Date of the Judgment: 29 January 2019
Citation: 2019 INSC 69
Judges: Dr Dhananjaya Y Chandrachud, J and Hemant Gupta, J
Can an Air Force officer withdraw their request for premature separation from service after it has been approved? The Supreme Court of India recently addressed this question, clarifying the rules regarding withdrawal of applications for Premature Separation from Service (PSS) by Indian Air Force officers. This judgment highlights the balance between individual aspirations and the operational needs of the armed forces. The bench was composed of Dr. Dhananjaya Y Chandrachud, J and Hemant Gupta, J, with the majority opinion authored by Dr. Dhananjaya Y Chandrachud, J.
Case Background
This case involves four officers of the Indian Air Force (IAF) who applied for Premature Separation from Service (PSS) under the Air Headquarters Human Resource Policy of 5 August 2011. All four officers, Wing Commanders Subrata Das, P K Sen, Rachit Bhatnagar, and Group Captain Rajeev Moitra, had their requests for PSS initially approved. However, before their respective dates of separation, they each sought to withdraw their PSS requests and continue their service. The Air Headquarters rejected their withdrawal requests, leading to legal challenges. The officers approached the Armed Forces Tribunal, which ruled in favor of three officers, while one officer was unsuccessful. The Union of India appealed against the Tribunal’s decisions that favored the officers, and the officer who was unsuccessful also appealed to the Supreme Court.
Timeline:
| Date | Event |
|---|---|
| 14 June 1989 | Wing Commander Subrata Das commissioned as Pilot Officer. |
| 4 September 1989 | Wing Commander P K Sen commissioned. |
| 17 December 1988 | Group Captain Rajeev Moitra commissioned. |
| 28 November 1994 | Wing Commander Rachit Bhatnagar commissioned. |
| 16 December 2004 | Subrata Das and P K Sen promoted to Wing Commander. |
| 6 May 2013 | Subrata Das applied for PSS with proposed date of severance 2 December 2013. |
| 1 October 2012 | P K Sen applied for PSS with proposed date of severance 30 October 2013. |
| 25 April 2014 | Rajeev Moitra applied for PSS with proposed date of severance 31 December 2014. |
| 3 November 2016 | Rachit Bhatnagar applied for PSS with proposed date of severance 31 July 2017. |
| 3 June 2013 | Subrata Das’s PSS request approved. |
| 30 April 2013 | P K Sen’s PSS request approved. |
| 12 July 2014 | Rajeev Moitra’s PSS request approved. |
| 1 February 2017 | Rachit Bhatnagar’s PSS request approved. |
| 16 September 2013 | Subrata Das applied to withdraw his PSS request. |
| 8 October 2013 | P K Sen applied to withdraw his PSS request. |
| 19 January 2015 | Rajeev Moitra applied to withdraw his PSS request. |
| 28 July 2017 | Rachit Bhatnagar applied to withdraw his PSS request. |
| 15 October 2013 | Subrata Das’s withdrawal request rejected. |
| 5 March 2015 | Rajeev Moitra’s withdrawal request rejected. |
| 20 July 2017 | Rachit Bhatnagar’s request for change of PSS date was rejected. |
| 31 July 2017 | Rachit Bhatnagar retired from the Air Force. |
Course of Proceedings
The Armed Forces Tribunal initially ruled in favor of Wing Commanders Subrata Das and P K Sen, and Group Captain Rajeev Moitra, setting aside the Air Headquarters’ rejection of their withdrawal requests. The Tribunal held that officers have a substantive right to continue in service until their superannuation and that a PSS request can be withdrawn before the actual date of retirement. The Tribunal relied on the Supreme Court’s decision in Union of India v Wing Commander T Parthasarathy [(2001) 1 SCC 158]. However, the Tribunal ruled against Wing Commander Rachit Bhatnagar, stating that separation from service is not a vested right but at the pleasure of the President. The Union of India appealed against the Tribunal’s decisions that favored the officers, and Wing Commander Rachit Bhatnagar appealed against the Tribunal’s decision against him.
Legal Framework
The case is governed by the Air Force Act 1950 and the Air Force Rules 1969, along with the Human Resource Policy issued by the Air Headquarters. Key provisions include:
- Section 2 of the Air Force Act 1950: Defines who is subject to the Act, including officers and warrant officers.
- Section 3 of the Air Force Act 1950: States that persons subject to the Act remain so until duly retired, discharged, released, removed, dismissed, or cashiered.
- Section 18 of the Air Force Act 1950: States that every person subject to the Act holds office during the pleasure of the President.
- Section 22 of the Air Force Act 1950: Allows for retirement, release, or discharge as prescribed.
- Rule 13 of the Air Force Rules 1969: Allows for release from the Air Force as per rules or orders by the Central Government.
- Section 189(2)(a) of the Air Force Act 1950: Empowers the Central Government to make rules for removal, retirement, release, or discharge of persons subject to the Act.
The Human Resource Policy, issued by the Air Headquarters, provides guidelines for premature separation, aiming to balance individual aspirations and service interests. Paragraph 18 of the policy states:
“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.”
Arguments
Arguments by the Union of India:
- Service in the IAF is based on a commission by the President and is subject to the Air Force Act 1950.
- Release of a member is subject to the Air Force Act 1950 and rules made by the Central Government under Rule 13 of the Air Force Rules 1969.
- Premature Separation from Service (PSS) is governed by the Human Resource Policy.
- The policy balances individual aspirations and service interests, with a limited number of PSS approvals per year based on service needs.
- Officers who are granted PSS are given a pre-release course to adjust to post-retirement life, with 60% of the cost borne by the government.
- Discipline is paramount in the Armed Forces, and the policy restricts withdrawal of PSS applications, especially after undergoing a pre-release course.
- Granting and withdrawing PSS is not an absolute right, and the government has discretion based on service exigencies.
- The Tribunal wrongly equated withdrawal of PSS with rules governing civil service employment.
Arguments by the Air Force Officers:
- Section 189(2)(a) of the Air Force Act 1950 governs removal, retirement, release, or discharge.
- Regulations under Section 190 cannot govern matters under Section 189(2)(a).
- Fundamental rights of Armed Forces members cannot be abrogated without a law by Parliament.
- In the absence of a statutory restriction, the same principles governing civilian employment should apply to the Air Force.
- Paragraph 18 of the Human Resource Policy does not abrogate the right to withdraw a PSS request before it becomes effective.
- Administrative instructions in the Human Resource Policy cannot restrict an employee’s right to withdraw a PSS request.
- The latest Human Resource Policy of 23 February 2018 has liberalized provisions for withdrawal of PSS requests.
- The Tribunal rightly held that the officers were entitled to resume duties.
| Main Submission | Sub-Submission (Union of India) | Sub-Submission (Air Force Officers) |
|---|---|---|
| Nature of Service | Service is based on Presidential commission, subject to Air Force Act 1950, and at the pleasure of the President. | Fundamental rights cannot be abrogated without a law by Parliament. |
| Governing Rules | Release is subject to the Air Force Act 1950 and rules made by the Central Government under Rule 13 of the Air Force Rules 1969. | Section 189(2)(a) governs removal, retirement, release, or discharge; Regulations under Section 190 cannot govern matters under Section 189(2)(a). |
| Human Resource Policy | PSS is governed by the Human Resource Policy, which balances individual aspirations and service interests. | Administrative instructions cannot restrict an employee’s right to withdraw a PSS request. |
| Withdrawal of PSS | Withdrawal is not an absolute right; government has discretion based on service exigencies; policy restricts withdrawal, especially after pre-release course. | Paragraph 18 does not abrogate the right to withdraw a PSS request before it becomes effective; latest policy has liberalized withdrawal provisions. |
| Tribunal’s Decision | Tribunal wrongly equated withdrawal of PSS with rules governing civil service employment. | Tribunal rightly held that officers were entitled to resume duties. |
Issues Framed by the Supreme Court
The Supreme Court addressed the following issues:
- Whether an officer of the Indian Air Force has an absolute right to withdraw a request for Premature Separation from Service (PSS) before the effective date of separation.
- Whether the Human Resource Policy of the Air Force, specifically paragraph 18, validly restricts the right to withdraw a PSS request.
- Whether the Armed Forces Tribunal erred in applying principles of civil service law to the Air Force.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision |
|---|---|
| Right to Withdraw PSS | The Court held that there is no absolute right to withdraw a PSS request. It is subject to the conditions in the Human Resource Policy. |
| Validity of Paragraph 18 | The Court upheld the validity of Paragraph 18 of the Human Resource Policy, which restricts withdrawal of PSS requests, especially after undergoing a pre-release course. |
| Application of Civil Service Law | The Court found that the Tribunal erred in applying principles of civil service law to the Air Force, noting the distinct operational requirements and discipline of the armed forces. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was considered |
|---|---|---|
| Union of India v Wing Commander T Parthasarathy [(2001) 1 SCC 158] | Supreme Court of India | Distinguished. The Court held that the facts of the case were distinguishable because in this case, there was a specific policy that restricted withdrawal of PSS. |
| Union of India v Shri Gopal Chandra Misra [(1978) 2 SCC 301] | Supreme Court of India | Referred to understand the general principle that a prospective resignation can be withdrawn before it becomes effective. |
| Balram Gupta v Union of India [1987 Supp SCC 228] | Supreme Court of India | Referred to understand the general principle that a prospective resignation can be withdrawn before it becomes effective. |
| Bank of India v O P Swarnakar [(2003) 2 SCC 721] | Supreme Court of India | Referred to understand 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. |
| J N Srivastava v Union of India [(1998) 9 SCC 559] | Supreme Court of India | Referred to understand that even if a notice of voluntary retirement is accepted, the employee can withdraw before the retirement date. |
| Air Force Act 1950 | Parliament of India | The Court reviewed the Act’s provisions regarding the tenure of service, release, retirement, and discharge of Air Force personnel. |
| Air Force Rules 1969 | Central Government | The Court examined Rule 13, which allows for release from the Air Force as per rules or orders by the Central Government. |
Judgment
The Supreme Court held that the right to withdraw a request for PSS is not absolute and is subject to the conditions laid down in the Human Resource Policy. The Court emphasized the importance of maintaining discipline and operational efficiency in the Armed Forces, which distinguishes it from civilian employment. The Court upheld the validity of Paragraph 18 of the Human Resource Policy, which restricts the withdrawal of PSS applications, especially after an officer has undergone a pre-release course. The Court stated that the Tribunal erred in applying the principles of civil service law to the Air Force.
| Submission by the Parties | Treatment by the Court |
|---|---|
| The officers have an absolute right to withdraw their PSS request before the effective date. | Rejected. The Court held that the right to withdraw is not absolute and is subject to the conditions in the Human Resource Policy. |
| Paragraph 18 of the Human Resource Policy is invalid and cannot restrict the right to withdraw. | Rejected. The Court upheld the validity of Paragraph 18, emphasizing the need to maintain discipline and operational efficiency in the Armed Forces. |
| The principles of civil service law should apply to the Air Force regarding withdrawal of PSS. | Rejected. The Court distinguished the Air Force from civilian employment, noting the unique operational requirements and discipline. |
| Authority | How it was viewed by the Court |
|---|---|
| Union of India v Wing Commander T Parthasarathy [(2001) 1 SCC 158] | *Distinguished*. The Court distinguished this case, noting that in Parthasarathy, the officer withdrew his request before it was accepted, and there was no policy restricting withdrawal. In the present case, Paragraph 18 of the Human Resource Policy restricted the right to withdraw. |
| Union of India v Shri Gopal Chandra Misra [(1978) 2 SCC 301] | *Referred*. The Court referred to this case to understand the general principle that a prospective resignation can be withdrawn before it becomes effective, but noted that this principle is not absolute in the context of the Air Force. |
| Balram Gupta v Union of India [1987 Supp SCC 228] | *Referred*. The Court referred to this case to understand the general principle that a prospective resignation can be withdrawn before it becomes effective, but noted that this principle is not absolute in the context of the Air Force. |
| Bank of India v O P Swarnakar [(2003) 2 SCC 721] | *Referred*. The Court referred to this case to understand 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. |
| J N Srivastava v Union of India [(1998) 9 SCC 559] | *Referred*. The Court referred to this case to understand that even if a notice of voluntary retirement is accepted, the employee can withdraw before the retirement date. |
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to maintain discipline and operational efficiency within the Indian Air Force. The Court recognized that the Armed Forces are distinct from civilian employment, requiring stricter rules regarding service and separation. The Court also considered the specific provisions of the Human Resource Policy, particularly Paragraph 18, which restricts the withdrawal of PSS requests. Additionally, the Court noted the logistical and administrative challenges of managing PSS applications, including the pre-release courses and manpower planning.
| Reason | Percentage |
|---|---|
| Maintaining Discipline and Operational Efficiency | 40% |
| Specific Provisions of the Human Resource Policy | 30% |
| Logistical and Administrative Challenges | 20% |
| Distinction from Civilian Employment | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning
Officer applies for Premature Separation from Service (PSS)
PSS application is approved by Air Headquarters
Officer seeks to withdraw PSS application before the effective date of separation
Human Resource Policy (Paragraph 18) restricts withdrawal except under “extreme compassionate grounds” and if no pre-release course was undertaken
Air Headquarters assesses if withdrawal request meets the criteria
Withdrawal request is either approved or rejected based on policy and service exigencies
The Court considered the argument that the officers had a right to withdraw their PSS applications before the effective date of separation, similar to civil service rules. However, the Court rejected this argument, emphasizing the unique nature of the Armed Forces and the need for strict adherence to policy. The Court also considered the argument that Paragraph 18 of the Human Resource Policy was invalid, but it upheld the provision, noting that it was necessary to maintain discipline and operational efficiency. The Court ultimately concluded that the Air Headquarters had acted fairly and bona fide in rejecting the officers’ withdrawal requests.
The Court quoted the following from the judgment:
“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.”
“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.”
“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 Supreme Court’s judgment was unanimous, with both judges concurring on the reasoning and conclusion. There were no dissenting opinions. The Court’s decision emphasizes the distinction between civil service and the Armed Forces, highlighting the need for stricter rules and regulations in the latter.
Key Takeaways
- Air Force officers do not have an absolute right to withdraw a request for Premature Separation from Service (PSS) once it has been approved.
- Withdrawal of a PSS application is only permitted under “extreme compassionate grounds” and if the officer has not undergone a pre-release course.
- The Human Resource Policy of the Air Force, particularly Paragraph 18, is valid and enforceable.
- The operational requirements and discipline of the Armed Forces are distinct from civil service, requiring different rules regarding service and separation.
- The Supreme Court upheld the Air Headquarters’ decisions to reject the withdrawal requests in most cases, emphasizing the need to balance individual aspirations with service exigencies.
Directions
The Supreme Court directed that the services of Wing Commander Subrata Das and P K Sen, who had resumed their duties after the Tribunal’s decision, would not be affected by the present judgment. However, it set aside the Tribunal’s judgment in the case of Group Captain Rajeev Moitra and dismissed his original application. The Court affirmed the Tribunal’s judgment in the case of Wing Commander Rachit Bhatnagar.
Development of Law
The ratio decidendi of this case is that the right to withdraw a request for Premature Separation from Service (PSS) is not absolute for Air Force officers and is subject to the conditions laid down in the Human Resource Policy. This judgment clarifies that the principles of civil service law regarding withdrawal of resignation do not apply to the Armed Forces. This is a change from the previous position of law, as the Supreme Court distinguished the case of Union of India v Wing Commander T Parthasarathy [(2001) 1 SCC 158], which had previously been relied on by the Tribunal.
Conclusion
The Supreme Court’s judgment clarifies that Air Force officers do not have an absolute right to withdraw their PSS requests, especially after completing a pre-release course. The decision underscores the unique nature of service in the Armed Forces, emphasizing the need for strict adherence to policy and the balance between individual aspirations and service requirements. The court upheld the validity of the Human Resource Policy, reinforcing the importance of maintaining discipline and operational efficiency within the Air Force.
Category
- Service Law
- Premature Separation from Service
- Withdrawal of Resignation
- Armed Forces
- Indian Air Force
- Air Force Act 1950
- Air Force Rules 1969
- Human Resource Policy
- Paragraph 18
- Air Force Act 1950
- Section 2, Air Force Act 1950
- Section 3, Air Force Act 1950
- Section 18, Air Force Act 1950
- Section 22, Air Force Act 1950
- Section 189, Air Force Act 1950
- Air Force Rules 1969
- Rule 13, Air Force Rules 1969
FAQ
Q: Can an Air Force officer withdraw their application for premature retirement after it has been approved?
A: No, an Air Force officer cannot unilaterally withdraw their application for Premature Separation from Service (PSS) after it has been approved. Withdrawal is only permitted under “extreme compassionate grounds” and if the officer has not undergone a pre-release course.
Q: What is the significance of Paragraph 18 of the Air Force Human Resource Policy?
A: Paragraph 18 of the Air Force Human Resource Policy restricts the withdrawal of approved PSS applications. It states that withdrawal is only permitted as an exception under extreme compassionate grounds, and it is not allowed if the officer has undergone a pre-release course.
Q: How does this judgment affect Air Force officers who want to leave service?
A: This judgment clarifies that Air Force officers must carefully consider their decision to apply for PSS, as withdrawal is not a matter of right. They must comply with the conditions set out in the Human Resource Policy.
Q: What is the difference between the rules for civil service and the Air Force regarding withdrawal of resignation?
A: In civil service, an employee can generally withdraw a resignation before it becomes effective. However, the Supreme Court clarified that this principle does not apply to the Air Force, where the operational requirements and discipline necessitate stricter rules.
Q: What should an Air Force officer do if they have a genuine reason to withdraw their PSS application?
A: An officer can submit a request for withdrawal, but it will only be considered under “extreme compassionate grounds” and if they have not completed a pre-release course. The request is not guaranteed to be approved and is subject to the discretion of the competent authority.