UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS. versus WG. CDR. SUBRATA DAS (19942-H)

Citation: [2019] 1 S.C.R. 1035 · Decided: 29-01-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

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Judgment (excerpt)

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UNION OF INDIA THROUGH ITS SECRETARY,
MINISTRY OF DEFENCE DHQPO NEW DELHI & ORS.
v.
WG. CDR. SUBRATA DAS (19942-H)
(Civil Appeal No. 10953 of 2014)
JANUARY 29, 2019
[DR. DHANANJAYA Y CHANDRACHUD
AND HEMANT GUPTA, JJ.]
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.
[2019] 1 S.C.R. 1035
1035
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
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
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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 R

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