Full Judgment Text
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PETITIONER:
UNION OF INDIA & OTHERS
Vs.
RESPONDENT:
R.P. YADAV
DATE OF JUDGMENT: 10/05/2000
BENCH:
K.T.Thomas, D.P.Mohapatro
JUDGMENT:
D.P. MOHAPATRA,J.
Leave granted.
The question that arises for determination in these
appeals is whether an Artificer Apprentice of Indian Navy
who has been given a re-engagement for a certain period
after obtaining his consent for it is entitled to withdraw
the consent and demand his release from the force as of
right? Another question which also arises is what bearing
the decision of this Court in Anuj Kumar Dey and Another vs.
Union of India and others 1997 (1) SCC 366 on the above
question.
In the appeal arising from SLP (C) No.9839 of 1999,
the respondent R.P. Yadav has already been released from
the force in compliance with the direction of the Delhi High
Court in the impugned judgment. Indeed in the Order dated
14-2-2000, this Court recorded the submission of Mr. Soli
J. Sorabjee, learned Attorney General for India, that so
far as the respondent R.P. Yadav is concerned, the Union of
India is only interested in having the question of law
decided and even if it is decided in favour of the Union of
India, they will not deny the benefit which R.P. Yadav has
claimed in this petition. The period of re-engagement
granted in the case of R.P. Yadav has also expired. But in
the case of Raj Kumar, the respondent in the appeal arising
from SLP (C) No. 16848 of 1999, the period of re-engagement
granted to the said respondent is due to expire on 31st
January, 2002. Therefore, it will be convenient to refer to
the relevant facts in the case of Raj Kumar that is the
civil appeal arising from SLP (C) No.16848 of 1999.
Raj Kumar was appointed as an Artificer Apprentice in
the Indian Navy on 14-1-1983. The period of initial
engagement of 15 years expired on 31-1-1998. Before expiry
of the said period he exercised option for re-engagement for
a further period of four years and signed the requisite
papers on 26-4-1996. The option was accepted and
re-engagement till 31-1-2002 was approved by the competent
authority. On 9-4-1997, the respondent made a request for
withdrawl of his option for re-engagement and cancellation
of the order. The request was turned down by the authority
vide the rejection order dated 11-6-1997. He filed the writ
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petition, CW No. 3833 of 1997, before the Delhi High Court
seeking the following reliefs:
"[i] issue a writ of certiorari or any other
appropriate writ, order or direction quashing the impugned
order dated 11- 06-97.
[ii] issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents to
release the petitioner on the scheduled date of 31- 01-98
and grant him the pension and other retiremental benefits as
applicable to on the expiry of 15 years including 4 years
training period".
The main contention raised by the respondent in
support of his case was that he had given his option for
re-engagement under the impression that the period of 4
years of initial training after appointment was not to be
counted for the purpose of qualifying service for pension
and therefore he has to serve for four years more to earn
pension under the rules. This Court in A.K. Dey & another
vs. Union of India & others (supra) ruled that the period
of initial training is also a part of qualifying service for
the purpose of pension. The contention by the respondent
was that in view of the change in the legal position brought
about the decision of this Court, it is no more necessary
for him to continue in service and he should be released
from the force with all retiral benefits with immediate
effect. A learned single Judge of the High Court of Delhi
by the Judgment dated 4th May, 1999, accepted the case of
the respondent, allowed the writ petition and issued the
direction, "the respondents shall release the petitioners
and send them to Commodore, Bureau of Sailors Chhetah Camp,
Mankhurd, Mumbai-400 088, within 3 months for this purpose".
The learned Judge further ordered that the respondents shall
pass appropriate orders releasing the petitioner granting
him all retiral benefits. The respondents in the writ
petition filed letters patent appeal, LPA No. 327 of 1999,
challenging the above judgment/order of the learned single
Judge. The appeal was dismissed by a Division Bench of the
High Court by the Judgment dated 3-8-1999, which is under
challenge in the present appeal filed by the respondents of
the writ petition.
The factual position in the case of R.P. Yadav is
similar on all material aspects excepting the difference as
noted above. The case of the respondents in the writ
petition, shortly stated, was that an Artificer Apprentice
who is granted re- engagement for a certain period after
obtaining his consent cannot subsequently resile from it and
cannot claim release from the force as a matter of right.
It was the further case of the respondents that the decision
of this Court in A.K. Dey (supra) has no bearing on the
controversy raised in the case.
On the case of the parties gist of which has been
stated above, the points formulated earlier arise for
determination. The thrust of the contentions of Shri Altaf
Ahmed, learned Additional Solicitor General was that the
practice prevailing in the Navy is to ask for option of the
Artificer Apprentice concerned, his option for re-
engagement much before (one year) completion of the initial
period of engagement (fifteen years then) so that the
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authorities may have sufficient time to collect informations
about the vacancy position and proper planning for
maintaining the strength of the Naval Force can be made well
in time. This, according to the learned counsel is
necessary to keep the force in readiness for any
eventuality. Elucidating the paint, the learned counsel
submitted that if the case of the respondent is accepted
then an Artificer Apprentice who is a ’Sailor’ as held by
this Court in A.K. Dey (supra), can just walk out of the
force at any time according to his sweet will and such a
situation will seriously erode the discipline and efficiency
of the Navy.
Shri K.G. Bhagat, learned counsel appearing for the
respondent, on the other hand, contended that in A.K. Dey
(supra), this Court has held that the period of initial
training of four years as an Artificer Apprentice is to be
taken into account for the purpose of determining the
qualifying service for pension which under the service
rules/regulations is 15 years. This position came to the
knowledge of the respondent and the authorities concerned
only after the Judgment in A.K. Dey’s case was rendered.
The position of law laid down by this Court is binding on
the authorities concerned and therefore they cannot stand on
the way of release of the respondent from the force on
completion of 15 years which is also the qualifying service
for pension. The learned counsel further contended that it
is how the matter has been understood by officers of the
department which is evident from the letter HQNTG/3/ADM[S]/I
of the Director(ADL) dated 9-4-1997, recommending the case
of the respondent for release.
In our view the answer to the first question rests on
the interpretation of relevant provisions of the Navy Act,
1957, The Navy (Discipline and Misc. Provision) Regulation
1965 and Navy Order No. Stp 17 of 1994 regarding
re-engagement of ’Sailors’ (RP/0805/93). In Section 3 (20)
"sailor" is defined as a person in the naval service other
than an officer. In Section 11, it is laid down inter alia,
that no person shall be enrolled as a sailor in the Indian
Navy for a period exceeding 15 years (subsequently amended
as 20 years) in the first instance. In Section 14(1) it is
provided that subject to the provisions of sub-section (4),
officers and sailors shall be liable to serve in the Indian
Navy or the Indian Naval Reserve Forces, as the case may be,
until they are duly discharged, dismissed, dismissed with
disgrace, retired, permitted to resign, or released. In
sub-section (2), it is laid down inter alia that no sailor
shall be at liberty to resign his post except with the
permission of the prescribed officer.
Chapter V contains the provisions regarding conditions
of service. In Section 15, which deals with tenure of
service of officers and sailors it is declared in
sub-section (1) that every officer and sailor shall hold
office during the pleasure of the President. In sub-section
(2), it is laid down that subject to the provisions of this
Act and the regulations made thereunder,- (a) the Central
Government may discharge or retire from the naval service
any officer; (b) the Chief of the Naval Staff or any
prescribed officer may dismiss or discharge from the naval
service any sailor. In Section 16, it is provided inter
alia that a sailor shall be entitled to be discharged at the
expiration of the term of service for which he is engaged
unless - (a) such expiration occurs during active service in
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which case he shall be liable to continue to serve for such
further period as may be required by the Chief of the Naval
Staff; (b) he is re-enrolled in accordance with the
regulations made under this Act. Section 17 which makes
provision as to discharge provides in sub-section (1) that a
sailor entitled to be discharged under Section 16 shall be
discharged with all convenient speed and in an case within
one month of becoming so entitled. In sub-section (3) of
the said section it is laid down that notwithstanding
anything contained in the preceding sub-sections, an
enrolled person shall remain liable to serve until he is
duly discharged. This provision is made subject to Section
18 which makes provision regarding savings of powers of
dismissal by Naval tribunals. Chapter VI contains the
provisions regarding service privileges. In Chapter VII are
included the provisions regarding pay, pension, etc. and
maintenance of families. Chapter VIII contains the
provisions regarding articles of war. In Section 41, it is
provided inter alia that every person subject to naval law,
who (a) deserts his post shall be punished with imprisonment
for a term which may extend to two years or such other
punishment as is hereinafter mentioned.
Chapter XX which deals with provisions regarding
regulations provides in Section 184 (1) that the Central
Government may, by notification in the official Gazette,
make regulations for the governance, command, discipline,
recruitment, conditions of service and regulation of the
naval forces and generally for the purpose of carrying into
effect the provisions of this Act.
Reliance has been placed on the Navy Order No.
(Str.)17 of w1994 by learned Additional Solicitor General in
which are contained the provisions regarding re-engagement
of sailors. In introduction to this Navy Order it is stated
inter alia that the period of enrollment in respect of non
Artificer /Artificer sailor and terms and conditions
governing their further re-engagement of service have been
laid down in this Navy Order. In clause (4) it is declared
grant of re-engagement is subject to service requirement,
and is not to be construed as a matter of right. Depending
upon the requirement of service a sailor can be re- engaged
only if he fulfills the conditions set out in clause (4).
The criteria for re-engagement are provided in clause (5) of
the Order.
In clause (6) it is laid down that a sailor is
required to exercise his option for re-engagement for
further service on the following occasions : (a) On receipt
of Expiry of Engagement Serial from CABS. (b) On selection
for higher rank professional courses/specialist
courses/non-professional pre-promotion courses in India (c)
On selection for Deputation for new acquisitions/ courses
postings abroad.
In clause (13) provision is made, inter alia, that on
publication of Expiry of Engagement Serial if a sailor does
not wish to re-engage for further service a certificate of
unwillingness as per Appendix ’D’ to this order is obtained
from him. A copy of this certificate is to be retained with
sailors service documents and another forwarded to the
Bureau of Sailors, Bombay. Under sub- clause (c) of this
Regulation it is provided that sailors who have once
expressed their unwillingness to sign an undertaking for
further service and subsequently wish to be re-engaged on
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promotion, will be considered for re-engagement only if they
are willing to sign for a minimum period of two years,
provided the request is put up at least nine months prior to
the date of release. In the said provision it is expressly
declared that "short term re-engagements of one to nine
months in order to earn pension of the rank will not be
granted". (emphasis supplied).
In clause (16) of the order it is made explicit that
re- engagement is a service requirement, therefore, there is
no provision to give re-engagement to sailors only on
compassionate grounds; however, while reviewing the
re-engagement cases of deserving cases, the welfare of
sailors is also given due consideration to the possible
extent. Clause 18 of the Naval order which is important for
the purpose of the present case reads as follows:
"18. Cancellation of Re-engagement. Once re-
engagement has been granted to a sailor consequent to his
willingness, the engagement will generally not be cancelled
due to any altered circumstances affecting the sailor. The
sailor will be required to serve upto the period re-engaged
for.
The provisions of the Naval Str.17, leave no manner of
doubt that re-engagement of sailors can neither be claimed
by a sailor as a matter of right nor can cancellation of
re-engagement and release from the force be claimed by a
sailor as a matter of right. It is to be decided by the
competent authority keeping in view the relevant factors,
the most important one being the service requirements.
From the conspectus of the relevant provisions of the
Act, the Regulations and the Navy Orders including those
noted above, the position is manifest that the Naval Service
is to be maintained as a highly disciplined service always
kept in readiness to face any situation of emergency. The
personnel of the naval service are provided with various
facilities and privileges different from those available to
other civil services.
As noticed earlier in Section 16 of the Act a
provision is made that a sailor shall be entitled to be
discharged at the expiration of the terms of service for
which he is engaged. One of the circumstances when this
general rule shall not apply is that he is re- enrolled in
accordance with the requirements made in the Act. No
provision in the Navy Regulations, 1965, has been brought to
our notice which expressly or by implication provides that a
sailor can at any time during the subsistence of period of
re-engagement demand release from service. On the contrary
a fair reading of the provisions of the Regulations shows
that a very high standard of discipline is to be maintained
by members of the Naval Force including sailors. Under
Regulation 127 sailors who may have quit their ships without
leave, or have overstayed their leave or have improperly
absented themselves when detached on duty, and who may be
apprehended before the expiration of seven days, beyond the
precincts of a dockyard or other government establishment in
which they may have been employed, shall be treated either
as absentees or as deserters, according to the circumstances
which are to be judged by their respective commanding
officers. From provisions in the Regulations it is also
manifest that stringent measures of punishment are
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prescribed for any act of indiscipline. It is also a matter
of common knowledge that the Naval Force which is entrusted
with the sacred duty of guarding the shores of the country
against any form of aggression should be a highly
disciplined and efficient service.
An incidental question that arises is whether the
claim made by the respondents to be released from the force
as of right is in keeping with the requirements of strict
discipline of the Naval Service. In our considered view the
answer to the question has to be in the negative. To vest a
right in a member of the Naval Force to walk out from the
service at any point of time according to his sweet will is
a concept abhorrent to the high standard of discipline
expected of members of defence services. The consequence in
accepting such contention raised on behalf of the
respondents will lead to disastrous results touching upon
security of the nation. It has to be borne in mind that
members of the defence services including the Navy have the
proud privilege of being entrusted with the task of security
of the Nation. It is a privilege which comes the way of
only selected persons who have succeeded in entering the
service and have maintained high standards of efficiency.
It is also clear from the provisions in Regulations like
Regulation 217 and 218 that persons who in the opinion of
the prescribed authority, are not found permanently fit for
any form of naval service may be terminated and discharged
from the service. The position is clear that a sailor is
entitled to seek discharge from service at the end of the
period for which he has been engaged and even this right is
subject to the exceptions provided in the Regulations. Such
provisions, in our considered view, rule out the concept of
any right in a sailor to claim as of right release during
subsistence of period of engagement or re- engagement as the
case may be. Such a measure is required in the larger
interest of the country. A sailor during the 15 or 20 years
of initial engagement which includes the period of training
attains a high degree expertise and skill for which
substantial amounts are spent from the exchequer.
Therefore, it is in the fitness of things that the
strength of the Naval Force to be maintained is to be
determined after careful planning and study. In a situation
of emergency the country may ill afford losing trained
sailors from the force. In such a situation if the sailors
who have completed the period of initial engagement and have
been granted re-engagement demand release from the force and
the authorities have no discretion in the matter, then the
efficiency and combat preparedness of the Naval Force may be
adversely affected. Such a situation has to be avoided.
The approach of the High Court that a sailor who has
completed 15 years of service and thereby earned the right
of pension can claim release as a matter of right and the
authority concerned is bound to accept his request does not
commend us. In our considered view, the High Court has
erred in its approach to the case and the error has vitiated
the judgment.
At this stage it will be relevant to deal with the
contention which has been raised on behalf of the
respondents that they agreed for re-engagement only for the
reason that they were not eligible to receive pension under
the Navy (Pension) Amendment Regulations, 1982, and since
that position no longer holds good in view of the decision
of this Court in Anuj Kumar Dey’s case (supra) they are
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entitled to withdraw the option given by them earlier. This
contention is wholly unacceptable and has to be rejected.
Reasons for which a sailor may exercise option for
re-engagement may be very many. Such reasons will vary from
person to person. No provision in the Act or Regulation has
been placed before us which shows that the sailor is
required to state the reason in support of the option given
by him for re-engagement. Therefore, the reason which
played in the mind of the sailor concerned to exercise
option in favour of re-engagement is not relevant for
determination of the question raised in the case. In that
view of the matter the decision of this Court in Anuj Kumar
Dey’s case (supra) is of little assistance to the
respondents in the case. All that was decided by this Court
in that case is that the training period as Artificer
Apprentice, will be included in the computation of the
qualifying period of service for earning pension for the
reason that during the period of training as Artificer
Apprentice the sailor was in the service of the Navy. This
Court did not consider any other question which may have a
direct or indirect bearing on the controversy raised in the
present case. It follows that the decision of this Court in
Anuj Kumar Dey’s case (supra) cannot provide a legitimate
basis for claim of the respondents to be discharged from the
Naval force as a right.
In the result the appeals are allowed. The Judgment
of the learned single Judge of the High Court in C.W.P. No.
3833/97 dated 4.5.99 as confirmed by the Division Bench of
the High Court of Delhi in L.P.A.No.327 of 1999 and C.W.P.
No. 1368/98 as confirmed in L.P.A.No. 579/98, are set
aside. There will however, be no order as to costs.