Ex Navy Direct Entry Artificers Assn. vs Union of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6785 OF 2014

EX NAVY DIRECT ENTRY ARTIFICERS ASSOCIATION & ORS. .....APPELLANT(S)

VERSUS

THE UNION OF INDIA & ORS. .....RESPONDENT(S)

JUDGMENT

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 Digitally signed by ASHWANI KUMAR engagement period of 10 years as Artificers, they were placed in Fleet 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 2

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 3

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.

4

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.

5

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 6

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:--

----

7

(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 8

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 9

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 10

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.” 11

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….

……..

12

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.

……….

(1-C) Persons joining service on or after the 3rd 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.

13 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

dated 3rd July, 1976 whereby transfer of Sailors into Fleet Reserve was

discontinued. Likewise, we have already extracted the relevant portions

of SRO 106 dated 28th 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.

14

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, 15

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 16

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 17

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

Judge Bench of this Court in T.S. Das & Ors. v. Union of India & Anr.1.

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 18

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

of certain judgments2 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

Court in Anuj Kumar Dey & Anr. v. Union of India & Ors. 3. 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.