UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS. versus WG. CDR. SUBRATA DAS (19942-H) on 29 January 2019

UNION OF INDIA THROUGH ITS SECRETARY,MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS.

v.

WG. CDR. SUBRATA DAS (19942-H)

(Civil Appeal No. 10953 of 2014)

JANUARY 29, 2019

[DR. DHANANJAYA Y CHANDRACHUDAND HEMANT GUPTA, JJ.]

Service Law:

Premature Separation from Service (PSS) – Application for –Withdrawal – Permissibility – Request by appellants (four officers)for PSS was allowed – They underwent pre-release course –Application for withdrawal of PSS rejected – Challenged therejection order in Armed Forces Tribunal – Three officers succeededbefore the Tribunal while one officer was not successful – Two ofthe officers were taken back in service pursuant to the order ofTribunal and order of the Tribunal in respect of one officer wasstayed – On appeal, Held: As a member of Armed Force, those whoare subject to the provisions Air Force Act, 1950 are governed bythe rigour and discipline of the Force – The tenure of service ofevery person subject to the Act is during the pleasure of the President– Matters of retirement, release or discharge are governed by theRules – The Human Resource Policy (under which PSS was sought)is formulated in pursuance of the powers delegated to the AirHeadquarters by the Ministry of Defence – Para 18 of the policyconditions that the withdrawal of an approved PSS can be permittedonly as an exception and under “extreme compassionate grounds”– Withdrawal of PSS is not unilateral and is subject to permission –Thus the right to withdraw a request for PSS from an armed force isnot absolute or unconditional – On facts, the decision rejecting theapplication for withdrawal from PSS was bona fide and correct –However, in exercise of power u/Art. 142 it is directed that the serviceof two officers who were taken back in service shall not be affectedby the present judgment – Air Force Act, 1950 – s. 2(a) to (d) – AirForce Rule, 1969 – r. 13 – Constitution of India – Arts. 33 and 142.

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1036SUPREME COURT REPORTS

ADisposing of the appeals, the Court

HELD: 1. The provisions of the Air Force Act 1950 governthe persons who are subject to it. Clauses (a) to (d) of Section 2define the categories to whom the Act applies. Once a person issubject to the Act, its provisions continue to govern them untilBthe individual is duly retired, discharged, released, removed,dismissed or cashiered from the service under the provisions ofthe Act. Induction into the service under Section 10 is upon thegrant of commission as an officer by the President or byappointment as a warrant officer of the Air Force. The tenure ofservice of every person subject to the Act is during the pleasureCof the President. Matters of retirement, release or discharge fromservice are governed by the prescriptions contained in the Rules.[Para 22][1054-C-E]

2. The provisions of the Air Force Act 1950 are a necessaryconcomitant of the intent of Parliament to establish the Air ForceDas an armed force of the Union. As members of an Armed Force,those who are subject to the provisions of the Act are governedby the rigour and discipline of the Force. Indeed, that is therationale which underlies Article 33 of the Constitution whichempowers Parliament by law to restrict or abrogate the provisionsEof Part III in their application inter alia to the members of theArmed Forces. The purpose of these restrictions is to ensurethe proper discharge of duties and the proper maintenance ofdiscipline. [Para 23][1054-E-F]

3. Entry into and departure from the service of the Air ForceFis in terms of the above provisions and is not a matter which liesat the sweet will of a member of the Air Force. The provisionscontained in the Act for commissioning, tenure and cessation ofservice reflect the need to maintain the discipline and efficiencyof the Air Force. The organisational efficiency of the ArmedForces of the Union is of paramount importance. It is in thisGbackground that the provisions which are contained in the HumanResource Policy must be evaluated. [Para 24][1055-A-B]

4. The Human Resource policy has been formulated inpursuance of the powers delegated to the Air Headquarters bythe Ministry of Defence. Rule 13 of the Air Force Rules 1969H

UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR.SUBRATA DAS (19942-H)

stipulates that a person subject to the Act may be released fromthe Air Force in accordance with the rules, orders or instructionsmade by or under the authority of the Central Government. TheHuman Resource Policy which was notified on 2 August 2011seeks to bring about a convergence of individual aspirations andthe interests of the service. [Para 25][1055-C]

5. The policy has enunciated comprehensive guidelines forpremature separation. It defines the grounds on which prematureseparation can be contemplated. It lays down a categorisation ofofficers based on the length of years of service for consideringapplications for Premature Separation from Service (PSS). Itenunciates the manner in which their proposals would beevaluated. The policy contemplates a Board of Officers toconsider requests for PSS in the months of March and Septemberevery year. The policy enunciates a time schedule for thesubmission of applications and of the modalities to be followed inthe issuance of release orders. The policy defines the manner inwhich PSS applications are processed. Significant among them isthe need to counsel individual officers after ascertaining the fulldetails of each case, while keeping current manning constraintsin mind. Details of the interview and recommendations of theCommand Headquarters have to be annotated while forwardingthe case for consideration to the Air Headquarters. [Para26][1055-D-F]

6. The number of officers who are granted PSS in a year isrestricted in order not to upset the manning levels and theoperational efficiency of the Air Force. Hence, while attemptingto balance the genuine aspirations of the members of the AirForce and their personal difficulties, the number of officers to begranted PSS is computed on the basis of various factors such asinduction, superannuation and other exits from the Air Force.This exercise requires the collection and gathering of data relatingto inductions, rank wise surplus and deficiencies in each branchand stream from the Directorate of Personnel and Planning. [Para27][1055-G-H; 1056-A]

7. Consistent with the need to maintain efficiency anddiscipline, the policy restricts the right to seek an extension ofPSS. During the period which leads up to a severance from

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Aservice, an officer may undergo a pre-release course or aresettlement course, for which 60 per cent of the cost is borneby the Government of India. In interpreting the provisions of thepolicy, including the withdrawal of a request for prematureseparation, it is necessary to emphasise that an officer who isgranted PSS takes away an exit vacancy which could have beenBprovided to another officer of the Air Force. [Para 28][1056-C-D]

8. The right to withdraw a request for PSS from an armedforce is not absolute or unconditional. Paragraph 18 of the HumanResource Policy conditions the withdrawal of an approved PSSCapplication by a stipulation that such a request can be permittedonly as an exception and under “extreme compassionategrounds”. Paragraph 18 contemplates that a request forwithdrawal of a PSS application, in order to be effective, needs tobe permitted. The use of the term ‘permitted’ is indicative of theDfact that a withdrawal of a request is not a matter of right. Awithdrawal can be permitted by the competent authority only byway of “exception” and on “extreme compassionate grounds”.Moreover, officers who have undergone a pre-release courseare not permitted to request for a withdrawal. [Para 30][1056-G-H; 1057-A]E9. The determination of the number of PSS applications thatshould be granted is based on a careful exercise of assessing themanpower requirements of the Air Force. The approval of arequest of an officer for PSS has consequences both for the serviceand for the officer individually until the eventual severance of

Fservice takes place. During the period between the approval ofthe application and the date of severance, arrangements are madeto meet the operational requirements of the Air Force. As for theofficer, they have the option to proceed on a pre-release course.[Para 37][1062-A-B]

10. All the officers in the present case submitted anGapplication under the terms of the Human Resource Policy whichgoverned them. Availing the benefit of the policy, they proceededto opt for a pre-release course. The policy under which theysought the benefit of a premature severance of service conditionedthe right of withdrawal to the stipulations contained in Para 18 ofH

UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR.SUBRATA DAS (19942-H)

the Human Resource Policy. Para 18 makes it abundantly clearthat there is no unilateral right to withdraw from a request forPSS once it has been approved. There is a clear rationale forsuch a restriction. The officers involved in this batch of casesapplied under the terms of the policy, seeking PSS. It is not opento the officers to approbate or reprobate. They cannot rely onthe policy and seek to repudiate Para 18 conditioning the right towithdraw. [Para 36][1061-F-G]

11. The Tribunal has, in allowing the cases of three officersclearly erred in failing to notice the critical difference in theoperational requirements of the service of an Armed Force ofthe Nation. The Tribunal has also failed to collectively appreciatethe terms of the policy, its rationale and the basis on whichparagraph 18 restricts the right to withdraw from an approvedPSS application. Paragraph 18 is founded on the principle thateven though a severance from service will take place at a futuredate, an application for PSS which has been approved, cannot bewithdrawn except on the grounds contemplated in that paragraph.Whether a request to withdraw an approved PSS applicationmeets the criterion of “extreme compassionate grounds” has tobe considered by the competent authority. So long as theassessment is fair and bona fide, the decision, ought not to befaulted. [Para 38][1062-E-G]

12. The right to withdraw from an approved PSS applicationis neither absolute nor unqualified. The decisions to reject theapplications to withdraw from PSS in the present cases were madebona fide. The authorities had applied their minds to the questionof whether the grounds which were urged fulfilled the “extremecompassionate grounds” criterion. The authorities were alsoentitled to make a final determination based on the needs andexigencies of service. The Tribunal has erroneously interferedwith the exercise of the administrative judgment by the authoritiesof the Air Force. [Para 39][1062-H; 1063-A-B]

13. Two officers are due to superannuate on 31 January2019 and 31 January 2020 respectively. Having regard to thefact that both these officers are presently in service, in theexercise of jurisdiction under Article 142 of the Constitution, itis directed that their services in the Air Force for the remainingtenure will not be affected by the present judgment. This will,

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Ahowever, be subject to all the applicable norms, rules andregulations governing discipline and efficiency governing theservice. As regards the case of the officer in C.A. No. 4575 of2017 the judgment and order of the Tribunal is set aside and inconsequence, the original application filed before the Tribunalshall stand dismissed. The judgment of the Tribunal in the caseBof officer in C.A. (D) No. 26814 of 2018, is affirmed. [Para40][1063-C-E]

Union of India v. Wing Commander T Parthasarathy(2001) 1 SCC 158 : [2000] 4 Suppl. SCR 531; BalramGupta v. Union of India (1987) Suppl. SCC 228 : [1987]C3 SCR 1173; Shambhu Murari Sinha v. Project &Development India Ltd. (2002) 3 SCC 437 : [2002] 2SCR 396; Union of India v. Shri Gopal Chandra Misra(1978) 2 SCC 301 : [1978] 3 SCR 12; J N Srivastavav. Union of India (1998) 9 SCC 559 – distinguished.

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Bank of India v. O. P. Swarnakar (2003) 2 SCC 721:[2002] 5 Suppl. SCR 438 – referred to.

From the Judgment and Order dated 27.03.2014 of the ArmedForces Tribunal, Principal Bench, New Delhi in O.A. No. 467 of 2013.

WITHG

Civil Appeal Nos. 2821 of 2015, 1412 and 1413 of 2019.

Rana Mukherjee, Sr. Adv., Chakitan Vikram Shekhar Papta, AmitSharma, Sachin Sharma, Saudamini Sharma, Karan A. Seth, Ms. RashmiMalhotra, R.S. Jena, Arvind Kumar Sharma, Mukesh Kumar Maroria,Sudhanshu S. Pandey, Gaichangpou Gangmei, Abhishek R. Shukla, H

Kahorngam Zimik, Ajai Bhalla, Anil Kumar Tandale, Sridhar Potaraju,Rabin Majumder, Advs. for the appearing parties.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. 1. Delaycondoned.

2. Leave granted.

3. This batch of appeals arises from proceedings initiated beforethe Armed Forces Tribunal[1]. Each of the four officers of the Indian AirForce - Wing Commanders Subrata Das, P K Sen, Rachit Bhatnagarand Group Captain Rajeev Moitra sought a premature separation fromservice under the Human Resource Policy[2]notified on 5 August 2011 bythe Air Headquarters. Their requests for a Premature Separation fromService[3 ]were allowed. Before the date stipulated for their separationfrom the Indian Air Force[4], the officers withdrew their requests andsought to continue in service. The rejection of their plea to continue bythe Air Headquarters led them to institute proceedings before the Tribunal.

4. The officers succeeded before the Tribunal in three of thoseproceedings,[5 ]while the decision of the Air Headquarters was upheld inthe fourth proceeding.[6] The Union of India is in appeal against the threedecisions of the Tribunal allowing the requests made by the officers towithdraw from their applications for PSS and continue in service. WingCommander Rachit Bhatnagar was unsuccessful in pursuing his remedybefore the Tribunal and has filed a Civil Appeal questioning the decision.

5. The facts follow a similar trajectory. The facts relevant to eachof the appeals are set out below :

(i) Civil Appeal 10953 of 2014: Wing Commander SubrataDas:

The officer was commissioned on 14 June 1989 as Pilot Officerand was promoted to the rank of Wing Commander on 16 December2004. On 6 May 2013, he applied for PSS with 2 December 2013 as theproposed date of severance. The ground on which he sought PSS was 1The 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

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Athat he was Permanently Passed Over[7 ]by the Promotion Board. Therequest was accepted and communicated on 3 June 2013. The officercommenced a pre-release course at the International College of FinancialPlanning, New Delhi. At around the tenth week of the twelve-weekcourse, he withdrew from the course and submitted an application towithdraw his request for PSS on 16 September 2013. The ground pleadedBfor withdrawing the application for PSS was acute domestic problems.Therequest was rejected on 15 October 2013.The officer is due tosuperannuate from the Air Force on 31 January 2019. He did notcomplete the pre-release course.

(ii) Civil Appeal 2821 of 2015: Wing Commander P K Sen:CThe officer was commissioned on 4 September 1989 and waspromoted to the rank of Wing Commander on 16 December 2004.On1 October 2012, he applied for PSS with 30 October 2013 as the proposeddate of severance. He sought PSS on compassionate grounds and sincehe was Permanently Passed Over. The request for PSS was approvedDand communicated on 30 April 2013. The officer commenced apre-release course at Amity Institute of Education and Training, Noida.The officer sought a change in the PSS date from 30 October 2013 to3 January 2014. The request was rejected and he was informed on18 October 2013. On 8 October 2013, he submitted an application toEwithdraw his request for PSS which was received on 24 October 2013.The officer sought to withdraw his application for PSS on the groundthat he had not been able to obtain private placement in a volatile marketand 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 JanuaryF2020. He completed the pre-release course.(iii) Civil Appeal (D) No. 4575 of 2017: Group Captain RajeevMoitra:

The officer was commissioned on 17 December 1988 and wasGpromoted to the rank of Group Captain on 17 December 2014.On 25April 2014, he applied for PSS with 31 December 2014 as the proposeddate of severance. He sought PSS on compassionate grounds and sincehe was Permanently Passed Over. The request for PSS was approvedon 12 July 2014 and was communicated on 15 July 2014. Upon a request 7 PPOH

by him for a change in the date of severance, the date of PSS waspostponed from 31 December 2014 to 7 March 2015. On 19 January2015, he submitted an application to withdraw his request for PSS whichwas rejected on 5 March 2015. The request for withdrawal was on theground that the age of superannuation had been altered from 54 to 57years and that he faced personal family difficulties. The officer was dueto superannuate from the Air Force on 31 December 2020. He completedthe pre-release course.

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

The officer was commissioned on 28 November 1994 and waspromoted to the rank of Wing Commander. The application for PSS wassubmitted on 3 November 2016 with a proposed date of severance as31 July 2017. The ground for PSS was that the officer had beenPermanently Passed Over (PPO). The request for PSS was acceptedon 1 February 2017. On 26 May 2017, the officer made a request for achange in the PSS date which was rejected on 20 July 2017. On 28 July2017, the officer submitted an application for withdrawing his requestfor PSS, citing family constraints and unfavourable market conditions.Before a decision could be taken, the officer instituted proceedings beforethe Tribunal. The Tribunal did not grant the officer relief and he retiredon 31 July 2017. The officer was due to superannuate from the AirForce on 31 October 2025.The officer completed the pre-release course.

6. Wing Commanders Subrata Das, P K Sen and Group CaptainRajeev Moitra succeeded before the Tribunal and the rejection of theirapplications to withdraw the request for PSS was set aside. Followingthe decision of the Tribunal, Wing Commanders Subrata Das and P KSen have been taken back into service and continue to work as officersof the IAF. In the case of Group Captain Rajeev Moitra, the order of theTribunal was stayed during the pendency of the Civil Appeal and he hasnot been taken back on duty. Wing Commander Rachit Bhatnagar wasnot successful before the Tribunal and he is in appeal before this Court.

7. The Tribunal at its Principal Bench, while rendering its decisionon 27 March 2014 in the case of Wing Commander Subrata Das, heldthat officers have a substantive right to continue in service until theyattain the age of superannuation and that an application for prematureretirement can be withdrawn at any time before the actual date of AB

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Aretirement. The Human Resource Policy of the Air Force permits thewithdrawal of the request for PSS on “extreme compassionate grounds”.The Air Force, according to the Tribunal, did not take into considerationthe grounds indicated in the application, and proceeded to reject it on theground that the officer had already undergone the pre-release course.In the view of the Tribunal, the pre-release course is an option which isBgiven to an employee to improve career prospects and is not a conditionof service. The Tribunal held that the officer has a substantive right tocontinue in service and that this right cannot be whittled down by apolicy which has no statutory flavour. In taking this view, the Tribunalhas relied upon the decision of this Court in Union of India v WingCCommander T Parthasarathy[8]. The Tribunal held that severance fromservice which takes effect on a prospective date can be withdrawn atany time before it becomes effective. Hence, the order passed by theAir Headquarters was quashed with a direction to take the officer backin service with consequential benefits.

D8. In the case of Wing Commander P K Sen, the Tribunal at itsPrincipal Bench relied on the decision of this Court in Parthasarathy(supra)and its earlier decision in the case of Wing Commander SubrataDas while granting relief in similar terms in its order dated 3 September2014. In the case of Group Captain Rajeev Moitra, the Tribunal at itsRegional Bench at Lucknow relied on the decisions of this Court inEBalram Guptav Union of India[9], Shambhu Murari Sinhav Project&Development India Ltd.[10] and Parthasarathy (supra). The Tribunalby its order dated 15 September 2016 held that an officer has an absoluteright to withdraw an application for PSS before the effective date ofretirement. The Tribunal placed reliance on its earlier decision in theFcase of Wing Commander P K Sen to hold that a substantive right whichenures to the benefit of the officer cannot be denied merely on the basisof a policy of the Government.

9. In the case of Wing Commander Rachit Bhatnagar, the Tribunalat its Principal Bench has ruled against the officer by its decision datedG7 February 2018. The Tribunal, while taking a view contrary to its earlierdecisions held that officers are commissioned into the Armed Forces ona commission by the President of India. The commission is associatedwith privileges, duties and distinct liabilities. In the view of the Tribunal, 8 "Parthasarathy” : (2001) 1 SCC 158

9 "Balram Gupta” : 1987 Supp SCC 228H 10 (2002) 3 SCC 437

separation from service of a commissioned officer is not a vested rightbut is at the will and pleasure of the President. A request for prematureretirement has to be approved by the Central government. Prematureretirement is not a matter of right. The need for a highly disciplinedforce distinguishes the Armed Forces from civil services. In other words,under the legislation which governs the Armed Forces, it is the right ofthe authorities and of the government to retain or retire an officer andthere is no vested right for premature retirement.

10. The questions of law which have been urged in the appealsfrom the above decisions of the Tribunal are similar. The appeals wereconsolidated and have been heard together.

11. Mr Rana Mukherjee, learned Senior Counsel appearing onbehalf of the Union of India has urged the following submissions:

(i) Service in the Indian Air Force is on the grant of a commissionby the President of India. The tenure of every member of theservice is subject to the Air Force Act 1950 and is at the pleasureof the President;

(ii) Rule 13 of the Air Force Rules 1969 provides for the release ofa member, subject to the Air Force Act 1950 and in accordancewith the rules, orders or instructions made in that behalf by orunder the authority of the Central government;

(iii) Premature Separation from Service is governed by the HumanResource Policy formulated by the Air Headquarters underpowers delegated to it by the Ministry of Defence on 14 August2001;

(iv) The policy seeks to achieve a convergence of individualaspirations 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 ascientific process based on data collected every year and thedata is collated and divided into two Boards of Officersscheduled to be held in the months of March and September;

(vi) Under the terms of the Human Resource Policy, officers withmore than 24 years of service or those Permanently Passed A

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AOver may apply for PSS within nine months from the proposeddate 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 policyhas been amended to permit one extension of the date ofBseverance when it falls within the prescribed jurisdiction of theBoard of Officers;

(viii) The withdrawal of an application for PSS is governed byparagraph18 of the Human Resource Policy. The policystipulates that an officer who has undergone a pre-releaseCcourse is not entitled to withdraw the application. 60% of thecost of the resettlement/pre-release course is paid by the Uniongovernment for the benefit of personnel proceeding on PSS;

(ix) Exits from the Air Force are carefully planned in accordancewith manpower requirements which bear on the operationalDefficiency of the organisation;

(x) The officer who is granted PSS takes away an exit vacancywhich could have been availed by another officer; and

(xi) If an officer who is in a sensitive appointment applies forPSS, the individual is posted to a non-sensitive appointmentEand is considered for the grant of PSS. Frequent withdrawalof an approved PSS may lead to officers using PSS as amodality to escape a transfer to a sensitive appointment and tolater withdraw the request for PSS.

In the above background, it has been submitted that: (a) grant ofFPSS and permission for its withdrawal is not an absolute and unconditionalright; (b) while an employee may seek to withdraw the application forPSS, the government has the discretionary power to accept or reject theapplication depending on the reasons advanced in the application; (c) indeciding whether to accept or reject an application, the government isentitled to have due regard to the exigencies of service; (d) the HumanGResource Policy has been framed under powers delegated by the Ministryof Defence and is referable to the provisions of Rule 13 of the Air ForceRules 1969; and (e) the Tribunal erred in equating the withdrawal of anapplication for PSS from the IAF with the rules which govern employmentin the civil services without bearing in mind the essential differencesHbetween service in the civilian wing and in the Armed Forces.

12. On the other hand, learned Counsel representing the officersof the Air Force in the present case urged the following submissions:

(i) Under Section 189(2)(a), the rule making power governsremoval, retirement release or discharge of persons subject tothe Air Force Act 1950;

(ii) Under Section 190, regulations can be framed by the Centralgovernment for the purposes of the Act, other than thosespecified in Section 189. The regulations framed under Section190 cannot govern the field covered by Section 189(2)(a);

(iii) Unless a law is enacted by Parliament, fundamental rights ofmembers ofthe Armed Forces cannot be abrogated. In theabsence of a statutory provision restricting the right of anofficer to withdraw a request for premature separation, thesame principle which governs civilian employment must applyto severance from the Air Force;

(iv) Paragraph 18 of the Human Resource Policy dated 5 August2011 does not abrogate the right of an officer to withdraw arequest for premature separation prior to the date on which itis to become effective;

(v) Administrative instructions contained in the Human ResourcePolicy cannot restrict the right of the employee to withdrawfrom a request from premature separation; and

(vi) The latest Human Resource Policy dated 23 February 2018has liberalised the provisions pertaining to the withdrawal of arequest for PSS.

In the above background, it has been submitted that the Tribunaljustifiably held that the three officers were entitled to resume their dutiesin the Air Force. Wing Commanders Subrata Das and P K Sen arestated to have joined back active service. In the case of Group CaptainRajeev Moitra, it has been submitted that as a result of the stay orderpassed by this Court on 24 March 2017 on the operation of the decisionby the Tribunal, he was unable to resume service. The decision of theTribunal in the case of Wing Commander Rachit Bhatnagar has beenassailed on the ground that it runs contrary to the law laid down by thisCourt in Parthasarathy(supra).

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A13. These submissions fall for our consideration.

14. At the outset, it is necessary to clarify that we are consideringthe terms of the Human Resource Policy dated 5 August 2011. We havenot had the occasion to evaluate the provisions of any later policy. Wemust, while commencing the analysis, advert to the salient provisions ofBthe Air Force Act 1950 which have a bearing on the present case. Section2 defines the ambit of the Act by stipulating the persons who are subjectto it. Section 2 provides thus:

“Persons subject to this Act.-The following persons shall besubject to this Act wherever they may be, namely:- C

(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 AirDefence Reserve or the Auxiliary Air Force, in the circumstancesspecified in section 26 of the Reserve and Auxiliary Air ForcesAct, 1952 (62 of 1952); D

(d) persons not otherwise subject to Air Force law, who, on activeservice, in camp, on the march, or at any frontier post specifiedby the Central Government by notification in this behalf, areemployed by, or are in the service of, or are followers of, oraccompany any portion of the Air Force.”

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Section 3 provides thus:

“Termination of application of the Act.- Every person subjectto this Act under clauses (a) to (c) of section 2 shall remain sosubject until duly, retired, discharged, released, removed, dismissedor cashiered from the service.”

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A person who has been made subject to the Act by virtue of theprovisions of clauses (a) to (c) of Section 2 continues to remain subjectto it unless ‘duly’ retired, discharged, released, removed, dismissed orGcashieredfrom service. Chapter IV spells out the conditions of service.Section 18 which falls in that Chapter provides that tenure of service isat the pleasure of the President :

“Tenure of service under the Act.- Every person subject tothis Act shall hold office during the pleasure of the President.”

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15. Section 19 empowers the Central government to dismiss orremove from service any person who is subject to the Act in accordancewith its provisions and the rules and regulations made under it. Section22 contains the following provisions in matters of retirement, release ordischarge:

“Retirement, release or discharge.- Any person subject tothis Act may be retired, released or discharged from the serviceby such authority and in such manner as may be prescribed.”

The expression ‘prescribed’ is defined in Section 4 (xxiv) to meanprescribed by rules made under the Act.

16. Rule 13 of the Air Force Rules 1969 contains the followingprovisions in regard to release:

“13. Release.-A person subject to the Act may be released fromthe air force in accordance with these rules, or in accordancewith any orders or instructions made in that behalf by or under theauthority of the Central Government.”

17. Section 189 empowers the Central government to make rulesfor carrying into effect the provisions of the Act. Under clause (a) ofsub-section (2) of Section 189, the rules may provide for the removal,retirement, release or discharge from service of persons subject to theAct. Section 189(2)(a) provides thus:

“189. Power to make rules.-

(1) …

(2) Without prejudice to the generality of the power conferred bysub-section (1), the rules made thereunder may provide for- (a) The removal, retirement, release or discharge from the serviceof persons subject to this Act.”

18. The Air Force Headquarters’ Human Resource Policy wasnotified on 5 August 2011. The policy has been issued in pursuance ofpowers delegated to it by the Ministry of Defence on14 August 2001.The policy seeks to lay down comprehensive guidelines for prematureseparation from service by officers of the Air Force, other than thosefrom the medical and dental branches. The object of the policy is tobring about a balance between requests made by officers of the Air

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AForce to leave service and the interests of the Air Force. The policy, inparagraph 1, provides thus:

“Officers on active service may wish to leave the Air Force forvaried personal reasons. It is the endeavour of the PersonnelBranch and Air HQ to give due consideration to all such requests,Bon the merits of each case and seek convergence of individualaspirations and service interests. This Human Resources Policy(HRP) on Premature Separation from Service (PSS) aims toprovide more clarity in the PSS policy. For the purpose of HRP,total service, whether mentioned, would imply commissionedservice in the IAF excluding ante-date or any previous service.”C19. Paragraph 3 of the policy requires that PSS applications fromofficers be “considered on the merits of the case and requirements ofservice”. The grounds on which requests for PSS can be consideredare, inter alia, (i) cases where officers have been Permanently PassedOver (PPO) or superseded; (ii) extreme compassionate grounds; (iii)Dbetter employment in civil life; and (iv) lack of career prospects. Thesegrounds have been explained as follows in paragraph 3:

(a) “Permanently Passed Over (PPO)/Supersession.Officerswho submit an application for PSS on grounds of being PPOwill be considered for release from service. Officer supersededEin the select ranks may also be considered for release. In suchcases, decision by Air HQ would be based on the officer’srecord of service, future promotability prospects and serviceexigencies.

(b) Extreme Compassionate Grounds.Requests on extremeFcompassionate grounds would be considered after the factspresented by the officer are verified, to the extent possible, bythis Headquarter. Such verification is necessary to ensure thatthe grounds are genuine. Domestic problems such as the needto look after ailing parents, inheritance problems, need to lookGafter business, serious illness of wife/children’s ailmentsrequiring officer’s presence at home, possibility of break-up ofconjugal life if the officer continues in service, etc., would betreated as compassionate grounds depending on thecircumstances of each case. Applications with medical issueswill be routed through the Dte of Medical Services andHinterviews/counselling conducted by them.

(c) Better Employment in Civil Life.If a service officer appliesfor PSS within a period of one year before the due date ofsuperannuation for obtaining employment in private sector, therequest would normally be acceded to. For employment underPublic Sector, Government controlled Corporation, MunicipalCorporations etc. requests within a period of two years fromsuperannuation would be considered as a measure ofrehabilitation assistance to the officers. All applications foremployment outside will, however, be submitted through properchannels so that Service HQ has sufficient notice of theintentions of the officers in this regard (Refer HRP 04/09).Officers who have been permitted to apply for civil/commercialemployment as per HRP 04/09, will be required to put up anapplication for PSS. Officers are to carefully consider theseaspects before applying for civil/commercial employment.

(d) …

(e) Lack of Career Prospects (LCP).A person seeking a careerin the Air Force is expected to be aware of his careerprogression at every stage of his career. During his career, ifan officer feels that he has no prospects for advancement inservice, he may apply for PSS. However, the lack of careerprospects of an officer will be ascertained by the ‘P’ branch.”

Where officers are trained in specialised courses, requests forPSS can be considered only upon the expiry of the minimum periodindicated in the policy.

20. Paragraph 4 of the policy provides for eligibility criteria andthe categorisation of officers seeking PSS. Paragraph 4 provides thus:

“4. The organization requires a dedicated pool of officers, whoare motivated and willing to work towards organizational goalsand at the same time fulfil their personal aspirations, which maybe dynamic and may be influenced by external factors. In anattempt to address both, its goals and the individual’s aspirations,the organization needs to fine-tune its policies. The thoughtprocesses, which have gone into formulating the eligibility criteria,which are enumerated in the subsequent paragraphs, are asfollows:- A

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A(a) There is a large shortfall of officers in the junior ranks (up tothat of Sqn Ldr) in all branches.

(b) Below ten years of commissioned service, an officer shouldbe discouraged as far as possible as even the cost of trainingwould not have been recovered in full.B

(c) Beyond 24 years of commissioned service, PSS cases wouldbe favourably considered subject to service exigencies.

(d) Therefore, in the critical seniority group of up to about 21years of commissioned service, the organisation has to becircumspect of the number of departures that can be permitted,Cin order not to upset the manning levels or its operationalefficiency. At the same time one cannot deny a genuine case.

(e) With the implementation of the AVSC II proposals, an officerwould have a fairly clear picture of his career prospects byabout 20-22 years of commissioned service, as select gradeDwould eventually start at 17.5/19.5 years for flying / groundduty branches respectively. Therefore, allowing supersededofficers of separate from service beyond about 21 years wouldallow for better promotion ratios and at the same time allowsuperseded officers to seeks avenues in the civil sector at aErelatively young age.”

Paragraph 5 classifies officers seeking PSS into four categories:

(i) Officers with more than 24 years of commissioned serviceand those who have been Permanently Passed Over (PPO);

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

(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 OfficersGin March and September. The ‘jurisdiction period’ has been planned toprovide officers proceeding on PSS adequate time to complete theirformalities. Paragraph 8 provides for submission of applications for PSS,paragraph 9 for the procedure for officers on deputation and paragraphs10 to 13 for the processing of applications. Paragraph 15 provides thatH

applications for separation from service by officers with less than 21years of service for reconsideration of an earlier request will not beconsidered before a lapse of one year from the non-acceptance of theprevious application by the Board of Officers unless the grounds havechanged substantially. Paragraph 17 contemplates that one change ofthe effective date of PSS may be permitted. Paragraph 18 provides forthe withdrawal of a request for PSS. Paragraph 18 is in the followingterms:

“18.Withdrawal - A request for withdrawal of approved PSSapplication would be permitted only as an exception under extremecompassionate grounds (except in case the officer has undergonea Pre Release Course, in which he / she would not be permittedto withdraw). The officer would be debarred from submitting afresh application for one year from his proposed date of PSS.”

Paragraph 18 of the policy indicates that:

(i) A request for withdrawal of a PSS application which has beenapproved can be permitted only by way of an exception;

(ii) A request for withdrawal can be permitted only under “extremecompassionate grounds”;

(iii) An officer who has undergone a pre-release course will notbe permitted to withdraw the request; and

(iv) A fresh application cannot be submitted for a period of oneyear 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, usesthe same expression. The grounds in paragraph 18 would evidently bebased on events which have taken place after the submission of anapplication for PSS and its approval. The expression “undergone” wouldmean completed or finished. Under paragraph 18, no withdrawal fromPSS is permitted where an officer has undergone the pre-release course.However, even if an officer has not ‘undergone’ the pre-release course,there is no unqualified or absolute right to withdraw an application forPSS. Paragraph 18 permits an officer to submit a request for thewithdrawal of a PSS application and the grant of such a request is subjectto the approval of the competent authority. There is no unilateral right towithdraw from a request for PSS once it has been approved.

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APara 20 stipulates that while individual aspirations are borne inmind to the extent feasible, the requirements and interests of the serviceare 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 thatBindividual aspirations are favourably considered. However, servicerequirements/interests remain paramount and cannot beoverlooked. The intent of this HRP is to provide on all relatedaspects regarding PSS to an officer at a critical juncture of hisservice.”

22. The provisions of the Air Force Act 1950 govern the personsCwho are subject to it. Clauses (a) to (d) of Section 2 define the categoriesto whom the Act applies. Once a person is subject to the Act, its provisionscontinue to govern them until the individual is duly retired, discharged,released, removed, dismissed or cashiered from the service under theprovisions of the Act. Induction into the service under Section 10 is upon Dthe grant of commission as an officer by the President or by appointmentas a warrant officer of the Air Force. The tenure of service of everyperson subject to the Act is during the pleasure of the President. Mattersof retirement, release or discharge from service are governed by theprescriptions contained in the Rules.23. The provisions of the Air Force Act 1950 are a necessaryEconcomitant of the intent of Parliament to establish the Air Force as anarmed force of the Union. As members of an Armed Force, those whoare subject to the provisions of the Act are governed by the rigour anddiscipline of the Force. Indeed, that is the rationale which underlies Article33 of the Constitution which empowers Parliament by law to restrict orFabrogate the provisions of Part III in their application inter alia to themembers of the Armed Forces. The purpose of these restrictions is toensure the proper discharge of duties and the proper maintenance ofdiscipline.[11]

11 “33. Parliament may, by law, determine to what extent any of the rights conferred byGthis Part shall, in their application to— (a) the members of the Armed Forces; or (b) themembers of the Forces charged with the maintenance of public order; or (c) personsemployed in any bureau or other organisation established by the State for purposes ofintelligence or counter intelligence; or (d) person employed in, or in connection with,the telecommunication systems set up for the purposes of any Force, bureau ororganisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensurethe proper discharge of their duties and the maintenance of discipline among them.”H

24. Entry into and departure from the service of the Air Force isin terms of the above provisions and is not a matter which lies at thesweet will of a member of the Air Force. The provisions contained in theAct for commissioning, tenure and cessation of service reflect the needto maintain the discipline and efficiency of the Air Force. Theorganisational efficiency of the Armed Forces of the Union is of paramountimportance. It is in this background that the provisions which arecontained in the Human Resource Policy must be evaluated.

25. The policy has been formulated in pursuance of the powersdelegated to the Air Headquarters by the Ministry of Defence. As wehave noticed earlier, Rule 13 of the Air Force Rules 1969 stipulates thata person subject to the Act may be released from the Air Force inaccordance with the rules, orders or instructions made by or under theauthority of the Central Government. The Human Resource Policy whichwas notified on 2 August 2011 seeks to bring about a convergence ofindividual aspirations and the interests of the service.

26. The policy has enunciated comprehensive guidelines forpremature separation. It defines the grounds on which prematureseparation can be contemplated. It lays down a categorisation of officersbased onthe length of years of service for considering applications forPSS. It enunciates the manner in which their proposals would beevaluated. The policy contemplates a Board of Officers to considerrequests for PSS in the months of March and September every year.The policy enunciates a time schedule for the submission of applicationsand 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 afterascertaining the full details of each case, while keeping current manningconstraints in mind. Details of the interview and recommendations ofthe Command Headquarters have to be annotated while forwarding thecase for consideration to the Air Headquarters.

27. The number of officers who are granted PSS in a year isrestricted in order not to upset the manninglevels and the operationalefficiency of the Air Force. Hence, while attempting to balance thegenuine aspirations of the members of the Air Force and their personaldifficulties, the number of officers to be granted PSS is computed on thebasis of various factors such as induction, superannuation and other exitsfrom the Air Force. This exercise requires the collection and gathering A

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Aof data relating to inductions, rank wise surplus and deficiencies in eachbranch and stream from the Directorate of Personnel and Planning. Thedata is utilised to compute the number of officers to be granted PSS in ayear. This is distributed between two Boards of Officers scheduled forbeing convened in the months of March and September of each year. Ineach Board, the figure is further divided into two categories - officersBwith less than 21 years of service and officers with 21 to 24 years ofservice. The timeline which is embodied in the policy contemplates thatan officer would be given a sufficient period of approximately ninemonthsto apply for PSS and to retire with full benefits. During this period, theofficer can prepare for the future.

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28. Consistent with the need to maintain efficiency and discipline,the policy restricts the right to seek an extension of PSS. During theperiod which leads up to a severance from service, an officer may undergoa pre-release course or a resettlement course, for which 60 per cent ofthe cost is borne by the Government of India. In interpreting the provisionsDof the policy, including the withdrawal of a request for prematureseparation, it is necessary to emphasise that an officer who is grantedPSS takes away an exit vacancy which could have been provided toanother officer of the Air Force.

29. In the submissions before this Court, the rationale for restrictingEthe right of withdrawal from a PSS has been explained in the aboveterms. It has also been emphasised that an officer who is tenanting asensitive appointment would be posted to a non-sensitive appointmentupon applying for PSS and would be considered for the grant of PSS oncompleting a desensitising period of one year. Permitting an absoluteright to withdraw from an approved PSS may, it is apprehended, lead toFthe 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 ourview with justification, that the right to withdraw a request for PSS froman armed force is not absolute or unconditional. Paragraph 18 of theHuman Resource Policy conditions the withdrawal of an approved PSSGapplication by a stipulation that such a request can be permitted only asan exception and under “extreme compassionate grounds”. Paragraph18 contemplates that a request for withdrawal of a PSS application, inorder 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 notHa 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 notpermitted to request for a withdrawal.

31. Paragraph 18 clearly indicates that the general principle ofservice law which has been applied to the civil services, does not applyin the situation of the Air Force. In matters relating to civilian employment,particularly in the civil services, voluntary severance of service mayeither be in the form of a unilateral or bilateral act. Where severancefollows on the basis of a unilateral act by an employee, no acceptance ofthe request for severance is required. On the other hand, where theseverance contemplated is bilateral in nature, the request of an employeefor severance becomes effective only upon its acceptance by theemployer. In the context of service jurisprudence, the principle of lawwhich has been enunciated in the decisions of this Court is that wherean employee tenders a resignation from service with effect from a futuredate, it is open to the employee to withdraw from the resignation until ittakes effect on the future date so stipulated.

32. The governing principles were enunciated in the decision of aConstitution Bench of this Court in Union of India v Shri GopalChandra Misra[12 ](“Gopal Chandra Misra”). The Constitution Benchnoted that unlike in the case of a government servant whose severancefrom service requires acceptance (and is hence not a unilateral act), inthe case of a judge of the High Court, the Constitution in the proviso toArticle 217(1) has recognised a unilateral right or privilege to resignoffice. In the latter case, the resignation would lead to a termination ofthe tenure forthwith and cannot be withdrawn thereafter. But it is opento a judge who tenders a resignation with effect from a future datetowithdraw the resignation before it becomes effective on the prospectivedate. The Constitution Bench held thus:

“50. It will bear repetition that the general principle is that in theabsence of a legal contractual or constitutional bar, a ‘prospective’resignation can be withdrawn at any time before it becomeseffective, and it becomes effective when it operates to terminatethe employment or the office tenure of the resigner. This generalrule is equally applicable to government servants and constitutionalfunctionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his 12 (1978) 2 SCC 301

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SUPREME COURT REPORTS

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SUPREME COURT REPORTS

Aown unilateral act of tendering resignation, give up his service/oroffice, normally, the tender of resignation becomes effective andhis service/or office tenure terminated, when it is accepted by thecompetent authority. In the case of a Judge of a High Court, whois a constitutional functionary and under proviso (a) to Article217(1)has a unilateral right or privilege to resign his office, hisBresignation becomes effective and tenure terminated on the datefrom which he, of his own volition, chooses to quit office. If interms of the writing under his hand addressed to the President, heresigns in praesenti, the resignation terminates his office tenureforthwith, and cannot therefore, be withdrawn or revokedCthereafter. But, if he by such writing, chooses to resign from afuture date, the act of resigning office is not complete because itdoes not terminate his tenure before such date and the Judge canat any time before the arrival of that prospective date on which itwas intended to be effective, withdraw it, because the Constitutiondoes not bar such withdrawal.”D

This principle was reiterated in a decision of this Court in BalramGupta (supra) where it was held that:

“12. In this case the guidelines are that ordinarily permission shouldnot be granted unless the officer concerned is in a position toshow that there has been a material change in the circumstancesin consideration of which the notice was originally given. In thefacts of the instant case such indication has been given. Theappellant has stated that on the persistent and personal requestsof the staff members he had dropped the idea of seeking voluntaryretirement. We do not see how this could not be a good and validreason. It is true that he was resigning and in the notice forresignation he had not given any reason except to state that hesought voluntary retirement. We see nothing wrong in this. In themodern age we should not put embargo upon people’s choice orfreedom. If, however, the administration had madearrangements acting on his resignation or letter ofretirement to make other employee available for his job,that would be another matter but the appellant’s offer to retireand withdrawal of the same happened in such quick successionthat it cannot be said that any administrative set-up or arrangementwas affected...”(Emphasis supplied)

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The above observations indicate that the unrestrained choice ofan employee to withdraw a resignation may yet be constrained if theemployee had made arrangements acting on the resignation or letter tomake another employee available for the job.

33. It is in this background that it is necessary to advert to thejudgment of a two judge Bench of this Court in Parthasarathy (supra).The judgment merits a close analysis. In that case, the respondent wasaWing Commander in the Indian Air Force and submitted an applicationon 21 July 1985 for premature retirement from service with the proposeddate of severance from service as 31 August 1986. When the applicationwas being processed, he moved an amendment to his earlier applicationstating that the actual date of release could be decided taking into accountthe pensionary recommendations of the Fourth Pay Commission reportwhich was expected in November 1985. On 19 February 1986, therespondent submitted an application seeking to withdraw his earlierrequest for premature retirement. It was thereafter on 7 March 1986that he was served with a communication that on 20 February 1986, theAir Headquarters had accepted his application to withdraw from serviceand that he would retire prematurely at his own request from 31 August1986.

34. The judgment in Parthasarathy (supra) therefore dealt witha situation where the officer had stipulated a future date with effectfrom which his premature retirement would become effective. However,before the application for retirement was accepted, he withdrew hisrequest and it was only thereafter that Air Headquarters accepted hisoriginal application and communicated the decision to retire him fromservice. It was in this background that a two judge Bench of this Courtheld that:

“8…On the other hand, not only the acceptance of the request bythe headquarters, the appropriate authority, was said to have beenmade only on 20-2-1986, a day after the respondent withdrew hisrequest for premature retirement but even such acceptance inthis case was to be effective from a future date namely 31-8-1986.Consequently, it could not be legitimately contended by theappellants that there was any cessation of the relationship ofmaster and servant between the Department and the respondentat any rate before 31-8-1986. While that be the position inevitablythe respondent had a right and was entitled to withdraw or revoke A

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Ahis request earlier made before it ever really and effectivelybecame effective.”

The facts of the case and the above extract clearly make thejudgment of this court in Parthasarathy(supra) distinguishable. InParthasarathy,the officer withdrew his request for premature retirementBbefore the effective future date had arrived. He was sought to be retiredprematurely thereafter by the government despite the request havingbeen withdrawn before it was accepted. The next aspect of the judgmentwhich merits emphasis is the observation that nothing in the form of anystatutory provision or rule had been brought to the notice of the courtwhich would impede or deny the right of the employee to withdraw aCresignation before the date on which the resignation could have becomeeffective. Evidently, the two judge Bench was not dealing with a provisionakin to Paragraph 18 of the Human Resource Policy dated 5 August2011 which is involved in the present case. It was in that backgroundthat the court held that there was nothing to impede or deny the right of Dthe employee to withdraw from the resignation. The judgment of thisCourt in Parthasarathy (supra) is therefore distinguishable.

35. The decision of a three judge Bench of this Court in Bank ofIndia v O P Swarnakar[13 ]dealt with the voluntary retirement scheme ofnationalised banks. Clauses 10.5 and 10.6 of the scheme provided thus:E

“10.5. It will not be open for an employee to withdraw the requestmade for voluntary retirement under the Scheme after havingexercised such option.

10.6. The competent authority shall have absolute discretion eitherto accept or reject the request of an employee seeking voluntaryFretirement under the Scheme depending upon the requirement ofthe Bank. The reasons for rejection of request of an employeeseeking voluntary retirement shall be recorded in writing by thecompetent authority. Acceptance or otherwise of the request ofan employee seeking voluntary retirement will be communicatedGto him in writing.”

This Court adverted to the judgment of the Constitution Bench inGopal Chandra Misra (supra) as well as to the decisions in BalramGupta (supra) and in Parthasarathy (supra) and held thus:

13 (2003) 2 SCC 721H

“113. The submission of the learned Attorney-General that as soonas an offer is made by an employee, the same would amount toresignation in praesenti cannot be accepted. The Scheme was inforce for a fixed period. A decision by the authority was requiredto be taken and till a decision was taken, the jural relationship ofemployer and employee continued and the employees concernedwould have been entitled to payment of all salaries and allowancesetc. Thus it cannot be said to be a case where the offer was givenin praesenti but the same would be prospective in nature keepingin view of the fact that it was come into force at a later date andthat too subject to acceptance thereof by the employer. We,therefore, are of the opinion that the decisions of this Court, asreferred to hereinbefore, shall apply to the facts of the presentcase also.”

The Court held that where a group of employees had accepted anexgratia payment, they could not be permitted to approbate or reprobateor resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India[14 ]is an authority for the proposition that even if anotice of voluntary retirement which is moved by an employee is acceptedby the authority within the time fixed, the employee has a locuspoenitentiae to withdraw the proposal for voluntary retirement beforethe date of retirement is reached.

36. The above principles are of general application. However, thepresent case stands on a different footing and is clearly distinguishable.All the officers in the present case submitted an application under theterms of the Human Resource Policy which governed them. Availingthe benefit of the policy, they proceeded to opt for a pre-release course.The policy under which they sought the benefit of a premature severanceof service conditioned the right of withdrawal to the stipulations containedin paragraph 18. Paragraph 18 of the Human Resource Policy makes itabundantly clear that there is no unilateral right to withdraw from arequest 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 batchof cases applied under the terms of the policy, seeking PSS. It is notopen to them to approbate or reprobate. They cannot rely on the policyand seek to repudiate Para 18 conditioning the right to withdraw.

14 (1998) 9 SCC 559.

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A37. The determination of the number of PSS applications thatshould be granted is based on a careful exercise of assessing themanpower requirements of the Air Force. The approval of a request ofan officer for PSS has consequences both for the service and for theofficer individually until the eventual severance of service takes place.During the period between the approval of the application and the dateBof severance, arrangements are made to meet the operationalrequirements of the Air Force. As for the officer, they have the option toproceed on a pre-release course. The operational requirements of theAir Force and the need to carefully structure exits under the HumanResource Policy clearly distinguishes the present case from the judgmentsCrelied on by the respondents. In the reply filed by the Union of India inthe Civil Appeal involving Wing Commander Subrata Das, it has beenstated :

“That in the current year (2013), 143 officers have applied forPSS and 89 officers were granted PSS under the provisions ofDthis HRP. 25 officers had applied for a change of date due tovarious reasons and requests of 20 officers has been acceded tofor various reasons. 13 officers have requested for withdrawal ofapproved PSS and requests of 11 officers have been acceded to.Request of only two officers were not acceded to.”

E38. The Tribunal has, in its decisions in the cases involving WingCommander Subrata Das, P K Sen and Group Captain Rajeev Moitra,clearly erred in failing to notice the critical difference in the operationalrequirements of the service of an Armed Force of the Nation. TheTribunal has also failed to collectively appreciate the terms of the policy,its rationale and the basis on which paragraph 18 restricts the right toFwithdraw from an approved PSS application. Paragraph 18 is foundedon the principle that even though a severance from service will takeplace at a future date, an application for PSS which has been approvedcannot be withdrawn except on the grounds contemplated in thatparagraph. Whether a request to withdraw an approved PSS applicationGmeets the criterion of “extreme compassionate grounds” has to beconsidered by the competent authority. So long as the assessment is fairand bona fide, the decision, in our view, ought not to be faulted.

39. The right to withdraw from an approved PSS application isneither absolute nor unqualified. We are firmly of the view that theHdecisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds tothe question of whether the grounds which were urged fulfilled the“extreme compassionate grounds” criterion. The authorities were alsoentitled to make a final determination based on the needs and exigenciesof service. The Tribunal has erroneously interfered with the exercise ofthe administrative judgment by the authorities of the Air Force. Wetherefore disapprove of the view which has been taken by the Tribunalin the cases involving Wing Commanders Subrata Das, P K Sen andGroup Captain Rajeev Moitra. The decision of the Tribunal in the caseof Wing Commander Rachit Bhatnagar does not merit our interferencefor the reasons which we have indicated earlier.

40. The situation as it stands, is that Wing Commander SubrataDas and P K Sen resumed their duties after the decision of the Tribunal.Wing Commander P K Sen has been promoted as Group Captain. WingCommanders Subrata Das and Group Captain P K Sen are due tosuperannuate 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 theConstitution, that their services in the Air Force for the remaining tenurewill not be affected by the present judgment. This will, however, besubject to all the applicable norms, rules and regulations governingdiscipline and efficiency governing the service. As regards Group CaptainRajeev Moitra, we set aside the judgment and order of the Tribunal andin consequence, the original application filed before the Tribunal shallstand dismissed.We affirm the judgment of the Tribunal in the case ofWing Commander Rachit Bhatnagar, though for the reasons which wehave indicated above.

41. The civil appeals shall stand disposed of in the above terms.There shall be no order as to costs.

Kalpana K. Tripathy

Appeals disposed of.

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