Supreme Court of India

UNION OF INDIA & ORSversusAIR COMMODORE NK SHARMA (17038) ADM/LGL

Citation: 2023 INSC 1074
Decided: 14 December 2023
Disposal: Appeal(s) allowed
Bench: ABHAY S OKASANJAY KAROL

Holding

The Armed Forces Tribunal lacks authority to direct the Government to formulate a policy or to extend an officer’s service beyond the statutory retirement age, and its order is ultra vires.

Summary

Air Commodore N.K. Sharma, a Judge Advocate General (Air) in the Indian Air Force, claimed that the Ministry of Defence failed to form a policy for filling the upgraded AVM JAG (Air) post and that his promotion was unjustly denied. He filed a complaint under Section 27 of the Air Force Act, which led the Armed Forces Tribunal (AFT) to direct the Government to frame such a policy and to allow him to continue in the post beyond his statutory retirement age of 57. The Union of India appealed, arguing that the AFT exceeded its jurisdiction by ordering the government to make policy and by extending the respondent's service. The Supreme Court held that the AFT, as a quasi‑judicial body, cannot direct the executive to formulate policy or extend service beyond the prescribed retirement age, as such powers lie exclusively with the legislature and the executive. Consequently, the Court quashed and set aside the AFT's order, finding the respondent's challenge barred because he had participated in the promotion board and could not later contest its outcome.

Issues considered

Whether the Armed Forces Tribunal could direct the Government to frame a policy for filling the post of Judge Advocate General (Air).
Whether the Tribunal could order the respondent to continue functioning in the post despite non‑acceptance of the promotion board’s recommendation and beyond the statutory retirement age.

Legislation cited

Air Force Act, 1950s. 27
Armed Forces Tribunal Act, 2007s. 14, s. 15, s. 31(1)
Code of Civil Procedure, 1908
Indian Evidence Act, 1872s. 123, s. 124

Subjects

service lawarmed forces tribunalpromotionpolicy formulationjurisdictionretirement agejudicial reviewArticle 226Article 227military law

Judgment

[2023] 16 S.C.R. 1026 : 2023 INSC 1074

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,
1026
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1027
SHARMA (17038) ADM/LGL

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
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:
(1997) 3 SCC 261; Rojer Matthew v. South Indian Bank Ltd & Ors., [2019]
16 SCR 1: (2020) 6 SCC 1 – followed.
Union of India v. K. Pushpavanam, 2023 SCC OnLine SC 987; Union
of India & Ors v. Ilmo Devi & Anr., 2021 SCC OnLine SC 899; Union of
India v Parashotam Dass, 2023 SCC OnLine SC 314; Chandra Mohan
Verma v. State of Uttar Pradesh, [2020] 1 SCR 1158: (2020) 13 SCC 261;
Union of India v. Uzair Imran, 2023 SCC OnLine 1308; Pradeep Kumar Rai
v. Dinesh Kumar Pandey, [2015] 6 SCR 825: (2015) 11 SCC 493; Ramesh
Chandra Shah v. Anil Joshi, [2013] 5 SCR 687: (2013) 11 SCC 309; Tajvir
Singh Sodhi & Ors. v. State of Jammu Kashmir & Ors., 2023 SCC OnLine
SC 344 – relied on.
Ex-Rect-/Rfn Nahar Singh v. UOI, Decision of Delhi High Court in
WP(C) 12853/2005 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION : Civil Appeal No.14524 of
2015.
From the Judgment and Order dated 30.11.2015 of the Armed Forces
Tribunal, Principal Bench, New Delhi O.A. No.537 of 2015]
Appearances:
Ms. Sonia Mathur, Sr. Adv., Rajan Kumar Chourasia, Divik Mathur,
Arvind Kumar Sharma, Praneet Pranav, Rajeev Ranjan, Ms. Sweksha, Dr.
N Visakamurthy, Advs. for the Appellants.
V. S. Tomar, Rabin Majumder, Advs. for the Respondent.
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1029
SHARMA (17038) ADM/LGL

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

SANJAY KAROL J.
1. This Civil Appeal, under Section 31(1)1 of the Armed Forces
Tribunal Act, 20072 at the instance of the Union of India, is directed against
the judgment and order dated 30th November 2015, passed by the Armed
Forces Tribunal, Principal Bench, New Delhi in Original Application No.
537 of 2014.
For ease, the Union of India is hereafter referred to as the Appellants
and Air Commodore NK Sharma, is referred to as the Respondent.
BRIEF FACTS
2. A brief conspectus of facts, as relevant for adjudication of this appeal
is-
2.1 The Respondent was commissioned in the Administrative Branch
of the Indian Air Force on 29th December, 1982.
2.2 In 1989, he voluntarily underwent training for the Air Force Judge
Advocate course in accordance with Air Force Instruction 74/713 issued by
the Government of India titled as ‘Employment of Air Force Oﬃcers on
Legal Duties-Terms and Conditions’ which he completed in 1990.
2.3 1991 onwards, the Respondent has served in the JAG department.
Having served on various posts in this department, he was appointed as
the Judge Advocate General (Air)4 by the Chief of Air Staﬀ on 1stAugust,
2010while serving asa Group Captain.

1 31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the
Tribunal;and such leave shall not be granted unless it is certiﬁed by the Tribunal that a
point of law of general public importance is involved in the decision, or it appears to
the Supreme Court that the point is one which ought to be considered by that Court.
2 Referred to as “the Act”
3 Hereafter referred to as ‘AFI 71/74’
4 Abbreviated as JAG (Air)
1030 SUPREME COURT REPORTS [2023] 16 S.C.R.

2.4 On 1st June, 2011 he was promoted to the rank of Air Commodore.
Further he was granted the acting rank to ﬁll up the possession of JAG (Air).
He continued to serve in this position till 15 April 2013. In the meanwhile,
on 4th May, 2012 the post of JAG (Air) was upgraded to the rank of Air
Vice Marshal.5
2.5 On 15 April 2013 another oﬃcer of the upgraded rank was
appointed to serve as JAG (Air) and upon his superannuation, the Appellant
was re-appointed to the said position on 1 October 2014.
THE GENESIS OF THE DISPUTE
3. The grievance of the Respondent is that upon superannuation of the
previous JAG (Air), despite meeting the criteria for promotion to AVM, no
promotion board was formed to consider the Respondent for the aforesaid
vacancy and instead, it was eventually decided that he would be considered
for promotion in his parent branch along with his course mates in Promotion
Board 1/2015.
4. As such,he was considered in the said Promotion Board along with 9
other persons. Other persons, apart from him were found eligible to ﬁll up the
position of JAG (Air) since no other persons, apart from the Appellant were
found to have the requisite legal training in accordance with the AFI 71/74.
Hence, he was recommended for the position of AVM, which however, was
not accepted by the Ministry of Defence6.
5. It is on such non-acceptance of the recommendation of the
Promotion Board that, the dispute before us, began.
STATUTORY APPEAL
6. Section 277 of the Air Force Act, 19508 provides for a mechanism
for redressal of grievances held by oﬃcers against their commanding oﬃcer

5 For brevity, ‘AVM’
6 For brevity, ‘MoD’
7 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 Governmentin such manner as may from time to
time be speciﬁed by the proper authority
8 AF Act, for short.
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1031
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

or any other superior. Aggrieved by the action of the MoD, the Respondent
took recourse to such remedy9.
6.1 The MoD by order dated 29th September, 2015, considered the
Respondent’s complaint. The grievance was noted as being the denial of
promotion to the rank of AVM despite a clear legal vacancy being available.
6.2 The conclusions arrived at by the competent authority of the MoD
in respect of the Respondent’s complaint can be summarised as under: –
6.2.1 At the outset, it was noted that the Indian Air Force does not
have a separate legal branch. The terms and conditions of oﬃcers on legal
duty are governed by the AFI 71/74, (as ‘ampliﬁed’ by Air Force Order
08/200510) which provides that such oﬃcers will be selected from among
those holding permanent commission in any branch of the Air Force11 other
than Technical Branch, and while performing such duties, they shall draw
pay, allowances appropriate to their rank and branch.
6.2.2 The Government has not issued any policy regarding a separate
promotion board for legal vacancies. No policy has been put forth by the
Respondents herein which allows him to be promoted against the legal
vacancy, without being cleared for promotion to the rank of AVM in the
parent branch.
6.2.3 Oﬃcers ﬁlling up legal vacancies, are eligible for the grant of
higher ranks against vacancies in authorised legal appointments, however,
the grant of substantive ranks is governed by the parent branches.
6.2.4 Five vacancies were available with the parent branch of the
Respondent including the vacancy for JAG (Air). The Respondent was the
only oﬃcer qualiﬁed for such post. However, he was placed 9th amongst
10 considered for the promotion to AVM as per ‘AR merit’. The grant of
higher marks by the Promotion Board “just to include him in the top 5”
is contrary to the provisions of AFO 08/2005. Such marks awarded were

9 The Respondents complaint dated 20 April 2015 underSection 27 of the AF Act is not
on record.
10 Referred to as AFO 08/2005
11 Additional qualiﬁcations being that, they ought to have minimum 3 years of
commissioned service and, that they ought not to be below the rank of Flight Lieutenant.
1032 SUPREME COURT REPORTS [2023] 16 S.C.R.

“disproportionate to his demonstrated performance as revealed from the
ARs and the oﬃcers placed above him on the basis of AR marks were given
lesser board marks though these oﬃcers had varied exposure to the duties
of the Adm Branch…”
6.2.5 As per the promotion policy, for the promotion to the current
position of the Respondent as also AVM, the ARs of the last 10 years are to
be taken in into consideration. But he was placed 9th.
6.2.6 Throughout his career, all promotions given to the Respondent
have been with his course mates in the parent branch. The Respondent was
not promoted to his current position as Air Commodore even when his
predecessor at the same position, retired. He was only given the promotion
more than a year later, along with his peers of the parent branch.
6.3 Taking such a view of the matter, the Respondent’s complaint was
rejected as “devoid of merit”
PROCEEDINGS BEFORE THE ARMED FORCES TRIBUNAL
7. In the original application ﬁled before the Armed Forces Tribunal,
the Respondent urged, mainly, the following grounds-
7.1 The Respondent (Appellant herein) has knowingly and deliberately
not convened the promotion board in 2014 to facilitate the promotion of the
Applicant (Respondent herein) in the legal branch.
7.2 The non-approval of recommendations of the Promotion Board
of 2015 against the vacancy of AVM, JAG (Air) was illegal,arbitrary, and
discriminatory particularly when the Respondent herein fulﬁlled all the
conditions required for such promotion to AVM since May, 2012. This action
of non-ﬁlling of the position of AVM despite the availability of an eligible
and qualiﬁed candidate violates the fundamental rights of the Respondent.
7.3 It has been acknowledged by the Appellant herein that only a Judge
Advocate qualiﬁed oﬃcer could be appointed against the position of AVM
earmarked for JAG (Air), then when the Respondents herein was the sole
qualiﬁed candidate, he could not be denied the said promotion.
8. In its counter aﬃdavit, the Appellant herein submitted, chieﬂy, as
under: –
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1033
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

8.1 In the names forwarded by the promotion board, the Respondent
herein featured as 1 of the 5 persons recommended to be appointed as AVM.
However, it was found that board had awarded the Respondent herein,
disproportionate and excessive marks in comparison to other oﬃcers in
the ‘zone of consideration’. This was done only with the aim to appoint
him as JAG (Air). It is on this ground that, the Government did not ﬁnd the
recommendation to be appropriate.
8.2 There is no provision, in either AFI 74/71 or AFO 08/05 or in the
Promotion Policy dated 20thFebruary 2008 under which a separate promotion
board for ﬁlling up legal vacancy, is provided for. The Respondents would
be considered qualiﬁed for AVM, JAG only if he is cleared for promotion
in his parent branch.
8.3 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.
8.4 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 recommendation of the
promotion board is only recommendatory in nature and holds no signiﬁcance
unless approved by the competent and duly empowered authority.
IMPUGNED JUDGMENT
9. The AFT held that given the position of JAG (Air) had been
upgraded in light of the recommendations made by a High-Power Committee
constituted in compliance with the directions given by the Delhi High Court
in Ex-Rect-/Rfn Nahar Singh v. UOI12, the consideration of the case
of the Respondent herein, “under a policy where he could be promoted
against a legal vacancy by competing with his batch mates working in the
administrative branch was an exercise in futility.”

12 WP(C) 12853/2005
1034 SUPREME COURT REPORTS [2023] 16 S.C.R.

9.1 It then endorsed the submission of the learned counsel for the
Respondent herein that “a policy ought to have been formulated by the
Respondent No.1 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 thereunder to give eﬀect to provisions
of para 3 of AFI 71/74(supra)”
9.2 The learned Tribunal concluded as under: –
“13. Having considered all these factual and legal aspects of
the matter, we are of the considered opinion that non-framing
of the policy for ﬁlling up the post of JAG (Air) in the rank of
AVM by constituting a Special Promotion Board has adversely
aﬀected the petitioner›s right to be considered for the promotion
in a just, fair and reasonable manner. As we have concluded that
the petitioner›s claim for onward promotion to the post in the
rank of AVM has not been duly considered against the vacancy,
which became available with eﬀect from 01.10.2014 when he still
had 14 months of service remaining the decision of the Supreme
Court in Maj Gen SM Singh VSM v. Union of India (2014) 3
SCC 670, is attracted to the facts of this case. Accordingly, on
one hand the impugned action of the respondent no. 1 deserves
to be quashed as violative the fundamental rights vested in the
petitioner under Articles 14 & 16 of the Constitution of India
and on the other, he is entitled to remain in service till a due
consideration for promotion is aﬀorded.
14. For all these reasons, the OA is allowed in part and the impugned
decision of the respondent No. 1 not approving the recommendation
of the Promotion Board qua the petitioner is set aside with the
direction to reconsider the same after formulating the policy for
ﬁlling up the AVM rank post in the JAG (Air) Department by
convening a separate Promotion Board.
15. In the peculiar facts and circumstances of the case, it is further
directed that the petitioner shall continue to function as JAG (Air)
till the process of formulating a policy for ﬁlling up the post of
JAG (Air) in the rank of AVM and aﬀording an opportunity to
the petitioner for being considered by the Promotion Board to be
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1035
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

constituted under the policy is completed. We hope and trust that
the respondent No. 1 shall complete the process as far as practicable
within a period of 3 months from today.”
ARGUMENTS ADVANCED
10. By way of the Civil Appeal, the Appellants contend that the
Tribunal was not justiﬁed in directing that the Respondent be allowed to
function as JAG (Air) till such time that the formulation of a policy for ﬁlling
up the possession of AVM takes place, and he’s given an opportunity to be
considered under such policy. Such a direction, it is submitted, is against
public policy as it would allow the Respondent to continue in service beyond
the age of superannuation, 57 years. He was due to retire from service on
30 November 2015.
10.1 Further, it was contended that the Tribunal could not direct that a
person should be considered for promotion in particular manner or in terms
of a new policy, framed upon such direction.
10.2 It was submitted that the Tribunal failed to consider the fact that
the Respondents had duly been considered for promotion to the rank of
AVM along with his colleagues of the administrative branch and was “not
found ﬁt to be promoted.”
11. The Respondent, vide his counter aﬃdavit dated 21stMarch 2016
has submitted the following: –
11.1 It is submitted that the Indian Air Force failed to formulate any
policy to ﬁll up the updated vacancy of AVM JAG (Air). It demonstrates utter
disregard on part of the Appellants for the orders of the Delhi High Court.
11.2 It is further submitted that, the order of the AFT, contrary to
the submission of the Appellants, is not opposed to public policy. If a
fundamental right of the Respondent is violated or contravened, the learned
Tribunal has the power to intervene and pass suitable orders.
11.3 It is contended that the direction in favour of the Respondent
enabling him to continue past the age of superannuation, was called for since
the Appellants inaction continued since 2012. The direction to formulate a
policy for ﬁlling up the above said post and subsequently considering the
Respondent in accordance therewith was also necessitated thereby.
1036 SUPREME COURT REPORTS [2023] 16 S.C.R.

11.4 It is incorrect to state that the Tribunal has directed that the
Respondent must be promoted. Therefore, the direction passed is not against
the proposition of law that a person does not have the right to be promoted
but has the right to be considered for promotion.
ISSUES FOR CONSIDERATION
12. In this backdrop, the questions that we are required to consider
are: –
12.1 Whether the Tribunal could have issued a direction to the
Government to frame a policy for ﬁlling up the post of JAG (Air)?
12.2 Whether the Tribunal could have directed that the Respondent
would continue functioning in such capacity despite non-acceptance of the
Promotion Board’s recommendation 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?
CONSIDERATION AND CONCLUSION
13. The Preamble to the Armed Forces Tribunal Act, 2007 reads-
“An Act to provide for the adjudication or trial by Armed Forces
Tribunal of disputes and complaints with respect to commission,
appointments, enrolment and conditions of service in respect of
persons subject to the Army Act, 1950, the Navy Act, 1957 and the
Air Force Act, 1950 and also to provide for appeals arising out of
orders, ﬁndings or sentences of court martial held under the said
Acts and for matters connected therewith or incidental thereto.
(Emphasis Supplied)
14. Chapter III of the Act pertains to the powers and jurisdiction
vested in the Tribunal. Section 14 therein, details the jurisdiction, power
and authority of the Tribunal in service matters and Section 15 delineates
the same in terms of appeal from orders of Court Martial. The present
case concerns the service rendered/to be rendered, by the Respondent. The
former reads-
“14. Jurisdiction, powers and authority in service matters.—(1) Save as
otherwise expressly provided in this Act, the Tribunal shall exercise, on
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1037
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

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.
(2) Subject to the other provisions of this Act, a person aggrieved by
an order pertaining to any service matter may make an application to
the Tribunal in such form and accompanied by such document or other
evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, the Tribunal
shall, if satisﬁed after due inquiry, as it may deem necessary, that it is
ﬁt for adjudication by it, admit such application; but where the Tribunal
is not so satisﬁed, it may dismiss the application after recording its
reasons in writing.
(4) For the purpose of adjudicating an application, the Tribunal shall
have the same powers as are vested in a Civil Court under the Code
of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of
the following matters, namely—
(a) summoning and enforcing the attendance of any person and
examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on aﬃdavits;
(d) subject to the provisions of sections 123 and 124 of the Indian
Evidence Act,
1872 (1 of 1872), requisitioning any public record or document or
copy of such record or document from any oﬃce;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decisions;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default
or any order passed by itex parte; and
1038 SUPREME COURT REPORTS [2023] 16 S.C.R.

(i) any other matter which may be prescribed by the Central
Government.
(5) The Tribunal shall decide both questions of law and facts that may
be raised before it”
15. A perusal of this Chapter of the Act clearly shows that the
Legislature has laid out in the legislation, in considerable detail, the
functioning of the Tribunal. It must be noticed, as per Section 14(4) for the
purposes of adjudication of dispute before it, the Tribunal has been vested
with the powers of a civil court. Further we notice, that the Section itself
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 of India.
16. It is in consideration of this statutory scheme that we must look
for an answer to the question as to whether the Tribunal could have directed
the formation of a policy, albeit in regard to a matter aﬀecting the service
of armed forces personnel, to adjudicate which, it otherwise possesses the
jurisdiction?
17. 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.
18. It has been observed time and again that a court cannot direct for
a legislation or a policy to be made. Reference may be made to a recent
judgement of this Court in Union of India v. K. Pushpavanam13 where
while adjudicating a challenge to an Order passed by a High Court directing
the State to decide the status of the Law Commission as a Statutory or
Constitutional body and also to consider the introduction of a bill in respect
of torts and State liability, observed as under: –

13 2023 SCC OnLine SC 987 (2 Judge Bench)
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1039
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

“..As far as the law of torts and liability thereunder of the State is
concerned, the law regarding the liability of the State and individuals
has been gradually evolved by Courts. Some aspects of it ﬁnd place
in statutes already in force. It is a debatable issue whether the law of
torts and especially liabilities under the law of torts should be codiﬁed
by a legislation. A writ court cannot direct the Government to consider
introducing a particular bill before the House of Legislature within a
time frame. Therefore, the ﬁrst direction issued under the impugned
judgment was unwarranted.”
(Emphasis Supplied)
19. We may further refer to Union of India &Ors v. Ilmo Devi & Anr14
wherein the Court, while considering with the case concerning regularisation/
absorption of part-time sweepers at a post oﬃce in Chandigarh observed:-
“The High Court cannot, in exercise of the power under Article 226,
issue a Mandamus to direct the Department to sanction and 17 create
the posts. The High Court, in exercise of the powers under Article
226 of the Constitution, also cannot direct the Government and/
or the Department to formulate a particular regularization policy.
Framing of any scheme is no function of the Court and is the sole
prerogative of the Government. Even the creation and/or sanction
of the posts is also the sole prerogative of the Government and
the High Court, in exercise of the power under Article 226 of the
Constitution, cannot issue Mandamus and/or direct to create and
sanction the posts.”
(Emphasis Supplied)
20. The above being the settled position of law, 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.

14 2021 SCC OnLine SC 899(2 Judge Bench)
1040 SUPREME COURT REPORTS [2023] 16 S.C.R.

21. Not only that, it stands clariﬁed by a bench of no less than 7 Judges
of this Court in L. Chandra Kumar v. Union of India & Ors15 as reiterated
by a Bench of 5 judges in Rojer Matthew v. South Indian Bank Ltd &
Ors16 that a Tribunal would be subject to the jurisdiction of the High Court
in Article 226, in the following terms as recorded by Gogoi, CJ, writing
for the majority-
“215. It is hence clear post L. Chandra Kumar [L. Chandra Kumar
v. Union of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] that
writ jurisdiction under Article 226 does not limit the powers of High
Courts expressly or by implication against military or armed forces
disputes. The limited ouster made by Article 227(4) only operates qua
administrative supervision by the High Court and not judicial review.
Article 136(2) prohibits direct appeals before the Supreme Court from
an order of Armed Forces Tribunals, but would not prohibit an appeal
to the Supreme Court against the judicial review exercised by the High
Court under Article 226.
217. The jurisdiction under Article 226, being part of the basic
structure, can neither be tampered with nor diluted. Instead, it has to
be zealously protected and cannot be circumscribed by the provisions
of any enactment, even if it be formulated for expeditious disposal and
early ﬁnality of disputes. Further, High Courts are conscious enough
to understand that such power must be exercised sparingly by them
to ensure that they do not become alternate forums of appeal. A ﬁve-
Judge Bench in Sangram Singh v. Election Tribunal [Sangram Singh
v. Election Tribunal, (1955) 2 SCR 1 : AIR 1955 SC 425] whilst
reiterating that jurisdiction under Article 226 could not be ousted,
laid down certain guidelines for exercise of such power : (AIR pp.
428-29, para 13)
“13. The jurisdiction which Articles 226 and 136 confer entitles the
High Courts and this Court to examine the decisions of all tribunals
to see whether they have acted illegally. That jurisdiction cannot be
taken away by a legislative device that purports to confer power on a

15 (1997) 3 SCC 261 (7 Judge Bench)
16 (2020) 6 SCC 1 (5 Judge Bench)
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1041
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

tribunal to act illegally by enacting a statute that its illegal acts shall
become legal the moment the tribunal chooses to say they are legal.
The legality of an act or conclusion is something that exists outside
and apart from the decision of an inferior tribunal.
It is a part of the law of the land which cannot be ﬁnally determined
or altered by any tribunal of limited jurisdiction. The High Courts and
the Supreme Court alone can determine what the law of the land is
“vis-à-vis” all other courts and tribunals and they alone can pronounce
with authority and ﬁnality on what is legal and what is not. All that
an inferior tribunal can do is to reach a tentative conclusion which is
subject to review under Articles 226 and 136. Therefore, the jurisdiction
of the High Courts under Article 226 with that of the Supreme Court
above them remains to its fullest extent despite Section 105.”
This position stood restated, recently, in Union of India v Parashotam
Dass17
“26. On the legislature introducing the concept of “Tribunalisation”
(one may say that this concept has seen many question marks vis-a-
vis diﬀerent tribunals, though it has also produced some successes),
the same was tested in L. Chandra Kumar18 case before a Bench of
seven Judges of this Court. Thus, while upholding the principles of
“Tribunalisation” under Article 323A or Article 323B, the Bench
was unequivocally of the view that decisions of Tribunals would be
subject to the jurisdiction of the High Court under Article 226 of the
Constitution, and would not be restricted by the 42nd Constitutional
Amendment which introduced the aforesaid two Articles. In our view,
this should have put the matter to rest, and no Bench of less than seven
Judges could have doubted the proposition… Thus, it is, reiterated
and clariﬁed that the power of the High Court under Article 226 of the
Constitution is not inhibited, and superintendence and control under
Article 227 of the Constitution are somewhat distinct from the powers
of judicial review under Article 226 of the Constitution.
(Emphasis Supplied)

17 2023 SCC OnLine SC 314(3 Judge Bench)
1042 SUPREME COURT REPORTS [2023] 16 S.C.R.

22. Thus, 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.
23. In view of the above conclusion, the direction of the Tribunal
for the Respondent to continue in service till such time of formation of
the policy and the respondent being considered thereunder, is also to be
considered. 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.
24. 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. It has been observed in Chandra Mohan Verma v. State of Uttar
Pradesh18 that:-
“24. The determination of the age of retirement is a matter of executive
policy. The appellant attained the age of superannuation prior to the
notiﬁcation dated 6-2-2015 and was not entitled to the beneﬁt of the
enhancement of the age of retirement.
(Emphasis supplied)
25. We also take note of a recent judgment of this Court in Union of
India v. Uzair Imran19 where the commonly accepted age of retirement
has been recognised and acknowledged. It did not see past the retirement
age.
26. 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.

18 (2020) 13 SCC 261 (3 Judge Bench)
19 2023 SCC OnLine 1308 (2 Judge Bench)
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1043
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

27. On both counts, as demonstrated the judgement and order of the
Tribunal, cannot stand.
28. We ﬁnd a further ground under which the challenge led by the
Respondent, ought to have failed at the ﬁrst instance.
28.1 The post of JAG (Air) was upgraded to AVM in the year 2012.
The previous occupant of the position superannuated in 2014 where after,
the Respondent was once again appointed to such position.
28.2 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. In other words, he was not considered by the Air
Force against the AVM JAG vacancy.
28.3 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)20 that he initiated the statutory complaint under Section
27 of the AF Act dated 20 April 2015.
28.4 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.
Repeatedly, this Court has held that such challenges cannot be allowed. On
this, we may refer to certain past instances: –
28.4.1 In Pradeep Kumar Rai v. Dinesh Kumar Pandey21 it was
observed:-
“17. Moreover, we would concur with the Division Bench on one
more point that the appellants had participated in the process of
interview and not challenged it till the results were declared. There
was a gap of almost four months between the interview and declaration
of result. However, the appellants did not challenge it at that time.
This, it appears that only when the appellants found themselves to be
unsuccessful, they challenged the interview. This cannot be allowed.

20 Result of the Promotion Board, as noted in the OA was 31 March 2015.
21 (2015) 11 SCC 493(2 Judge Bench)
1044 SUPREME COURT REPORTS [2023] 16 S.C.R.

The candidates cannot approbate and reprobate at the same time.
Either the candidates should not have participated in the interview and
challenged the procedure or they should have challenged immediately
after the interviews were conducted.”
28.4.2 In Ramesh Chandra Shah v. Anil Joshi22 it was observed:-
18. It is settled law that a person who consciously takes part in the
process of selection cannot, thereafter, turn around and question the
method of selection and its outcome.
28.4.3 Recently, in Tajvir Singh Sodhi &Ors. v. State of Jammu
Kashmir & Ors23 having considered a number of earlier decisions, it was
held by this Court that:-
“69. It is therefore trite that candidates, having taken part in the
selection process without any demur or protest, cannot challenge
the same after having been declared unsuccessful. The candidates
cannot approbate and reprobate at the same time. In other words,
simply because the result of the selection process is not palatable to
a candidate, he cannot allege that the process of interview was unfair
or that there was some lacuna in the process. Therefore, we ﬁnd that
the writ petitioners in these cases, could not have questioned before a
Court of law, the rationale behind recasting the selection criteria, as
they willingly took part in the selection process even after the criteria
had been so recast. Their candidature was not withdrawn in light of
the amended criteria. A challenge was thrown against the same only
after they had been declared unsuccessful in the selection process, at
which stage, the challenge ought not to have been entertained in light
of the principle of waiver and acquiescence.”
28.5 In view of the above discussion, 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.

22 (2013) 11 SCC 309(2 Judge Bench)
23 2023 SCC OnLine SC 344 (2 Judge Bench)
UNION OF INDIA & ORS. v. AIR COMMODORE NK 1045
SHARMA (17038) ADM/LGL [SANJAY KAROL J.]

29. As a result of the discussion aforesaid, the questions raised in this
appeal are answered accordingly and the same, is allowed. The judgement
and order passed by the Armed Forces Tribunal in O.A 537 of 2015, titled
as Air Cmde NK Sharma (17083) v. Union of India &Ors, is quashed and
set aside.
30. Interlocutory applications, if any, shall stand disposed of. No order
as to costs.

Headnotes prepared by: Appeal allowed.
Divya Pandey

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