Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6785 OF 2014
| EX NAVY DIRECT ENTRY ARTIFICERS<br>ASSOCIATION & ORS. | .....APPELLANT(S) |
|---|---|
| VERSUS | |
| THE UNION OF INDIA & ORS. | .....RESPONDENT(S) |
J U D G M E N T
A.K.SIKRI, J.
Appellant No. 1 is a registered Association of Ex Navy Direct Entry
Artificers, whereas appellant Nos. 2 to 5 are Ex Direct Entry Artificers of
the Navy. Primarily, it is the cause of appellant Nos. 2 to 5 which is
espoused by their Association as well i.e. appellant No. 1. These
appellant Nos. 2 to 5 have rendered actual service of 10 years. For an
Artificer to become entitled to pension, he is supposed to render
minimum service of 15 years as per Regulation 78 of the Navy (Pension)
Regulations, 1964. The appellants claim that after their initial
Signature Not Verified
engagement period of 10 years as Artificers, they were placed in Fleet
Digitally signed by
ASHWANI KUMAR
Date: 2018.05.08
17:44:23 IST
Reason:
Reserve for a period of 10 years and as per Regulations, 50% of the
period of Reserve is to be counted for the purpose of pension. On that
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basis, it is claimed that 5 years period of Reserve would enure to their
benefit and on adding this period of 5 years with actual service of 10
years, it is to be treated that they have rendered 15 years of service and
are accordingly entitled to receive pensionary benefits. The
respondents deny the placement of appellant Nos. 2 to 5 in Fleet
Reserve for a period of 10 years as claimed by the said appellants.
Therefore, the moot question is as to whether the appellants, after
rendering actual service of 10 years in the Navy, were drafted into Fleet
Reserve or not.
2. The appellants had filed O.A. No. 8 of 2013 before the Armed Forces
Tribunal (hereinafter referred to as the ‘AFT’), Regional Bench, Kochi in
which prayer to grant benefit was sought by them. The AFT, however,
has not accepted the case set up by the appellants. As a result, their
O.A. stands dismissed by the AFT vide order dated January 22, 2014.
The appellants thereafter filed review petition seeking review of that
judgment which was also dismissed by the AFT on March 25, 2014.
Simultaneously, however, prayer for leave to appeal to this Court have
been granted by the AFT seeking authoritative pronouncement of this
Court on the following questions of law formulated by the Tribunal:
“(1) Whether the applicants’ reserve liabilities imposed at the time
of enrolment ipso facto amounted to their being drafted to Fleet
Reserve without any specific order to draft them to the Reserve on
completion of regular Naval service? If so, whether the period of
such reserve liability as per the stipulated scheme was liable to be
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taken into account for computing the length of service of the
applicants for pension purposes?
(2) Whether the applicants Nos. 2 to 5 were entitled to be treated
at par with the Apprentice Entry Artificers for pension purposes
only on the ground that both of them belong to the same
homogenous class of Artificers?
3. Both these orders passed in O.A. as well as in review petition have been
assailed by the appellants by way of instant appeal preferred under
Section 30 of the Armed Forces Tribunal Act, 2007.
4. We now advert to the seminal facts which have led to the present
litigation.
5. In the Indian Navy, the sailors are of two classes, the Artificers class and
the non-Artificer class. Artificers are considered to be skilled sailors and
they work on sophisticated technologies of warships. For the Artificer
Class, there are two channels of Entry, known as Apprentice Entry
Artificers and Direct Entry Artificers. The appellants joined Indian Navy
as Direct Entry Artificers. At the relevant point of time (i.e. prior to July 3,
1976), the initial engagement of the Apprentice Entry Artificers as well as
of the Direct Entry Artificers (appellants herein) was for 10 years active
service. On the expiry of this term, they could be drafted into Fleet
Reserve for a period of 10 years. A person who is kept in Fleet Reserve
can be recalled at any time, during the said period of 10 years, to serve
in the Navy.
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6. The Apprentice Entry Artificers (with education qualification of
Matriculation) get 4 years training in Indian Navy during which period
they get a special rate of pay (fixed stipend per month). After the 4
years training period in naval establishment, the Apprentice Entry
Artificers are advanced to the rank of Artificer Vth Class and their initial
engagement of 10 years active service commences. At the end of it,
they could also be kept in Fleet Reserve for 10 years. It may be
mentioned that after one year in the rank of Artificer Vth Class, these
Apprentice Entry Artificers are advanced to the rank of Artificer Acting
IVth Class to complete the engagement 10 years active service. On the
other hand, Direct Entry Artificers, to which class appellants belong, with
qualification of 3 years Diploma in Engineering from recognized
Universities in the country are directly enrolled to the rank of Artificer
Acting IVth Class with initial engagement of 10 years active service. It
may also be stated that in the rank of Artificer Acting IVth Class, the
Apprentice Entry Artificers and Direct Entry Artificers are merged
together, and are treated at par for the purposes of rank, work,
promotions, pay and allowances, leave and other benefits allowed for
sailors. They are all governed by the same Navy (Pension) Regulations,
1964. In their respective ranks, they relieve each other when transferred
to ships and establishments.
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7. These facts are noted, as stated by the appellants, because of the
reason that the appellants are claiming that since Apprentice Entry
Artificers are given the pension, after counting the 4 years training
period in Naval Establishment, same treatment be given to the
appellants as well. Question No. 2 framed by the AFT and referred to
this Court touches upon this aspect.
8. Reverting to the facts of the appellants’ case, as pointed out above,
appellant Nos. 2 to 5 were engaged as Direct Artificers for a period of 10
years. All these appellants were engaged prior to July, 1976. This is the
actual service rendered by them. According to them, they were drafted
into Fleet Reserve for a period of 10 years and 50% of this period have
been counted for pension. On that basis, they claim that they have
become entitled to receive pension. Therefore, they made a request on
May 10, 2012 to the respondents to grant pension to them. However,
vide reply dated June 25, 2012, respondents turned down their request
as ‘ not tenable in accordance with the extent rules/regulations’ . The
reason given by the respondents was that the appellants were not
drafted into Fleet Reserve at all and, therefore, there was no reason to
count 50% of the Fleet Reserve period. The respondents, in this behalf,
referred to Government Order No. AD/5374/2/76/2214/S/D(N.II) dated
July 3, 1976 as per which drafting into Fleet Reserve was discontinued
from 1976 onwards and, therefore, the appellants were never drafted
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into Fleet Reserve. After receiving this rejection of their request, the
appellants approach the AFT in the form of O.A. which has met the fate
of dismissal, as already mentioned above.
9. A perusal of the impugned judgment of the AFT would reveal that the
appellants were enrolled into Navy under Regulation 268(1) of the Navy
Regulations, Part III. Regulation 269 thereof provides for an initial
engagement of 10 years, followed by liability to remain 10 years in Fleet
Reserve. However, further 10 years service in Fleet Reserve is subject
to regulations of Fleet Reserve. At the time of recruitment itself of the
appellants, it was made clear to them that they would be drafted into
Fleet Reserve only if required and regulations for Indian Fleet Reserve
specifically stipulate that ‘ no man can claim to join Fleet Reserve as a
right’ . Therefore, the appellants did not have any automatic right to get
drafted into Fleet Reserve. In any case, in terms of Government’s letter
dated July 3, 1976, transfer of sailors into Fleet Reserve was
discontinued and, therefore, no orders for drafting the appellants into
Fleet Reserve were ever made. There is no notation on records that
they are being drafted into Fleet Reserve on expiry of their active
service. In this behalf, the AFT has quoted relevant portion of
Government’s letter dated July 3, 1976 which is as under:
“ SUB: CONDITIONS OF SERVICE OF SAILORS.
I am directed to state that the President is pleased to approve the
following modifications in the conditions of service of sailors:--
- - - -
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(f) Transfer to Current Fleet Reserve: -- Transfer of sailors into
the Fleet Reserve to be discontinued. -------
3. Appropriate Government Regulations/Orders will be amended in
due course.”
10. The AFT also found that subsequently, Regulations for the Navy was
amended by the Government of India vide SRO.No.106 of 1978 dated
28th March 1978. Relevant portions of the SRO are given below:
“S.R.O.106:-- In exercise of the powers conferred by section 184
of the Navy Act, 1957 (62 of 1957), the Central Government
hereby makes the following regulations further to amend the Navy
Ceremonial, Conditions of Service and Miscellaneous Regulations,
1964, namely:--
2. In the Naval Ceremonial, Conditions of Service and
Miscellaneous Regulations, 1964--
(i) in regulation 269, in sub-regulation (1), for the brackets and
figure “(1)”, the brackets, figure and words “(1) Old Entrants” shall
be substituted, and after subregulation (1) as so amended, the
following sub-regulation shall be inserted, namely:--
“(1A) New Entrants:--(a) Boys, Artificer, Apprentices and Direct
Entry sailors may be enrolled for a period calculated to permit a
period of 15 years' service to be completed from the date of
enrolment or from the date of attaining the age of 17 years,
whichever is later, provided their services are so long required.
…...........
(1B)(a) In case of the existing sailors, their period of engagement
shall be governed by sub-regulation (1), except that they shall not
be transferred to Fleet Reserve.
(b) . . . . . .
(1C) Persons joining service on or after the 3rd July, 1976 shall be
deemed to be New Entrants.”
11. After going through the various provisions of Navy Act, Navy
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Regulations, Part III and the aforesaid amendments, the AFT culled out
the relevant features in the form of salient points in the following
manner:
“25. Salient points that emerge from the above Regulations, which
are of relevance in this case are:--
(a) Sailors having 10 years continuous service shall be liable, if
required, for further service in Indian Fleet Reserve, subject to
provisions of Regulations for Indian Fleet Reserve (Regulation
269).
(b) When an active service rating is within six months of
completion of his term of enrollment, the Commanding
Officer has to inform the Registrar of Reserves whether or not
he is recommended for Fleet Reserve Service and his service
certificate is to be endorsed accordingly (Regulation 11 of Fleet
Reserve).
(c) Qualifications have been specified for enrolment into Fleet
Reserves. Joining Reserves is not a Right (Regulations 4 and 6
of Fleet Reserves).
(d) Recruiting officers are mandated to explain and make the
recruits fully understand terms and conditions of service and
liabilities before they are enrolled into the Navy (Regulation 264 of
Regulations for the Navy).
(e) A Fleet Reservist Certificate will be issued to each person on
enrolment in Fleet Reserves.
26. It is evident from the Regulations that a Sailor after his active
service has to be drafted into Fleet Reserve and it is not an
automatic re-enrollment. There is no specific claim or right to join
the Fleet Reserve as there are terms and conditions which have to
be fulfilled by a person before he can be drafted into Fleet
Reserve. It is also evident that, at the time of initial enrollment
no recruit can be given any guarantee/promise of his being
enrolled into Fleet Reserve as his performance in the active
service and recommendations he receives would decide his
eligibility for enrollment into Fleet Reserve. Therefore even
prior to the promulgation of policy for discontinuance of drafting
into Fleet Reserve from 1976, Respondents 1 and 2 were clearly
at liberty to decide if a Sailor is to be enrolled into Fleet Reserve or
not. In view of the above, we cannot agree with the submission of
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the learned counsel for applicants that they were made to
understand anything else.”
12. The appellants advanced two arguments before the AFT. In the first
instance, it was argued that at the time of their recruitment into the
service, which was before the Government’s order dated July 3, 1976
was passed, they were given to understand that they would be rendering
10 years of active service followed by 10 years of Fleet Service. Thus,
they understood that 50% of the Fleet Service was counted towards
pension to enable them to receive pension. Hence, the Government
was bound by Principle of Promissory Estoppel to accord the aforesaid
benefit to them. Second argument advanced by the appellants was that
the appellants, namely, Direct Entry Artificers and Apprentice Entry
Artificers formed a homogenous class. Thus, when pensionary benefits
were accorded to the Apprentice Entry Artificers, there was no reason to
deny the same to the appellants and such a denial was discriminatory
and violated the provisions of Article 14 of the Constitution of India. Both
these contentions have been negated by the AFT. At the same time, as
already noticed above, on both these aspects, questions of law have
been framed while granting leave to appeal to the appellants.
13. We now proceed to take up the two questions for our consideration.
Question No. 1 - Whether the applicants’ reserve liabilities imposed at
the time of enrolment ipso facto amounted to their being drafted to Fleet
Reserve without any specific order to draft them to the Reserve on
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completion of regular Naval service? If so, whether the period of such
reserve liability as per the stipulated scheme was liable to be taken into
account for computing the length of service of the applicants for pension
purposes?
14. To find an answer to the aforesaid question, we shall have to traverse
through some relevant provisions of the Navy Act, the Naval Regulations
Part-III as well as decision taken by the Government to discontinue with
the policy of drafting into Fleet Reserve. Insofar as Navy Act is
concerned, following provisions therefrom are relevant for deciding the
controversy.
“14. Liability for service of officers and sailors:--
(1) 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 with disgrace, retired, permitted to resign,
or released.
17. Provisions as to discharge.—(4) Every sailor who is
dismissed, discharged, retired, permitted to resign or released
from service shall be furnished by the prescribed officer with a
certificate in the language which is the mother tongue of such
sailor and also in the English language setting forth—
(a) the authority terminating his service;
(b) the cause for such termination; and
(c) the full period of his service in the Indian Navy and the Indian
Naval Reserve Forces.
[184A. Power to make regulations with retrospective effect.—
The power to make regulations conferred by this Act shall
include the power to give retrospective effect, from a date not
earlier than the date of commencement of this Act, to the
regulations or any of them, but no retrospective effect shall be
given to any regulation so as to prejudicially affect the interests
of any person to whom such regulation may be applicable.”
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15. The relevant regulations from the Pension Regulations for the Navy,
1964 are re-produced below:
“78. Minimum qualifying service for pension – Unless otherwise
provided, the minimum service which qualifies for service pension
is fifteen years.
79. Service qualifying for pension and gratuity – (1) All
service from the date of enrolment or advancement to the rank
of ordinary seaman or equivalent to the date of discharge shall
qualify for pension or gratuity with the exception of -----
87. Sailors transferred to the reserve—A sailor transferred to
the reserve after earning a service pension shall be granted
such pension from the date of his transfer.
……..
92. Reservist pension and gratuity--(1) A reservist who is not
in receipt of a service pension may be granted, on completion
of the prescribed naval and reserve qualifying service of ten
years each, a reservist pension of rupees eleven per mensem
or a gratuity of rupees nine hundred in lieu of pension.
(2) A reservist who is not in receipt of a service pension and
whose qualifying service is less than the period of engagement
but not less than fifteen years may, on completion of the period
of engagement or on earlier discharge from the serve otherwise
than at his own request, be granted a reservist pension at
rupees seven hundred and fifty in lieu of pension.”
16. Navy Regulations Part III laid down the conditions of service of sailors in
the Navy. Some of the provisions thereof, with which we are concerned,
are as under:
“261. Recruitment – The Chief of the Naval Staff may recruit
sailors required for the Service.
(2) Recruitment of sailors shall be made through boy entry,
artificer apprentice entry, and direct entry, as necessary….
……..
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268. Engagements – (1) Boys, Artificer Apprentices and Direct
Entry sailors shall be enrolled for co0ntinuous service as
provided in sub-regulation (1) of Regulation 269.
269. Continuous Service – (a) Old Entrants Boys, Artificer
Apprentices and Direct Entry sailors may be enrolled for a
period calculated to permit a period of 10 years’ service to be
completed from the date of attaining 17 years of age or from
the date of being ranked in the Man’s rank on successful
completion of initial training, whichever is later, provided their
services are so long required.
Continuous Service sailors of all Branches shall be liable, if
required, for a further 10 years’ service in the Indian Fleet
Reserve, subject to the provisions of the Regulation for the
Indian Reserve.
(1-A) New Entrants:-
(a) Boys, Artificer-Apprentices and Direct Entry sailors may be
enrolled for a period calculated to permit a period of 15 years
service to be completed from the date of attaining the age of 17
years, whichever is later, provided their services are so long
required.
…….
(1-B) (a) In case of the existing sailors, their period of
engagement shall be governed by sub regulation (1) except that
they shall not be transferred to Fleet Reserve.
……….
rd
(1-C) Persons joining service on or after the 3 July, 1976 shall
be deemed to be New Entrants.”
17. It will also be apt to reproduce Regulation 269 (unamended) as it existed
prior to the amendments carried out in the year 1978, which is as
follows:
“269. Continuous Service: – (1) Boys, Artificer Apprentices and
Direct Entry sailors may be enrolled for a period calculated to
permit a period of 10 years’ service to be completed from the date
of attaining 17 years of age or from the date of being rated in the
Mans rate on successful completion of initial training, whichever
is later, provided their services are so long required.
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Continuous Service sailors of all Branches shall be liable, if
required, for a further 10 years’ service in the Indian Fleet
Reserve, subject to the provisions of the Regulations for the
Indian Fleet Reserve.”
18. We have already reproduced portions of Government of India’s decision
rd
dated 3 July, 1976 whereby transfer of Sailors into Fleet Reserve was
discontinued. Likewise, we have already extracted the relevant portions
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of SRO 106 dated 28 March, 1976. In addition, it would also be
pertinent to note Regulations for Indian Fleet Reserve which are as
follows:
“4. Regulation 4, lays down Qualification criteria in respect of
Character, Efficiency, Medical Status and Age for joining the fleet
reserve.
6. Claim to join Fleet Reserved:--No man can claim to join the
Fleet Reserve as a right.
……..
11. Enrolment:-- The Registrar of Reserves is authorized to enrol
or re-enrol ratings in the Royal Indian Fleet Reserve, acting
under the authority of the Officer Commanding the Royal Indian
Navy.
(a) When an Active Service rating is within six months of
completing his terms of enrolment the Commanding Officer of the
ship in which he is serving is to inform the Registrar whether or
not he is recommended for Fleet Reserve Service and is to
endorse his Service Certificate accordingly.
13. Fleet Reservist Certificate:-- Every man on enrollment or
re-enrollment in Royal Indian fleet Reserve is to be issued with a
Fleet Reservist Certificate (Form RINF.3P). This certificate
identifies the man as a member of the Royal Indian Fleet Reserve
and contains a detachable Emergency Movement Order for use
on General Mobilisation.
19. Regulation 19 lays down mandatory training period for
reservists.
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21. Notations on Service Certificates:-- On the conclusion of
each period of training the Registrar will cause the following
information to be entered in the Service Certificates of the ratings
concerned:--
(a) Character.
(b) Ability in substantive rating held.
(c) Fitness to hold non-substantive rating (vide Article 7(v)]
The Registrar is to sign the Service Certificate on page 4 as being
satisfied that the prescribed training has been carried out and that
the man is in possession of his Fleet Reservist Certificate and
know where to report on mobilization.”
19. Following position emerges from the conjoint reading of the aforesaid
provisions:
(i) Once a person is enrolled as Sailor/Officer in the Indian Navy, he is
liable to serve in the Indian Navy or in the Indian Naval Forces, as the
case may be, until he is discharged, dismissed with disgrace, retired,
permitted to resign or released.
(ii) In the event of discharge, dismissal etc, i.e., at the time of
severance from Naval service, every sailor has to be furnished with a
certificate in his mother tongue and also in English language. Such a
certificate states the authority terminating his services; the cause of such
termination; and the full period of service in the Indian Navy and the
Indian Naval Reserve Forces.
(iii) In order to become qualified to receive service pension, minimum
service of 15 years is required.
20. Calculating the qualifying period for the purpose of pension and gratuity,
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entire service from the date of enrolment or advancement to the rank of
ordinary seaman or equivalent till the date of discharge is to be counted.
Thus, whereas full continuous service in the Navy is to be reckoned for
pension, insofar Fleet Reserve is concerned those who are drafted
thereinto are entitled to count 50% of the period of Fleet Reserve as
reckonable service towards pension.
21. Insofar as, drafting into Fleet Reserve is concerned, Regulations in
respect thereof provide as under:
(i) Those Sailors who are having 10 years’ service as Sailors are
eligible for drafting in Indian Fleet Reserve.
(ii) As per Regulation 269, those who have rendered 10 years’
service, their service is to be treated as continuous service. This
Regulation further provides that continuous service of Sailors of all
branches shall be liable, if required, for a further 10 years’ service in the
Indian Fleet Reserve.
(iii) Regulation 4 of the Regulations for Indian Fleet Reserve lays down
qualification criteria in respect of character, efficiency, medical status
and age for joining the Fleet Service, which means only those who fulfill
qualifications contained in Regulation 4 can be considered for drafting
into Fleet Reserve. Further, Regulation 6 specifically declares that no
person can join the Fleet Reserve as a matter of right. The manner of
enrolment is mentioned in Regulation 11, as per which, Commanding
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Officer has to make a specific recommendation for such an enrolment,
i.e., he has to say as to whether or not he is recommending a particular
Sailor for Fleet Reserve service and his service certificate has to be
endorsed accordingly.
(iv) In case of positive recommendation, a Fleet Reserve certificate
has to be issued to such a person on enrolment in Fleet Reserve.
22. It is clear from the above that liability to serve in the Indian Fleet
Reserve, if required, as stipulated in Regulation 269, is only when such
a Sailor is drafted into Indian Fleet Reserve. There has to be, thus, a
positive act of enrolment in the Fleet Reserve. A person who is enrolled
as Artificer in the Indian Navy and completes 10 years’ of service, cannot
presume that he stands automatically enrolled in Fleet Reserve.
23. So far as Appellant Nos. 2 to 5 are concerned, there was no such
enrolment in Fleet Reserve.
24. In fact, the appellants were conscious of the aforesaid position. That
was the reason that Principle of Promissory Estoppel was invoked on
the ground that since their enrolment was prior to July 03, 1976, the
decision of the Government of India to discontinue transfer of Sailors
into Fleet Reserve as contained in communication dated July 03, 1976 is
not binding on them. Even if we proceed on that basis, the legal position
that has been culled out from the relevant statutory provision and
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enumerated above, clearly shows that there was no promise held out to
these appellants that after the completion of continuous service of 10
years as Sailors, they would be drafted into Fleet Reserve. The Tribunal
has correctly remarked that at the time of initial enrolment no recruit can
be given any guarantee/promise of his being enrolled into Fleet Reserve
as his performance in the active service and recommendations he
receives would decide his eligibility for enrolment into Fleet Reserve.
Therefore, even prior to the promulgation of policy for discontinuance of
drafting into Fleet Reserve from 1976, Respondent Nos. 1 and 2 were
clearly at liberty to decide if a Sailor is to be enrolled into Fleet Reserve
or not. It may be pertinent to mention that the aforesaid view of ours has
not been taken for the first time. We are not treading on unchartered
territory. Precisely, this very question has been decided by a three
1
Judge Bench of this Court in T.S. Das & Ors. v. Union of India & Anr. .
The factual background in which the aforesaid judgment is rendered is
identical as can be seen from the following question posed therein for
determination:
“25. In the absence of an express order of the competent authority
to take the applicants on the Fleet Reserve Service, the moot
question is: whether the applicants can be treated as deemed to
be in the Fleet Reserve Service on account of the stipulation in the
appointment letter—that on completion of 10 years of naval
service as a Sailor, they may have to remain on Fleet Reserve
Service for another 10 years. That condition in the appointment
letter cannot be read in isolation. The governing working
conditions of Sailors must be traced to the provisions in the 1957
Act or the Regulations framed thereunder concerning service
1 (2017) 4 SCC 218
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conditions. From the provisions in the 1957 Act, there is nothing to
indicate that the Sailor after appointment or enrolment is
“automatically” entitled to continue in Fleet Reserve Service after
completion of initial active service period of 10 years. The
provisions, however, indicate that on completion of initial active
service of 10 years or enhanced period as per the amended
provisions is entitled to take discharge in terms of Section 16 of
the Act. The applicants assert that none of the applicants opted for
discharge. That, however, does not mean that they would or in fact
have continued to be on the Fleet Reserve Service after expiration
of the term of active service as a Sailor. There ought to have been
an express order issued by the competent authority to draft the
applicant concerned in the Fleet Reserve Service. In the absence
of such an order, on completion of the term of service of
engagement, the Sailor concerned would stand discharged.
Concededly, retention on the Fleet Reserve Service is the
prerogative of the employer, to be exercised on case-to-case
basis. In the present case, however, on account of a policy
decision, the Fleet Reserve Service was discontinued in terms of
Notification dated 3-7-1976.”
25. The Court reproduced the aforesaid notification dated July 7, 1976 and
continue with the discussion in the following manner:
“27. As noted hitherto, none of the relevant provisions even
remotely suggest that the Sailor is “automatically” transferred to
the Fleet Reserve Service. Whereas, it is expressly provided that
on expiration of the term of service of engagement the Sailor
would be placed on Fleet Reserve Service only if an express order
in that behalf is passed by the competent authority to draft him on
the Fleet Reserve and not otherwise. Section 16 of the Act merely
gives an option to the Sailor to take a discharge after expiration of
term of service of engagement. It is not a deeming provision that if
such option is not exercised by the Sailor concerned, he would be
treated as having been drafted on the Fleet Reserve Service for
another 10 years “automatically”.
28. Regulation 269 spells out the conditions of service. It
reinforces the position that the services of a Sailor would be
continued “so long required” or “if required”. The second part of
sub-regulation (1) of that Regulation uses the expression “if
required”, for further 10 years' service in the Indian Fleet Reserve,
subject to the provisions of the Regulations for the Indian Fleet
Reserve. This view taken by the Tribunal (Principal Bench, New
Delhi) in Niranjan Chakroborty v. Union of India [ Niranjan
19
Chakroborty v. Union of India , 2010 SCC OnLine AFT 803]
commends to us.
29. As aforesaid, on introducing the new policy on 3-7-1976, the
Fleet Reserve was discontinued and instead the Sailors in service
at the relevant time were given an option to continue in active
service for a further term of 5 years. Some of the Sailors opted to
continue till completion of 15 years, who, then became eligible for
“service pension” having qualifying service.
30. The quintessence for grant of reservist pension, as per
Regulation 92, is completion of the prescribed Naval and Reserve
qualifying service of 10 years “each”. Merely upon completion of
10 years of active service as a Sailor or for that matter continued
beyond that period, but falling short of 15 years or qualifying
Reserve Service, the Sailor concerned cannot claim benefit under
Regulation 92 for grant of reservist pension. For, to qualify for the
reservist pension, he must be drafted to the Fleet Reserve Service
for a period of 10 years. In terms of Regulation 6 of the Indian
Fleet Reserve Regulations, there can be no claim to join the Fleet
Reserve as a matter of right. None of the applicants were drafted
to the Fleet Reserve Service after completion of their active
service. Hence, the applicants before the Tribunal, could not have
claimed the relief of reservist pension...”
26. In the absence of any such assurance of enrolment of drafting into Fleet
Reserve, at the time of initial recruitment, the Principle of Promissory
Estoppel cannot be invoked. The Tribunal has, in this behalf, taken note
2
of certain judgments of this Court and on that basis rightly concluded
that mere recruitment/enrolment for active as well as reserve service
without making any order of transfer to Indian Fleet Reserve under
Regulation 269 of Navy Regulation Part III as well as Regulations of
Indian Fleet Reserve, it cannot be treated that any promise was
accorded to the appellants about drafting into Fleet Reserve, at any
2 Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors. (1979) 2
SCC 409; Bakul Cashew Co. & Ors. v. Sales Tax Officer, Quilon & Anr. (1986) 2 SCC 365
20
time. We would, at this juncture, like to reproduce para 31 of T.R. Das
case.
“31. The original applicants contend that if the Government Policy
dated 3-7-1976 is applied to the serving Sailors, inevitably, it will
result in retrospective application thereof to their detriment. That is
forbidden by Section 184-A of the Act. This argument does not
commend to us. In that, the effect of the Government Policy is to
disband the establishment of the Reserve Fleet Service with effect
from 3-7-1976. As found earlier, drafting of Sailors to the Reserve
Fleet Service was not automatic, but dependent on an express
order to be passed by the competent authority in that behalf on
case-to-case basis. The Sailors did not have a vested or accrued
right for being placed in the Reserve Fleet Service. Hence, no right
of the Sailors in active service was affected or taken away
because of the Policy dated 3-7-1976...”
27. It would, however, be pertinent to mention here that in T.R. Das , though
the Court had specifically held that such direct Entry Artificers were not
entitled to reservist pension, they were entitled for special pension, in
terms of Regulation 95 of the Pension Regulations. The relevant portion
of the discussion which ensued on this aspect is contained in paras 34
and 36 of the judgment in T.R. Das and these paras read as under:
“34. The next question is whether the Sailors appointed before
1973 were entitled to a special pension, in terms of Regulation 95
of the Pension Regulations. Indeed, this is a special provision and
carves out a category of Sailors, to whom it must apply. Discretion
is vested in the Central Government to grant special pension to
such Sailors, who fall within the excepted category. Two broad
excepted categories have been noted in Regulation 95. Firstly,
Sailors who have been discharged from their duties in pursuance
of the government policy of reducing the strength of establishment
of the Indian Navy; or secondly, of reorganisation, which results in
paying off of any ships or establishment. In the present case,
clause ( i ) of Regulation 95 must come into play, in the backdrop of
the policy decision taken by the Government as enunciated in the
Notification dated 3-7-1976. On and from that date, concededly,
the Fleet Reserve Service has been discontinued. That, inevitably
results in reducing the strength of the establishment of the Fleet
21
Reserve of the Indian Navy to that extent, after coming into force
of the said policy. None of the Sailors have been or could be
drafted to the Fleet Reserve after coming into force of the said
policy—as that establishment did not exist anymore and the
strength of establishment of the Indian Navy stood reduced to that
extent. Indisputably, the Sailors appointed prior to 3-7-1976, had
the option of continuing on the Fleet Reserve Service after
expiration of their active service/empanelment period. As noted
earlier, in respect of each applicants the appointment letter
mentions the period of appointment as 10 years of initial active
service and 10 years thereafter as Fleet Reserve Service, if
required. The option to continue on the Fleet Reserve Service
could not be offered to these applicants and similarly placed
Sailors, by the Department, after expiration of their empanelment
period of 10 years or less than 15 years as the case may be. It is
for that reason, such Sailors were simply discharged on expiration
of their active service/empanelment period. In other words, on
account of discontinuation of the Fleet Reserve establishment of
the Indian Navy, in terms of Policy dated 3-7-1976 it has entailed
in reducing the strength of establishment of the Indian Navy to that
extent.
xxx xxx xxx
36. Thus understood, all Sailors appointed prior to 3-7-1976 and
whose tenure of initial active service/empanelment period expired
on or after 3-7-1976 may be eligible for a special pension under
Regulation 95, subject, however, to fulfilling other requirements. In
that, they had not exercised the option to take discharge on expiry
of engagement (as per Section 16 of the 1957 Act) and yet were
not and could not be drafted by the competent authority to the
Fleet Reserve because of the policy of discontinuing the Fleet
Reserve Service w.e.f. 3-7-1976. The cases of such Sailors (not
limited to the original applicants before the Tribunal) must be
considered by the competent authority within three months for
grant of a “special pension” from three years prior to the date of
application made by the respective Sailor and release payment
after giving adjustment of gratuity and
death-cum-retirement-gratuity (DCRG) already paid to them from
arrears. They shall be entitled for interest @ 9% p.a. on the
arrears, till the date of payment.”
28. We, thus, answer question no. 1 in the negative and hold that the
appellants are not entitled to count 50% of the Fleet Reserve as they
were never drafted into the said reserve. Consequently, the appellants
22
are not entitled to reservist pension. However, their cases would be
considered for grant of special pension on same lines as was done in
T.R. Das judgment and directed in para 36 of the said judgment.
Question No. 2 - Whether the applicants Nos. 2 to 5 were entitled to be
treated at par with the Apprentice Entry Artificers for pension purposes
only on the ground that both of them belong to the same homogeneous
class of Artificers?
29. Insofar as Apprentice Entry Artificers are concerned they are getting
pension and the appellants’ claim that since Artificer is one
homogeneous class, whether the Entry thereto is after completing the
Apprenticeship course or it is a direct entry (as in the case of
Appellants) all the Artificers are to be treated alike. There is no quarrel
about this proposition. However, in the instant case, we are concerned
with the question as to whether the appellants are eligible for service
pension even after they have rendered only 10 years of service (as they
are held not entitled to count any period of Fleet Reserve in which they
were never drafted). Had Apprentice Artificers also got the pension on
rendition of 10 years’ service, there would have been some force in the
argument of the appellants. However, that is not so. As already noted
above, insofar as Apprentice Entry Artificers are concerned, they had
undergone 4 years’ training in Naval establishment. Thereafter, they
were advanced to the rank of Artificer V and their initial engagement of
10 years’ active service commenced. After one year in the rank of
Artificer Vth Class, these Apprentice Entry Artificers were advanced to
23
the rank of Artificer acting IVth Class. In their cases, the training period
of four years has been counted for considering their eligibility for the
purpose of pension. This has happened pursuant to the judgment of this
3
Court in Anuj Kumar Dey & Anr. v. Union of India & Ors. . In the
cases of Apprentice Entry Artificers, the Government had refused to
reckon the period for the purpose of pension. The question before this
court was as to whether the training period spent on Apprentice Artificers
was liable to be taken into account for pension purposes. The Court
decided the question in favour of the Apprentice Entry Artificers. Thus,
these Apprentice Entry Artificers became entitled to pension on the
inclusion of training period towards the service. Their case is, therefore,
entirely different from the appellant’ who are Direct Entry Artificers and
had no benefit of such training.
30. An attempt was made by learned counsel for appellants to argue that
Anuj Kumar Dey does not lay down correct law as the training period
could not have been reckoned for calculating qualifying period for
pension. However, it is not open to the appellants to raise such an
argument. In the first place, this argument would not enure to the
benefit of the appellants as it would not entitle them to pension in any
case. Even if the contention of the appellants is presumed as correct,
the only effect thereof would be to hold that even Apprentice Entry
3 (1997) 1 SCC 366
24
Artificer are not entitled to pension. We may note, however, that learned
counsel for appellants was candid in his submission that he did not
want Apprentice Entry Artificers to be deprived of their pension.
Secondly, in any case, in the absence of Apprentice Entry Artificers,
such an argument cannot be considered. Thirdly, the law laid down in
Anuj Kumar Dey has held the filed for more than 20 years and there is
no reason to upset the same. For all these reasons, we reject the
contention and answer Question no. (2) against the appellants.
31. As a consequence, this appeal stands dismissed insofar as claim for
reservist pension is concerned. However, their cases for grant of special
pension shall be considered as directed above.
No order as to costs.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
MAY 08, 2018.