Supreme Court: In a civil appeal under Section 31(1) of Armed Forces Tribunal Act, 2007 (‘AFT Act’) at the instance of Union of India, challenging judgment and order passed by the AFT on 30-11-2015, the Division Bench of Abhay S. Oka and Sanjay Karol, JJ. quashed and set aside the impugned decision explaining AFT cannot direct formulation of policy in a particular manner and held the challenge baseless at the first instance since the promotion was challenged after participating in the process.
Factual Matrix
The respondent was commissioned in the Administrative Branch of Indian Air Force on 29-12-1982, who underwent voluntary training for Air Force Judge Advocate course in 1989, in accordance with Air Force Instruction 74/71, completed in 1990. He served in the Judge Advocate General (‘JAG’) department on various posts from 1991 onwards and got appointed as the JAG (Air) by the Chief of Air Staff on 1-08-2010 while serving as a Group Captain. On 1-06-2011, he got promoted to the rank of Air Commodore and was granted acting rank to fill up the possession of JAG (Air), continued to serve till 15-04-2013. Meanwhile on 4-05-2012, the post of JAG (Air) was upgraded to the rank of Air Vice Marshal (‘AVM’) and on 15-04-2013, another officer of upgraded rank got appointed to serve as JAG (Air), on whose superannuation, the appellant got re-appointed to the said position on 1-10-2014.
The respondent was aggrieved that after superannuation of previous JAG (Air), no promotion board was formed to consider the respondent for the said vacancy despite meeting the criteria for promotion to AVM, and the decision of considering the respondent for promotion in his parent branch along with his course mates in promotion board 1/2015 along with 9 others. Other persons apart from him were found eligible for the position of JAG (Air) since no one apart from the appellant were found to have requisite legal training as per AFI 71/74, and thus, he was recommended for the post of AVM, but was not accepted by the Ministry of Defence (‘MoD’). The same became the dispute in the instant matter.
Legal Recourse
Aggrieved by the action of MoD, the respondent took recourse under Section 27 of the Air Force Act, 1950 (‘1950 Act’) which resulted in the response that the Indian Air Force did not have a separate legal branch, and that the terms for officers on legal duty provides for officers to be selected from those holding permanent commission in any Air Force Branch other than Technical Branch. While performing such duties, they draw allowances appropriate to their rank and branch. It was clarified that no policy allows respondents to be promoted against legal vacancy without being cleared for promotion to AVM rank in parent branch. His complaint was ultimately rejected as ‘devoid of merit’.
The application filed before AFT led to setting aside the non-approval of recommendation of promotion board qua the petitioner with directions for reconsidering the same after formulating policy for filling up the AVM rank post in JAG (Air) Department by convening a separate Promotion Board, and meanwhile, respondent was directed to function as JAG (Air) till the process was completed. The same was challenged in the instant matter.
Court’s Analysis
The Court began with perusing the preamble to AFT Act, 2007, Chapter 3 pertaining to powers and jurisdiction of AFT, Section 14 entailing jurisdiction, power and authority of AFT in service matters and Section 15 delineating the same in terms of appeal from orders of Court Martial. The Court expressed that the provision clearly shows AFT being vested with powers of a Civil Court and shall not have the powers exercised by the Supreme Court or those of High Court under Articles 226 or 227 of the Constitution of India.
Issues
1. Whether AFT could issue a direction to the Government to frame a policy for filling up the post of JAG (Air)?
The Court highlighted that making policy was not the Judiciary’s domain, and that AFT was a quasi-judicial body functioning within the parameters set out in governing legislation. The Court held that although disputes regarding promotions, filling up vacancies was within the jurisdiction of AFT, it could not direct authority responsible for making policy to make a policy in a particular manner. The Court referred to Union of India v. K. Pushpavanam, 2023 SCC OnLine SC 987 and Union of India v. Ilmo Devi, 2021 SCC OnLine SC 899 to support its stance regarding unwarranted direction for Legislature by a Writ Court.
The Court expressed 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 Court further cited L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 reiterated in Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1 and recently in Union of India v. Parashotam Dass, 2023 SCC OnLine SC 314 to clarify that a Tribunal was subject to jurisdiction of High Court under Article 226 and could not direct framing of policy by the Government.
2. Whether AFT could direct respondent’s continued service as JAG (Air) despite non-acceptance of Promotion Board’s recommendation, till framing of policy by the Government and be given an opportunity for consideration by Promotion Board?
The Court stated that “in the Armed Forces, the tenure of service is extended for a period of time upon a person taking office of higher rank.” It said that after consideration, if the respondent would have been found suitable for promotion to AVM, his superannuation would have moved forward from 57 years at which he was due to superannuate if not promoted. Since the retirement age is known to each officer, a direction continuing the Respondent’s service past such age appeared to be without any basis, and that the Tribunal was not empowered to extend the same.
The Court cited Chandra Mohan Varma v. State of U.P., (2020) 13 SCC 261 and Union of India v. Uzair Imran, 2023 SCC OnLine SC 1308 to point out that the determination of retirement age was a matter of executive policy. The Court explained that “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.” Thus, the AFT judgment and order could not stand.
The Court highlighted another facet due to which, the respondent’s challenge ought to fail at the first instance. It pointed out that the respondent participated in Promotion Board of 2015 and after consideration with other course mates of the same branch when he was not promoted to AVM JAG (Air), he initiated statutory complaint under Section 27 of 2015 Act. The Court explained that “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” and cited catena of cases including Pradeep Kumar Rai v. Dinesh Kumar Pandey, (2015) 11 SCC 493.
Conclusion
The Court therefore concluded that the respondent’s challenge was barred at the first instance for participating in the Promotion Board of 2015 and only challenging non-formation of policy for filling vacancy on the post of JAG (Air) after he was unsuccessful in securing promotion. Therefore, the Court allowed the instant appeal, quashed and set aside the impugned judgment and order passed by AFT.
[Union of India v. Air Commodore N.K. Sharma, 2023 SCC OnLine SC 1673, decided on 14-12-2023]
Judgment by: Justice Sanjay Karol
Know Thy Judge | Supreme Court of India: Justice Sanjay Karol
Advocates who appeared in this case :
For Appellants: Advocate on Record Arvind Kumar Sharma, Senior Advocate Sonia Mathur, Senior Advocate R Bala, Advocate Rajan Kumar Chourasia, Advocate Garima Kumar, Advocate Virnder Kumar
For Respondents: Advocate on Record Rabin Majumder
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The Supreme Court of India ruled that the Air Force Tribunal, as a quasi-judicial body, cannot direct the government to formulate policies. This decision came in response to an appeal by the Union of India against an order of the Tribunal from 2015. The case involved a dispute over the non-approval of a promotion in the Indian Air Force. The Court emphasized that policy-making is not within the judicial domain and that participating in a promotion process and later challenging its basis is not valid. For more details on the ruling, you can visit the source here.