IMPORTANT POINT
Women officers of Indian Army who have been granted Permanent Commission, cannot be denied promotion to rank of Colonel by selection.

JUDGMENT :

(Dhananjaya Y. Chandrachud, CJI.)

1. The issue which has been raised in a clutch of applications pertains to the implementation of the decision of this Court in Lieutenant Colonel Nitisha and Others vs Union of India and Others, (2021) 15 SCC 125.

2. The grievance before this Court is by women officers of the Indian Army, who have been granted Permanent Commission²[“PC”], in pursuance of the judgment of this Court. The issue in dispute relates to their non-empanelment for promotion to the rank of Colonel by selection.

3. Before analyzing the factual grievance, it would be appropriate to set out the policy framework.

4. On 7 October 2002, a communication was issued by the Military Secretary’s³[“MS”], Branch of the Army Headquarters setting out the basis on which Confidential Reports⁴[“CR”], would be considered for various Selection Boards⁵[“SBs”]. The title of the document is:

“Consideration of CRs for Selection Boards (SBs)”

5. Paragraph 3A of the letter deals with No 3 SB for promotion from the rank of Lieutenant Colonel to Colonel and No 4 SB for promotion from the rank of Major to Lieutenant Colonel. We are concerned with No 3 SB since the dispute pertains to promotion from the rank of Lieutenant Colonel to Colonel. Paragraph 3(a) indicates that “all CRs earned after completion of nine years of reckonable service” have to be considered.

6. On 17 March 2011, another communication was issued by the MS Branch of the Integrated Headquarters of the Ministry of Defence (Army) in view of the adoption and implementation of the “Quantified System” for selection. Paragraph 3 of the letter states that paragraph 3 of the earlier letter dated 7 October 2002 was being replaced in the following terms:

“…Consideration of CRs for various Selection Boards will be, as per the policy in vogue at the time of consideration.”

7. On 31 October 2013, the MS Branch issued a communication to lay down a comprehensive Adequately Exercised (AE) policy for consideration of officers of 2002 and later batches by SB No 3. Appendix A to the circular, inter alia, specifies cut offs. Paragraph 4 stipulates that the last report (including Special CRs) is taken into consideration by the SB for promotion to the next higher rank subject to certain conditions. Among the conditions, condition (c) indicates that:

“Cut-off CR in respect of officers of a batch will be promulgated by MS Branch before conduct of Selection Board.”

8. On 23 December 2017, the MS Branch issued a further communication. The communication provides for the primacy of CRs, vis-à-vis other parameters such as performance on courses and gallantry awards, for Special No 3 SB. It has been stipulated that 89 marks out of a total of 100 would be allocated to the CRs.

9. The judgment of this Court in Nitisha (supra) dealt with the denial of PC to Women Short Service Commission Officers (WSSCOs) of the Indian Army. In order to shed some light on the controversy in the present case, it would be appropriate to refer to the observations in paragraphs 109.5 and 113, which are as follows:

“109.5 It has been admitted in the counter-affidavit that the confidential reports, discipline and vigilance reports if any, and honours and awards as on the 5th or 10th years of service were considered in the case of the women officers. As a consequence of this, the qualifications, achievements and performance of women officers after the 5th or 10th year of service (as the case may be) have been ignored. At this stage, it is necessary to note that Para 13(b) of AO 18/1988 specifically contemplates the “last ACR before assessment for PC” being taken into reckoning for grant of PC. Similarly MoD's Policy Letter dated 24-2-2012 specifically contemplates 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”. Para 4(a) stipulat