Supreme Court directs fresh review for women officers’ promotions: Nitisha vs. Union of India (2023)

Introduction

Date of the Judgment: 3 November 2023
Citation: 2023 INSC 985
Judges: Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala, J, Manoj Misra, J.

Can the Indian Army selectively apply its promotion policies to women officers who have been granted Permanent Commission (PC) after a long legal battle? The Supreme Court of India recently addressed this question, finding that the Army’s approach to the promotion of women officers to the rank of Colonel was arbitrary and discriminatory. This judgment stems from a series of applications regarding the implementation of the Supreme Court’s earlier decision in Lt. Col. Nitisha and Others vs. Union of India and Others, which granted PC to women officers. The court, in this judgment, found that the Army had not properly considered the Confidential Reports (CRs) of women officers, thus denying them fair consideration for promotion.

Case Background

The case revolves around the implementation of Permanent Commission (PC) for women officers in the Indian Army, following the Supreme Court’s judgment in Lt. Col. Nitisha and Others vs. Union of India and Others. After being granted PC, these women officers were considered for promotion to the rank of Colonel. However, the Army’s method of assessing their Confidential Reports (CRs) for promotion was challenged. The women officers argued that the Army had excluded a significant portion of their CRs from consideration, particularly those earned after their 9th year of service, which is contrary to the Army’s own policies and the spirit of the Supreme Court’s earlier judgment.

Timeline:

Course of Proceedings

The women officers, who had been granted PC following the Supreme Court’s judgment in Lt. Col. Nitisha and Others vs. Union of India and Others, filed applications before the Supreme Court. They raised concerns about the manner in which their Confidential Reports (CRs) were being assessed for promotion to the rank of Colonel. The officers contended that the Army was not considering their entire service record, particularly the CRs earned after their ninth year of service. This was seen as a violation of the Army’s own policies and the spirit of the Supreme Court’s earlier judgment. The Supreme Court, after hearing the arguments, found merit in the women officers’ claims.

Legal Framework

The judgment refers to several policy communications issued by the Indian Army regarding the consideration of Confidential Reports (CRs) for promotions:

• Communication dated 7 October 2002: This communication from the Military Secretary’s Branch of the Army Headquarters outlined the basis for considering CRs for various Selection Boards (SBs). Paragraph 3(a) specified that “all CRs earned after completion of nine years of reckonable service” must be considered for promotion from Lieutenant Colonel to Colonel.
• Communication dated 17 March 2011: This communication replaced the earlier policy, stating that “Consideration of CRs for various Selection Boards will be, as per the policy in vogue at the time of consideration.”
• Communication dated 31 October 2013: This communication laid down a comprehensive Adequately Exercised (AE) policy for consideration of officers by SB No 3. It stipulated that the last report is taken into consideration by the SB for promotion, subject to certain conditions, including that “Cut-off CR in respect of officers of a batch will be promulgated by MS Branch before conduct of Selection Board.”
• Communication dated 23 December 2017: This communication emphasized the primacy of CRs for Special No 3 SB, allocating 89 out of 100 marks to CRs.
• Army Order 18/1988: Para 13(b) of AO 18/1988 specifically contemplates the “last ACR before assessment for PC” being taken into reckoning for grant of PC.
• Ministry of Defence Policy Letter dated 24-2-2012: Para 4(a) stipulates 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”. The latter QAP will be converted into a proportion of 75 marks.

These policies collectively highlight the importance of considering an officer’s entire service record, particularly the CRs earned after nine years of service, for promotion to the rank of Colonel.

Arguments

The arguments presented by the women officers and the Union of India are summarized below:

Arguments by the Women Officers:

• Policy Violation: The women officers argued that the Army’s policy circulars mandate the consideration of all CRs after nine years of service for promotion to the rank of Colonel.

• Supreme Court Precedent: They emphasized that the Supreme Court’s judgment in Nitisha stressed the need to consider the entire profile of women officers, even though it was in the context of granting PC.

• Anomalous Situation: The women officers highlighted the inconsistency where their entire service record was considered for the grant of PC, but a significant portion of their CRs was excluded for promotion to Colonel, creating an unfair situation.

• Arbitrary Exclusion: They contended that the Army’s approach of excluding recent CRs was arbitrary and contrary to both the policy circulars and the Supreme Court’s judgment.

Arguments by the Union of India:

• No Discrimination: The Union of India argued that 108 women officers had been empanelled for promotion as Colonels on the same basis, indicating no discrimination.

• Distinction Between Selection Boards: They explained that Special No 3 SB has a different procedure than Special No 5 SB. In Special No 3 SB, officers get three ‘looks’ (fresh look, first review, and final review) with a cut-off date for CRs for each look. This was done to ensure that women officers who had just received PC would not have to wait for another two or three years before being considered for promotion.

• Parity with Male Officers: They argued that the cut-off dates for CRs were set to correspond with the cut-off dates for male officers of the same batch, ensuring parity.

• Additional Input for Review: The Union of India argued that if all the latest CRs were taken into account, the second and third looks would be rendered useless, as there would be no additional input for review.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issue:

1. Whether the manner in which the CRs of women officers were assessed for the purpose of Special No 3 SB after the decision in Nitisha (supra) was proper and in accordance with the applicable policy framework?

The court also considered the sub-issue of whether the cut-off dates for considering CRs were applied arbitrarily, thereby denying fair consideration for promotion to the women officers.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Lieutenant Colonel Nitisha and Others vs Union of India and Others [(2021) 15 SCC 125] – Supreme Court of India: This case dealt with the denial of PC to Women Short Service Commission Officers (WSSCOs) of the Indian Army. The court emphasized that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed.

Legal Provisions:

• Army Order 18/1988: Para 13(b) of AO 18/1988 specifically contemplates the “last ACR before assessment for PC” being taken into reckoning for grant of PC.
• Ministry of Defence Policy Letter dated 24-2-2012: Para 4(a) stipulates 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”. The latter QAP will be converted into a proportion of 75 marks.

Table of Authorities

Judgment

The Supreme Court held that the manner in which the Indian Army assessed the Confidential Reports (CRs) of women officers for promotion to the rank of Colonel was arbitrary and discriminatory. The Court found that the Army had improperly excluded a significant portion of the women officers’ CRs, particularly those earned after their ninth year of service. This was deemed contrary to the Army’s own policies and the principles established in the Supreme Court’s earlier judgment in Lt. Col. Nitisha and Others vs. Union of India and Others.

The Court noted that while the Army’s argument for a three-look review process had merit, the arbitrary cut-off dates for CRs were not justified. The Court also rejected the argument that a lack of vacancies justified the denial of promotions, pointing out that 108 vacancies had been filled. The court emphasized that the approach taken by the Army authorities was violative of the fundamental principles of fairness embodied in Article 14 of the Constitution.

The Court directed the Army to conduct a fresh review of the women officers’ cases, using a common cut-off date of June 2021 for all CRs. The Court also clarified that the officers who had already been promoted would not be affected by this order.

How each authority was viewed by the Court?

• Lieutenant Colonel Nitisha and Others vs Union of India and Others [(2021) 15 SCC 125]: The Court relied on this judgment to emphasize the need to consider the entire service record of women officers and not just a limited period. The court noted that a stray sentence in the judgment of this Court in Nitisha cannot be torn out of context.
• Army Order 18/1988: The Court used this order to highlight the importance of considering the “last ACR before assessment for PC.”
• Ministry of Defence Policy Letter dated 24-2-2012: The Court referred to this policy to support the need to evaluate the overall performance of officers by considering their entire service period.

What weighed in the mind of the Court?

The Supreme Court’s decision was significantly influenced by the following factors:

• Arbitrariness: The Court found that the cut-off dates for CRs were applied arbitrarily, without any reasonable justification. This arbitrariness led to the exclusion of several years of service from consideration, which was deemed unfair.
• Policy Violation: The Court noted that the Army’s approach violated its own policy circulars, which mandated the consideration of all CRs after nine years of service.
• Discrimination: The Court emphasized that the Army’s approach was discriminatory towards women officers, as it failed to consider their entire service record, especially the CRs earned after their ninth year of service.
• Need for Justice: The Court expressed concern that the women officers were being compelled to repeatedly approach the court for the realization of their rights, even after the judgment in Nitisha. This indicated a need for the court to ensure that the women officers were treated fairly.
• Constitutional Principles: The Court underscored that the Army’s actions were violative of the fundamental principles of fairness embodied in Article 14 of the Constitution.

The Court’s sentiment was clear: the Army’s approach was not only procedurally flawed but also fundamentally unjust.

Logical Reasoning

Key Takeaways

• Fair Assessment: The Indian Army must ensure a fair and comprehensive assessment of all officers’ Confidential Reports (CRs) for promotion, in line with its own policies and the spirit of the Supreme Court’s judgments.
• No Arbitrary Cut-offs: The Army cannot apply arbitrary cut-off dates for CRs, especially when it leads to the exclusion of significant portions of an officer’s service record.
• Equal Treatment: Women officers are entitled to equal treatment and opportunities for promotion, and their service records must be evaluated without discrimination.
• Policy Adherence: The Army must adhere to its own policy framework and ensure that its actions are not contrary to the principles of fairness and justice.

Directions

The Supreme Court issued the following directions:

1. 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).
2. In the course of Special No 3 SB to be convened in pursuance of the above direction, a common cut off of June 2021 shall be taken into reckoning in order to obviate any controversy.
3. 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.
4. 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.

Development of Law

The ratio decidendi of this case is that the Indian Army must adhere to its own policies and the principles of fairness when considering women officers for promotion. The court clarified that the Army cannot arbitrarily exclude a significant portion of an officer’s service record, especially when it is contrary to its own policies and the spirit of the Supreme Court’s earlier judgments. This case reinforces the principle of non-discrimination and equal opportunity for women officers in the armed forces. There is no change in the previous position of law, but this case clarifies the implementation of the same.

Conclusion

The Supreme Court’s judgment in Nitisha vs. Union of India (2023) is a significant step towards ensuring fair and equal opportunities for women officers in the Indian Army. The Court’s direction for a fresh review of promotions, using a common cut-off date, underscores the importance of adhering to policy and constitutional principles of fairness. This case serves as a reminder that the Army must not only grant Permanent Commission to women officers but also ensure that they are given equal consideration for promotion, without any form of discrimination.