'Set Your House In Order' : Supreme Court Warns Defence Ministry After Women Army Officers Allege Discrimination in Promotions [Read Full Courtroom Exchange]

A bench of Chief Justice DY Chandrachud and Justice JB Pardiwala was hearing a couple of applications preferred by women officers alleging various arbitrary and discriminatory policies adopted by the Indian army while considering them for promotion. These applications were filed in the matter 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.

The 2020 decision in The Secretary, Ministry of Defence v. Babita Puniya, in which the top court held that the Indian Army's erstwhile policy of absolutely excluding women officers from receiving permanent commission was illegal, spurred a second round of litigation. This ultimately culminated in a declaration that the evaluation criteria adopted for the grant of permanent commission at the time were ‘arbitrary’ and ‘irrational’, as well as the issuance of fresh directions, in accordance with which, the applications of women Short Service Commission officers were to now be considered.

Despite these progressive judgements, women officers in the army have had to knock at the court’s door multiple times with fresh allegations of discrimination and institutional resistance. In a previous hearing, Senior Advocate V Mohana informed a bench of the top court that despite it keeping the door open for women officers to receive command appointments, they were unable to reap the benefits of its decisions. The Indian Army, it was alleged, had neither held selection boards for the promotion of women officers nor taken any steps to comply with the ruling of the Nitisha bench. In the meantime, junior batches of male officers were promoted over their female counterparts, the senior counsel said.

Only after a bench led by Chief Justice Chandrachud expressed concern over women army officers being treated unfairly and warned the defence ministry that it would pass peremptory orders to ensure their promotion, did the Indian army finally communicate its willingness to conduct a special selection board for its women officers. Accordingly, the selection board started considering the applications of approximately 246 women officers in January this year.

Once again, a bench of Chief Justice DY Chandrachud and Justice JB Pardiwala was told that fresh barriers were erected in the way towards women being promoted to or enjoying command postings in the Indian Army. These included the refusal of the selection board to consider the latest Annual Confidential Reports (ACR), or performance evaluation reports, of the women officers, the insistence on filling vacancies on a pro-rata basis, or deliberately assigning women officers who have been promoted to lead contingents that are normally led by officers who are junior by rank.

The bench was shocked at these revelations. While directing the Ministry of Defence to file an affidavit in response to these allegations, the bench observed in the order :, “On behalf of the women officers, it has been adverted that according to the judgement, overall service profiles of women officers were required to be considered. The submission is that though the ACRs of the women officers based on their entire service profile were required to be considered, they were pegged at the ACRs for 2011, which is when the corresponding male officers in the batch were considered for promotion. ASG states that he would file a proper affidavit explaining this. List after two weeks.”

Notably, the Chief Jstice also orally told Additional Solicitor-General KM Nataraj:

“We are putting you on notice. If this is not rectified, we will have to come down heavily on you. Because it appears ex facie that there has been an attempt to go around our order. We will now take it very seriously. Tell the authority at the highest level. We want this to be rectified. Next day, if you tell us a different thing, we will have to issue a notice of contempt. Now, we are giving you a last opportunity to set your house in order. Otherwise, we are going to haul you up.”

Courtroom Exchange

Senior advocate V Mohana: We are being forced to come before this court. They have frozen the ACRs in 2011 because my male counterparts were considered in 2012. It is 2023 now.

CJI DY Chandrachud: What have you done now, Mr Nataraj? This affidavit does not say anything. Only that you have moved the ministry for the release of vacancies, and that the results have been notified. What process did you follow? That has not been disclosed at all.

Senior advocate V Mohana: Nothing…They do not even say ACR corresponding to which year was considered. My batchmate (male) was considered in 2012. His ACR is taken up to 2011. I am considered in 2023. My ACR is frozen for 2011. They are not divulging that here. This is a violation of paragraph 97 of the Nitisha judgement. Second, pro rata vacancy…

CJI DY Chandrachud (to ASG): Is it true that you have not considered their ACRs after 2011?

Senior advocate V Mohana: Not only this but also the men who underwent the process of promotion were reviewed twice by different boards over a period of one year. For women, the same board conducted the review process. It is like the same division bench deciding an appeal. It is totally unfortunate that we have to keep coming back for total compliance, in both letter and spirit, with the Nitisha judgement, in which the top court directed for the women officers to be given a permanent commission and then all other consequential benefits, including promotion.

CJI DY Chandrachud: Have you considered the recent ACRs?

Additional Solicitor-General: …Corresponding to male counterpart…

CJI DY Chandrachud: This you cannot do. Our judgement is very clear.

Senior advocate V Mohana: Board member assessment is five marks – unquantified aspects of an officer’s performance in their entire career will be considered for awarding these marks. This is also based on the ACRs. 95 for ACRs. Consistently, they have considered ACRs up to one year before the year in which an officer has been considered for promotion. Now, what they have done is, they are equating the women officers seeking promotion with their male counterparts, though the latter were considered in 2012. The women officers were not considered at that point of time because of the non-grant of permanent commission, now they are freezing my ACR with respect to the year 2011. How is this fair?

CJI DY Chandrachud: This is contrary to our judgement. Second, this is contrary to your own circulars.

Additional Solicitor-General: The policies for the grant of a permanent commission and selection board are different.

CJI DY Chandrachud: Why don’t you consider their overall profile? Even the policy says that all ACRs after the completion of nine years of service will have to be considered. Obviously, you are not complying with the judgement.

Senior advocate V Mohana: Pro rata vacancy cannot be applied. At the time of seeking a permanent commission, there were 50 of us. Now, there are only two.

Counsel (On behalf of empanelled officers): Male colleagues were given seniority in 2011. Because the board was conducted late, I am junior to all officers who were junior to me. Secondly, when you become a colonel, you look forward to a command posting. They have given me a contingent of 100-150 people to lead. This is given to lieutenant colonels. To add insult to injury, they have said that the contingent will again revert to a lieutenant colonel who will be tasked with heading it. This is absolutely discriminatory to give me a command posting but force me to lead a contingent that was being led by a lieutenant colonel earlier.

Senior advocate V Mohana: Can we get a short date, since many are due to retire in a month? They have to conduct two boards for brigadier as well, which they are not conducting.

CJI DY Chandrachud: We are putting you on notice, Mr Nataraj. If this is not rectified, we will have to come down heavily on you. Because it appears ex facie that there has been an attempt to go around our order. We will now take it very seriously. Tell the authority at the highest level. We want this to be rectified. You could not have ignored their subsequent ACRs on the ground that their male counterparts were considered in 2012. We specifically said, in our judgement, that their up-to-date service profile had to be considered. You cannot say that for promotion, we will not look at the up-to-date profile. You have to. How can you ignore the subsequent good work they have done in service?

Senior advocate V Mohana: It is malicious. They are considering the latest ACRs for permanent commission, but not for promotion.

CJI DY Chandrachud: Next time you come back, you should tell us that you will have a fresh selection board. Let them be considered afresh on the basis of their complete service profile.

Additional Solicitor-General: If possible, we will definitely rectify, otherwise, we will accordingly…

CJI DY Chandrachud: Next day, if you tell us a different thing, we will have to issue a notice of contempt. Now, we are giving you a last opportunity to set your house in order. Otherwise, we are going to haul you up. Having not considered these women officers in 2012, you cannot now say that we will ignore the subsequent work profile. It is unacceptable. You look into it, and please, rectify it. We are going to take a very strong view of this. (Directs the matter to be listed after two weeks)

Case Title

Nitisha v. Union of India | Miscellaneous Application No. 1913 of 2022 in Writ Petition (Civil) No. 1109 of 2020

Click here to read the order