Supreme Court overturns AFT order on policy formation for JAG (Air) promotion: Union of India vs. NK Sharma (2023)

Date of the Judgment: 14 December 2023
Citation: 2023 INSC 1074
Judges: Abhay S. Oka J., Sanjay Karol J. (authored the judgment).
Can a quasi-judicial body like the Armed Forces Tribunal (AFT) direct the government to create a specific policy, especially concerning promotions within the armed forces? This was the core question before the Supreme Court in a recent case involving the promotion of an Air Commodore. The Supreme Court overturned the AFT’s decision, clarifying the limits of the Tribunal’s powers and emphasizing that policy formulation is the domain of the executive, not the judiciary. The judgment was authored by Justice Sanjay Karol, with Justice Abhay S. Oka concurring.

Case Background

Air Commodore NK Sharma, the Respondent, was commissioned into the Administrative Branch of the Indian Air Force in 1982. In 1989, he underwent training for the Air Force Judge Advocate course, which he completed in 1990. From 1991, he served in the Judge Advocate General (JAG) department, eventually being appointed as the Judge Advocate General (Air) (JAG (Air)) in 2010. In 2011, he was promoted to Air Commodore and continued as JAG (Air) until April 15, 2013. The post of JAG (Air) was upgraded to the rank of Air Vice Marshal (AVM) on May 4, 2012. After another officer was appointed to the upgraded post on April 15, 2013, the Respondent was re-appointed to the position on October 1, 2014, following the superannuation of the previous officer.

The dispute arose when, upon the superannuation of the previous JAG (Air), the Respondent was not considered for promotion to AVM despite meeting the criteria. Instead, he was considered for promotion in his parent branch along with his course mates in Promotion Board 1/2015. Although the Promotion Board recommended him for the position of AVM, the Ministry of Defence (MoD) did not accept this recommendation.

Timeline

Course of Proceedings

The Respondent, aggrieved by the non-acceptance of the Promotion Board’s recommendation, filed a statutory complaint under Section 27 of the Air Force Act, 1950. The MoD rejected the complaint, stating that the Indian Air Force does not have a separate legal branch and that promotions are governed by the parent branch. The MoD also noted that the Respondent was placed 9th out of 10 in the promotion list and that the Promotion Board had awarded him disproportionate marks to include him in the top 5, which was against the rules. The Respondent then approached the Armed Forces Tribunal (AFT), which ruled in his favor, directing the government to formulate a policy for filling the post of JAG (Air) in the rank of AVM and to reconsider the Respondent’s promotion under that policy. The AFT also directed that the Respondent continue to function as JAG (Air) until the new policy was implemented. This decision of the AFT was challenged by the Union of India before the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation of the Armed Forces Tribunal Act, 2007, particularly Section 14, which outlines the jurisdiction, powers, and authority of the Tribunal in service matters. Additionally, the Air Force Act, 1950, Section 27, which provides a mechanism for redressal of grievances, is relevant. The Air Force Instruction 71/74, titled ‘Employment of Air Force Officers on Legal Duties -Terms and Conditions’, and Air Force Order 08/2005, which amplifies AFI 71/74, also play a crucial role in understanding the terms and conditions of officers on legal duty.

Section 14 of the Armed Forces Tribunal Act, 2007 states:
“14. Jurisdiction, powers and authority in service matters. —(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, 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 articles 226 and 227 of the Constitution) in relation to all service matters.”

Section 27 of the Air Force Act, 1950 states:
“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”

Arguments

Arguments of the Appellants (Union of India):

• The Armed Forces Tribunal (AFT) was not justified in directing the government to formulate a policy for filling up the post of JAG (Air).
• The AFT could not direct that the Respondent be allowed to continue in service beyond the age of superannuation (57 years) until a new policy is framed.
• The Respondent was duly considered for promotion to the rank of AVM along with his colleagues of the administrative branch and was “not found fit to be promoted.”
• The Tribunal failed to consider that the Respondent had participated in the promotion process and only challenged it after being declared unsuccessful.
• The Tribunal does not have the power to direct the executive to make a policy.

Arguments of the Respondent (Air Commodore NK Sharma):

• The Indian Air Force failed to formulate any policy to fill up the upgraded vacancy of AVM JAG (Air), demonstrating disregard for the orders of the Delhi High Court.
• The order of the AFT is not against public policy; the Tribunal has the power to intervene when a fundamental right is violated.
• The direction to allow the Respondent to continue past the age of superannuation was necessary due to the Appellants’ inaction since 2012.
• The Tribunal did not direct that the Respondent must be promoted, but only that he has a right to be considered for promotion.
• The Respondent was the only qualified candidate for the position of AVM earmarked for JAG (Air) and could not be denied the promotion.

[TABLE] of Submissions

Issues Framed by the Supreme Court

1. Whether the Tribunal could have issued a direction to the Government to frame a policy for filling up the post of JAG (Air)?
2. Whether the Tribunal could have directed that the Respondent would continue functioning in such capacity despite non-acceptance of the Promotion Board’s recommendation until 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?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

Cases Relied Upon by the Court:

Legal Provisions Considered by the Court:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Union of India v. K. Pushpavanam [2023 SCC OnLine SC 987]: The Supreme Court cited this case to emphasize that courts cannot direct the government to introduce a particular bill or make a policy, reinforcing the principle that policy-making is an executive function, not a judicial one.
• Union of India & Ors v. Ilmo Devi & Anr [2021 SCC OnLine SC 899]: This case was used to illustrate that High Courts cannot direct the government to formulate a particular regularization policy or create posts, highlighting the separation of powers.
• L. Chandra Kumar v. Union of India & Ors [(1997) 3 SCC 261]: This judgment clarified that tribunals are subject to the jurisdiction of the High Court under Article 226, establishing the supervisory role of High Courts over tribunals.
• Rojer Matthew v. South Indian Bank Ltd & Ors [(2020) 6 SCC 1]: This case reiterated the principle from L. Chandra Kumar, emphasizing that tribunals are subject to the High Court’s writ jurisdiction.
• Union of India v Parashotam Dass [2023 SCC OnLine SC 314]: The Court used this case to reaffirm that the power of the High Court under Article 226 is not inhibited, reinforcing the High Court’s role in judicial review.
• Chandra Mohan Verma v. State of Uttar Pradesh [(2020) 13 SCC 261]: This case was cited to underscore that the determination of the age of retirement is a matter of executive policy, not judicial intervention.
• Union of India v. Uzair Imran [2023 SCC OnLine 1308]: The Court referred to this case to highlight that courts generally do not look past the commonly accepted age of superannuation, supporting the view that the AFT overstepped its bounds.
• Pradeep Kumar Rai v. Dinesh Kumar Pandey [(2015) 11 SCC 493]: This case was used to support the argument that candidates cannot challenge a selection process after participating in it and being declared unsuccessful, indicating that the Respondent’s challenge was not valid.
• Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309]: The Court cited this case to reinforce the principle that those who participate in a selection process cannot question the method of selection after the outcome, further invalidating the Respondent’s challenge.
• Tajvir Singh Sodhi & Ors. v. State of Jammu Kashmir & Ors [2023 SCC OnLine SC 344]: This case was used to reiterate that candidates who take part in a selection process cannot challenge it after being declared unsuccessful, reinforcing the principle against approbating and reprobating.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the principle of separation of powers, emphasizing that policy formulation is an executive function and not within the purview of the judiciary or quasi-judicial bodies like the Armed Forces Tribunal (AFT). The Court also considered the statutory limitations on the AFT’s powers, particularly noting that it does not have the same authority as a High Court under Article 226 of the Constitution to direct policy formation. The Court also took into account the fact that the Respondent had participated in the promotion process and only challenged it after being unsuccessful, which was not a valid ground to impugn the policy/method. Additionally, the Court was concerned that the AFT had directed the continuation of service beyond the age of superannuation, which is a matter of executive policy.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The Court’s decision was more heavily influenced by legal considerations (70%) than the factual aspects of the case (30%).

Logical Reasoning:

Judgment

The Supreme Court overturned the Armed Forces Tribunal’s (AFT) decision, holding that the AFT exceeded its jurisdiction by directing the government to formulate a policy for filling the post of JAG (Air) and by ordering the continuation of the Respondent’s service beyond the age of superannuation. The Court emphasized that policy formulation is an executive function, not a judicial one, and that the AFT, as a quasi-judicial body, does not have the power to direct the government to make a policy in a particular manner. The Court also noted that the Respondent had participated in the promotion process and only challenged it after being declared unsuccessful. The Supreme Court stated that the AFT did not have any power to extend the service of the Respondent beyond the age of superannuation. The Court also stated that the age of retirement is a matter of executive policy.

The Court quoted from the judgment:

“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.”

“It has been observed time and again that a court cannot direct for a legislation or a policy to be made.”

“The determination of the age of retirement is a matter of executive policy.”

There were no dissenting opinions in this case.

Key Takeaways

• The Armed Forces Tribunal (AFT) cannot direct the government to formulate a specific policy.
• Policy formulation is the domain of the executive branch, not the judiciary or quasi-judicial bodies.
• The AFT cannot extend the service of an officer beyond the age of superannuation.
• Candidates who participate in a selection process cannot challenge it after being declared unsuccessful.
• The principle of separation of powers is crucial in understanding the limitations of judicial and quasi-judicial bodies.

Directions

The Supreme Court quashed and set aside the judgment and order passed by the Armed Forces Tribunal, effectively overturning the AFT’s directions.

Development of Law

The ratio decidendi of this case is that a quasi-judicial body like the Armed Forces Tribunal (AFT) cannot direct the government to formulate a specific policy, as policy formulation is an executive function. Additionally, the AFT cannot extend the service of an officer beyond the age of superannuation. This judgment reinforces the separation of powers and clarifies the limitations of tribunals’ jurisdiction. There is no change in the previous positions of law.

Conclusion

In conclusion, the Supreme Court’s decision in Union of India vs. Air Commodore NK Sharma reaffirms the principle of separation of powers, clarifying that policy formulation is an executive function and not within the purview of the judiciary or quasi-judicial bodies like the Armed Forces Tribunal. The Court also emphasized that the AFT cannot extend an officer’s service beyond the age of superannuation. This judgment underscores the importance of adhering to statutory limitations and the executive’s role in policy matters.

Category

Parent Category: Service Law

Child Categories: Armed Forces Tribunal, Policy Formulation, Separation of Powers, Retirement Age, Air Force Act, 1950, Section 27, Armed Forces Tribunal Act, 2007, Section 14

FAQ

Q: Can the Armed Forces Tribunal (AFT) direct the government to create a new policy?
A: No, the AFT cannot direct the government to create a new policy. Policy formulation is an executive function, not a judicial one.

Q: Can the AFT extend an officer’s service beyond their retirement age?
A: No, the AFT does not have the power to extend an officer’s service beyond their retirement age. The age of retirement is a matter of executive policy.

Q: What should an officer do if they disagree with a promotion process?
A: An officer should challenge the process before participating in it. If they participate in the process and are unsuccessful, they cannot challenge the method of selection later.

Q: What is the principle of separation of powers?
A: The principle of separation of powers means that the legislative, executive, and judicial branches of government have distinct and separate roles. Policy formulation is the role of the executive, while adjudication is the role of the judiciary.

Q: What is the significance of this judgment for armed forces personnel?
A: This judgment clarifies the limitations of the Armed Forces Tribunal and emphasizes that policy decisions regarding promotions and service conditions are primarily within the domain of the executive branch. It also highlights the importance of participating in selection processes without challenging them later if unsuccessful.