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PETITIONER: UNION OF INDIA & OTHERS

       Vs.

RESPONDENT: R.P.  YADAV

DATE OF JUDGMENT:       10/05/2000

BENCH: K.T.Thomas, D.P.Mohapatro

JUDGMENT:

     D.P.  MOHAPATRA,J.

     Leave granted.

     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 vs. Union  of  India  and others 1997 (1) SCC 366 on  the  above question.

     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 Attorney 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  of  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.

     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 withdrawl  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

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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".

     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 & another vs.   Union of India & 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 Chhetah 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 petitioner  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.

     The  factual  position in the case of R.P.   Yadav  is similar  on all material aspects excepting the difference as noted  above.   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.

     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

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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 paint, 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.

     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.

     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 enrolled 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.

     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

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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 an 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.  Chapter  VI  contains  the provisions regarding service privileges.  In Chapter VII are included  the  provisions regarding pay, pension, etc.   and maintenance   of  families.   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.

     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.

     Reliance  has  been  placed  on  the  Navy  Order  No. (Str.)17 of w1994 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.

     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.

     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 sailors  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

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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).

     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.  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-engaged for.

     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  of 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.

     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.

     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 terms 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

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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.

     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 Regulation  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  expertise   and  skill  for  which substantial amounts are spent from the exchequer.

     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.

     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

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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.