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Synopsis

The Supreme Court has said a tribunal being a quasi judicial body is not empowered to direct the government to formulate a policy for promotion in a particular manner affecting the services of armed forces personnel.

A bench of Justices Abhay S Oka and Sanjay Karol allowed an appeal filed by the Union government and quashed and set aside an order by the Armed Forces Tribunal, Principal Bench, Delhi directing the Centre to permit Air Commodore N K Sharma to function as JAG (Judge Advocate General) (Air) till such time that the formulation of a policy for filling up the possession of AVM (Air Vice Marshal) takes place, and giving him an opportunity to be considered under such policy. 

"We are of the view that the 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," the bench said.

In its arguments, the Union government said the direction was against public policy as it would allow the officer to continue in service beyond the age of superannuation, 57 years. He was due to retire from service on November 30, 2015.

Further, it was contended that the Tribunal could not direct that a person should be considered for promotion in particular manner or in terms of a new policy, framed upon such direction.

The respondent officer, on the contrary, submitted that the Indian Air Force failed to formulate any policy to fill up the updated vacancy of AVM JAG (Air), in utter disregard for the orders of the Delhi High Court. He also contended the order of the AFT is not opposed to public policy. If a fundamental right is violated or contravened, the tribunal has the power to intervene and pass suitable orders. The direction passed is not against the proposition of law that a person does not have the right to be promoted but has the right to be considered for promotion.

Referring to the Armed Forces Tribunal Act, 2007, the bench said legislature has laid out in considerable detail, its functioning and for the purposes of adjudication of dispute before it, the tribunal has been vested with the powers of a civil court. Further Section 14 (4) expressly states that the tribunal shall not have the powers exercised by the Supreme Court or that of a High Court under Articles 226 and 227 of the Constitution.

"Making policy, as is well recognised, 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," the bench said.

The bench also pointed out it has been observed time and again that a court cannot direct for a legislation or a policy to be made. 

"It only stands to reason that a tribunal functioning within the strict boundaries of the governing legislation, would not have the power to direct the formation of a policy. After all, a court in Writ jurisdiction is often faced with situations that allegedly fly in the face of fundamental rights, and yet, has not been entrusted with the power to direct such formation of policy," the bench said.

"It only stands to reason then, that, 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," the bench added.

The court, thus, concluded that a direction to let the respondent continue in service even past such age of superannuation appears to be without any basis. The tribunal did not have any power to extend this, that too for infinity, it said.

"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," the bench held.

The court also noted that it was undisputed that the respondent participated in the promotion board of 2015 and he was not promoted to the rank of AVM JAG (Air).

"Challenging the basis of promotion after having participated in the process on consideration of promotion and having been declared unsuccessful thereunder, is not a valid ground to impugn the policy/method. Repeatedly, this Court has held that such challenges cannot be allowed," the bench said.

Cause Title: Union of India & Ors Vs Air Commodore N K Sharma (17028) ADM/LGL