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Union of India vs Air Commodore NK Sharma

Civil Appeal · 2023 INSC 1074Decided 14 Dec 2023
Civil Appeal No. 14524 of 2015
Abhay S. Oka · Sanjay Karol

Background

Air Commodore NK Sharma served as the Indian Air Force's Judge Advocate General (Air), its top legal officer, in an acting capacity, while the post was upgraded to the higher rank of Air Vice Marshal (AVM). When the post fell vacant again, instead of forming a separate promotion board for this specialised legal post, the government considered him for AVM promotion alongside his non-legal "parent branch" course-mates. He participated in that process but was not selected (ranked 9th of 10). He then complained that the government had failed to create a proper policy or dedicated promotion board for the legal post, and the Armed Forces Tribunal agreed, quashing the non-promotion decision and directing the government to formulate a policy and let him keep functioning as JAG (Air) even past his normal retirement age until that policy process was completed. The Union of India appealed to the Supreme Court.

Decision Breakdown

The Supreme Court set aside the Tribunal's order. It held that courts and tribunals do not have the power to direct the government to frame a policy in a particular manner: policy-making is squarely an executive function, not a judicial one, and this holds true even for tribunals that otherwise have jurisdiction over the underlying service dispute. It also held that a tribunal cannot direct someone to continue in service indefinitely past the fixed retirement age merely to wait for a policy to be created, since retirement age itself is a matter of executive policy. Separately, the Court found the officer's challenge barred on a more basic ground: having voluntarily participated in the 2015 promotion board process without objection, he could not turn around and challenge the fairness of that very process only after losing: a person cannot "approbate and reprobate," i.e., accept a process while it might work in their favour and reject it only once it doesn't.

Lesson Learnt

Courts and tribunals cannot order the government to create a specific policy, and a person who willingly takes part in a selection or promotion process cannot later challenge that same process simply because the outcome went against them: objections to a process must be raised before, not after, the result is known.

Official source (sci.gov.in)View Judgment (PDF)

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