Tribunal Cannot Direct Framing Of Policy By Government: Supreme Court Sets Aside AFT Direction On JAG

The Supreme Court on Thursday (14.12.2023) held that a Tribunal subject to the High Court's jurisdiction under Article 226, cannot be permitted by law, to direct the framing of a policy by the Government.

A bench of Justice Abhay S Oka and Justice Sanjay Karol was considering whether the Armed Forces Tribunal (AFT) could have issued a direction to the Government to frame a policy for filling up the post of Judge Advocate General (Air). It has been observed time and again that a court cannot direct for a legislation or a policy to be made, the Apex Court said in this regard.

“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 Apex Court observed.

The Court perused the scheme of the Armed Forces Tribunal Act, 2007 to point out that under Section 14(4) of the Act, the Tribunal has been vested with the powers of a civil court, for adjudication of disputes before it . The Court also noted that Section 14 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.

“.. 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 Apex Court said.

In the case at hand, the Respondent was serving in the JAG (Judge Advocate General) department. He was appointed as the JAG (Air) in 2010. In 2011, he was promoted to the rank of Air Commodore. Further he was granted the acting rank to fill up the position of JAG (Air) where he continued to serve until 2013. In the meanwhile, in May 2012, the post of JAG (Air) was upgraded to the rank of Air Vice Marshal (AVM). In April 2013, another officer of the upgraded rank was appointed to serve as JAG (Air) and on his superannuation, the Appellant was re-appointed to this position in October 2014.

The post of JAG (Air) was upgraded to AVM in the year 2012. The previous occupant of the position superannuated in 2014 and the Respondent was once again appointed to this position. After the position fell vacant, the Respondent, being only an officiating officer, was considered with his course mates in the Promotion Board of 2015. He was not considered by the Air Force against the AVM JAG vacancy.

The grievance of the Respondent was that on superannuation of the previous JAG (Air), despite meeting the criteria for promotion to AVM, no promotion board was formed to consider him for this vacancy and instead, he was considered for promotion in his parent branch along with his course mates.

When he approached the Tribunal, against the Government, the AFT observed that the Government had not issued any policy regarding a separate promotion board for legal vacancies. No policy has been put forth by the Centre allowing him to be promoted against the legal vacancy, without being cleared for promotion to the rank of AVM in the parent branch, the Tribunal observed.

A policy ought to have been formulated by the Government for filling up the post immediately after the upgradation of the post of JAG (Air) to the rank of AVM and a separate promotion board ought to have been proposed, the Tribunal held. The Tribunal directed the Respondent to continue in service till the time of formation of a policy and the respondent being considered.

Against this order of the AFT, the Government approached the Supreme Court. The Apex Court observed that the Respondent had participated in the Promotion Board of 2015 and it is only when he was not promoted to the rank of AVM JAG (Air) that he challenged the result of the Promotion Board. Challenging the basis of promotion after having participated in the process on consideration of promotion and having been declared unsuccessful, is not a valid ground to impugn the policy/method, the Apex Court said.

“..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 JAG (Air), finding himself to be unsuccessful in securing a promotion thereto” the Apex Court concluded.

In the Armed Forces, the tenure of service is extended for a period of time upon a person taking office of higher rank, the Supreme Court pointed out. Hence, had the Respondent been found suitable for promotion to AVM, his superannuation would have moved forward from 57 years at which he was due to superannuate upon not being promoted, the Apex Court highlighted. Thus, the direction by the Tribunal to let the Respondent continue in service even past such age was without any basis, the Apex Court 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 Supreme Court said.

The Apex Court accordingly quashed and set aside the order of the Armed Forces Tribunal.

Case Title: Union of India V. AIR Commodore NK Sharma, Civil Appeal No. 14524 of 2015

Citation: 2023 LiveLaw (SC) 1058

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