1. Officers sought premature separation from service under Human Resource Policy, subsequently requested withdrawal before the effective date, and challenged the rejection of such withdrawals. (Para 3 , 5 )
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2019 Supreme(SC) 350
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, HEMANT GUPTA, JJ.
UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF DEFENCE DHQPO, NEW DELHI & ORS. - APPELLANTS
Versus
WG. CDR. SUBRATA DAS (19942-H) - RESPONDENT
CIVIL APPEAL No. 10953 OF 2014, CIVIL APPEAL (D) No. 4575 OF 2017 WITH CIVIL APPEAL No. 2821 OF 2015 AND CIVIL APPEAL No. OF 2019 ARISING OUT OF DAIRY (C) No. 26814 OF 2018
Decided on : 29-01-2019
Important Points
IMPORTANT POINTS
Right to withdraw a request for PSS is neither absolute nor unconditional.
A fair and bona fide assessment Ought not be faulted.
Right to withdraw a request for PSS is neither absolute nor unconditional.
A fair and bona fide assessment Ought not be faulted.
Subject
Service Law - PREMATURE SEPARATION FROM SERVICE
Act Referred
HUMAN RESOURCE POLICY: Para.19, Para.8
Headnote
(a) Human Resource Policy 2011 – Paragraphs 8 and 19 – Premature separation from service (PSS) – Right to withdraw a request for PSS – Not absolute or unconditional – General principles of service law applicable to civil services not applicable to armed Forces – Paragraph 18 giving no unilateral right to the officers to withdraw application for PSS – a
1987 Supp SCC 228; (2002) 3 SCC 437; (1978) 2 SCC 301; (2003) 2 SCC 721; (1998) 9 SCC 559 – Referred
(2001) 1 SCC 158 – Distinguished
(b) Administration of justice – Judicial propriety – A fair and bona fide assessment – Ought not be faulted. (Para 38)
Facts of the case:
Each of the four officers of the Indian Air Force-Wing Commanders Subrata Das, P.K. Sen, Rachit Bhatnagar and Group Captain Rajeev Moitra sought a premature separation from service under the Human Resource Policy notified on 5 August 2011 by the Air Headquarters. Their requests for a Premature Separation from Service were allowed. Before the date stipulated for their separation from the Indian Air Force, 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.
The officers succeeded before the Tribunal in three of those proceedings, while the decision of the Air Headquarters was upheld in the fourth proceeding.
Finding of the Court:
Right to withdraw a request for PSS is neither absolute nor unconditional.
Result: Appeals disposed of.
Legal Category Hierarchy
Table of Contents
2. Whether the right to withdraw a premature separation request is absolute or subject to administrative policy and operational exigencies of the armed forces. (Para 11 , 12 )
3. Armed forces service differs from civil service due to discipline and operational requirements; specific policy provisions restricting withdrawal are valid and must be considered. (Para 23 , 24 , 28 , 29 , 30 , 31 , 34 , 36 , 37 , 38 )
4. Withdrawal of an approved premature separation request in the armed forces is not a unilateral right but is governed by the applicable Human Resource Policy. (Para 30 , 36 , 38 )
5. Tribunal orders allowing withdrawal of premature separation are set aside, except for officers already reinstated whose remaining tenure is protected under Article 142. (Para 39 , 40 )
6. Is the right to withdraw an approved application for premature separation from service in the Air Force absolute?
No. The right is not absolute or unconditional. Under the Human Resource Policy, withdrawal is permitted only as an exception under extreme compassionate grounds and is barred if the officer has undergone a pre-release course. (Para 21 , 30 )
7. Does the general principle of service law allowing withdrawal of prospective resignation in civil services apply to the Armed Forces?
No. The Armed Forces are governed by different rigours of discipline and operational efficiency. The need to maintain manning levels and prevent misuse of PSS to avoid sensitive appointments justifies restrictions not found in civilian employment. (Para 23 , 24 , 29 , 31 )
8. Does completing a pre-release course affect an officer's ability to withdraw a request for premature separation?
Yes. According to Paragraph 18 of the Human Resource Policy, an officer who has undergone a pre-release course is not permitted to withdraw their application for premature separation. (Para 21 , 30 )
9. Why is the principle in Union of India v Wing Commander T. Parthasarathy distinguishable from cases governed by the 2011 Human Resource Policy?
In Parthasarathy, no statutory provision or rule existed to impede the right to withdraw a prospective resignation. In contrast, the 2011 Policy contains specific restrictions in Paragraph 18 that govern the withdrawal process. (Para 33 , 34 )
JUDGMENT :
Dr Dhananjaya Y. Chandrachud, J.
1. Delay condoned.
2. Leave to appeal is granted.
3. This batch of appeals arises from proceedings initiated before the Armed Forces Tribunal[The Tribunal]. Each of the four officers of the Indian Air Force-Wing Commanders Subrata Das, P.K. Sen, Rachit Bhatnagar and Group Captain Rajeev Moitra sought a premature separation from service under the HUMAN RESOURCE POLICY [The HUMAN RESOURCE POLICY , Air HQ/988321/1/PO-5] notified on 5 August 2011 by the Air Headquarters. Their requests for a Premature Separation from Service[PSS] were allowed. Before the date stipulated for their separation from the Indian Air Force["IAF"], the officers withdrew their requests and sought to continue in service. The rejection of their plea to continue by the Air Headquarters led them to institute proceedings before the Tribunal.
4 The officers succeeded before the Tribunal in three of those proceedings[O.A. No. 425 of 2013, O.A. No. 467 of 2013 and O.A. No. 134 of 2015], while the decision of the Air Headquarters was upheld in the fourth proceeding[O.A. No. 1265 of 2017]. The Union of India is in appeal against the three decisions of the Tribunal allowing the requests made by the officers to withdraw from their applications for PSS and continue in service. Wing Commander Rachit Bhatnagar was unsuccessful in pursuing his remedy before the Tribunal and has filed a Civil Appeal questioning the decision.
5. The facts follow a similar trajectory. The facts relevant to each of the appeals are set out below :
(i) Civil Appeal 10953 of 2014 : Wing Commander Subrata Das:
The officer was commissioned on 14 June 1989 as Pilot Officer and was promoted to the rank of Wing Commander on 16 December 2004. On 6 May 2013, he applied for PSS with 2 December 2013 as the proposed date of severance. The ground on which he sought PSS was that he was Permanently Passed Over[PPO] by the Promotion Board. The request was accepted and communicated on 3 June 2013. The officer commenced a pre-release course at the International College of Financial Planning, New Delhi. At around the tenth week of the twelve-week course, he withdrew from the course and submitted an application to withdraw his request for PSS on 16 September 2013. The ground pleaded for withdrawing the application for PSS was acute domestic problems. The request was rejected on 15 October 2013. The officer is due to superannuate from the Air Force on 31 January 2019. He did not complete the pre-release course.
(ii) Civil Appeal 2821 of 2015 : Wing Commander P.K. Sen:
The officer was commissioned on 4 September 1989 and was promoted to the rank of Wing Commander on 16 December 2004. On 1 October 2012, he applied for PSS with 30 October 2013 as the proposed date of severance. He sought PSS on compassionate grounds and since he was Permanently Passed Over. The request for PSS was approved and communicated on 30 April 2013. The officer commenced a pre-release course at Amity Institute of Education and Training, Noida. The officer sought a change in the PSS date from 30 October 2013 to 3 January 2014. The request was rejected and he was informed on 18 October 2013. On 8 October 2013, he submitted an application to withdraw his request for PSS which was received on 24 October 2013. The officer sought to withdraw his application for PSS on the ground that he had not been able to obtain private placement in a volatile market and that he faced personal difficulties. Before a decision could be taken, the officer instituted proceedings before the Tribunal on 25 October 2013. The officer is due to superannuate from the Air Force on 31 January 2020. He completed the pre-release course.
(iii) Civil Appeal (D) No. 4575 of 2017 : Group Captain Rajeev Moitra:
The officer was commissioned on 17 December 1988 and was promoted to the rank of Group Captain on 17 December 2014. On 25 April 2014, he applied for PSS with 31 December 2014 as the proposed date of severance. He sought PSS on compassionate
