Case: EX NAVY DIRECT ENTRY ARTIFICERS ASSO Vs. THE UNION OF INDIA MINISTRY OF DEFENCE REPRESENTED BY THE SECRETARY

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 xxx36. 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 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 10of service, cannot presume that he stands automatically enrolled in Fleetfar as Appellant Nos. 2 to 5 are concerned, there was no such enrolment in Fleetfact, 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 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.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 certainof 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 anytime. We would, at this juncture, like to reproduce para 31 of T.R. Das case.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, 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 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.Apprentice Artificers also got the pension on rendition of 10service, 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 4training in Naval establishment. Thereafter, they were advanced to the rank of Artificer V and their initial engagement of 10active 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. This has happened pursuant to the judgment of this Court in Anuj Kumar Dey & Anr. v. Union of India &. 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 thewho 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 EntryArtificer 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.