Army's Approach To Promotion Of Women Officers Arbitrary, Contrary To Judgment : Supreme Court

The Supreme Court on Friday (November 3) criticized the Indian Army for its "arbitrary" attitude towards the promotion of women officers who have been granted permanent commission as per the earlier judgments of the Court.

The Court observed that the norms adopted by the Army have done "disservice to the need to provide justice to women officers who had fought a long and hard battle to receive just entitlements as their male counterparts."

The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing applications filed by women army officers for the implementation of the court's decision in Lt. Col. Nitisha v. Union of India, in which, a bench headed by Justice DY Chandrachud (as he was then in March 2021) recognised that the criteria for grant of permanent commission to women officers, although facially neutral, were, in effect, indirectly discriminatory.

The grievances were raised by women officers of the Indian Army all of whom had been granted permanent commission as per the decision in Nitisha. The issue related to their non-empanelment for promotion to the rank of Colonel. As per the policy which was made for empanelment, Confidential Reports (CRs) would be considered for promotion by the selection boards. The framework in question provided for primacy of CRs over other things, with the CRs accounting for 89 out of 100 marks. 

The dispute related to the manner in which the CRs of the women officers were assessed for the purpose of the promotions. It was held that the dates of CRs of women army officers would be the same as that of the corresponding male batches. The grievance of the women officers was that as a result of the direction, the CRs of women officers commencing from 1992 batch until 2005 had not been fully considered. 

The women officers, represented by Senior Advocate Huzefa Ahmadi and Senior Advocate V Mohana, asserted that as per the decision in Nitisha, the entire profile of women should be considered. However, a large chunk of their CRs have been excluded from their consideration on basis of bringing about an ostensible parity with male officers. Per contra, the Defence Ministry, represented by Attorney General Venkatramani and Senior Advocate Col R Balasubramanium explained that there was a distinction between procedure followed for conduct of Special Selection Board (SSB) 3 which had granted Permanent Commission to women as the SSB 3 only took one look at the candidate, as opposed to three looks which other SSBs offered. Ordinary these three looks were given by army in 3 years. However, in case of the women officers, 3 looks were given at the same time in January 2023 so as to ensure that women officers who got Permanent Commission wouldn't have to wait more for promotion. The Ministry also submitted that the profiles of women had not been compared with male counterparts but their own women batchmates.

The court found that the same cut-off had been adopted for the batches of women officers who were considered in SSB 3 as for corresponding male officers. The bench noted–

"In our view, the manner in which the cut-off has been applied for reckoning the CRs for women officers for empanelment as colonels is arbitrary because it is contrary to principles laid down in Nitisha and contrary to policy framework by Indian Army. The policy framework set out makes it clear that all CRs after 9 years service were required to be taken into consideration. Subsequently, after the quantitative assessment system came into existence, it was clarified that the consideration of CRs for all SSBs would be as per policy at the time."

Noting the primacy and importance of CRs, the court noted that the cut-off was applied arbitrarily in the present case to equate the women officers to their male counterparts. The bench stated–

"The attitude has been to find some way to end the just entitlements of women officers. Such an approach does disservice to the need to provide justice to women officers who have fought a long and hard battle to receive just entitlements...The manner in which applicants have been denied empanelment is arbitrary. The whole approach has been contrary to Nitisha judgement and framework of army authorities."

Accordingly, a fresh exercise of reconvening SSB 3 no later than the fortnight was ordered. The court further added–

"Those officers who have already been promoted as colonels shall not be affected or disturbed in any manner nor will their seniority will be affected."

As the matter was ending, the AG said–

"My lords, is the observation really necessary? That one paragraph?"

The CJI responded– "I will give it some shape. I may delete it."