SARABJI SINGH SAHI Vs. UNION OF INDIA

JUDGEMENT

(1.) In these Petitions under Article 226 of the Constitution it has been prayed that a writ of Mandamus be issued directing the Respondents to release the Petitioner immediately, with full terminal benefits including pension, gratuity, provident fund etc. The Petitioner has been working at the post of CHEAA as a 'Sailor' in the Indian Navy in the cadre of 'Artificers' with effect from 13.1.1984. The Engagement was effective for a period of fifteen years. Initially, their training period of four years as an 'Artificer Apprentice' was not included within this period of fifteen years. However, in the Anuj Kumar Dey vs. Union of India, JT 1996 (10) SC 679, the Hon'ble Supreme Court had held that the training period of four years which had necessarily to be undergone by the sailor should be included within this period of fifteen years. Before the passing of this judgment the position would have been that since the Petitioner had joined the Indian Navy on 13.1.1984, he would have remained as an Apprentice upto 12.1.1988 and would mandatorily have had to serve the Indian Navy for a further period of fifteen years ending on 12.1.2003. The impact of the judgment is that the apprentice period is now to be included in the fifteen years period and, therefore, the Petitioner would be entitled to demand a release from the Indian Navy on 13.1.1999.

(2.) It has been explained by Learned Counsel for the Petitioner that though the Petitioner had himself applied for Re-engagement, this action was predicated on the Respondents' mis-representation that he would be entitled to pension etc. only after 12.1.2003. At that time, the Petitioner has alleged that he was not aware of the ruling in Anuj Kumar Dey's case (supra) otherwise he would not have applied for Re-engagement. Reliance is also placed on the case of Azad Singh Ruhil vs. Union of India and Another, C.W.P. 3635/1998, in which a similar prayer was granted by Orders dated January 28, 1999. It is argued that in the said Petition, the Petitioner had similarly applied for Re-engagement so as to earn pension. However, Shri Ruhil had refused to sign the AGREEMENT FORM FOR PENSION SERVICE - IN 441(a) and instead signed the CERTIFICATE OF UNWILLINGNESS FOR FURTHER SERVICE ON 20.11.1007. This Release Order was specifically noticed by the Hon'ble Supreme Court in Union of India vs. P.P. Yadav, JT 2000 (6) SC 371. The Respondents had adopted the argument that since IN 441(a) had not been signed the case was distinguishable from the case of P.P. Yadav (supra) as well as that of Raj Kumar Vs. Union of India & Others, 79 (1999) Delhi Law Times 565. The Hon'ble Supreme Court had observed that no appeal had been preferred and Ruhil had been released. The Appellant Navy had submitted a Note in P.P. Yadav's case, (supra) after the arguments had been completed 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. Justice Ruma Pal in the minority judgment had observed that the argument was specious in view of the fact that in the Counter Affidavit in Ruhil's case, the Indian Navy had maintained 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. It is this argument that has been resurrected and reiterated on behalf of the Indian Navy by their Learned Counsel Ms. Jyoti Singh. Interestingly, both Counsel for the parties have relied on the judgment in R.P.Yadav's case (supra).

(3.) It may briefly be recounted that under Section 16 of the Navy Act 1957 a Sailor is entitled to be discharged on the expiration of the term of service for which he is engaged, which in the present case would be fifteen years inclusive of the four years of apprenticeship, that is, 12.1.1999. The minimum qualifying service for pension under Regulation 78 of the Service Pension and Gratuity Pension Regulations (Navy), 1964, is fifteen years. Ms. Jyoti Singh has proffered the argument that having invested a large sum of money on the training of the Petitioner, it would be detrimental to the interest of the Indian Navy to permit an early release of a sailor such as the Petitioner. However, the language of the Act and the Orders passed thereupon indicate to the contrary, since a sailor is not expected to seek a discharge after the period of fifteen years but as per Rule 6 of Naval Orders 17 of 1994 issued by the Chief of Naval Staff, he has to exercise his option for Re-engagement for further service, on receipt of Expiry of Engagement Serial from CABS. As I see it, the assumption is that after the period of Engagement (fifteen years), the sailor would ordinarily be released from service. Thereafter, Rule 7 casts an obligation on the Commanding Officer etc. to ensure that orders of Re-Engagement are obtained in time. Rule 7-C states that recommendations for Re-engagement in all cases are to be forwarded to the Commodore Bureau of Sailors, Bombay, in duplicate on the Proforma at Appendix 'A'. As the 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 of release. In the present case, the Petitioner had duly applied for Re-engagement in Appendix 'A' and was medically examined and found fit on 1.7.1997 and the period of Re-engagement was recommended by the Commanding Officer for four years on 16th July, 1997 .