| Headnote |
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, 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 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] |
