UNION OF INDIA & ORS versus AIR COMMODORE NK SHARMA (17038) ADM/LGL

Citation: [2023] 16 S.C.R. 1026 · Decided: 14-12-2023 · Supreme Court of India · Bench: ABHAY S. OKA, SANJAY KAROL · Disposal: Appeal(s) allowed

cites 5 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 16 S.C.R. 1026 : 2023 INSC 1074
1026
CASE DETAILS
UNION OF INDIA & ORS.
v.
AIR COMMODORE NK SHARMA (17038) ADM/LGL
(Civil Appeal No. 14524 of 2015)
DECEMBER 14, 2023
[ABHAY S. OKA AND SANJAY KAROL, JJ.]
HEADNOTES
Issue for consideration: Whether the Armed Forces Tribunal 
could have issued a direction to the Government to frame a policy 
for filling up the post of Judge Advocate General (Air) and; whether 
the Tribunal could have directed that the Respondent would continue 
functioning in such capacity despite non-acceptance of the Promotion 
Board’s recommendation till 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.
Armed Forces Tribunal Act, 2007 – Jurisdiction of Tribunal 
– Impugned order passed by the Armed Forces Tribunal directing 
formation of policy and for the Respondent to continue in service 
till such time of formation of the policy and being considered 
thereunder – Legality:
Held: A Tribunal functioning within the strict boundaries of 
the governing legislation, would not have the power to direct the 
formation of a policy – 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 – Making policy 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, 
1027
to make a policy in a particular manner – Further, in the Armed 
Forces, the tenure of service is extended for a period of time upon a 
person taking office of higher rank – Therefore, upon consideration, 
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 age of 
retirement is known to each officer – A direction to let the Respondent 
continue in service even past such age appears to be without any 
basis – The Tribunal did not have any power to extend this, that too 
for infinity – Therefore, 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 – Furthermore, on facts, 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 – Order passed 
by the Tribunal is quashed and set aside – Service Law. [Paras 20, 
22, 17, 23, 24, 26, 28.5, 29]
Service Law – Challenge to the basis of promotion after 
having participated – Impermissibility:
Held: 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 – Such challenges cannot be allowed – In 
the present case, the post of JAG (Air) was upgraded to AVM in the 
year 2012 – The previous occupant of the position superannuated in 
2014 whereafter, the Respondent was once again appointed to such 
position – The said position having fallen vacant and the Respondent, 
being only an officiating officer, was only considered with his course 
mates in the Promotion Board of 2015 – Thus, he was not considered 
by the Air Force against the AVM JAG vacancy – It is undisputed 
UNION OF INDIA & ORS. v. AIR COMMODORE NK 
SHARMA (17038) ADM/LGL
1028 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
that the Respondent participated in the Promotion Board of 2015 – It 
is only when after such consideration alongside other course-mates 
of the Adm. Branch, when he was not promoted to the rank of AVM 
JAG (Air) that he initiated the statutory complaint u/s. 27 of the AF 
Act – Armed Forces Tribunal Act, 2007. [Paras 28.1-28.3, 30]
LIST OF CITATIONS AND OTHER REFERENCES
L. Chandra Kumar v. Union of India & Ors., [1997] 2 SCR 1186: 
(1

Excerpt shown. Read the full judgment & AI analysis in Lexace.