UNION OF INDIA & Ors. v. WG. CDR. SUBRATA DAS (19942-H)

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. [2000] 4 Suppl. SCR 531 [1987] 3 SCR 1173 [2002] 2 SCR 396 [1978] 3 SCR 12 [2002] 5 Suppl. SCR 438 (1998) 9 SCC 559 Case Law Reference distinguished distinguished distinguished distinguished referred to distinguished Para 7 Para 8 Para 8 Para 32 Para 35 Para 35 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 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, A B C D E F G H UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. SUBRATA DAS (19942-H) 1041 Kahorngam Zimik, Ajai Bhalla, Anil Kumar Tandale, Sridhar Potaraju, Rabin Majumder, Advs. for the appearing parties. A The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J. 1. Delay condoned.

#2. Leave granted.

#3. This batch of appeals arises from proceedings initiated before the Armed Forces Tribunal1. Each of the four officers of the Indian Air Force - Wing Commanders Subrata Das, P K Sen, Rachit Bhatnagar and Group Captain Rajeev Moitra sought a premature separation from service under the Human Resource 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.

#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 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 1The 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 B C D E F G H 1042 SUPREME COURT REPORTS [2019] 1 S.C.R. A B C D E F G that he was Permanently Passed Over7 by the Promotion Board. The request was accepted and communicated on 3 June 2013. The officer commenced a pre-release course at the International College of Financial Planning, New Delhi. At around the tenth week of the twelve-week course, he withdrew from the course and submitted an application to withdraw his request for PSS on 16 September 2013. The ground pleaded for withdrawing the application for PSS was acute domestic problems. The request was rejected on 15 October 2013.The officer is due to superannuate from the Air Force on 31 January 2019. He did not complete the pre-release course. (ii) Civil Appeal 2821 of 2015: Wing Commander P K Sen: The officer was commissioned on 4 September 1989 and was promoted to the rank of Wing Commander on 16 December 2004.On 1 October 2012, he applied for PSS with 30 October 2013 as the proposed date of severance. He sought PSS on compassionate grounds and since he was Permanently Passed Over. The request for PSS was approved and communicated on 30 April 2013. The officer commenced a pre-release course at Amity Institute of Education and Training, Noida. The officer sought a change in the PSS date from 30 October 2013 to 3 January 2014. The request was rejected and he was informed on 18 October 2013. On 8 October 2013, he submitted an application to withdraw his request for PSS which was received on 24 October 2013. The officer sought to withdraw his application for PSS on the ground that he had not been able to obtain private placement in a volatile market and that he faced personal difficulties. Before a decision could be taken, the officer instituted proceedings before the Tribunal on 25 October 2013. The officer is due to superannuate from the Air Force on 31 January 2020. He completed the pre-release course. (iii) Civil Appeal (D) No. 4575 of 2017: Group Captain Rajeev Moitra: The officer was commissioned on 17 December 1988 and was promoted to the rank of Group Captain on 17 December 2014.On 25 April 2014, he applied for PSS with 31 December 2014 as the proposed date of severance. He sought PSS on compassionate grounds and since he was Permanently Passed Over. The request for PSS was approved on 12 July 2014 and was communicated on 15 July 2014. Upon a request 7 PPO H UOI THR. ITS SECY., M/O DEFENCE NEW DELHI v. WG. CDR. SUBRATA DAS (19942-H) [DR. D. Y. CHANDRACHUD, J.] 1043 by him for a change in the date of severance, the date of PSS was postponed from 31 December 2014 to 7 March 2015. On 19 January 2015, he submitted an application to withdraw his request for PSS which was rejected on 5 March 2015. The request for withdrawal was on the ground that the age of superannuation had been altered from 54 to 57 years and that he faced personal family difficulties. The officer was due to superannuate from the Air Force on 31 December 2020. He completed the pre-release course. (iv) Civil Appeal Dairy No. 26814 of 2018: Wing Commander Rachit Bhatnagar: The officer was commissioned on 28 November 1994 and was promoted to the rank of Wing Commander. The application for PSS was submitted on 3 November 2016 with a proposed date of severance as 31 July 2017. The ground for PSS was that the officer had been Permanently Passed Over (PPO). The request for PSS was accepted on 1 February 2017. On 26 May 2017, the officer made a request for a change in the PSS date which was rejected on 20 July 2017. On 28 July 2017, the officer submitted an application for withdrawing his request for PSS, citing family constraints and unfavourable market conditions. Before a decision could be taken, the officer instituted proceedings before the Tribunal. The Tribunal did not grant the officer relief and he retired on 31 July 2017. The officer was due to superannuate from the Air Force on 31 October 2025.The officer completed the pre-release course.

#6. Wing Commanders Subrata Das, P K Sen and Group Captain Rajeev Moitra succeeded before the Tribunal and the rejection of their applications to withdraw the request for PSS was set aside. Following the decision of the Tribunal, Wing Commanders Subrata Das and P K Sen have been taken back into service and continue to work as officers of the IAF. In the case of Group Captain Rajeev Moitra, the order of the Tribunal was stayed during the pendency of the Civil Appeal and he has not been taken back on duty. Wing Commander Rachit Bhatnagar was not successful before the Tribunal and he is in appeal before this Court.

#7. The Tribunal at its Principal Bench, while rendering its decision on 27 March 2014 in the case of Wing Commander Subrata Das, held that officers have a substantive right to continue in service until they attain the age of superannuation and that an application for premature retirement can be withdrawn at any time before the actual date of A B C D E F G H 1044 SUPREME COURT REPORTS [2019] 1 S.C.R. A B C D E F G retirement. The Human Resource Policy of the Air Force permits the withdrawal of the request for PSS on “extreme compassionate grounds”. The Air Force, according to the Tribunal, did not take into consideration the grounds indicated in the application, and proceeded to reject it on the ground that the officer had already undergone the pre-release course. In the view of the Tribunal, the pre-release course is an option which is given to an employee to improve career prospects and is not a condition of service. The Tribunal held that the officer has a substantive right to continue in service and that this right cannot be whittled down by a policy which has no statutory flavour. In taking this view, the Tribunal has relied upon the decision of this Court in Union of India v Wing Commander T Parthasarathy8. The Tribunal held that severance from service which takes effect on a prospective date can be withdrawn at any time before it becomes effective. Hence, the order passed by the Air Headquarters was quashed with a direction to take the officer back in service with consequential benefits.

#8. In the case of Wing Commander P K Sen, the Tribunal at its Principal Bench relied on the decision of this Court in Parthasarathy (supra)and its earlier decision in the case of Wing Commander Subrata Das while granting relief in similar terms in its order dated 3 September 2014. In the case of Group Captain Rajeev Moitra, the Tribunal at its Regional Bench at Lucknow relied on the decisions of this Court in Balram 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 case of Wing Commander P K Sen to hold that a substantive right which enures to the benefit of the officer cannot be denied merely on the basis of a policy of the Government.

#9. In the case of Wing Commander Rachit Bhatnagar, the Tribunal at its Principal Bench has ruled against the officer by its decision dated 7 February 2018. The Tribunal, while taking a view contrary to its earlier decisions held that officers are commissioned into the Armed Forces on a commission by the President of India. The commission is associated with privileges, duties and distinct liabilities. In the view of the Tribunal,