Wing Commander Subrata Das and P K Sen resumed their duties after the decision of the Tribunal. Wing Commander P K Sen has been promoted as Group Captain. Wing Commanders Subrata Das and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31 January 2020 respectively. Having regard to the fact that both these officers are presently in service, we direct, in the exercise of our jurisdiction under Article 142 of the Constitution, that their services in the Air Force for the remaining tenure will not be affected by the present judgment. This will, however, be subject to all the applicable norms, rules and regulations governing discipline and efficiency governing the service. As regards Group Captain Rajeev Moitra, we set aside the judgment and order of the Tribunal and in consequence, the original application filed before the Tribunal shall stand dismissed. We affirm the judgment of the Tribunal in the case of Wing Commander Rachit Bhatnagar, though for the reasons which we have indicated above.


Hon’ble Dr. Justice D.Y. Chandrachud

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 10953 OF 2014

UNION OF INDIA

THROUGH ITS SECRETARY,

MINISTRY OF DEFENCE DHQPO,

NEW DELHI & ORS. …..APPELLANTS

Versus

WG. CDR. SUBRATA DAS (19942-H) …..RESPONDENT

WITH

CIVIL APPEAL (D) No. 4575 OF 2017

WITH

CIVIL APPEAL No. 2821 OF 2015

AND WITH

DAIRY No. 26814 OF 2018

2

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.

1 Delay condoned.

2 Leave granted.

3 This batch of appeals arises from proceedings initiated before the Armed

Forces Tribunal1

. Each of the four officers of the Indian Air Force – Wing

Commanders Subrata Das, P K Sen, Rachit Bhatnagar and Group Captain

Rajeev Moitra sought a premature separation from service under the Human

Resource Policy2

notified on 5 August 2011 by the Air Headquarters. Their

requests for a Premature Separation from Service3

were allowed. Before the date

stipulated for their separation from the Indian Air Force4

, the officers withdrew

their requests and sought to continue in service. The rejection of their plea to

continue by the Air Headquarters led them to institute proceedings before the

Tribunal.

4 The officers succeeded before the Tribunal in three of those proceedings, 5

while the decision of the Air Headquarters was upheld in the fourth proceeding.6

The Union of India is in appeal against the three decisions of the Tribunal

allowing the requests made by the officers to withdraw from their applications for

1 The Tribunal

2 The Human Resource Policy, Air HQ/988321/1/PO-5

3 PSS

4 “IAF”

5 O.A. No. 425 of 2013, O.A. No. 467 of 2013 and O.A. No. 134 of 2015

6 O.A. No. 1265 of 2017

3

PSS and continue in service. Wing Commander Rachit Bhatnagar was

unsuccessful in pursuing his remedy before the Tribunal and has filed a Civil

Appeal questioning the decision.

5 The facts follow a similar trajectory. The facts relevant to each of the

appeals are set out below :

(i) Civil Appeal 10953 of 2014 : Wing Commander Subrata Das:

The officer was commissioned on 14 June 1989 as Pilot Officer and was

promoted to the rank of Wing Commander on 16 December 2004. On 6 May

2013, he applied for PSS with 2 December 2013 as the proposed date of

severance. The ground on which he sought PSS was that he was Permanently

Passed Over7

by the Promotion Board. The request was accepted and

communicated on 3 June 2013. The officer commenced a pre-release course at

the International College of Financial Planning, New Delhi. At around the tenth

week of the twelve-week course, he withdrew from the course and submitted an

application to withdraw his request for PSS on 16 September 2013. The ground

pleaded for withdrawing the application for PSS was acute domestic problems.

The request was rejected on 15 October 2013. The officer is due to superannuate

from the Air Force on 31 January 2019. He did not complete the pre-release

course.

(ii) Civil Appeal 2821 of 2015 : Wing Commander P K Sen:

7PPO

4

The officer was commissioned on 4 September 1989 and was promoted to the

rank of Wing Commander on 16 December 2004. On 1 October 2012, he applied

for PSS with 30 October 2013 as the proposed date of severance. He sought

PSS on compassionate grounds and since he was Permanently Passed Over.

The request for PSS was approved and communicated on 30 April 2013. The

officer commenced a pre-release course at Amity Institute of Education and

Training, Noida. The officer sought a change in the PSS date from 30 October

2013 to 3 January 2014. The request was rejected and he was informed on 18

October 2013. On 8 October 2013, he submitted an application to withdraw his

request for PSS which was received on 24 October 2013. The officer sought to

withdraw his application for PSS on the ground that he had not been able to

obtain private placement in a volatile market and that he faced personal

difficulties. Before a decision could be taken, the officer instituted proceedings

before the Tribunal on 25 October 2013. The officer is due to superannuate from

the Air Force on 31 January 2020. He completed the pre-release course.

(iii) Civil Appeal (D) No. 4575 of 2017 : Group Captain Rajeev Moitra:

The officer was commissioned on 17 December 1988 and was promoted to the

rank of Group Captain on 17 December 2014. On 25 April 2014, he applied for

PSS with 31 December 2014 as the proposed date of severance. He sought PSS

on compassionate grounds and since he was Permanently Passed Over. The

request for PSS was approved on 12 July 2014 and was communicated on 15

July 2014. Upon a request by him for a change in the date of severance, the date

of PSS was postponed from 31 December 2014 to 7 March 2015. On 19 January

5

2015, he submitted an application to withdraw his request for PSS which was

rejected on 5 March 2015. The request for withdrawal was on the ground that the

age of superannuation had been altered from 54 to 57 years and that he faced

personal family difficulties. The officer was due to superannuate from the Air

Force on 31 December 2020. He completed the pre-release course.

(iv) Civil Appeal Dairy No. 26814 of 2018 : Wing Commander Rachit Bhatnagar :

The officer was commissioned on 28 November 1994 and was promoted to the

rank of Wing Commander. The application for PSS was submitted on 3

November 2016 with a proposed date of severance as 31 July 2017. The ground

for PSS was that the officer had been Permanently Passed Over (PPO). The

request for PSS was accepted on 1 February 2017. On 26 May 2017, the officer

made a request for a change in the PSS date which was rejected on 20 July

  1. On 28 July 2017, the officer submitted an application for withdrawing his

request for PSS, citing family constraints and unfavourable market conditions.

Before a decision could be taken, the officer instituted proceedings before the

Tribunal. The Tribunal did not grant the officer relief and he retired on 31 July

  1. The officer was due to superannuate from the Air Force on 31 October
  2. The officer completed the pre-release course.

6 Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev

Moitra succeeded before the Tribunal and the rejection of their applications to

withdraw the request for PSS was set aside. Following the decision of the

Tribunal, Wing Commanders Subrata Das and P K Sen have been taken back

into service and continue to work as officers of the IAF. In the case of Group

6

Captain Rajeev Moitra, the order of the Tribunal was stayed during the pendency

of the Civil Appeal and he has not been taken back on duty. Wing Commander

Rachit Bhatnagar was not successful before the Tribunal and he is in appeal

before this Court.

7 The Tribunal at its Principal Bench, while rendering its decision on 27

March 2014 in the case of Wing Commander Subrata Das, held that officers have

a substantive right to continue in service until they attain the age of

superannuation and that an application for premature retirement can be

withdrawn at anytime before the actual date of retirement. The Human Resource

Policy of the Air Force permits the withdrawal of the request for PSS on “extreme

compassionate grounds”. The Air Force, according to the Tribunal, did not take

into consideration the grounds indicated in the application, and proceeded to

reject it on the ground that the officer had already undergone the pre-release

course. In the view of the Tribunal, the pre-release course is an option which is

given to an employee to improve career prospects and is not a condition of

service. The Tribunal held that the officer has a substantive right to continue in

service and that this right cannot be whittled down by a policy which has no

statutory flavour. In taking this view, the Tribunal has relied upon the decision of

this Court in Union of India v Wing Commander T Parthasarathy8

. The

Tribunal held that severance from service which takes effect on a prospective

date can be withdrawn at any time before it becomes effective. Hence, the order

passed by the Air Headquarters was quashed with a direction to take the officer

back in service with consequential benefits.

8 “Parthasarathy” : (2001) 1 SCC 158

7

8 In the case of Wing Commander P K Sen, the Tribunal at its Principal

Bench relied on the decision of this Court in Parthasarathy (supra) and its earlier

decision in the case of Wing Commander Subrata Das while granting relief in

similar terms in its order dated 3 September 2014. In the case of Group Captain

Rajeev Moitra, the Tribunal at its Regional Bench at Lucknow relied on the

decisions of this Court in Balram Gupta v Union of India9

, Shambhu Murari

Sinha v Project & Development India Ltd.10 and Parthasarathy (supra). The

Tribunal by its order dated 15 September 2016 held that an officer has an

absolute right to withdraw an application for PSS before the effective date of

retirement. The Tribunal placed reliance on its earlier decision in the case of Wing

Commander P K Sen to hold that a substantive right which enures to the benefit

of the officer cannot be denied merely on the basis of a policy of the Government.

9 In the case of Wing Commander Rachit Bhatnagar, the Tribunal at its

Principal Bench has ruled against the officer by its decision dated 7 February

  1. The Tribunal, while taking a view contrary to its earlier decisions held that

officers are commissioned into the Armed Forces on a commission by the

President of India. The commission is associated with privileges, duties and

distinct liabilities. In the view of the Tribunal, separation from service of a

commissioned officer is not a vested right but is at the will and pleasure of the

President. A request for premature retirement has to be approved by the Central

government. Premature retirement is not a matter of right. The need for a highly

disciplined force distinguishes the Armed Forces from civil services. In other

words, under the legislation which governs the Armed Forces, it is the right of the

9 “Balram Gupta” : 1987 Supp SCC 228

10 (2002) 3 SCC 437

8

authorities and of the government to retain or retire an officer and there is no

vested right for premature retirement.

10 The questions of law which have been urged in the appeals from the

above decisions of the Tribunal are similar. The appeals were consolidated and

have been heard together.

11 Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the

Union of India has urged the following submissions:

(i) Service in the Indian Air Force is on the grant of a commission by the

President of India. The tenure of every member of the service is subject to the

Air Force Act 1950 and is at the pleasure of the President;

(ii) Rule 13 of the Air Force Rules 1969 provides for the release of a member,

subject to the Air Force Act 1950 and in accordance with the rules, orders or

instructions made in that behalf by or under the authority of the Central

government;

(iii)Premature Separation from Service is governed by the Human Resource

Policy formulated by the Air Headquarters under powers delegated to it by the

Ministry of Defence on 14 August 2001;

(iv) The policy seeks to achieve a convergence of individual aspirations and

interests of the service;

(v) The number of officers granted PSS in a year is restricted, based on the

exigencies of the service including inductions, superannuation and other exits.

Manpower deployment is a scientific process based on data collected every

year and the data is collated and divided into two Boards of Officers

scheduled to be held in the months of March and September;

9

(vi) Under the terms of the Human Resource Policy, officers with more than 24

years of service or those Permanently Passed Over may apply for PSS within

nine months from the proposed date of severance and retire with full benefits.

During this period, an officer has the opportunity to adjust to post retirement

life;

(vii) Discipline is the backbone of the Armed Forces and the policy has been

amended to permit one extension of the date of severance when it falls within

the prescribed jurisdiction of the Board of Officers;

(viii) The withdrawal of an application for PSS is governed by paragraph 18 of

the Human Resource Policy. The policy stipulates that an officer who has

undergone a pre-release course is not entitled to withdraw the application.

60% of the cost of the resettlement/pre-release course is paid by the Union

government for the benefit of personnel proceeding on PSS;

(ix) Exits from the Air Force are carefully planned in accordance with manpower

requirements which bear on the operational efficiency of the organisation;

(x) The officer who is granted PSS takes away an exit vacancy which could have

been availed by another officer; and

(xi) If an officer who is in a sensitive appointment applies for PSS, the individual

is posted to a non-sensitive appointment and is considered for the grant of

PSS. Frequent withdrawal of an approved PSS may lead to officers using PSS

as a modality to escape a transfer to a sensitive appointment and to later

withdraw the request for PSS.

In the above background, it has been submitted that: (a) grant of PSS and

permission for its withdrawal is not an absolute and unconditional right; (b) while

10

an employee may seek to withdraw the application for PSS, the government has

the discretionary power to accept or reject the application depending on the

reasons advanced in the application; (c) in deciding whether to accept or reject

an application, the government is entitled to have due regard to the exigencies of

service; (d) the Human Resource Policy has been framed under powers

delegated by the Ministry of Defence and is referable to the provisions of Rule 13

of the Air Force Rules 1969; and (e) the Tribunal erred in equating the withdrawal

of an application for PSS from the IAF with the rules which govern employment in

the civil services without bearing in mind the essential differences between

service in the civilian wing and in the Armed Forces.

12 On the other hand, learned Counsel representing the officers of the Air

Force in the present case urged the following submissions:

(i) Under Section 189(2)(a), the rule making power governs removal, retirement

release or discharge of persons subject to the Air Force Act 1950;

(ii) Under Section 190, regulations can be framed by the Central government for

the purposes of the Act, other than those specified in Section 189. The

regulations framed under Section 190 cannot govern the field covered by

Section 189(2)(a);

(iii) Unless a law is enacted by Parliament, fundamental rights of members of the

Armed Forces cannot be abrogated. In the absence of a statutory provision

restricting the right of an officer to withdraw a request for premature

separation, the same principle which governs civilian employment must apply

to severance from the Air Force;

11

(iv) Paragraph 18 of the Human Resource Policy dated 5 August 2011 does not

abrogate the right of an officer to withdraw a request for premature separation

prior to the date on which it is to become effective;

(v) Administrative instructions contained in the Human Resource Policy cannot

restrict the right of the employee to withdraw from a request from premature

separation; and

(vi) The latest Human Resource Policy dated 23 February 2018 has liberalised

the provisions pertaining to the withdrawal of a request for PSS.

In the above background, it has been submitted that the Tribunal justifiably held

that the three officers were entitled to resume their duties in the Air Force. Wing

Commanders Subrata Das and P K Sen are stated to have joined back active

service. In the case of Group Captain Rajeev Moitra, it has been submitted that

as a result of the stay order passed by this Court on 24 March 2017 on the

operation of the decision by the Tribunal, he was unable to resume service. The

decision of the Tribunal in the case of Wing Commander Rachit Bhatnagar has

been assailed on the ground that it runs contrary to the law laid down by this

Court in Parthasarathy (supra).

13 These submissions fall for our consideration.

14 At the outset, it is necessary to clarify that we are considering the terms of

the Human Resource Policy dated 5 August 2011. We have not had the occasion

to evaluate the provisions of any later policy. We must, while commencing the

analysis, advert to the salient provisions of the Air Force Act 1950 which have a

12

bearing on the present case. Section 2 defines the ambit of the Act by stipulating

the persons who are subject to it. Section 2 provides thus:

“Persons subject to this Act.- 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

or 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 (62 of 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 in this behalf, are employed by, or are in the

service of, or are followers of, or accompany any portion

of the Air Force.”

Section 3 provides thus:

“Termination of application of the Act.- Every person

subject to this Act under clauses (a) to (c) of section 2

shall remain so subject until duly, retired, discharged,

released, removed, dismissed or cashiered from the

service.”

A person who has been made subject to the Act by virtue of the provisions of

clauses (a) to (c) of Section 2 continues to remain subject to it unless ‘duly’

retired, discharged, released, removed, dismissed or cashiered from service.

Chapter IV spells out the conditions of service. Section 18 which falls in that

Chapter provides that tenure of service is at the pleasure of the President :

“Tenure of service under the Act.- Every person subject

to this Act shall hold office during the pleasure of the

President.”

13

15 Section 19 empowers the Central government to dismiss or remove from

service any person who is subject to the Act in accordance with its provisions and

the rules and regulations made under it. Section 22 contains the following

provisions in matters of retirement, release or discharge:

“Retirement, release or discharge.- Any person subject

to this Act may be retired, released or discharged from the

service by such authority and in such manner as may be

prescribed.”

The expression ‘prescribed’ is defined in Section 4 (xxiv) to mean prescribed by

rules made under the Act.

16 Rule 13 of the Air Force Rules 1969 contains the following provisions in

regard to release:

“13. Release.- A person subject to the Act may be

released from the air force in accordance with these rules,

or in accordance with any orders or instructions made in

that behalf by or under the authority of the Central

Government.”

17 Section 189 empowers the Central government to make rules for carrying

into effect the provisions of the Act. Under clause (a) of Section 2 of sub-section

189, the rules may provide for the removal, retirement, release or discharge from

service of persons subject to the Act. Section 189(2)(a) provides thus:

“189. Power to make rules.-

(1) …

(2)Without prejudice to the generality of the power

conferred by sub-section (1), the rules made thereunder

may provide for-

(a) The removal, retirement, release or discharge

from the service of persons subject to this Act.”

14

18 The Air Force Headquarters’ Human Resource Policy was notified on 5

August 2011. The policy has been issued in pursuance of powers delegated to it

by the Ministry of Defence on 14 August 2001. The policy seeks to lay down

comprehensive guidelines for premature separation from service by officers of

the Air Force, other than those from the medical and dental branches. The object

of the policy is to bring about a balance between requests made by officers of the

Air Force to leave service and the interests of the Air Force. The policy, in

paragraph 1, provides thus:

“Officers on active service may wish to leave the Air Force

for varied personal reasons. It is the endeavour of the

Personnel Branch and Air HQ to give due consideration to

all such requests, on the merits of each case and seek

convergence of individual aspirations and service

interests. This Human Resources Policy (HRP) on

Premature Separation from Service (PSS) aims to provide

more clarity in the PSS policy. For the purpose of HRP,

total service, whether mentioned, would imply

commissioned service in the IAF excluding ante-date or

any previous service.”

19 Paragraph 3 of the policy requires that PSS applications from officers be

“considered on the merits of the case and requirements of service”. The grounds

on which requests for PSS can be considered are, inter alia, (i) cases where

officers have been Permanently Passed Over (PPO) or superseded; (ii) extreme

compassionate grounds; (iii) better employment in civil life; and (iv) lack of career

prospects. These grounds have been explained as follows in paragraph 3:

(a) “Permanently Passed Over (PPO)/Supersession.

Officers who submit an application for PSS on

grounds of being PPO will be considered for release

from service. Officer superseded in the select ranks

may also be considered for release. In such cases,

decision by Air HQ would be based on the officer’s

15

record of service, future promotability prospects and

service exigencies.

(b) Extreme Compassionate Grounds. Requests on

extreme compassionate grounds would be considered

after the facts presented by the officer are verified, to

the extent possible, by this Headquarter. Such

verification is necessary to ensure that the grounds

are genuine. Domestic problems such as the need to

look after ailing parents, inheritance problems, need to

look after business, serious illness of wife/children’s

ailments requiring officer’s presence at home,

possibility of break-up of conjugal life if the officer

continues in service, etc., would be treated as

compassionate grounds depending on the

circumstances of each case. Applications with medical

issues will be routed through the Dte of Medical

Services and interviews/counselling conducted by

them.

(c) Better Employment in Civil Life. If a service officer

applies for PSS within a period of one year before the

due date of superannuation for obtaining employment

in private sector, the request would normally be

acceded to. For employment under Public Sector,

Government controlled Corporation, Municipal

Corporations etc. requests within a period of two

years from superannuation would be considered as a

measure of rehabilitation assistance to the officers. All

applications for employment outside will, however, be

submitted through proper channels so that Service

HQ has sufficient notice of the intentions of the

officers in this regard (Refer HRP 04/09). Officers who

have been permitted to apply for civil/commercial

employment as per HRP 04/09, will be required to put

up an application for PSS. Officers are to carefully

consider these aspects before applying for

civil/commercial employment.

(d) …

(e) Lack of Career Prospects (LCP). A person seeking a

career in the Air Force is expected to be aware of his

career progression at every stage of his career.

During his career, if an officer feels that he has no

prospects for advancement in service, he may apply

for PSS. However, the lack of career prospects of an

officer will be ascertained by the ‘P’ branch.”

16

Where officers are trained in specialised courses, requests for PSS can be

considered only upon the expiry of the minimum period indicated in the policy.

20 Paragraph 4 of the policy provides for eligibility criteria and the

categorisation of officers seeking PSS. Paragraph 4 provides thus:

“4. The organization requires a dedicated pool of officers, who

are motivated and willing to work towards organizational

goals and at the same time fulfil their personal aspirations,

which may be dynamic and may be influenced by external

factors. In an attempt to address both, its goals and the

individual’s aspirations, the organization needs to fine-tune its

policies. The thought processes, which have gone into

formulating the eligibility criteria, which are enumerated in the

subsequent paragraphs, are as follows:-

(a) There is a large shortfall of officers in the junior ranks (up

to that of Sqn Ldr) in all branches.

(b) Below ten years of commissioned service, an officer

should be discouraged as far as possible as even the cost

of training would not have been recovered in full.

(c) Beyond 24 years of commissioned service, PSS cases

would be favourably considered subject to service

exigencies.

(d) Therefore, in the critical seniority group of up to about 21

years of commissioned service, the organisation has to

be circumspect of the number of departures that can be

permitted, in order not to upset the manning levels or its

operational efficiency. At the same time one cannot deny

a genuine case.

(e) With the implementation of the AVSC II proposals, an

officer would have a fairly clear picture of his career

prospects by about 20-22 years of commissioned service,

as select grade would eventually start at 17.5/19.5 years

for flying / ground duty branches respectively. Therefore,

allowing superseded officers of separate from service

beyond about 21 years would allow for better promotion

ratios and at the same time allow superseded officers to

seeks avenues in the civil sector at a relatively young

age.”

17

Paragraph 5 classifies officers seeking PSS into four categories:

(i) Officers with more than 24 years of commissioned service and those

who have been Permanently Passed Over (PPO);

(ii) Officers between 21 and 24 years of commissioned service;

(iii) Officers between 10 and 21 years of commissioned service; and

(iv) Officers with less than 10 years of commissioned service.

21 Paragraph 6 envisages the constitution of the Board of Officers in March

and September. The ‘jurisdiction period’ has been planned to provide officers

proceeding on PSS adequate time to complete their formalities. Paragraph 8

provides for submission of applications for PSS, paragraph 9 for the procedure

for officers on deputation and paragraphs 10 to 13 for the processing of

applications. Paragraph 15 provides that applications for separation from service

by officers with less than 21 years of service for reconsideration of an earlier

request will not be considered before a lapse of one year from the nonacceptance of the previous application by the Board of Officers unless the

grounds have changed substantially. Paragraph 17 contemplates that one

change of the effective date of PSS may be permitted. Paragraph 18 provides for

the withdrawal of a request for PSS. Paragraph 18 is in the following terms:

“18. Withdrawal – A request for withdrawal of approved PSS

application would be permitted only as an exception under

extreme compassionate grounds (except in case the officer

has undergone a Pre Release Course, in which he / she

would not be permitted to withdraw). The officer would be

debarred from submitting a fresh application for one year from

his proposed date of PSS.”

18

Paragraph 18 of the policy indicates that:

(i) A request for withdrawal of a PSS application which has been approved can be

permitted only by way of an exception;

(ii) A request for withdrawal can be permitted only under “extreme compassionate

grounds”;

(iii) An officer who has undergone a pre-release course will not be permitted to

withdraw the request; and

(iv) A fresh application cannot be submitted for a period of one year from the

proposed date of PSS.

One of the grounds for submitting an application for PSS is “extreme

compassionate grounds”. The policy, in paragraph 18, uses the same expression.

The grounds in paragraph 18 would evidently be based on events which have

taken place after the submission of an application for PSS and its approval. The

expression “undergone” would mean completed or finished. Under paragraph 18,

no withdrawal from PSS is permitted where an officer has undergone the prerelease course. However, even if an officer has not ‘undergone’ the pre-release

course, there is no unqualified or absolute right to withdraw an application for

PSS. Paragraph 18 permits an officer to submit a request for the withdrawal of a

PSS application and the grant of such a request is subject to the approval of the

competent authority. There is no unilateral right to withdraw from a request for

PSS once it has been approved.

19

Para 20 stipulates that while individual aspirations are borne in mind to the extent

feasible, the requirements and interests of the service are paramount. Paragraph

20 is in the following terms:

“20. Seeking PSS is an important decision in the career of an

officer. At the Personnel Branch, no efforts are spared to

ensure that individual aspirations are favourably considered.

However, service requirements/interests remain paramount

and cannot be overlooked. The intent of this HRP is to

provide on all related aspects regarding PSS to an officer at a

critical juncture of his service.”

22 The provisions of the Air Force Act 1950 govern the persons who are

subject to it. Clauses (a) to (d) of Section 2 define the categories to whom the Act

applies. Once a person is subject to the Act, its provisions continue to govern

them until the individual is duly retired, discharged, released, removed, dismissed

or cashiered from the service under the provisions of the Act. Induction into the

service under Section 10 is upon the grant of commission as an officer by the

President or by appointment as a warrant officer of the Air Force. The tenure of

service of every person subject to the Act is during the pleasure of the President.

Matters of retirement, release or discharge from service are governed by the

prescriptions contained in the Rules.

23 The provisions of the Air Force Act 1950 are a necessary concomitant of

the intent of Parliament to establish the Air Force as an armed force of the Union.

As members of an Armed Force, those who are subject to the provisions of the

Act are governed by the rigour and discipline of the Force. Indeed, that is the

rationale which underlies Article 33 of the Constitution which empowers

Parliament by law to restrict or abrogate the provisions of Part III in their

20

application inter alia to the members of the Armed Forces. The purpose of these

restrictions is to ensure the proper discharge of duties and the proper

maintenance of discipline.11

24 Entry into and departure from the service of the Air Force is in terms of the

above provisions and is not a matter which lies at the sweet will of a member of

the Air Force. The provisions contained in the Act for commissioning, tenure and

cessation of service reflect the need to maintain the discipline and efficiency of

the Air Force. The organisational efficiency of the Armed Forces of the Union is of

paramount importance. It is in this background that the provisions which are

contained in the Human Resource Policy must be evaluated.

25 The policy has been formulated in pursuance of the powers delegated to

the Air Headquarters by the Ministry of Defence. As we have noticed earlier, Rule

13 of the Air Force Rules 1969 stipulates that a person subject to the Act may be

released from the Air Force in accordance with the rules, orders or instructions

made by or under the authority of the Central Government. The Human Resource

Policy which was notified on 2 August 2011 seeks to bring about a convergence

of individual aspirations and the interests of the service.

26 The policy has enunciated comprehensive guidelines for premature

separation. It defines the grounds on which premature separation can be

contemplated. It lays down a categorisation of officers based on the length of

11 “33. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their

application to— (a) the members of the Armed Forces; or (b) the members of the Forces charged with the

maintenance of public order; or (c) persons employed in any bureau or other organisation established by the

State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the

telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses

(a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of

discipline among them.”

21

years of service for considering applications for PSS. It enunciates the manner in

which their proposals would be evaluated. The policy contemplates a Board of

Officers to consider requests for PSS in the months of March and September

every year. The policy enunciates a time schedule for the submission of

applications and of the modalities to be followed in the issuance of release

orders. The policy defines the manner in which PSS applications are processed.

Significant among them is the need to counsel individual officers after

ascertaining the full details of each case, while keeping current manning

constraints in mind. Details of the interview and recommendations of the

Command Headquarters have to be annotated while forwarding the case for

consideration to the Air Headquarters.

27 The number of officers who are granted PSS in a year is restricted in order

not to upset the manning levels and the operational efficiency of the Air Force.

Hence, while attempting to balance the genuine aspirations of the members of

the Air Force and their personal difficulties, the number of officers to be granted

PSS is computed on the basis of various factors such as induction,

superannuation and other exits from the Air Force. This exercise requires the

collection and gathering of data relating to inductions, rank wise surplus and

deficiencies in each branch and stream from the Directorate of Personnel and

Planning. The data is utilised to compute the number of officers to be granted

PSS in a year. This is distributed between two Boards of Officers scheduled for

being convened in the months of March and September of each year. In each

Board, the figure is further divided into two categories – officers with less than 21

years of service and officers with 21 to 24 years of service. The timeline which is

22

embodied in the policy contemplates that an officer would be given a sufficient

period of approximately nine months to apply for PSS and to retire with full

benefits. During this period, the officer can prepare for the future.

28 Consistent with the need to maintain efficiency and discipline, the policy

restricts the right to seek an extension of PSS. During the period which leads up

to a severance from service, an officer may undergo a pre-release course or a

resettlement course, for which 60 per cent of the cost is borne by the

Government of India. In interpreting the provisions of the policy, including the

withdrawal of a request for premature separation, it is necessary to emphasise

that an officer who is granted PSS takes away an exit vacancy which could have

been provided to another officer of the Air Force.

29 In the submissions before this Court, the rationale for restricting the right of

withdrawal from a PSS has been explained in the above terms. It has also been

emphasised that an officer who is tenanting a sensitive appointment would be

posted to a non-sensitive appointment upon applying for PSS and would be

considered for the grant of PSS on completing a desensitising period of one year.

Permitting an absolute right to withdraw from an approved PSS may, it is

apprehended, lead to the use of the PSS as a tool to escape transfers to

sensitive appointments.

30 It is in this background that it has been submitted, and in our view with

justification, that the right to withdraw a request for PSS from an armed force is

not absolute or unconditional. Paragraph 18 of the Human Resource Policy

23

conditions the withdrawal of an approved PSS application by a stipulation that

such a request can be permitted only as an exception and under “extreme

compassionate grounds”. Paragraph 18 contemplates that a request for

withdrawal of a PSS application, in order to be effective, needs to be permitted.

The use of the term ‘permitted’ is indicative of the fact that a withdrawal of a

request is not a matter of right. A withdrawal can be permitted by the competent

authority only by way of “exception” and on “extreme compassionate grounds”.

Moreover, officers who have undergone a pre-release course are not permitted to

request for a withdrawal.

31 Paragraph 18 clearly indicates that the general principle of service law

which has been applied to the civil services, does not apply in the situation of the

Air Force. In matters relating to civilian employment, particularly in the civil

services, voluntary severance of service may either be in the form of a unilateral

or bilateral act. Where severance follows on the basis of a unilateral act by an

employee, no acceptance of the request for severance is required. On the other

hand, where the severance contemplated is bilateral in nature, the request of an

employee for severance becomes effective only upon its acceptance by the

employer. In the context of service jurisprudence, the principle of law which has

been enunciated in the decisions of this Court is that where an employee tenders

a resignation from service with effect from a future date, it is open to the

employee to withdraw from the resignation until it takes effect on the future date

so stipulated.

24

32 The governing principles were enunciated in the decision of a Constitution

Bench of this Court in Union of India v Shri Gopal Chandra Misra12 (“Gopal

Chandra Misra”). The Constitution Bench noted that unlike in the case of a

government servant whose severance from service requires acceptance (and is

hence not a unilateral act), in the case of a judge of the High Court, the

Constitution in the proviso to Article 217(1) has recognised a unilateral right or

privilege to resign office. In the latter case, the resignation would lead to a

termination of the tenure forthwith and cannot be withdrawn thereafter. But it is

open to a judge who tenders a resignation with effect from a future date to

withdraw the resignation before it becomes effective on the prospective date. The

Constitution Bench held thus:

“50. It will bear repetition that the general principle is that in

the absence of a legal contractual or constitutional bar, a

‘prospective’ resignation can be withdrawn at any time before

it becomes effective, and it becomes effective when it

operates to terminate the employment or the office tenure of

the resigner. This general rule is equally applicable to

government servants and constitutional functionaries. In the

case of a government servant/or functionary/who cannot,

under the conditions of his service/or office, by his own

unilateral act of tendering resignation, give up his service/or

office, normally, the tender of resignation becomes effective

and his service/or office tenure terminated, when it is

accepted by the competent authority. In the case of a Judge

of a High Court, who is a constitutional functionary and under

proviso (a) to Article 217(1) has a unilateral right or privilege

to resign his office, his resignation becomes effective and

tenure terminated on the date from which he, of his own

volition, chooses to quit office. If in terms of the writing under

his hand addressed to the President, he resigns in praesenti,

the resignation terminates his office tenure forthwith, and

cannot therefore, be withdrawn or revoked thereafter. But, if

he by such writing, chooses to resign from a future date, the

act of resigning office is not complete because it does not

terminate his tenure before such date and the Judge can at

any time before the arrival of that prospective date on which it

12 (1978) 2 SCC 301

25

was intended to be effective, withdraw it, because the

Constitution does not bar such withdrawal.”

This principle was reiterated in a decision of this Court in Balram Gupta (supra)

where it was held that:

“12. In this case the guidelines are that ordinarily permission

should not be granted unless the officer concerned is in a

position to show that there has been a material change in the

circumstances in consideration of which the notice was

originally given. In the facts of the instant case such indication

has been given. The appellant has stated that on the

persistent and personal requests of the staff members he had

dropped the idea of seeking voluntary retirement. We do not

see how this could not be a good and valid reason. It is true

that he was resigning and in the notice for resignation he had

not given any reason except to state that he sought voluntary

retirement. We see nothing wrong in this. In the modern age

we should not put embargo upon people’s choice or freedom.

If, however, the administration had made arrangements

acting on his resignation or letter of retirement to make

other employee available for his job, that would be

another matter but the appellant’s offer to retire and

withdrawal of the same happened in such quick succession

that it cannot be said that any administrative set-up or

arrangement was affected…” (Emphasis supplied)

The above observations indicate that the unrestrained choice of an employee to

withdraw a resignation may yet be constrained if the employee had made

arrangements acting on the resignation or letter to make another employee

available for the job.

33 It is in this background that it is necessary to advert to the judgment of a

two judge Bench of this Court in Parthasarathy (supra). The judgment merits a

close analysis. In that case, the respondent was a Wing Commander in the

Indian Air Force and submitted an application on 21 July 1985 for premature

26

retirement from service with the proposed date of severance from service as 31

August 1986. When the application was being processed, he moved an

amendment to his earlier application stating that the actual date of release could

be decided taking into account the pensionary recommendations of the Fourth

Pay Commission report which was expected in November 1985. On 19 February

1986, the respondent submitted an application seeking to withdraw his earlier

request for premature retirement. It was thereafter on 7 March 1986 that he was

served with a communication that on 20 February 1986, the Air Headquarters had

accepted his application to withdraw from service and that he would retire

prematurely at his own request from 31 August 1986.

34 The judgment in Parthasarathy (supra) therefore dealt with a situation

where the officer had stipulated a future date with effect from which his premature

retirement would become effective. However, before the application for retirement

was accepted, he withdrew his request and it was only thereafter that Air

Headquarters accepted his original application and communicated the decision to

retire him from service. It was in this background that a two judge Bench of this

Court held that:

“8…On the other hand, not only the acceptance of the

request by the headquarters, the appropriate authority, was

said to have been made only on 20-2-1986, a day after the

respondent withdrew his request for premature retirement but

even such acceptance in this case was to be effective from a

future date namely 31-8-1986. Consequently, it could not be

legitimately contended by the appellants that there was any

cessation of the relationship of master and servant between

the Department and the respondent at any rate before 31-8-

  1. While that be the position inevitably the respondent had

a right and was entitled to withdraw or revoke his request

earlier made before it ever really and effectively became

effective.”

27

The facts of the case and the above extract clearly make the judgment of this

court in Parthasarathy (supra) distinguishable. In Parthasarathy, the officer

withdrew his request for premature retirement before the effective future date had

arrived. He was sought to be retired prematurely thereafter by the government

despite the request having been withdrawn before it was accepted. The next

aspect of the judgment which merits emphasis is the observation that nothing in

the form of any statutory provision or rule had been brought to the notice of the

court which would impede or deny the right of the employee to withdraw a

resignation before the date on which the resignation could have become

effective. Evidently, the two judge Bench was not dealing with a provision akin to

Paragraph 18 of the Human Resource Policy dated 5 August 2011 which is

involved in the present case. It was in that background that the court held that

there was nothing to impede or deny the right of the employee to withdraw from

the resignation. The judgment of this Court in Parthasarathy (supra) is therefore

distinguishable.

35 The decision of a three judge Bench of this Court in Bank of India v O P

Swarnakar13 dealt with the voluntary retirement scheme of nationalised banks.

Clauses 10.5 and 10.6 of the scheme provided thus:

“10.5. It will not be open for an employee to withdraw the

request made for voluntary retirement under the Scheme

after having exercised such option.

10.6. The competent authority shall have absolute

discretion either to accept or reject the request of an

employee seeking voluntary retirement under the Scheme

depending upon the requirement of the Bank. The

reasons for rejection of request of an employee seeking

13 (2003) 2 SCC 721

28

voluntary retirement shall be recorded in writing by the

competent authority. Acceptance or otherwise of the

request of an employee seeking voluntary retirement will

be communicated to him in writing.”

This Court adverted to the judgment of the Constitution Bench in Gopal Chandra

Misra (supra) as well as to the decisions in Balram Gupta (supra) and in

Parthasarathy (supra) and held thus:

“113. The submission of the learned Attorney-General that

as soon as an offer is made by an employee, the same

would amount to resignation in praesenti cannot be

accepted. The Scheme was in force for a fixed period. A

decision by the authority was required to be taken and till

a decision was taken, the jural relationship of employer

and employee continued and the employees concerned

would have been entitled to payment of all salaries and

allowances etc. Thus it cannot be said to be a case where

the offer was given in praesenti but the same would be

prospective in nature keeping in view of the fact that it

was come into force at a later date and that too subject to

acceptance thereof by the employer. We, therefore, are of

the opinion that the decisions of this Court, as referred to

hereinbefore, shall apply to the facts of the present case

also.”

The Court held that where a group of employees had accepted an ex gratia

payment, they could not be permitted to approbate or reprobate or resile from

their earlier stand. Similarly, the judgment in J N Srivastava v Union of India14 is

an authority for the proposition that even if a notice of voluntary retirement which

is moved by an employee is accepted by the authority within the time fixed, the

employee has a locus poenitentiae to withdraw the proposal for voluntary

retirement before the date of retirement is reached.

14 (1998) 9 SCC 559.

29

36 The above principles are of general application. However, the present case

stands on a different footing and is clearly distinguishable. All the officers in the

present case submitted an application under the terms of the Human Resource

Policy which governed them. Availing the benefit of the policy, they proceeded to

opt for a pre-release course. The policy under which they sought the benefit of a

premature severance of service conditioned the right of withdrawal to the

stipulations contained in paragraph 18. Paragraph 18 of the Human Resource

Policy makes it abundantly clear that there is no unilateral right to withdraw from

a request for PSS once it has been approved. There is, as we have seen, a clear

rationale for such a restriction. The officers involved in this batch of cases applied

under the terms of the policy, seeking PSS. It is not open to them to approbate or

reprobate. They cannot rely on the policy and seek to repudiate Para 18

conditioning the right to withdraw.

37 The determination of the number of PSS applications that should be

granted is based on a careful exercise of assessing the manpower requirements

of the Air Force. The approval of a request of an officer for PSS has

consequences both for the service and for the officer individually until the

eventual severance of service takes place. During the period between the

approval of the application and the date of severance, arrangements are made to

meet the operational requirements of the Air Force. As for the officer, they have

the option to proceed on a pre-release course. The operational requirements of

the Air Force and the need to carefully structure exits under the Human Resource

Policy clearly distinguishes the present case from the judgments relied on by the

30

respondents. In the reply filed by the Union of India in the Civil Appeal involving

Wing Commander Subrata Das, it has been stated :

“That in the current year (2013), 143 officers have applied for

PSS and 89 officers were granted PSS under the provisions

of this HRP. 25 officers had applied for a change of date due

to various reasons and requests of 20 officers has been

acceded to for various reasons. 13 officers have requested

for withdrawal of approved PSS and requests of 11 officers

have been acceded to. Request of only two officers were not

acceded to.”

38 The Tribunal has, in its decisions in the cases involving Wing Commander

Subrata Das, P K Sen and Group Captain Rajeev Moitra, clearly erred in failing to

notice the critical difference in the operational requirements of the service of an

Armed Force of the Nation. The Tribunal has also failed to collectively appreciate

the terms of the policy, its rationale and the basis on which paragraph 18 restricts

the right to withdraw from an approved PSS application. Paragraph 18 is founded

on the principle that even though a severance from service will take place at a

future date, an application for PSS which has been approved cannot be

withdrawn except on the grounds contemplated in that paragraph. Whether a

request to withdraw an approved PSS application meets the criterion of “extreme

compassionate grounds” has to be considered by the competent authority. So

long as the assessment is fair and bona fide, the decision, in our view, ought not

to be faulted.

39 The right to withdraw from an approved PSS application is neither absolute

nor unqualified. We are firmly of the view that the decisions to reject the

applications to withdraw from PSS in the present cases were made bona fide.

The authorities had applied their minds to the question of whether the grounds

31

which were urged fulfilled the “extreme compassionate grounds” criterion. The

authorities were also entitled to make a final determination based on the needs

and exigencies of service. The Tribunal has erroneously interfered with the

exercise of the administrative judgment by the authorities of the Air Force. We

therefore disapprove of the view which has been taken by the Tribunal in the

cases involving Wing Commanders Subrata Das, P K Sen and Group Captain

Rajeev Moitra. The decision of the Tribunal in the case of Wing Commander

Rachit Bhatnagar does not merit our interference for the reasons which we have

indicated earlier.

40 The situation as it stands, is that Wing Commander Subrata Das and P K

Sen resumed their duties after the decision of the Tribunal. Wing Commander P

K Sen has been promoted as Group Captain. Wing Commanders Subrata Das

and Group Captain P K Sen are due to superannuate on 31 January 2019 and 31

January 2020 respectively. Having regard to the fact that both these officers are

presently in service, we direct, in the exercise of our jurisdiction under Article 142

of the Constitution, that their services in the Air Force for the remaining tenure will

not be affected by the present judgment. This will, however, be subject to all the

applicable norms, rules and regulations governing discipline and efficiency

governing the service. As regards Group Captain Rajeev Moitra, we set aside the

judgment and order of the Tribunal and in consequence, the original application

filed before the Tribunal shall stand dismissed. We affirm the judgment of the

Tribunal in the case of Wing Commander Rachit Bhatnagar, though for the

reasons which we have indicated above.

32

41 The civil appeals shall stand disposed of in the above terms. There shall

be no order as to costs.

………………………………………………………….J

[Dr DHANANJAYA Y CHANDRACHUD]

.………….……………………………………………..J

[HEMANT GUPTA]

New Delhi;

January 29, 2019.