Case: Union of India and Ors Vs. Subrata Das

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 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 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 ex gratia payment, they could not be permitted to approbate or reprobate or resile from their earlier stand. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559. 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.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 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 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.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 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 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 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.”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 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, 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 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. We 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 Commanders Subrata 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 application by a stipulation that such a request can be permitted only as an exception and underParagraph 18 contemplates that a request for withdrawal of a PSS application, in order to be effective, needs to be permitted. The use of the termis 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 ofeme compassionateMoreover, 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, 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 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 soabove observations indicate that the unrestrained choice of 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). The judgment merits a close analysis. In that case, the respondent was a Wing 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 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 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 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.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 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 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 the employee to withdraw from the resignation. The judgment of this Court in Parthasarathy (supra) is thereforeCourt held 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. Similarly, the judgment in J N Srivastava v Union of India (1998) 9 SCC 559.   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.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 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 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.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 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 relied on by the respondents.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 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 ofhas 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 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 thecriterion. 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 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 Commanders Subrata 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.