Service Law:
Premature Separation from Service (PSS) – Application for – Withdrawal – Permissibility – Request by appellants (four officers) for PSS was allowed – They underwent pre-release course – Application for withdrawal of PSS rejected – Challenged the rejection order in Armed Forces Tribunal – Three officers succeeded before the Tribunal while one officer was not successful – Two of the officers were taken back in service pursuant to the order of Tribunal and order of the Tribunal in respect of one officer was stayed – On appeal, Held: As a member of Armed Force, those who are subject to the provisions Air Force Act, 1950 are governed by the rigour and discipline of the Force – The tenure of service of every person subject to the Act is during the pleasure of the President – Matters of retirement, release or discharge are governed by the Rules – The Human Resource Policy (under which PSS was sought) is formulated in pursuance of the powers delegated to the Air Headquarters by the Ministry of Defence – Para 18 of the policy conditions that the withdrawal of an approved PSS can be permitted only as an exception and under “extreme compassionate grounds” – Withdrawal of PSS is not unilateral and is subject to permission – Thus the right to withdraw a request for PSS from an armed force is not absolute or unconditional – On facts, the decision rejecting the application for withdrawal from PSS was bona fide and correct – However, in exercise of power u/Art. 142 it is directed that the service of two officers who were taken back in service shall not be affected by the present judgment – Air Force Act, 1950 – s. 2(a) to (d) – Air Force Rule, 1969 – r. 13 – Constitution of India – Arts. 33 and 142. Disposing of the appeals, the Court
HELD: 1. The provisions of the Air Force Act 1950 govern the persons who are subject to it. Clauses (a) to (d) of Section 2 define the categories to whom the Act applies. Once a person is subject to the Act, its provisions continue to govern them until the individual is duly retired, discharged, released, removed, dismissed or cashiered from the service under the provisions of the Act. Induction into the service under Section 10 is upon the grant of commission as an officer by the President or by appointment as a warrant officer of the Air Force. The tenure of service of every person subject to the Act is during the pleasure of the President. Matters of retirement, release or discharge from service are governed by the prescriptions contained in the Rules. [Para 22][1054-C-E]
2. The provisions of the Air Force Act 1950 are a necessary concomitant of the intent of Parliament to establish the Air Force as an armed force of the Union. As members of an Armed Force, those who are subject to the provisions of the Act are governed by the rigour and discipline of the Force. Indeed, that is the rationale which underlies Article 33 of the Constitution which empowers Parliament by law to restrict or abrogate the provisions of Part III in their application inter alia to the members of the Armed Forces. The purpose of these restrictions is to ensure the proper discharge of duties and the proper maintenance of discipline. [Para 23][1054-E-F]
3. Entry into and departure from the service of the Air Force is in terms of the above provisions and is not a matter which lies at the sweet will of a member of the Air Force. The provisions contained in the Act for commissioning, tenure and cessation of service reflect the need to maintain the discipline and efficiency of the Air Force. The organisational efficiency of the Armed Forces of the Union is of paramount importance. It is in this background that the provisions which are contained in the Human Resource Policy must be evaluated. [Para 24][1055-A-B]
4. The Human Resource policy has been formulated in pursuance of the powers delegated to the Air Headquarters by the Ministry of Defence. Rule 13 of the Air Force Rules 1969 stipulates that a person subject to the Act may be released from the Air Force in accordance with the rules, orders or instructions made by or under the authority of the Central Government. The Human Resource Policy which was notified on 2 August 2011 seeks to bring about a convergence of individual aspirations and the interests of the service. [Para 25][1055-C]
5. The policy has enunciated comprehensive guidelines for premature separation. It defines the grounds on which premature separation can be contemplated. It lays down a categorisation of officers based on the length of years of service for considering applications for Premature Separation from Service (PSS). It enunciates the manner in which their proposals would be evaluated. The policy contemplates a Board of Officers to consider requests for PSS in the months of March and September every year. The policy enunciates a time schedule for the submission of applications and of the modalities to be followed in the issuance of release orders. The policy defines the manner in which PSS applications are processed. Significant among them is the need to counsel individual officers after ascertaining the full details of each case, while keeping current manning constraints in mind. Details of the interview and recommendations of the Command Headquarters have to be annotated while forwarding the case for consideration to the Air Headquarters. [Para 26][1055-D-F]
6. The number of officers who are granted PSS in a year is restricted in order not to upset the manning levels and the operational efficiency of the Air Force. Hence, while attempting to balance the genuine aspirations of the members of the Air Force and their personal difficulties, the number of officers to be granted PSS is computed on the basis of various factors such as induction, superannuation and other exits from the Air Force. This exercise requires the collection and gathering of data relating to inductions, rank wise surplus and deficiencies in each branch and stream from the Directorate of Personnel and Planning. [Para 27][1055-G-H; 1056-A]
7. Consistent with the need to maintain efficiency and discipline, the policy restricts the right to seek an extension of PSS. During the period which leads up to a severance from service, an officer may undergo a pre-release course or a resettlement course, for which 60 per cent of the cost is borne by the Government of India. In interpreting the provisions of the policy, including the withdrawal of a request for premature separation, it is necessary to emphasise that an officer who is granted PSS takes away an exit vacancy which could have been provided to another officer of the Air Force. [Para 28][1056-CD]
8. The right to withdraw a request for PSS from an armed force is not absolute or unconditional. Paragraph 18 of the Human Resource Policy conditions the withdrawal of an approved PSS application by a stipulation that such a request can be permitted only as an exception and under “extreme compassionate grounds”. Paragraph 18 contemplates that a request for withdrawal of a PSS application, in order to be effective, needs to be permitted. The use of the term ‘permitted’ is indicative of the fact that a withdrawal of a request is not a matter of right. A withdrawal can be permitted by the competent authority only by way of “exception” and on “extreme compassionate grounds”. Moreover, officers who have undergone a pre-release course are not permitted to request for a withdrawal. [Para 30][1056-GH; 1057-A]
9. The determination of the number of PSS applications that should be granted is based on a careful exercise of assessing the manpower requirements of the Air Force. The approval of a request of an officer for PSS has consequences both for the service and for the officer individually until the eventual severance of service takes place. During the period between the approval of the application and the date of severance, arrangements are made to meet the operational requirements of the Air Force. As for the officer, they have the option to proceed on a pre-release course. [Para 37][1062-A-B]
10. All the officers in the present case submitted an application under the terms of the Human Resource Policy which governed them. Availing the benefit of the policy, they proceeded to opt for a pre-release course. The policy under which they sought the benefit of a premature severance of service conditioned the right of withdrawal to the stipulations contained in Para 18 of the Human Resource Policy. Para 18 makes it abundantly clear that there is no unilateral right to withdraw from a request for PSS once it has been approved. There is a clear rationale for such a restriction. The officers involved in this batch of cases applied under the terms of the policy, seeking PSS. It is not open to the officers to approbate or reprobate. They cannot rely on the policy and seek to repudiate Para 18 conditioning the right to withdraw. [Para 36][1061-F-G]
11. The Tribunal has, in allowing the cases of three officers clearly erred in failing to notice the critical difference in the operational requirements of the service of an Armed Force of the Nation. The Tribunal has also failed to collectively appreciate the terms of the policy, its rationale and the basis on which paragraph 18 restricts the right to withdraw from an approved PSS application. Paragraph 18 is founded on the principle that even though a severance from service will take place at a future date, an application for PSS which has been approved, cannot be withdrawn except on the grounds contemplated in that paragraph. Whether a request to withdraw an approved PSS application meets the criterion of “extreme compassionate grounds” has to be considered by the competent authority. So long as the assessment is fair and bona fide, the decision, ought not to be faulted. [Para 38][1062-E-G]
12. The right to withdraw from an approved PSS application is neither absolute nor unqualified. The decisions to reject the applications to withdraw from PSS in the present cases were made bona fide. The authorities had applied their minds to the question of whether the grounds which were urged fulfilled the “extreme compassionate grounds” criterion. The authorities were also entitled to make a final determination based on the needs and exigencies of service. The Tribunal has erroneously interfered with the exercise of the administrative judgment by the authorities of the Air Force. [Para 39][1062-H; 1063-A-B]
13. Two officers are due to superannuate on 31 January 2019 and 31 January 2020 respectively. Having regard to the fact that both these officers are presently in service, in the exercise of jurisdiction under Article 142 of the Constitution, it is directed that their services in the Air Force for the remaining tenure will not be affected by the present judgment. This will, however, be subject to all the applicable norms, rules and regulations governing discipline and efficiency governing the service. As regards the case of the officer in C.A. No. 4575 of 2017 the judgment and order of the Tribunal is set aside and in consequence, the original application filed before the Tribunal shall stand dismissed. The judgment of the Tribunal in the case of officer in C.A. (D) No. 26814 of 2018, is affirmed. [Para 40][1063-C-E]
Union of India v. Wing Commander T Parthasarathy (2001) 1 SCC 158 : [2000] 4 Suppl. SCR 531; Balram Gupta v. Union of India (1987) Suppl. SCC 228 : [1987]
3 SCR 1173; Shambhu Murari Sinha v. Project &
Development India Ltd. (2002) 3 SCC 437 : [2002] 2 SCR 396; Union of India v. Shri Gopal Chandra Misra (1978) 2 SCC 301 : [1978] 3 SCR 12; J N Srivastava v. Union of India (1998) 9 SCC 559 – distinguished.
Bank of India v. O. P. Swarnakar (2003) 2 SCC 721: [2002] 5 Suppl. SCR 438 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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