New Delhi: The Supreme Court pulled up the Indian Army for showing “disservice” to women permanent commission officers who were denied promotion as Colonels as it found the cut off for considering their confidential reports to be “arbitrary” and directed that a fresh exercise be conducted within a fortnight to reconsider the case of nearly 136 women officers in the race for promotion.
A bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud said, “The cut off was applied arbitrarily in the present case to ostensibly equate the women officers to their male counterparts.” The Army and the Union government justified their action by relying on their policy framework and the top court’s judgment of March 2021 which laid common benchmarks for men and women short service commission officers to be considered for permanent commission.
The bench, also comprising justices JB Pardiwala and Manoj Misra said, “An attitude has been to find some way to defeat the just entitlements of women officers. Such an approach does disservice to the need to provide justice to the women officers, who have already fought a long and hard battle, to get their just entitlements under law.”
The women officers in their application filed last year had complained that the special selection board – 3 (SB-3) that empanels officers as Colonel had not met for 18 months despite the March 25, 2021 judgment in Nitisha v Union of India directing the Army to grant all consequential benefits including promotion and financial benefits to the women officers within 3 months. They alleged discrimination as the SB-3 was convened for male officers and those much junior in seniority to the women officers were getting empaneled.
In January this year, SB-3 convened for women officers declassified its results in which only 108 women officers got promoted against 150 vacant posts. A total of 136 women officers were left out. Nearly 40 women officers approached the top court against their non-empanelment.
Attorney general R Venkataramani appearing for Union government said that the cut off of May 31, 2012 applied to reckon the confidential reports of women officers was the same as that of the male officers. He justified it further by saying that 108 women officers qualified by this standard and 42 vacancies that remained would be filled by subsequent batches of women permanent commission officers.
The Court said, “In our view, the manner in which the cut off has been applied for reckoning the confidential reports of women officers for empanelment as Colonel is arbitrary as its contrary to the principles laid down in Nitisha judgment and the policy framework enunciated by the Army.” It was further held that such a process was violative of the fundamental principle of fairness under Article 14 of the Constitution of India.
Senior advocate R Balasubramanian who appeared for the Army pointed out that in December 2022, the Military Secretary branch had issued an order with regard to SB-3 for women officers which held the dates of cut off to be same as that of corresponding male batches. He further pointed out that consideration of confidential reports was given primacy over other considerations earning officers 87 out of 100 marks.
The Court noted this fact and said, “This indicates the primacy attributed to confidential reports. It also indicates the importance of correct evaluation of CRs that provides a correct reckoning of service by selection board.”
While the bench was conscious of the fact that Nitisha judgment was in the context of permanent commission and not promotion of women officers, the Court said that the judgment required consideration of their overall service profile. As per the policy framed by the Army, for SB-3 an officer gets “three looks” or three chances to be considered for promotion unlike permanent commission where they got one chance.
Ordinarily, the cut off dates for each chance is given across three years. In case of the women officers, all three chances were given by SB-3 in one go so that they do not have to wait again for their promotion. While doing so, their inter-se merit vis-a-vis other women officers was considered, the Centre said. The Army too argued that if all CRs are considered at one go, the other two chances are rendered “otiose”. The Court said that the remedy was to leave out the latest CRs in the “first look” that can be considered by SB-3 on the subsequent chances.
The order passed by the Court said, “A fresh exercise of reconvening of SB-3 shall be done within a fortnight.” The Court further held that that the SB-3 shall consider all confidential reports (CRs), except recent two CRs, while taking a fresh look. The two CRs will be reckoned for those women officers who fail to make it in the first chance and the same will be considered in their second and third chance.
AG Venkataramani submitted to the Court that a uniform cut-off of June 2021 will be taken for consideration. The Court further clarified that the 108 women officers who have already got empaneled will not be disturbed by this order and their seniority will also not be interfered with.
For the women officers, senior advocates Huzefa Ahmadi and V Mohana pointed out that the entire effort of the Army was to discriminate against women officers as most of these officers were of 1992 to 2006 batch and some were at the verge of their superannuation. Mohana said that the rule to freeze ACRs till 2011 was done to benefit the corresponding male officers. In their application, the women officers stated, “It is apparent that even after grant of permanent commission, the women officers are still being subjected to systematic, indirect and gender discrimination.”
Earlier in May this year, the top court had told the Centre, “It appears there is an attempt to get around our order. Tell the highest authority to rectify this or else we will come down heavily.”
The SC’s March 2021 judgment had said that any lady officer who qualified with 60% marks on merit and is medically fit has to be granted permanent commission, subject to disciplinary and vigilance clearance, while laying down common benchmarks for grant of permanent commission (PC) to both men and women short service commission officers.
By an earlier judgment of February 2020, the women officers secured their right to PC and command positions in non-combat streams at par with male officers. Soon after that, the women officers approached the court in September 2020 complaining against the whimsical standards on merit, medical fitness applied by selection board to deny them their due. This had resulted in the 2021 judgment.
