Tribunals Cannot Direct Framing Of Policy By Government: Supreme Court
The Supreme Court has held that a Tribunal cannot direct the framing of policy by the government.
The Court held thus in an appeal filed by the Union of India under Section 31(1) of the Armed Forces Tribunal Act, 2007 against the judgment of the Armed Forces Tribunal, New Delhi (Principal Bench).
The two-Judge Bench of Justice Abhay S. Oka and Justice Sanjay Karol said, “… 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. … it only stands to reason then, that, a Tribunal subject to the High Court’s jurisdiction under Article 226, cannot be permitted by law, to direct the framing of policy by the Government.”
The Bench noted that making a policy is not in the domain of the Judiciary and the Tribunal is also a quasi-judicial body, functioning within the parameters set out in the governing legislation. It said that 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.
Senior Advocate Sonia Mathur represented the appellants while Advocate V.S. Tomar represented the respondent.
In this case, the respondent was a person commissioned in the Administrative Branch of the Indian Air Force in 1982 and in the year 1989, he voluntarily underwent the training for the Air Force Judge Advocate course in accordance with Air Force Instruction issued by the Government of India titled as ‘Employment of Air Force Officers on Legal Duties-Terms and Conditions’ which he completed in 1990. Thereafter, he served in the JAG department and was then appointed as the Judge Advocate General (Air) by the Chief of Air Staff in 2010 while serving as a Group Captain.
In 2011, he was promoted to the rank of Air Commodore and was granted the acting rank to fill up the possession of JAG (Air). In the meanwhile, the said post was upgraded to the rank of Air Vice Marshal and in 2013, another officer was appointed and upon his superannuation, the respondent was re-appointed in 2014. His grievance was that, despite meeting the criteria for promotion to AVM, no promotion board was formed to consider him for the vacancy. He was considered in the Promotion Board along with 9 other persons and since no other persons were found to have requisite training, he was recommended for the position of AVM, which however was not accepted by the Ministry of Defence.
The Supreme Court after hearing the arguments from both sides observed, “There exists no provision for grant of substantive rank to an officer discharging legal duty against vacancy in the legal department. Substantive ranks can only be granted to such an officer if he is cleared for such promotion in the parent branch. The rules for grant of substantive rank are the rules governing such grant, in the parent branch and not in the legal branch. … Merely because vacancy is available and the Respondent herein considers himself qualified to be appointed at such vacancy, it would not imply that such an appointment would be automatically made. Upon consideration, the Respondent herein failed to secure the promotion and therefore such promotion has not been granted.”
The Court said that the recommendation of the promotion board is only recommendatory in nature and holds no significance unless approved by the competent and duly empowered authority.
“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”, also said the Court.
The Court further observed that the court ought not to, in ordinary circumstances, look past the commonly accepted age of superannuation and that the order of the Tribunal is sans basis. It said 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.
“… 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 AVM JAG (Air), finding himself to be unsuccessful in securing a promotion thereto”, added the Court.
Accordingly, the Apex Court allowed the appeal and quashed the judgment of the Tribunal.
Cause Title- Union of India & Ors. v. AIR Commodore NK Sharma (17038) ADM/LGL (Neutral Citation: 2023 INSC 1074)
Appearance:
Appellants: Advocates Rajan Kumar Chourasia and Divik Mathur, AOR Arvind Kumar Sharma, Advocates Praneet Pranav, Rajeev Ranjan, Sweksha, and Dr. N Visakamurthy.
Respondent: AOR Rabin Majumder
