AUTHOR: SAMRUDDHI P NAIK, ST. WILFRED’S COLLEGE OF LAW, PANVEL
ABSTRACT / HEADNOTE
In a democratic country like India, where the nation has diversified economically, financially, and socially. There are few intolerant behaviors in terms of the Rights of citizens granted by The Constitution of India to the society. In this Modern Era, where Skills are appreciated before Favour and talent is appreciated before Nepotism, we will also advocate several cases that are ignorant towards deserving talent/candidate. This case is one of the examples of unnoticed cruelty in the workplace; Discrimination towards caste, race or sex is unacceptable.
Keywords: promotion, air vice marshal, fundamental rights, discrimination, violation of constitutional rights
CASE DETAILS
| Judgement Cause Title | Union of India vs Air Commodore N.K Sharma |
| Case Number | 14524 OF 2015 |
| Judgement Date | December 14, 2023 |
| Court | Supreme Court of India |
| Quorum | Hrishikesh Roy, Sanjay Karol |
| Author | Sanjay Karol |
| Citation | Union of India & Ors vs Air Commodore NK Sharma (17038) |
| Legal Provisions Involved | Air Force Act,1950, Constitution of India- Article 226, 227 & Code of Civil Procedure,1908 |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
The case Union of India v/s Air Commodore N.K Sharma revolves around the promotion of N.K Sharma within the Indian Air Force. Primarily, the case revolves around whether the Tribunal had the authority to direct the government to mount a guideline to secure the position of Judge Advocate General (AIR) in the rank of AVM.
The disagreement arose after the denial of the promotion of N.K Sharma to the rank of Air Vice Marshal (AVM) regardless of meeting the eligibility criteria. Article 14 of COI i.e. Equality before the Law and Equal Protection of Law & Article 16 i.e. the Prohibition of Discrimination in Employment in any government office are enshrined. In this case, the Supreme Court of India directed the Tribunal to consider N.K Sharma for the promotion to the position of Judge Advocate General (JAG) within the Indian Air Force. Also, the court clarified that any Tribunals cannot provide orders to the government to formulate policies.
FACTS OF THE CASE
- N.K Sharma the Respondent was serving in the JAG (Judge Advocate General) department along with took training for AVM (Air Vice Marshal), intending to be appreciated with a promotion of AVM.
- Regardless, being eligible for the promotion, no promotion board was formed to fill the vacant position.
- Then, the dispute arose, and the Respondent took to the Supreme Court that his Fundamental Rights are violated by not considering him for the promotion.
- The Armed Force Tribunal served a decision in favour of the respondent, directing the government to form a policy for filling the vacant position and considering Air Commodore N.K Sharma for the promotion.
- The Supreme Court of India supported the decision of the Tribunal and stated that denial of his promotion violated his fundamental rights under the Indian Constitution.
- Also, the Supreme Court addressed the limitations of Tribunals in formulating Government Policies.
LEGAL ISSUES RAISED
- “Whether the respondent’s rights were violated due to the failure to convene a promotion board despite meeting promotion criteria upon the retirement of the previous JAG (Air)”[1]
- “Whether the Supreme Court’s ruling adequately balances the powers of quasi-judicial bodies like the Air Force Tribunal with governmental policy prerogatives”[2]
- “Whether a tribunal can direct the framing of policy to the government”[3]
PETITIONER/ APPELLANT’S ARGUMENTS
- The counsels for Petitioner / Appellant submitted that non consideration despite being eligible for promotion had violated the fundamental rights of the Appellant.
- It was submitted that the Ministry of Defence refused the promotion of appellant and deprived him from his Fundamental Rights.
- The Petitioner submitted that the Indian Air Force failed to appoint a Promotion Board to fill up the vacancy of JAG AVM).
RESPONDENT’S ARGUMENTS
- The counsels for Respondent submitted that the Indian Air Force failed to formulate a policy to fill the vacancies.
- It was submitted that the Tribunal did not declared promotion to the appellant but emphasized the right to consider him for the promotion.
RELATED LEGAL PROVISIONS
- Armed Forces Tribunal Act, 2007
“The Armed Forces Tribunal Act 2007, was passed by the Parliament and led to the formation of AFT with the power provided for the adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolments and conditions of service in respect of persons subject to the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950.”[4]
- Constitution of India
“The Constitution of India is the supreme law of India. It was adopted by the Constituent Assembly of India on 26 November 1949 and became effective on 26 January 1950. The constitution replaced the Government of India Act 1935 as the country’s fundamental governing document, and the Dominion of India became the Republic of India. The constitution declares India a sovereign, socialist, secular,[11] and democratic republic, assures its citizens justice, equality, and liberty, and endeavours to promote fraternity.”[5]
- Air Force Act, 1950
“The Air Force Act, 1950 was enacted on 18th May 1950 and came into force on 22nd July 1950. It is an act to consolidate and amend the law relating to the governance of the Air Force.”[6]
“The pivotal significance of the act lies in the application of the act to its particular subjects. Section 2 of the Act states that the following persons shall be subject to this Act, wherever they may be, namely:
(a) officers and warrant officers of the Air Force;
(b) persons enrolled under this Act;
(c) persons belonging to the Regular Air Force Reserve the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952;
(d) persons not otherwise subject to air force law, who, on active service, in camp, on the march, or at any frontier post specified by the Central Government by notification on this behalf, are employed by, or are in the service of, or are followers of, or accompanying any portion of the Air Force.
The act is insofar as its application is concerned, a Special Law. Besides the general law, there are certain kinds of the special law which operate upon and affect only a fraction of people. They are assigned for a particular purpose and are restricted to a particular field. They are called jus special. The Air Force Act is thus, a special law, as it does not apply to the general public. Section 2 of the act restricts its application to a certain class of people, i.e., those who are specifically mentioned as the subjects under the said section.
The rationale behind its special status is also contained in Section 139 of The Indian Penal Code; which clarifies that the defence personnel who are subject to the Army Act, the Navy Act, and the Air Force Act shall not be subject to punishment under that chapter. Such persons would be governed by the Act to which they are subjected to and punished more severely than the civilians for the same offence.
Furthermore, the Air Force Act, being a special law has extra-territorial application as a person subject to it continues to be so subject at all times irrespective of the place where he is serving, whether he is in India or elsewhere. The subjection to the act and hence the liability to punishment under the act is unaffected by the place where he is stationed or the place where the offence is committed.”[7]
- Air Force Instructions (AFI)
“ An Air Force Instruction (AFI) is a documented instruction for members of the United States Air Force intended for use by active duty, guard, and reserve members and associated civilians. It is one of many forms of directives published by the Air Force Departmental Publishing Office (AFDPO).[1] In almost all cases, an Air Force Instruction is a form of a general order; and violation of the AFI by an Airman subject to it can be punished under the UCMJ Uniform Code of Military Justice.”[8]
- Air Force Orders (AFO)
“ Orders issued by the CAS on various matters for general administration of the IAF”[9]
JUDGEMENT (RATIO DECIDENDI)
The Court directed the government to formulate a policy for filling a vacant position and reconsider Sharma and grant an opportunity by establishing a separate Promotional Board.
CONCLUSION & COMMENTS
In my opinion, the decision of the Armed Force Tribunal and Supreme Court of India was overwhelming, because promotion is one of the ways of appreciating someone. To be rewarded for the contribution made for the welfare of the society is the right of every citizen working on it. N.K Sharma was truly a deserving candidature for the vacancy of JAG (AVM). There are several such cases, that remains unnoticed in the society, but Union of India v/s Air Commodore N.K Sharma will always address such cases.
REFERENCES
Important Statutes Referred
AIR FORCE ACT, 1950
CONSTITUTION OF INDIA
AIR FORCES TRIBUNAL ACT, 2007
[1] Union Of India vs Air Commodore Nk Sharma on 14 December, 2023 (indiankanoon.org)
[2] Union Of India vs Air Commodore Nk Sharma on 14 December, 2023 (indiankanoon.org)
[3] https://www.verdictum.in/court-updates/supreme-court/union-of-india-ors-v-air-commodore-nk-sharma-2023-insc-1074-aft-article-226-1509686
[5] Constitution of India – Wikipedia
[6] Overview Of The Air Force Act, 1950 | JudicateMe
[7] Overview Of The Air Force Act, 1950 | JudicateMe
[8] Air Force Instruction – Wikipedia
[9] UPDATED-RTI-HANDBOOK-30-SEP-22.pdf (indianairforce.nic.in)