Nitisha vs Union Of India

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Miscellaneous Application No 1913 of 2022

In

Writ Petition (Civil) No 1109 of 2020

Nitisha and Others Applicant(s)

Versus

Union of India and Others Respondent(s)

WITH

Miscellaneous Application No 246 of 2023

In

Writ Petition (Civil) No 1109 of 2020

JUDGMENT

Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2023.11.07 Page 1 of 14 16:17:33 IST Reason:

MA 1913/2022

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 Commission 2 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’s 3

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)”

1 (2021) 15 SCC 125 2“PC” 3“MS” 4“CR” 5“SBs”

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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 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.”

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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 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.”

Page 4 of 14 MA 1913/2022

(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 most — at the time of standing for the cause of the WSSCOS 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

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“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 CR Dt which 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 12. 2004 2020 19 Jan 2023 02 13. 2005 2021 20 Jan 2023 01 Page 6 of 14 MA 1913/2022

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.

Page 7 of 14 MA 1913/2022 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 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

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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 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:

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Ser No Arm/Services Batch Cut-off-CR Wos Corresponding 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.

Page 10 of 14 MA 1913/2022

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

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

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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 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

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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

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(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.

24 The Miscellaneous Applications are accordingly disposed of.

25 Pending applications, if any, stand disposed of.

….....…...….......…………………..CJI.

[Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [J B Pardiwala]

..…....…........……………….…........J. [Manoj Misra]

New Delhi;

November 3, 2023 CKB

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