The Supreme Court of India, in a significant ruling on December 14, 2023, clarified the limits of a Tribunal’s authority, particularly in relation to directing the government to frame policies. This decision, led by a bench comprising Justice Abhay S. Oka and Justice Sanjay Karol, specifically addressed whether the Armed Forces Tribunal (AFT) could instruct the government to develop a policy for appointing the Judge Advocate General (Air).
The Apex Court firmly stated,
“Making policy, as is well recognized, 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.”
This observation underscores the judiciary’s recognition of its role and boundaries in policy-making.
The Court examined the Armed Forces Tribunal Act, 2007, noting that under Section 14(4) of the Act, the Tribunal possesses the powers of a civil court for adjudicating disputes. However, it emphasized that Section 14 explicitly states that the Tribunal does not have the powers exercised by the Supreme Court or a High Court under Articles 226 and 227 of the Constitution.
“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,”
the Apex Court added.
The case in question involved a respondent serving in the JAG (Judge Advocate General) department, who was appointed as the JAG (Air) in 2010 and promoted to Air Commodore in 2011. Following the upgradation of the JAG (Air) post to Air Vice Marshal (AVM) in 2012, the respondent faced issues regarding promotion and the formation of a separate promotion board for legal vacancies.
The Tribunal had previously directed the government to formulate a policy for filling the JAG (Air) post and to consider the respondent for promotion. However, the Supreme Court found this direction to be beyond the Tribunal’s jurisdiction. The Apex Court observed,
“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 JAG (Air), finding himself to be unsuccessful in securing a promotion thereto.”
Furthermore, the Supreme Court pointed out that in the Armed Forces, the tenure of service is extended upon promotion to a higher rank. Therefore, the Tribunal’s direction to let the respondent continue in service past the age of superannuation was deemed baseless.
“ 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,”
the Supreme Court concluded.
In conclusion, the Supreme Court quashed the order of the Armed Forces Tribunal, reaffirming the principle that Tribunals, subject to the jurisdiction of High Courts under Article 226, cannot direct the government to frame policies. This ruling delineates the scope of judicial and quasi-judicial bodies in matters of policy-making, emphasizing the separation of powers and the respective domains of different branches of governance.