Union of India & Ors. vs Air Commodore Nk Sharma (17038) Adm/Lgl

Court

Supreme Court of India

Date

14 December 2023

Case No.

Civil Appeal No. 14524 of 2015

Result

Allowed

Bench

Abhay S. Oka, Sanjay Karol

Citation

[2023] 16 S.C.R. 1026 : 2023 INSC 1074

Issue for consideration

Whether the Armed Forces Tribunal could have issued a direction to the Government to frame a policy for filling up the post of Judge Advocate General (Air) and; whether the Tribunal could have directed that the Respondent would continue functioning in such capacity despite non-acceptance of the Promotion Board’s recommendation till such time that the policy is framed by the Government and be given an opportunity for consideration by the promotion board constituted under such new policy. Armed Forces Tribunal Act, 2007 – Jurisdiction of Tribunal – Impugned order passed by the Armed Forces Tribunal directing formation of policy and for the Respondent to continue in service till such time of formation of the policy and being considered thereunder – Legality:

Headnote

Held: A Tribunal functioning within the strict boundaries of the governing legislation, would not have the power to direct the formation of a policy – A Tribunal subject to the High Court’s jurisdiction under Article 226, cannot be permitted by law, to direct the framing of policy by the Government – Making policy is not in the domain of the Judiciary – The Tribunal is also a quasi-judicial body, functioning within the parameters set out in the governing legislation – Although, it cannot be questioned that disputes in respect of promotions and/or filling up of vacancies is within the jurisdiction of the Tribunal, it cannot direct those responsible for making policy, to make a policy in a particular manner – Further, in the Armed Forces, the tenure of service is extended for a period of time upon a person taking office of higher rank – Therefore, upon consideration, had the Respondent been found suitable for promotion to AVM, his superannuation would have moved forward from 57 years at which he was due to superannuate upon not being promoted – The age of retirement is known to each officer – A direction to let the Respondent continue in service even past such age appears to be without any basis – The Tribunal did not have any power to extend this, that too for infinity – Therefore, given that the determination of the age of superannuation is within the domain of Executive policy, of which the Tribunal was fully aware, and that, even while seeking to do complete justice, this court ought not to, in ordinary circumstances, look past the commonly accepted age of superannuation, it is clear that the order of the Tribunal is sans basis – Furthermore, on facts, respondent’s challenge was barred at first instance, as he participated in the Promotion Board of 2015 and only challenged the non-formation of a policy for filling up the vacancy of AVM JAG (Air), finding himself to be unsuccessful in securing a promotion thereto – Order passed by the Tribunal is quashed and set aside – Service Law. [Paras 20, 22, 17, 23, 24, 26, 28.5, 29]

Service Law – Challenge to the basis of promotion after having participated – Impermissibility:

JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT SANJAY KAROL J. 1. This Civil Appeal, under Section 31(1)1 of the Armed Forces Tribunal Act, 20072 at the instance of the Union of India, is directed against the judgment and order dated 30th November 2015, passed by the Armed Forces Tribunal, Principal Bench, New Delhi in Original Application No. 537 of 2014. For ease, the Union of India is hereafter referred to as the Appellants and Air Commodore NK Sharma, is referred to as the Respondent. BRIEF FACTS 2. A brief conspectus of facts, as relevant for adjudication of this appeal is2.1 The Re

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