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ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI
O.A.NO. 8 OF 2013
WEDNESDAY, THE 22ND DAY OF JANUARY 2014/ 2ND MAGHA, 1935
CORAM:
HON'BLE MR. JUSTICE SHRIKANT TRIPATHI, MEMBER (J)
HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A)
APPLICANTS:
1. EX NAVY DIRECT ENTRY ARTIFICERS ASSOCIATION(EXNDEAA) HAVING ITS REGISTERED OFFICE AT SUSANDHYA, OLD THEVARA ROAD, RAVIPURAM,KOCHI-16 REPRESENTED BY ITS PRESIDENT.
2. SHRI. NARAYANAN MOOSAD (52587)(MCEAP-II),MASTER CHIEF ELECTRICAL ARTIFICER POWER,S/O.PARAMESWARAN MOOSAD, AGED 66 YEARS,RESIDING AT SREENILAYAM, DOWN HILL P.O.,MALAPPURAM-676 519, EX NAVY DIRECT ENTRYARTIFICERS ASSOCIATION REPRESENTED BY ITSPESIDENT.
3. SRI.K.V.YOHANNAN (NO.180134)(CH-EAP),S/O.K.O.VARGHESE, AGED 63 YEARS, RESIDINGAT PALLIPURATHU HOUSE, OLIYAPURAM.P.O.,KOOTHATTUKULAM, ERNAKULAM DISTRICT,PIN – 686 679.
4. SRI.K.V.VISWAMBHARAN (180156)(CH-ERA),S/O.M.A.VASU, AGED 61 YEARS, RESIDING AT4-B CASSABLANCA, VAZHAKKALA, ERNAKULAM,PIN – 682 030.
5. SRI.THOMAS KURUVILLA (52751)(CH-EAP),S/O.KURUVILA THOMAS, AGED 65 YEARS,RESIDING AT PALLATHUSSERI HOUSE,LANE 12, JANATHA ROAD, VYTTILA,KOCHI, PIN – 682 019.
BY ADVS.M/S.DR.B.K.SUBBA RAO, K.SHIBILI NAHA& SURAJ.S. VERSUS
O.A.No.8 of 2013 : 2 :
RESPONDENTS:
1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE , NEW DELHI – 110 011.
2 . THE CHIEF OF NAVAL STAFF, NAVAL HEADQUARTERS, NEW DELHI – 110 011.
3. DIRECTOR (PENSION), INTEGRATED HEADQUARTERS, MINISTRY OF DEFENCE (NAVY), DTE OF PAY AND ALLOWANCES, D II WING, SENA BHAWAN, NEW DELHI – 110 011.
4. THE PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) OFFICE OF THE PCDA(P), DRAUPADIGHAT, ALLAHABAD, U.P – 211 014.
BY ADV.SRI.P.J.PHILIP, CENTRAL GOVT. COUNSEL
O R D E R
VAdm M.P.Muralidharan, Member (A):
1. The first applicant is a registered Association of Ex
Navy Direct Entry Artificers and the other four are all Ex
Direct Entry Artificers of the Navy (hereinafter referred to as
the applicants). The applicants two to five, were discharged
from the Navy after their initial engagement period of 10
O.A.No.8 of 2013 : 3 :
years. As per applicants, they were placed 10 years in
Fleet Reserve. The applicants were not given pension on
their release from service, but have now sought pension
based on the fact that they were placed in Fleet Reserve for
10 years and 50% of the period of reserve would accrue
towards pension. While a request for pension was made
by the applicants (Annexure A5) to Respondent No.2, vide
Annexure A6 they were informed by Respondent No.3 that
they were not eligible for pension. The applicants have
therefore prayed for setting aside the IHQ, MOD (Navy)
letter No.PN/8126/12 dated 25 June 2012 (Annexure A6)
denying them pension. They have also prayed to declare
them entitled for service pension and to declare denial of
service pension to them as unreasonable, discriminatory
and hence in violation of Articles 14 and 16 of the
Constitution of India. They have also sought that the
respondents be directed to sanction pension benefits to them
based on judgments of the Hon'ble Apex Court in Anuj
O.A.No.8 of 2013 : 4 :
Kumar Dey & anr. vs. Union of India ((1997)1 SCC
366, D.S.Nakara & Ors. vs. Union of India (1983 SCR
(2) 165) and this Tribunal's order in T.A.No.41 of 2010.
2. Heard Dr.Subba Rao for the applicants and
Mr.P.J.Philip for the respondents.
3. The learned counsel for the applicants brought out
that the applicants were enrolled into the Navy under
Regulation 268(1) of the Navy Regulations, Part III. They
were enrolled for continuous service as provided in sub-
regulation (1) of Regulation 269. At the time of enrollment,
applicants were given to understand that they would be
rendering 10 years of active service followed by 10 years in
Fleet Reserve. They therefore understood that as 50% of
the 10 years of Fleet Reserve would be counted towards
pension, they would get a pension. Hence the Government
is bound by the principle of promissory estoppel.
O.A.No.8 of 2013 : 5 :
4. The learned counsel for applicants contended that
Regulation 269 provides for an initial engagement of 10
years followed by liability to remain 10 years in Fleet
Reserve. He further submitted that under Section 14 of the
Navy Act, Sailors shall be liable to serve 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. They are also
liable to be recalled to Naval Service in an emergency. As
per the counsel, the applicants fulfilled their contractual
obligation by rendering continuous service of 10 years and
by remaining 10 years in Fleet Reserve with readiness to
report for active service, if recalled and hence the
respondents needed to fulfill their part of the contractual
obligation, in that 50% of the period in Fleet reserve is to be
counted as reckonable service for pension, therefore giving
the applicants a service of 15 years which would make them
eligible for pension. The Certificates of Service of the
O.A.No.8 of 2013 : 6 :
applicants at serial Nos.2 to 5 were produced as evidence
that each applicant was placed in 10 years Fleet Reserve.
5. The learned counsel also brought out that the
respondents have erroneously relied on the Government
order No. AD/5374/2/76/2214/S/D(N.II) dated 03 July 1976
as per which drafting into the Fleet Reserve was
discontinued from 1976 onwards. He further quoted the
Apex Court order in Anuj Kumar Dey & anr. vs. Union of
India ((1997)1 SCC 366, wherein the Apprentice Entry
Artificers who have an initial engagement of 10 years were
given pension counting the training period.
6. Dr.Subba Rao also brought out that the applicants
were enrolled into the Navy prior to July 1976 and hence
retrospective effect cannot be given to their terms and
conditions. This was also the mandate of Section 184 of the
Navy Act, as per his submission. He further brought out
O.A.No.8 of 2013 : 7 :
that vide Sections 19A and 19B of the Navy Act, 1957
provisions still exist for Indian Naval Reserve Force and
hence practice of keeping Sailors in Fleet Reserve on
completion of their engagement is very much in force. In
his view, therefore, the denial of Fleet Reserve benefits to
the applicants by amending Regulation 269 of Navy
Regulations, Part III carried out in 1978 with retrospective
effect was causing prejudice and loss to the applicants in
violation of the Navy Act. Learned counsel also brought out
that based on the Apex Court decision in D.S.Nakara &
Ors. vs. Union of India (1983 SCR (2) 165), Apprentice
Entry Artificers and Direct Entry Artificers, by virtue of the
initial engagement of 10 years active service, were similarly
placed and should be treated alike for privileges and
liabilities and hence pension should also be applicable to
Direct Entry Sailors.
7. Mr.P.J.Philip, the learned counsel for the
respondents brought out that none of the applicants 2 to 5
O.A.No.8 of 2013 : 8 :
and the members of the first applicant Association were
placed in Fleet Reserve. They all were discharged from
service after 1976. He amplified that the applicants were
enrolled in accordance with Regulation 269 of Navy
Regulations, Part III “for 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”. He further
clarified that in accordance with the Regulation, continuous
Service Sailors shall be liable, if required, for a further 10
years service in Fleet Reserve subject to Regulations of Fleet
Reserve. He clarified that right at the initial recruitment
stage it was made clear that they would be drafted into Fleet
Reserve only if required. He also brought out that
Regulations for Indian Fleet Reserve lays down that ”no man
can claim to join the Fleet Reserve as a right”. As regards
the entry in the certificate of service, he clarified that it
O.A.No.8 of 2013 : 9 :
only indicated liability at the time of enrollment. After the
Government of India letter No. AD/5374/2/76/2214/S/D
(N.II) dated 03 July 1976 (Annexure R1), transfer of Sailors
into Fleet Reserve was discontinued. The Regulations for
Navy was also amended vide SRO.No. 106 of 1978 dated
28th March 1978. He clarified that in view of the above,
making specific entries in Service Certificates post 1976; on
drafting into Fleet Reserve or otherwise, had been
dispensed with.
8. The learned counsel further brought out that there
cannot be any estoppel against specific service conditions
of engagement and continuance in Indian Navy. There is no
estoppel against Statute. No estoppel against law. The
relationship of the applicants with the respondents is not
contractual but one of status. Their rights are determined
by statute, statutory rules, which may be framed and
altered by the Government unilaterally without the consent
O.A.No.8 of 2013 : 10 :
of the employees. The applicants have no vested contractual
right with respect to the terms of their service. The
learned counsel cited a number of judgments in this regard
and amplified that in Union of India & Anr vs.
Dr.S.Baliar Sighat 1998 (2) SCC 208 the Apex Court
held that the Government servant will be governed by rules
in force at the time when he retires. He acquires no vested
right by reason of the rules which were in force at the time
he joined Government service. He also relied on the
decisions in Union Public Service Commission vs. Girish
Jayantilal Vaghela, 2006 (2) SCC 482 and Gadigappa
Bhimmappa Meti vs. Balangowda Bhimangowda, AIR
1931 Bombay 561, wherein it is held that no person can,
by the application of the law of estoppel or by any rule of
procedure, acquire or have assigned to him a status or legal
capacity which the substantive law denies to him.
O.A.No.8 of 2013 : 11 :
9. Learned counsel for respondents contended that
promissory estoppel against Government cannot operate to
force it to function against statutory provisions. As per
counsel, by the time the applicants had completed ten years
of active service, the scheme of placing Sailors in reserve
liability was put to an end by the 1976 Notification by the
Government of India read with Regulation 269(1)(B)(a) of
the Navy Regulations, Part II. Hence none of them were
placed in reserve and are not entitled to reserve pension.
There cannot be promissory estoppel contrary to Regulation
269(1)(B)(a) of Navy Regulations, Part III. The learned
counsel further added that as the applicants did not have
service of 15 years they were not eligible for service
pension.
10. On the subject of homogeneity/discrimination
between Direct Entry Artificers and Apprentice Entry
O.A.No.8 of 2013 : 12 :
Artificers, the counsel for the respondents clarified that
while there was some homogeneity in the jobs being
undertaken, the Apprentice Entry Artificers had their length
of service in the Navy counted from the date of taking of
Oath of Allegiance in accordance with the directions of the
Hon'ble Supreme Court (Anuj Kumar Dey & anr. vs.
Union of India ((1997)1 SCC 366). Hence their service
came to 15 years and became eligible for pension. As
regards applicants, who were Direct Entry Artificers, since
they had only 10 years of service they were not eligible for
pension. Since they were not getting pension,
D.S.Nakara's ruling (1983 (1) SCC 305) was not
applicable to them.
11. Mr.Philip also brought out that the orders of this
Hon'ble Bench in T.A.No.82 of 2010 (K.A.Vincent vs. Union of
India & Ors) dated 16th May 2011 and O.A.No. 84 of 2010
(K.K.Ramachandran vs. Union of India & Ors) read with the
O.A.No.8 of 2013 : 13 :
order in T.A.No.492 of 2009 and T.A.No.511 of 2009 dated
10th February 2012 by the Principal Bench have held that
those who are discharged after 1976 are not entitled to
reservist pension. Any order to the contrary in this OA will
be directly contrary to the principles settled by these three
decisions. The decision of Chennai Bench now relied upon
by the applicants was rendered without seeing Annexure R1
herein, i.e., the 1976 order and Regulation 269(1)(B)(a) of
the Navy Regulations, Part III putting an end to Fleet
Reserve. It is per incuriam and directly conflicts with the
above referred three decisions, especially of this Bench.
Learned counsel also contended that it was wrongly held that
the Union of India is prevented by principles of promissory
estoppel from not placing the applicant therein in reserve. It
was therefore also not correct to make an assumption that
the applicant has been placed in the reserve and as such
reservist pension should be paid to him. Bombay Bench of
the Armed Forces Tribunal in O.A.No.42 of 2010 has
O.A.No.8 of 2013 : 14 :
correctly held that the Chennai Bench decision is wrong and
followed the decision by the Principal Bench in this regard.
12. We have considered rival contentions, submissions
and perused records.
13. At this juncture, we would like to clarify that
Applicant No.1 is an Association formed by Ex Navy Direct
Entry Artificers who joined the service between 1966 and
1971 and rendered not less than 10 years of service.
Pension is granted to an individual based on his service
rendered in accordance with relevant Pension Regulations.
Therefore, the application of the Association, based on
generalities is not being looked into. Cases of individual
Applicants 2 to 5, details at Annexures A2 to A5 are being
examined.
14. As per records submitted, Applicant No.2
O.A.No.8 of 2013 : 15 :
Narayanan Moosad, No.52587, Ex Master Chief Electrical
Artificer Power (MC EAP II), was enrolled into the Navy for a
period of 10 years from 17th April, 1967 and was discharged
on 30th April, 1977 on expiry of engagement. Applicant No.3
K.V.Yohannan, No.180134, Ex Chief Electrical Artificer Power
(Ag CHEAP) was enrolled on 20th April, 1971 and
discharged on 30th April, 1981 on expiry of engagement.
Applicant No.4 K.V. Viswambharan, No.180156, Ex Chief
Engine Room Artificer (CH ERA) was enrolled into the Navy
on 18th October 1971 and discharged on 31st October 1981
on expiry of engagement. Applicant No.5 Thomas Kuruvilla
No. 52751, Ex Chief, EAP Power (CH EAP) was enrolled on
19th October 1968 and was discharged on 31st October 1978
on expiry of engagement. There is no notation on record of
their being drafted into Fleet Reserve on expiry of their
active service.
15. Before going into the merits of the case filed by
O.A.No.8 of 2013 : 16 :
the applicants, it will be necessary to refer to the relevant
provisions of Navy Act and other Regulations framed under
it.
16. Sections of Navy Act 1957 applicable in the case
are as follows:
“11. Enrolment:--(1) Save as otherwise provided in
this Act, the terms and conditions of service of sailors,
the person authorized to enrol for service as sailors
and the manner and procedure of such enrolment shall
be such as may be prescribed.
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;
O.A.No.8 of 2013 : 17 :
(b) the cause for such termination; and
(c)the full period of his service in the Indian Navy and
the Indian Naval Reserve Forces.
19A. Reinstatement of persons belonging to the
Indian Naval Reserve Forces on termination of
period of training or actual service with the Indian
Navy:--
19B. Preservation of service rights belonging to
the Indian Naval Reserve Forces when called up
for training or actual service with the Indian
Navy:--
184. Power to Make regulations:-- (1) 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.
- - - - -
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. “
O.A.No.8 of 2013 : 18 :
17. 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
O.A.No.8 of 2013 : 19 :
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 reserve otherwise than at his own
request, be granted a reservist pension at rupees ten per
mensem or a gratuity of rupees seven hundred and fifty in
lieu of pension.”
18. Regulations for the Indian Fleet Reserve, 1940
applicable with regard to eligibility for pension are as
follows:
“3. Personnel on draft to the Fleet Reserve will be
divided into two separate categories, as follows:
Class A. Continuous service ratings in receipt of pensions
other than disability pensions.. . . . . .
Class B.-- Continuous service ratings who have completed
a term or terms of enrolment, but have not qualified for
pension and special service ratings.
…..
32. Transfer from classes “B” to Class “A”-- (a)
Service of continuous service ratings in Class “B” of the
Indian Fleet Reserve will count as half active service time
towards the pension or gratuity applicable to the rating held
(i.e. two years reserve service will count as equivalent to
one years active service)
O.A.No.8 of 2013 : 20 :
19. It therefore emerges from the above regulations
that 15 years is the minimum qualifying service for
pension. While the full continuous service in the Navy
will count towards reckonable service for pension,
those enrolled into Fleet Reserve without earning a
pension from the regular service, will be entitled to
count 50% of their service in Fleet Reserve as
reckonable service towards pension.
20. The regulations that lay down conditions of
service of Sailors in the Navy are given in Navy Regulations,
Part III. Relevant regulations are re-produced below:
“261. Recruitment – (1) 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. . . . . . .
….
O.A.No.8 of 2013 : 21 :
264. Instructions to Recruiting Authorities:--
Recruiting Officers shall be responsible for explaining clearly
to the recruits the conditions of service in general, the
duties of the Branch in which the person is being re-
enrolled......They shall ensure that the recruits fully
understand and accept the conditions of their liabilities to
the service, before they (the recruits) affix their signatures
on the declarations in the Form of Enrollment contracting to
serve the Navy for the period specified therein.....”
“268. Engagements – (1)Boys, Artificer Apprentices and
Direct Entry sailors shall be enrolled for continuous service
as provided in sub-regulation (1) of Regulation 269.
269. Continuous Service – (1) 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
Regulations for the Indian Fleet 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
O.A.No.8 of 2013 : 22 :
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.
…...
(1-C) Persons joining service on or after the 3rd July 1976
shall be deemed to be New Entrants.”
21. The learned counsel for applicants had brought
out that Regulations for the Navy that existed prior to the
amendments in 1978 was applicable to them. Older version
of Regulation 269 is re-produced below:
“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.
Continuous Service sailors of all Branches shall be
liable, if required, for a further 10 year's service in the
O.A.No.8 of 2013 : 23 :
Indian Fleet Reserve, subject to the provisions of the
Regulations for the Indian Fleet Reserve.”
22. In 1976, Government of India modified the
conditions of service procedures vide letter
No.AD/5374/2/76/2214/S/D(N.II) dated 3rd July, 1976,
(Annexure R1). The relevant sections of the letter are given
below:
“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:-- ….
- - - -
(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. “
23. Subsequently, Regulations for the Navy was
amended by the Government of India vide SRO.No.106 of
O.A.No.8 of 2013 : 24 :
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 sub-
regulation (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.
O.A.No.8 of 2013 : 25 :
(b) . . . . . .
(1C) Persons joining service on or after the 3rd July, 1976
shall be deemed to be New Entrants.”
24. Regulations for the Indian Fleet Reserve, which
are relevant in the matter, are re-produced 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 Reserve:--No man can claim to
join the Fleet Reserve as a right. “
…..
“11. Enrolment:-- The Registrar of Reserves is
authorised 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 term 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
O.A.No.8 of 2013 : 26 :
to be issued with a Fleet Reservist Certificate (Form RINF.3).
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 Mobilization.
19. Regulation 19 lays down mandatory training period for
reservists.
“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(c)]
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.”
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
O.A.No.8 of 2013 : 27 :
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
O.A.No.8 of 2013 : 28 :
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 the learned counsel for applicants that they were made to
understand anything else.
27. We will now consider if the principle of promissory
O.A.No.8 of 2013 : 29 :
estoppel can be applied in this given case against the
Government. While explaining the doctrine of promissory
estoppel in Motilal Padampat Sugar Mills v. State of
Uttar Pradesh (AIR 1979 SC 621), the Apex Court held as
follows:
“....where one party has by his words or conduct made to
the other a clear and unequivocal promise which is
intended to create legal relations or affect a legal relation
ship to rise in the future, knowing or intending that it would
be acted upon by the other party to whom the promise is
made and it is in fact so acted upon by the other party, the
promise would be binding on the party making it and he
would not be entitled to do back upon it, if it would be
inequitable to allow him to do so having regard to the
dealings which have taken place between the parties, and
this would be so irrespective whether there is any pre-
existing relationship between the parties or not.”
28. In the matter of Bakul Cashew Co. vs. S.T.O.
(1986) SCC 365, the Apex Court reiterated the same
principle and held as follows:
“Three principles are evolved in order to protect the applicability of doctrine of promissory estoppel against the government. They are (i) that there was a definite
O.A.No.8 of 2013 : 30 :
representation by the Government, (ii) that the person to whom the representation or promise was made, in fact altered their position by action upon such representation and (iii) that he has suffered some prejudices sufficient to constitute an estoppel.”
29. In the matter of State of Haryana vs. Mahavir
Vegetable Oils (P) Ltd., SLP (c) No.16227 of 2009, the
Apex Court while reiterating the principles laid down in
Motilal Padampat Sugar Mills (supra) held that the
doctrine of promissory estoppel is an equitable remedy and
has to be moulded depending on the facts of each case and
not straitjacketed into pigeon holes . The Apex Court
further explained that there cannot be any hard and fast rule
for applying the doctrine of promissory estoppel but the
doctrine has to evolve and expand itself so as to do justice
between the parties and ensure equity between the promisor
and the promisee.
30. We have to see as to what promise had been made
to the applicants and if any promise had been made,
O.A.No.8 of 2013 : 31 :
whether the same was sufficient to attract the doctrine of
promissory estoppel. What is stated by the applicants is that
they were enrolled for 10 years of active service and were
made to understand that on completion, they had to serve
another 10 years in Fleet Reserve. Therefore, according to
the applicants, by this fact itself, the respondents were
bound by the doctrine of promissory estoppel and had no
justification to withdraw therefrom. In our view, the
enrolments of the applicants in the aforesaid manner were
nothing except that their terms and conditions of service
were such as to make them liable to serve in the Indian Fleet
Reserve on completion of active service and to make them
eligible under Regulation 269 for being transferred to Indian
Fleet Reserve. Mere recruitment/enrollment for active as
well as reserve service without making any order of transfer
to Indian Fleet Reserve under Regulation 269 of the Navy
and relevant Regulations of Indian Fleet Reserve cannot be
treated to be a complete promise to place the applicants in
O.A.No.8 of 2013 : 32 :
Fleet Reserve. The question of transfer to Indian Fleet
Reserve arises only on completion of active service and not
prior to that. As brought out earlier, Regulations lay down
conditions to be met during active service to become eligible
for enrollment into Fleet Reserve and hence no
promise/guarantee can be given at the time of initial
enrolment into the Navy of being inducted into Fleet
Reserves. Therefore, whatever promise was made at the
time of enrolment of the applicants was merely a promise to
put the applicants on reserve liability to serve, if required, in
Reserves, so as to make them eligible for being transferred
to Indian Fleet Reserve under relevant regulations and
nothing more. We therefore do not agree with the
submissions that mere enrollment for both active and
reserve service amounts to a complete promise to transfer
the applicants to Indian Fleet Reserve. In view of the
above, the principle of promissory estoppel is not applicable
in this case.
O.A.No.8 of 2013 : 33 :
31. At this juncture it will not be out of context to
bring out that a Constitution Bench of the Hon'ble Apex Court
in Roshan Lal Tandonkunj Behari vs. Union of India,
AIR 1967 SC 1889, had considered the aspects of terms
of service of a Government servant and whether it can be
unilaterally altered by the Government. The Hon'ble Apex
Court held that the terms of service can be altered by the
Government and there is no vested contractual right of the
Government servant. It was amplified that the legal position
of a Government servant is more one of status than of
contract and the hallmark of status being a legal relationship
of rights and duties imposed by public law and not by mere
agreement between the parties. The relevant portion of the
judgment is as follows:
“ It is true that the origin of Government service is
contractual. There is an offer and acceptance in every
case. But once appointed to his post or office the
Government servant acquires a status and his rights
and obligations are no longer determined by consent of
O.A.No.8 of 2013 : 34 :
both parties, but by statute or statutory rules which
may be framed and altered unilaterally by the
Government. In other words, the legal
position of a Government servant is more one of
status than of contract. The hall-mark of status
is the attachment to a legal relationship of rights and
duties imposed by the public law and not by mere
agreement of the parties. The emolument of the
Government servant and his terms of service are
governed by statute or statutory rules which may be
unilaterally altered by the Government without the
consent of the employee. It is true that Art. 311
imposes constitutional restrictions upon the power of
removal granted to the President and the Governor
under Art. 310. But it is obvious that the
relationship between the Government and its servant is
not like an ordinary contract of service between a
master and servant. The legal relationship is something
entirely different, something in the nature of status. It
is much more than a purely contractual relationship
voluntarily entered into between the parties. The duties
of status are fixed by the law and in the
enforcement of these duties society has an interest.
O.A.No.8 of 2013 : 35 :
In the language of jurisprudence status is a condition
of membership of a group of which powers and duties
are exclusively determined by law and not by
agreement between the parties concerned.
32. The applicants have tried to contend that at the
time of discharge, in the Certificate of Service issued to
each of them, a period of engagement in Fleet Reserve of 10
years is indicated. Therefore, the applicants were required
to be treated as in Fleet Reserve on completion of their
normal tenure in active service. In our view, the aforesaid
submission has no substance.
33. Page 1 of the Certificate of Service produced by
the applicants indicates amongst other details, the period for
which they were engaged at the time of enrollment for active
service and for Fleet Reserves. The actual details of their
service are given at subsequent pages of the Certificate. In
all cases a specific date of discharge has been shown, which
O.A.No.8 of 2013 : 36 :
indicates that their engagement with Navy has expired on
that date. Copy of the same documents produced by the
respondents indicates additional details such as payment of
gratuity and verification of the certificates which were not
legible in the copies submitted by the applicants. There is
no specific endorsement in any of the Service Certificates
submitted by the applicants on their being enrolled into
Fleet Reserve, of having undergone reservist training or any
recommendations by their Commanding Officers for their
enrollment into Fleet Reserve. All such entries were
mandated according to regulations in case they were drafted
into Fleet Reserve. This is in accordance with Section 17(4)
(c) of the Navy Act which states that the full period of service
in the Navy and the Indian Naval Reserve Force is to be
indicated. It is also pertinent to bring out that as the
Certificates were given to them on their discharge from
regular service, nobody could in advance have indicated
their period of time spent in Reserve Forces. Such an entry
O.A.No.8 of 2013 : 37 :
could have been made only after they complete their time in
Fleet Reserve. Therefore this endorsement on page 1 of
the certificate merely indicated their liability at the time of
enrolment to be inducted into Fleet Reserve, provided all
other terms and conditions in the regulations were met.
None of the applicants have also produced any Fleet
Reservist Certificate which would have been issued to them
had they been enrolled into Fleet Reserve. In our view,
therefore, a mere endorsement on page 1 of the Certificate
does not prove the claim of the applicants that they served in
Fleet Reserve for 10 years on completion of their active
service.
34. All these facts and the various provisions of the
Act and the Regulations make it amply clear that the
applicants were not enrolled into Fleet Reserves. As all the
applicants were discharged from service after 1976 when the
Government ordered stoppage of drafting into Fleet Reserve,
O.A.No.8 of 2013 : 38 :
we take the word of the counsel for the respondents that the
practice of specific notation in the Certificate of Service of
not being drafted into Fleet Reserves was done away with.
35 . Section 184 of the Navy Act empowers the Central
Government to make regulations on various aspects of Naval
Service including conditions of service. Regulation 184A
confers powers to give retrospective effect to the
Regulations, not earlier than the date of commencement of
the Act. The learned counsel for applicants had contended
that by amending the Regulations for the Navy
retrospectively, the applicants were prejudiced as they were
not transferred into Fleet Reserves. In the instant case, the
amendments carried out to Regulations for the Navy by
SRO.No.106 of 1978 was not with retrospective effect. We
have already brought out that applicants were not given any
guarantee of being enrolled into Fleet Reserves at the time of
their enrolment. What was stated to the applicants at the
O.A.No.8 of 2013 : 39 :
time of enrolment was merely a promise to put them on
reserve liability to serve, if required, in the Reserves so as to
make them eligible for being transferred into Indian Fleet
Reserves under relevant Regulations. The amendments
carried out to the Regulations for the Navy were hence not
prejudicial to the applicants.
36. The learned counsel for the applicants had brought
out that Sections 19A and 19B of the Navy Act still exists,
therefore, the practice of keeping Sailors in Fleet Reserve
on completion of their engagement is in force. While we
agree that Sections 19A and 19B are still maintained in the
Navy Act, they correspond to reinstatement of personnel
called for training or actual service in the Navy by their
current employers and service rights of any person when
called upon for training or actual service. The Government
by its order of 1976 and subsequent amendment to
Regulations for Navy, have only stopped the practice of
O.A.No.8 of 2013 : 40 :
keeping Sailors in Fleet Reserve. This in no way contradicts
Sections 19A and B of the Navy Act. The said sections have
no relevance for claiming pension or otherwise.
37. We do not agree with contentions of the learned
counsel for the applicants on the applicability of
D.S.Nakara's case (supra). In Nakara's case, the Apex
Court had ruled against differentiating pensioners based on
their date of retirement and ruled that the liberalized pension
scheme should be applicable to all pensioners. However,
the Apex Court in Indian Ex-services League vs. Union
of India ((1991) 2 SCC 104 clarified that Nakara's case
has to be considered as one of limited application and its
ambit cannot be held to cover all claims made by retirees
for payment of an identical amount of pension to every
retiree from the same rank. The Apex Court has held that
'one rank one pension' claim was untenable. In the instant
case, the applicants were not eligible or granted pension in
O.A.No.8 of 2013 : 41 :
the first place and hence cannot claim benefits of ruling in
Nakara's case.
38. In our view, the comparison between Apprentice
Entry Artificers and Direct Entry Artificers on the basis of
Apex Court's decision on Anuj Kumar Dey & anr. vs.
Union of India (supra) is also bereft of merit. In Anuj
Kumar Deys' matter (supra), the question whether the
training period spent as Apprentice Artificer was liable to be
taken into account for pension purposes, was involved. The
Apex Court rejected the contention of the Government that
the training period was to be excluded and accordingly
allowed the claim and directed that the training period be
also included towards the service, so after such inclusion
they became entitled to the service pension equal to 15
years of service. But in the matter of Direct Entry Artificers,
no such training period was available as they were directly
recruited to the Navy as Direct Entry Artificer from the open
O.A.No.8 of 2013 : 42 :
market and as such they had no prior service to their credit.
It is also significant to state that the Apex Court while
extending the aforesaid benefit to Apprentice Entry Artificer,
held that the Apprentice Entry Artificers were administered
the Oath of Allegiance the day they joined the training and
that is why the training period was taken into account for
pension purposes. To put it otherwise, in the case of
Apprentice Entry Artificers, their period reckonable for
pension commences from the date they were given the oath
of allegiance as they were already in service, based on the
directions of the Hon'ble Apex Court. In this connection
Dr.Subba Rao tried to contend that the period spent by
applicant Nos.2 to 5 for obtaining Diploma in Engineering
was also liable to be taken into account. In our view, the
period spent for obtaining educational qualifications, in no
circumstances, could be taken into account for computing a
service tenure. In our view, in the case of Direct Entry
Artificers, their reckonable service commences from the date
O.A.No.8 of 2013 : 43 :
of entry into the Navy and all the applicants were discharged
on completion of 10 years of service. Therefore, while
Apprentice Entry Artificers and Direct Entry Artificers do
similar jobs from a certain point in time based on the rank
held, there is a clear difference in their period of service in
the Navy. Thus while Apprentice Entry Artificers become
eligible for pension based on 15 years of service, the
applicants have only 10 years of service and are therefore
not eligible for pension. Neither were any of the applicants
enrolled into Indian Fleet Reserves. Therefore, they are
also not eligible for any reservist pension or counting of the
period in Reserves towards pension. Hence, in our view,
there has been no violation of Articles 14 and 16 of the
Constitution.
39. T.A.No.41 of 2010 of this Bench is a direction to
the Government of India and the three service Headquarters
to have the issues raised by Ex-service men considered by
O.A.No.8 of 2013 : 44 :
an expert Committee for a reasonable and satisfactory
solution. It has no direct bearing on this application.
40. For the reasons set out by us herein above, none
of the applicants are eligible for pension. As a result, the
Original Application fails and is accordingly dismissed
without any order as to costs.
41. Issue free copy of the order to both sides.
Sd/- Sd/-
VICE ADMIRAL M.P.MURALIDHARAN JUSTICE SHRIKANT TRIPATHI MEMBER (A) MEMBER (J)
an (true copy)
Prl.Pvt.Secretary