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SUPREME COURT OF INDIA
ABHAY S. OKA, SANJAY KAROL, JJ.
Union Of India & Ors. - Appellants
Versus
AIR Commodore N.K. Sharma (17038) ADM/LGL - Respondent
Civil Appeal No. 14524 Of 2015
Decided On : 14-12-2023
(A) Armed Forces Tribunal Act, 2007 – Sections 14 and 15 – Constitution of India – Article 226 – Direction to Government to frame policy for filling up post of Judge Advocate General (Air) [JAG (Air)] – Legality of – Court cannot direct for a legislation or a policy to be made – Making policy is not in domain of Judiciary – Tribunal is also a quasi-judicial body, functioning within parameters set out in governing legislation – Although, disputes in respect of promotions and/or filling up of vacancies is within jurisdiction of Tribunal, it cannot direct those responsible for making policy, to make a policy in a particular manner – Tribunal would be subject to jurisdiction of High Court in Article 226 – Tribunal subject to High Court’s jurisdiction under Article 226, cannot be permitted by law, to direct framing of policy by Government. (Paras 17, 18, 20, 21 and 22)
(B) Service Law – Retirement – Age of retirement is known to each officer – Direction to let Respondent continue in service even past such age appears to be without any basis – Tribunal did not have any power to extend this, that too for infinity. (Para 24)
(C) Service Law – Promotion – Challenging 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 policy/method – Such challenges cannot be allowed. (Para 28.4)
Facts of the case:
Points in issue are:
1. Whether Tribunal could have issued a direction to Government to frame a policy for filling up post of JAG (Air)?
2. Whether Tribunal could have directed that Respondent would continue functioning in such capacity despite non-acceptance of Promotion Board’s recommendation till such time that policy is framed by Government and be given an opportunity for consideration by promotion board constituted under such new policy?
Findings of Court:
Respondent’s challenge was barred at first instance, as he participated in Promotion Board of 2015 and only challenged non-formation of a policy for filling up vacancy of AVM JAG (Air), finding himself to be unsuccessful in securing a promotion thereto.
Result : Issues answered.
JUDGMENT :
(Sanjay Karol J.)
1. This Civil Appeal, under Section 31(1) 1[31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.] of the Armed Forces Tribunal Act, 20072[Referred to as “the Act”], 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 is-
2.1 The Respondent was commissioned in the Administrative Branch of the Indian Air Force on 29th December, 1982.
2.2 In 1989, he voluntarily underwent training for the Air Force Judge Advocate course in accordance with Air Force Instruction 74/713[Hereafter referred to as ‘AFI 71/74’] issued by the Government of India titled as ‘Employment of Air Force Officers on Legal Duties-Terms and Conditions’ which he completed in 1990.
2.3 1991 onwards, the Respondent has served in the JAG department. Having served on various posts in this department, he was appointed as the Judge Advocate General (Air)4[Abbreviated as JAG (Air)] by the Chief of Air Staff on 1st August, 2010 while serving as a Group Captain.
2.4 On 1st June, 2011 he was promoted to the rank of Air Commodore. Further he was granted the acting rank to fill up the possession of JAG (Air). He continued to serve in this position till 15 April 2013. In the meanwhile, on 4th May, 2012 the post of JAG (Air) was upgraded to the rank of Air Vice Marshal.5[For brevity, 'AVM’].
2.5 On 15 April 2013 another officer of the upgraded rank was appointed to serve as JAG (Air) and upon his superannuation, the Appellant was re-appointed to the said position on 1 October 2014.
THE GENESIS OF THE DISPUTE
3. The grievance of the Respondent is that upon superannuation of the previous JAG (Air), despite meeting the criteria for promotion to AVM, no promotion board was formed to consider the Respondent for the aforesaid vacancy and instead, it was eventually decided that he would be considered for promotion in his parent branch along with his course mates in Promotion Board 1/2015.
4. As such, he was considered in the said Promotion Board along with 9 other persons. Other persons, apart from him were found eligible to fill up the position of JAG (Air) since no other persons, apart from the Appellant were found to have the requisite legal training in accordance with the AFI 71/74. Hence, he was recommended for the position of AVM, which however, was not accepted by the Ministry of Defence6[For brevity, ‘MoD’].
5. It is on such non-acceptance of the recommendation of the Promotion Board that, the dispute before us, began.
STATUTORY APPEAL
6. Section 277[27. Remedy of aggrieved officers.—Any officer who deems himself wronged by his commanding officer or any superior officer and who on due application made to his commanding officer does not receive the redress to which he considers himself entitled, may complain to the Central Government in such manner as may from time to time be specified by the proper authority], of the Air Force Act, 19508[AF Act, for short.], provides for a mechanism for redressal of grievances held by officers against their commanding officer or any other superior. Aggrieved by the action of the MoD, the Respondent took recourse to such remedy9[The Respondents complaint dated 20 April 2015 under Section 27 of the AF Act is not on record].
6.1 The MoD by order dated 29th September, 2015, considered the Respondent’s complaint. The grievance was noted as being the denial of promot
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