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      REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 10953 OF 2014

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

Versus  

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

WITH

CIVIL APPEAL (D) No. 4575 OF 2017

WITH

CIVIL APPEAL No. 2821 OF 2015  

AND WITH

DAIRY No. 26814 OF 2018

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J U D G M E N T

Dr Dhananjaya Y Chandrachud, J.    

1 Delay condoned.

2 Leave granted.  

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

Forces  Tribunal1.  Each  of  the  four  officers  of  the  Indian  Air  Force  -  Wing

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

Rajeev Moitra  sought  a  premature  separation from service  under  the Human

Resource  Policy2  notified  on  5  August  2011  by  the  Air  Headquarters.  Their

requests for a Premature Separation from Service3 were allowed. Before the date

stipulated for their separation from the Indian Air Force4,  the officers withdrew

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

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

Tribunal.

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

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

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

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

1 The Tribunal 2 The Human Resource Policy, Air HQ/988321/1/PO-5 3 PSS 4 “IAF” 5 O.A. No. 425 of 2013, O.A. No. 467 of 2013 and O.A. No. 134 of 2015 6 O.A. No. 1265 of 2017

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PSS  and  continue  in  service.  Wing  Commander  Rachit  Bhatnagar  was

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

Appeal questioning the decision.

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

appeals are set out below :  

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

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

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

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

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

Passed  Over7 by  the  Promotion  Board.  The  request  was  accepted  and

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

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

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

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

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

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

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

course.

(ii) Civil Appeal 2821 of 2015 : Wing Commander P K Sen: 7PPO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

before this Court.  

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

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

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

superannuation  and  that  an  application  for  premature  retirement  can  be

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

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

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

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

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

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

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

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

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

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

this  Court  in  Union  of  India  v Wing  Commander  T  Parthasarathy8.  The

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

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

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

back in service with consequential benefits.  

8 “Parthasarathy” : (2001) 1 SCC 158

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

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

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

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

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

decisions of this Court in  Balram Gupta v  Union of India9, Shambhu Murari

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

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

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

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

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

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

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

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

2018. The Tribunal, while taking a view contrary to its earlier decisions held that

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

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

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

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

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

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

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

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

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

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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;

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

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

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

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

life;

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

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

the prescribed jurisdiction of the Board of Officers;

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

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

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

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

government for the benefit of personnel proceeding on PSS;  

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

requirements which bear on the operational efficiency of the organisation;

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

been availed by another officer; and

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

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

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

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

withdraw the request for PSS.  

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

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

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

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

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

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

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

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

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

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

the  civil  services  without  bearing  in  mind  the  essential  differences  between

service in the civilian wing and in the Armed Forces.

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

Force in the present case urged the following submissions:

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

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

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

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

regulations  framed under  Section  190 cannot  govern the  field  covered  by

Section 189(2)(a);

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

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

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

separation, the same principle which governs civilian employment must apply

to severance from the Air Force;

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

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

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

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

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

separation; and

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

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

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

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

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

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

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

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

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

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

Court in Parthasarathy (supra).

 13 These submissions fall for our consideration.

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

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

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

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

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

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

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

(a) officers and warrant officers of the Air Force;

(b) persons enrolled under this Act;

(c) persons belonging to the Regular Air Force Reserve or the Air Defence Reserve or the Auxiliary Air Force, in the circumstances specified in section 26 of the Reserve and Auxiliary Air Forces Act, 1952 (62 of 1952);

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

Section 3 provides thus:  

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

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

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

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

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

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

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

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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 Section 2 of sub-section

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

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

“189. Power to make rules.-  (1) …

(2)Without  prejudice  to  the  generality  of  the  power conferred by sub-section (1), the rules made thereunder may provide for-

(a) The  removal,  retirement,  release  or  discharge from the service of persons subject to this Act.”

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

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

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

comprehensive guidelines for premature separation from service by officers of

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

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

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

paragraph 1, provides thus:  

“Officers on active service may wish to leave the Air Force for  varied  personal  reasons.  It  is  the  endeavour  of  the Personnel Branch and Air HQ to give due consideration to all  such requests, on the merits of each case and seek convergence  of  individual  aspirations  and  service interests.  This  Human  Resources  Policy  (HRP)  on Premature Separation from Service (PSS) aims to provide more clarity in the PSS policy. For the purpose of HRP, total  service,  whether  mentioned,  would  imply commissioned service in the IAF excluding ante-date or any previous service.”  

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

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

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

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

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

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

(a) “Permanently  Passed  Over  (PPO)/Supersession. Officers  who  submit  an  application  for  PSS  on grounds of being PPO will be considered for release from service.  Officer superseded in the select ranks may also be considered for  release.  In such cases, decision by Air  HQ would be based on the officer’s

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record of service, future promotability prospects and service exigencies.  

(b) Extreme  Compassionate  Grounds. Requests  on extreme compassionate grounds would be considered after the facts presented by the officer are verified, to the  extent  possible,  by  this  Headquarter.  Such verification is  necessary to  ensure that  the grounds are genuine. Domestic problems such as the need to look after ailing parents, inheritance problems, need to look after  business,  serious illness of  wife/children’s ailments  requiring  officer’s  presence  at  home, possibility  of  break-up  of  conjugal  life  if  the  officer continues  in  service,  etc.,  would  be  treated  as compassionate  grounds  depending  on  the circumstances of each case. Applications with medical issues  will  be  routed  through  the  Dte  of  Medical Services  and  interviews/counselling  conducted  by them.

(c) Better Employment in Civil Life. If a service officer applies for PSS within a period of one year before the due date of superannuation for obtaining employment in  private  sector,  the  request  would  normally  be acceded  to.  For  employment  under  Public  Sector, Government  controlled  Corporation,  Municipal Corporations  etc.  requests  within  a  period  of  two years from superannuation would be considered as a measure of rehabilitation assistance to the officers. All applications for employment outside will, however, be submitted  through  proper  channels  so  that  Service HQ  has  sufficient  notice  of  the  intentions  of  the officers in this regard (Refer HRP 04/09). Officers who have  been  permitted  to  apply  for  civil/commercial employment as per HRP 04/09, will be required to put up  an  application  for  PSS.  Officers  are  to  carefully consider  these  aspects  before  applying  for civil/commercial employment.  

(d) …

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

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

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

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

categorisation of officers seeking PSS. Paragraph 4 provides thus:

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

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

(b) Below  ten  years  of  commissioned  service,  an  officer should be discouraged as far as possible as even the cost of training would not have been recovered in full.

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

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

(e) With  the  implementation  of  the  AVSC II  proposals,  an officer  would  have  a  fairly  clear  picture  of  his  career prospects by about 20-22 years of commissioned service, as select grade would eventually start at 17.5/19.5 years for flying / ground duty branches respectively. Therefore, allowing  superseded  officers  of  separate  from  service beyond about 21 years would allow for better promotion ratios and at the same time allow superseded officers to seeks  avenues in  the  civil  sector  at  a  relatively  young age.”

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Paragraph 5 classifies officers seeking PSS into four categories:

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

who have been Permanently Passed Over (PPO);

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

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

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

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

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

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

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

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

applications. Paragraph 15 provides that applications for separation from service

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

request  will  not  be  considered  before  a  lapse  of  one  year  from  the  non-

acceptance  of  the  previous  application  by  the  Board  of  Officers  unless  the

grounds  have  changed  substantially.  Paragraph  17  contemplates  that  one

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

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

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

18

Paragraph 18 of the policy indicates that:  

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

permitted only by way of an exception;  

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

grounds”;  

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

withdraw the request; and

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

proposed date of PSS.  

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

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

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

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

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

no withdrawal from PSS is permitted where an officer has undergone the 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 for

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

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

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

PSS once it has been approved.

19

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

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

20 is in the following terms:

“20. Seeking PSS is an important decision in the career of an officer.  At  the  Personnel  Branch,  no  efforts  are  spared  to ensure that individual aspirations are favourably considered. However,  service  requirements/interests  remain  paramount and  cannot  be  overlooked.  The  intent  of  this  HRP  is  to provide on all related aspects regarding PSS to an officer at a critical juncture of his service.”  

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

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

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

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

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

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

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

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

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

prescriptions contained in the Rules.  

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

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

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

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

rationale  which  underlies  Article  33  of  the  Constitution  which  empowers

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

20

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

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

maintenance of discipline.11

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

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

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

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

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

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

contained in the Human Resource Policy must be evaluated.  

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

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

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

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

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

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

of individual aspirations and the interests of the service.  

26 The  policy  has  enunciated  comprehensive  guidelines  for  premature

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

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

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

21

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

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

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

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

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

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

Significant  among  them  is  the  need  to  counsel  individual  officers  after

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

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

Command  Headquarters  have  to  be  annotated  while  forwarding  the  case  for

consideration to the Air Headquarters.  

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

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

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

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

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

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

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

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

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

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

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

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

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

22

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

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

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

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

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

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

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

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

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

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

been provided to another officer of the Air Force.  

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

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

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

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

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

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

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

sensitive appointments.  

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

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

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

23

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

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

compassionate  grounds”.  Paragraph  18  contemplates  that  a  request  for

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

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

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

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

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

request for a withdrawal.

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

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

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

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

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

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

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

employee  for  severance  becomes  effective  only  upon  its  acceptance  by  the

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

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

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

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

so stipulated.

24

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

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

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

government servant whose severance from service requires acceptance (and is

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

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

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

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

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

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

Constitution Bench held thus:  

“50. It will bear repetition that the general principle is that in the  absence  of  a  legal  contractual  or  constitutional  bar,  a ‘prospective’ resignation can be withdrawn at any time before it  becomes  effective,  and  it  becomes  effective  when  it operates to terminate the employment or the office tenure of the  resigner.  This  general  rule  is  equally  applicable  to government servants and constitutional functionaries. In the case  of  a  government  servant/or  functionary/who  cannot, under  the  conditions  of  his  service/or  office,  by  his  own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and  his  service/or  office  tenure  terminated,  when  it  is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to  resign  his  office,  his  resignation  becomes  effective  and tenure  terminated  on  the  date  from which  he,  of  his  own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the  resignation  terminates  his  office  tenure  forthwith,  and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of  resigning office is  not  complete because it  does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it

12 (1978) 2 SCC 301

25

was  intended  to  be  effective,  withdraw  it,  because  the Constitution does not bar such withdrawal.”

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

where it was held that:

“12. In this case the guidelines are that ordinarily permission should not  be granted unless the officer  concerned is  in  a position to show that there has been a material change in the circumstances  in  consideration  of  which  the  notice  was originally given. In the facts of the instant case such indication has  been  given.  The  appellant  has  stated  that  on  the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If,  however,  the administration had made arrangements acting on his resignation or letter of retirement to make other  employee  available  for  his  job,  that  would  be another  matter but  the  appellant's  offer  to  retire  and withdrawal of the same happened in such quick succession that  it  cannot  be  said  that  any  administrative  set-up  or arrangement was affected...”        (Emphasis supplied)

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

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

arrangements  acting  on  the  resignation  or  letter  to  make  another  employee

available for the job.   

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

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

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

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

26

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

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

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

be decided taking into account the pensionary recommendations of the Fourth

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

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

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

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

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

prematurely at his own request from 31 August 1986.  

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

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

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

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

Headquarters accepted his original application and communicated the decision to

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

Court held that:  

“8…On  the  other  hand,  not  only  the  acceptance  of  the request by the headquarters, the appropriate authority,  was said to have been made only on 20-2-1986, a day after the respondent withdrew his request for premature retirement but even such acceptance in this case was to be effective from a future date namely 31-8-1986. Consequently, it could not be legitimately contended by the appellants that there was any cessation of the relationship of master and servant between the Department and the respondent at any rate before 31-8- 1986. While that be the position inevitably the respondent had a right  and was entitled to  withdraw or  revoke his  request earlier  made  before  it  ever  really  and  effectively  became effective.”

27

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

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

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

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

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

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

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

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

resignation  before  the  date  on  which  the  resignation  could  have  become

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

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

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

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

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

distinguishable.  

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

Swarnakar13 dealt with the voluntary retirement scheme of nationalised banks.

Clauses 10.5 and 10.6 of the scheme provided thus:

"10.5. It will not be open for an employee to withdraw the request made for voluntary retirement under the Scheme after having exercised such option.

10.6.  The  competent  authority  shall  have  absolute discretion  either  to  accept  or  reject  the  request  of  an employee seeking voluntary retirement under the Scheme depending  upon  the  requirement  of  the  Bank.  The reasons for rejection of request of an employee seeking

13 (2003) 2 SCC 721

28

voluntary retirement  shall  be recorded in  writing by  the competent  authority.  Acceptance  or  otherwise  of  the request of an employee seeking voluntary retirement will be communicated to him in writing.”

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

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

Parthasarathy (supra) and held thus:

“113. The submission of the learned Attorney-General that as soon as an offer is made by an employee, the same would  amount  to  resignation  in  praesenti  cannot  be accepted. The Scheme was in force for a fixed period. A decision by the authority was required to be taken and till a decision was taken,  the jural  relationship of  employer and employee continued and the employees concerned would have been entitled to payment of all salaries and allowances etc. Thus it cannot be said to be a case where the offer was given in praesenti but the same would be prospective in nature keeping in view of  the fact  that  it was come into force at a later date and that too subject to acceptance thereof by the employer. We, therefore, are of the opinion that the decisions of this Court, as referred to hereinbefore, shall apply to the facts of the present case also.”

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

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

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

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

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

employee  has  a  locus  poenitentiae  to  withdraw  the  proposal  for  voluntary

retirement before the date of retirement is reached.  

14 (1998) 9 SCC 559.

29

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

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

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

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

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

premature  severance  of  service  conditioned  the  right  of  withdrawal  to  the

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

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

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

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

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

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

conditioning the right to withdraw.    

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

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

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

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

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

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

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

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

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

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

30

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

Wing Commander Subrata Das, it has been stated :  

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

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

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

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

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

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

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

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

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

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

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

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

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

to be faulted.  

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

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

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

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

31

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

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

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

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

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

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

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

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

indicated earlier.  

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

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

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

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

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

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

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

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

applicable  norms,  rules  and  regulations  governing  discipline  and  efficiency

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

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

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

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

reasons which we have indicated above.

32

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

be no order as to costs.

        ………...…....................................................J

                           [Dr DHANANJAYA Y CHANDRACHUD]

.…..........……...............................................J  [HEMANT GUPTA]

New Delhi; January 29, 2019.