Holding

The right to withdraw an approved PSS application is not absolute and may be permitted only as an exception on extreme compassionate grounds; the Tribunal's orders allowing withdrawal were erroneous.

Summary

Four Indian Air Force officers were granted Premature Separation from Service (PSS) under the Air Force Human Resource Policy, subsequently withdrew their requests and sought to continue in service. The Air Headquarters rejected their withdrawal applications, citing Paragraph 18 of the policy which permits withdrawal only as an exception on extreme compassionate grounds and bars officers who have undertaken a pre‑release course. The officers appealed to the Armed Forces Tribunal, which allowed three of them to resume service, a decision the Union of India challenged. The Supreme Court held that the right to withdraw an approved PSS is not absolute, must be permitted by the competent authority under the policy, and the Tribunal erred in setting aside the rejection. Consequently, the Court set aside the Tribunal’s orders for the three officers, affirmed the order for the fourth, and directed that the services of the two officers taken back into service remain unaffected.

Issues considered

The permissibility of withdrawing an approved Premature Separation from Service application under the Air Force Human Resource Policy.
Whether Paragraph 18 of the Human Resource Policy creates a statutory restriction on withdrawal of PSS.
The jurisdiction and correctness of the Armed Forces Tribunal's decisions allowing withdrawal.
The applicability of the Air Force Act, 1950 and related rules to the withdrawal of PSS.
The effect of the Supreme Court's judgment on the service status of the officers.

Legislation cited

Air Force Act, 1950s. 10, s. 18, s. 19, s. 22, s. 2(a), s. 2(b), s. 2(c), s. 2(d), s. 3
Air Force Rules, 1969s. Rule 13
Constitution of Indias. Article 142, s. Article 33
Section 189 of the Air Force Act, 1950
Section 190 of the Air Force Act, 1950

Subjects

Premature Separation from ServiceWithdrawal of PSSAir Force ActArmed Forces TribunalService lawExtreme compassionate groundsArticle 33Article 142Human Resource PolicyMilitary discipline

Judgment

[2019] 1 S.C.R. 1035 1035

UNION OF INDIA THROUGH ITS SECRETARY, A
MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS.
v.
WG. CDR. SUBRATA DAS (19942-H)
(Civil Appeal No. 10953 of 2014) B
JANUARY 29, 2019
[DR. DHANANJAYA Y CHANDRACHUD
AND HEMANT GUPTA, JJ.]
Service Law:
C
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
D
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 E
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
F
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 – G
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.
H
1035
1036 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B 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
C
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
D
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
E 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
F 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
G
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
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1037
SUBRATA DAS (19942-H)

stipulates that a person subject to the Act may be released from A
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]
B
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
C
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 D
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
E
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 F
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 G
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
H
1038 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
provided to another officer of the Air Force. [Para 28][1056-C-
D]
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
C 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
D 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-G-
H; 1057-A]
E 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
F 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
G
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
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1039
SUBRATA DAS (19942-H)

the Human Resource Policy. Para 18 makes it abundantly clear A
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
B
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 C
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 D
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] E
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 F
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]
G
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, H
1040 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
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]
C 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.
D
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
E [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
F
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
G
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,
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1041
SUBRATA DAS (19942-H)

Kahorngam Zimik, Ajai Bhalla, Anil Kumar Tandale, Sridhar Potaraju, A
Rabin Majumder, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J. 1. Delay
condoned.
B
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 C
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. D
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 E
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 F
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 G
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 H
1042 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
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:
C
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
D 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
E 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
F 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
G 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
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1043
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

by him for a change in the date of severance, the date of PSS was A
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
B
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 C
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 D
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 E
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 F
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.
G
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
H
1044 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
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
C 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.
D 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
E 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
F 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
G 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
H 10
(2002) 3 SCC 437
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1045
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

separation from service of a commissioned officer is not a vested right A
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
B
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.
C
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 D
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; E
(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 F
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 G
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
H
1046 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B 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
C 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
D 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
E 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
F 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
G
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
H between service in the civilian wing and in the Armed Forces.
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1047
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

12. On the other hand, learned Counsel representing the officers A
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 B
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 C
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 D
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 E
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.
F
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 G
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).
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1048 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B 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:-
C (a) officers and warrant officers of the Air Force;
(b) persons enrolled under this Act;
(c) persons belonging to the Regular Air Force Reserve or the Air
Defence Reserve or the Auxiliary Air Force, in the circumstances
D 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
E
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
F 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
G 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.”
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1049
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

15. Section 19 empowers the Central government to dismiss or A
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 B
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 C
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.” D
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: E
“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- F
(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. G
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
H
1050 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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,
B 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.”
C
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)
D 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
E 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
F 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
G 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
H interviews/counselling conducted by them.
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1051
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

(c) Better Employment in Civil Life. If a service officer applies A
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
B
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 C
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 D
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.” E
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: F
“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, G
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:-
H
1052 SUPREME COURT REPORTS [2019] 1 S.C.R.

A (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.
B (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,
C 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
D 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
E 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;
F
(iii) Officers between 10 and 21 years of commissioned service;
and
(iv) Officers with less than 10 years of commissioned service.
21. Paragraph 6 envisages the constitution of the Board of Officers
G 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
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1053
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

applications for separation from service by officers with less than 21 A
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
B
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 C
to withdraw). The officer would be debarred from submitting a
fresh application for one year from his proposed date of PSS.”
Paragraph 18 of the policy indicates that:
(i) A request for withdrawal of a PSS application which has been D
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 E
(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 F
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, G
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.
H
1054 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B 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
C 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
D 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.
E 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
F 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.11
11
“33. Parliament may, by law, determine to what extent any of the rights conferred by
G 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.”
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1055
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

24. Entry into and departure from the service of the Air Force is A
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
B
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 C
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 D
premature separation. It defines the grounds on which premature
separation can be contemplated. It lays down a categorisation of officers
based onthe length of 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 E
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 F
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 manninglevels and the operational G
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 H
1056 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
with less than 21 years of service and officers with 21 to 24 years of
service. The timeline which is embodied in the policy contemplates that
an officer would be given a sufficient period of approximately ninemonths
to apply for PSS and to retire with full benefits. During this period, the
officer can prepare for the future.
C 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
D 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
E 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
F 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 conditions the withdrawal of an approved PSS
G 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
H a matter of right. A withdrawal can be permitted by the competent authority
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1057
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

only by way of “exception” and on “extreme compassionate grounds”. A
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, B
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 C
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. D
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 E
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 dateto
withdraw the resignation before it becomes effective on the prospective F
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 G
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
12
(1978) 2 SCC 301 H
1058 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
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
C 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
was intended to be effective, withdraw it, because the Constitution
does not bar such withdrawal.”
D
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
E 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
F 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
G 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)
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1059
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

The above observations indicate that the unrestrained choice of A
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). B
The judgment merits a close analysis. In that case, the respondent was
aWing Commander in the Indian Air Force and submitted an application
on 21 July 1985 for premature 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 C
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 D
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 E
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: F

“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. G
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 H
1060 SUPREME COURT REPORTS [2019] 1 S.C.R.

A his request earlier made before it ever really and effectively
became effective.”
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
B 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
C 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
D 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:
E “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
F retirement under the Scheme depending upon the requirement of
the Bank. The reasons for rejection of request of an employee
seeking 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
G 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:
13
(2003) 2 SCC 721
H
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1061
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

“113. The submission of the learned Attorney-General that as soon A
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
B
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 C
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
exgratia payment, they could not be permitted to approbate or reprobate
or resile from their earlier stand. Similarly, the judgment in J N Srivastava D
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.
E
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 F
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 G
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.

14
(1998) 9 SCC 559.
H
1062 SUPREME COURT REPORTS [2019] 1 S.C.R.

A 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
B
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
C relied on by the 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
D 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.”
E 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
F 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
G 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
H decisions to reject the applications to withdraw from PSS in the present
UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. 1063
SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.]

cases were made bona fide. The authorities had applied their minds to A
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. We
B
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 C
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, D
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 E
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.
41. The civil appeals shall stand disposed of in the above terms. F
There shall be no order as to costs.

Kalpana K. Tripathy Appeals disposed of.

G

H