The recent verdict in Miscellaneous Application No. 1913 of 2022, arising from Writ Petition (Civil) No. 1109 of 2020, has cast a spotlight on the intricate issues surrounding the promotion of female officers in the Indian Army. Decided on November 3, 2023, this case, presided over by Chief Justice Dr D.Y. Chandrachud, addresses the aftermath of the landmark judgment in Lieutenant Colonel Nitisha v. Union of India.
Unraveling the Policy Framework
To understand the nuances of the dispute, it’s essential to delve into the policy framework that underpins the selection process for promotions. The Military Secretary’s Branch issued a communication on October 7, 2002, outlining criteria for considering Confidential Reports (CRs) for various Selection Boards. The focus of our contention lies in Paragraph 3A, which stipulates that all CRs earned after nine years of reckonable service must be considered for promotions from Lieutenant Colonel to Colonel.
However, subsequent communications in 2011 and 2013 modified this policy, emphasizing the alignment of CR considerations with the prevailing policy. The complexity deepens with the introduction of an Adequately Exercised (AE) policy in 2013, adding specific conditions for the consideration of the last report.
The Nitisha Judgment’s Relevance
The Nitisha judgment, addressing the denial of Permanent Commission to Women Short Service Commission Officers (WSSCOs) of the Indian Army, highlighted a critical aspect. Paragraphs 109.5 and 113 underscored the disregard for the achievements of WSSCOs beyond the 5th/10th year of service. This sets the stage for the current dispute, focusing on the evaluation of CRs for Special No 3 Selection Board (SB) post the Nitisha decision.
Grievances and Counterarguments
The crux of the matter lies in the exclusion of CRs from the 1992 batch onwards until 2005 for women officers, as outlined in a communication dated December 12, 2022. The argument from Mr Huzefa Ahmadi and Ms V Mohana, supporting the women officers, revolves around empanelment for the rank of Colonel. They assert that, as per policy circulars, all CRs after the ninth year of service should be considered, in alignment with the Nitisha judgment and Army policy.
Contrastingly, the Attorney General, Mr R Venkataramani, representing the Union of India, contends that 108 women officers have been empaneled, indicating no discrimination. The Union’s Counter Affidavit supports this, elucidating the procedural distinctions between Special No 3 SB and Special No 5 SB.
Assessing Fairness and Arbitrariness
A critical juncture of the dispute arises from the examination of cut-off CRs for women officers compared to their male counterparts, as presented in Annexure R-8. While attempts are made to demonstrate fairness in the process, the exclusion of CRs for several years raises questions about arbitrariness, contrary to both the Nitisha judgment and the Army’s policy.
The Court’s Decisive Verdict
In its ruling, the apex court deems the manner in which women officers were denied empanelment for the post of Colonel as arbitrary. This is seen as a violation of the fundamental principles of fairness enshrined in Article 14 of the Constitution and in direct contradiction to both the Nitisha judgment and Army policy.
The court orders a fresh convening of Special No 3 SB for all women officers considered by the earlier Board (except those already empaneled) within a fortnight. A common cut-off of June 2021 is mandated to avoid controversy. Notably, empaneled or promoted officers will not be affected by these directions, ensuring a fair and just resolution.
Conclusion
In conclusion, the intricate legal proceedings surrounding the promotion of women officers in the Indian Army bring to light the delicate balance between policy, court judgments, and the fundamental principles of fairness. The court’s verdict, by addressing the specific grievances and mandating corrective measures, not only ensures justice for the applicants but also underscores the importance of adherence to constitutional principles and established policies.
In the Apex Court of India
(Before Dr D.Y. Chandrachud, Chief Justice, and J.B. Pardiwala and Manoj Misra, Justices)
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
Miscellaneous Application No. 1913 of 2022, Writ Petition (Civil) No. 1109 of 2020, Miscellaneous Application No. 246 of 2023, and Writ Petition (Civil) No. 1109 of 2020
Decided on November 3, 2023
