Y Sujatha vs Union Of India And Others

This application has been filed challenging the impugned order dated 25.10.2019 (Annexure Al), whereby the applicant is being released without

granting her the benefit of Air Headquarters Human Resource Policy dated 23.02.2018 pertaining to premature separation from service (PSS) of

officers other than Medical and Dental Branches. It is her case that the period of six months for release from the date of issuance of signal is denied

to her. While issuing notice to the respondents, interim protection was granted by this Tribunal.

The reliefs asked for by the applicant in the application read as under:

(i) Quash the impugned signal dated 25.10.2019 of the respondents to the effect of releasing the applicant from service on 30.11.2019 and direct the

respondents to extend the date of release by six months from 25.10.2019 i.e. the date of issue of impugned signal; and

(ii) Direct the respondents to extend the date of PSS of the applicant till 23.04.2020 i.e. six months from the date of issue of the impugned signal as

per HR Policy 02/2018.

The facts, in a nutshell, indicate that the applicant was granted provisional Short Service Commission in the Indian Air Force on 29.05.1995 in the

AE (L) Branch. Subsequent to grant of permanent commission, she was reinstated in the Air Force on 23.08.2010 and posted in the AE (L) Branch

along with ante-date for pay, promotion and seniority with effect from 27.05.1994. On 09.04.2018, a show cause notice was issued to the applicant

asking her why she should not be removed from service on account of various factors indicated in the show cause notice. The applicant replied to the

show cause notice and instead of taking recourse to proceeding further with the show cause notice, the respondents, vide communication dated

11.07.2019, informed the applicant that she has an option to submit an application for premature separation from service. The applicant was informed

that she can be granted PSS. The applicant opted for grant of PSS and now the grievance of the applicant is that she is being released from service

with effect from 30.11.2019 vide communication dated 29.10.20191 without granting her the benefit of release period under the premature PSS. It is

her case that she is only granted 30 days' time before release, in violation to the HR Policy of IHQ (Annexure A7) and the benefit of Clause 8(a) of

the said Policy is being denied to her. Clause 8(a) of the said Policy reads as under:

Prescribed Jurisdiction Period of PSS .Officers can seek the date for PSS within the prescribed jurisdiction period only. The jurisdiction

period has been specified to provide officers proceeding on P55 adequate time to complete pre-P55 formalities. The prescribed jurisdiction

period is defined in succeeding paragraphs.

(a) Prescribed Jurisdiction Period for Officers of Category-I. Applicants belonging to Category I who fall under Para 7(a) may apply for

P55 within a period of nine months from their proposed date of P55. However the prescribed period of jurisdiction for these officers would

be six months from the date of issue of the signal/letter approving PSS by the Dte of PO.

According to the applicant, as per sub-clause (a) of the aforesaid Policy, the prescribed jurisdictional period for officers is six months from the date of

issue of the signal/letter. This period of six months is being curtailed in the case of the applicant and even though she represented, instead of granting

her the benefit of six months, which can be utilised by her to make alternate arrangements for her and her family, in an arbitrary manner, this period of

six months is curtailed. The only relief claimed now before us is that the applicant should not be relieved and she should be granted the mandatory

period of six months, as contained in Para 8(a) of the Policy reproduced herein above.

Prima facie, finding the aforesaid contention to be substantially correct, on 28.11.2019, this Tribunal granted interim protection to the applicant in the

following manner:

In the meanwhile, taking note of Air Headquarters Human Resource Policy Part I/PO/PR/02/2018 dated 2.7d February 2018 and the fact

that the organization advised the applicant to apply for P55, which is covered under this Policy, the respondents should show cause as to

(why) they are proposing to relieve the applicant before the period contemplated In the Policy Is over indicating the reasons for the same

before the next date. In the meanwhile, status as on date shall be maintained.

Now the respondents have filed a detailed counter affidavit and in the counter affidavit, they have come out with a case that the applicant could have

been removed from service based on the show cause notice earlier issued to her and for granting certain benefit to her, she was given the option of

applying for PSS and now having applied for PSS, the same is being accepted and in Paragraphs 5 and 6 of the counter affidavit, the respondents have

come out with the following averments:

That HRP 2/2018 stipulates that the jurisdiction period for the officers of her category would be six months from the date of issue of the Signal (till

25 April 2020 117 the instant case). The HRP states that the change of effective date of P55 (either advancement or postponement of date) after the

Retirement Order had been issued had been objected to by Dy CDA (AF), Further, the request for change of date of PSS after approval of release by

Competent Authority through a P55 BoO/otherwise would be considered only in exceptional cases due to its impact on manpower planning, vacancies

and cadre management.

The applicant was intimated vide a Signal dated 25 Oct 2019 about grant of P55 to her with effect from 30.11.2019. The Applicant submitted a

representation only on 16.11.2019 for change of date of PSS from 30.11.2019 to 24.04.2020 which was under consideration. A copy of the

representation dated 16.11.2019 is annexed as Annexure A-8 to the OA and is at Page 40 of the OA. The Applicant without waiting for the response

of the Respondents to her representation approached the Honible AFT by filing the present OA. It was premature on the part of Applicant to have

knocked the doors of the Honble AFT without exhausting the departmental remedy and therefore the OA is liable to be disf77iSsed on tl7i5 ground

alone.

It is the case of the respondents before us that the period of six months envisaged in Clause 8(a) of the Policy is the maximum period, which can be

curtailed in a given case. Accordingly, the respondents submit that they have not caused or taken any undue or arbitrary action. The period is being

curtailed on an administrative consideration and the applicant has no right to make a claim for continuing in service till the period of six months is over.

When the matter was heard by us on 07.01.2020 and thereafter on 23.01.2020, we had requested the learned counsel for the respondents to point

out as to on the basis, which circular, order or provision of law the stand that the period prescribed in Clause 8(a) can be curtailed is taken, in how

many cases it had been curtailed and if so under what conditions. Even today, when the learned counsel for the respondents was specifically asked as

to whether an affidavit in this regard can be filed, it was stated that this is the policy being followed and there is no requirement of filing any affidavit

in this regard. Accordingly, it is the contention of the respondents that the applicant had given option between PSS and removal from service in which

she chose PSS. It is their contention that the provisions of Clause 8(a), in fact, prescribe the maximum period for retaining in service after opting for

P55, which can be curtailed in due course. However, interestingly, having said so at the time of hearing, in Para 5 and 6 of the counter affidavit, it is

stated that once a request for PSS is accepted, there cannot be change of date for effective implementation of PSS. Reliance is placed on Para 25 of

the HRP to say that the request for change of date of PSS cannot be accepted. We may also take note of the fact that the oral submission made

before us that the period of six months stipulated in Clause 8(a) can be curtailed is not specifically pleaded in the counter affidavit.

We have considered the submissions made before us and the averments made in the counter affidavit and we find that in the policy issued by Air

HQ, known as ""AIR HEADQUARTERS HUMAN RESOURCE POLICY PART I/PO/PR/02/2018 DATED 23 Feb 18"" (Annexure R1), Air Force

officers have been given an option to leave the Air Force for varied personal reasons and a premature separation policy has been brought into force.

The manner of implementing the policy is contemplated and in Clause 8 reproduced herein above, the prescribed jurisdictional period for PSS has been

indicated. The jurisdictional period has been specified to provide officers proceeding on PSS adequate time to complete the pre-PSS formalities. Under

Clause 8(a), the prescribed jurisdictional period for officers of Category-I, in which the applicant falls, is six months from the date of issue of

signal/letter approving PSS. Admittedly, the period of six months for the applicant is not over, instead her period is being curtailed and she is being

relieved on 30.11.2019, which has been stayed by us. Now in the counter affidavit filed by the respondents, they have come out with a specific

averment in Paragraphs 5 and 6 reproduced herein above, wherein they referred to the policy and admitted that the policy stipulates the jurisdictional

period for officers of the applicant's category, which is six months from the date of issuance of the signal/letter. In this case, six months would be over

on 26.04.2020. However, it states that the policy prohibits change of effective date and no change for the date of PSS after the approval of release by

competent authority is permissible. There is no whisper in the affidavit, either in Paragraphs 5 and 6 or anywhere else, including Para 4.11, to indicate

that the jurisdictional period of six months can be curtailed. The counter affidavit is emphasizing on the point that once a request for PSS has been

accepted, the date fixed for release cannot be changed. We are surprised that such an averment is made in the counter affidavit to project to us as if

the applicant is seeking a change in the date of release after acceptance of the PSS. This contention in the counter affidavit is wholly misconceived.

The applicant is only insisting upon implementing the PSS in accordance with the policy, particularly by strictly adhering to the period contemplated

under Clause 8(a). The respondents are trying to project as if the applicant is seeking for a change and the same is not permissible in view of Para 25.

During the course of hearing, when we posed a question to the learned counsel representing the respondents and the representative of the

respondents, that the applicant is not asking for any change, it was then stated that the period of six months is the maximum period contemplated and it

is the discretion of the competent authority to curtail this period and in this case, the curtailment has been ordered, which is permissible under law. We

had made a categoric query as to under what provision of law, policy or order of the competent authority or the Ministry, this curtailment is

permissible. Till date, even though we had granted time, no such document or material has been produced. Today also, during the course of hearing,

we gave an option to the learned counsel for the respondents to indicate by filing an affidavit of the competent authority stating whether there had

been any case where the six months' period contemplated under Clause 8(a) has been curtailed. In the counter affidavit, it is stated that once the

period of release has been fixed, change of the same is not permissible in view of Para 25. In our view, this is a wholly misconceived submission. The

applicant is not asking for any change. She is asking that the mandatory period prescribed under Clause 8(a) should be granted to her. An oral

submission is tried to be made to say that the period prescribed is the maximum period and it can always be curtailed by the authority in a given case.

But no order, rule or circular in this regard is furnished and there is nothing in the counter affidavit by way of a sworn affidavit by the competent

authority to justify this action.

Faced with this situation, we have no hesitation in holding that the policy in question dated 23.02.2018 issued by the Air HQ for premature

separation from service contemplates a statutory period of release for officers proceeding on PSS and as per Clause 8(a) for officers like the

applicant, as already admitted by the respondents in Para 5 of the counter affidavit, the period is six months and there is nothing to indicate that this

period can be curtailed in any manner, whatsoever.

Resultantly, the impugned order is quashed. The respondents are directed to grant the applicant the mandatory period contemplated under Clause

8(a) of the policy and to release her from service only after the period of six months expires on 23.04.2020. Till then, she should be permitted to work.

The 0.A is disposed of, as above. No order as to costs.

Pronounced in open Court on this the 12th day of February, 2020.