NITISHA AND OTHERS  versus UNION OF INDIA AND OTHERS
[2023] 15 S.C.R. 513, Supreme Court of India, 2023
Outcome: Disposed off
Segment: Issues
[2023] 15 S.C.R. 513 : 2023 INSC 985
513
CASE DETAILS
NITISHA AND OTHERS 
v.
UNION OF INDIA AND OTHERS 
(Miscellaneous Application No. 1913 of 2022)
In 
(Writ Petition (Civil) No. 1109 of 2020)
NOVEMBER 03, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, 
J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issue for consideration: The issue pertains to the women oﬃ  cers of 
the Indian Army, who were granted Permanent Commission in pursuance 
of the judgment of this Court in *Lieutenant Colonel Nitisha and Others 
vs Union of India and Others, are aggreived by the non-empanelment for 
promotion to the rank of Colonel by selection. 
Armed forces – Women oﬃ  cers – Promotion to the rank of Colonel 
by selection – Women oﬃ  cers granted Permanent Commission-PC 
pursuant to *Lieutenant Colonel Nitisha v Union of India’s case, 
aggreived by the non-empanelment for promotion to the rank of Colonel 
by selection – Plea that all the Conﬁ dential Reports-CRs of women 
oﬃ  cers commencing from the 1992 batch onwards until 2005 not duly 
considered and the more recent CRs excluded from consideration:
Held: Manner in which the cut oﬀ  was applied for reckoning CRs of 
the women oﬃ  cers for empanelment as Colonels is arbitrary, since the CRs 
for several years were kept out of reckoning altogether – Attitude was to 
ﬁ nd some way to defeat the just entitlement of the women oﬃ  cers – Such an 
approach does disservice to the need to provide justice to the women oﬃ  cers 
– Manner in which the
applicants have been denied empanelment for the post 
of Colonel on a selection basis is arbitrary and violative of the fundamental 
principles of fairness – Whole approach is contrary to both the judgment of 
this Court in *Nitisha case as well as the policy framework laid down by the
514 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Army authorities – Thus, issuance of direction to reconvene Special No 3 
SB afresh within the stipulated period for all the women oﬃ  cers who were 
considered by the earlier Special No 3 SB (except for those oﬃ  cers already 
been empaneled) – Constitution of India – Art 14.[Paras 21-23]
LIST OF CITATIONS AND OTHER REFERENCES
*Lieutenant Colonel Nitisha and Others vs Union of India and Others 
(2021) 15 SCC 125 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Miscellaneous Application 
No.1913 of 2022 in Writ Petition (Civil) No.1109 of 2020.
From the Judgment and Order dated 25.03.2021 in W.P. (C) No.1109 
of 2020 of the Supreme Court of India.
With
Miscellaneous Application No.246 of 2023 in Writ Petition (Civil) 
No.1109 of 2020.
Appearances:
R. Venkataramani, AG, Ms. V. Mohana, Huzefa Ahmadi, R. 
Balasubramanian, Gopal Sankaranarayanan, Sr. Advs., Mrs. Sneha Bdtwe, 
Ms. Bhavya Pande, Rakesh Kumar, Ms. Rashmi Singh, Sanjay Kumar Yadav, 
Ms. Archana Pathak Dave, Mukesh Kumar Maroria, Chitvan Singhal, Ms. 
Sonali Jain, Abhishek Kumar Pandey, Raman Yadav, Kartikay Agrawal, 
Arvind Kumar Sharma, Ms. Seema Bengani, Ms. Shraddha Deshmukh, Adit 
Khorana, Subodh Patil, Mrs. Swarupama Chaturvedi, Annirudh Sharma II, 
Aman Shukla, Dr. N. Visakamurthy, Chinmayee Chandra, Rajan Kumar 
Chourasia, Ms. Pooja Dhar, Harish Pandey, Mohit D. Ram, Ms. Liz Mathew, 
Anant Vijay Palli, Nikhil
Palli, Deepak Goel, Anas Tanwir, Sudhanshu S. 
Pandey, Gaichangpou Gangmei, Samyak Gangwal, Rohin Bhansali, Ms. 
Tanya Srivastava, Nishant Pandey, Ms. Ayushi Mishra, Ms. Lothungbeni 
T Lotha, Yimyanger Longkumer, Ms. Chitrandga Rastravara, Vaibhav 
Dwivedi, Aishwary Mishra, Dhananjai Shekhawat, Ms. Paridhi Arya Advs. 
for the appearing parties.
515
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
DR. 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 Others1. 
2. The grievance before this Court is by women oﬃ  cers of the Indian 
Army, who have been granted Permanent Commission2 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 Branch of the Army Headquarters setting out the basis on which 
Conﬁ dential Reports4 would be considered for various Selection Boards5. 
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 “Quantiﬁ ed System” for 
1 
(2021) 15 SCC 125
2 
“PC”
3 
“MS”
4 
“CR”
5 
“SBs”
NITISHA AND OTHERS v. UNION OF INDIA
516 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
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 oﬃ  cers of 2002 and later batches by SB No 3. Appendix A to the circular, 
inter alia, speciﬁ es cut oﬀ s. 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 oﬃ  cers 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 Oﬃ  cers (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-aﬃ  davit that the 
conﬁ dential 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 oﬃ  cers. As a consequence of 
this, the qualiﬁ cations, achievements and performance of women 
oﬃ  cers 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 speciﬁ cally 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 speciﬁ cally 
contemplates that in evaluating the overall performance of the
517
oﬃ  cer, “the average will be worked out for each year as well as 
for the entire period of oﬃ  cers’ services”. Para 4(a) stipulates 
thus:
“(a) QAP: Overall performance of the oﬃ  cer is evaluated 
by taking the average of figurative assessment of all 
reporting oﬃ  cers other than FTO and HTO. Average will 
be worked out for each year as well as for the entire period 
of oﬃ  cers service. The latter QAP will be converted into a 
proportion of 75 marks.”
(emphasis supplied)
In spite of the above clear stipulations, it is now an admitted 
position that the distinguished record of the WSSCOs beyond 
the 5th/10th year of service has been disregarded. The laurels 
achieved by them in the service of the nation after the 5th/10th 
year of service have been ignored.
113.Finally, the above analysis indicates that there has been 
a ﬂ awed attempt to peg the achievements of the WSSCOs at 
the 5th/10th years of service thereby ignoring the mandate 
that the last ACR ought to be considered and the quantitative 
performance for the entire record of service must be assessed. 
Considering the ACRs as on the 5th or 10th year of service 
for grant of PC would have been appropriate, if the WSSCOs 
were being considered for PC at that point of time. However, 
the delayed implementation of the grant of PC to WSSCOs by 
the Army and considering of ACRs only till the 5th/10th year 
of service has led to a situation where, in eﬀ ect, the Army has 
obliviated the years of service, hard work
and honours received 
by WSSCOs beyond their 5th/10th year of service and relegated 
them back to a position they held, in some cases, more than 
10 years ago. The lack of consideration given to the recent 
performance of WSSCOs for grant of PC is a disservice not 
just to these oﬃ  cers who have served the nation, but also to 
the Indian Army, which on one hand salutes these oﬃ  cers by 
awarding them honours and decorations, and on the other hand, 
fails to assess the true value of these honours when it matters the 
NITISHA AND OTHERS v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
518 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
most — at the time of standing for the cause of the WSSCOඌ to 
realise their rights under the Constitution and be treated on an 
equal footing as male oﬃ  cers who are granted PC.”
10. The nub of the dispute in the present case relates to the manner 
in which the CRs of the women oﬃ  cers were assessed for the purpose of 
Special No 3 SB after the decision in the above case. 
11. In a communication dated 12 December 2022, the MS Branch 
dealt with the modalities to be followed by Special No 3 SB in respect of 
the women oﬃ  cers “post” (that is, after) “the grant of PC”. As regards their 
CRs, paragraph 2(b) of the letter reads thus:
“CRs. The dates of Cut-oﬀ  CR for WOs Spl No 3 SB will be 
same as that of their corresponding male batches, when they were 
considered by No 3 SB.”
12. The grievance of the women oﬃ  cers who are before this Court 
is that as a result of the above direction, all the CRs of women oﬃ  cers 
commencing from the 1992 batch onwards until 2005 have not been duly 
considered and the more recent CRs have been excluded from consideration. 
This is indicated in the tabulation which is annexed to the application before 
the Court which is reproduced below:
S No
Batch
Approx Cut oﬀ  
CR Dt
Spl No 3 SB dt
No of years of which 
CRs not considered for 
Spl No 3 SB (Approx)
1.
1992
2008
09 Jan 2023
14
2.
1994
2010
09 Jan 2023
12
3.
1995
2011
10 Jan 2023
11
4.
1996
2012
11 Jan 2023
10
5.
1997
2013
12 Jan 2023
09
6.
1998
2014
13 Jan 2023
08
7.
1999
2015
14 Jan 2023
07
8.
2000
2016
15 Jan 2023
06
9.
2001
2017
16 Jan 2023
05
10.
2002
2018
17 Jan 2023
04
11.
2003
2019
18 Jan 2023
03
519
12.
2004
2020
19 Jan 2023
02
13.
2005
2021
20 Jan 2023
01
13. We have heard Mr Huzefa Ahmadi and Ms V Mohana, senior 
counsel in support of the applications which have been ﬁ led by the women 
oﬃ  cers. Mr R Venkataramani, Attorney General appears for the Union of 
India with Mr R Balasubramanian, senior counsel.
14. The grievance which has been put forth by Mr Ahamdi and Ms 
Mohana is precisely this:
(i) 
In terms of the policy circulars the empanelment of women 
oﬃ  cers for the rank of Colonel is required to be considered on 
the basis of all the CRs after the ninth year of service;
(ii) In the judgment in Nitisha (supra), this Court had emphasized 
the need to consider the entire proﬁ le of the women oﬃ  cers albeit 
in the context of the grant of PC;
(iii) An anomalous situation has resulted under which though for the 
grant of PC, the entire reckonable service has been taken into 
account, yet in the matter of considering them for empanelment 
as Colonels, a large chunk of their CRs has been excluded from 
consideration by Special No 3 SB on the basis of bringing about 
an ostensible parity with male oﬃ  cers; and
(iv) The approach which has been adopted by the Army authorities 
is contrary to the policy circulars as well as to the judgment of 
this Court.
15. Counter aﬃ  davits have been ﬁ led on behalf of the Union of India 
in these proceedings. The Learned Attorney General has submitted that 
108 women oﬃ  cers have been empaneled for promotion as Colonels on
the same basis which would indicate that there has been no discrimination. 
The Attorney general has relied on the explanation tendered in the Counter 
Aﬃ  davit of the Union of India. 
16. In the counter aﬃ  davit, it has been explained that there is a 
distinction between the procedure which is followed for the conduct of 
Special No 3 SB and Special No 5 SB. In the latter, the oﬃ  cer who is 
considered for the grant of PC gets only one ‘look’ by the Board. On the 
NITISHA AND OTHERS v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
520 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
other hand, in the case of Special No 3 SB, each oﬃ  cer gets a mandatory 
three looks (fresh look, ﬁ rst review and ﬁ nal review) by the Board. For 
each look, there is a cutoﬀ  date for the CR. Ordinarily, these three looks 
in Special No 3 SB are given to the oﬃ  cers of the Indian Army in a span 
of three years. However, in the case of the women oﬃ  cers in question, 
the three mandatory looks were given at the same time in January 2023 
to ensure that (i) women oﬃ  cers who had just received PC should not 
wait for another two or three years for being considered for promotion 
in No 3 SB; and (ii) once they are empanelled, they would be posted to 
command appointments to enable them to earn requisite experience for 
being considered for further promotion by No 2 SB. It has been submitted 
that the proﬁ le of women oﬃ  cers has not been compared with the male 
counterparts, but with women oﬃ  cers who were their batch mates. In this 
context, it would be appropriate to extract from the following averments 
which are contained in the counter aﬃ  davit:
“To elaborate, every oﬃ  cer is given three looks for promotion by 
Selection Board. If an Oﬃ  cer is not empanelled in their Fresh (1st) 
look, then he/she is considered for promotion in Second look (First 
Review) with additional input of one more Conﬁ dential Report. If 
again not empanelled, then Third look (Final Review) with one more 
additional input of Conﬁ dential Report
is granted to the Oﬃ  cer. It is 
for this reason that not all the latest CRs are taken into consideration 
for the reason that the second and third look would then be rendered 
otiose. If the contention of the Petitioners/Applicants of considering 
their CRs as on date is accepted, then the review looks (second and 
third looks) for promotion would not have any additional input and 
the Special No.3 SB would be considering the same proﬁ le all three 
times and that too, with Conﬁ dential Reports covered only in the rank 
of Lt Col. This would have been contrary to laid down Selection Board 
policies which mandate additional inputs for second and third look. 
The authorities were conscious of this fact and it is for this reason the 
cut oﬀ  CRs of the Women Oﬃ  cers were corresponding to the male 
batches and not their latest CRs.”
17. Annexure R-8 to the counter affidavit filed by the Union 
Government contains a comparison between the cut oﬀ  CRs which have
521
been taken into reckoning for women oﬃ  cers and for male oﬃ  cers of 
corresponding batches. The tabulated statement indicates the position for 
various regiments of the Indian Army. Of them, we are concerned with the 
ﬁ rst, namely, the Army Ordnance Corps (AOC). For the AOC, the tabulated 
statement indicates the following position:
Ser No Arm/Services
Batch
Cut-oﬀ -CR Wos
Corresponding 
Male 
Batch Cut-oﬀ -CR
4.
AOC
1995
31 May 12
31 May 12
1996
31 May 13
31 May 13
1997
31 May 13
31 May 13
1998
31 May 14
31 May 15
1999
31 May 15
31 May 15
2000
31 May 16
31 May 16
2001
31 May 17
31 May 17
2002
31 May 18
31 May 18
2003
31 May 19
31 May 19
2004
31 May 20
31 May 20
2005
31 May 21
31 May 21
18. The above tabulation shows that the same cut oﬀ  has been adopted 
for batches of the women oﬃ  cers who were considered in Special No 3 SB 
as for corresponding batches of male oﬃ  cers. For example, for the 1995 
batch, the cut oﬀ  for both the women oﬃ  cers and the corresponding male 
oﬃ  cers is 31 May 2012. For the succeeding batches right up to 2005, the 
tabulated chart shows that the same cut oﬀ  has been applied. The manner in 
which the cut oﬀ  has been applied for reckoning CRs of the women oﬃ  cers 
for empanelment as Colonels is arbitrary because it is both contrary to the 
principles which were laid down by this Court in its judgment in Nitisha 
and contrary to the policy framework which has been enunciated by the 
Indian Army itself. 
19. We are conscious of the
fact that the judgment in Nitisha deals with 
the grant of PC, whereas in the present case the Court is concerned with the 
empanelment of oﬃ  cers who are granted PC for promotion as Colonels by 
NITISHA AND OTHERS v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
522 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
selection. In that regard, the policy framework which has been set out by the 
letter dated 7 October 2002 which has been set out in the earlier part of this 
judgment makes it abundantly clear that CRs after nine years’ reckonable 
service were required to be taken into consideration. Subsequently, after 
the Quantitative Assessment System came into existence, it was clariﬁ ed 
by the policy circular dated 17 March 2011that the consideration of CRs for 
various SBs will be as per the policy in vogue at the time of consideration. 
The policy circular dated 23 December 2017 indicates the primacy which is 
attributed to CRs, which carry 89 out of a total of 100 marks. This indicates 
the importance of a correct evaluation and reckoning of the CRs since it 
forms the basis of promotion which is being considered by Special No 3 SB. 
The policy document of 31 October 2013 stipulates that the cut oﬀ  CRs in 
respect of oﬃ  cers of batch will be promulgated by the MS Branch before 
the conduct of the Selection Board. 
20. In the counter affidavit which has been filed by the Army 
authorities, it has been speciﬁ ed that for the purpose of the work of Special 
No 3 SB, an oﬃ  cer is granted three looks, namely, the ﬁ rst look, the ﬁ rst 
review and the second review. Consequently, it has been stated that if all the 
CRs up to date were to be considered in the ﬁ rst look itself, the purpose of 
having a second look and a ﬁ nal review would
be rendered otiose. We are 
in agreement with this logic. However, this would have perhaps justiﬁ ed the 
authorities to exclude the last CR which could have been considered at the 
ﬁ nal look and the CR prior to that, which could be considered at the stage 
of the ﬁ rst review. However, as the chart which we have annexed earlier 
indicates, a cut oﬀ  was applied arbitrarily in the present case ostensibly to 
equate the women oﬃ  cers 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. 
21. We are constrained to observe that the attitude has been to ﬁ nd 
some way to defeat the just entitlement of the women oﬃ  cers. Such an 
approach does disservice to the need to provide justice to the women 
oﬃ  cers 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, the
523
women oﬃ  cers have been compelled to move this Court repeatedly for the 
realization of their rights. 
22. An alternate ground has been sought to be raised on behalf of the 
Army authorities to the eﬀ ect that adequate vacancies were not available 
for accommodating the oﬃ  cers. In this regard, it is common ground that in 
an earlier order dated 21 November 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. Admittedly, as 
the counter indicates 108 vacancies have been ﬁ lled up. The ground of the 
unavailability of vacancies would therefore not be available at this stage. 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. 
23. We accordingly order and direct that:
(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 oﬃ  cers who were considered by the 
earlier Special No 3 SB (except for those oﬃ  cers who have 
already been empaneled);
(ii) In the course of Special
No 3 SB to be convened in pursuance of 
the above direction, the Attorney General states that a common 
cut oﬀ  of June 2021 shall be taken into reckoning in order to 
obviate any controversy;
(iii) Since during the pendency of these proceedings, one of the 
oﬃ  cers, Colonel (Time Scale) Asha Kale has retired, her case 
shall also be considered on a similar footing; and
(iv) Those oﬃ  cers who have already been empaneled or promoted 
as Colonels, shall not be disturbed or aﬀ ected in any manner nor 
will their seniority be aﬀ ected by the implementation of these 
directions.
NITISHA AND OTHERS v. UNION OF INDIA
[DR. DHANANJAYA Y CHANDRACHUD, CJI]

524 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
24. The Miscellaneous Applications are accordingly disposed of.
25. Pending applications, if any, stand disposed of.
Headnotes prepared by: 
Miscellaneous Applications disposed of.
Nidhi Jain