SUPREME COURT OF INDIA
Union of India
Versus
Raj Kumar
&
Union of India
Versus
P. Yadav
(K.T. Thomas, D.P. Mohapatra and Ruma Pal, JJ.)
Civil Appeal No. 3345 of 2000 (Arising out of S.L.P. (C)
No. of 9839 1999) &
Civil Appeal No. 3346 of 2000 (Arising out of S.L.P. (C)
No. 16848 of 1999).
10.05.2000
JUDGMENT
D.P. Mohapatra, J.
Leave granted.
2. The question that arises for determination in these appeals
is whether an Artificer Apprentice of Indian Navy who has been given a
re-engagement for a certain period after obtaining his consent for it is
entitled to withdraw the consent and demand his release from the force as of
right ? Another question which also arises is what bearing the decision of
this court in Anuj Kumar Dey and Another v. Union of India and others,
1997(1) SCC 366 : 1997(1) SCT 412 on the above question.
3. In the appeal arising from SLP (C) No. 9839 of 1999,
the respondent R.P. Yadav has already been released from the force in
compliance with the direction of the Delhi High Court in the impugned
judgment. Indeed in the Order dated 14-2-2000, this Court recorded the
submission of Mr. Soli J. Sorabjee, learned Attomey General for India, that
so far as the respondent R.P. Yadav is concerned, the Union of India is only
interested in having the question of law decided and even if it is decided in
favour of the Union of India, they will not deny the benefit which R.P. Yadav
has claimed in this petition. The period or re-engagement granted in the case
of R.P. Yadav has also expired. But in the case of Raj Kumar, the respondent
in the appeal arising from SLP (C) No. 16848 of 1999, the period of
re-engagement granted to the said respondent is due to expire on 31st
January, 2002. Therefore, it will be convenient to refer to the relevant
facts in the case of Raj Kumar that is the civil appeal arising from SLP (C)
No. 16848 of 1999.
4. Raj Kumar was appointed as an Artificer Apprentice in
the Indian Navy on 14-1-1983. The period of initial engagement of 15 years
expired on 31-1-1998. Before expiry of the said period he exercised option
for re-engagement for a further period of four years and signed the requisite
papers on 26-4-1996. The option was accepted and re-engagement till 31-1-2002
was approved by the competent authority. On 9-4-1997, the respondent made a
request for withdrawal of his option for re-engagement and cancellation of
the order. The request was turned down by the authority vide the rejection
order dated 11-6-1997. He filed the writ petition, CW No. 3833 of 1997,
before the Delhi High Court seeking the following reliefs :
"[i] issue a writ of
certiorari or any other appropriate writ, order or direction quashing the
impugned order dated 11-06-97.
[ii] issue a writ of mandamus or
any other appropriate writ, order or direction directing the respondents to
release the petitioner on the scheduled date of 31-01-98 and grant him the
pension and other retiremental benefits as applicable to on the expiry of 15
years including 4 years training period."
5. The main contention raised by
the respondent in support of his case was that he had given his option for
re-engagement under the impression that the period of 4 years of initial
training after appointment was not to be counted for the purpose of
qualifying service for pension and therefore he has to serve for four years
more to earn pension under the rules. This Court in A.K. Dey and another v.
Union of India and others (supra) ruled that the period of initial training
is also a part of qualifying service for the purpose of pension. The
contention by the respondent was that in view of the change in the legal
position brought about the decision of this Court, it is no more necessary
for him to continue in service and he should be released from the force with
all retiral benefits with immediate effect. A learned single Judge of the
High Court of Delhi by the Judgment dated 4th May, 1999, accepted the case of
the respondent, allowed the writ petition and issued the direction, "the
respondents shall release the petitioners and send them to Commodore, Bureau
of Sailors Cheetah Camp, Mankhurd, Mumbai-400 088, within 3 months for this
purpose". The learned Judge further ordered that the respondents shall
pass appropriate orders releasing the prisoner granting him all retiral
benefits. The respondents in the writ petition filed letters patent appeal,
LPA No. 327 of 1999, challenging the above judgment\order of the learned
single Judge. The appeal was dismissed by a Division Bench of the High Court
by the Judgment dated 3-8-1999, which is under challenge in the present
appeal filed by the respondents of the writ petition.
6. The factual position in the
case of R.P. Yadav is similar on all material aspects excepting the
difference as noted above.
7. The case of the respondents in
the writ petition, shortly stated, was that an Artificer Apprentice who is
granted re-engagement for a certain period after obtaining his consent cannot
subsequently resile from it and cannot claim release from the force as a
matter of right. It was the further case of the respondents that the decision
of this Court in A.K. Dey (supra) has no bearing on the controversy raised in
the case.
8. On the case of the parties
gist of which has been stated above, the points formulated earlier arise for
determination. The thrust of the contentions of Shri Altaf Ahmed, learned
Additional Solicitor General was that the practice prevailing in the Navy is
to ask for option of the Artificer Apprentice concerned, his option for
re-engagement much before (one year) completion of the initial period of
engagement (fifteen years then) so that the authorities may have sufficient
time to collect informations about the vacancy position and proper planning
for maintaining the strength of the Naval Force can be made well in time.
This, according to the learned counsel is necessary to keep the force in
readiness for any eventuality. Elucidating the point, the learned counsel
submitted that if the case of the respondent is accepted then an Artificer
Apprentice who is a `Sailor' as held by this Court in A.K. Dey (supra), can
just walk out of the force at any time according to his sweet will and such a
situation will seriously erode the discipline and efficiency of the Navy.
9. Shri K.G. Bhagat, learned
counsel appearing for the respondent, on the other hand, contended that in
A.K. Dey (supra), this Court has held that the period of initial training of
four years as an Artificer Apprentice is to be taken into account for the
purpose of determining the qualifying service for pension which under the
service rules\regulations is 15 years. This position came to the knowledge of
the respondent and the authorities concerned only after the Judgment in A.K.
Dey's case was rendered. The position of law laid down by this Court is
binding on the authorities concerned and therefore they cannot stand on the
way of release of the respondent from the force on completion of 15 years
which is also the qualifying service for pension. The learned counsel further
contended that it is how the matter has been understood by officers of the
department which is evident from the letter HQNTG\3\ADM[S]\I of the Director
(ADL) dated 9-4-1997, recommending the case of the respondent for release.
10. In our view the answer to the
first question rests on the interpretation of relevant provisions of the Navy
Act, 1957, The Navy (Discipline and Misc. Provision) Regulation, 1965 and
Navy Order No. Stp 17 of 1994 regarding re-engagement of `Sailors' (RP\0805\93).
In Section 3(20) "sailor" is defined as a person in the naval
service other than an officer. In Section 11, it is laid down inter alia,
that no person shall be enroled as a sailor in the Indian Navy for a period
exceeding 15 years (subsequently amended as 20 years) in the first instance.
In Section 14(1) it is provided that subject to the provisions of sub-section
(4), officers and sailors shall be liable to serve in the Indian Navy or the
Indian Naval Reserve Forces, as the case may be, until they are duly
discharged, dismissed, dismissed with disgrace, retired, permitted to resign,
or released. In sub-section (2), it is laid down inter alia that no sailor
shall be at liberty to resign his post except with the permission of the
prescribed officer.
11. Chapter V contains the
provisions regarding conditions of service. In Section 15, which deals with
tenure of service of officers and sailors it is declared in sub-section (1)
that every officer and sailor shall hold office during the pleasure of the
President. In sub-section (2), it is laid down that subject to the provisions
of this Act and the regulations made thereunder, - (a) the Central Government
may discharge or retire from the naval service any officer; (b) the Chief of
the Naval Staff or any prescribed officer may dismiss or discharge from the
naval service any sailor. In Section 16, it is provided inter alia that a
sailor shall be entitled to be discharged at the expiration of the term of
service for which he is engaged unless - (a) such expiration occurs during
active service in which case he shall be liable to continue to serve for such
further period as may be required by the Chief of the Naval Staff; (b) he is
re-enrolled in accordance with the regulations made under this Act. Section 17
which makes provision as to discharge provides in sub-section (1) that a
sailor entitled to be discharged under Section 16 shall be discharged with
all convenient speed and in any case within one month of becoming so
entitled. In sub-section (3) of the said section it is laid down that
notwithstanding anything contained in the preceding sub-sections, an enrolled
person shall remain liable to serve until he is duly discharged. This
provision is made subject to Section 18 which makes provision regarding savings
of powers of dismissal by Naval tribunals.
12. Chapter VI contains the
provisions regarding service privileges.
13. In Chapter VII are included
the provisions regarding pay, pension, etc. and maintenance of families.
14. Chapter VIII contains the provisions
regarding articles of war. In Section 41, it is provided inter alia that
every person subject to naval law, who (a) deserts his post shall be punished
with imprisonment for a term which may extend to two years or such other
punishment as is hereinafter mentioned.
15. Chapter XX which deals with
provisions regarding regulations provides in Section 184(1) that the Central
Government may, by notification in the official Gazette, make regulations for
the governance, command, discipline, recruitment, conditions of service and
regulation of the naval forces and generally for the purpose of carrying into
effect the provisions of this Act.
16. Reliance has been placed on
the Navy Order No. (Str.) 17 of 1994 by learned Additional Solicitor General
in which are contained the provisions regarding re-engagement of sailors. In
introduction to this Navy Order it is stated inter alia that the period of
enrollment in respect of non-Artificer\Artificer sailor and terms and
conditions governing their further re-engagement of service have been laid
down in this Navy Order. In clause (4) it is declared grant of re-engagement
is subject to service requirement, and is not to be construed as a matter of
right. Depending upon the requirement of service a sailor can be re-engaged
only if he fulfills the conditions set out in clause (4). The criteria for
re-engagement are provided in clause (5) of the Order.
17. In clause (6) it is laid down
that a sailor is required to exercise his option for re-engagement for
further service on the following occasions :
(a) On receipt of Expiry of
Engagement Serial from CABS.
(b) On selection for higher rank
professional courses\specialist courses\non-professional pre-promotion
courses in India.
(c) On selection for Deputation
for new acquisitions\courses postings abroad.
18. In clause (13) provision is
made, inter alia, that on publication of Expiry of Engagement Serial if a
sailor does not wish to re-engage for further service a certificate of
unwillingness as per Appendix `D' to this order is obtained from him. A copy
of this certificate is to be retained with sailor's service documents and
another forwarded to the Bureau of Sailors, Bombay. Under sub-clause (c) of
this Regulation it is provided that sailors who have once expressed their
unwillingness to sign an undertaking for further service and subsequently
wish to be re-engaged on promotion, will be considered for re-engagement only
if they are willing to sign for a minimum period of two years, provided the
request is put up at least nine months prior to the date of release. In the
said provision it is expressly declared that "short term re-engagements
of one to nine months in order to earn pension of the rank will not be
granted". (emphasis supplied)
19. In clause (16) of the order
it is made explicit that re-engagement is a service requirement, therefore,
there is no provision to give re-engagement to sailors only on compassionate
grounds; however, while reviewing the re-engagement cases of deserving cases,
the welfare of sailors is also given due consideration to the possible
extent.
20. Clause 18 of the Naval order
which is important for the purpose of the present case reads as follows :
"18. Cancellation of Re-engagement.
- Once re-engagement has been granted to a sailor consequent to his
willingness, the engagement will generally not be cancelled due to any
altered circumstances affecting the sailor. The sailor will be required to
serve upto the period re-rengaged for."
21. The provisions of the Naval
Str. 17, leave no manner of doubt that re-engagement of sailors can neither
be claimed by a sailor as a matter of right nor can cancellation or
re-engagement and release from the force be claimed by a sailor as a matter
of right. It is to be decided by the competent authority keeping in view the
relevant factors, the most important one being the service requirements.
22. From the conspectus of the
relevant provisions of the Act, the Regulations and the Navy Orders including
those noted above, the position is manifest that the Naval Service is to be
maintained as a highly disciplined service always kept in readiness to face
any situation of emergency. The personnel of the naval service are provided
with various facilities and privileges different from those available to
other civil services.
23. As noticed earlier in Section
16 of the Act a provision is made that a sailor shall be entitled to be
discharged at the expiration of the term of service for which he is engaged.
One of the circumstances when this general rule shall not apply is that he is
re-enrolled in accordance with the requirements made in the Act. No provision
in the Navy Regulations, 1965, has been brought to our notice which expressly
or by implication provides that a sailor can at any time during the
subsistence of period of re-engagement demand release from service. On the
contrary a fair reading of the provisions of the Regulations shows that a
very high standard of discipline is to be maintained by members of the Naval
Force including sailors. Under Regulation 127 sailors who may have quit their
ships without leave, or have overstayed their leave or have improperly
absented themselves when detached on duty, and who may be apprehended before
the expiration of seven days, beyond the precincts of a dockyard or other
government establishment in which they may have been employed, shall be
treated either as absentees or as deserters, according to the circumstances
which are to be judged by their respective commanding officers. From
provisions in the Regulations it is also manifest that stringent measures of
punishment are prescribed for any act of indiscipline. It is also a matter of
common knowledge that the Naval Force which is entrusted with the sacred duty
of guarding the shores of the country against any form of aggression should
be a highly disciplined and efficient service.
24. An incidental question that
arises is whether the claim made by the respondents to be released from the
force as of right is in keeping with the requirements of strict discipline of
the Naval Service. In our considered view the answer to the question has to
be in the negative. To vest a right in a member of the Naval Force to walk
out from the service at any point of time according to his sweet will is a
concept abhorrent to the high standard of discipline expected of members of
defence services. The consequence in accepting such contention raised on
behalf of the respondents will lead to disastrous results touching upon security
of the nation. It has to be borne in mind that members of the defence
services including the Navy have the proud privilege of being entrusted with
the task of security of the Nation. It is a privilege which comes the way of
only selected persons who have succeeded in entering the service and have
maintained high standards of efficiency. It is also clear from the provisions
in Regulations like Regulations 217 and 218 that persons, who in the opinion
of the prescribed authority, are not found permanently fit for any form of
naval service may be terminated and discharged from the service. The position
is clear that a sailor is entitled to seek discharge from service at the end
of the period for which he has been engaged and even this right is subject to
the exceptions provided in the Regulations. Such provisions, in our
considered view, rule out the concept of any right in a sailor to claim as of
right release during subsistence of period of engagement or re-engagement as
the case may be. Such a measure is required in the larger interest of the
country. A sailor during the 15 or 20 years of initial engagement which
includes the period of training attains a high degree of expertise and skill
for which substantial amounts are spent from the exchequer.
25. Therefore, it is in the
fitness of things that the strength of the Naval Force to be maintained is to
be determined after careful planning and study. In a situation of emergency
the country may ill afford losing trained sailors from the force. In such a
situation if the sailors who have completed the period of initial engagement
and have been granted re-engagement demand release from the force and the
authorities have no discretion in the matter, then the efficiency and combat
preparedness of the Naval Force may be adversely affected. Such a situation
has to be avoided. The approach of the High Court that a sailor who has
completed 15 years of service and thereby earned the right of pension can
claim release as a matter of right and the authority concerned is bound to
accept his request does not commend us. In our considered view, the High
Court has erred in its approach to the case and the error has vitiated the
judgment.
26. At this stage it will be
relevant to deal with the contention which has been raised on behalf of the
respondents that they agreed for re-engagement only for the reason that they
were not eligible to receive pension under the Navy (Pension) Amendment
Regulations, 1982, and since that position no longer holds good in view of
the decision of this Court in Anuj Kumar Dey's case (supra) they are entitled
to withdraw the option given by them earlier. This contention is wholly
unacceptable and has to be rejected. Reasons for which a sailor may exercise
option for re-engagement may be very many. Such reasons will vary from person
to person. No provision in the Act or Regulation has been placed before us
which shows that the sailor is required to state the reason in support of the
option given by him for re-engagement. Therefore, the reason which played in
the mind of the sailor concerned to exercise option in favour of
re-engagement is not relevant for determination of the question raised in the
case. In that view of the matter the decision of this Court in Anuj Kumar
Dey's case (supra) is of little assistance to the respondents in the case.
All that was decided by this Court in that case is that the training period
as Artificer Apprentice, will be included in the computation of the
qualifying period of service for earning pension for the reason that during
the period of training as Artificer Apprentice the sailor was in the service
of the Navy. This Court did not consider any other question which may have a
direct or indirect bearing on the controversy raised in the present case. It
follows that the decision of this Court in Anuj Kumar Dey's case (supra)
cannot provide a legitimate basis for claim of the respondents to be
discharged from the Naval force as a right.
In the result the appeals are
allowed. The judgment of the learned single Judge of the High Court in C.W.P.
No. 3833\97 dated 4.5.99 as confirmed by the Division Bench of the High Court
of Delhi in L.P.A. No. 327 of 1999 and C.W.P. No. 1368\98 as confirmed in
L.P.A. No. 579\98, are set aside. There will, however, be no order as to
costs.
Ruma Pal, J.
27. I have read the draft
judgment prepared by my learned Brother Mohapatra, J. I wish to express my
respectful inability to concur with the reasoning and the conclusion reached.
In my opinion, the impuged deserves to be confirmed. Although the facts have
been set out by Brother Mohapatra, J. as I have taken a different view, I
have stated the facts which to my mind are relevant, again.
28. The respondents in both the
appeals are sailors. Both joined the service of the Indian Navy as Artificer
Apprentices for a period of 15 years from the date of their respective
appointments. The question involved in both the appeals is whether the
respondents can be compelled to serve beyond the period of their initial
engagement.
29. The terms and conditions of
service of sailors such as the respondents, are governed by the Navy
(Ceremonial, Conditions of Service and Miscellaneous Provision) Regulations,
1963 (referred to as the `Regulations') which were framed under Section 184
of the Navy Act, 1957 (referred to as the Act).
30. Section 11 relates to the
enrolment of sailors. Section 11(2) of the Act, as it stood at the material
time and insofar as it is relevant, prescribed that :
"11. Enrolment -
(1) xxx xxx xxx
(2) No person shall be enrolled
as a sailor in the Indian Navy for a period exceeding fifteen years in the
first instance..........
(3) xxx xxx xxx"
Similarly, the Regulations
contain corresponding provisions in Regulation 268(1) and Regulation 269[1A].
Reg. 268(1) says "Boys,
Artificer Apprentices and Direct Entry Sailors shall be enrolled for
Continuous Service as provided in sub-regulation (1) of Regulation 269."
31. In 1978, Reg. 269(1) was
replaced by Reg. 269[1A]. It provides for - "New Entrants :
[a] Boys, Artificer Apprentice
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, which ever is later, provided
their services are so long required."
32. At the end of the period of
initial engagement or enrolment for continuous service, a sailor is entitled
to be discharged. Thus Section 16 of the Act provides :
"Discharge on expiry of
engagement. -
Subject to provisions Section 18,
a sailor shall be entitled to be discharged at the expiration of the term of
service for which he is engaged unless -
(a) xxx xxx xxx
(b) he is re-enrolled in
accordance with the regulations made under this Act."
33. Re-enrolment of sailors such
as the respondents is provided for in Regulation 268 Sub-regulations"
(2) and (3) (a) & (b) :
"268. Engagements
(2) Re-enrolment of Continuous
Service sailors shall be as provided in sub-regulation (3).
(3)(a) Except as provided in
Regulation 270, Continuous Service men who, after completing the period of
their initial Continuous Service enrolment, volunteer and are permitted to
continue to serve, shall, subject to the provisions of Regulation 269(2), be
enrolled by the Captain Naval Barracks, for a period not exceeding that
required to complete the service necessary to qualify for the minimum
pension. In exceptional cases, however, where the exigencies of the Service
so warrant, the prior sanction of the Chief of the Naval Staff may be
obtained instead for the re-enrolment of the sailor for a period not
exceeding - 8 years.
3(b) Re-enrolment after
completing the necessary qualifying service for minimum pension, shall
normally be allowed for a period not exceeding 2 years at a time, subject to
the proviso in explanation (ii). Such re-enrolment for the first spell of 2
years shall be made by the Captain Naval Barracks, Bombay, but further
re-enrolment of two years at a time may be made by the Captain Naval Barracks
with the prior approval of the Chief of the Naval Staff. In cases, however,
where the exigencies of Service so warrant, re-enrolment on completion of the
necessary qualifying service for minimum pension for a period not exceeding 5
years at a time may be made, subject to the proviso in Explanation (ii), by
the Captain Naval Barracks, with the prior approval of the Chief of the Naval
Staff."
(emphasis added)
34. The period of service
necessary to qualify for pension is contained in Regulation 78 of the Service
Pension and Gratuity Pension Regulations (Navy), 1964 :
"78. Minimum Qualifying
Service for pension : Unless otherwise provided, the minimum service which
qualifies for service-pensions is fifteen years."
35. Is clear from a reading of
these provisions that (i) a sailor can initially be engaged for a maximum
period of 15 years or for a lesser initial period and re-enrolled for the
balance period of 15 years; (ii) if a sailor is initially engaged for 15
years he is entitled to get pension; (iii) that a sailor is entitled to ask
for his discharge at the end of his initial engagement; (iv) any extension of
a sailor's service beyond the period of 15 years can be made for two years at
a time. Any re-enrolment for more than two years can be made if the
exigencies of service so warrant and with the prior approval of the Chief of
Naval Staff.
36. The procedure according to
which a sailor may be re-engaged after the initial period of service has been
provided by a Navy Order. Regulation 2(i) defines Navy Order as meaning
"an order issued by the Chief of the Naval Staff". In terms of Navy
Order No. STR. 17\94 both non-artificer\artificer sailors could apply for
further re-engagement of service once their initial period of service was
over subject to certain conditions. Relevant extracts of the paragraphs of the
Navy Order are :
6. Occasions for Re-engagement. A
sailor is required to exercise his option for re-engagement for further
service on the following occasions :-
(a) On receipt of Expiry of
Engagement Serial from CABS (Commodore Bureau of Sailors).
(b) xxx xxx xxx
(c) xxx xxx xxx
7. Responsibility for ensuring
Re-engagement.
(a) xxx xxx xxx 3t3_
(b xxx xxx xxx
(c) Recommendations for
re-engagement in all cases are to be forwarded to the Commodore, Bureau of
Sailors, Bombay, in duplicate on the proforma produced at Appendix `A' to
this order. As Expiry of Engagement Serial is published by CABS 24 months in
advance the recommendations for re-engagement of sailors are to reach CABS
well in time, but not later than 16 months prior to the date or release.
(d) xxx xxx xxx
xxx xxx xxx
8. Authority to grant
re-engagement
(a) The Commodore Bureau of
Sailors Bombay. The powers to grant re-engagement to sailors including
sailors in low medical category, up to 25 years of service have been
delegated to the Commodore, Bureau of Sailors, Bombay.
9. Period of Re-engagement.
(a) The sailors shall be
re-engaged in spells of not exceedings three years and not less than one year
provided it is not a course\deputation requirement. However, no sailor shall be
re-engaged beyond the age of superannuation as specified in para 10 below.
(b) On completion of pensionable
service the sailors will normally be re-engaged for the following periods :
(i) In spells of not exceeding 3
years at a time up to 25 years of service after expiry of initial engagement.
xxx xxx xxx
(c) Notwithstanding the above,
the sailors of Artificer Cadre and Submarine Branch will be governed by
separate re-engagement norms in force time to time. Sailors of Submarine
Branch, on expiry of initial engagement, will be granted further
re-engagement in the Submarine Cadre subject to availability of vacancies in
the cadre. Otherwise, if re-engaged, they will be reverted to general
service. Therefore, at the time of requesting for re-engagement, they are to
give an undertaking as per Appendix `B' to this order that in case of
Submarine Cadre becoming over borne (overborne ?) they are liable to be
reverted to general service.
xxx xxx xxx
xxx xxx xxx
13. Unwillingness for Re-engagement.
[Unwillingness for Re-engagement.
(a) On publication of Expiry of
Engagement Serial if a sailor does not wish to re-engage for further service
a certificate of unwillingness as per Appendix `D' to this order is obtained
from him. A copy of this certificate is tto be retained with sailor's service
documents and another forwarded to the Bureau of Sailors, Bombay.
(b) Requests for signing for
further service from sailors who have once expressed unwillingness, are not
to be entertained under any circumstances, e.g., changed domestic
circumstances, loss of prospective employment opportunity etc. as this upsets
manpower planning, recruitment and progress of pension papers.
(c) However, sailors who have
once expressed their unwillingness to sign an undertaking for further service
and subsequently wish to re-engage on promotion, will be considered for
re-engagement only if they are willing to sign for a minimum period of two
years, provided the request is put up at least nine months prior to the date
of release. Short term re-engagements of one of nine months in order to earn
pension of the rank will not be granted.]
16. Re-engagement on
Compassionate Grounds. - Re-engagement is a service requirement, therefore
there is no provision to give re-engagement to sailors only on compassionate
grounds. However, while reviewing the re-engagement cases of deserving case,
the welfare of sailors is also given due consideration to the possible
extent.
18. Cancellation of
Re-engagement. - Once re-engagement has been granted to a sailor consequent
to his willingness, the engagement will generally not be cancelled due to any
altered circumstances affecting the sailor. The sailor will be required to
serve upto the period re-engaged for."
37. As already noted, both the
respondents were initially appointed for a period of 15 years. R.P. Yadav
(respondent in S.L.P. (C) No. 9839 of 1999) was appointed in January 1981 and
Raj Kumar (respondent in SLP (C) No. 16848 of 1999) was appointed on
14.1.1983. Therefore, the period of 15 years as far as R.P. Yadav is
concerned, was to expire on 31st January 1996 and as far as Raj Kumar is
concerned it was to expire on 31st January, 1998. Of this period, both the
respondents were required to and in fact served for 4 years in initial
training.
38. Till 1996 the appellants
proceeded on the basis that the period of training would not be counted in
calculating the 15 years of service required to be completed for pension. On
that basis two separate notices called the "Expiry of Engagement Serial"
were issued to Yadav and Kumar two years prior to the completion of their
service for which they were initially enrolled, indicating the dates of
expiry of their engagements as 1996 and 1998 respectively and also mentioning
that they should apply for re-engagement to qualify for pension. In other
words although each of the respondents had put in 15 years of service, by
excluding the 4 year training period they were told that they had each
completed only eleven years of pensionable service and that:
"sailors not completing
minimum pensionable service and (are ?) required to re-engage for the
same."
39. Accordingly in terms of
paragraph 6(a) of Navy Order STR 17\94 quoted earlier, the respondents
applied for re-engagement for a further period of four years so that they
could qualify for pension. Their re-engagement was also allowed by the
appellants.
40. To use the appellants'
language in their counter-affidavit before the High Court,
"The period of engagement in
case of Artificer Apprentice after completion of the initial engagement had
been fixed as 4 years in the first spell to enable them to complete
pensionable service as per para 9 of No. (Str.) 17\94.
41. What is noteworthy is that no
other reason, let alone, any "exigency of service" under Reg.
268(3)(b), was mentioned for re-engaging the respondents. But with this,
according to the appellants' counter-affidavit to the writ petition,
"the contract (of re-engagement) was complete."
42. On 28.1.1996, this Court in
Anuj Dumar Dey and another v. Union of India and others, 1997(1) SCC 366 held
that there was no basis for the appellants not counting the training period
as service for the purpose of pension. It was said :
"The qualifying period for
earning pension is service of 15 years under the Navy..........There is
little doubt that the training period as Artificer Apprentice will have to be
included in the computation of the qualifying period of service."
43. In view of the decision in
Anuj Kumar Dey's case, on 7.7.1997 R.P. Yadav wrote to the Directorate of
Naval Design for cancellation of his application for re-engagement and for
release from service as he had already completed the minimum pensionable
service. R.P. Yadav's case was forwarded to the appellant No. 3 in the
following language :
"It is understood that the
sailor has already completed the requisite period towards pensionable
service. It is therefore requested that the sailor be released from service
at the earliest."
49. Similar prayer was made by
Raj Kumar to the Director, Head Quarter Naval Technical Group who, while
forwarding the request to the Commodore, Bureau of Sailors, "strongly
recommended" that Raj Kumar's "re-engagement may be cancelled and
he may be permitted to be released from the service as per present engagement
i.e. on 15.1.1998".
45. Both the requests were turned
down by the Commodore in substantially similar language. The letter of
rejection as far as R.P. Yadav is concerned is dated 20.1.1998 and as far as
Raj Kumar is concerned the rejection was on 11.1.1997. The ground of
rejection being the same it is sufficient if the letter dated 11.1.1997, is
quoted. It reads :
"It is intimated that above
named sailor had requested for further re-engagement for 4 years to earn
minimum pensionable service. Accordingly CABS approved his re-engagement and
IN 441 (a) for the period of 15 Jan. 1998 to 31 Jan. 2002 was forwarded to HQ
RTG (Banalore) and same was received duly signed by the sailor.
The cancellation of re-engagement
for further service intimated vide your letter ibid is not in order and
cannot be accepted. In this connection para 18 of No (Str) 17\94 is relevant.
In view of the above, it is
stated that sailor's re-engagement for the period from 15 Jan. 1998 to 31
Jan. 2002 is final and cannot be changed at this stage."
46. Challenging the rejection of
their requests for release from service, both the respondents filed two
separate writ applications before the Delhi High Court. R.P. Yadav's writ
application was allowed by a learned Single Judge on 23.10.1998. Raj Kumar's
application was allowed by another learned Judge of the High Court on 4th
May, 1999. By the separate decisions, the respondents were directed to be
released from service. The appeals preferred from these decisions were
dismissed by the Division Bench.
47. As already indicated, I am of
the view that the learned Judges of the High Court were right in the view
they took. But before giving my reasons, it needs to be recorded that R.P.
Yadav has already been released on 31st January, 1999. The issue as far as he
is concerned is academic. Indeed no one represented him while the appeal in
which he is the respondent was being argued. But the issue remains alive in
Raj Kumar's case as he has more than two years to serve in terms to the
re-engagement.
48. The appellants have argued
that the High Court's view is erroneous because it was contrary to paragraphs
7, 13, 16 and 18 of (Str.) Navy Order 17\94. It is further submitted that if
release of all sailors similarly situated to Raj Kumar were allowed it would
upset the man-power planning and might lead to a crisis as far as the
country's defence was concerned. Their stand is that the re-engagement was
valid and binding on Raj Kumar.
49. According to Raj Kumar he was
legally entitled to be released after he had completed 15 years of service
not only under the Act and Regulations but also under the Contract Act. It is
the case of Raj Kumar in his writ petition that he agreed to be re-engaged
was based on the misrepresentation on the part of the appellants to him that
he had only completed 11 years of pensionable service and that he required
another four years to earn the pension. As such, it was contended he had a
right to rescind the contract under Section 19 of the Contract Act.
50. The primary issue is whether
there was a valid re-engagement at all. The appointment of a government
servant (or re-engagement as in this case) is based initially on contract
although after appointment it is a question of status. [See : Roshan Lal
Tandon v. Union of India, AIR 1967 SC 1889]. The re-appointment of Raj Kumar
is thus subject to the provisions of the Contract Act. This is also how the
appellants understood it. In their counter-affidavit filed before the High
Court the appellants said :
"In the Navy, the service of
sailors is contractual in nature and their engagement is for a specified
period only. As such the provisions of the Indian Contract Act are applicable
and it is a well settled principle of law that "once an offer is
accepted, it becomes a contract and the party making the offer cannot resile
from the offer."
51. As a general principle, this
is true but it is subject inter-alia to the exceptions recognised statutorily
in Sections 19 to 30 of the Contract Act. Here we are concerned with Raj
Kumar's plea to avoid the contract because it was based on misrepresentation
by the appellants.
52. Misrepresentation has been
defined in Section 18 of the Contract Act. For the purpose of this case, we
need consider only the meanings ascribed to the word in sub-sections (1) and
(3) of the Section. These read :
"Misrepresentation"
means and includes - (1) the positive assertion, in a manner not warranted by
the information of the person, making it, of that which is not true, though
he believes it to be true."
(2) xxx xxx xxx
(3) causing, however innocently,
a party to an agreement to make a mistake as to the substance of the thing
which is the subject of the agreement."
53. When consent to an agreement
is caused by misrepresentation under Section 19 "the agreement is a contract
voidable at the option of the party whose consent was so caused."
54. Thus, in Kalyanpur Lime Works
v. State of Bihar, AIR 1954 SC 165, the Government of Bihar had entered into
the lease in respect of certain mines with Kalyanpur Lime Works (KLW) after
forfeiting an earlier lease granted in respect of the same mines in favour of
Kuchwar Co. After the lease was executed between the Government and KLW, the
forfeiture of Kuchwar's lease was held to be invalid by the Privy Council.
KLW filed a suit against the Government asking for specific performance of
the lease executed in its favour. The suit was resisted by the Government,
inter-alia, on the ground that by reason of the Privy Council's decision, it
could not have executed the lease in favour of KLW. The suit filed by KLW was
decreed by the trial Court. On appeal, the High Court held that the contract
was void under Section 20 of the Indian Contract Act as both parties were
under a mistake of fact as regards the title of the Government to the subject
matter of the proposed leases.
55. This Court found that
pursuant to the decision of the Privy Council, Kuchwar Co. was re-instated
into possession but surrendered it when the lease in its favour expired in
the normal course. While negativing the view taken by the High Court, this
Court said :
"We think that in the
present case the Bihar Government could be taken to have represented to the
plaintiff that they had the right to forfeit the lease of the Kuchwar Company
and grant a fresh lease to the plaintiff. The plaintiff no doubt believed in
that representation and entered into the contract on that understanding. As a
result of the decision of the Privy Council, however, the Bihar Government
became incapable of making out the title which it asserted it had at the time
of the contract. But its title was not wholly gone; it was restricted only by
reason of the lease which had still several years to run. In these
circumstances, it might have been open to the plaintiff to repudiate the
contract if they so liked, but the defendant No. 1 could not certainly plead
that the contract was void on the ground of mistake and refuse to perform
that part of the agreement which it was possible for it to perform."
(emphasis added)
56. In the light of these
observations, I would approve the reasoning of the Full Bench of the Delhi
High Court in K.R. Raghava v. Union of India, 1979 Lab. I.C. 1294. In that
case the petitioner was appointed to the Emergency Cadre of the Military
Accounts Department. He executed a contract of service which was to continue
initially for a period of 3 years. The contract was renewable. After the 3
year period expired the Government informed the petitioner that the Emergency
Cadre was being wound up and that he would be retrenched but offered him permanent
employment in a Class-II post in the Income Tax Department. Under the
circumstances, the petitioner accepted the offer and was appointed as Income
Tax Officer Class-II. However, the Emergency Cadre was not in fact wound up.
The petitioner asked the Government to be allowed to continue in the
Emergency cadre of the Military Accounts Department. The Government refused.
The petitioner filed a writ petition claiming that the Government was under a
duty to give an option to him to go back to the Emergency Cadre after the
Government realised that the Emergency Cadre was not going to be wound up.
The High Court while allowing the writ application said :
"The Emergency Cadre was
added to the Military Accounts Department only due to the exigencies of the
war. It was not meant to be permanent. The Government, however, made a wrong
forecast that it would be wound up by 31.3.1952. This forecast was
communicated to Shri Ranbir Chandra and others serving in the Emergency Cadre
in 1950. Actually, the Emergency Cadre continued till 1957. It is obvious,
therefore, that the representation made by the Government to Shri Ranbir
Chandra was a "misrepresentation" within the meaning of S. 18(1) of
the Indian Contract Act, 1982, because it was a positive assertion in a manner
not warranted by the information of the Government of that which was not
true, though the Government in 1950-51 believed it to be true. Shri Ranbir
Chandra says that it was because of this representation that he had to accept
his appointment to Income-tax Officer (Class II Grade III) service and this
is also the conclusion of the UPSC. It must be held on this material that the
consent of Shri Ranbir Chandra to accept the Class II appointment was
"caused By misrepresentation" within the meaning of S. 19 of the
Contract Act. This had a double result. Firstly, it became the duty of the
Government to correct the misrepresentation which had been made to Shri
Ranbir Chandra as soon as the Government realised that the Emergency Cadre
was not being wound up even by 31.3.1972. Secondly, it also became the duty
of the Government to offer an option to Shri Ranbir Chandra to go back to the
Emergency Cadre if he so desired."
57. The appellants by sending Raj
Kumar the "Expiry of Engagement Serial" expressly represented to
him that he had put in only 11 years of pensionable service and that he
should apply for extension for four years to qualify for pension. It is on
record that Raj Kumar agreed to be re-engaged to complete the period of
pensionable service. The representation by the appellants was in fact wrong.
It may be that the representation was bona fide, but it should be a
misrepresentation nevertheless, and the agreement for re-engagement entered
into on the basis of such a misrepresentation is avoidable at the instance of
Raj Kumar.
58. If the re-engagement were
sought to be avoided by the Government because of a wrong representation by
Raj Kumar as to a material fact, there can be no doubt that the stand of the
Government would be upheld.
59. I would therefore conclude
that the High Court rightly held that Raj Kumar was entitled to avoid the
contract of re-engagement under Section 19 of the Contract Act, his consent
to the re-engagement having been obtained by a misrepresentation within the
meaning of Section 18 of that Act. Raj Kumar having validly exercised the
right, the appellants were bound to treat the re-engagement at an end and
release him.
60. I am also of the view that
the re-engagement is contrary to the Navy Act and the Regulations. It must be
remembered that Raj Kumar had completed the necessary qualifying service for
minimum pension. He was entitled to ask for his discharge under Section 16(a)
unless he were re-enrolled in accordance with Regulation 268(3)(b).
61. As already noted any
extension under Regulation 268(3)(b) could only be for a period of two years
unless (i) the exigencies of service so warranted, and (ii) with the prior
approval of the Chief of Naval Staff. It is the admitted case of the
appellants, as noted earlier, that the re-engagement for four years was made
only to enable the respondents to qualify for pension and for no other
reason. This is also clear from the order of rejection quoted earlier. In the
absence of any of the pre-conditions registered for re-engagement after a sailor
had served for pension, the re-engagement of Raj Kumar was not in accordance
with the Regulations. It is also not the case of the appellants that the
prior approval of the Chief of Naval Staff was obtained.
62. If it is assumed that para 9
of (Str) Navy Order 17\94 was, as it were, a blanket prior approval for
re-engagement for a period of 3 years, even so, the re-engagement for a
period of four years was not in accordance with the Navy Order and therefore
not in accordance with Regulation 268(3)(b) or Section 16(b) of the Navy Act.
That being so, in terms of Section 16(a) of the Act, Raj Kumar was entitled
to be released.
63. Reliance by the appellants on
paragraphs 7, 13, 16 and 18 of (Str.) Navy Order 17\94 is misplaced. First,
the Navy Order cannot override the Act or the Regulations. Second, none of
the paragraphs relied on are relevant at all. Paragraphs 7 and 13 relate to
the obligation on the part of the officers recommending re-engagement to
complete the process two years prior to the expiry of the period of initial
engagement because of the administrative difficulties which would otherwise
be involved. They do not curtail the sailors' rights under Section 16(a) of
the Navy Act. As far as paragraph 16 is concerned it deals with compassionate
appointments and I have failed to see how it is at all material.
Paragraph 18 which was quoted by
the appellants in the order of rejection, deals with a situation where there
is a valid re-engagement. It does not apply when the re-engagement itself is
invalid which, for the reasons stated by me earlier, is the situation in Raj
Kumar's case.
64. In any event, paragraph 18
does not contain a complete embargo on release. The language is that
"the engagement will generally not be cancelled due to any altered circumstances."
In other words there is an element of discretion left to the concerned
authorities to release a validly re-engaged sailor because of subsequent
altered circumstances.
65. Now Raj Kumar had asked for
release not only because he had served for 15 years, but also because his
mother had died and there was no one to look after his aged father. The
appellants, as is apparent from the letter rejecting Raj Kumar's application,
appear to have proceeded on the basis that the embargo on release in Paragraph
18 was absolute and that there was no discretion in them to consider the
personal reasons put forward by Raj Kumar for release. That the appellants
have such a discretion is also clear from the non-obstante provisions of
Regulation 280(2) which provides :
280(2) "Discharge shall not
be claimed as a right, however, and nothing in these regulations shall
interfere with the power of the Government to suspend discharge on
compassionate grounds or to refuse discharge in a particular case."
66. This brings me to the third
and final ground for rejecting the appeal. Acting on the basis that the
re-engagement was valid, it must be held that the refusal to release was bad
as it ignored the fact that the appellants had a discretion in the matter which
they could have exercised. By proceeding on the basis that paragraph 18 of
Navy Order (Str.) 17\94 was imperative and unconditional, the appellants
failed to exercise the jurisdiction vested in them under Reg. 280(2) read
with paragraph 18 itself. The failure is all the more patent in the light of
the Commander's "strong recommendation" for Raj Kuamr's release.
Additionally the refusal of the
appellants was arbitrary and violative of Article 14 of the Constitution
because the appellants have released others whose cases were similar to Raj
Kumar's. R.P. Yadav who had been re-engaged to serve till 31st January, 2000
was released on 31st January 1999. Our attention was also drawn by Raj
Kumar's counsel to the case of one Azad Singh Ruhil. Azad Singh had also
approached the High Court for his release under Article 226. This was
directed by the Learned Single Judge on 28th January, 1999. No appeal was
preferred by the appellants from this order and Ruhil was released. The
appellants have submitted a `note' after the arguments were concluded and
judgment reserved, to the effect that since Ruhil had not signed the contract
of re-engagement as Raj Kumar had, they had decided not to prefer an appeal.
The reasoning is specious particularly in view of the stand taken by the
appellants in their counter-affidavit before the High Court viz., that once
the offer made for re-engagement by the sailor was accepted by the appellants
the contract was complete and could not be rescinded.
68. I would, for all these
reasons dismiss the appeals and, as far as Raj Kumar is concerned, with
costs. I regret that by expressing my opinion in favour of dismissal of the
appeals, I am differing with the views expressed by my learned Brothers. But
I do so with respect and despite the impassioned submission made by the
Learned Additional Solicitor General on behalf of the Government that the
defence of the country would be jeopardised by a possible sudden efflux of
trained personnel. Apart from the fact that this was not the ground stated by
the appellants in the order of rejection, to accept this as a ground for
allowing the appeal, in the view that I have taken, would be to decide the
case not according to law but on policy. And, speaking for myself, I would
rather the country's defence did not rest on unwilling shoulders.
Appeals dismissed.
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