Raj Kumar vs Union Of India (Uoi) And Ors.
1999 Latest Caselaw 372 Del

JUDGMENT

K. Ramamoorthy, J.

1. Mr. Raj Kumar is the writ petitioner in CW 3833 of 1997 and CW 876/98. In CW 3833 of 1997 the petitioner has prayed for 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 he respondents to release the petitioner on the scheduled date of 31.01.98 and grant him the pension and other retire mental benefits as applicable to on the expiry of 15 years including 4 years training period".

2. On 15.11.983 he joined the service of the Navy. The respondents has taken the view that there should be a complete period of 15 years service for getting the pension and the training period of 4 years was excluded from consideration. The Supreme Court in its judgment -- Anuj Kumar Dey v. Union of India dated 28.11.1996 reported in JT 1996 SC 679 has held that training period of 4 years should be counted in total service for pension. In 1997 the petitioner gave an option to continue to work for four years without the knowledge of the judgment of the Supreme Court. The respondents would not permit the petitioner to get released on the scheduled date of 31.1.1998. The petitioner wrote to the respondents for withdrawal of willingness of re-engagement. That is filed as Annexure III which reads as under:

From

Raj Kumar,

Rank CHEAR, No. 191648-R,

To

The Director, Headquarters, Naval Technical Group, C/o Bharat Electronics, Jalahalli Post, Bangalore - 560 013.

Sir,

APPLICATION FOR WITHDRAWAL OF WILLINGNESS OF RE-ENGAGEMENT, RAJ KUMAR, CHEAR, 191648-R

1. I have the honour to submit the following for your kind consideration:

2. My name was published in the list of Expiry of Engagement Serial vide CABS letter ESS/01/1996 dated 12 Jan., 1996. It was mentioned in the CABS letter that my service was only 11 years and was not completing minimum pensionable service and required to re-engage for the same. Consequently since, I was not eligible for pension, I expressed my willingness for further re-engagement of 4 years with effect from 15 Jan., 1998 to 31 Jan., 2002. The same was forwarded to CABS vide this office letter HQNTG/3/ADM(S) dated 19 Feb., 1996 and was approved vide CABS letter DA/191648-R/C dated 04 Apr., 1996. The IN441(A) was forwarded to CABS vide this office letter HQNTG/3/ADM(S) dated 1 May, 1996.

3. During the last 12 months, there has been drastic changes in my domestic situation. I bring to your notice the following circumstances which has forced me to revoke my decision for re-engagement for further service:

(a) Recently demise of my mother has put me in a great mental trauma as my father aged 70 years is alone at home and nobody is there to look after him and also agriculture land at my native place i.e. Vill Bajitpur, Distt. Rohtak (Haryana). I am unable to keep my father with me at my duty station as no one will be there to look after the property at native place. In addition, he can not be left alone unattended as he is unable to do his routine work at this age. Keeping the age and state of my father in mind, it has become extreme necessity that he needs to be accompanied by me at all times so that he can have a peaceful old age life, which every old man expect from his son.

(b) It is also understood that 04 years of Artificer Apprentice training would be counted for pension service for Artificer Sailors, in this regard Supreme Court judgment in case of Anuj Kumar Dey v. Union of India dated 28 Nov., 1996 is relevant.

4. Considering my domestic problems and above said reasons, I wish to be released from service on completion of my present engagement i.e. 15 Jan., 1998. Therefore, I wish to withdraw my willingness for further re-engagement. I would further request that my willingness for re-engagement and IN441(A) may be cancelled. I may be discharged from service after 15 years of initial engagement which will give me great opportunity to look after my old aged father and property. This would relive my mental tension and I would leave the fine service with great regards,

Yours obediently,

Raj Kumar      (CHEAR, 191648-R)  

3. On 9.4.1997 the Commodore, Bureau of Sailors, Chhetah Camp, Mankhurd, Bombay - 400 088 had recommended his case and the same is as under:

 Telephone              : Headquarters,
    Naval Technical Group, 
    C/o Bharat Electronics,  
    Jalahalli Post, 
    Bangalore - 560 013.
 HQNTG/3/ADM(S)/I       9 Apr., 97
 

 RE-ENGAGEMENT OF RAJ KUMAR, CHEAR, 191648-R  
 

 1.       Refer Sl. 1127 of CABS letter EES 01/1996 dated 12 Jan., 96.
 

2. The above sailor expressed his willingness for further engagement of four years with effect from 15 Jan., 98 to 31 Jan., 2002 vide this office letter of even number dated 19 Feb., 96. The same was approved by CABS vide CABS letter DA/191648-R/C dated 4 April, 1996. IN441(A) was forwarded vide this office letter of even number dated 1 May, 96.

3. However, the sailor has now put in a request to withdraw his willingness due to the following reasons:

(a) Owing to the untimely demise of his mother the responsibility of looking after his aged father and property has come to the sailor and is a constant source of worry to him.

(b) As per the recent Supreme Court judgment in the case of Anuj Kumar Dey v. Union of India dated 28 Nov., 96, the sailor perceives that he would be completing minimum pension service by 15 Jan., 98 since Artificer Apprentice training period is also taken into account for the purpose of pension.

4. In view of the above it is strongly recommended that the sailor's IN 441{A) may be cancelled and he may be permitted to be released from the service as per present engagement i.e. on 15 Jan., 98. a submission received from the sailor in this regard is placed at enclosure for perusal.

(R Ramasastry)

Commander Director (ADL)

Encl: as above

Copy to :

The Flag Officer Commanding-in-Chief

(For : Command Personnel Officer)

Headquarters

Southern Naval Command

Naval Base Post

Kochi - 682 004

4. On 11.6.1997 the Bureau of Sailors, Mumbai passed the following order: Telephone : 5563320 Ext 309

Bureau of Sailors Cheetah Camp,   Mankhurd      Mumbai - 400 088.

 DA/191648-R/C       11 June, 97
 

Headquarters,  
Naval Technical Group,  
C/o Bharat Electronics,  
Jalahalli Post,  
Bangalore - 560 013.
 

RE-ENGAGEMENT OF RAJ KUMAR, CHEAR, No. 191648-R
 

1. Refer to your letter HQNTG/3/ADM(S)/I dated 09 Apr 97.
 

2. 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 from 15 Jan., 98 to 31 Jan., 20002 was forwarded to HQ NTG (Bangalore) and same was received duly signed by the sailor.

3. 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.

4. In view of the above, it is stated that sailor's re-engagement for the period from 15 Jan., 98 to 31 Jan., 2002 is final and cannot be changed at this stage.

(K Radhakrishnan)

CGO           

SO (Admin)       for Commodore     

Copy to :

The Flag Officer Commanding-in-Chief

(For : Command Personnel Officer)

Headquarters

Southern Naval Command

Naval Base Post

Kochi-682004

5. This is the order that is challenged by the petitioner in the writ petition.

6. The learned Counsel for the petitioner, Mr. Vineet Bhagat, submitted that once the petitioner had completed 15 years of service he is entitled to ask for release and for pension and that cannot be denied by the respondents.

7. The learned Counsel for the petitioner, Mr. Vineet Bhagat relied upon the judgment of this Court rendered by My Lord Justice Vijender Jain in CWP No. 1368 of 1998 titled as Shri R.P. Yadav v. Union of India and Ors. decided on 23.10.1998. According to the petitioner his case was recommended by the Commodore for release.

8. Mr. Rakesh Tikku, learned Counsel for the respondent submitted the point that arise for consideration is that once there was a contract between the petitioner and the respondents by which the parties had agreed to render service for a particular term the petitioner cannot resile out of the contract and the petitioner is bound to serve the term which he had agreed to in the option letter given by him. According to Mr. Rakesh Tikku, learned Counsel for respondents this aspect was not considered by Hon'ble Mr. Justice Vijender Jain in CW 1368 of 1998. According to Mr. Rakesh Tikku, learned Counsel for the respondents the ratio laid down by the Supreme Court would not apply to a case where subsequent to the decision of the Supreme Court persons like the petitioner had opted to continue for another period of four years.

9. The argument put forth by the learned Counsel for the respondents overlooks the crucial issue that the petitioner had asked for option to continue to serve for another four years only to fulfill the condition imposed by the respondents that there should have been 15 years service and the period of training cannot reckoned for pensionary benefits.

10. Once the law had been declared by the Supreme Court the respondents are bound to follow the same. They cannot rely upon the option given by the petitioner. The order passed by the respondents on 11.6.97 is set aside and the respondents are directed to pass appropriate orders releasing the petitioner from service and granting him all retiral benefits.

11. During the pendency of the earlier writ petition the petitioner was promoted by order dated 22.10.1997 and that was cancelled on 22.12.1997. Therefore, the petitioner had approached this Court by filing CW 876/98 and the order dated 22.12.97 was stayed. The petitioner is asking for release with effect from 31.1.1998 on which date he was holding promotion post. Simply because he has filed the writ petition the order promoting the petitioner cannot be cancelled. The order dated 22.12.1997 is liable to be set aside. The petitioner shall be released from service on the basis of his promotion post if he was regularly appointed. The petitioner shall be retired from service and the respondents shall grant him all retiral benefits.

12. In CW 2102/98 the petitioner has prayed for the following reliefs:

"(i) issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned order/letter dated 07.01.98.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing he respondents to release the petitioner immediately and grant him the pension and other retiremental benefits as applicable by including 4 years training period".

13. The short facts which are necessary for the disposal of the writ petition are as follows.

14. On 16.1.1982 the petitioner was engaged as Artificer in the category of 'Sailor'. He was subsequently promoted and he was holding the post of CHAA. On 16.1.1997 the petitioner gave the option to continue for further four years. Subsequently on coming to know the judgment of the Supreme Court in Anuj Kumar Dey v. Union of India, (supra) the petitioner made a representation to the respondents to release him forthwith granting him all pensionary benefits. On 25.11.1997 that was duly recommended by his Commodore. On 7.1.1998 the request of the petitioner was rejected. Hence the writ petitioner has filed this writ petition.

15. The point raised by the petitioner in this writ petition has already been dealt with by me above. That principle would apply and the petitioner is entitled to succeed. The respondents shall pass appropriate orders releasing the petitioner granting him all retiral benefits.

16. The respondents shall release the petitioners and send them to the Commodore, Bureau of Sailors, Cheetah Camp, Mankhurd, Mumbai-88 within three months for this purpose.

17. The writ petitions stand allowed to the above extent.

18. There shall be no order as to costs.