IMPORTANT POINT
The main legal point established in the judgment is the determination of the maintainability of the petition and the jurisdiction of the Armed Forces Tribunal to hear challenges to the vires of subordinate legislations, rules, regulations, notifications, and circulars.

JUDGMENT

V. Kameswar Rao, J. - On February 27, 2024, this Court had raised an issue of maintainability of the petition. The petitioner has filed the present petition with the following prayers:-

"A. Issue an appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondents to quash and set aside the promotion policy dated 23.12.2017, to the extent that it excludes the Intelligence Corps of the Indian Army from being considered for promotion to the rank of Lt. General from the Non General Cadre Staff Stream vacancies.

B. Issue an appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondents to include the Intelligence Corps to be considered for promotion in the NGCSS vacancies and create a vacancy at the rank of Lt. General for the officers to be promoted from the Intelligence Corps; and

C. Direct the Respondents to release a special vacancy for the Intelligence Corps to compensate for the long injustice meted out to the said Corps.

D. Direct the Respondents to consider the Petitioner for promotion to the rank of Lt. General against the special vacancy with restoration of 1985 seniority in the Non General Cadre Staff Stream;

E. Direct the Respondents to ensure an officer of the rank of Lt. General from the Intelligence Corps to be designated as Head of Arm of the Intelligence Corps and a separate officer from the same Corps to be the DGMI, in National Interest,

F. Pass any other order or direction that this Hon'ble Court may deem fit in the interest of equity, justice and good conscience."

2. The submissions of Mr. Angad Alhuwalia, learned counsel for the petitioner are primarily the following:-

2.1 He submitted that all the aforesaid prayers go beyond the simpliciter striking down of the impugned policy dated December 23, 2017. Rather, the Petitioner has sought striking down of impugned policy dated December 23, 2017 only to the extent that it excludes Maj Generals of MI Corps from promotion to rank of Lt. Gens. in Non-General Cadre Staff Stream vacancies ("NGCSS"). The petitioner has also sought various positive directions to protect the promotional interests of the senior officers of the Intelligence Corps, who have been neglected from promotion. The instant case also involves a policy issue as to whether Director General of Military Intelligence ("DGMI"), who is currently a Lt. Gen from General Cadre ("GC"), should be a Lt. Gen from within the Corps as he would be more suited to discharge the functions of DGMI.

2.2 He submitted that the Supreme Court has held that the Armed Forces Tribunal ('AFT', for short) being a quasi-judicial body with a governing legislation cannot direct formulation of a policy in a particular manner. Thus, the AFT would not be in a position to grant the reliefs as prayed for in the instant petition. In this regard, Mr. Alhuwalia had placed reliance on the following judgments of the Supreme Court:-

i. Union of India v. NK Sharma, 2023 SCC OnLine SC 1673;

ii. L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

2.3 He further submitted that L. Chandra Kumar (supra) was decided in the context of Section 14 of the Administrative Tribunals Act, 1985 ('Act of 1985', for short). The said Section of the Act of 1985 is different from Section 14(1) of the Armed Forces Tribunal Act, 2007 ('Act of 2007', for short). Section 14(1) of the Act of 1985 states that the Tribunal therein shall enjoy all the jurisdiction, powers and authority exercisable immediately before that day by all courts except the Supreme Court. Per contra, Section 14(1) of the Act of 2007 states that the AFT shall exercise all the jurisdiction, powers and authority, exercisable immediately before that day by all courts except the Supreme Court or a High Court exercising jurisdiction under Article 226 and 227 of the Constitution. Since the Tribunal under the Act of 1985, has been endowed with powers of the High Court, it can examine the vires of a legislation/rule