Is Process For Male & Female Officers Same? Supreme Court Asks Union To Clarify Empanelment Process For PC In Army

The Supreme Court on Monday (March 4) directed the Union to file an affidavit clarifying the procedure and steps taken in the empanelling of the batch of male army officers as compared to their female counterparts. This direction has come in light of a contempt petition filed by women army officers for alleged violation of the Court's earlier directions for empanelling women officers for grant of permanent commission.

Mr Huzefa Ahmadi, senior counsel representing the applicants, raised concerns over the interpretation of the Supreme Court's directions regarding the empanelment of women officers in the Indian Army. Ahmadi argued that the court's directives mandated the consideration of all women officers assessed by the earlier Special No. 3 Selection Board (SB), with the exception of those already empanelled. He contended that including already empanelled officers in the process would constitute a breach of the court's explicit instructions.

The present matter concerned the interpretation of the directions given in the Order of the Court dated 3.11.2023, Direction No. (i) and (iv) in specific reads :

(i) A fresh exercise of reconvening Special No 3 SB shall be conducted no later than within a fortnight from the date of this order for all the women officers who were considered by the earlier Special No 3 SB (except for those officers who have already been empanelled);

(iv) Those officers who have already been empanelled or promoted as Colonels, shall not be disturbed or affected In any manner nor will their seniority be affected by the implementation of these directions.

Attorney General(AG) Mr R Venkataramani, appearing for the Union, on the other hand, underscored that the concept of empanelment hinges on evaluating the comparative merit of officers within the same "batch." According to the AG, the officers who were previously empanelled remained undisturbed. However, when the fresh Special No. 3 SB was convened, it became imperative to benchmark these officers against the already empanelled ones to maintain fairness and consistency in the process.

“ If some have not made it, because they lack merit...136 were considered, those who have made it were empanelled...we must have a benchmark of comparison”

 CJI DY Chandrachud clarified that the court did not find contempt, as the already empanelled officers were not reconsidered but included as a benchmark. The intent was to protect their position. Mr. Ahmadi, however, highlighted alleged discrimination, stating that a similar process was not followed for the empanelment of male officers.

“What we meant was those already empanelled (before the judgement) were not before us, they should not be disturbed by this exercise otherwise somebody would have gone out of the way, therefore we wanted to protect them.”

The CJI expressed, “ Mr Ahmadi there is no contempt. There cannot be contempt as such. It is very difficult for us to say it is contempt because they did not reconsider those empanelled officers (those already empanelled). What they said was, we are not reconsidering them, but they will also be included in the agenda, they will be a benchmark because there is always sort of a batch concept, it is not that they reconsidered them.”

Mr Ahmadi countered, “The same happened my lords for the male batches. Identical. In the male batches, also there was a reconvening in which empanelled officers were not included for the reconvening. Why? Because we (Army) wanted to take in more”

The CJI then inquired what procedure was followed for the male batches. He asked, “ Did you follow the same process for the male batches? File a short affidavit on that, clarify that.”

Noting the above, the bench then directed the Centre to file an affidavit explaining the position and procedures followed for the empanelment of male officers.

“To enable the Attorney General to clarify the above submission which has been urged on behalf of the women officers, we direct that an affidavit be filed explaining the position.”

On Batch Based Merit-cum-Seniority Promotions :

On 10th November 2023, a legal notice was served by the Women Officers. On 14th November the modalities were promulgated wherein the non-empanelled officers were informed of the exercise of empanelling. It was stressed that the Indian Army follows the batch concept.

The Army Representative explained :

“ Officer of the Indian Army is entitled to three looks. If she/he is not going to make it and either relief is granted in departmental remedies or by the Court then the officer becomes entitled to the special review consideration. This special review consideration is given to the batch only. It is not as if the individual officer will get special consideration. Here by the Hon'ble Lordship's Judgment, we considered them and they were given the special review consideration for which also the batch parity and batch concept needs to be maintained.”

It was further explained that it would not be possible to conduct the empanelling of the women officers of the Indian Army without comparison as the selection boards are based on merit-cum-seniority. It was submitted that 42 vacancies were made specifically for 136 female officers in light of the directions in Col Nitisha v. Union of India.

In January 2023, the Special Board held for empanelling was for the batches from 1992-2006 where 108 officers were promoted. Another board was conducted in April 2023 where few more officers were considered. The Army Representative emphasized, “Despite this, the officers who have been empanelled in the reconvening exercise will get promoted in due course and we have not disturbed the empanelment of those officers who got promoted in January 2023”

In the reconvening exercise,(the one in question) total of 8 women officers were promoted. The Respondents stated that as of the date, a total of 128 officers have been empanelled.

The Court will now hear the matter on March 11, 2024.

Background

On November 3, 2023, The Supreme Court bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra heard the 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.

As per the women officers,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 the 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 the 1992 batch until 2005 had not been fully considered.

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.

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.

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."

Case Details: NITISHA vs. UNION OF INDIA MA 002661 - / 2023