mrs. Sneha Bdtwe,
Ms. Bhavya Pande, Rakesh Kumar, Ms. Rashmi Singh, Sanjay Kumar Yadav,
Ms. Archana Pathak Dave, Mukesh Kumar Maroria, Chitvan Singhal, Ms.
Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Kartikay Agrawal,
Arvind Kumar Sharma, Ms. Seema Bengani, Ms. Shraddha Deshmukh, Adit
Khorana, Subodh Patil, Mrs. Swarupama Chaturvedi, Annirudh Sharma II,
Aman Shukla, Dr. N. Visakamurthy, Chinmayee Chandra, Rajan Kumar
Chourasia, Ms. Pooja Dhar, Harish Pandey, Mohit D. Ram, Ms. Liz Mathew,
Anant Vijay Palli, Nikhil Palli, Deepak Goel, Anas Tanwir, Sudhanshu S.
Pandey, Gaichangpou Gangmei, Samyak Gangwal, Rohin Bhansali, Ms.
Tanya Srivastava, Nishant Pandey, Ms. Ayushi Mishra, Ms. Lothungbeni
T Lotha, Yimyanger Longkumer, Ms. Chitrandga Rastravara, Vaibhav
Dwivedi, Aishwary Mishra, Dhananjai Shekhawat, Ms. Paridhi Arya Advs.
for the appearing parties.
NITISHA AND OTHERS v. UNION OF INDIA 515
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
1. The issue which has been raised in a clutch of applications pertains
to the implementation of the decision of this Court in Lieutenant Colonel
Nitisha and Others vs Union of India and Others1.
2. The grievance before this Court is by women officers of the Indian
Army, who have been granted Permanent Commission2 in pursuance of the
judgment of this Court. The issue in dispute relates to their non-empanelment
for promotion to the rank of Colonel by selection.
3. Before analyzing the factual grievance, it would be appropriate to
set out the policy framework.
4. On 7 October 2002, a communication was issued by the Military
Secretary’s3 Branch of the Army Headquarters setting out the basis on which
Confidential Reports4 would be considered for various Selection Boards5.
The title of the document is:
“Consideration of CRs for Selection Boards (SBs)”
5. Paragraph 3A of the letter deals with No 3 SB for promotion from
the rank of Lieutenant Colonel to Colonel and No 4 SB for promotion from
the rank of Major to Lieutenant Colonel. We are concerned with No 3 SB
since the dispute pertains to promotion from the rank of Lieutenant Colonel
to Colonel. Paragraph 3(a) indicates that “all CRs earned after completion
of nine years of reckonable service” have to be considered.
6. On 17 March 2011, another communication was issued by the MS
Branch of the Integrated Headquarters of the Ministry of Defence (Army)
in view of the adoption and implementation of the “Quantified System” for
1 (2021) 15 SCC 125
2 “PC”
3 “MS”
4 “CR”
5 “SBs”
516 SUPREME COURT REPORTS [2023] 15 S.C.R.
selection. Paragraph 3 of the letter states that paragraph 3 of the earlier letter
dated 7 October 2002 was being replaced in the following terms:
“…Consideration of CRs for various Selection Boards will be,
as per the policy in vogue at the time of consideration.”
7. On 31 October 2013, the MS Branch issued a communication to lay
down a comprehensive Adequately Exercised (AE) policy for consideration
of officers of 2002 and later batches by SB No 3. Appendix A to the circular,
inter alia, specifies cut offs. Paragraph 4 stipulates that the last report
(including Special CRs) is taken into consideration by the SB for promotion
to the next higher rank subject to certain conditions. Among the conditions,
condition (c) indicates that:
“Cut-off CR in respect of officers of a batch will be promulgated
by MS Branch before conduct of Selection Board.”
8. On 23 December 2017, the MS Branch issued a further
communication. The communication provides for the primacy of CRs,
vis-à-vis other parameters such as performance on courses and gallantry
awards, for Special No 3 SB. It has been stipulated that 89 marks out of a
total of 100 would be allocated to the CRs.
9. The judgment of this Court in Nitisha (supra) dealt with the denial of
PC to Women Short Service Commission Officers (WSSCOs) of the Indian
Army. In order to shed some light on the controversy in the present case, it
would be appropriate to refer to the observations in paragraphs 109.5 and
113, which are as follows:
“109.5 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 24-2-2012 specifically
contemplates that in evaluating the overall performance of the
NITISHA AND OTHERS v. UNION OF INDIA 517
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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 supplied)
In spite of the above clear stipulations, it is now an admitted
position that the distinguished record of the WSSCOs beyond
the 5th/10th year of service has been disregarded. The laurels
achieved by them in the service of the nation after the 5th/10th
year of service have been ignored.
113.Finally, the above analysis indicates that there has been
a flawed attempt to peg the achievements of the WSSCOs at
the 5th/10th years of service thereby ignoring the mandate
that the last ACR ought to be considered and the quantitative
performance for the entire record of service must be assessed.
Considering the ACRs as on the 5th or 10th year of service
for grant of PC would have been appropriate, if the WSSCOs
were being considered for PC at that point of time. However,
the delayed implementation of the grant of PC to WSSCOs by
the Army and considering of ACRs only till the 5th/10th year
of service has led to a situation where, in effect, the Army has
obliviated the years of service, hard work and honours received
by WSSCOs beyond their 5th/10th year of service and relegated
them back to a position they held, in some cases, more than
10 years ago. The lack of consideration given to the recent
performance of WSSCOs for grant of PC is a disservice not
just to these officers who have served the nation, but also to
the Indian Army, which on one hand salutes these officers by
awarding them honours and decorations, and on the other hand,
fails to assess the true value of these honours when it matters the
518 SUPREME COURT REPORTS [2023] 15 S.C.R.
most — at the time of standing for the cause of the WSSCOඌ to
realise their rights under the Constitution and be treated on an
equal footing as male officers who are granted PC.”
10. The nub of the dispute in the present case relates to the manner
in which the CRs of the women officers were assessed for the purpose of
Special No 3 SB after the decision in the above case.
11. In a communication dated 12 December 2022, the MS Branch
dealt with the modalities to be followed by Special No 3 SB in respect of
the women officers “post” (that is, after) “the grant of PC”. As regards their
CRs, paragraph 2(b) of the letter reads thus:
“CRs. The dates of Cut-off CR for WOs Spl No 3 SB will be
same as that of their corresponding male batches, when they were
considered by No 3 SB.”
12. The grievance of the women officers who are before this Court
is that as a result of the above direction, all the CRs of women officers
commencing from the 1992 batch onwards until 2005 have not been duly
considered and the more recent CRs have been excluded from consideration.
This is indicated in the tabulation which is annexed to the application before
the Court which is reproduced below:
S No Batch Approx Cut off Spl No 3 SB dt No of years of which
CR Dt CRs not considered for
Spl No 3 SB (Approx)
1. 1992 2008 09 Jan 2023 14
2. 1994 2010 09 Jan 2023 12
3. 1995 2011 10 Jan 2023 11
4. 1996 2012 11 Jan 2023 10
5. 1997 2013 12 Jan 2023 09
6. 1998 2014 13 Jan 2023 08
7. 1999 2015 14 Jan 2023 07
8. 2000 2016 15 Jan 2023 06
9. 2001 2017 16 Jan 2023 05
10. 2002 2018 17 Jan 2023 04
11. 2003 2019 18 Jan 2023 03
NITISHA AND OTHERS v. UNION OF INDIA 519
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
12. 2004 2020 19 Jan 2023 02
13. 2005 2021 20 Jan 2023 01
13. We have heard Mr Huzefa Ahmadi and Ms V Mohana, senior
counsel in support of the applications which have been filed by the women
officers. Mr R Venkataramani, Attorney General appears for the Union of
India with Mr R Balasubramanian, senior counsel.
14. The grievance which has been put forth by Mr Ahamdi and Ms
Mohana is precisely this:
(i) In terms of the policy circulars the empanelment of women
officers for the rank of Colonel is required to be considered on
the basis of all the CRs after the ninth year of service;
(ii) In the judgment in Nitisha (supra), this Court had emphasized
the need to consider the entire profile of the women officers albeit
in the context of the grant of PC;
(iii) An anomalous situation has resulted under which though for the
grant of PC, the entire reckonable service has been taken into
account, yet in the matter of considering them for empanelment
as Colonels, a large chunk of their CRs has been excluded from
consideration by Special No 3 SB on the basis of bringing about
an ostensible parity with male officers; and
(iv) The approach which has been adopted by the Army authorities
is contrary to the policy circulars as well as to the judgment of
this Court.
15. Counter affidavits have been filed on behalf of the Union of India
in these proceedings. The Learned Attorney General has submitted that
108 women officers have been empaneled for promotion as Colonels on
the same basis which would indicate that there has been no discrimination.
The Attorney general has relied on the explanation tendered in the Counter
Affidavit of the Union of India.
16. In the counter affidavit, it has been explained that there is a
distinction between the procedure which is followed for the conduct of
Special No 3 SB and Special No 5 SB. In the latter, the officer who is
considered for the grant of PC gets only one ‘look’ by the Board. On the
520 SUPREME COURT REPORTS [2023] 15 S.C.R.
other hand, in the case of Special No 3 SB, each officer gets a mandatory
three looks (fresh look, first review and final review) by the Board. For
each look, there is a cutoff date for the CR. Ordinarily, these three looks
in Special No 3 SB are given to the officers of the Indian Army in a span
of three years. However, in the case of the women officers in question,
the three mandatory looks were given at the same time in January 2023
to ensure that (i) women officers who had just received PC should not
wait for another two or three years for being considered for promotion
in No 3 SB; and (ii) once they are empanelled, they would be posted to
command appointments to enable them to earn requisite experience for
being considered for further promotion by No 2 SB. It has been submitted
that the profile of women officers has not been compared with the male
counterparts, but with women officers who were their batch mates. In this
context, it would be appropriate to extract from the following averments
which are contained in the counter affidavit:
“To elaborate, every officer is given three looks for promotion by
Selection Board. If an Officer is not empanelled in their Fresh (1st)
look, then he/she is considered for promotion in Second look (First
Review) with additional input of one more Confidential Report. If
again not empanelled, then Third look (Final Review) with one more
additional input of Confidential Report is granted to the Officer. It is
for this reason that not all the latest CRs are taken into consideration
for the reason that the second and third look would then be rendered
otiose. If the contention of the Petitioners/Applicants of considering
their CRs as on date is accepted, then the review looks (second and
third looks) for promotion would not have any additional input and
the Special No.3 SB would be considering the same profile all three
times and that too, with Confidential Reports covered only in the rank
of Lt Col. This would have been contrary to laid down Selection Board
policies which mandate additional inputs for second and third look.
The authorities were conscious of this fact and it is for this reason the
cut off CRs of the Women Officers were corresponding to the male
batches and not their latest CRs.”
17. Annexure R-8 to the counter affidavit filed by the Union
Government contains a comparison between the cut off CRs which have
NITISHA AND OTHERS v. UNION OF INDIA 521
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
been taken into reckoning for women officers and for male officers of
corresponding batches. The tabulated statement indicates the position for
various regiments of the Indian Army. Of them, we are concerned with the
first, namely, the Army Ordnance Corps (AOC). For the AOC, the tabulated
statement indicates the following position:
Cor re s p ondi ng
Ser No Arm/Services Batch Cut-off-CR Wos Male
Batch Cut-off-CR
1995 31 May 12 31 May 12
1996 31 May 13 31 May 13
1997 31 May 13 31 May 13
1998 31 May 14 31 May 15
1999 31 May 15 31 May 15
4. AOC 2000 31 May 16 31 May 16
2001 31 May 17 31 May 17
2002 31 May 18 31 May 18
2003 31 May 19 31 May 19
2004 31 May 20 31 May 20
2005 31 May 21 31 May 21
18. The above tabulation shows that the same cut off has been adopted
for batches of the women officers who were considered in Special No 3 SB
as for corresponding batches of male officers. For example, for the 1995
batch, the cut off for both the women officers and the corresponding male
officers is 31 May 2012. For the succeeding batches right up to 2005, the
tabulated chart shows that the same cut off has been applied. The manner in
which the cut off has been applied for reckoning CRs of the women officers
for empanelment as Colonels is arbitrary because it is both contrary to the
principles which were laid down by this Court in its judgment in Nitisha
and contrary to the policy framework which has been enunciated by the
Indian Army itself.
19. 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
522 SUPREME COURT REPORTS [2023] 15 S.C.R.
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 were 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 2011that 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.
20. 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.
21. 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
NITISHA AND OTHERS v. UNION OF INDIA 523
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
women officers have been compelled to move this Court repeatedly for the
realization of their rights.
22. 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.
23. 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 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.
524 SUPREME COURT REPORTS [2023] 15 S.C.R.
24. The Miscellaneous Applications are accordingly disposed of.
25. Pending applications, if any, stand disposed of.
Headnotes prepared by: Miscellaneous Applications disposed of.
Nidhi Jain
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