Armed Forces:
Navy (Pension) Regulations, 1964 – Regns. 78 and 269 – Direct Entry Artificers of Navy – Pension – Entitlement of – Requirement of rendering of minimum service of 15 years – On facts, appellants engaged as Direct Entry Artificers prior to July 1976 – Claim of appellants that after their initial engagement period of 10 years as Artificers, they were placed in Fleet Reserve for a period of 10 years and as per Regulations, 50% of the period of Reserve which is 5 years, to be counted for pension, thus, rendered 15 years of service to receive pensionary benefits – Respondents denied placement of appellants’ in Fleet Reserve for a period of 10 years – Held: As stipulated in Reg 269, liability to serve in the Fleet Reserve, if required, is only when such a Sailor is drafted into Fleet Reserve – There has to be a positive act of enrolment in the Fleet Reserve – 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 – On facts, no promise held out to the appellants that after the completion of continuous service of 10 years as Sailors, they would be drafted into Fleet Reserve – Even prior to the promulgation of policy for discontinuance of drafting into Fleet Reserve from 1976, respondent were clearly at liberty to decide if a Sailor is to be enrolled into Fleet Reserve or not – Further, 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 – Thus, appellants not entitled to count 50% of the Fleet Reserve as they were never drafted into the said reserve – They are not entitled to reservist pension – However, their cases would be considered for grant of special pension – Further, appellants not entitled to be treated at par with the Apprentice Entry Artificers for pension purposes.
Dismissing the appeal, the Court
HELD: 1.1 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. 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. In order to become qualified to receive service pension, minimum service of 15 years is required. [Para 19][388-B-D]
1.2 Calculating the qualifying period for the purpose of pension and gratuity, 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. [Para 20][388-E-F]
1.3 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 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; and (iv) In case of positive recommendation, a Fleet Reserve certificate has to be issued to such a person on enrolment in Fleet Reserve. [Para 21][388-F-G; 389-A-C]
1.4 It is clear from 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. So far as appellant Nos.
2 to 5 are concerned, there was no such enrolment in Fleet Reserve. [Paras 22, 23][389-D-E]
1.5 In fact, the appellants were conscious of the said 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 this Court proceed on that basis, the legal position that has been culled out from the relevant statutory provision and enumerated herein, 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. [Para 24][389-F-G; 390-A]
1.6 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 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 time. [Para 26][392-B-C]
Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors. (1979) 2 SCC 409 : [1979] 2 SCR
641 ; Bakul Cashew Co. & Ors. v. Sales Tax Officer, Quilon & Anr. (1986) 2 SCC 365 : [1986] 1 SCR 610 – referred to.
1.7 Question no.1 is answered in the negative and it is held 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 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. [Para 28][394-D-E]
T.S. Das & Ors. v. Union of India & Anr. (2017) 4 SCC
218 : [2016] 6 SCR 541 – relied on.
2.1 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, the concern is 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. 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 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. [Para 29][394-F-G; 395-A-B]
Anuj Kumar Dey & Anr. v. Union of India & Ors. (1997) 1 SCC 366 : [1996] 9 Suppl. SCR 269 –
distinguished.
2.2 An attempt was made by the 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 Artificer are not entitled to pension. The 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 has held the filed for more than 20 years and there is no reason to upset the same. For all these reasons, Question no. (2) is answered against the appellants. [Para 30][395-E-G]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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