Union Of India vs Air Commodore Nk Sharma

2023 INSC 1074 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14524 OF 2015

UNION OF INDIA & ORS …APPELLANT(S)

VERSUS

AIR COMMODORE NK SHARMA (17038) ADM/LGL …RESPONDENT(S)

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.

Signature Not Verified

31. Leave to appeal.—(1) An appeal to the Supreme Court shall lie with the leave of the 1 by Digitally signed Jayant Kumar Arora Date: 2023.12.14 Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a 18:51:43 IST Reason: 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”

1| [Civil Appeal No. 14524 of 2015] 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 1st August, 2010 while serving as a Group Captain.

3 Hereafter referred to as ‘AFI 71/74’ 4 Abbreviated as JAG (Air)

2| [Civil Appeal No. 14524 of 2015] 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

5 For brevity, 'AVM’

3| [Civil Appeal No. 14524 of 2015] 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 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 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 Government in such manner as may from time to time be specified by the proper authority 8 AF Act, for short.

9 The Respondents complaint dated 20 April 2015 under Section 27 of the AF Act is not on

record.

4| [Civil Appeal No. 14524 of 2015] 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

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.

5| [Civil Appeal No. 14524 of 2015] 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 “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,

6| [Civil Appeal No. 14524 of 2015] 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

7| [Civil Appeal No. 14524 of 2015] 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: –

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 20th February 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

8| [Civil Appeal No. 14524 of 2015] 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

12 WP(C) 12853/2005

9| [Civil Appeal No. 14524 of 2015] with his batch mates working in the administrative branch was an

exercise in futility.”

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

10| [Civil Appeal No. 14524 of 2015] 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 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

11| [Civil Appeal No. 14524 of 2015] 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 21st March

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.

12| [Civil Appeal No. 14524 of 2015] 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

13| [Civil Appeal No. 14524 of 2015] 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 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

14| [Civil Appeal No. 14524 of 2015] 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 it ex parte; and

(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

15| [Civil Appeal No. 14524 of 2015] 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

13 2023 SCC OnLine SC 987 (2 Judge Bench)

16| [Civil Appeal No. 14524 of 2015] 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: –

“..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)

14 2021 SCC OnLine SC 899 (2 Judge Bench)

17| [Civil Appeal No. 14524 of 2015]

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.

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.

15 (1997) 3 SCC 261 (7 Judge Bench) 16 (2020) 6 SCC 1 (5 Judge Bench)

18| [Civil Appeal No. 14524 of 2015]

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 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

17 2023 SCC OnLine SC 314 (3 Judge Bench)

19| [Civil Appeal No. 14524 of 2015] 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)

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

20| [Civil Appeal No. 14524 of 2015] 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

18 (2020) 13 SCC 261 (3 Judge Bench) 19 2023 SCC OnLine 1308 (2 Judge Bench)

21| [Civil Appeal No. 14524 of 2015] circumstances, look past the commonly accepted age of

superannuation, it is clear that the order of the Tribunal is sans

basis.

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

whereafter, 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

20 Result of the Promotion Board, as noted in the OA was 31 March 2015.

22| [Civil Appeal No. 14524 of 2015] 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. 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:-

21 (2015) 11 SCC 493 (2 Judge Bench) 22 (2013) 11 SCC 309 (2 Judge Bench)

23| [Civil Appeal No. 14524 of 2015]

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

23 2023 SCC OnLine SC 344 (2 Judge Bench)

24| [Civil Appeal No. 14524 of 2015] JAG (Air), finding himself to be unsuccessful in securing a

promotion thereto.

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.

……………………J. (ABHAY S. OKA)

…..……………….J. (SANJAY KAROL)

New Delhi December 14, 2023

25| [Civil Appeal No. 14524 of 2015]