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
2017. 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
2017. The officer was due to superannuate from the Air Force on 31 October
2025. 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
2018. 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-
1986. 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.
