# UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS v. WG. CDR. SUBRATA DAS (19942-H)

- **Citation:** [2019] 1 S.C.R. 1035
- **Court:** Supreme Court of India
- **Decided:** 2019-01-29
- **Case number:** Civil Appeal No. 10953 of 2014
- **Bench:** Dr. Dhananjaya Y Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-through-its-secretary-ministry-of-defence-dhqpo-new-delhi-ors-v-33733
- **Pages:** 29

## Headnote

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 the
rejection order in Armed Forces Tribunal - Three officers succeeded
before the Tribunal while one officer was not successful - Two of
the officers were taken back in service pursuant to the order of
Tribunal and order of the Tribunal in respect of one officer was
stayed - On appeal, Held: As a member of Armed Force, those who
are subject to the provisions Air Force Act, 1950 are governed by
the rigour and discipline of the 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 are governed by the
Rules - The Human Resource Policy (under which PSS was sought)
is formulated in pursuance of the powers delegated to the Air
Headquarters by the Ministry of Defence - Para 18 of the policy
conditions that the withdrawal of an approved PSS can be permitted
only 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 is
not absolute or unconditional - On facts, the decision rejecting the
application for withdrawal from PSS was bona fide and correct -
However, in exercise of power u/Art. 142 it is directed that the service
of two officers who were taken back in service shall not be affected
by the present judgment - Air Force Act, 1950 - s. 2(a) to (d) - Air
Force Rule, 1969 - r. 13 - Constitution of India - Arts. 33 and 142.
[2019] 1 S.C.R. 1035
1035
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Disposing of the appeals, the Court
HELD: 1. 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.
[Para 22][1054-C-E]
2. 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 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. [Para 23][1054-E-F]
3. 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. [Para 24][1055-A-B]
4. The Human Resource policy has been formulated in
pursuance of the powers delegated to the Air Headquarters by
the Ministry of Defenc

## Text

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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 CHANDRACHUD
AND 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 the
rejection order in Armed Forces Tribunal - Three officers succeeded
before the Tribunal while one officer was not successful - Two of
the officers were taken back in service pursuant to the order of
Tribunal and order of the Tribunal in respect of one officer was
stayed - On appeal, Held: As a member of Armed Force, those who
are subject to the provisions Air Force Act, 1950 are governed by
the rigour and discipline of the 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 are governed by the
Rules - The Human Resource Policy (under which PSS was sought)
is formulated in pursuance of the powers delegated to the Air
Headquarters by the Ministry of Defence - Para 18 of the policy
conditions that the withdrawal of an approved PSS can be permitted
only 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 is
not absolute or unconditional - On facts, the decision rejecting the
application for withdrawal from PSS was bona fide and correct -
However, in exercise of power u/Art. 142 it is directed that the service
of two officers who were taken back in service shall not be affected
by the present judgment - Air Force Act, 1950 - s. 2(a) to (d) - Air
Force Rule, 1969 - r. 13 - Constitution of India - Arts. 33 and 142.
[2019] 1 S.C.R. 1035
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Disposing of the appeals, the Court
HELD: 1. 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.
[Para 22][1054-C-E]
2. 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 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. [Para 23][1054-E-F]
3. 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. [Para 24][1055-A-B]
4. The Human Resource policy has been formulated in
pursuance of the powers delegated to the Air Headquarters by
the Ministry of Defence. Rule 13 of the Air Force Rules 1969
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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. [Para 25][1055-C]
5. 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 years of service for considering
applications for Premature Separation from Service (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. [Para
26][1055-D-F]
6. 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. [Para
27][1055-G-H; 1056-A]
7. 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
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SUBRATA DAS (19942-H)
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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. [Para 28][1056-CD]
8. The right to withdraw a request for PSS from an armed
force is not absolute or unconditional. Paragraph 18 of the Human
Resource Policy 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. [Para 30][1056-GH; 1057-A]
9. 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.
[Para 37][1062-A-B]
10. 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 Para 18 of
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the Human Resource Policy. Para 18 makes it abundantly clear
that there is no unilateral right to withdraw from a request for
PSS once it has been approved. There is 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 the officers to approbate or reprobate. They cannot rely on
the policy and seek to repudiate Para 18 conditioning the right to
withdraw. [Para 36][1061-F-G]
11. The Tribunal has, in allowing the cases of three officers
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, ought not to be
faulted. [Para 38][1062-E-G]
12. The right to withdraw from an approved PSS application
is neither absolute nor unqualified. 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 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. [Para 39][1062-H; 1063-A-B]
13. Two officers 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, in the
exercise of jurisdiction under Article 142 of the Constitution, it
is directed that their services in the Air Force for the remaining
tenure will not be affected by the present judgment. This will,
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however, be subject to all the applicable norms, rules and
regulations governing discipline and efficiency governing the
service. As regards the case of the officer in C.A. No. 4575 of
2017 the judgment and order of the Tribunal is set aside and in
consequence, the original application filed before the Tribunal
shall stand dismissed. The judgment of the Tribunal in the case
of officer in C.A. (D) No. 26814 of 2018, is affirmed. [Para
40][1063-C-E]
Union of India v. Wing Commander T Parthasarathy
(2001) 1 SCC 158 : [2000] 4 Suppl. SCR 531; Balram
Gupta v. Union of India (1987) Suppl. SCC 228 : [1987]
3 SCR 1173; Shambhu Murari Sinha v. Project &
Development India Ltd. (2002) 3 SCC 437 : [2002] 2
SCR 396; Union of India v. Shri Gopal Chandra Misra
(1978) 2 SCC 301 : [1978] 3 SCR 12; J N Srivastava
v. Union of India (1998) 9 SCC 559 - distinguished.
Bank of India v. O. P. Swarnakar (2003) 2 SCC 721:
[2002] 5 Suppl. SCR 438 - referred to.
Case Law Reference
[2000] 4 Suppl. SCR 531
distinguished
Para 7
[1987] 3 SCR 1173
distinguished
Para 8
[2002] 2 SCR 396
distinguished
Para 8
[1978] 3 SCR 12
distinguished
Para 32
[2002] 5 Suppl. SCR 438
referred to
Para 35
(1998) 9 SCC 559
distinguished
Para 35
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10953
of 2014.
From the Judgment and Order dated 27.03.2014 of the Armed
Forces Tribunal, Principal Bench, New Delhi in O.A. No. 467 of 2013.
WITH
Civil Appeal Nos. 2821 of 2015, 1412 and 1413 of 2019.
Rana Mukherjee, Sr. Adv., Chakitan Vikram Shekhar Papta, Amit
Sharma, Sachin Sharma, Saudamini Sharma, Karan A. Seth, Ms. Rashmi
Malhotra, R.S. Jena, Arvind Kumar Sharma, Mukesh Kumar Maroria,
Sudhanshu S. Pandey, Gaichangpou Gangmei, Abhishek R. Shukla,
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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. 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 Policy2notified 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 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
 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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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:
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
 7 PPO
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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
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 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 any time before the actual date of
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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. 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 Guptav Union of India9, Shambhu Murari Sinhav 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,
 8 "Parthasarathy" : (2001) 1 SCC 158
 9 "Balram Gupta" : 1987 Supp SCC 228
 10 (2002) 3 SCC 437
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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 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;
(vi) Under the terms of the Human Resource Policy, officers with
more than 24 years of service or those Permanently Passed
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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
paragraph18 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 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.
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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 ofthe 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;
(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).
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR.
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]
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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 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
cashieredfrom 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."
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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
sub-section (2) of 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."
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 on14 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
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR.
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]
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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
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.
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(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."
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:-
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR.
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(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."
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.