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 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)”
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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.”
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(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)
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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.
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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
4. AOC 2000 31 May 16 31 May 16
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.
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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
MA 1913/2022
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.
[Dr Dhananjaya Y Chandrachud]
[J B Pardiwala]
[Manoj Misra]
New Delhi; November 3, 2023 CKB