Facts:
1. N.K Sharma, the Respondent, was working in the JAG (Judge Advocate General) department and also received training for AVM (Air Vice Marshal), hoping to be promoted to the rank of AVM.
2. Even though being qualified for the promotion, no board was made to fill empty position.
3. Then, the disagreement happened, and the Respondent went to the Supreme Court saying that his Fundamental Rights were violated because he was not considered for promotion.
4. The Armed Force Tribunal made a decision supporting the respondent and told the government to create a policy for filling the empty position. They also advised considering Air Commodore N.K Sharma for promotion.
5. The Supreme Court of India agreed with the Tribunal’s decision and said that not giving him a promotion went against his basic rights in the Indian Constitution.
6. The Supreme Court also addressed the limitations of Tribunals in formulating Government Policies.
Issues:
1. Whether the respondent’s rights were infringed upon because a promotion board was not called even though they met the requirements after the former JAG (Air) retired.
2. Whether the Supreme Court’s ruling properly balances powers of bodies like Air Force Tribunal, which work almost like courts, with government policy decisions
3. Whether a Tribunal can in turn direct and affect the framing of the policy to the government.
Legal Provisions:
1. Armed Forces Tribunal Act, 2007
2. The Constitution of India
3. The Air Force Act, 1950
“The Air Force Act, 1950 was passed on 18th May 1950 and became active starting from 22nd July of that year. This law is an act for gathering and improving rules about governing the Air Force.”
“The crucial importance of the act is in how it applies to specific subjects. Section 2 says that people listed below must follow this Act, no matter where they are located:”
(a) officers and warrant officers of the Air Force;
(b) persons enrolled under this Act;
(c) persons who are part of the Regular Air Force Reserve, the Air Defence Reserve or the Auxiliary Air Force, as mentioned in section 26 of the Reserve and Auxiliary Air Forces Act, 1952.
(d) people not typically under the jurisdiction of air force law, who are working for or followers of the Air Force, or accompanying any section of it while on active duty, in the camp, on a march or at any frontier post that has been specified by notification from Central Government about this matter.
The act, as far its application goes, can be considered a Special Law. In addition to the general law, there are some types of the special law that apply only on and impact a fraction of individuals. They are designated for specific objectives and confined within certain domains. They have the name jus special. So, Air Force Act is a special law because it’s not for everyone. The use of this section is limited to a certain class of people, which means those who are mentioned in the said section.
Contentions from both sides:
Appellants:
The Appellants argue that the Tribunal’s order allowing the Respondent to remain in his post as Judge Advocate General (Air) until a new process for appointing an Air Vice Marshal (AVM) is developed and he is reevaluated violates established public service protocols. They claim that this allows the Respondent to serve beyond the mandatory retirement age of 57 years, which was originally set for November 30, 2015.
Furthermore, the Appellants assert that the Tribunal overstepped its jurisdiction by dictating the specific manner in which individual promotion consideration should take place or by requiring the implementation of a new policy. They argue that the development of such a policy is beyond the Tribunal’s scope and purpose of assisting with individual promotions.
The Appellants highlight that the Tribunal failed to consider that the Respondent’s eligibility for promotion to AVM was already assessed by his peers in the administrative sector, resulting in a determination that he was “unsuitable for promotion.” They argue that this assessment process was fair and in accordance with existing regulations. They question the Tribunal’s instruction to reevaluate the Respondent for promotion under a newly established policy, which they believe exceeds the Tribunal’s legal authority.
Respondents:
The Indian Air Force neglected to institute a protocol for filling the recently formed position of Air Vice Marshal Judge Advocate General (Air), displaying a flagrant disregard for the mandates set forth by the Delhi High Court.
The decree of the Armed Forces Tribunal (AFT), in opposition to the assertions made by the Appellants, does not transgress against societal norms. As a court of ultimate jurisdiction, the Tribunal holds the power to intercede and impose necessary decrees in cases where an individual’s fundamental rights are infringed upon or discredited. In this particular instance, the vital right of the Respondent is jeopardized, thereby warranting intervention by the Tribunal.
Granting the Respondent permission to work past the retirement age is crucial, considering the Appellants’ persistent passivity since 2012. This prolonged lack of action has necessitated the formulation of criteria for filling the position, justifying consideration for the Respondent’s candidacy.
The Tribunal did not dictate the Respondent’s advancement. The directive of the Tribunal does not transgress upon the principle of justice, which dictates that an individual does not possess a guaranteed entitlement to promotion but rather a right to be thoughtfully reviewed for such opportunity. This measure simply guarantees that the Respondent is justly evaluated for the position in accordance with established lawful guidelines.
Rationale :
The Supreme Court declared that a Tribunal is not within its jurisdiction to directly mandate the government to construct policy. The ruling stated that the policy-making power is only with executive branch, not Tribunal. Court stressed how vital it is to separate powers by underlining need for clear difference between what judiciary does and what executive does.
The top court changed its previous decision in the case of Major General Shri Kant Sharma, which is a significant turn. After going through it again, they found that the earlier judgement was not matching with many other decisions made by Supreme Court and Constitution Bench.
The detailed judgment explained clearly that the High Courts have absolute and clear authority to exercise their powers under Article 226 of the Constitution in relation to judgments given by Armed Forces Tribunal. The provision in law allows High Courts to give writs for enforcing fundamental rights and for other purposes, giving them a major control over Tribunal’s decisions.
The main idea of this ruling is that Tribunals are not allowed to make direct orders or rules about policy problems for the government. The role of creating and putting into effect policy belongs only to the executive group. This line makes sure that making and running policies stay as a right for the executive team, maintaining the planned equilibrium and division of power among various government branches. It is also important to note The Air Force Acts unique status is also explained in Section 139 of The Indian Penal Code. It says that defence personnel who are under the Army Act, the Navy Act, and the Air Force Act will not be punished under this chapter. These people would be controlled by their own Acts and face more serious penalties than civilians for committing similar offences.
Moreover, the Air Force Act, as a special law, it has extra-territorial application too. This means that a person who is subject to this law remains so at all times regardless of where he is serving – whether in India or outside India. The subjection to the act and hence the liability to punishment under the act is unaffected by either where he is stationed or where an offense might be committed.”
Defects:
The case importantly touched upon the requirement for certification by the Tribunal while seeking a leave to appeal to the Supreme Court.
Further on, The Court clarified that the leave to appeal shall not be granted unless the Tribunal will certificate that a point of law of general public importance is involved.
It is argued that this very certification process could potentially delay access to justice.
Judgement (Ratio Decidendi):
The government was ordered by the Court to create a Promotional Board of its own, reevaluate Sharma, and develop a policy for filling a vacancy.
Inferences:
To me, the decisions made by the Armed Forces Tribunal and the Supreme Court of India were very important. Getting promoted in any group, especially in military which is highly respected, is seen as a big sign showing appreciation for someone’s loyalty, effort and input. It formally recognizes their work and dedication to their community as well as society overall.
Rewarding people for their role in the welfare of society is a basic right that all citizens should have. It boosts the person’s morale and also helps to establish a standard and model for other people, motivating them towards an atmosphere of superiority and commitment.
N.K. Sharma stood out as a highly qualified contender for the role of Judge Advocate General (Air Vice Marshal). His professional journey and accomplishments in the Indian Air Force perfectly demonstrate the characteristics and abilities required for this esteemed post. Comprehension of Leadership System
This case underlines the significance of just and clear methods in acknowledging and boosting ability within the military.
The case of Union of India vs. Air Commodore N.K. Sharma is significant, for it highlights how there could be many times where people who should get recognized and promoted might not receive their due because of problems in the system or mistakes in procedure. In society, there are numerous instances like this one which go unnoticed and unattended. This case will always be a bright light guiding us to handle and correct such overlooked situations.
The judgments in this case show how important is the judiciary to make sure fairness and justice are maintained in promotion processes of armed forces. They also underline that executive branch should create policies which are clear and impartial for recognizing deserving people. This case, with its various elements of disagreement, will probably be referred to in future disputes as a landmark example representing the commitment of India’s judiciary towards justice and meritocracy within the Indian Armed Forces.
Aditya Kevin
CHRIST (Deemed to be) University, Bangalore