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Synopsis

The Supreme Court has declared that the manner in which the cut off marks have been applied for reckoning the confidential reports of women officers for empanelment as Colonels is arbitrary to the principles laid down by this Court in its judgment on permanent commission and contrary to the policy framework enunciated by Army itself.

"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 (permanent commission), the women officers have been compelled to move this Court repeatedly for the realisation of their rights," a bench of Chief Justices of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said.

Court has said that 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," the bench said.

It has also rejected a contention by the Army authorities that adequate vacancies were not available for accommodating the officers.

In this regard, it is common ground that in an earlier order dated November 21, 2022, the Court recorded the statement of the Army authorities that as many as 150 vacancies were to be made available pursuant to the judgment of this Court in Nitisha, the bench said.

"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," the bench said.

Applications were filed questioning the manner in which the confidential reports of the women officers were assessed for the purpose of selection boards after the decision in the Nitisha case. 

The applicant women officers claimed all the confidential reports, commencing from the 1992 batch onwards until 2005, have not been duly considered and the more recent CRs have been excluded from consideration.

"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," the bench said.

The court ordered that a fresh exercise of reconvening selection board should be conducted for all the women officers who were considered, except for those officers who have already been empaneled.

It also took into record Attorney General R Venkatramani's submission that a common cut off of June 2021 should be taken into reckoning in order to obviate any controversy.

It also noted 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.

The court also ordered those officers who have already been empaneled or promoted as Colonels, should not be disturbed or affected in any manner nor will their seniority be affected by the implementation of these directions.